Until the 7th of September 2022, evaluation of moral damages caused to people following vehicle accidents was drafted by the court, at its sole (and hence, wide) discretion. This has led to a number of negative legal consequences, as long deadlines for solving cases, blocking large amounts of money as reserves from the insurance companies for years, significantly different solutions for identical disputes, unjustified differences between the damages charged to the insurance companies versus the person insured, and especially a objectionable non-unitary practice of the courts.
Courts referred to aspects resulting from practice such as the intensity of physical pain established by IML reports, the degree of work incapacity, psychological trauma established through psychiatric evaluations, etc. Thus, courts proceeded to a subjective analysis, related to the severity of the accident in question or the level of notoriety of the accident, and quantified the moral damages at what they considered just. However, equal justice remained a pure desire of the litigants, given the fact that in identical disputes, the courts’ solutions were so different, that there were differences between 300 times higher on the established compensations.
The Order of the President of the Financial Supervisory Authority and the Minister of Health no. 1/2.293/2022 regarding the determination of compensation for injured person in case of injury to bodily integrity or health as a result of vehicle accidents based on the trauma score established by the National Institute of Forensic Medicine “Mina Minovici” Bucharest, was published in the Official Gazette, Part I on September 7, 2022, and eliminated the judges’ subjective assessment of suffering, and rebalanced the non-unitary court practice.
Specifically, the legislative act approves the trauma score on the basis of which the compensations due to injured persons are determined, both for compensation claims that are resolved amicably or before the courts – raised after September 7, 2022, but also for those definitively unresolved up to this date.
Therefore, the “suffering”, i.e. the moral damages suffered as a result of vehicle accidents, is now regulated and quantified legislatively, all types of injuries being strictly delimited and scored by the Annex to this Order. Consequently, people who wish to make such compensation claims will go through the new procedure.
The calculation of the trauma score is carried out for a fee at the request of the injured person, the RCA insurer, the BAAR or the Insured Guarantee Fund by medical expert evaluators.
Evaluating expert doctors are represented by specialist doctors or primary doctors of legal medicine or specialist or primary doctors of medical expertise of work capacity or by doctors who have completed the post-graduate course on “Evaluation of bodily injury in case of traumas associated with road traffic incidents”.
They carry out a clinical examination through an assessment expertise in which the charges presented, the supporting documents are verified and the clinical and paraclinical, morphological and functional aspects that are directly causally related to the vehicle accident are identified.
Subsequent, by explicit consent of the patient, an additional examination can be carried out in order to verify and complete the diagnosis, if the medical documents are insufficient and/or incomplete in relation to the victim’s condition.
After carrying out the examination, the medical expert evaluator issues an insurance medicine assessment report.
Also, if, after the current clinical examination, new clinical or functional or laboratory elements appear, a new examination can be performed upon request.
The way to quantify the severity of traumatic injuries includes three distinct parameters, representing three possible stages, namely the initial traumatic injury (LT), posttraumatic complications (CP) and permanent posttraumatic consequences (CPP).
Therefore, a score will be given for each injury, the maximum possible score being 200 points, which is established in case of persistent vegetative state or for accumulated injuries.
According to Law no. 132/2017 regarding the mandatory motor civil liability insurance, the value of a traumatic point is equal to twice the gross minimum basic salary per country from the date of the accident.
Given the fact that the minimum wage is currently 3,000 lei (starting 1st of January 2023), a traumatic point can currently be calculated at 6,000 lei. This indicates that compensation can be quantified at a maximum of 1,200,000 lei per person.
The harm associated with the score does not include any reference to the costs of medical, surgical and recuperative procedures necessary to cure or reduce the assessed morphophysiological deficits, so these can be proven and claimed separately.
The Annex to the Order provides clear and very detailed graphics, which determine the scores for any type of injury, for example a graph is intended exclusively for the quantification of aesthetic damages. It is stipulated that this quantification of aesthetic damage will be done separately for the facial area and the rest of the body. For the facial area, a method derived from the Greff and Hodin methods is used. The basic principle is the following – a series of skin sectors are established and a series of correction coefficients are applied to each sector. Then the resulting values for each sector are added (the maximum value being 10), and the total sum is divided by 50. The value thus obtained is entered in the calculation of the total score.
The procedure regulated by Order no. 1/2.293/2022 brings clarity, concreteness and solves the problems of the previous court practice, but it is not immune to different interpretations depending on the assessment of injuries.
Costaș, Negru & Asociați offers, in the context of its practice areas Insurance and Medical and Health Law, legal assistance for the whole procedure described above, including access to medical expert evaluators.
This article was prepared, for the Blog of Costaș, Negru & Asociații, by Ms. Clara Dohotar (Bucharest Bar Association).
Costaș, Negru & Asociații is a lawyers’ civil partnership with offices in Cluj-Napoca, Bucharest and Arad, providing legal assistance, representation and consultancy in a number of practice areas with a team composed of 16 lawyers and consultants. Details regarding legal services and the members of the team can be found on the website https://www.costas-negru.ro. All rights for the materials published on the company’s website and on social media belong to Costaș, Negru & Asociații, their reproduction being allowed only for information purposes and with the correct and complete disclosure of the source.
