Examination of fulfilling the duty to inform and liability for complications following surgery performed lege artis without the patient's consent. Commentary on the judgement of the Court of Appeal in Gdańsk of 9 June 2020, V ACa 89/20

Abstract

The judgment concerns the infringement of the patient's right to consent to surgery and the doctor's liability for complications arising from the surgery performed lege artis. In the author's opinion, the Court of Appeal duplicated the discretionary, or at least premature, conclusions of the Regional Court regarding the defectiveness of the patient's consent, which was of fundamental importance for the possibility to pursue claims for breach of patient's right and causing health disorder. Moreover, the liability of the defendant for health disorder was excluded, as the causality between the unlawfully performed surgery and complications was not observed, an unambiguous assessment of the patient's condition if the surgery had not been performed was not possible and the plaintiff failed to prove her claim. This commentary presents a different view and addresses mainly two issues: the court's examination of  fulfilling the doctor's duty to inform, and the causal link between the surgery performed lege artis without consent and the complications in the case of a patient with anatomical predispositions.