In the first part of the study, I present the evolvement of Hungarian medical responsibility law, looking at the transformation of the term "medical malpractice" as a concept.
Before 1992, only a few medical malpractice lawsuits have been launched in Hungary, and since then, increasing number of lawsuits within this area have been launched year after year. We hear about medical malpractice on a weekly basis these days through the communication channels and unlike the old "practice", they end up more often in favour of the patient or the relatives. I would like to present the characteristics of medical malpractice lawsuits by presenting some of the actual cases.
In pointing out the actual features of the subject, it is necessary to first look at the parties in the lawsuits. In the case of suitors, we can find the patients injured, the relatives of patients or of the deceased, and in the lawsuits initiated by the patient - in the case of the death of a patient - are the legal successors of the patient. In the present case, respondent can be the hospital or the private physician, or the hospital and the private doctor may be sued jointly. In addition, it is important to mention that doctors can jointly be sued with the specialist and the other healthcare staff they use through their activities.
The application for a criminal offense has a specific content and attachments, and it is a curious fact that the petitions contain evidence in support of the claims, but this was not always the case.
I consider it important to mention the alignment of medical malpractice in the healthcare system. The malpractice in any fields healthcare services can be divided into two major groups. One group is a general malpractice that is independent of the area of expertise and the other is a unique malpractice lonked to the specific area of expertise. The "creator of the system" Tamás Simon: Typical malpractice in general - or when the gazelle is taught by the lion on leaping.
In the Middle Ages, there are existing records of "medical malpractice" against doctors from 1594, 1582, and 1605, but these were actually cases that corresponded to criminal cases of today.
The Section 47. of Law XIV of 1876 states the doctor's free choice of cure method and at the same time the responsibility for the malpractice. Shortly after the Law XI of 1890 set up the Judicial Medical Council, whose main task was to formulate opinions in the field of medical malpractice, but no more than four to five opinions were given annually and over 90% of the sentences relieved the doctors.
We first encounter a rejected claims from the 1920's and the first convicting verdict was in 1930.
The Law I of 1936 on medical regulation did not go into details on medical responsibility, however in the same year, Court ruling No. 82. declared the responsibility for medical malpractice.
Section 43 of Law II of 1972 provides a general framework law on medical liability rules.
In the "great" Civil Rights Response of the 20th century, there are only a few sentences about liability of the doctor (Géza Marton, Ferenc Mádl, Gyula Eörsi, László Sólyom), and only a few cases have occurred in judicial practice.
After the change of regime, numerous scandals appeared in the press (usually wrongly). Later, most of the first high-profile studies on medical responsibilities such as that of Ágnes Dósa, Judit Sándor and Tibor Köles appeared.
But the great breakthrough was made by the Healthcare Act of 1997, which states in Section 77 that a physician must provide the patient with the utmost care, in line with professional, ethical rules and guidelines. Since 2003, this has changed in that they have left the "utmost" sign.
The term "medical malpractice" was defined by Virchow in his book "Medical Malpractice" in the second half of the 19th century ("Breach of our generally accepted rules of medicine"). This formulation took into account purely medical considerations, and was difficult to apply in judicial practice because it did not refer to the notion of guilt as a concept.
It is important to point out that the rules of medical operation are legally unspecifiable. These include the laws, directives, regulations, ethical
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norms in force and, last but not least, the so-called "protocols" (which, in principle, describe the duties of a doctor in some cases). For professional violations of the protocols mentioned, the professional responsibility of the doctor may be established.
The question arises as to when a doctor has legally more options available on the basis of the freedom of choice for curing methods, what operating rule should be applied for liability?
I think the issue is irrefutable, especially when the doctor acts in a "crisis" situation, because in that case the doctor has an immediate obligation to act and obviously has no opportunity to study the "rules of procedure".
If there is a case of "medical malpractice", the existence of the general conditions of civil liability is also necessary. Their coexistence is virtually impossible, because of this, more frequent case is the discharge of responsibility.
In recent times, judicial practice generally fails to examine medical malpractice - obviously unless it is an absolutely evident case - rather examining the proper information of patients and the existence of the general conditions of civil liability.
