The article represents the history, emergence and the contemporary state of development of the legal doctrine of the patient’s informed consent to medical interventions in Czech Republic, Austria and the Latvian Republic. The authors focus on the vaults of the doctrine of the doctor’s obligation to abstain from conducting any medical interventions without the consent, or against the will of the patient, since the expression of the patient’s will is the central element of his right to self-determination. In order to discover the main features of informed consent in the civil law perspective, the authors discuss the historical and current legal developments of the legal institute of patient’s informed consent. The authors conclude that the formation of the institute owes to the right to body integrity and limitation of the exercise of medical profession by practitioners, and that the civil law doctrine of informed consent differs from Anglo-American tort law, relying on statutory-based civil liability for negligence, as well as minor penal liability for battery, an occasional interpretation of unauthorized medical intervention. The authors emphasize, that the existing bodies of Austrian, Czech and Latvian case law relating to informed consent, which span for over a century, are sufficient to become a branch of Continental medical malpractice case law alongside with aged and well-developed French or Belgian medical jurisprudence, whereas the Latvian medical jurisprudence, despite having a rich history of emergence since the 1920s, has developed a solid body of case law in regard with patient’s rights relatively recently.
The legal relationships between the physician and the patient involve a duty to maintain the confidentiality of information concerning the patient’s health which is based upon the acting legislation and case law. The non-fulfillment of the said duty mostly brings to civil or criminal responsibility. However, both legislation and case law of various states bear a substantial number of exemptions from the duty of medical confidentiality. With the enhancement of the patient’s role in decision-making concerning his treatment, various issues concerning his data privacy arose. Apart from his data privacy maintenance, there is an issue with the patient’s right to access his medical records. The purpose of access may not be as prosaic as it may initially look like, as in various jurisprudence, including the case-law of international courts, plaintiffs frequently applied to courts to obtain an order for medical records productions so as to file an action against hospitals for negligence. Hence, medical records would be used as evidence of negligence at trial. The positions of the United States courts and the courts in Europe (the given paper embraces several trials from Germany and Portugal) may have divergencies concerning direct access to medical data, the proprietary status of the health records, a right to access of third parties, and its conditions, the categories of personal data banned from patient’s access under certain circumstances, etc. The issue of access to medical records in known in the ECJ jurisprudence since the mid-70s, especially in a number of judgments wherein the plaintiffs sued various EEC bodies attempting to impugn the decision of their human resources department concerning their ineligibility of holding a certain position in the structures of EEC – therein, the defendants did not give reasonable justifications for such decisions and didn’t present any medical documentation to the prospective plaintiffs as a proof of their unfitness for office. Since the 1980s, similar actions were filed to the European Court of Human Rights. In some cases, not only the issue of the patient’s right to inspection of the respective health records was risen, but the aspect of accessing the information on the plaintiff’s biological forbearers as well (trials of Odievre v. France and Godelli v. Italy). Keywords: Medical records, data privacy, a right to access to medical records, medical confidentiality, medical negligence, the proprietary status of health records.
The legal aspects of healthcare in the Lviv oblast during the time it was under the reign of Second Rzeczpospolita Polska (1919–1939) remain underinvestigated. Alongside with the rise of lawyers’ and scholars’ attention to the aspects of history of medical law and the protection of patients’ rights, the question of disputes in the sphere of healthcare in various time periods (i.e. medical practitioners’ malpractice, lawsuits against hospital sickness funds, as legal entities because of negligence of the hospital sickness fund physicians, occurring within the provision of medical treatment, or conducting medical treatment without the patient’s consent etc.) has undoubtedly risen. The history of medical law of Ukraine remains underinvestigated. The practice of the courts operating in the Lviv oblast in 1919–1939 in cases on medical practitioners’ malpractice has yet not become the object of the research of Ukrainian scholars to date, analogically to the period, when the Lviv oblast was under the reign of the Austrian-Hungarian Empire in 1867–1918, or even in earlier times. The practice of the courts of the Lviv oblast in cases on medical practitioners’ malpractice in the period of 1919–1939 illustratively displays that civil lawsuits relating to medical malpractice were not rare ones. What is more, the court practice of those days featured criminal trials against medical practitioners for committing severe negligence, or illegitimate abortions. For a more complex understanding of medical practitioners in Austrian-Hungarian law by the reader, we will provide a brief explanation relating to it as well, in particular, on basis of those-days case law.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.
hi@scite.ai
10624 S. Eastern Ave., Ste. A-614
Henderson, NV 89052, USA
Copyright © 2024 scite LLC. All rights reserved.
Made with 💙 for researchers
Part of the Research Solutions Family.