The medical contract
Educational objectives:
Define and characterize the medical contract
Learn the conditions of validity of the medical contract
Course outline
- Definition
- The legal nature of the medical contract
The conditions for the formation of the medical contract
IV. Conclusion
- Bibliography
- DEFINITION
It is defined by article 54 of the Algerian civil code: “the contract is an agreement by which one or more persons oblige themselves towards one or more others to do or not to do certain things.”
A LEGAL NATURE OF THE MEDICAL CONTRACT:
1-The medical contract is an essentially personal contract:
The patient is free to choose his dental surgeon based on his real or sometimes supposed abilities, but always according to the confidence that the latter inspires in him; the patient must be faithful to the prescriptions.
2- The medical contract is a continuous contract:
As soon as the dentist solicited by the patient at the request and obligation to do what he cannot violate subsequently. If he has undertaken a treatment, he must prevent its harmful effects, interrupt it only for legitimate reasons. If he withdraws before the end of the treatment, he is responsible for the harmful consequences.
3- The medical contract promises care, it is held by u is a synallagmatic contract:
The dentist and the patient enter into reciprocal obligations; the dentist has an obligation of care and supervision, and the patient has an obligation of faithfulness to prescriptions and remuneration.
4- The medical contract is a civil contract:
The medical act must always retain its civil character, and cannot be assimilated to a commercial act: the dental surgeon collects fees, he does not make a profit.
5- The medical contract is a terminable contract:
Since the medical contract implies the patient’s trust at all times, the patient can break it at any time if the dental surgeon has lost his trust.
This right to terminate the contract is not unilateral; the dental surgeon can also terminate the contract, but only if the termination does not risk harming the patient, in which case he must ensure continuity of care.
This mutual right to terminate the contract is based on the general principle that no one can be considered to be indefinitely engaged.
- CONDITIONS FOR THE FORMATION OF THE MEDICAL CONTRACT:
1- The capacity of the contractors:
- capacity of the patient: articles 78 and 40 of the civil code:
Fully capable of exercising his civil rights, any adult in full possession of his mental faculties.
- capacity of the dental surgeon: article 194 of the health law: provides the legal conditions for practicing dental surgery, namely: nationality, diploma and prior visa from the Ministry of Health.
2- Consent of the parties:
To consent is to agree with someone on the operation that the contract is to allow to be carried out.
Consent must be free and informed, obtained after “simple, approximate, intelligible and fair” information.
3- The legality of the object of the contract:
The object of the contract, that is to say the aim pursued, must be morally justifiable, lawful and legitimate.
This is how article 273 of the penal code punishes anyone guilty of castration, that articles 254-255 of the penal code punish anyone guilty of euthanasia in the same way as homicide, that articles 304 of the penal code, article 244 of the health law punish one abortion, the other the delivery of narcotics prescribed for a non-therapeutic purpose.
4- The legality of the cause of the contract:
Art.97 of the Civil Code: “a contract is void when one is obligated without cause or when the cause is contrary to public order or morality”.
The cause is the reason for the obligation; the reason that pushes the patient to contract with the dental surgeon is the real or supposed state of illness. The patient wants to know its nature, its seriousness and obtain a remedy if necessary.
Iv. Conclusion:
The medical contract is a key element of the doctor-patient relationship. The conditions of validity of the medical contract are void if one of these conditions is not met. Failure to perform a contractual obligation towards the patient is a source of civil liability.
- Bibliography:
Hannouz.MM MH: Hakem.AR Summary of medical law for the use of practitioners of the
medicine and medical law. University Publications Office: 06-2000.183P
Www.msjustice.dz
WWW.joradp.dz. Algerian Penal Code, 2007 edition
The medical contract
The medical contract
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