15 MAI 2007. - Health Care Damage Compensation Act (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - Preliminary provisions
Section 1^re. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Section 2. - Definitions and scope
Art. 2. § 1^er. For the purposes of this Act and its enforcement orders, the following means:
1° "practice": the practitioner referred to in Royal Decree No. 78 of 10 November 1967 concerning the exercise of health care professions;
2° "health care institution": any institution providing health care, regulated by the Hospitals Act, coordinated on August 7, 1987, as well as the hospital managed by the Ministry of National Defence and located in the Brussels-Capital Region, the blood transfusion centres within the meaning of the Royal Decree of April 4, 1996 relating to the collection, preparation, conservation and delivery of blood and blood derivatives of the
3° "care provider": a practitioner referred to in point 1° who performs a care or health care institution referred to in point 2° in which a health care service is organized within the meaning of this Act;
4° "health care delivery": services provided by a care provider in the course of his or her profession, with a view to:
(a) promote, determine, conserve, restore or improve the health or aesthetic of the patient;
(b) a patient donation of human bodily material;
(c) to conduct contraception or a voluntary termination of pregnancy;
(d) Deliver births;
e) to accompany the patient at the end of life.
5° "patient": the natural person to whom health care is provided, upon request or not;
6° "insurance company": an insurance company registered in Belgium pursuant to the Act of 9 July 1975 relating to the control of insurance companies or exempted from the approval under this Act;
7° "the Fund": the fund referred to in Article 12;
8° "Guidance Ministers": the Minister who has the Public Health in his duties and the Minister who has the Economy in his duties;
9° "right persons": persons referred to in § 2 of this article;
10° "applicant": the patient or his or her rights or their legal representatives who apply for compensation to the Fund in accordance with the rules referred to in Article 17;
11° "insurer body", a national union, the Auxiliary Disability Insurance Fund and the Health Care Fund of the Belgian National Railways Corporation.
§ 2. The deceased patient is entitled to:
1° the spouse or divorced or separated from the body at the time of the act causing the damage;
2° the spouse or divorced or separated from the body at the time of death of the deceased patient as a result of health care, provided that:
- the marriage contracted after the injury occurred, was at least one year before the death of the deceased patient or,
- a child from marriage or,
- at the time of death, dependant a child for which one of the spouses received family allowances.
3° the survivor, divorced or separated from the body, who received a legal maintenance or fixed by a dependant agreement of the deceased patient;
4° the children of the deceased patient;
5° Children of the deceased patient's spouse if their filiation is established at the time of death of the deceased patient;
6° Children adopted by the deceased patient or his spouse before death;
7° the father or mother of the deceased patient who, at the time of death, leaves no spouse or beneficiary children. The adopters have the same rights as the parents of the deceased patient;
8° the father or mother of the deceased patient who, at the time of death, leaves a spouse without beneficiary children. The adopters have the same rights as the parents of the deceased patient;
9° in the event of a predecess of the father or mother of the victim who, at the time of death, leaves no spouse or beneficiary children, each ascendant of the predecede;
10° the grandchildren of the deceased patient who does not leave a beneficiary child or of whom one or more children are preceded;
Assimilated to grandchildren, provided that they are not otherwise covered in this paragraph, children for whom family allowances are granted by the head of the deceased patient's or spouse's benefits, even if their father and mother are still alive;
11° the brothers and sisters of the deceased patient who leaves no other beneficiary.
§ 3. Assimilated to the spouse within the meaning of § 2, the legal cohabitant and the de facto cohabitant with whom the deceased patient had lived for at least two years.
The judicial establishment of filiation shall only take into account the application of § 2 to the extent that the filiation procedure was initiated before the date of death resulting from the medical benefit by which the damage was created, unless the child was conceived but was not yet born or the child was born but not yet declared.
Those who, in accordance with the provisions of Article 353-15 of the Civil Code, may assert their rights in their original family and in their adoptive family, may not accumulate the rights to which they may claim in each of these families. However, they may choose between the pension they are entitled to in their original family or the pension they are entitled to in their adoptive family. Adoptions can always come back to their choice if a new fatal accident occurs in their original or adoptive family.
