The patient has the right...
Protecting the rights of the patient
The Law and WeThe most common violations of the patient's rights are:
- unjustified refusal to provide medical care (refusal to be hospitalized in a hospital, refusal to provide outpatient care, refusal to transfer from one medical institution to another, failure to provide medical care in emergency situations, in particular, related to road transport, industrial, household injury);
- provision of low-quality medical care;
- causing harm to the life and health of the patient during the provision of medical care;
- violation of conditions and treatment regimen;
- providing insufficient or incorrect information about the disease;
- disclosure of medical secrets;
- unjustified collection or demand for treatment fees;
- professional and official abuse by medical workers;
- defects in the design of medical documentation.
WAYS TO PROTECT THE RIGHTS OF THE PATIENT Institutions that are obliged to protect the rights of the patient are:
The patient can protect the violated rights independently or with the help of his representative. Adults (over 18 years old) and capable citizens – patients can independently protect their rights. Assistance can be provided by the Consumer Protection Society, other public organizations whose statutory purpose is to protect the rights of citizens.
Civil procedural capacity is understood as the ability to exercise their rights in court and entrust the conduct of the case to representatives. Civil procedural capacity belongs to citizens who have reached the age of majority and legal entities. The rights and interests of minors under the age of 15 and incapacitated are protected by their legal representatives - parents, adoptive parents or guardians. The rights and legally protected interests of incapacitated persons – minors aged 15 to 18 years, as well as citizens recognized as having limited legal capacity, are protected in court by their parents, adoptive parents or guardians, but the court is obliged to involve minors (incapacitated) themselves in such cases.
Thus, despite the fact that, in accordance with Article 31 of the law, persons over 15 years of age independently decide on medical intervention and refusal of it (they can appoint their representative, even in place of parents, and even prohibit reporting information about their illness to parents!), their rights can be protected in court not themselves, but only their legal representatives – parents, adoptive parents, caregivers.24
At the request of a citizen and on the basis of a power of attorney, individuals or legal entities can represent his interests (CFR, consumer protection committees, see section.3.4.2). In some regions, specialized units have been created in the CFR to protect the rights of insured persons. In addition, if the patient refuses to file a claim, the CFR can independently file a claim in the interests of this patient. Still, if the patient does not demand the restoration of violated rights, then today, probably, no one will do it. Moreover, it can be assumed that CFOs may not be the best representatives of the patient, since they have their own interests that differ from the interests of the patient.
There is a pre-trial (claim) and judicial (claim) procedure for the protection of violated rights.
RESPONSIBILITY OF MEDICAL WORKERS AND INSTITUTIONS
When seeking medical help, the patient expects to receive qualified and high-quality services. This means that, in accordance with the disease, a doctor with appropriate professional training should provide assistance, to the appropriate extent and using the right, benign means. In practice, it is not uncommon to provide unskilled care of unsatisfactory quality, the consequence of which may be unsuccessful treatment or harm to the life and health of the patient. In this sense, unqualified treatment (not in accordance with the way it is customary to do in modern medicine) is equivalent to causing harm, and it is possible to bring the guilty medical workers to justice. From the point of view of the legal assessment of the medical care provided (in order to establish the grounds for bringing medical workers or institutions to responsibility), it is customary to divide the adverse effects of treatment into:
The main criterion for their separation is the correctness or error of actions on the one hand, and, on the other hand, the reasons that caused these errors.
Medical errors are usually made due to objective reasons, circumstances. Among the causes of medical errors are the following:
There are also important circumstances that can play a major role in the onset of negative consequences: Extreme atypicity, rarity or malignancy of this disease or its complications.
These circumstances can also act as a background against which improper actions of medical workers are carried out due to subjective reasons.
An accident is an unfavorable outcome of medical intervention. Such a result, which cannot be foreseen, and, consequently, prevented due to objectively developing accidental circumstances (although the doctor acts correctly and in full compliance with medical rules and standard methods of treatment).
Professional offenses (crimes) are negligent or intentional actions of a medical worker that caused harm to the life and health of the patient.
