CYIL vol. 9 (2018)

TOMÁŠ HOLČAPEK CYIL 9 ȍ2018Ȏ When determining the threshold, it is necessary to use the combination of the likelihood of the risk of a particular negative outcome and outcomes of a treatment and seriousness of such risks to the general state of health of the patient. The more serious the consequences in case the risk materialises are, the lower the likelihood will be enough to establish a duty to inform the patient about it. For these reasons, the decisions of the lower courts were quashed as they had not properly contemplated all these aspects and their conclusions were therefore premature. Merely holding that the patient had been deprived of a choice (because of the lack of relevant information, she did not have adequate opportunity to think about risks and alternative options) was not enough, because the claimant sought compensation for personal injury, not for interference with her autonomy or privacy. This was not the end of the matter. In its new judgment the court of first instance, to which the case was returned, awarded monetary compensation to the claimant for pain and suffering and loss of faculties. In addition to its previous conclusions, the court held that the risks, about which the patient had not been told, were relevant, the material information that the health care provider was obliged to give had not been provided to the patient, the consent was therefore insufficient and not valid, the treatment was unlawful and a causal link was established. The decision was confirmed on appeal and the hospital filed a further appeal to the Supreme Court, alleging that the patient would have undergone the surgery even with the knowledge of the particular risks. However, the Supreme Court rejected the appeal, holding that the lower courts proceeded in accordance with the principles set out in its previous judgment and that if they held that the patient had managed to prove that it was realistically probable she would not have undergone the surgery, it is a conclusion about facts, not about law, and therefore not for the Supreme Court to review. 18 2.3 Discussion The dynamic development of case law apparent from the previous text makes it very difficult to deduce any clear, established principles. On the contrary: it is quite likely that before the rules become settled, there will be more disputes allowing further clarification by the courts. The thyroid gland surgery case presented above illustrates the point. The 2015 Supreme Court decision expressly refused the idea that a health care provider who carried out an unlawful intervention should bear all the risk of the adverse development of the patient’s health stemming from the procedure, and noted that it was possible to claim compensation for a violation of the right to integrity, privacy, dignity etc. separately from any claim for compensation of personal injury. This would suggest that the claimant could have sought satisfaction for the unauthorised intervention, however not in the form of compensation for pain and the loss of faculties but rather in the form of compensation for breach of personal integrity. Obviously, the type and extent of such satisfaction could be very different: a significantly lower monetary sum or perhaps only non-pecuniary satisfaction by means of an apology. While breach of personal integrity is certainly not negligible, it could well be considered a lesser harm than a deterioration of health.

18 Ruling of the Supreme Court of the Czech Republic of 20 June 2017, File No. 25 Cdo 5311/2016. The Supreme Court only reviews legal aspects of a case and in certain circumstances may also reflect serious procedural errors, but does not re-evaluate the facts as found by the lower instances.

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