The provisions of this paragraph shall also apply in the cases provided for in Article 355 of the Civil Code.
The ascendants, grandchildren, brothers and sisters are considered to be entitled to this article only if they benefit directly from the compensation of the victim. Those living under the same roof are presumed to be.
By derogation from the previous paragraph, if the deceased victim was an apprentice who did not receive income, the beneficiaries will nevertheless be considered to be entitled if they lived under the same roof.
Art. 3. § 1^er. The purpose of this Act is to repair the damage suffered by patients and their beneficiaries, caused by a care provider in Belgium, under the conditions and limits provided for in this Act.
§ 2. Damage resulting from an experiment within the meaning of the Human Person Experiments Act of 7 May 2004 is excluded from the scope of this Act.
§ 3. The damage referred to in § 1^er caused only by a third party other than the provider, are excluded from the scope of this Act.
If a third party commits an act that causes injury and then that damage is aggravated by the care provider, or vice versa, only the portion of the damage caused by the care provider will be covered by this Act; If this distinction is not possible, this Act will apply at all.
CHAPTER II. - Repair
Art. 4. Patients, as well as their beneficiaries, are compensated, under the conditions provided for in this Act, by an insurance company and by the Fund, for damages resulting from:
1° of health care delivery;
2° the absence of a health care service that the patient could legitimately wait for given the state of science;
3° of an infection contracted for health care.
Art. 5. § 1^er. The damage resulting from:
1° of the initial condition of the patient and/or the foreseeable evolution of that condition, taking into account the patient's condition and the data of science at the time of health care delivery;
2° the intentional failure of the patient or the refusal of the patient or his or her representative to receive the care offered after being duly informed;
3° the normal and foreseeable risk or side effects associated with the provision of health care, taking into account the initial condition of the patient and the data of science at the time of health care delivery.
§ 2. No one can avail himself of any prejudice to the fact of his birth alone.
A person born with a disability caused by a health care benefit may obtain compensation for his or her injury when the benefit caused or aggravated the disability, or has failed to take the measures that could mitigate it.
Where the parents of a child born with an undetected disability during pregnancy as a result of a severe or intentional fault of a provider are adversely affected within the meaning of this Act, such parents may seek compensation for their sole damage. This damage could not include the special expenses arising throughout the life of the child from this disability.
Art. 6. § 1^er. The Fund and the insurance company shall repair economic and non-economic damage to the head of the patient or his or her beneficiaries within the limits provided for in § 2.
The Fund and the insurance company compensate the patient for:
1° the economic damage resulting from bodily injury, the reduction or disappearance of the patient's ability to engage in an activity that is likely to provide him with professional income or, at the very least, economic value;
2° the cost of the care services required by the damage sustained by the patient;
3° the cost of assistance and in particular in case of dependency;
4° the non-economic damage.
The Fund and the insurance company compensate eligible persons for:
1° the economic damage, i.e., the reduction or disappearance of the patient's ability to engage in an activity that would provide them with professional income or, at the very least, an economic value of which the entitled were of personal and direct benefit;
2° the funeral expenses and the costs associated with the transfer of the deceased patient to the place where they wish to have him buried or incinerated;
3° moral damage.
§ 2. The King specifies the compensation rules.
It cannot set a deductible or ceiling for the compensation of the care benefits required by the damage and borne by the victim.
It may set a maximum deductible of 435.27 euros and a maximum amount that cannot be less than 2.176.373.29 euros for the compensation of economic damage. The amount of Euro435.27 is reduced to Euro217,64 when the applicant is a recipient of the increased intervention.
It may set an amount that cannot be less than 870.549.32 euros for the intervention of the Fund and insurance companies for the compensation of expenses resulting from the assistance of third parties.
It can set a maximum deductible of 1741.10 euros and a maximum amount that cannot be less than 870.549.32 euros for compensation of moral damage. The amount of Euro1741.10 is reduced to Euro870.55 when the applicant is a patient beneficiary of the increased intervention.
