The doctor is obliged to practice in accordance with the instructions of modern medical knowledge, methods and means of prevention, diagnosis and treatment of diseases, in accordance with the principles of professional ethics and due diligence (Article 4 of the Law on the profession of doctor and dentist). The patient, on the other hand, has the right to medical services that meet the requirements of modern medical knowledge (Article 6 of the Law on Patients’ Rights and the Patient Ombudsman).
Regardless of the legal basis for the provision of medical services, the doctor’s debt to the patient remains a duty of appreciation. The above means that the doctor is obliged to maintain constant contact with the patient at each stage of treatment. The doctor must perform operations in accordance with the state of the art and medical science and with above average diligence.
A doctor’s civil liability can be contractual (Article 471 of the Civil Code) or tort (Article 415 of the Civil Code). Regardless of the type of liability, a precondition for its occurrence is the fulfillment of three conditions:
- damage occurs,
- the occurrence of an event which caused damage during the provision of medical services,
- c) the causal relationship between the damage and the event with which the law links the damage compensation relationship.
Deviation from due diligence in these circumstances would be the fault of the doctor. In addition to the lack of diligence, this is also due to the clumsiness and carelessness of the doctor, negligence, lack of caution or caution that lead to injury to the patient (for example, a deformed nose or mouth). The element of guilt is medical negligence, ie the action or inaction of a doctor in the field of diagnosis and therapy, contrary to the principles of medical knowledge within the limits of the doctor. The guilt of a doctor may refer to the prevention of infection if, for example, antibiotic therapy has not been performed, although, according to modern medical knowledge, this has been necessary.
In addition, it should be emphasized that, in addition to compensation, the patient can claim monetary compensation for the damage caused in connection with an incorrect procedure. It should be emphasized that the risk that the patient accepts when agreeing to surgery only applies to routine postoperative complications. The patient’s risk does not extend to complications arising from errors, negligence or clumsiness of the doctor.
Assessing whether a patient has been injured in a particular case by the physician’s culpable act requires an analysis of the medical records and proof of the circumstances associated with the course of the procedure and the possible consequences of the physician’s actions. in a court of law.
Without prejudice to the above, the actions of the doctor may constitute malpractice, so it may be necessary to notify the competent medical chamber to hold the doctor liable and to protect patients from an incompetent member of the medical profession.