CYIL vol. 9 (2018)

TOMÁŠ HOLČAPEK CYIL 9 ȍ2018Ȏ It is possible to imagine a conduct which from the medical perspective is viewed as a lege artis procedure and therefore will not constitute interference with right to life and health but which may simultaneously constitute interference with a different component of personality rights, e.g. right to privacy (e.g. medical intervention without informed consent of the patient). Therefore it is obvious that if the claimant sues for protection of personality in a multitude of its aspects (protection of life and health, privacy and human dignity), it is necessary to assess all elements of personality rights individually. In other words, the fact that a procedure was found lege artis from the medical perspective does not automatically mean that another component of personality rights could not have been unlawfully affected by the same procedure. 13 As we will show on selected case law, application of this basic principle has presented Czech courts with formidable difficulties. 2.2 Selected Case Law For a long time, courts had a considerable problem with finding any kind of civil liability for deficiencies in informed consent. An illustrative example is offered by a 2005 decision in a case of a laser eye surgery; the patient sued for compensation for the loss of sight which he associated with the surgery, also alleging that he had not been duly informed about possible risks and consequences of the intervention. 14 During the proceedings the claimant did not manage to prove that the surgery had led to any loss of sight, but the defendant did not prove that the relevant information had been provided. The claim failed and the Supreme Court noted that any error of the defendant consisting in not being able to prove to have properly informed the patient was irrelevant as there was no causal link with the ensuing harm, and furthermore, the harm had not been proved at all. Arguably, this approach – at least in respect of the issue of causation – could well be held in contravention not merely of logic 15 but also of Article 24 of the Convention. However, Czech health law – and particularly, the case law of our courts in this field – has developed rather considerably during recent years. This could be due in part to the positive influence of the Convention and overall accent on human rights and dignity in medicine. 16 The courts have grown significantly more receptive to claims based on deficiency of informed consent. In 2015, the Supreme Court dealt with a case 17 of a claimant who had undergone surgery of her thyroid gland. During the operation both recurrent laryngeal nerves were damaged, which led to a lasting shortness of breath and speech impairment. The 13 Judgment of the Supreme Court of the Czech Republic of 14 May 2013, File No. 30 Cdo 3223/2011. 14 Ruling of the Supreme Court of the Czech Republic of 20 September 2005, File No. 25 Cdo 464/2005. For a similarly argued case but with even less of a detailed discussion on the operative legal principles cf. ruling of the Supreme Court of the Czech Republic of 24 May 2007, File No. 25 Cdo 1555/2005. 15 Because had the patient been properly informed, he might have decided not to undergo the intervention and would, therefore, not have suffered any harm, assuming that there was any actual harm. Additionally, there is a clear legal obligation not to carry out a medical intervention without proper legal justification (provided e.g. by informed consent) and there can be a clear causal link between such unlawful act and any resulting deterioration of health. Cf. ŠUSTEK, Petr, HOLČAPEK, Tomáš. Informovaný souhlas [ Informed Consent ] . (ASPI, Praha 2007), pp. 179-180. 16 For more details cf. Petr Šustek’s article The Convention on Biomedicine and Czech Health Law: the Cornerstone of a Great Reform in the present volume of Czech Yearbook of Public & Private International Law. 17 Judgment of the Supreme Court of the Czech Republic of 29 April 2015, File No. 25 Cdo 1381/2013.

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