Abstract

In the commented ruling the Appellate Court found that unlawfulness of a surgical procedure is excluded by patient’s consent, which should be informed, however. Prior to getting such consent the doctor is obliged to describe the surgical technique, the post-surgical consequences and potential complications to the patient. If it is possible to carry out an operation by several methods, the doctor must present each one of them, their consequences and dangers, but the method itself should be selected by the patient, whose decision is binding for the doctor notwithstanding whether they agree with it or not. In the situation whereby the patient has not been informed of an alternative operating method, the consent may not be considered as informed because the patient has not made a selection and therefore unlawfulness of a medical intervention is not excluded, which gives rise to hospital’s liability for damages. The ruling stressed the difference between claims for violation of patient’s right and claims for health impairment and bodily injury. In the comment the position of the Appellate Court has been approved, stressing the importance of information given by the doctor for the effectiveness of patient’s consent. It has been also indicated that pursuant to Art. 361 of the Civil Code that the injuring party is responsible exclusively for the normal consequences of their conduct, and the causal link plays a dual role: 1) legitimates the claim, and 2) limits the claim. Therefore, the injuring party is not liable for damages outside of the limits of normal causality.