21/09/2026
When a patient suffers harm as a result of a medical act, one of the first questions that arises is: who is liable for malpractice – the doctor, the hospital or both?
The answer is not always simple. Under Romanian law, liability for medical malpractice may rest with the medical staff, the healthcare facility or, in certain situations, both, depending on the nature of the act, the existence of fault, the harm caused and the causal link between the medical conduct and the harm.
Accordingly, the fact that a patient had an unfavourable outcome following treatment or a medical procedure does not, in itself, mean that there has been malpractice. For liability to arise, the conditions laid down by law must be met.
Law No 95/2006 on healthcare reform governs civil liability for malpractice in Title XVI.
In essence, malpractice involves a professional error committed in the performance of a medical act that causes harm to the patient.
The implementing rules provide that a professional error that causes harm may give rise to the civil liability of the medical staff and/or of the provider of medical, healthcare and pharmaceutical products and services.
For a case of malpractice to exist, at least the following elements must be examined on the specific facts:
These criteria are also taken into account in the procedure for establishing malpractice cases.
Accordingly, an unfavourable medical outcome is not automatically equivalent to a case of malpractice.
A doctor may be civilly liable for harm caused by professional error in the practice of the profession.
Law No 95/2006 covers, among other things, harm caused by error, including through negligence, imprudence or insufficient medical knowledge, in the course of prevention, diagnosis and treatment.
Liability may also be examined in situations involving failure to comply with obligations relating to:
The doctor’s liability is therefore determined not merely by the final outcome of the treatment, but by the specific professional conduct and how it measures up against the applicable medical standard. In a 2024 decision, the Constitutional Court referred to the legal framework governing the civil liability of medical staff in such situations.
The distinction between culpable medical error and the medical risk inherent in a procedure or treatment is therefore important.
A treatment may be carried out in accordance with professional rules and the patient may nevertheless have an unfavourable outcome. In such a situation, the mere occurrence of a negative result is not sufficient to conclude that the doctor committed an act of malpractice.
Yes.
Liability is not limited to the doctor personally.
Such a conclusion, however, is too categorical.
The implementing rules expressly provide that public or private healthcare facilities, as providers of medical services, are civilly liable, under the general law, for harm caused in the course of prevention, diagnosis or treatment, in the situations provided for by law, including jointly and severally with the medical staff they employ for harm caused by those staff.
Moreover, the healthcare facility may bear its own liability where the harm is caused by failure to comply with the facility’s internal regulations.
This distinction is important.
For example, if the harm is linked to:
In such situations, it must be examined whether there is fault on the part of the healthcare facility itself and whether that fault contributed to the harm.
Yes.
This is one of the most important particularities of liability for medical malpractice.
In certain situations, the same harmful act may involve both the individual conduct of a healthcare professional and the liability of the healthcare facility.
For example, there may be an individual medical error alongside deficiencies in the organisation or operation of the facility.
The implementing rules expressly provide for the liability of the healthcare facility, jointly and severally with the medical staff it employs, for harm caused by those staff in the situations provided for by law.
At the same time, the persons involved in the medical act may be liable in proportion to their respective degree of fault, and it is for the court to determine the degree of fault, in accordance with the law.
The right question, therefore, is not always:
“The doctor or the hospital?”
but rather:
“What is the culpable conduct, whose conduct is it and to what extent did it contribute to the harm?”
The fact that the patient claims compensation from the healthcare facility does not, in itself, exclude the liability of the medical staff.
Equally, the fact that the medical act was performed by a doctor employed by the hospital does not mean that any harm is automatically attributable to the doctor.
The specific circumstances of each case must be examined.
For this reason, the following may become relevant in malpractice litigation:
Establishing that a case of malpractice exists involves examining the facts and the available evidence.
Essentially, the elements on which liability is based must be proved: the act, the harm, fault and the causal link.
In practice, expert evidence can be of particular importance, since determining whether medical conduct complied with professional standards generally requires specialist knowledge.
The court cannot turn the mere existence of an unfavourable outcome into an irrebuttable presumption of medical fault.
On the contrary, it must be examined whether the harm is the consequence of inadequate medical conduct or whether it represents the materialisation of a medical risk that, in the specific circumstances, could not have been avoided.