It may set a maximum amount that cannot be less than 4352.75 euros for compensation for funeral expenses.
It may also set a number of days of incapacity for work below which the victim is not entitled to compensation from the Fund or insurance companies.
The amounts referred to in this section are related to the pevot index 103.14 (base 1996=100) and are adjusted to the consumer price index in a manner identical to that for pensions.
§ 3. The compensation that the Fund and the insurance company pay to the patient or his or her rights under the provisions of this Act or under the enforcement orders of this Act shall be deemed to be in full compensation for the damages referred to in § 1^erwithout prejudice to the provisions of Article 7, § 1^er.
§ 4. The complete repair referred to in § 3 is limited to the portion of the damage that is not repaired under another regulation.
CHAPTER III. - Civil accountability
Art. 7. § 1^er. No legal action may be brought against the care provider, in accordance with the rules of civil liability, by the patient or his or her eligible persons, the Fund, the insurance company, the insurance agency, the supplementary insurer unless:
1° in case of intentional fault of the care provider, or
2° in case of heavy fault of the care provider as defined in § 4.
In cases referred to in paragraph 1^er, only compensation in common law that may not relate to compensation for damages as covered by this Act may be combined with the allowances allocated under this Act.
The Fund, the insurance company, the insurer or the supplementary insurer may not exercise the action referred to in § 1^er only within the limits of the subrogation rights recognized in section 30.
§ 2. The constitution of a civil party as part of a criminal action against caregivers is admissible only as long as it tends to a conviction of moral compensation to a symbolic euro without prejudice to the provisions of § 1^er.
§ 3. The Fund and the insurance company shall remain obliged to pay the compensation payable under the provisions of this Act, notwithstanding the application of § 1^er.
§ 4. Only the following cases are considered to be cases of heavy misconduct that may result in the application of § 1^er :
1° the damage resulting from a state of alcohol poisoning or under the influence of narcotics, unless the insured proves that there is no causal link between these events and the sinister;
2° the damage resulting from a refusal of assistance to a person in danger whose author was sentenced under section 422bis of the Criminal Code;
3° the damage resulting from the exercise of prohibited activities under the provisions of Royal Decree No. 78 concerning the exercise of health care professions.
CHAPTER IV. - Mandatory insurance
Art. 8. For the purpose of repairing the damages referred to in section 4, the care provider is required to purchase insurance from an insurance company in accordance with the provisions of sections 9, 10 and 11.
Except as otherwise provided in this Act, the provisions of the Land Insurance Contract Act of 25 June 1992 apply to contracts referred to in paragraph 1^er.
Art. 9. Without prejudice to the provisions of section 10, the insurance company shall cover all risks arising from the occurrence of injury referred to in chapter II of this Act.
The insurance contract must also cover all risks resulting from damage caused by the organs and caregivers when acting under the responsibility and control of the care provider.
Art. 10. The insurance contract must cover all the benefits of persons working in the care institution and all benefits made under the responsibility of the practitioner.
Unless otherwise provided, the insurance of a care institution covers all the benefits of all practitioners who engage in a primary or incidental activity.
The contrary provision referred to in paragraph 2 may not have the effect that the care institution is not required to cover all of the services performed within the care institution by practitioners.
The provisions relating to the impact of individual premiums payable under the group insurance contract contract contracted by a care institution are contained in the General Regulations of the legal reports of each care institution; they guarantee the possibility of individualizing each practitioner's premiums annually on the basis of their specialty and activity without the impact of these premiums being able to exceed the actual costs.
Art. 11. § 1^er. The insurer responds to damage caused by the fact or fault, even heavy, of the care provider or the patient.
Clauses that would limit, restrict or delete the scope or times of the warranty or coverage are deemed to be unwritten.
§ 2. The guarantee cannot be limited to less than 2.176.373.29 euros per victim.
The amounts referred to in this section are related to the pevot index 103.14 (base 1996 = 100) and are adjusted to the consumer price index in a manner identical to that for pensions.