Due to above, the so-called medical malpractice has virtually ceased to be a part of the civil liability of a doctor, and responsibility for the following can be assumed:
- according to the general rules of civil liability,
- failure to provide information,
- very rarely according to the rules of dangerous operational responsibility.[1]
In addition to highlighting the actual features of the subject, it is necessary to consider the parties in these proceedings.
"In the case of suitors, we can find the patients injured, the relatives of patients or of the deceased, and in the lawsuits initiated by the patient - in the case of the death of a patient - are the legal successors of the patient." "In the present case, respondent can be the hospital or the private physician, or the hospital and the private doctor may be sued jointly." In addition, it is important to mention that "doctors can jointly be sued with the specialist and the other healthcare staff they use through their activities."[2]
In addition, it is necessary to speak about the claims made by the suitors, which have specific content and attachments, and it is a curious fact that the application forms contain supporting evidence at the time of submission, but this has not always been the case.
In the pre-1992 period, the petitions mainly contained the statements of the lay patient or his relatives, and hence, the expert judgment in the court was entirely devoted to the outcome of the trial, essentially the entire decision.
At the end of the 1990s, more and more claims were filed with the suitors adding documentation of medical treatment as an attachment to the application. It should be noted here that obtaining such documents was not an easy task at that time. In many cases, litigation has been initiated due to dissemination of such documents.
As a consequence of the disputes arising of these and the disputes concerning personality law, the Act XLVII. Of 1997 (On the Management and Protection of Health and Related Personal Data) explicitly stated that the suitors has the right to such copies.
At present, several months of preparatory work is being conducted before the filing of the application, but in some of the medical malpractice cases, an opinion by a private expert is part of the application, made mainly by judicial experts or specialists on the expert list. The application contains chronological order:
- the medical history of the patient
- their therapeutic method, or
- preliminary examinations and therapies related to intervention, as well as hospital final reports and rehabilitation records.
In such litigation, it is often the case that a lawyer with a degree in health care and law has the right to apply for a lawsuit because the attorney has full professional background knowledge about the patient's illness.[3]
In the following and final part of the study, I present the grouping of malpractice healthcare services. The malpractice in any fields healthcare services can be divided into two major groups. One group is a general malpractice that is independent of the area of expertise and the other is a unique malpractice lonked to the specific area of expertise. The "creator of the system" Tamás Simon: Typical
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malpractice in general - or when the gazelle is taught by the lion on leaping.
- Remaining foreign body in the human body (eg BH 2005.429.)
- Hospital Infections (eg BH 2009.10)
- Cure choice errors (therapeutic errors)
- Diagnostic mistakes (eg BH 2004.144.)
- Intervention Techniques
- Intervention Risks
- Treatment deficiencies of multiple disease
- Errors related to trombotic issues
- Mistakes due to lack of patient supervision
In my study, I would like to present a concrete example of a malpractice within the category of general malpractice that is independent of the expertise area. My choice was a case of hospital infections.
According to the facts, the suitor has received blood transfusion during several hospital treatments, one of which has been infected with Hepatitis C virus and has had liver inflammation. Viral infection was established in 1999, confirmed by the liver biopsy in the summer of 2001. As a result of the examination, the practitioner informed the suitor about the disease and its outbreaks, and then began to treat it immediately. As a result of this treatment, the virus activity in the body of the applicant disappeared in February 2003.
The applicant claimed the respondent's obligation to pay HUF 5,000,000 non-pecuniary damages and interest on the health damage caused by viral infections and to pay the 30,000 HUF annuities from August 13, 2002.
As the judgment of the court of first instance, the respondent was ordered to pay the nonmaterial damages and interest of 2.500.000 HUF, as well as of an additional 8000 HUF annuity from 13 August 2002 as well as the annuities and expenses expired on 31 May 2005.
The court of second instance changed the judgment of the court of first instance, reduced the amount of non-material damages to the suitor and the date of the annuity payment, and modified the amount of the expired annuity as well. For any amount above this portion, the court dismissed the action. His decision was justified by the fact that, according to the expert opinion, the treatment resulted in the applicant's blood being virus-free in Hepatitis C in February 2003 and can therefore be regarded as healed.
