The doctor reacts on the basis of an error, which can be attributed only to an element of objective and subjective inadequacy of the procedure. The objective element appears when the principles of medical knowledge, experience and deontology are violated , while the subjective element is associated with the manifestation of diligence by a doctor, assessed according to the criterion of a high level of average professional diligence (Supreme Court decision of 18 years). January 2013, IV TsSK 431/12).
Thus, medical negligence violates the rules of conduct applicable to the doctor, developed on the basis of medical science and practice, but at the same time it must be emphasized that medical negligence never involves liability and its detection does not automatically lead to a decision. . If it is found that the doctor’s behavior is incompatible with medical practice, an assessment should be made as to whether the error was a medical malpractice, ie whether it was the result of the failure to exercise diligence.
The rule is that only a misdemeanor of subjective guilt of a physician involves civil liability, subject to the remaining conditions of such liability. On the other hand, in order to determine whether the doctor can be blamed for this, if he did not act negligently and did not exercise diligence, using all the methods and means at his disposal, he could avoid mistakes and thus prevent harm, for to act,
It is necessary to compare its behavior with accepted standards. If this comparison leads to the conclusion that an exemplary good doctor, in identical circumstances, would avoid medical errors and harm the patient, then this was a mistake. Assessing the doctor’s behavior with regard to the possibility of accusing him of guilt requires taking into account the state of medical knowledge when a particular doctor has made a decision on the procedure to be followed. In accordance with art. 355 of the Civil Code, due diligence should be understood as such, which in these conditions is necessary to prevent damages.