A person who considers that they have been harmed by an act of malpractice may apply to the Commission for Monitoring and Professional Competence in Malpractice Cases or to the competent court, in accordance with the law.
The Commission examines the case and determines whether or not there has been malpractice.
It is important to bear in mind, however, that the Commission’s role must not be confused with that of the court as regards compensation for the harm.
In a 2024 decision, the Constitutional Court emphasised that this Commission establishes whether or not a case of malpractice exists, but has no power to quantify the harm or to order the doctor or the insurer to pay compensation. Compensation may be claimed before the court.
Where civil liability is established, compensation may also be paid through professional civil liability insurance.
The very purpose of malpractice insurance is to cover, within the limits of the policy, the harm for which the insured person is liable under the law.
The rules provide that, where there is a dispute as to fault, the amount or the manner of payment of the compensation, these may be determined by the court. Compensation is borne by the insurer up to the sum insured, and if the harm exceeds the sum insured, the difference may be claimed from the person who caused the harm.
A distinction must therefore be drawn between:
the person liable for the harm and the person who pays the compensation under the insurance contract.
The two are not always the same.
Depending on the specific situation, the harm may have both a material and a non-material component.
The following may be at issue, for example:
The amount of compensation does not follow automatically from the existence of a malpractice case. It must be assessed by reference to the actual extent of the harm and the evidence adduced.
In medical malpractice matters, the law lays down a limitation period of 3 years from the date the harm occurred, except for acts that constitute criminal offences.
Under Article 688 of Law No 95/2006, the right of action for acts of malpractice becomes time-barred 3 years after the harm occurred, except for acts that constitute criminal offences. This rule is also mentioned by the Constitutional Court in paragraph 19 of Decision No 43 of 30 January 2024.
In practice, determining the point from which the limitation period starts to run can become an important legal issue, particularly where the consequences of a medical procedure appear or are identified later.
One of the most important points in a malpractice case is that medical harm and medical error are not synonymous.
A patient may suffer harm as a result of treatment or a procedure without the medical staff having breached the applicable professional standard.
Equally, harm may be caused not by an individual error on the part of the doctor, but by a deficiency of the healthcare facility.
There may also be situations in which there are multiple contributions to the harm.
For this reason, the analysis of a malpractice case must answer four questions in turn:
Was there a medical act?
Was there a culpable breach of professional obligations or other legally relevant conduct?
Was harm caused?
Is there a causal link between the act and the harm?
Only once these elements have been clarified can it be determined who is liable and under what conditions.
The answer to the question in the title of this article is: it may be the doctor, it may be the healthcare facility or it may be both, depending on the specific circumstances of the case.
The doctor may be liable for their own professional error. The healthcare facility may be liable for its own deficiencies and, under the conditions laid down by law, for harm caused by the medical staff it employs. In certain situations, the two forms of liability may coexist.
In a malpractice case, the essential issue is therefore not identifying a “culprit” in advance, but establishing the conduct that caused the harm, the person to whom that conduct is attributable, the causal link and the extent of the harm.
This individual assessment is all the more important given that an unfavourable medical outcome is not, in itself, proof of a case of malpractice.
Can the hospital be sued for malpractice?
Yes. The healthcare facility may be civilly liable under the conditions laid down in Law No 95/2006 and under the general law.
Can the doctor be personally liable for malpractice?
Yes. Medical staff may be civilly liable for harm caused by professional error, in accordance with the law.
Can the doctor and the hospital be liable together?
Yes. In certain situations, the law allows the liability of the medical staff and of the healthcare facility to be engaged at the same time.
Does an unfavourable outcome automatically mean malpractice?
No. The existence of a legally relevant act, the harm, fault and the causal link must be examined.
Who pays compensation for malpractice?
Compensation may be borne by the insurer within the limits of the policy, and the part of the harm that exceeds the sum insured may be claimed from the person who caused the harm, in accordance with the law.
How long is there to claim compensation?
In medical malpractice matters, the limitation period is, in principle, 3 years from the date the harm occurred, except for acts that constitute criminal offences.
How is medical malpractice proved?
By adducing the evidence relevant to the act, the harm, fault and the causal link, including medical documents and, where appropriate, specialist expert reports.
Author: P.A.
