CYIL vol. 14 (2023)

PETR ŠUSTEK CYIL 14 (2023) is competent to make the decision about remote care including its possible lower quality in certain aspects. 57 Another question is whether the patient needs to be informed that certain aspects of the physicians’ clinical decision-making process were performed in a remote regime. For example, the provider of health services might share the images obtained from MRI or similar imaging method with an expert radiologist who works in a different part of the world to consult diagnosis or a treatment plan. In cases like this where there is very little to no risk added by the remote nature of the service, we believe disclosure is generally not necessary as it would likely not alter the patient’s decision-making process. On the other hand, we may imagine for example a remote surgery carried out by a surgeon communicating with the surgical robot via telecommunication technology. Such a procedure might have significant benefits (such as the involvement of a highly experienced physician who would otherwise not be available) but also its unique risks that need to be fully disclosed to the patient in advance. 3.4 Compensation for Harm Finally, Article 24 of the Convention on Human Rights and Biomedicine states that “ [t]he person who has suffered undue damage resulting from an intervention is entitled to fair compensation according to the conditions and procedures prescribed by law. ” The compensable damage must result from an intervention in the broad sense, either in the form of an act or an omission. 58 Compensation conditions, as well as relevant procedures, are established by the national law. There are many options to fulfil the obligation of the State Parties to provide fair compensation, including fault-based or strict individual liability or a collective system of compensation irrespective of individual liability. 59 As we have seen above, jurisdictions usually do not establish a special type of liability for telemedicine. The situation is the same in the Czech Republic where the general rules on mostly fault-based civil liability for medical malpractice would apply. Even though some authors suggest that there should be established a new form of liability for telemedicine, 60 others consider the current principles of liability in medical malpractice cases sufficient. 61 We agree with the latter position. Civil liability has remained in its foundations very similar throughout numerus historic milestones of medicine such as the massive introduction of effective medicinal products and medical devices or the introduction of computers and internet in clinical practice. Nothing in the current state of telemedicine and its realistic outlooks for the foreseeable future suggests that the civil liability principles will not suffice anymore to enable patients to obtain fair compensation. We further recommend that strict liability should not apply to telemedicine, as its potential chilling effect could be detrimental to the practice, creating unnecessary hindrance for the patients to fully benefit from it. There might arise a need for certain case-specific alterations, especially from the procedural 57 See ibid., p. 4. 58 See Explanatory Report to the Convention on Human Rights and Biomedicine, point 144. 59 See ibid., point 145. 60 See for example KRAMER, G., M., KINN, J., T., MISHKIND, M., C. Legal, Regulatory, and Risk Management Issues in the Use of Technology to Deliver Mental Health Care. Cognitive and Behavioral Practice. (2015, Vol. 22, No. 3), pp. 258–268. doi: https://doi.org/10.1016/j.cbpra.2014.04.008. 61 See for example KAHN, E., N., LA MARCA, F,, MAZZOLA, C., A. Neurosurgery and Telemedicine in the United States: Assessment of the Risks and Opportunities. World Neurosurgery. (2016, Vol. 89), pp. 133–138. doi: https://doi.org/10.1016/j.wneu.2016.01.075.

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