DOI: https://doi.org/10.25040/medicallaw2015.02.063
Med. pravo., 2015; 2(16): 63-72
UDC: 347.1
ROGALSKYJ IHOR OLEHOVYCH
candidate of medical sciences, associate professor, lecturer of the Department of medical law of Ternopil State Medical University of The Ministry of Health of Ukraine
KALYNIUK NATALYA MYKOLAYIVNA
candidate of medical sciences, head of the Department of Medical Law of Ternopil State Medical University,The Ministry of Health of Ukraine
GUMENNA NADIYA VOLODYMYRIVNA
lecturer of the Department of Medical Law of Ternopil State Medical University,The Ministry of Health of Ukraine
The juridical qualification of defects in providing first medical aid in the sphere of obstetrics and gynaecology
The article deals with the principal aspects of the gist of the defects of providing first medical aid in the sphere of obstetrics and gynaecology. One analyzes the scientific approaches to the appearance of conflict situations in the sphere of medical legal relations. The progressive development of modern medicine enables to understand and regulate the biological processes, including obstetrics and gynaecology.
This issue concerns defining the certainpathology during the early stages of pregnancy, particularly the pregnancy complications and preaccouchement hemorrhage, accouchement and childbirth as well as foetus complications of pregnancyallowingthe treating doctor to determine the diagnosis correctly and in time, hold the necessary analyses and choose the right treatment methodology. Regardless to the ratified typical standards of providing the medical aid,the doctor’s approach to every patient is individual.
The statement acquires the peculiar meaningin the sphere of obstetrics and gynaecology as the doctor’s responsibility refers to not only the patient’s health, but also to the proper development of the foetus in the mother’s womb as well as the newborn’shealth.The views of the scholars about the problematic of qualifying the defects of providing the medical aid are systemized and investigated. Due to the growing complaints,the international standards in the sphere of legal insurance inhealthcare identify the medical negligence in the actions of doctors and the treatment regardless the doctor’s fault.The Ukrainian legislation has not approved the definition of “the defects of providing the medical assistance”. The court practice has not approved the definite approach towards the qualificationof mistakable actions of medical workers.
When finding out the facts of the defects in providing the first aid,the law proceedings anticipate two basic questions: 1) the availability (absence) of the fault in the actions of the medical worker (referring to both the actionsand the consequences taking place as a result of the happening), 2) the possibility of arising the juridical responsibility for the committed action. The mentioned reasons allow distinguishing the three following forms of the defects of providing the medical aid: doctor’s (medical) mistake, an accident, professional legal offence.
The qualification of action of medical workers as the professional legal offence is exercised with the availability ofthe body of the crime. The constituent elements of the crime comprise the special subject of offence, i.e. the medical worker, its objectorthe life or health of the patient, the fault (the intent or carelessness), whereas the subjective side includes the fault(action or carelessness, the consequences for the patient and causal connection betweenthe mentioned actions and the consequences). When proving the fact of crime presence in the deeds of a medical workeran individual will be made responsible legallyfor the committed actions.The law in force anticipates the possibility of calling the guilty persons for the violation in the sphere of healthcare to such kinds of juridical accounts as disciplinary, civil, criminal etc.
As the individuals have laborrelations with healthcare establishments regardless to the form of ownership, the basis for the application of disciplinary responsibility is to be regarded the violation of labor (professional) obligations, the presence of the direct harm (damage), the causal connection between the actions of the worker and the consequences that followed thereafter as well as the fault (the intention, carelessness). All the mentioned facts give the reason to claim that medical workers that entered the labor relations withthe healthcare establishments regardless to the ownership form are the hired workers. It follows from this that the leader of the legal entity with its juridical-organizational formor its separated subdivision, the basic aspects of which is the insuranceof proper service of the population on the basis of the license and the professional activity of the medical workers (chief doctor of the hospital, polyclinics, dispensary) has the right to apply the disciplinary sanctions such as reproof or dismissal. Besides, the legislation, statutes and regulationsanticipate other disciplinary sanctions for the separate categories of workers.In the context of the development of medical law, the professional violationsoversee the civil-lawfulresponsibility for the medical workers.Such responsibility is the kind of juridical responsibilityappearing as a result of violations of the property or personal non-property rightsof the citizens in the sphere of healthcare and lies, mainly, in the necessity of refund.
Civil legislation anticipatesthe general statements on refund(property, moral, mutilation or other health damage or the one caused by the death of an individual, and the damage caused by an effort of self-defense, etc.). Cost reimbursement and recovering payment is usually in charge of the healthcare establishment, in which the accused employee works and in case his or her guilt has been proved in the court. Thus, legal or physical entity respectively (i.e. healthcare establishment–auth.) reimburses the damage caused by the worker during the performing his or her labor (official) duties. In its turn the healthcare institution after having reimbursed the damage provided by another individual has the right of setback (regression) to the charged personality in the size of compensated reimbursement unless other compensation size is anticipated by the law.
