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Physicians responsibility in the case when it is not enough certain that his fault caused damage to the patients’ health


Firstly, author talks about the difficulties proofing of the casual link between physicians’ fault and deterioration of the patients’ health or death. He points out the proofing easements, which are approved to suing patient by German courts. Their opinion on moving the burden of proofing of casual link from the appellant to the accused, in the case when the sever faults, is specially explained. In these cases German courts start from the assumption that the causal link between the fault and the damage exists and they admit right of the physician to dispute this assumption. Since the positive result of this disputing is mainly impossible, sever physicians’ fault compensates the uncertainly of the casual link, and that is why the patient gets the total damage compensation (principle ‘all or nothing’).

However, author emphasizes that courts of some other countries and especially French and American, consider that principle ‘all or nothing’ does not enable always the fair dispute resolution. In the case when casual link between the physicians’ fault and the patients’ damage is not certain enough, French and American courts admit just the partial damage compensation to the appellant. This is justified with the theory on the ‘loosing of chance’. It is about the loosing of chance for being health again or chance to survive, which the patient would have in the case that his treatment had been correct. Since that chance is not one hundred percent, but less then this, the awarded damage compensation can also not be complete, but only partial, i.e. in proportion with the chance.

As the conclusion, author supports the implementation of the theory on the lost chance for being health again, i.e. for surviving. He thinks that this theory should be implemented in every case in which the casual link between the physicians’ fault and the patients’ damage is not certain enough, under condition that it is about the considerable chance. Namely, if the physicians and the health institutions, for the case of not-certain-enough casual link, are exempted from civil responsibility, it can waken their attention during working patients.

Jakov Radišić


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