Issue 2/2020

Criminal law aspects of medical error and medical malpractice. The case of Serbia and Slovenia

Author: Dejan C. Rešetar
Bar Association of Vojvodina

ABSTRACT
Human health is seen by criminal law as an important protective object. Although the goal in everyday doctors’ practice is to improve the health and to cure the patient, sometimes there are cases of medical error. In this paper the author first discusses the definition of the term medical error, looks at the basic division and separates the concept of medical error from similar concepts such as unfortunate results and complications. A medical error will exist if a causal link is established between the doctor’s action and the serious impairment of the patient’s health, or a fatal outcome. In order to avoid medical errors, a doctor is obliged to explain to the patient the possible risks involved in the treatment, as well as the risks during surgery and postoperative care, as well as to obtain consent from the patient. The author further discuss the specific criminal offence – Medical malpractice and systematically analyses the criminal act, as found in the criminal law of the Republic of Serbia and the Republic of Slovenia. He underlines the similarity of the criminal sanctions proscribed by the laws of Serbia and Slovenia. Further, he concludes that the specific criminal act is delicta propria, because the number of persons who may be found in the role of perpetrator is very narrow and specific.
Keywords: medical error in criminal law, medical accident, medical complication, causation, patient consent, medical malpractice

Issue 2/2020

Bioethical aspects of Criminal law regulation of necrophilia in the Republic of Croatia

Authors: 
Tomislav Nedić, Ph.D.; Centre for Integrative Bioethics, J. J. Strossmayer University of Osijek
Luka Janeš, Mag.; University Centre for Integrative Bioethics, University of Zagreb

ABSTRACT
Necrophilia is one of the most taboo segments of the psychopathological, but also of the legal, categories, whereat issues of acts against the (deceased) human body and its desecration, but also the phenomena of life and death per se, are coming to the fore. This paper seeks to contribute to the evaluation of certain problematic legal and (bio)ethical segments related to necrophilia, primarily by using a case law method, a formal-logical legal method, as well as the method of linguistic interpretation of law, as argumentative aids for the analysis of the criminal law regulation of necrophilia. Also, a bioethical sensibility will be implemented in the aforementioned discourse – the intentional subject attribute of integrative bioethics49, for the purpose of orientation and emphasis of the responsibility towards a person’s life as the fundamental deontological paradigm of certain law procedures.
Keywords: necrophilia, the offense of violating the peace of the deceased person, desecration of the body, personality disorder, bioethical sensibility, Körper/Leib

Issue 2/2020

Legal dilemmas of maternal brain death. The case of Marlise Muñoz

Author: Jagoda V. Drljača
Institute of Social Sciences, Belgrade

ABSTRACT
The subject of this article is a case that occurred in Texas in 2013, which has caused great debate between medical and legal professionals, and has stirred public concern. Marlise Munoz, 14 weeks pregnant, suffered a massive pulmonary embolism which resulted in brain death. Marlise’s will had been that in the case of irreversible brain damage, doctors don’t somatically support her. Despite Marlise’s will, as announced by her husband Eric, and confirmed by her parents, doctors decided to keep her on artificial life support until delivery, or while the fetus is viable. The reason for this decision had been found in the Texas Advance Directives Act (TADA). The main problem with this regulation and interpretation thus set is the collision between the rights of the individual who has made a decision about their physical integrity and the right of the fetus to continue to develop. In this case, no account was taken of the brain anomalies and damages that the fetus would suffer, developing from week 14 inside a brain-dead mother on life-support. The aim of this research is to analyze advance directives, whether the regulations derogate a living will when the patient is a pregnant woman, and the justification for the derogation, with special reference to the controversial TADA. In the concluding considerations, I will analyze which legal and ethical dilemmas arise in these cases.
Keywords: brain death, advance directives, pregnant woman, dignified death, Texas Advance Directives Act (TADA)

Issue 2/2020

Expert medical assessment of compensation allotted for permanently increased needs

Authors:
Zoran Ivanov, Ph.D.; Association of Forensic Experts „Vojvodina”, Novi Sad
Veselin Govedarica, Ph.D.; Association of Court Experts in Occupational Health, Belgrade

ABSTRACT
Article 195 of the Law on Contracts and Torts regulates the redressing of damages in case of bodily injury or damage to health. One of the types of damage compensation is the annuities which can be awarded to the injured party, if their needs are permanently increased (as stated in (2) of the Article). A person is defined as having permanently increased needs if their health is damaged, or their activities of daily living are lessened, in such a way that they are no longer able to independently perform these activities, or can only perform them with increased labour. As a rule, such a person relies on another person in performing the activities of daily living. In the court process, when the injured party is seeking annuities in the name of custodial care due to permanently increased needs, alongside medical documentation, bills for services, transport and similar, are presented as evidence; while the time allotted for custodial care is determined according to the assessment of the medical expert. Without clear guidelines on how the assessment is done and the factors involved, the assessment of the expert instils distrust in the subjects of the proceedings. The aim of the paper is to provide a new, more reliable and more precise approach to the assessment of the time allotted for custodial care. The paper lists the reduced values of the effects of the injuries from highest to lowest, in order to determine the optimal time for custodial care. The basic activities which do not require assistance – the passive component, such as sleeping, resting in bed, sitting on sofa or lounge chair, are differentiated from activities where custodial care is necessary – the active component, such as performing physiological needs, bathing, cutting the hair and nails, dressing and undressing, and putting on footwear. Observing the active part of the activities of daily living in relation to the reduced values of the effects listed ascertains the optimal time required for custodial care.
Keywords: custodial care, expert medical assessment, listed functional deficit, optimal time

Issue 2/2020

Expert medical assessment of compensation allotted for permanently increased needs

