Specifying the indefinite legal concept of unlawfulness as element of the physician’s tort liability (Evaluation criteria - Typology of duties)

Doctoral Dissertation uoadl:2800039 15 Read counter

Department of Law
Library of the School of Law
Deposit date:
Mamas Loukas
Dissertation committee:
Αυγουστιανάκης Μιχάλης, Καθηγητής, Νομική Σχολή ΕΚΠΑ
Πελλένη-Παπαγεωργίου Ανθή, Καθηγήτρια, Νομική Σχολή ΕΚΠΑ
Χριστακάκου-Φωτιάδη Καλλιόπη, Καθηγήτρια, Νομική Σχολή ΕΚΠΑ
Δακορώνια Ευγενία, Καθηγήτρια, Νομική Σχολή ΕΚΠΑ
Λέκκας Γεώργιος, Αναπληρωτής Καθηγητής, Νομική Σχολή ΕΚΠΑ
Νικολόπουλος Παναγιώτης, Επίκουρος Καθηγητής, Νομική Σχολή ΕΚΠΑ
Τσολακίδης Ζαφείριος, Επίκουρος Καθηγητής, Νομική Σχολή ΕΚΠΑ
Original Title:
Η εξειδίκευση της αόριστης νομικής έννοιας του παρανόμου ως προϋπόθεσης της ευθύνης του ιατρού από αδικοπραξία (Αξιολογικά κριτήρια για την εξειδίκευση - Τυπολογία υποχρεώσεων)
Translated title:
Specifying the indefinite legal concept of unlawfulness as element of the physician’s tort liability (Evaluation criteria - Typology of duties)
The objective of this doctoral thesis is to specify the indefinite legal concept of unlawfulness in tort liability of physicians, when they are providing medical care services. Specifying the unlawfulness is attempted by reference to physicians’ duties of care and by drawing -via inductive method- the crucial evaluation criteria. The norms by which medical duties are established can be distinguished -based on the criterion of abstraction and generalization degree of their formulation- into three categories: The specific norms, the norms of medical ethics and the general clause of good faith. In line with that tripartite separation of the norms, approaching the norms in the study is also attempted in a stepwise way.

This study begins in § 2 with cases where the legislative intervention is specific. In the first part (A), there is a presentation -by categories and indicatively- of certain legislative provisions, as examples of a more intensive positivation of law. Those are specific norms introducing standards on how specific medical acts must be carried out (under 1) and norms pertaining to the technical part of certain medical acts (under 2). In the second part (B), the evaluation criteria deriving from the inductive approach of the specific evaluations existing in the norms are pinpointed and it is ascertained that specific norms can be effortlessly interpreted and applied. The legislator’s evaluations existing in the specific norms are crucial for their objective-teleological interpretation and can further serve as guidelines in the process of forming the content of equal, in terms of evaluation, duties (of medical care), which are drawn by concretizing an indefinite legal concept or a general clause within the medical liability system.

§ 3 focuses on specifying unlawfulness by reference to Medical Ethics Code norms that fall within the scope of the study as well as to articles 24 and 25 of the recently repealed E.L. 1565/1939, which (the latter articles) retain their significance within the framework of interpreting the current Medical Ethics Code, as a reference to the history of that code. Medical ethics norms are “intermediate norms”: being worded using indefinite legal concepts, they express “what ought to be done” at an intermediate level of abstraction and generalization. Ethics norms, being a more specific legislative expression of good faith imperatives compared to the said general clause, can -after being transformed into a norm that is eligible for subsumption via concretization of their indefinite legal concepts- contribute to specifying the unlawful medical act, a specification which is necessary to apply art. 914 C.C.

At the third level of the study (§4), the aim is to specify duties of care whose sedes materiae is the general clause of good faith. The method of typing (typology making of) cases and of inductively -by type- approaching the courts’ evaluations found in the minor premise of the judicial syllogism of the decisions is applied in § 4 of this study as the safest and most appropriate method of specifying the general clause of good faith. Τhis method leads to a typology of duties (under B) based on the intensity and the form of the duty of care in the different stages of the doctor-patient relationship:
1. Medical duties at the stage of diagnosis
2. The duty not to undertake the case nor to continue treating the patient in case of physician’s personal inadequacy or insufficiency of means and (the duty) to refer the patient to a colleague or hospital
3. Duties of lege artis treatment and protection of the patient when a doctor in specialty training participates in the treatment
4. The duty to provide complete (regarding the aspect of time) medical treatment
5. Duties of care for the safety and success of the medical act
6. The duty to select the appropriate method at the stage of treatment
7. The duty to perform the therapeutic medical act lege artis
8. The duty to withdraw medical tools and material from the area of operation
9. The duty to protect the person who is subjected to a medical act against the risk caused by the malfunction of the medical machine
10. The duty of “therapeutic informing” and “safety informing”.
The main conclusions of § 4 are briefly presented in part C. Under 1: the method of typing (typology making of) cases and of inductively approaching the courts evaluations allowed indeed to formulate specific duties of care with the necessary safety; by specifying good faith imperatives to be applied in medical practice, the courts mould the crucial -by case groups- duties of care for the application of these imperatives, thus contributing to forming the current medical liability law. The grouping of court decisions corresponds to a common idea about the crucial stages of medical treatment, which can be distinguished according to a based on the “teachings of common experience” typing of the circumstances and the sources of endangering the patient. Under 2, the crucial evaluation criteria for a case typology of medical duties of care are pointed out briefly.

The study is completed with the presentation of the general conclusions in § 5. In the first part, the evaluation criteria that emerged from inductively approaching the study material are pinpointed in a higher abstraction grade. In the next two parts, the conclusions about the relation of unlawfulness as breach of duties deriving from the general clause of good faith, to the negligence (culpa), which is defined in art. 330 subpar. b C.C. as grade of fault (i.e. legally disapproved mental stance), and about the (judicial) forming of the measure of medical diligence, respectively, are briefly presented.

Regarding the measure of medical diligence, this study attempts to bring out that it is in accordance with art. 330 subpar. b C.C. to distinguish special circles within the circle of all physicians. Those are the circle of the physicians who only have degree in medicine and then by medical specialty, the circles of doctors in specialty training, the circles of specialized doctors and the circles of highly skilled specialized doctors as long as in the last case the higher treatment is offered to the public as such against a much higher than the usual fee. Model of diligence is the average member of the medical circle to which the acting person belongs.
Main subject category:
Law and Legislation
Other subject categories:
Medical Law
Medical malpractice, Medical liability, Physician, Doctor, Delictual liability, Torts, Unlawfulness, Negligence, Fault, General clause of good faith, Typology, Case law, Duties of care, Medical act, Code of Ethics, Medical Ethics, Patient, Treatment lege artis, Rules of medical science, Evidence based medicine, Guidelines, Diagnosis, Reference to specialist, Doctor in specialty training, Observation of the patient, Selection of method, Foreign objects, Defective equipment, Evaluation criteria
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