The difference between a medical error and an offense lies in the causes and conditions of their occurrence. Medical errors are usually made due to the prevailing objective reasons and circumstances (lack of proper conditions for providing assistance, lack of time, insufficiently qualified personnel). Therefore, a distinctive feature of medical errors is the conscientiousness of the actions of the medical staff. The Supreme Court of the RSFSR ruled that medical institutions "cannot be held responsible for diagnostic errors caused by the complexity of the disease and independent of the attention and integrity of the staff. If these errors were the result of an unfair attitude to the work of medical personnel, then the medical institution is obliged to compensate for the damage caused to the patient's health due to the fault of its employees."
Professional offenses are characterized by:
- dishonesty of a medical worker (failure to provide assistance to a patient);
- illegal medical treatment, including the use of inappropriate methods of treatment, medical treatment in a specialty for which the doctor does not have a certificate;
- negligent attitude to professional duties.
In the case of professional offenses, it is possible to attract individual medical workers or medical institutions to various types of liability: administrative, disciplinary, criminal, civil (property). Officials and commissions and persons who are superiors in the service (at work) on the basis of job descriptions are brought to administrative and disciplinary responsibility of the doctor. Usually, with minor injuries, only disciplinary liability occurs, and in the presence of moral damage, civil (property) liability also occurs. With severe and moderate consequences for health, criminal liability for the causer and civil (property) liability ensue (minor harm to health, as a rule, is not subject to a specific monetary assessment, since it does not imply disability (compensation for lost earnings) and additional costs for restoring health). Material (civil) consequences occur for the employer of the hospital doctor Private practitioners will compensate for the damage (bear civil liability) independently, as they carry out their professional activities at their "own risk".
CIVIL LIABILITY
Civil liability is understood as responsibility (sanctions) associated with additional encumbrances for the offender (they say that this responsibility is compensatory in nature). Encumbrances may be in the form of imposing on the offender an additional civil obligation or deprivation of a subjective right belonging to him.
COMPENSATION OF LOSSES
The main form of civil liability, which has a general meaning and is applied in all cases of violation of civil rights, is compensation for damages.
Losses are understood as expenses that a person whose right has been violated has made or will have to make in the future to restore the violated right; loss or damage to his property (real damage); as well as unearned income that this person would have received under normal conditions of civil turnover if his right had not been violated (lost profit). Compensation for losses is aimed at restoring the property sphere of the victim at the expense of the offender's property.
The law provides for various ways to compensate for losses when defects in the performed service are detected:
The victim also has the right to terminate the service agreement and demand full compensation for damages caused to him due to the shortcomings of the service provided.
In accordance with the Civil Code and the resolution of the plenum of the Supreme Court, the approximate list of expenses to be reimbursed (in addition to compensation for lost earnings) looks like this: expenses for enhanced nutrition, purchase of medicines, prosthetics, outside care, sanatorium treatment, including the cost of travel (if necessary, not only the victim, but also the accompanying person), the purchase of special vehicles The cost of servicing the victim in everyday life (laundry, cleaning of housing, etc.). The need for additional expenses must be confirmed by the conclusion of the SME according to the rules provided for by the ITU – the need for special transport and so on. A victim in need of several types of assistance is reimbursed for all types of assistance.
In case of temporary disability, if the sick leave payments are less than the average monthly salary, then the medical institution is obliged to pay the difference. In case of permanent disability, the victim is referred to the ITU, where the percentage of disability is determined. Accordingly, if 50% of the working capacity is lost, the health facility is obliged to pay half of the average monthly earnings. If a disability is assigned, then, accordingly, a pension. The pension available to the injured patient before this is not taken into account, as well as additional earnings possible for the victim in the future.
If the patient died as a result of unlawful guilty actions (inaction) of medical personnel, then the disabled persons who were dependent on the deceased or who had the right to receive maintenance from him by the day of his death, as well as the child of the deceased born after his death, have the right to compensation for damage at the expense of the health facility.
