CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ CONVENTION ON BIOMEDICINE AND LIABILITY RESULTING FROM DEFICIENCY… surgery had been carried out correctly, but lower courts nonetheless awarded compensation because the patient had not been properly informed about the risk of damage to the nerves and about potential alternative treatment options. They held that if a medical intervention was carried out unlawfully, the person who performed it must bear the risk of potential adverse consequences. Without the unlawful treatment the risk would not have materialised, therefore causation was also established. The Supreme Court held that in accordance with both Article 5 of the Convention and relevant domestic law, a medical intervention may only be carried out with informed consent. Performing such an intervention without informed consent is unlawful. The court confirmed that this principle applies even when consent was given, but the patient had not been duly informed about all obligatory aspects (such as purpose, nature, risks and alternatives of the suggested procedure). The first element of civil liability – an act or omission contravening the law – was therefore established. There was no dispute that the patient actually suffered harm in the form of damage to the recurrent nerves. The critical issue consisted in the causal link. In its judgment, the Supreme Court explicitly rejected the idea of the lower courts that the person who had carried out an unauthorised, unlawful medical intervention should bear all associated risks. The court argued that such principle would disturb the balance between the protection of life and health as the most valuable ‘assets’ which people have on the one hand and the basic concept of civil liability (that only those who unlawfully caused harm should be responsible for it) on the other. Any medical intervention is associated with risks and their materialisation may depend on pure chance. Excessive liability may be as detrimental to the stability and fairness of the personal injury compensation system as insufficient liability. The court disagreed that without adequate liability the obligation not to interfere with personal integrity, privacy, dignity etc. would not be effectively sanctioned, because the person in question may claim compensation for a breach of these rights (i.e. without necessarily claiming compensation for injury to health). According to the decision, in order to determine the existence of legally relevant causation, a court must consider what information a patient received and what information they should have received. The information must allow even a layperson to assess the risks of a treatment and decide whether to undergo it or not. Liability of the health care provider will only occur in such cases when the patient proves that with the knowledge of material aspects (about which they should have been informed) it was realistically probable that the patient would have decided otherwise, i.e. not to undergo the treatment. In many situations (especially when the nonperformance of a treatment brings greater risks of damage to health than its performance) it will be the case that even if the patient had the missing information before the treatment, they would have had decided identically, i.e. to undergo the treatment. In the opinion of the Supreme Court, in those situations, it is fair that the consequences of a correctly performed treatment and risks of its potential failure should be borne by the patient and it conforms to the traditional principle that the harmed party should bear the consequences of the accident which befell them. In respect of the scope of obligatory information the Supreme Court noted that it was not without boundaries. For each particular medical procedure, an unlimited number of risks could be identified. If the obligation to inform comprised all of them, informed consent would be practically unachievable and, at the end of the day, would become meaningless.

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