MEDICAL CIVIL, ADMINISTRATIVE, CRIMINAL AND DISCIPLINARY RESPONSIBILITY
- Introduction
Scientific progress has improved the effectiveness of techniques; new risks have emerged in medicine.
The patient has the right to quality care and to be a partner in medical decisions.
Medical liability === Any failure by the professional to meet any of these requirements.
The term “responsibility” in the legal sense covers two realities:
- The person responsible is liable to a sanction; criminal or disciplinary sanction;
- The person responsible is required to compensate a victim (compensation may be the responsibility of the person responsible himself or his employer); administrative or civil liability.
The patient who considers himself to be the victim of a medical act can seek one or other of these
responsibility, he can put them all into play simultaneously.
II. LIABILITY SOUGHT FOR COMPENSATION PURPOSES
(Civil and Administrative)
- Depending on whether the faulty medical act was performed;
- In a public establishment (administrative liability must be sought before the administrative courts (Administrative Tribunal, Administrative Court and Council of State);
- In the context of a liberal exercise (Civil liability must be sought before the courts of the judicial system (Tribunal, Court and the Supreme Court).
- Furthermore, since the law of March 4, 2002 “The KOUCHNER law”, compensation liability can be called into question within the framework of an amicable procedure before the CCI (it is not a judgment court).
- CIVIL LIABILITY
- The responsibility of liberal health professionals;
- The responsibility lies with the doctor himself; guaranteed by his professional liability insurance;
1. The conditions for the commitment of liability
(a) Existence of damage
- Damage suffered by a patient as a result of a medical act (whether at fault or not);
- In the absence of damage, there can be no civil liability;
- Certain future damage or loss of opportunity (Ɇ in Algeria). For example: the future sterility of a young prepubescent patient due to faulty irradiation.
(b) Existence of a fault
- It could be a technical fault;
- From a violation of a duty of humanism;
- From a trivial mistake.
Technical fault
- Failure to comply with data acquired from science during a medical act, whether diagnostic, treatment or preventive (commonly accepted by learned societies, consensus conferences, etc. at the time of the facts in question);
- For example: the absence of a prescription for anticoagulant treatment for a person with a lower limb in a cast, without any legal grounds to support it.
Violation of a duty of humanism
- Behavior that disregards the patient ‘s rights , particularly those that affect their dignity: violation of professional confidentiality, failure to inform the patient, etc.
The trivial mistake
- The one that does not touch on medical technique or the duty of humanism (can be serious in consequences). For example: amputation of a healthy limb instead of the pathological limb.
- Civil liability may be incurred in the absence of fault, in the case of nosocomial infections or a defective product;
(c) Existence of a causal link
- A certain link between the fault and the damage;
- Most often this link is difficult to establish;
- The interweaving of the “normal” consequences of the patient’s pathology and those resulting from the fault often casts doubt.
2. Legal framework
- The usual framework in which the liability of a doctor or a private establishment will be sought is of a contractual nature ;
- This contract is Tacit , Oral , concluded in consideration of the person;
- Failure to perform or poor performance of contractual obligations shall incur the physician’s liability;
- These obligations are of Means ≠ obligation of result (neither a doctor nor the establishment can undertake to cure the patient; undertake to provide the most appropriate care);
- Obligation of results: routine biological examinations or radiological examinations;
- In many cases, the contract cannot be formed: unconscious patient, incapacitated adult or minor, etc. We are then within the framework of extra-contractual civil liability, known as “ Tort ”;
- The law of March 4, 2002 unified the limitation period which is now 10 years, an additional step was taken in terms of information; the doctor who does not inform his patient did not fulfill his contractual obligation to provide information = tortious fault.
- A public sector doctor who does not exceed the mission assigned by his employer is not civilly liable for any damage suffered by a patient; it is his employer who is responsible for compensating the latter (the employer’s insurer may ask the doctor’s insurance to reimburse him for sums paid as damages).
MEDICAL CIVIL, ADMINISTRATIVE, CRIMINAL AND DISCIPLINARY RESPONSIBILITY
B. ADMINISTRATIVE RESPONSIBILITY
- Indemnity liability of public health establishments;
- These establishments are liable for compensation for damages caused by an agent, including (doctor, intern, student on internship, etc.);
- The general conditions of administrative liability are the same as those set out for civil liability (damage-fault and causal link);
- The particularity of the fault here is that it can be described as a fault of service (agent) or a fault in the organization of the service (dysfunction attributable to the chain of care and not to an isolated person);
- For example: a patient falls from a stretcher in an emergency department due to a crowded corridor;
- Also includes strict liability for nosocomial infection and defective product.