Dependents include: minors and students before graduation from full-time educational institutions, but not older than 23 years; women over 55 years old and men over 60 years old for life; disabled persons for the duration of disability; spouse or other family member of the deceased, regardless of age, unemployed and engaged in caring for children, grandchildren, brothers, sisters deceased, under the age of 14, other disabled dependents.
The amount of compensable damage from the loss of the breadwinner is calculated from his average monthly earnings, minus the share attributable to himself and able-bodied citizens who were dependent on him, but who are not entitled to compensation for harm. In addition, all expenses related to treatment (what was spent before death) and in connection with death, including those related to burial, are reimbursed.
COMPENSATION FOR MORAL DAMAGE
It is important that in addition to compensation for property damage, the patient can receive compensation for non-property (moral) harm. Moral harm is expressed in the form of physical or moral suffering associated with incorrect, erroneous treatment or diagnosis. In particular, the disclosure of medical secrets brings mainly moral suffering. These sufferings constitute moral harm and are subject to compensation. Its size is determined by the victim himself, and there are no clear criteria for this. The court weighs moral damage based on the arguments of the plaintiff and the defendant.
THE PRACTICE OF BRINGING TO RESPONSIBILITY
In accordance with the Civil Code, the civil liability of doctors and medical institutions for compensation for damage caused by them to the health and life of citizens arises if proven:
An analysis of the practice of judicial reviews of claims of patients in recent years shows that proving all four points is a very difficult, almost impossible matter. In particular, the situation is difficult when the doctor took the wrong actions (was inactive), because he did not have the necessary knowledge for correct actions. In "normal" countries, this situation leads to the unconditional accusation of a doctor of manslaughter and even the loss of the doctor's right to work in his specialty. In our country, ignorance is traditionally considered an excusable circumstance (! – see above about an unpunished mistake). It remains to be hoped that this situation will change in the near future, since the certification of specialists that has been missing so far has finally appeared in the Russian Federation.
The possibility of bringing to responsibility for the claims of patients on the basis of the so-called "truncated" compositions of civil offenses is discussed. That is, we are talking about the possibility of civil liability without proof of the guilt of the harm-doer. As a result, when making a decision on the need for compensation for damage caused by the provision of services, the court will proceed from the concept of the connection of harm with the actions of the doctor, without examining the question of intent (guilt), which should dramatically change the entire course of the proceedings of medical cases. The consequence of this, of course, will be a sharp increase in the number of cases when doctors will be forced to compensate for the damage caused to the health of patients. To date, the "truncated offense" is used when considering disputes arising from the provision of low-quality paid medical services, because these relations are regulated by the law "On Consumer Rights Protection", which provides for a similar procedure.
It is important to know that even if it is impossible to prove the guilt of individual employees (doctors, nurses), but the connection of damage with treatment is proven, then the responsibility of the medical institution comes in full. Remember that the terms of the contract for the provision of medical services cannot infringe on your rights. For example, your consent to all possible complications, fixed in the contract, does not mean anything, because it infringes on your rights.
CRIMINAL LIABILITY
The basis for bringing to criminal responsibility is the commission of a crime – the most dangerous offense for society. A crime is such an illegal action (inaction) that is committed culpably – by intent or negligence. Criminal liability occurs only for those actions or omissions that are defined by law (CC) as a crime. The Criminal Code [23] provides for special compositions of professional negligence: causing death by negligence due to improper performance of a person's professional duties (Part 2 of Article 109); causing serious or moderate harm to health by negligence (Part 2.4 of Article 118).
One of the reasons for initiating a criminal case are statements and letters from citizens (their legal representatives). The prosecutor, the investigator, the body of inquiry and the judge are obliged to accept statements and reports about any crime committed or being prepared and make decisions on them within no more than 3 days from the date of receipt of the statement or message, and in exceptional cases – within no more than 10 days. Citizens' statements can be oral and written. The oral ones are recorded in the protocol, which is signed by the applicant and the official of the body of inquiry, the investigator, the prosecutor or the judge who accepted the application. The written application must be signed by the person from whom it comes, or by the legal representative of the person submitting the application in the interests of his ward.