§ 3. The insurer must demonstrate the fact that it is exempt from its warranty or allows the insurer to return to the provider pursuant to the provisions of Article 7, § 1^er.
CHAPTER V. - Health Accidents Fund
Art. 12. § 1^er. It is created, under the name "Health Care Accidents Fund" a separate management state service within the meaning of Article 140 of the laws on State accounting coordinated on 17 July 1991, in charge of the tasks referred to in Article 14.
The Fund is placed under the direct authority of the Minister who has Public Health in his or her powers.
§ 2. The King shall determine, by order deliberately in the Council of Ministers, the rules relating to the administrative, budgetary, financial and accounting organization of the Fund, in accordance with the provisions of this Act.
Art. 13. § 1^er. The King specifies, by order deliberately in the Council of Ministers, the missions of the Fund Management Committee.
§ 2. The Fund ' s Management Committee consists of members designated on the basis of their knowledge and experience in matters within the Fund ' s jurisdiction.
The Fund Management Committee shall be composed of the following members appointed by the King, by order deliberately in Council of Ministers:
1° three practitioners including at least one doctor in medicine;
2° two members with expertise and experience in health care institutions, including a hygienist doctor;
3° three members representing the mutualities;
4° three members representing insurance companies;
5° two lawyers who have expertise and experience in relation to the subject matter of patient rights;
6° two representatives of patient associations;
7° a representative of the Minister with the Social Affairs in his or her responsibilities and a representative of the Minister with the Economy in his or her responsibilities;
8° a president who has experience in relation to the substances covered by this Act.
Art. 14. The Fund has mandates:
1° to compile and maintain the list of insured service providers;
2° to receive repair requests, if any, to request missing documents and information, to acknowledge receipt of complete repair requests and to forward them to the insurance company concerned;
3° to mark its agreement with the proposed repair decision that the insurance company has submitted to it;
4° to formulate, in the event of disagreement with the insurance company on the proposed decision for a reasoned repair, a counter-project and to notify the insurance company concerned;
5° to receive and maintain notifications from insurance companies to patients or beneficiaries in accordance with the terms set by the King;
6° to make, where applicable, payment of compensation to the patient or his or her beneficiaries in accordance with the provisions of section 27;
7° to refer the arbitrator, in accordance with the terms set out in section 2 of the Act of 15 May 2007 concerning the settlement of disputes under the Act of 15 May 2007 on compensation for damages resulting from health care in the event of a persistent disagreement with the insurance company on the amount of compensation;
8° to verify the period of decision-making and notification of the decision by insurance companies and to make an administrative fine, if any, against insurance companies per day of delay;
9° to make recommendations for the prevention of damage caused by or on the occasion of health care and to make recommendations to the ministers of guardianship; to that end, and in order to provide the necessary data, the Fund systematically records, in anonymized manner, the cases submitted to it and the monitoring given to them;
10° to prosecute in order to assert and preserve its rights;
11° to establish statistics on reparations granted under the provisions of this Act. These do not contain any personal data.
Art. 15. The Fund shall prepare, from the date of entry into force of this Act, an annual report of activities to be submitted to the Guardianship Ministers.
This report includes the survey and analysis of statistical and financial data, recommendations to prevent damage caused by and on the occasion of health care benefits, a presentation and a commentary on decisions taken in this period.
Art. 16. The members of the Management Committee, the staff of the Fund, the experts he or she or any person participating in his or her missions are required to respect the confidentiality of the data entrusted to them in the course of their mission and that relate to the exercise of their mission. Article 458 of the Criminal Code applies to them.
CHAPTER VI. - Procedure
Section 1^re. - The request
Art. 17. § 1^er. As soon as the damage is due, the request for compensation must be addressed to the Fund, by registered letter to the position within five years from the day on which the victim or his rightful persons were aware or should reasonably have known the damage.
§ 2. As soon as the damage has occurred, the request for compensation must be submitted within twenty years of the day following the day on which the injury occurred.