- The commission of a fault “separable from the service”, it is the doctor who is liable for compensation under his personal civil liability, except in the case of homicide or voluntary injury;
- This detachable fault results either from a fault committed outside the service, or from a fault of a serious particularity;
- For example: taking care of a sick person on a train or plane during a private trip, the doctor is not in this case to appear “on duty”.
- The fault is detachable by its extreme seriousness;
For example: taking care of a patient while intoxicated or refusing to move while on duty for a patient presenting a risk.
C. RESPONSIBILITY SEEKING FOR SANCTION PURPOSES
- In matters of medical liability, two categories of sanction must be taken: criminal sanction and disciplinary sanction specific to the profession;
- These responsibilities can be implemented one or the other or simultaneously.
1. CRIMINAL LIABILITY
- It is defined as inflicting a penalty on a person who has committed an offence listed in the penal code;
- Criminal liability is always personal;
- It concerns all doctors regardless of the framework of their practice: private, public and even public or private health establishments;
- The offence: “Any act, any action of a person contrary to the Laws and Regulations of Public Order constitutes an offence which must be Sanctioned “Punished” by the Criminal Courts”;
- We distinguish in order of increasing seriousness: Contravention, Offense and Crime punishable respectively by fine, prison sentence and criminal imprisonment;
- The offences that can be committed by a doctor can be divided into three types: voluntary homicide and injury, involuntary homicide and injury, and violation of a duty of humanism.
Homicide and intentional injury
- Homicide is summed up in medicine as “euthanasia”;
- Intentional injuries; failure to comply with the legality of certain medical procedures: abortion, sterilization for contraceptive purposes, organ removal, and human experimentation (failure to comply with the conditions set by law).
Homicide and unintentional injury
- The death of a patient or his injuries were caused by a fault of imprudence, negligence, clumsiness or compliance with a regulation.
- This type of fault is in reality confused with civil liability, consisting either of a lack of knowledge of data acquired from science or of the commission of a trivial fault;
Violation of a duty of humanism
- Violation of professional secrecy, failure to assist a person in danger, issuing false certificates. (Failure to inform a patient or misinforming them = potential cause for civil liability as it is not provided for in the criminal code).
- The absence of the patient’s consent to a medical act, constituting an attack on his bodily integrity, could be prosecuted as intentional injury;
- In criminal matters, the existence of damage is not always necessary for the constitution of the offence; it is the behaviour which is punished, independent of the results (attempt);
- For example: failure to assist a person in danger, a doctor does not help an injured person even though he is aware of the danger the injured person is in. When the SAMU arrives, the injured person is alive and has no after-effects. This doctor can also be sanctioned for failure to assist.
- In matters of manslaughter and unintentional injury, the “results” are necessary for the offence to exist, but there must be a certain and direct causal link between the fault committed and the result.
- The causal link may be indirect when the perpetrator of the offence participated in creating the conditions for the occurrence of the damage or did nothing to prevent its occurrence;
- For example: the case of an anesthetist who is held criminally liable for the death of a patient during the recovery phase because he did not take the necessary monitoring precautions, and also created conditions of risk of death occurring, by serious negligence even if the direct link between this negligence and the death could not be established;
- Compensation for damages may be sought by the patient in parallel with the prosecution of criminal liability during the same trial (constitution of the civil party);≠ the possible fine of the doctor.
2. DISCIPLINARY RESPONSIBILITY
- This is the one that is incurred before the authority of the order of physicians;
- The sanction is incurred due to a disciplinary fault defined as behavior violating the principles set out in the code of medical ethics;
- This code establishes principles ≠ penal code which is a catalogue of offences;
- Behaviour is examined not only within the scope of professional practice but also outside it;
- For example: a doctor convicted of driving while intoxicated during a private trip (holiday) may be subject to disciplinary sanctions for the same act because this behaviour undermines the “reputation of the profession” and therefore contravenes one of the principles set out in the code of ethics;
- Disciplinary action is independent of other actions that may be taken against a doctor, whether civil or criminal (the order remains free to give the facts a different qualification from that retained criminally).
- For example: a doctor acquitted of the criminal offence of failure to assist a person in danger, on the grounds that the victim was no longer alive when the doctor was called, may be subject to disciplinary sanctions;
- The sanctions incurred are: warning, reprimand, ban and temporary suspension up to expulsion;
- The procedure involves referral to the regional council by means of a complaint which must be forwarded via a departmental council of the order.
MEDICAL CIVIL, ADMINISTRATIVE, CRIMINAL AND DISCIPLINARY RESPONSIBILITY
III. CONCLUSION
- Liability may be sought for the purpose of compensation sanctions;
- Criminal liability is personal;
- Medical liability is most often incurred for reasons of fault;
- Victims of medical accidents can be compensated
MEDICAL CIVIL, ADMINISTRATIVE, CRIMINAL AND DISCIPLINARY RESPONSIBILITY
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