The most dangerous crimes affecting the interests of the patient are:
A brief description of some of the elements of crimes is given in a note at the end of the text.
FILING A CLAIM
The claim form of a pre-trial appeal to a medical institution is not mandatory, although it is not prohibited by law. The claim is a requirement to the medical institution for the voluntary elimination of violations of the patient's rights. Possible types of claims:
The claim is submitted in writing and signed by the patient or his representative.
The claim should specify:
In case of presentation for reimbursement of expenses for sanatorium treatment, documents confirming its necessity must be attached (a copy of the sanatorium card according to which the patient was admitted to the sanatorium for treatment). The costs of additional meals are confirmed by a certificate from a medical institution about the recommended diet and the calculation of the cost of products. The more detailed and complete the calculations are made, and the more complete the documentation, the higher the chances of a positive decision by the administration of a medical institution or a court.
The original documents confirming the claims submitted by the applicant, or certified copies, or extracts from them, if these documents are not available from the other party, are attached to the claim. Therefore, there is no need to attach copies of the documents available at the hospital to the application to the chief physician. It is usually reasonable not to attach original documents to such a claim, the loss of which will deprive you of important evidence. Experience shows that such documents are often "lost" when considering a claim.
The documents confirming the circumstances stated in the claim are: The certificate of examination of the quality of medical care (compiled by an expert doctor, for example, an insurance medical organization or another expert), medical documentation (outpatient card, medical history) or extracts from it, the results of medical examinations, a disability sheet (a copy of it if the sheet is submitted to the accounting department for place of work). The claim for compensation for damage caused to the life and health of the patient is accompanied by the ITU conclusion on the degree of loss of professional ability to work and, in appropriate cases, on the victim's need for additional types of assistance. The applicant is not obliged to organize an examination of the quality of medical care himself – subjective confidence in his rightness is enough to file a claim. At the same time, this examination is most likely to be carried out by the FOMS experts at the request of the medical institution. It can be assumed that in this case, the conclusion may be less favorable for the health care facility.
The claims for damages to citizens who are entitled to compensation for the loss of a breadwinner are attached:
The claim is sent by registered or valuable letter, or is handed over against a receipt (for example, to the secretary of the chief physician of the medical institution). The claim is considered by the administration of the health facility within 30 days from the date of receipt. Based on the results of the consideration of the claim, the medical institution makes an appropriate decision. The decision is made by the order of the head of the health facility. The order must be motivated, it specifies the citizens to whom compensation for harm is established, its size for each family member and the payment terms. A copy of the order of the head of the health facility on compensation for damage is sent to the applicant together with the response to the claim.
The response to the claim is given in writing and signed by the head or deputy head of the health facility. The response to the claim indicates, in case of full or partial satisfaction of the claim, the recognized amount, the term and the method of satisfaction of the claim. In case of complete or partial refusal to satisfy the claim, the reasons for refusal with reference to the relevant legislation and evidence justifying the refusal.
FILING A CLAIM
A statement of claim (FROM) is a requirement to a judicial authority to protect the right of a patient violated in the provision of medical care (services) to him. A claim against a legal entity (medical institution) is usually filed at the location of the body (the official address of the medical institution) or the property of the legal entity (for example, the location of the polyclinic of a medical association).
Claims for compensation for damage caused by injury or other damage to health, as well as the death of the breadwinner, may be filed by the plaintiff at his place of residence or at the place of injury. Filing a claim at the place of residence is preferable. The fact is that due to the existing system of filing lawsuits at the location of the legal entity, the hospital administration always has a more or less close relationship with a specific judge conducting cases against this hospital. Perhaps such a judge will hardly be able to take your side in a controversial case, the interests of the hospital will be closer to him. On the contrary, you have reason to assume that the assessors will be more sympathetic to your interests in your district court.
