Browsing by Author "Drozdowska, Urszula Dorota"

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    Causal Effect Relationship in Medical Cases. An Old Problem in a New Scenario. Commentary to CJEU Judgment (Second Chamber) of 21 June 2017, N.W. & Others V. Sanofi Pasteur MSD & Others, Case C-621/15, EU:C:2017:484. Approbative Gloss
    (Wydawnictwo KUL, 2021) Wnukiewicz-Kozłowska, Agata; Drozdowska, Urszula Dorota
    This commentary evaluates the problem in assessing the role of a causal connection between damage and the use of a defective medical product, specifically a vaccine. The judgment of the Court of Justice of the European Union (CJEU) in the Sanofi Pasteur Case, which allowed the possibility of recognizing damage claims, even in cases where the prevailing scientific theory claims that there is no scientific evidence of a causal link between a vaccination and the disease, became a base for consideration. Consequently, procedural solutions (such as the standard of proof required, the admissibility of prima facie evidence reasoning and other solutions in cases of an uncertain causation) remain to be decided by national law. The authors assessed two legal systems: the French and Polish legal systems in the context of how to resolve these dilemmas and to describe the impact of the above-mentioned judgment on the case-law of French and Polish courts as regards the application of Directive 85/374/EEC. As a result, they concluded that the most important interpretative motive has become the individual interest of the vaccination’s victim as a consumer of medical services. It seems to be in accordance with Directive 85/374/EEC, which is motivated by the necessity of approximation of the laws of the Member States concerning the liability of the producer for damage caused by the defectiveness of his products. However, since the existing divergences may distort competition and affect the movement of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property, in countries belonging to the European Union, the authors wonder how the commented judgment will affect the further development of consumers protection against defective vaccines.
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    The American and Polish Legal Perspectives on Cases of Neurological Perinatal Damage – Selected Issues
    (Wydawnictwo KUL, 2024) Drozdowska, Urszula Dorota
    The purpose of the article is to present and analyze the method of compensation for a special type of medical damage – neurological perinatal damage – which arises in connection with childbirth and is neuropathological in nature. This damage is irreversible and the cost of medical care, which sometimes continues throughout the child’s entire life, is very high. Claims involving this type of damage generate the highest compensation amounts, which means, from the liability insurance point of view, that it is a “hard-to-insure” injury. This is true for both the Polish and US liability systems, even though they are legal orders apart. What we are dealing here is, on the one hand, the need to support the family of the injured child, so that, thanks to the money obtained, they can begin their treatment and rehabilitation as soon as possible, and on the other hand, the need to take into account the interests of gynecologists and obstetricians, so that their occupations do not become deficit occupations. The idea is to increase the sense of legal security for these socially important medical professions. Given the above, attempts to seek an alternative to the judicial model of liability as a means of compensating this type of medical damage should come as no surprise. An example of an alternative liability model is the legislation enacted in two US states: Virginia and Florida (so-called “slice” no-fault liability models). These models, in effect for more than 35 years, are described in the first part of the article. In the second part, the author compares them with the main principles of the Polish judicial model of liability and the extrajudicial model, which, due to recent amendments to the law have undergone a major transformation. Then (due to the comprehensiveness of the subject matter), using the example of selected representative court cases, the author analyses the types of compensation claims and the amounts of benefits awarded in cases of perinatal neurological damage. The discussion ends with conclusions comparing the US and Polish models.