§ 3. The King determines the elements to be provided in support of the claim for compensation.
Any person who makes an application to the Fund pursuant to this section is required to provide the Fund with a list of mandatory or complementary insurances, which are subscribed to the Fund ' s benefit and which may result in compensation for damages covered by this Act.
The applicant may bring to the record all the elements that it deems relevant to the processing of the application, either at the time of the filing of the application or during the processing of the file by the insurance company or by the Fund.
The King may set a lump sum to be paid by the applicant to the Fund to introduce his file.
It also determines the payment modalities.
§ 4. Within fifteen days of the full repair request, the Fund acknowledges receipt by registered mail to the post.
§ 5. If the Fund is of the opinion that the application is incomplete, the applicant shall inform, by fold recommended to the position, within fifteen days of receipt of the incomplete application, the applicant who has 30 days to complete the application.
Section 2. - Processing of application
Art. 18. § 1^er. Upon receipt of the request for compensation, the Fund shall forward it to the insurance company concerned pursuant to the provisions of Article 10, within 15 days of receipt of the full application.
§ 2. Where the supplier has not entered into a contract with an insurance company for the purposes of this Act, the Joint Guarantee Fund referred to in section 28 shall deal with the claim for compensation.
§ 3. Within ten days of the Fund's request for compensation, the insurance company shall inform, by registered mail to the position, the applicant of its intervention.
Art. 19. § 1^er. Where the insurance company or the Fund considers it necessary to have additional documents or information to be available in order to effectively process the claim for compensation, it or it shall send to the applicant, by registered mail, the list of the documents and additional information requested. A copy of the mail from the insurance company and the list is sent to the Fund.
§ 2. Within 30 days of the request for additional documents and information, the applicant shall provide the insurance company or the Fund with all the elements available to it or available to it to enable them to examine whether the conditions for the award of a repair are met and to assess the damage.
In this case, the period referred to in section 24 is suspended for 30 days.
Art. 20. If the applicant is not the patient and the patient is alive, the Fund and the insurance company shall only have access to the patient's medical records through the express agreement of the patient or his or her representative determined in accordance with the provisions of the Patient Rights Act of 22 August 2002.
If the applicant is not the patient and the patient has died, the Fund and the insurance company shall have access to the patient's medical records only through the express agreement of the patient's legal representative within the meaning of section 14 of the Patient Rights Act of 22 August 2002.
Art. 21. The Fund and insurance companies may not transmit the data collected under this Act to any other purpose than to determine the amount of the repair and may not transmit the information collected under this Act to any third party failing to have previously obtained the agreement of the patient or his or her rights or representatives or the care provider.
Art. 22. The Fund may appeal to experts in particular to render a notice or to make a decision under section 24.
Art. 23. § 1^er. By the way 110^e the day following the acknowledgement of receipt of the request for compensation, taking into account the periods of suspension, the insurance company shall notify the applicant of a reasoned decision proposal.
Where the supplier has not entered into a contract with an insurance company for the purposes of this Act, the Joint Guarantee Fund referred to in section 28 shall not, by the latest, notify 110^e day after the acknowledgement of receipt of the request for compensation, taking into account the periods of suspension, the reasoned proposal for a decision to repair the applicant.
§ 2. The applicant has a period of 30 days to notify the insurance company or, where applicable, the Joint Guarantee Fund referred to in section 28, of its comments on the reasoned decision proposal.
Within this 30-day period, the applicant may request an extension of this period to the insurance company or, where applicable, to the Common Guarantee Fund referred to in Article 28. The period referred to in section 26 is suspended during the time of extension.
Art. 24. § 1^er. Within 30 days of receiving the applicant's comments or in the absence of any comments made by the applicant at the end of this period, the insurance company shall notify the Fund of a reasoned draft decision for compensation.
§ 2. The Fund has 30 days to notify the insurance company of its agreement.
Failure to respond to the Fund within 30 days referred to in paragraph 1^er, the Fund is deemed to have given its agreement on the substantiated draft decision.
