Analysis of medical malpractice cases : Focusing on the violation of doctors’ duty of explanation

The number of medical malpractice lawsuits filed each year in Hungary has considerably increased since 1990. The judicial decisions and practices on determining and awarding wrongful damages recoverable for medical malpractices in the Hungarian civil law have been developing for decades. In the meantime, a new Hungarian Civil Code (Act V of 2013) has entered into force, which among others, necessitates the revaluation of assessment of damages recoverable for medical malpractices. There are two main areas where fundamental changes have been introduced, which may significantly affect the outcome of medical malpractice lawsuits in the future. In the early stage of medical malpractices it was unclear whether the courts had to consider either the contractual relationship between patients and healthcare providers (contractual liability) or general codal articles on damages arising from non-contractual liability/torts (delictual liability) in their judgement delivered in the cases. Both the theoretical and practical experience of the last ten years shows that healthcare services agreements are concluded between healthcare providers and patients with the aim and intention to provide appropriate professional healthcare services to patients, which meet patients’ interests and wishes. The medical service is violated if it fails to meet patients’ interests and wishes as well as the objectives of the agreement. Since the new legislation implies a stricter liability for damages in the case of breach of contract and stricter rules for exempting the party in breach from compensation obligations, the opportunities to exempt healthcare providers from these obligations have become limited compared to previous regulations. This modification, which was aimed at further integrating the established judicial practices into legislation, stipulates the application of the rules for liability for damages resulting from medical malpractice in non-contractual situations. This paper analyses dogmatic and practical problems related to this topic. Another important area of current analysis is the institution of injury fees, which replaced the reimbursement of non-pecuniary damages. The mere fact of infringement allows setting injury fees. Taking into consideration the current resources in staff and equipment available in healthcare, this regulation may promote claims for injury fees impartial. Consequently, courts will have to apply other criteria when judgment in ‘trivial cases’, which might not require legal assessment, is delivered. Orv. Hetil., 2014, 155(38), 1510–1516.

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