CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ EARLY APOLOGY OR ADMISSION OF RESPONSIBILITY IN MEDICAL … which have ratified it, and under its law the Convention (or at least such of its provisions which are specific enough) can be directly applied. 4 However, it remains questionable whether the general rule about duty to inform the patient provides sufficient incentive to health care providers to actively admit an error and communicate it to the patient as soon as reasonably practicable. There is significant concern that informing the patient and accepting responsibility may put the care provider at a disadvantage. The patient, or in some cases their family members, may initiate a civil lawsuit, perhaps even file a criminal complaint (if the malpractice in question could amount to commission of a criminal offence 5 ). The admission of responsibility may potentially be taken into account as a mitigating circumstance (especially in the context of criminal law), but at the same time it will make it much easier for the claimant to prove the basis of their claim (especially in a civil action). Similar considerations apply to potential compensation of the patient for the consequences of the error. Generally speaking, it is highly desirable to avoid protracted litigation, the costs of which are not only monetary, but often also reputational. 6 There are many techniques of alternative dispute resolution in cases of medical malpractice. They comprise a broad scale of methods which differ significantly in terms of how formal they are, whether they are confidential, how binding their result is, whether they involve a third party, whether they attempt to determine what happened with some level of objectivity etc. They typically include negotiation, mediation, conciliation and arbitration, but depending on the legal system in a particular country, they may also comprise complaints and grievance procedures, involvement of an ombudsman, pre-trail screening panels etc. ADR methods may lead to a much faster, simpler and cheaper resolution of a dispute. 7 In addition, possible benefits of ADR extend to the realm of estimated psychological impact of malpractice litigation on patients (or their relatives) and medical professionals. Patients are often motivated not by the perspective of financial compensation, or at least not only by it, but they seek timely and truthful explanation 8 , admission of responsibility, apology 4 Cf. ŠTURMA, Pavel. Úmluva Rady Evropy o lidských právech a biomedicíně [ The Council of Europe Convention on Human Rights and Biomedicine ]. Právní rozhledy . (1998, Vol. 6, No. 4 – supplement European law), pp. 2-4; and also paragraph 20 of the Explanatory Report prepared in connection with the drafting of the Convention. 5 Under Czech law this is the case. Causing harm to health (or even death) of another person, if committed at least negligently, may constitute a criminal offence under sections 143, 147 or 148 of the Act No. 40/2009 Coll., the Criminal Code, as amended, depending on the seriousness of the occasioned harm. 6 Medical negligence litigation is often perceived as expensive and with considerable delays, not working either from the perspective of claimants or the defendants. Cf. KENNEDY, Ian, GRUBB, Andrew. Medical Law. (Butterworths, London 2000), p. 530. 7 Cf. ŠUSTEK, Petr, HOLČAPEK, Tomáš. Alternative Dispute Resolution in Medical Malpractice Cases. In RADIC, Zeljko, RONCEVIC, Ante, LI, Yongqiang (eds.) 22 nd International Scientific Conference on Economic and Social Development – “The Legal Challenges of Modern World”. Book of Proceedings. (Varazdin Development and Entrepreneurship Agency, Split 2017), pp. 233-242. 8 Although an interesting recent study from Scotland questions this assumption by pointing out that a significant number of claimants seeks only such explanation which validates their personal opinion about what happened, rather than objectively true facts. “The main motivation for pursuers appeared to be the desire for validation of what they believed had happened, which they described as being ‘the truth’ or ‘the real explanation’. …These pursuers strongly rejected any efforts at an explanation which did not tally with their ‘truth’. … Pursuers also appear to cling to opinions that provided any validation, even if the confirmation was only slight, of this ‘real’ explanation.” STEPHEN, Frank, MELVILLE, Angela, KRAUSE, Tammy. A Study of Medical Negligence Claiming in Scotland. (Scottish Government Social Research, 2012), pp. 27-28 [online]. Available at: https://www.researchgate.net/ publication/274458575_A_study_of_medical_negligence_claiming_in_Scotland [2019-05-31].

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