The suitor brought an appeal against the final judgment in which he argued that the court of second instance had misunderstood the opinion of the expert and the position of a specialist in the competence of a forensic doctor.
The tests carried out in February 2003 did not show that hepatitis C virus infection and its consequences were cured, since the expert opinion contains that the result of such treatments are that lattice viruses can re-activate and this will trigger the disease again, therefore it is practically incurable.
The suitor sought the annulment of the final judgment and the decision of the court of first instance.
The evidence included the medical opinion of the doctor and the testimony of the applicant's doctor, whose evidence was wrongly assessed by the court of second instance and did not take due account of the professional arguments concerning the substance of the dispute.
The patient's condition was characterized by being latent and asymptomatic, but some viruses in his body may be retained, which can enter into action anytime. Therefore, it should be periodically monitored, the patient should take hepatic medicines and have a special liver-friendly diet.
It is apparent from that evidence that the decision of the court of first instance is correct. As a result, the Supreme Court annulled the final judgment in the Pp. 275 and confirmed the judgment of the court of first instance.[4]
- Obstetrics, pregnancy, neonatal care (eg BH 2011.11)
- Surgery, urology, traumatology, orthopaedics (eg EBA 2007.1742.)
- Neurosurgery
- Dental failures
- Malfunctions in the practice of GP
- Type defects in the field of internal medicine
- Psychiatric illnesses and care
- Ambulance. (Resuscitation) (eg BH 2009.79.)
- High-quality surgical training, which is an important requirement for prevention of surgical errors
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- Better training programs
- Less surgery at night duty
- Computer medication system
- Protocols and diagnostic algorithms
- Produce and preserve detailed medical documentation
- Provide the fullest possible information for the patient
- The physician should not overextend his/her area of professional competence
- It should be made possible for the patient to ask the opinion of other professionals
- The physician should not assume a guarantee for the perfect result
- The physician should not give any prescribed instructions or drug recommendations for undetermined period of time.
- After the patient has had a positive finding or symptoms, treatment should be started as soon as possible.
- You can never deny the patient's medical records.
- It is indispensable to follow the medical literature of your doctor
- When applying new procedures or even non-widely used interventions, even if the Ethics Committee's authorization is already available, it is advisable to ask for another expert's opinion.
- Care should be taken if not a healthcare worker is assigned for medical task (delivery, material, technical)
- Care should always be taken to the questions of nurses and assistants (if these issues avoid the doctor's attention or the doctor answers the questions incorrectly or incomplete, the wrongful action of the nurse then is the wrongful or incomplete information)
- The records of the nursing staff should also be taken into account as these may become a veritable document, and the doctor should know them.
- The patient's prior medical history should be read before the test.
- Doctors should not set up a remote diagnosis based on a patient's phone call.[5]
According to the rules in force, in the event that any out-of-court procedure, primarily mediation is not or will not lead to results, the parties can settle their dispute only within the framework of medical malpractice. Therefore further examination of the differences in the case is justified. I believe that it is necessary to carry out further research, in addition to the actuality of the subject, to reveal the difficulties arising from the characteristics that differ from the other "types of litigation". ■
NOTES
[1] Jobbágyi Gábor: Orvosi jog: Hipokratésztől a klónozásig. Szent István Társulat Az Apostoli Szentszék Könyvkiadója, Budapest 2007
[2] Hidvéginé dr. Adorján Lívia, Sáriné dr. Simkó Ágnes: Orvos-beteg jogviszonyok az egészségügyben, Műhibák és kártérítési perek az egészségügyben. Medicina Könyvkiadó Zrt., Budapest 2013. 121. o., 127. o.
[3] Ibid.
[4] BH 2009.10 Hepatitis C vírusfertőzésre alapított kártalanításai igény esetén az orvos szakértői és szakmai álláspontok nem hagyhatók figyelmen kívül a bizonyítékok értékelésénél (1959. évi IV. törvény 355. §; 1952. évi III. törvény 206. §)
[5] Lorner Rozovski and Fay Adrienne Rozovski: Medical Law Review Canadian Medical Law Series 1986. p. 1-3.
Lábjegyzetek:
[1] The Author is Faculty of Law, University of Pécs.
Visszaugrás
