An international TU student in Delft who undergoes surgery after a fall into the canal and subsequently sustains neurological damage due to a deviation from the professional standard: precisely such a scenario has recently led to significantly higher awards of damages for pain and suffering (smartengeld). The Hoge Raad has confirmed the approach adopted in 2020 and allows victims of attributable medical errors to receive 20 to 40 per cent more than in cases of comparable injury arising from a traffic accident.
Practical example from the region
A 54-year-old expat who was operated on in a clinic on the edge of the TU campus sustained permanent nerve damage as a result of a procedural error. The court initially awarded € 65,000; after appeal and cassation the Hoge Raad awarded € 92,500. The case is being dealt with by the Rechtbank Den Haag, where many Delft files ultimately end up.
Three factors emphasised by the Hoge Raad
The court distinguishes three aggravating elements in cases of medical injury.
Breach of the relationship of trust
Patients place themselves in a vulnerable position in the hands of a healthcare provider. This carries greater weight than an everyday cycling incident on the Phoenixstraat or along the canals.
Secondary psychological harm
Fear of further treatment and avoidance behaviour often exacerbate existing complaints. This component is now explicitly taken into account in the assessment.
Knowledge and power asymmetry
The patient is confronted with a professional organisation that has its own lawyers. This inequality justifies higher compensation.
Practical implications for ongoing claims
Insurers are adjusting their offers. Ongoing proceedings against hospitals or independent practitioners may be reopened. The threshold for settlements is rising, as parties wish to avoid costly litigation.
Guideline amounts 2026
| Type of injury after medical error | Indicative 2025 | Expected 2026 |
|---|---|---|
| Minor permanent functional impairment | € 8,000 | € 11,000 |
| Moderate impairment of earning capacity | € 25,000 | € 33,000 |
| Severe permanent disability | € 75,000 | € 95,000-110,000 |
| Complete incapacity for work | € 150,000 | € 190,000-225,000 |
What does this mean for your case?
Do you have a claim pending or are you considering one? Three concrete steps:
- Have your lawyer update the calculation of damages for pain and suffering (smartengeld) in accordance with the new approach.
- Earlier settlement offers that you rejected often remain open for discussion for several months.
- Revision of a signed settlement agreement is possible only in cases of mistake or fraud.
Interruption of limitation periods
Anyone who has only recently discovered that an earlier treatment may have been erroneous has five years from that moment (article 3:310 BW). Interrupt the limitation period by means of a registered letter. The team at Phoenixstraat 16 in Delft can assist you.