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HEALTHCARE LIABILITY DUE TO MEDICAL NEGLIGENCE. A PROPOSAL FOR SYSTEMATIZATION
This article aims to systematize the liability of public and private health institutions as a result of medical negligence, through a dogmatic analysis of the problem and the decisions of seventy rulings selected for the study, as they substantiate such liability in various ways or resolve different systematic assumptions. The article includes a conclusions section that highlights the main findings of the study.
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FUNDAMENTALS OF GERMAN MEDICAL LIABILITY LAW IN THE FIELD OF AESTHETIC SURGERY
The German medical liability law makes a distinction between the responsibility for treatment mistakes and responsibility for lack of information. Interventions in aesthetic surgery is, as a rule, a medical practice when the physician is below the standard in force in the respective special field of aesthetic plastic surgery. However, in the case of lack of information liability (tort) is based on bodily injury, according to the jurisdiction of German courts is inherent in any medical intervention in body or health status of the patient. However, bodily injury is not considered unlawful if the patient, after having been duly informed, has given valid consent (informed consent). Informed consent, which the treating party should give evidence at trial, can justify the bodily injury. In the aesthetic operations it is of practical importance, above all, the responsibility for insufficient information on the risks of the respective intervention. If aesthetic surgery, as no medical indication occurs often, the requirements for patient information are particularly stringent. In this sense, the jurisdiction requires a extensive, intense and sometimes “thoughtless” information about imminent risks, in the case of offset to some extent the purely “aesthetic indication” by the qualified patient consent after extensive information (intensely informed consent ). If it is found that the information was insufficient, doctors and hospitals may be liable for damages and ordered to pay compensation for personal injury.
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SOME ISSUES OF RISKY IMPLANTABLE MEDICAL DEVICES TO BE INCLUDED IN THE CONCEPT OF DEFECT UNDER THE EU DIRECTIVE 85/374 AND THE REGULATORY RESPONSE OF THE EU DIRECTIVE 2024/2853 ON PRODUCT LIABILITY
This article aims to raise some issues related to the inclusion of risky implantable medical devices in the concept of defect under Directive 85/374, which, having particular characteristics related to the risky interaction, the intended purpose of the product, the inherent risks, the potential damage they could cause, require an assessment adjusted to the particular circumstances of these products. The subject is approached from the point of view of the risky implantable medical device, its regulation from the administrative sphere and the sphere of civil liability, to finally analyse whether these issues were resolved or maintained in the new European regulation on defective products, Directive EU 2024/2853, which aims to contribute to the proper functioning of the internal market, while guaranteeing a high level of protection for consumers and other natural persons.
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CIVIL LIABILITY FOR DEFECTIVE PRODUCTS AND ‘DEVELOPMENT RISKS’ AS AN EXEMPTION: FROM THE REGULATORY FRAMEWORK ESTABLISHEDBY THE CHILEAN HEALTH CODE TO A GENERAL REGIME
This study examines the treatment that the national legislator has given to “development risks” in relation to civil liability for defective medical products, rejecting them as a ground for exemption from liability. Delving into the matter, it is questioned whether this exclusion should or should not be replicated in the formulation of a general regime for defective products, of which our national legal system still lacks. The search for an answer to this main question is supported by an analysis and evaluation of the benefits or disadvantages that the exclusion may pose for consumer interests, along with an analysis of the coherence of its establishment within a system of qualified strict liability and the potential issues it may raise in constructing the causal link.
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THE INCREASING RISK AS A COMPLEMENTARY CRITERION TO THE CREATION OF UNAUTHORIZED RISK IN CAUSATION IN LAW. AN ANALYSIS IN MEDICAL LAW
This paper, focused on medical liability, is intended to analyze how causation by omissions works. We affirm that the fault, in terms of creating a not allowed risk, is identified with the normative approach. Notwithstanding the foregoing, said intellectual projection of guilt and, consequently, of cau- sation by omissions context, is possible to be answered through other approaches. In this sense, it is proposed to address the objective imputation criterion called increased risk (also known as lawful alternative conduct). It is considered that the aforementioned concept is useful in contexts in which the guilty omission cannot be considered as the cause of the damage, since if the behavior under question had not been omitted, the tort would have taken place anyway. Hence, the creation of impermissible risks can be taken as a presumption of causation in law susceptible to defensible contradictory reasoning.