This situation usually called alea medical can be defined as a random element, independent of the human will, which is produced by combining several unpredictable events.
To cope with this alea medical, jurisprudence has extended to the medical liability the obligation of security.
Due to its immense diversity , medical liability is original and incomparable.
Contractual Liability intervenes to penalize failure or incorrect fulfillment of an obligation of means. Liability is based on proof of fault, a professional misconduct.
In general, medical negligence is defined as a violation of duties or legal obligations. It assumes that the doctor has not fulfilled obligations or has violated a ban bringing prejudice to the integrity of the human body or not obtained prior consent of the patient. Sometimes didn’t fulfill its obligation to provide healthcare conscientious, careful and according to science.
It struck the gong for doctors to access occasionally JURIDICE.ro.
In medical science, the progress has made it spectacular. Simultaneously, healthcare methods progressed and were introduced in everyday use, more efficient equipment and and substances. Surgical techniques become less invasive. An unexpected consequence has been the multiplication of sources of prejudice that excludes the guilt of doctor.
In healthcare practice, there are situations in which the patient adresses to the doctor for a pathology more or less serious but, after completion of medical act suffers from a different disease apparently unrelated to the initial health status of the patient.
Qualification of doctor liability as being contractual does not preclude the involvement of medical tort liability in those circumstances where there has been no agreement because the patient was unaware.
Medical accidents, iatrogenic diseases and nosocomial infections can be collectively called random events having in common the unpredictability, irresistible and exterior character.
To identify the presence of a random event medical conditions must to be met four positive and three negative conditions.
Positive conditions are:
1) the necessary character and indispensable of the medical act whenthe random event manifested in the patient’s interest. The act was an absolute necessity and vital to the patient. Are excluded in this respect, purely aesthetic interventions and all other non-therapeutic acts;
2) medical act is legitimized by the consent of the patient after he has been informed;
3) medical act behave statistically unavoidable risks inherent in medical practice and closely related to the nature of the doctor. These risks may be known or unknown, their exceptional appearance being binding (statisticallyrepresent less than 5 per cent of cases);
4) there is an extreme prejudice or great importance.
Negative terms:
1) The risks do not fall within alea healing means justifying the obligation of the doctor.
2) The patient should not have a particular predisposition for damage that occurred. Damage should not enroll in the evolution of the predictable pathological condition of the patient and his health should not be related to past and future.
Are thus excluded from the medical random event those damage which can be direct consequence and normal medical care. Remain therefore damage originating in the medical ones being totally independent of the disease and the patient’s previous state.
3) damage resulting from medical random event should not be imputed to the doctor as a mistake, regardless of fault.
The characteristic of random event is that it can be controlled and it is hard to predict, even without being unpredictable.
If the doctor acted with prudence and diligence as a bonus medicus, damage would not have occurred.
So alea therapeutic is that part of the risk that a normal care of doctor can not prevent.
:: The source: JURIDICE.ro
Ion TURCU
retired magistrate
