The Legal System of Thailand and Medical Malpractice
Thailand is a civil law country. While most laws are codified, the general principles of equity are taken into account in some instances. Stare decisis or compliance with former decisions of the Supreme Court is not mandatory, but has a persuasive effect in the adjudication of controversies. There is no jury system in Thailand. Cases are decided on the merits of the evidence submitted by the parties. Alternative dispute resolution is encouraged and settlements reached between the parties are respected by the court. Discovery procedures are still an unfamiliar concept in the system. Actual damages are awarded, but punitive or exemplary damages are rarely awarded.Thai natural and juridical persons, as well as those domiciled in Thailand can bring suits against any defendant. Non-nationals and non-domiciled persons and entities can sue defendants domiciled in Thailand. Foreign persons or entities suing in Thailand need not be physically present in the country during the entire course of the suit. A lawyer in Thailand may file suit on the foreigner’s behalf, and the foreign litigant may reserve personal appearance only when required by the court to give testimony against the contending party. Jurisdiction is determined by law alone. Venue may be waived, or may be subject to the agreement of parties. The petitioning party is responsible for requesting the court to issue the summons against the respondent. A separate petition must be filed to request the court to serve the complaint and summons to the defendant. A reasonable amount of time is allowed for the service. If the defendant is not domiciled in Thailand, service of summons must be done through diplomatic channels. Foreign judgments are not enforceable in Thailand. A separate suit needs to be filed, and the foreign judgment is presented as evidence in the new case. In such cases, the court will necessarily examine whether the foreign court which decided the case had jurisdiction and whether the judgment was final.
Like in most countries, the burden of proof in criminal cases like murder or rape is proof beyond reasonable doubt. On the other hand, civil controversies like breach of contract or rescission require mere preponderance of evidence.
Litigation in Thailand Foreign transactions in Thailand had rapidly risen in the recent years. Relations, both business and personal, have found its way into the system of Thailand. This, too, has inevitably resulted in the increase of litigations in the country.Thais are known to be non-litigious people. However, the influx of foreign residents and guests has swung the Thai judicial system to activity. Whenever faced with a legal controversy, foreigners are advised to secure the services of a Thai lawyer. This is because all legal processes, including arbitration proceedings, are done in the native language. Pleadings for submission to judicial bodies are submitted in Thai as well. And similar to the rules in most countries, only lawyers who are members of the local bar are allowed to appear in court and other legal venues.Siam Legal has a team of foreign legal professionals from the Americas, Europe and Asia who are committed to extend impeccable service to its foreign clientele. Hand in hand with their Thai counterparts, Siam Legal delivers litigation service in the following fields of practice:
- Criminal Law – Fraud; Drugs; Imprudence; Negligence; Money Laundering
- Civil Law – Breach of Contract; Debt Collection;
- Family Law – Divorce; Child Custody; Child Visitation; Child Repudiation;
- Personal Injury – Torts; Medical Malpractice
- Labor Disputes
- Intellectual Property Disputes
- Trade Disputes
Medical Malpractice in Thailand – Q & A
Can claims for medical malpractice be brought in Thailand?
Thai law provides that claims for medical malpractice may be filed in Thai courts. Such claims have their basis in Thai law as liability for wrongful acts.
What is the statute of limitations for malpractice claims?
Claims for compensation must generally be brought within one year of the day the injury took place. Certain exceptions apply, most notably where claims also fall under the ambit of the criminal law, where the time limit is that prescribed by the applicable (criminal) law, assuming the period of prescription is longer.
What kind of evidence is required to bring a claim?
It must be established that a medical practitioner acted negligently or unlawfully, by way of the failure to meet established and accepted standards of medical practice in the jurisdiction, and that injury or death resulted from such an act. For this reason, the most important evidence, at least initially, will be that provided in the form of a medical opinion from a practitioner providing a suitable attestation to this effect.
What is the scope of compensation?
Thai courts tend to limit damages in malpractice claims to actual, quantifiable losses. This usually involves the award of expenses and damages for loss of earnings, both present as well as future. It is unusual for a Thai court to award damages for such ‘intangibles as pain and suffering, disfigurement, emotional shock etc. and any such awards are likely to be minimal, if awarded at all. For this reason, damages as a result of medical malpractice in Thailand are, under current provisions, extremely unlikely to result in the levels of awards seen in western jurisdictions, particularly the United States
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