CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

DOCTRINE OF LOSS OF CHANCE IN MEDICAL MALPRACTICE CASES …

3.1 European Union Cross-border Healthcare The European Union is based on several fundamental freedoms, comprising, inter alia , freedom of movement of persons and freedom to provide services across national borders. Long-term attempts to enhance the exercise of these freedoms in matters of healthcare led to the adoption of a special directive aimed at promoting patients’ rights. 21 Individual patients may choose to seek healthcare in other states and it is highly desirable that a solid level of protection of their health and of the quality of the services in question is maintained. For this purpose, the directive prescribes that EU Member States should ensure, e.g., that patients receive necessary information to make an informed choice, they can use transparent complaints procedures, rely on a system of professional liability insurance, have their privacy respected and would not be discriminated against on the basis of nationality. The directive sets forth some principles concerning payment for health care, as this issue is connected to national public insurance (or similar) systems, whose stability needs to be sustained. However, the directive does not primarily focus on the private law relationship between a patient and a health care provider. It is by no means unambiguous that the said relationship needs to be treated as a civil (or private) law matter. If the health care provider formed part of a publicly-run system paid for by general taxation or other similar means, it could well be a matter of public law. Nevertheless, we may say that very frequently, if not predominantly, the approach to this relationship is one of private law. This does not mean lesser protection for the patient; after all, he or she will be often in the position of a consumer (or more generally, a weaker contracting party) and therefore entitled to special protection by the law. Such is the situation not just in the Czech Republic, 22 but also in other countries – to name just one example, we may refer to the rules regulating contract for treatment ( Behandlungsvertrag ) in Germany. 23 For the purposes of this article we will assume that providing healthcare in a particular case will be treated as a private-law obligation. More often than not, it will have a contractual nature as people typically seek healthcare voluntarily and its provision is based on a consensus, which in the law takes the shape of a contract. Sometimes they need care even if they are incapable of forming such contract, e.g. when a person is unconscious after an accident and needs urgent medical help. National legal systems may view this type of case as having a non- contractual nature, although some principles of contract law may still apply. 24 For both contractual and non-contractual obligations, applicable law must be determined in cross-border cases. If a French patient decides to travel to Germany to undergo a non- urgent surgery, a contract will be entered into. Breach of any obligations of the healthcare provider may lead to a duty of compensation. However, depending on which law is applicable, the consequences of any malpractice may differ significantly. If the healthcare provider negligently causes the patients’ prospect of full recovery after surgery to deteriorate, 21 Directive of the European Parliament and of the Council No. 2011/24/EU on the application of patients’ rights in cross-border healthcare. 22 Cf. ŠUSTEK, Petr, Smlouva o péči o zdraví [ Contract for Health Care ]. In: ŠUSTEK, Petr, HOLČAPEK, Tomáš, et al., Zdravotnické právo [ Health Law ] . Wolters Kluwer, Praha 2016, pp. 38-40. 23 Cf. sec. 630a ff. of the German Civil Code (BGB). 24 Cf. art. 7:464(1) of the Civil Code of the Netherlands (BW), which stipulates that provisions regulating contracts for healthcare apply similarly to medical interventions carried out in the course of professional practice without being based on a contract, to the extent in which the nature of such legal relationship does not contradict it.

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