The defects of providing the medical aid in the field of obstetrics and gynaecology in the form of criminal offence are to contain the following elements of its composition: the subject, the object, the subjective and the objective sides. Moreover, the characteristic feature of the latter one is the guilt or intent (direct or indirect) or carelessness (felonious carelessness or self-assurance). The analysis of theCriminal Code of Ukraine, where the special subject of the criminal offence if the medical worker gives the ground to state as follows. Firstly, the referring of the defect in providing the medical assistance exactly to the criminal offence is mostly characterized by the appearance of the severe consequences. The latter ones include the death of the casualty, the driving into the suicide, profound loss of working capacity, sterility. Secondly, the subjective side of the criminal offenceis mostly characterized by the careless guilt form. Still, there are exceptions.
Thus, holding illegal abortion the subjective side of the criminal offence before the commitment of the crime is characterized by the direct intent, whereas the socially dangerous consequences, which are likely to happen (durable health problems, infertility, the death of the casualty) denote carelessness. One has established that in case of appearance of the defects in delivering the medical assistance in the sphere of obstetrics and gynaecology medical legal relations require the individual definition for every separate case. Having established the defects in providing the medical assistance, the actions of people deliveringthe aid enumerate three forms: the doctor’s mistake, an accident and offense. It has been proved that after finding out the fact of deficiency in delivering the medical assistance in the sphere of obstetrics and gynaecology in the form of doctor’s mistake cannot be arraigned to the responsibility because of the reasons that the appearance of the negative consequences for the life or health of the patient did not depend on the objectified actions of the medical worker.
In case of determining the defect of delivering the medical assistance and establishing the fact of availability of corpus delicti in the actions of the medical worker, the person can be brought to the legal responsibility.
Key words: medical care, defects of medical care provision, obstetricsgynecology, medical mistake, accident, offense, legal liabilit.
Reference list
1. Stetsenko S. G. (2009) Yuridichniy konflikt u sferi medichnoyi diyalnosti, teoretiko pravoviy aspekt. Visnik Akademiyi mitnoyi sluzhbi Ukrayini. Ser. Pravo, 1, p. 44. Retrieved from http://nbuv.gov.ua/j-pdf/vamsup_2009_1_7.pdf
2. Polozhennya pro medichnu nedbalist, Vsesvitnya medichna asotsiatsiya Polozhennya, Mizhnarodniy dokument vid 01.09.1992 Retrieved from http://zakon0.rada.gov.ua/laws/show/990_052
3. Antonov S. V. (2007) Medichna pomilka, yuridichniy aspekt. Upravlinnya zakladom ohoroni zdoroveya, 8, p. 92.
4. Mediko pravoviy tlumachniy slovnik. Za red. I.Ya. Senyuty. Lviv. Vid.vo LOBF, Meditsyna i pravo, 2010.
5. Pro zatverdzhennya poryadku obliku ta rozglyadu vipadkiv smerti zhinok pid chas vagitnosti, pologiv ta u pislyapologovomu periodi. Nakaz MOZ Ukrayiny vid 29.11.2013. 1031. Retrieved from http://zakon1.rada.gov.ua/laws/show/z2172-13
6. Kodeks zakoniv pro pratsyu, Verhovna Rada URSR. Kodeks Ukrayiny, Zakon, Kodeks vid 10.12.1971. 322 VIII. Retrieved from http://zakon3.rada.gov.ua/laws/show/322-08/page5
7. Sprava 345/2064/14ts. Edinyy derzhavnyy reestr sudovyh rishen Retrieved from http://www.reyestr.court.gov.ua
8. Vidpovidalnist medychnyh pratsivnykiv. Ministerstvo yustytsiyi Ukrayiny, Lyst004032311 vid 20.06.2011 r. Retrieved from http://zakon2.rada.gov.ua/laws/show/n0040323-11
9. Tsivilnyy kodeks Ukrayiny. Verhovna Rada Ukrayiny. Kodeks Ukrayiny, Zakon, Kodeks vid 16.01.2003 435IV. Vidomosti Verhovnoyi Rady Ukrayiny. 2003. p. 40.
10. Pro sudovu praktyku v spravah pro vidshkoduvannya moralnoyi (nemaynovoyi) shkody. Verhovnyy Sud. Postanova vid 31.03.1995 4. Retrieved from http://zakon0.rada.gov.ua/laws/show/v0004700-95
11. Sprava 674/638/14ts. Edynyy derzhavnyy reestr sudovyh rishen Retrieved from http://www.reyestr.court.gov.ua
12. Sprava 564/1675/14ts. Edynyy derzhavnyy reestr sudovyh rishen. Retrieved from http://www.reyestr.court.gov.ua
13. Kryminalnyy kodeks Ukrayiny. Kodeks Ukrayiny vid 05.04.2001. 2341 III. Vidomosti Verhovnoyi Rady Ukrayiny. 2001. p. 25.
14. Sprava 688/3603/13k vid 21.10.2013 r. Edynyy derzhavnyy reestr sudovyh rishen. Retrieved from http://www.reyestr.court.gov.ua