§ 3. When the Fund agrees on the proposed reasoned decision, the decision arises from the agreement and the company is responsible for notifying it by registered mail to the applicant.
§ 4. If the Fund does not sign its agreement on the motivated draft decision of the insurance company, it shall notify the Fund, by registered mail to the position, of its counter-draft decision.
If the insurance company aligns itself with the reasoned counter-draft decision, the decision arises from this agreement and the company is responsible for notifying it by registered mail to the applicant.
If the insurance company does not join the Fund's substantiated counter-draft decision, it shall notify the applicant of a provisional decision and send a copy to the Fund. The Fund seizes the arbitrator in accordance with Article 2 of the Law of 15 May 2007 concerning the settlement of disputes under the Act of 15 May 2007 on compensation for damages resulting from health care.
The provisional decision determines the provisional compensation equal to the amount contained in the draft decision or the counter-draft decision that is least favourable to the applicant. The decision also refers to the referral of the arbitrator and sets the term.
Section 3. - Processing times and decisions
Art. 25. § 1^er. Within 210 days of the acknowledgement of receipt of the full request for compensation, taking into account the periods of suspension, the insurance company or the Joint Guarantee Fund shall notify the applicant by registered mail:
1° is the reasoned decision to repair. This decision includes an assessment of compensation under this Act, which may be in a provision when the victim's injury is not yet consolidated. In this case, the final compensation proposal must be made within 90 days of the date on which the Fund or insurance company was informed of consolidation;
2° the reasons for his refusal to compensate the harm;
3° is the provisional decision referred to in Article 24, § 4.
§ 2. Any decision notified to the applicant under § 1^er mentions the possibilities of existing remedies and the deadlines in which such appeals must be brought. If not, the time limits for appeal do not apply to the applicant.
Any decision made under this section by an insurance company shall be communicated to the Fund in conjunction with the notification to the applicant.
§ 3. When the period referred to in § 1^er, given the periods of suspension is exceeded, the insurance company pays the Fund a sum of 25 euros per day of delay.
Section 4. - Payment and distribution key
Art. 26. § 1^er. Allowances are payable by the insurance company and the Fund, each for their part, in accordance with the distribution key established in § 2.
§ 2. The amount of repairs is distributed between the Fund and the insurance company concerned in terms determined by the King by order deliberately in Council of Ministers after notice of the Fund.
§ 3. The insurance company concerned shall pay the amount due by it to the applicant within 15 days after the expiry of the period referred to in Article 25, § 1^er and according to the terms fixed by the King.
The Fund then liquidates the entire amount due to the applicant within 30 days of the payment of the insurance company.
However, where the recipient expressly and in writing of its intention not to bring the action in appeal referred to in section 3 of the Act of 15 May 2007 concerning the settlement of disputes under the Act of 15 May 2007 on compensation for damages resulting from health care, the insurance company concerned shall pay the Fund the amount due within 15 days of that notification.
§ 4. Where the supplier has not entered into a agreement with an insurance company for the purposes of this Act, the Joint Guarantee Fund referred to in section 28 shall allocate the entire allowance, without prejudice to the rights referred to in section 30.
Art. 27. Compensation shall be liquidated within 60 days after the expiry of the period referred to in Article 3, § 1^erof the Law of 15 May 2007 concerning the Settlement of Disputes under the Act of 15 May 2007 on compensation for damages resulting from health care.
However, if the beneficiary expressly and in writing notifies his intention to sue the action referred to in Article 3, § 1^er, from the Law of 15 May 2007 concerning the Settlement of Disputes under the Act of 15 May 2007 on compensation for damages resulting from health care, the allowances are liquidated within 60 days of this notification.
The King sets out the method of payment of compensation.
Art. 28. § 1. The King creates and approves, subject to the conditions it determines, a Joint Guarantee Fund, which is responsible for repairing damage caused by an uninsured care provider under the provisions of this Act.
§ 2. The King approves the statutes and regulates the control of the activities of the Joint Guarantee Fund. It indicates the acts that must be published in the Belgian Monitor.
