A lorry driver from the logistics zone around Spoorlaan in Tilburg sustained permanent nerve damage following a failed back operation at the local hospital. The surgeon deviated from the professional standard. The court originally awarded € 65,000, comparable to a traffic accident. On appeal and in cassation the amount rose to € 92,500. The Hoge Raad thereby confirms a clear trend since 2020.
A Tilburg case from practice
The patient worked daily in the industrial heart of Brabant, where textile companies and modern distribution centres alternate. Due to the error he could no longer perform his work as a driver. The Rechtbank Zeeland-West-Brabant in Breda dealt with the case at first instance. Only in cassation was the higher non-pecuniary damages (smartengeld) awarded.
Why the Hoge Raad awards higher non-pecuniary damages (smartengeld)
Three factors carry more weight in medical error cases than in other personal injuries:
Breach of the relationship of trust
Patients place themselves in a vulnerable state in the hands of a physician. This weighs differently from an everyday traffic accident.
Secondary psychological harm
Fear of new treatments and avoidance behaviour lead to additional suffering. This element is now explicitly taken into account in the calculation.
Structural inequality
An individual patient faces a professional hospital with its own lawyers. The Hoge Raad sees this as a reason for compensation through higher non-pecuniary damages (smartengeld).
Practical impact in 2026
Insurers are adjusting their offers. Pending files in the region can be reopened. The non-pecuniary damages (smartengeld) guidelines are being revised. Settlements are becoming more expensive because parties prefer to avoid proceedings.
Guideline amounts by type of injury
| 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 |
| Total incapacity for work | € 150,000 | € 190,000-225,000 |
Actions in the event of a pending claim
Three concrete steps:
- Have your lawyer update the non-pecuniary damages (smartengeld) calculation
- Request reconsideration of previously rejected settlement proposals; these often remain negotiable for several months
- Only in the event of mistake or fraud can a signed agreement be set aside
Interrupting the limitation period in good time
From the moment you know or could reasonably have known of the error, a period of five years applies (article 3:310 BW). Send a registered letter holding the liable party liable. Those seeking assistance in Tilburg can contact Juridisch Loket Tilburg or the office of Arslan at Spoorlaan 350 (013 - 5300 300). Cases are ultimately heard by the Rechtbank Zeeland-West-Brabant in Breda.