Η νομική προστασία των ασθενών στο πλαίσιο των ιατρικών σφαλμάτων: η περίπτωση της ελληνικής νομοθεσίας.
The legal protection of the patients related with medical errors: the case of the greek legislation.
SubjectΙατρική και αστικό δίκαιο ; Επαγγελματική δεοντολογία ; Ιατρική δεοντολογία ; Ιατρός και ασθενής ; Ιατρική -- Δίκαιο και νομοθεσία -- Ελλάδα ; Tort liability of hospitals ; Medical malpractice
Medical science plays a key role in human’s life because it contributes to the protection of health which is one of the most precious goods. The doctor has a peculiar relationship with the patient, which is not similar to any other contractual relation, because the patient trusts his life and health in doctor’s hands and the doctor is obliged to provide his services by paying due care and attention according to the rules of medical science. Performing medical actions, medical errors may occur which have implications for the patient and the physician too. Medical errors are a very common phenomenon in health systems and they are a legitimate reason for liability of the physicians. Medical malpractice is a very important issue in the law of civil medical liability. It is a kind of fault that rises to liability of the physician to pay compensation in accordance with the provisions of the law about tort. The breach of the contractual obligations of the physician in the provision of medical services also builds conventional (legal) liability. Therefore, urban medical liability is a concurrence of transactional and tort liability. Under the criminal law, the physician acts improperly when he does not show the attention owed under the circumstances and the proper attention that he could show and as a result he did not foresee the consequences of his action or he predicted them as a possibility, but he believed that he would avoid it and consequently, when the harm realized, the constituent elements of negligence (homicide, bodily harm by negligence) is evidenced. Public Hospitals are standing passively on an action for damages, because they are subject to civil liability against patients for unlawful acts or omissions of doctors who work in them, in the exercise of their duties and the physicians are not personally liable towards third persons (patients). In this paper, through the presentation of jurisprudence on medical errors, a comprehensive categorization of them arises, which shows that in recent years the number of sue for damages due to medical error against private practitioners is rapidly increasing in the civil courts and in the administrative courts against public hospitals for their doctors too, so that the phenomenon is referred as “avalanche - torrent actions”. Also, the amount of compensations adjudged by the courts shows that judicial decisions are mostly positive and the amount of compensations that public hospitals are obliged to pay is huge and as a result the financial burden of health funding is constantly growing, so that it would be an economic bomb on the foundation of the public health system. The legal pressure on the doctor is a factor that makes difficult the practice of medicine and leads the physician to "defensive medicine", burdening the public health system with additional costs for extra than the imposed medical actions, in order to avoid liability. Therefore, it is necessary for the physicians to be familiar with the issue and they also have to embody into daily medical practice the system of continuous self-test and reevaluation in order to improve the quality, effectiveness and efficiency of health services. Finally, the methodology of the present essay refers to the bibliographic review of the current legislation and Greek jurisdiction which documents the subsections of the present essay.