Irina Fast has dealt with several personal injury cases and has more than 20 years of experience in personal injury in the Russian legal market, particularly in the fields of railroad accidents, social security disability, military accidents, accidents and injury at work, industrial disasters, and medical malpractice. She tells LM all about Russian legislation towards personal injury, especially in regards to the workplace, and where improvements could be made.
What are the challenges of dealing with complex medical conditions? Given the complex nature of injury cases and the fact that they require careful consideration, how do you ensure that the full extent of the injury is understood?
The most difficult thing is to prove is the cause-and-effect relationship between act or omission by a health care provider and prove it caused harm, injury, or death to a patient. Defining medical errors is an overriding priority of expert institution, costs a lot of money, and results are in the balance. In arriving at cause-and-effect relationships, rights of harmed individuals are well-defined in a fundamental Piece of Legislation: Civil Codes of the Russian Federation. It is also up to the expert institution to define type of rehabilitation and medical care required. The court enforces the material consideration of expenditures incurred.
How common are clinical negligence cases in Russia? What rights do patients have if they believe that their injury has been initially overlooked by their Doctor or the healthcare professional?
The main issue is that there is no reliable and objective statistics on medical errors in Russia, but our experience indicates that there is substance behind about half of claims against the quality of the medical care provided. If a patient believes their injury as well as diagnosis or treatment has been initially overlooked by their doctor or the healthcare professional, he can appeal to the law enforcement agencies, require for initiation of criminal proceedings or in civil proceedings, with a claim to recover compensation. An injured person is entitled to compensation for lost wages, compensation for moral harm, re-education, as well as treatment and rehabilitation. There are generally no other ways to restore the violated rights of the patient, but by filing in court. Providers of medical care only in rare cases initiate the mediation procedure.
What are the challenges of proving liability for cases that happen in the work place?
Harm caused to an employee shall be compensated by the Russian Social Security Public Fund and the employer compensates moral harm. Poor legal literacy work of injured individuals is the main issue in cases when the classification of an illness or injury as occupational is rejected. Harmed individuals implicitly trust authorities and they, as the most vulnerable society members, usually avoid fighting for their rights. Labour union organisations serve the employer rather than employees and show very little concern about violated rights of individuals. A subsequent issue for those harmed individuals is in the underestimation in the degree of loss in occupational capacity by the responsible institutions; due to both unclear criteria and the unofficial agreement to either allocate minimal degree of loss of occupational capacity, or to completely reject the right for compensation. In nearly 30% of cases, individuals injured at work are awarded by the Social Security Public Fond with significantly lower amount of compensation than provided for by legislation. The main reason for that is the displacement of legal practices for protecting disabled vulnerable individuals by the Courts, instead of prioritising state budget and the interest of powerful organisations. This situation is influenced by ongoing political developments as well as economical phenomena. There is no problem in finding a legal background for justification of amenability in practice on the matter at hand, if principle of equality of arms was observed.
What are the timescales involved in making a compensation claim regarding serious industrial diseases – considering that the symptoms of some of these types of diseases could take years to become apparent?
For those matters, there is no time limitation. If the employee was exposed to a harmful work environment he has a right for compensation, no matter how many years it took for the symptoms of his industrial disease to appear. It should, however, be noted that payment for previous years will only cover last 3 years before the date of application.
Is there anything else you would like to add?
There are no prescribed standards for the extent of moral harm compensation in Russian legislation; it is only based on the compliance with plea of reasonableness and justice. Consequently, nothing but paltry compensatory amounts are being enforced. For instance, average extent of moral harm compensation is about 150 000 roubles to date, which is equivalent of $2500. Over last years it has come about the situation that paying paltry amount of compensation is more worthwhile than investing heavily in the safety of human life and health. Over several years, our firm took all the actions possible to improve the situation by forwarding legislative initiatives and implementing selected social actions. Unfortunately, up to the present time, the work that has been put into this has not come to full fruition.