§ 3. Insurance companies that make mandatory insurance under this Act are jointly and severally required to make the necessary payments to the Joint Guarantee Fund for the performance of its duties and to support its operating costs.
The King sets out annually, by royal decree deliberated in Council of Ministers, the rule of calculation of payments to be made by insurance companies.
§ 4. Accreditation is withdrawn if the Common Guarantee Fund does not act in accordance with the laws, regulations or its statutes.
In this case, the King may take all measures to safeguard the rights of insurance takers, insured persons and injured persons.
Art. 29. § 1^er. Within the Common Guarantee Fund referred to in section 28, a Pricing Office is established to establish the premium and conditions under which an insurance company is required to cover a person subject to the obligation under section 8 and which is subject to the conditions established by or under this section.
§ 2. The Pricing Office consists of four members representing insurance companies and four members representing care providers, appointed by the King for a term of six years.
These members are selected on two double lists presented respectively by professional associations of insurance companies and by trade union organizations of care providers.
The King also designates for each member an alternate.
Alternates are chosen in the same way as the actual members.
The King appoints, for a term of six years, a president who does not belong to the previous categories.
The Pricing Office may join experts who do not have a deliberate voice.
The Minister with economic affairs in his office may delegate an observer to the office.
§ 3. The Joint Guarantee Fund provides the secretariat and daily management of the Pricing Office.
The Tariff Office shall establish its rules of procedure and submit it to the Minister with the economy in his or her powers for approval.
§ 4. Any care provider subject to the requirement of section 8 may apply to the Pricing Office when at least three insurance companies to which he or she has addressed have refused to provide coverage.
The proposal of a premium above the threshold defined by the King is considered to be a refusal.
This threshold is determined by multiplying by 3 the lowest premium of the insurance company's rate for a care provider who performs an activity and speciality identical to that subject to the coverage request.
This coefficient can be modified by the King.
The King may subdivide this coefficient in particular according to the speciality, type of activity and data on the claimant's claim.
§ 5. The application must be filed with the Pricing Bureau within two months of the refusal or proposed pricing referred to in § 4.
It is not admissible when the applicant received an offer from the Pricing Bureau, for the same risk, within nine months prior to that refusal or proposal.
The Pricing Office sets the award taking into account the risk that the insurance licensee presents and the solidarity between all insured persons. It may impose conditions to reduce the risk that the insurance taker presents.
§ 6. The Pricing Office makes a pricing proposal in the month of receipt of the application and the information necessary to establish the pricing.
The proposal is notified to the applicant within eight days. It is valid for a month from its expedition.
§ 7. The Pricing Office entrusts the risk management tariffed by it to one or more insurance companies members of the Joint Guarantee Fund referred to in section 28.
CHAPTER VII. - Subrogation
Art. 30. § 1^er. In addition to what they have paid, the Fund, the Common Guarantee Fund, insurance companies and insurers may appeal against the person responsible for the damage in the event of an intentional fault of the care provider or in the event of a serious fault of the care provider.
§ 2. As long as the damage is due to the failure of a product as covered by the Act of 25 February 1991, relating to the liability of defective products and to the extent that they have paid, insurers, the Fund, the Joint Guarantee Fund or the insurance company are subrogated in the rights available to the victim on the basis of this Act.
§ 3. In the cases referred to in § 1^er and 2, the victim may join the recourse of the insurer, the Fund, the Joint Guarantee Fund or the insurance company to obtain full compensation for the damage.
§ 4. The Common Guarantee Fund recovers with retroactive effect the premiums due and unpaid from each care provider that has caused injury referred to in this Act without having entered into an insurance contract as referred to in Chapter IV.
The King sets out the method of calculating these premiums, taking into account the amount initially due to the premium, the time limit for which the premiums remained due and the administrative costs, taking into account, where appropriate, the bad faith of the provider.
In cases referred to in paragraph 1^er, the Joint Guarantee Fund imposes an administrative fine in accordance with the rules established by the King.
