Remedying Patients for Moral Harm Arising from an Infringement of Patients’ Rights
Keywordspatients' rights, compensation, non-pecuniary loss, personality rights, informed consent, wrongful birth claims
The subject matter of the paper is the pecuniary protection of patients’ rights in non-personal injury cases. The paper distinguishes between cases where the infringement of patients’ rights coincides with the infliction of physical injury (compensable damage), creating pecuniary claims, and cases where the violation of patients’ rights does not result in any damage (non-personal injury cases). On what basis should the patient be protected in the latter situation? The Author endorses the Polish solution contained in Article 4 of the Act on Patients’ Rights. A person who has suffered a violation of patient rights, regardless of whether he or she sustained any damage, has an explicit claim for pecuniary compensation that is separate from a claim for reparation of moral harm due to personal injury. Such a claim protects the dignity, privacy and autonomy of a patient, regardless of the diligence and effectiveness of any medical intervention. This paper examines the application of this rule by the Polish courts. The rule reflects the theory that most patients’ rights are civil personal interests that merit an express rule for their protection in order to abolish the requirement of proving that a certain right is recognized as a protected interest. The new Polish Act on Patients’ Rights follows the above rule. However, negligence should be the precondition of the liability.
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