The legal aspect of clinical negligence in the modern world

medical contractNowadays, a growing number of countries starts adopting the practice of entering into the doctor-patient medical contracts, providing specific measures to be applied in the case of harm to the patient or failure to fulfil the contract terms. Many developed economies (Germany, Austria, UK, etc.) have included various medical codes in their national legislations that govern the relationship between doctors, patients and their relatives, professional relationships of physicians with the administration and the public authorities. According to a series of polls conducted by legal services aggregators in the UK, medical negligence solicitors admit the contracts are now used 24% more frequently in comparison with 2006.

However, regardless of where the contract was signed, both doctors and patients are subjected to the provisions of civil and criminal legislation for certain penalties (mutilation or other damage to health and property, causing moral damage to another person, etc). In most cases, these sanctions are reduced to monetary compensation corresponding to the extent of the damage.

The responsibility for failure to perform or improperly performed obligations the responsibility falls on medical facility. In the implementation of medical treatment a health care worker is a subject of medical assistance, and institution, to which it is bound by labor relations is the subject of medical services provision. Adverse health effects on the patient as a result of professional activities may involve personal responsibility (including criminal) and civil liability for the institution where he works.

Adverse health effects can occur as a result of the patient’s actions not only performed by doctors, but other medical staff as well (for example, medical assistants, nurses, etc.).

From a legal point of view among medical errors should be distinguished between wrongful acts of the perpetrators of health workers (institutions) and cases of harm to the patient in the absence of fault. In the first case the offense (a crime, a misdemeanor) entails criminal, disciplinary, civil liability, in the one second – the lack of guilt and responsibility.

medical lawThe jurisprudence recognises the lack of guilt hospital (staff), and the legal responsibility is not carried into effect if the medical staff did not foresee and could not foresee that the actions cause harm to the health of the patient. It is important to stress, however, that the existence of the practice of unpunished medical errors does not mean ‘powers’ on health damage. Medicine is obliged to assist the patient in all cases, being guided by the sole desire for a favourable outcome, not hiding behind the notion of a medical error, and trying to eliminate it.

American legislation sets four conditions of responsibility: the factor of harm, misconduct, a direct causal link between the two and guilt.

In order to establish negligence the US Supreme Court requires the expert to justify its symptoms, such as a significant lack of knowledge, special indifference to the safety of the patient, ignorance in choosing the means of diagnosis and treatment, lack of proficiency in the equipment or failure to pay proper attention to the patient. American commentary on the Criminal Code and the Manual on criminal law defines criminal negligence as a situation of ignoring the substantial and undue risk to which the subject did not know, but should have known. Criminal negligence is defined as a situation of ignoring the substantial and undue risk, a subject about which was known, consciously ignored and continued dangerous behaviour maintained.

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