Authors:
Zoran Ivanov, Ph.D.; Association of Forensic Experts „Vojvodina”, Novi Sad
Veselin Govedarica, Ph.D.; Association of Court Experts in Occupational Health, Belgrade

ABSTRACT
Article 195 of the Law on Contracts and Torts regulates the redressing of damages in case of bodily injury or damage to health. One of the types of damage compensation is the annuities which can be awarded to the injured party, if their needs are permanently increased (as stated in (2) of the Article). A person is defined as having permanently increased needs if their health is damaged, or their activities of daily living are lessened, in such a way that they are no longer able to independently perform these activities, or can only perform them with increased labour. As a rule, such a person relies on another person in performing the activities of daily living. In the court process, when the injured party is seeking annuities in the name of custodial care due to permanently increased needs, alongside medical documentation, bills for services, transport and similar, are presented as evidence; while the time allotted for custodial care is determined according to the assessment of the medical expert. Without clear guidelines on how the assessment is done and the factors involved, the assessment of the expert instils distrust in the subjects of the proceedings. The aim of the paper is to provide a new, more reliable and more precise approach to the assessment of the time allotted for custodial care. The paper lists the reduced values of the effects of the injuries from highest to lowest, in order to determine the optimal time for custodial care. The basic activities which do not require assistance – the passive component, such as sleeping, resting in bed, sitting on sofa or lounge chair, are differentiated from activities where custodial care is necessary – the active component, such as performing physiological needs, bathing, cutting the hair and nails, dressing and undressing, and putting on footwear. Observing the active part of the activities of daily living in relation to the reduced values of the effects listed ascertains the optimal time required for custodial care.
Keywords: custodial care, expert medical assessment, listed functional deficit, optimal time

Issue 2/2020

Expert medical assessment of compensation allotted for permanently increased needs

Authors:
Zoran Ivanov, Ph.D.; Association of Forensic Experts „Vojvodina”, Novi Sad
Veselin Govedarica, Ph.D.; Association of Court Experts in Occupational Health, Belgrade

ABSTRACT
Article 195 of the Law on Contracts and Torts regulates the redressing of damages in case of bodily injury or damage to health. One of the types of damage compensation is the annuities which can be awarded to the injured party, if their needs are permanently increased (as stated in (2) of the Article). A person is defined as having permanently increased needs if their health is damaged, or their activities of daily living are lessened, in such a way that they are no longer able to independently perform these activities, or can only perform them with increased labour. As a rule, such a person relies on another person in performing the activities of daily living. In the court process, when the injured party is seeking annuities in the name of custodial care due to permanently increased needs, alongside medical documentation, bills for services, transport and similar, are presented as evidence; while the time allotted for custodial care is determined according to the assessment of the medical expert. Without clear guidelines on how the assessment is done and the factors involved, the assessment of the expert instils distrust in the subjects of the proceedings. The aim of the paper is to provide a new, more reliable and more precise approach to the assessment of the time allotted for custodial care. The paper lists the reduced values of the effects of the injuries from highest to lowest, in order to determine the optimal time for custodial care. The basic activities which do not require assistance – the passive component, such as sleeping, resting in bed, sitting on sofa or lounge chair, are differentiated from activities where custodial care is necessary – the active component, such as performing physiological needs, bathing, cutting the hair and nails, dressing and undressing, and putting on footwear. Observing the active part of the activities of daily living in relation to the reduced values of the effects listed ascertains the optimal time required for custodial care.
Keywords: custodial care, expert medical assessment, listed functional deficit, optimal time

Issue 2/2020

The right to refuse medical treatment and passive euthanasia

Author: Tijana Đurđević
Bar Association of Vojvodina

ABSTRACT
Having in mind the obligation of a physician, as stipulated in The Law on Patients’ Rights, to respect the will of the patient even when the will is directed toward the refusal of life-sustaining medical treatment, as well as the misdemeanor liability of a physician, prescribed by the same law, for treatment without informed consent, the paper considers how the patient’s right to refuse medical treatment affects the physician’s responsibility for the patient’s death in terms of the provisions of The Criminal Code. Also, the paper analyzes whether in certain situations the physician is even able to comply with the provisions of both of the mentioned regulations, or whether the harmonization of legal solutions is needed.
Keywords: refusing medical treatment, passive euthanasia, informed consent, medical law, criminal law

Issue 2/2020

An introduction to Medical law according to the Positive law of the Republic of Croatia, with sources and founding principles

Authors:
Atila Čokolić, Ph.D.; Croatian Bar Association
Dunja Čokolić Petrović, Dr.; Clinical Medical Center, Osijek, Department of Paediatrics

ABSTRACT
In this paper, the authors define Medical law and give an introduction into the subject matter by using the Positive law of the Republic of Croatia. In the second chapter, the authors list the sources of Medical and Health law, especially as they relate to paediatric medicine, thus separating the international and domestic sources of law. Later, they explain the legal descriptions of the founding principles of Medical and Health law. This paper focuses on explaining the legal responsibilities of doctors and other medical practitioners towards other persons, which may occur during their regular practice, or due to errors on their part. The responsibilities are explained in detail in the basic legal divisions; as such, there are criminal, misdemeanour and disciplinary responsibilities on one hand, and civil liability for damages incurred while providing medical services on the other. The legal obligations of all healthcare sector employees are further explained, and the paper also contains an overview of the specific criminal offences from Title XIX of the Criminal Code, titled „Offences Against Human Health”. Later, the authors deal with the rights of patients in the Republic of Croatia and the legal regulations relating to them. The paper focuses on the rights of underage patients, where the legal regulations are explained according to the Family act and the Act on Protecting the Rights of Patients.
Keywords: Medical law; founding principles; sources of Medical law in the Republic of Croatia; legal responsibilities of doctors; patients’ rights; the consent of an underage patient to medical treatment