ГРАЂАНСКОПРАВНА ОДГОВОРНОСТ ЗБОГ НЕПРИМЕНЕ НЕОПХОДНИХ МЕДИЦИНСКИХ СРЕДСТАВА
Liability for Damage caused by Shortage and Failure to Use Necessary Medical Devices

Summary/Abstract: In order to provide for successful, safe and high quality medical services, health care institutions need to be equipped with adequate medical devices. For this reason, every medical institution is legally obliged to have relevant medical devices. In case a patient has been deprived of some medical service for the lack of necessary medical devices (which the institution has been obliged to provide), the medical institution is responsible for the damage and harm sustained by the patient. The responsibility implies non-contractual liability (in tort law) or pre-contractual liability (in contract law). In both cases, the liability is based on the presumed culpability. In order to be excluded from liability, the medical institution has to prove that the patient has been deprived of medical service (or that the institution has refused to enter into a medical service provider agreement) on justifiable grounds, i.e. due to the lack of necessary medical devices. On the other hand, in case the medial institutions fail to provide needed care or violate their obligation to use medical devices when necessary, it is regarded as medical negligence (professional error). In most cases, it implies the liability of medical institutions for damage, injury or harm caused to the patient by medical services provided without applying a relevant medical device, whose use has been medically indicated. The liability is even more substantial in cases where the medical device has been available but the medical institutions has not applied it in medial treatment (even though its use has been medically indicated); such conduct is qualified as gross negligence.

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