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Supreme Court of Denmark

No change of maximum medical improvement and degree of permanent injury following patient injury 

Case no. 6/2010
Judgment 22. December 2011
 

A
vs.
The Danish Patient Injury Complaints Board

No change of maximum medical improvement and degree of permanent injury following patient injury. No infringement of Article 6 of the Human Rights Convention.

On 27 May 2000, A broke her ankle when she was walking her dog, and she underwent surgery that same day. On 30 May 2000, an X-ray of her ankle showed that her ankle joint was anatomically not in place. The Patient Injury Complaints Board held that this constituted a patient injury, as A should have been offered new surgery. A's degree of permanent injury was determined by the Complaints Board to be 10%. The time of maximum medical improvement (MMI) of the injury was determined to be 13 February 2001, the date of the final check-up at the hospital where the surgery was performed.

On 30 September 2004, A filed a claim against the Complaints Board stating that the degree of permanent injury should be increased and the MMI should be changed to 23 August 2005.

Neither the High Court nor the Supreme Court found any basis for setting aside the Complaints Board's assessment of the degree of permanent injury and the MMI.

Before the Supreme Court, A stated that the hearing of her case amounted to an infringement of Article 6 of the European Human Rights Conventions, particularly the right to a public hearing within a "reasonable time".

In this respect, the Supreme Court stated that the patient injury was recognised by the Complaints Board's decision of 28 May 2003 and that the degree of permanent injury was increased to 10% by the decision of 30 March 2004. The court hearings of the case concerned A's claims for a further increase of the degree of permanent injury and change of the MMI. A found it necessary to refer the cases before both the High Court and the Supreme Court to the Danish Medico-Legal Council, and the case preparation was prolonged as a result of A's requests to submit further evidence and to defer the case for this purpose. After a general assessment of the hearing and complexity of the case, and considering that the case concerned an increase of the compensation already awarded, the Supreme Court found no basis for concluding that the duration of the case constituted an infringement of A's right to a hearing within a reasonable time.

Similarly, the decisions to not allow A to obtain further opinions were not in contravention of Article 6(1) of the Human Rights Convention.

Consequently, the Supreme Court upheld the High Court's judgment and dismissed the claim against the Complaints Board regarding Article 6(1) of the Human Rights Convention.

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