Our study aims at drawing the central coordinates of the system for determining the professional liability of the doctor according to Law no. 95/2006. In this approach, we started by making a brief introduction to the issue, setting the physician’s obligations in the medical act and defining the legal notion of “medical malpractice.” Next, we addressed issues related to launching and conducting proceedings before the Commission for monitoring and professional competence for malpractice cases. Finally, we have come to grasp some shortcomings of the procedure under review.
1.Definition, regulation, general considerations
In practicing the profession, according to the Code of Ethics, the physician is obliged to protect the physical and mental health of man, to relieve suffering, to respect the life and dignity of the human person without discrimination, by observing deontological and legal norms that establish the minimum morality specific to the exercise of this profession. Breach of such ethical standards, insofar as it jeopardizes the values defended by law, may entail civil liability of the physician for malpractice.
Medical malpractice is defined in art. 642 of Law no. 95/2006 on healthcare reform, as professional misconduct in the exercise of the medical or medical-pharmaceutical act, generating harm to the patient, involving the civil liability of the medical personnel and the provider of medical, sanitary or pharmaceutical products and services. A Paul Marriett personal injury attorney can tell you all about the regulations.
Explaining the definition provided by the legal text, it can be stated that medical malpractice represents unprofessional behavior, inferior to standards of competence and public understanding established and accepted by the professional body, based on negligence or incompetence and generating deficient care with negative consequences for the patient.
The doctor is civilian responsible for damages caused by error, including negligence, recklessness, or insufficient medical knowledge in the exercise of the profession, through individual acts in the prevention, diagnosis and treatment procedures.
Thus, to engage the liability of malpractice physicians, both illicit acts committed intentionally,and committed offenses are taken into account. Although the doctor’s guilt can embody the form of intent, most acts of malpractice are committed at fault, which is often the guilt for guiding the medical staff.
Article 668-674 of Title XV of Law no. 95/2006 establishes a particular procedure for determining cases of professional liability for doctors, pharmacists and other persons in the field of healthcare. It is necessary to specify that this procedure only concerns the civil liability of the doctor. In art. 673 par. (2) of the law expressly provides that this procedure for the determination of malpractice cases not prevent free access to justice under common law. Read this.
According to the legal provisions mentioned above, patients who consider that they have suffered such harm can address the Monitoring and Professional Competence Committees for malpractice cases organized at the level of the public health departments of each county and Bucharest. This Commission may be notified by a person who considers himself a victim of malpractice committed in the course of prevention, diagnosis,and treatment or the survivor of a deceased person as a result of negligence for prevention, diagnosis,and treatment.
Once notified, the Commission has the power to determine by a decision whether or not there is a case of malpractice without having any decision-making power to oblige the doctor to pay damages. The role of the Commission is limited to establishing the existence of the malpractice case, and if its decision is in the sense of such a case, the injured person will have to make use of the decision in court, and at the same time ask the competent court to charge the responsible doctor compensation.
- Proceedings before the Commission for monitoring and professional competence for malpractice cases
From the outset, it is necessary to state that the right to claim compensation for damage by the person who is deemed to be the victim of an act of malpractice is forbidden within three years from the date on which the accident occurred.
The triggering of this procedure provided for in art. 668-674 of the Law no. 95/2006 takes place with the Commission’s notification of a concrete situation to establish the existence or non-existence of a malpractice case by persons who consider themselves victims of a malpractice action or the person’s successors.