DOI: https://doi.org/10.25040/medicallaw2017.01.055     

Med. pravo., 2017; 1(19): 55-66

UDС: 347.12

SENYUTA IRYNA YAROSLAVIVNA

candidate of legal sciences, associate professor, head of the Department of medical law of the Danylo Halytskyi Lviv National Medical University, chief editor of the scientific and practical journal “Medical Law”, attorney at law, president of the NGO “Foundation of medical law and bioethics of Ukraine”, member of the World Association of Medical Law and European Association of Health Law.

Defects of medical care provision: notions and types

One of the most complicated issues of the theory of medical law is the legal nature of the qualification of defects of medical care provision. Relevant bodies of the state power and other institutions have a responsibility to conduct the evaluation of the medical care quality and defining the type of defect of medical care provision. The institute of a “defect of medical care quality provision” is closely related to the institute of “legal liability in the sphere of health care”, since after the consequences of medical care provision were established, the issue of legal responsibility may arise. It should be noted that the cases of medical care provision, which have negative effect, are evaluated in order to determine the type of a defect, each of which can lead to various legal consequences. Legal loopholes, conflicts legal application, which exist in the legal practice, prove a complicated character of this issue and the necessity of complex nature of the approach to the solution of this problem.

The topic of article was the subject of the scientific research of both national and foreign scholars, including: S. Antonov, V. Viter, I. Davydovskyi, T. Zavarza, R. Maydanyk, Ya. Radysh, A. Savytska, Y. Sizintsova, S. Stetsenko, R. Tytykalo and others. Within the spectrum of scientific works most comprehensively the issue of medical errors was researched, but still there exist numerous doctrinal loopholes in this sphere, which require a detailed analysis and further legal amendments.

Article is aimed at formulating the notion and categorical apparatus of the defects of medical care provision and clarifying the peculiarities of each type of defect and developing proposals concerning the improvement of the national laws as well as legal application and legal realization.

In legal and medical doctrine the issue of defects of medical care provision was the subject of a scientific research for many times, but it did not resolve the issues concerning the approaches to understanding legal constructions and establishing a uniform approach to their understanding.   

Under the notion of defect of medical care provision we should understand low quality prophylactics, diagnostics, treatment and rehabilitation as well as their organization, connected with improper or proper fulfillment (failure to fulfill) by a medical professional of his professional duties, which caused or could lead to adverse consequences for the patient. 

Analysis of the medical and legal practice gives reasons to ascertain that the reasons of defects of medical care provision can be the following: low level of qualification of medical professionals; careless or dishonest attitude fulfillment by medical professionals of their professional duties, improper organization of medical care provision, failure to observe standards in the sphere of health care, formal attitude towards the patient. In order to research the issue of defects of medical care provision, it is worth paying attention to the types of such defects. There are many classifications of defects according to different criteria. In particular defects of medical care provision can be divided:

1)      according to the stages of medical care provision: defects of pre-hospital stage, defects of out-patient treatment and defects of in-patient treatment.

2)      according to the components of medical care: defects of treatment, defects of prophylactics, defects of diagnostics, defects of rehabilitation;

3)      according to the evaluation of the legal consequence: bad accidents, medical errors, professional crimes.

Under the term “bad accident” we understand a type of defect of medical care provision, which is connected with proper fulfillment of professional duties by a medical worker, which is done in conformity with the standards of health care and local protocols and appeared as a result of a sudden, unpredictable and inescapable. A typical feature of a bad accident is that a medical professional acts in accordance with standards and local protocols as well as he properly performs his professional duties. Ground for release from legal liability is an absence of unlawfulness of an action and a fault of a medical professional.

In our opinion, medical error is a type of a defect of medical care provision, which includes improper fulfillment (non-fulfillment) by a medical professional of his her professional duties, as a result of subjective of objective error, which is not connected with reckless or unscrupulous attitude to such duties and which caused a harm to a patient’s health.

Specific features of a medical error are: 1) as a result of legal evaluation of the unlawful action there arises civil liability; 2) thin boundary between medical error and professional crime and a difference in terms of amount of damage: in case of crimes – serious consequences, which is an evaluative concept, but as a rule it is a death, grievous bodily harm, or moderate bodily harm. Besides this, medical error is a bona fide mistake, which is not connected with reckless attitude to professional duties. We may conclude that a medical professional acts contrary to the standards of health care and local protocols, by making a mistake due to subjective factors (low qualification level, underestimation or overestimation of a consultation conclusion etc.) or objective factors such as seriousness of the state of health of a patient, lack of necessary medical equipment, etc.  

Analysis of the defects of medical care in terms of legal realization and legal application enables us to highlight such key points: 1) it is necessary to fix a legal definition of the term “doctor’s error”, by using a combination of words “medical error”, since not only medical doctors are involved to the medical care provision, but other medical professionals as well. It is also necessary to foresee a legal definition of the term “bad accident”, which is most “vulnerable” notion when one conducts legal evaluation and differentiates this notion from other types of defects; 2) provide lecturing of the academic discipline “Medical law” to different target groups (for example: medical professionals, judges, barristers, police workers and prosecutors), which will favor the optimization of legal application and legal realization; 3) a court of cassation should prepare an information letter for the lower courts in order to secure a uniform application of the laws by all courts of general jurisdiction and escape ambiguous interpretation of the legal rules when doing an evaluation of the defects of medical care and protect human rights in patient care;  4) develop uniform methodological recommendations on qualification of medical crimes, which will secure proper legal evaluation of the activity of medical and pharmaceutical professionals.  

Key words: defects of medical care provision, medical error, accident, professional crime, medical law.

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