BRAK OBJAŚNIONEJ ZGODY PACJENTA A ODPOWIEDZIALNOŚĆ LEKARZA ZA BRAK OSTROŻNOŚCI I PRZYPADEK
LACK OF THE PATIENT’S INFORM CONSENT, AND THE MEDICAL DOCTOR’S RESPONSIBILITY FOR LACK OF THE CAUTION AND COINCIDENCE

Summary/Abstract: Polish medical law declares that the medical doctor has a right to a medical intervention only if he/she received an informed consent of a patient before the intervention. The consent is valid only if the medical doctor has informed accessibly the patient about his/her health condition, suggestions about the methods of treatment and its foreseeable risks (section 31 paragraph 1 Doctors and Dentists Professions Act from 5th December 1996 (uniform text: Dz.U. from 2005, No. 226, position 1943 with changes). Information about foreseeable risks need to include additional data about all probable side effects, which may reasonably occur. Medical doctors are responsible on the rule of guilt not on the rule of risk. That means that they are (regularly) liable for negligence and, a contrario, that they are not liable when they act diligently. Even when they breach duty of care (so called “medical mistake”), however, without fault (guilt) they are not responsible for the damage which occurs. In addiction, medical doctors are not responsible for so called coincidence (an event beyond control of the parties). Medical intervention without informed consent of a patient can be threatened as illegal act. Due to that fact, some courts’ decisions and commentators stated that medical doctors are responsible in such cases for all the damages (including pecuniary damages) which derive from operation – even results of coincidence and when medical doctors fulfilled the test of diligence during operation. Nevertheless, there is no chain of causation between lack of the information and pecuniary damages, caused without medical doctors fault. They are liable only for they own negligence and whether they fulfilled that obligation only for breach of patients’ rights to information (which includes only non-pecuniary damages) according to section 19a in accordance with section 19 paragraph 1 point 3 Medical Institutions Act from 30th August 1991 (uniform text: Dz. U. from 2007 r., No 14, position 87 with changes).

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