FROM is usually subject to payment by state duty. The following are exempt from paying the fee in cases considered in courts of general jurisdiction: plaintiffs – in claims for compensation for damage caused by injury or other damage to health, as well as the death of the breadwinner; consumers – in claims related to violation of their rights. In other words, when applying for protection of your rights in connection with poor-quality medical care or other damage, you do not have to pay a fee.
FROM is filed with the court in writing. In FROM must be specified:
FROM is signed by the plaintiff or his representative. A power of attorney or other document certifying the representative's authority must be attached to the application submitted by the representative. The court will require you to have the original documents and you should take care of making copies for yourself. Copies of the most important documents should be notarized.
FROM is sent by registered correspondence to the court address or is transferred to the clerk's office of the court against receipt. FROM is submitted to the court with its copies according to the number of defendants. When filing a claim, the plaintiff is obliged to send to other persons participating in the case not only copies of, but also the documents attached to it, if they do not have these documents.
The judge alone decides on the decision on the civil case within 7 days.
The judge refuses to accept the application:
The defendant has the right to send a response to the court from with the attachment of documents confirming objections to the claim. This must be done in time to ensure the receipt of the review by the day of the case. The defendant's documents must contain evidence of sending copies of the recall and all documents that they do not have in advance to other persons participating in the case.
The defendant has the right to offer the plaintiff some compensation in order to settle the case before the court session by a "settlement agreement". This is a normal practice and it should not be neglected, because you cannot be sure that the case will win in court or that the court will agree with the size of your claim. In this case, you will be able to bargain with the defendant, but not with the judge. Russian courts are surprisingly cheap to assess the suffering of citizens, and if you estimate your moral damage in tens of thousands of rubles, at best you will be compensated in the amount of one or two thousand. The settlement agreement has an important drawback – if the defendant does not comply with it, the court will force him to do so by issuing a writ of execution, but only in the amounts contained in the settlement agreement.
Decisions of all courts of the Russian Federation, except for decisions of the Supreme Court, may be appealed in cassation (i.e. in case of dissatisfaction with the decision) by the parties (plaintiff, defendant) and other persons involved in the case, or representatives of the parties. A judicial representative (lawyer, legal adviser, etc.) has the right to file a cassation appeal against a court decision, if this authority is stipulated in the power of attorney issued by the represented. Legal representatives (parents, adoptive parents, guardians and trustees) may perform all procedural actions on behalf of the represented, including the right to appeal the decision independently, without having a special power of attorney. A cassation protest may also be brought by the prosecutor or his deputy.
Cassation complaints and protests are brought through the court that issued the decision. Filing a complaint or protest directly to the cassation instance (for example, to the regional court against the decision of the city court) it is not an obstacle to the consideration of a complaint or protest. A cassation appeal or protest may be filed within ten days after the court makes a final decision. A complaint or protest filed after the expiration of the specified period is left without consideration and returned to the person who filed the complaint or protest. The beginning of the specified period is the day following the day of the final decision, and not the day of delivery or sending to the parties and other persons involved in the case, a copy of the decision on the case.
The court, having considered the case in cassation, has the right to determine:
The ruling of the court of cassation instance is not subject to appeal and enters into legal force from the moment of its issuance. The ruling of the court of cassation instance, which has entered into legal force, can be reviewed only by way of supervision and by newly discovered circumstances.
PATIENT RESPONSIBILITY
A capable patient during treatment is responsible for the damage that he will cause to another person or institution in the usual manner. In other words, in the event that he does not prove the absence of his guilt.
A minor patient under treatment (under 14 years of age) he may cause harm and, since he was under the supervision of the medical institution at that time, he is responsible for the harm caused to the medical institution if he does not prove the absence of his guilt. If the parents and the medical institution are guilty, then financial responsibility comes in shares, respectively, the fault of each party, by court decision.
A guardian or an institution that is obliged to supervise him is responsible for the damage caused by an incapacitated citizen.
PRACTICAL ADVICE TO THE PATIENT
Portal "Eternal youth" http://vechnayamolodost.ru24.12.2012