CHAPTER VIII. - Financing
Art. 31. § 1^er. For the performance of its missions, the Fund is financed by:
1° an annual charge of the State;
2° an annual dependant endowment of the Budget of the National Institute of Disability Insurance;
3° the income of the subrogatory action exercised in accordance with Article 7;
4° the financial products collected on the funds available to the Fund.
The King may, by royal decree deliberated in the Council of Ministers, set additional rules and procedures for the application of paragraph 1^er. It may also provide for pre-financing rules.
The King may, by royal decree deliberated in the Council of Ministers, establish and establish other sources of funding.
§ 2. Notwithstanding the provisions of Article 28, the financing of the allowances allocated under this Act shall be provided, in addition to the Fund provided in accordance with the provisions of § 1^er, by premiums paid by care providers to insurance companies under this Act.
The annual ceiling of contributions paid by insurance companies is fixed by the King by royal decree deliberated in Council of Ministers.
The dependant benefits of insurance companies are paid in accordance with the provisions of Article 26, § 2.
The cost of the system and its funding is assessed every two years and for the first time in 2009.
§ 3. The royal decrees referred to in this section shall be confirmed by a law, no later than one year after their entry into force. If they fail to confirm the deadline, they cease to produce their effects.
CHAPTER IX. - Obligation of information
Art. 32. In order to allow the Fund to carry out its Article 14 missions, insurance companies are obliged to provide the Fund with all the useful information they have.
Each insurance company shall transmit to the Fund a list of practitioners and care institutions that have entered into one or more insurance contracts with the Fund pursuant to this Act, and notify the Fund of the amendments to this list at least once a month.
Each year, insurance companies transmit to the Fund a management report, with the mention of the amounts of insurance premiums, the amounts of compensation, the agreements reached by mentioning the amounts referred to, and litigation before the courts by mentioning the amounts covered.
The King sets out the modalities for the transmission of data referred to in this article.
CHAPTER X. - Criminal provision
Art. 33. A penalty of eight days to one year's imprisonment and a fine of 25 to 250 euros, or only one of these penalties, professional practitioners and care institutions who carry out their activities or allow them to carry out the activities of their organs, employees or any other practitioner who performs their activities as principal or incidental, without their benefits being covered by insurance in accordance with the provisions of Chapter IV and its decrees.
CHAPTER XI. - Modificative and final provisions
Art. 34. Section 136, § 2, of the Compulsory Health Care Insurance Act and Coordinated Benefits on July 14, 1994, as amended by the Act of December 24, 2002, is supplemented by the following paragraph:
"This subsection is not applicable to compensation awarded under the Act of 15 May 2007 on compensation for health-care damages, except for cases referred to in section 30 of the Act. "
Art. 35. § 1^er. This Act comes into force on 1^er January 2008.
§ 2. This Act may not apply to damages arising from an act prior to its entry into force.
The insurer of the insurance contract entered into pursuant to this Act must issue the guarantee of damage caused by events prior to 1^er January 2008.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 15 May 2007.
ALBERT
By the King:
Minister of Social Affairs and Public Health,
R. DEMOTTE
Minister of Economy, Energy, Foreign Trade and Science Policy,
Mr. VERWILGHEN
The Minister of Justice,
Ms. L. ONKELINX
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Note
(1) Regular session 2006-2007.
House of Representatives:
Parliamentary documents. - Bill No. 51-3012/1. - Amendments, No. 51-3012/2. - Report of Commission No. 51-3012/3. - Text adopted by the Commission, No. 51-3012/4. - Text adopted by the Commission, No. 51-3012/5. - Text adopted in plenary and transmitted to the Senate, No. 51-3012/6.
Annales parliamentarians. - Discussion and adoption: session of 12 April 2007.
Senate:
Parliamentary documents. - Project referred to by the Senate, No. 3-2397/1. - Amendments, No. 3-2397/2. - Report of the Commission, No. 3-2397/3. - Text corrected by the Commission, No. 3-2397/4. - Decision not to amend, No. 3-2397/5.
Annales parliamentarians. - Discussion and adoption: meeting of 26 April 2007.