In a recent decision, the High Court of Cassation and Justice has established that the Ministry of Health has passive legal standing and will be liable for the payment of moral damages jointly and severally with the healthcare provider under the conditions of tort liability. Standing is the title or manner in which a person participates in a particular legal relationship, entitling him or her to be a party to the proceedings.
The Ministry of Health is responsible for ensuring public health and for controlling and supervising the work of health institutions, representing the central authority in the field of public health as provided for in Article 2 para. (5) of Law 95/2006. It should also be noted that public health care is subject to coordination by the Ministry of Health and is carried out by all types of state or private health establishments. Responsibility for public health care lies with the Ministry of Health, the county and municipal public health directorates and other specialised structures of the Ministry of Health, CNAS, specialised structures within the ministries and institutions with their own health network, as well as local public administration authorities.
The unlawful acts imputed to the health establishments also have effects vis-à-vis the central authority, the Ministry of Health, by virtue of its capacity as coordinator and person responsible for ensuring public health. According to Article 655 of Law 95/2006, public or private health units are liable under common law for damages caused in the activity of prevention, diagnosis or treatment if they are the consequence of: [...] nosocomial infections, unless an external cause that could not be controlled by the institution is proved [...].
The responsibility of the health care provider is laid down in Article 168 (2) of Law 95/2006, which states that the hospital shall ensure conditions for medical investigations, treatment, accommodation, hygiene, food and prevention of nosocomial infections, according to the rules approved by order of the Minister of Public Health. The hospital is responsible under the law for the quality of medical care, for compliance with the conditions of accommodation, hygiene, food and the prevention of nosocomial infections, and for covering any damage caused to patients. The liability of the health care institution is an objective liability based on the obligation of safety, of result.
In the light of the above, although health establishments, as providers of health services, are civilly liable under common law, the court ruled that this liability does not remove the liability of the Ministry of Health for damage caused in the activity of prevention, diagnosis or treatment, where these are the consequence of nosocomial infections. [Judgment 159/2023, ICCJ Civil Division I].