Autor: Ionuț VIDA-SIMITI
Publicat în:
Revista Dreptul nr. 10/2019
Revistă disponibilă online:
Condition of the existence of guilt in engaging the legal liability of the physician
The need to analyze the condition of guilt in engaging the legal liability of the physician does not result only from the ECHR Judgment in Ioniță Case, which ruled that the physician’s liability itself is based on the notion of medical negligence, but especially because of its specific aspects. According to recent practice, the intensity of medical guilt in the degree of culpa levissima is able to lead to de facto exoneration from criminal liability (through a symbolic sanction) in order to focus on repairing the victim’s prejudice. The consequence of changing the vision on the medical legal liability from a punitive-criminal liability of the physician to a reparative liability facilitates the perception of the French conception of the contractual liability of the health unit. This does not remove the personal liability of the employed physician, but limits it to a psychic attitude of elusion of the system of cooperation and control of the health unit, which brings it closer to the indirect intention. Hence the need to distinguish between indirect intention and guilt with forethought (recklessness), which in its turn is different from guilt without forethought (negligence).
Keywords: malpractice; negligence; imprudence; indirect intention; first degree murder; intentional bodily injury; abuse of service against the interests of persons; degrees of guilt; medical law; physician; nurse; medical risk; Lazăr Case; Ioniță Case; principal; agent;