Contractual and non-contractual elements of medical care

Abstract

The aim of the study is to highlight the differences between contractual and tort liability regimes and their practical consequences for the parties and to analyse the relationship between medical legislation and the general rules contained in the civil law codes. The thesis is that this link is crucial for determining the position of the patient and the medical subject, and the independence of some specific regulations significantly modifies the content of obligations arising either as a result of the patient's consent to be taken care, or only as a result of causing him damage subject to the obligation to make good. The article analyzes the legal nature of the medical care relationship, its establishment, the rights and obligations of the entities involved and the issue of direct application of civil law norms, which raises systemic doubts. The basic directive of interpretation can be summarized in such a way that, when these relationships are regulated in an autonomous and self-sufficient way, the application of the general norms is not allowed, because it would mean ignoring the established priorities which are of a guarantee for the respect of the rights of the patient. The most important rights of the patient and the obligations of the medical party are defined by professional regulations, and the agreement of the parties may modify them to a very limited extent and in such a way that it does not contradict their essence and jurisdiction based on the full autonomy of the patient to decide on his own health. Therefore, it is a misunderstanding to impose on the patient the obligation to "co-operate”. There is formal equality between the parties, but the therapist has no autonomy of will, only legal obligations. Under the general health insurance, the patient has been given the bond entitlements resulting from the pactum in favorem tertii between the NFZ and the healthcare unit, except that they only concern access to contracted services. A more detailed definition of a medical activity, especially a surgical one, needs to be agreed on the basis of the collected history and test results. A critical review of the contractual and bond concepts leads to the conclusion that the parties' agreement is not a solution that would ensure an optimal balance of interests. There is no basis for it to be seen in relation to a patient who is covered by public health insurance, because for this purpose a consensual intention to contract (animus contrahendi) would have to be established at the outset. It can only be established in the area of above-standard services, because there the medical party offers to purchase a particular good and the patient consciously decides to bear its cost. It is an accessory contract to the insured benefit. Within its limits, it is also possible to indirectly ensure a certain effect of the therapy, especially as the diligence of certain activities is assessed in terms of the result. The hypothetical objective responsibility of the physician for defects of the medical device used is wrong, because it is disproportionate. Seeking a contract where there was no intention to conclude it is, in the light of the arguments given, an idle effort and unnecessary in terms of protecting the interests of the parties. From a material law perspective, the situation of the patient as a party to the contract is in no way better than the position of the beneficiary of the contract in favor of the third party. The factual and legal specificity of the relationship between the patient and the healthcare units allows the conclusion that it is a relationship of a caring nature.