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Malpractice, a controversy of medical law

At the moment the medical field experiences a lack of medical malpractice regulations in the national legislation. This deficiency leads to the creation of defensive medicine because there is no filter in the malpractice legislation for physicians to protect themselves in case of abuses. The accusations of malpractice became a routine lately, and the doctors are disadvantaged merely only by the unresolved accusation itself, which most often due to a lack of clear regulations is solved contradictory.

The consequence of the lacunar regulatory of medical malpractice, leads to the development of defensive medicine which is detrimental not only to the doctor, but also to the patient and to the whole health system, leading to increased costs, deficiencies of liability of the insurers, with a high risk in the evolution and development of the health system. The legislation currently governing malpractice it is very confused and contains inadequate terminology which creates a false idea of impunity for health practitioners.

Today the malpractice legislation is not unitary, being found in several acts, not structured into one law, disfavoring the interests of the subjects which are concerned by these regulations. Regulating malpractice in a single act will be a beneficial step for subjects envisaged by these regulations, as they could understand and could be aware of all the correlative rights and obligations incident when a medical malpractice case occurs.

“It is very important to establish clearly what obligations does the doctor has regarding the patients, because doctors like lawyers, must submit all their efforts and all science and medical means to obtain a result, but are not required to get that result. However, there is a group of physicians who are under an obligation of result, namely aestheticians, dealing with changing the image of a person. Also, the surgeons are also another category of doctors who are highly exposed to malpractice lawsuits, given the risk they face on the daily basis, through the nature of their activity.

A big disadvantage for the physicians is the fact that the medical malpractice case is not truly judged by the medical malpractice commission but by the investigation bodies, based on criminal procedure provisions and not on the specific malpractice legal provisions, as these are very unclear. This commission is indeed required to analyze and find the existing crime, the guilt and the link between the act and the result produced. However the Criminal Procedure Code has a provision whereby the decisions which are pronounced by the medical malpractice commission and by the civil courts regarding malpractice case does not have a “res judicata” power in front of the criminal investigation bodies.

“Therefore, this regulation may give the false impression that once a malpractice commission will solve the malpractice case or the civil, the dispute is finalized. The truth is that the way that medical malpractice is regulated is unclear and has repercussions on how the profession shall exercise their activity by practicing a defensive medicine”.

In our opinion the actual legislation disadvantage primarily the doctors who are left uncovered in front of potential malpractice cases, even though they signed a malpractice policy, the insurer will not be responsible. Also, the patients which are a subject of a malpractice case are disadvantage by the favorable position of the insurer who is not obliged to pay the insured amount. In this case the patient will try to recover the prejudice from the doctors, who often do not have the means to pay. The physicians should benefit from malpractice insurance policies that will cover their risks and enables them to perform their activity unconstrained, and really insures them that in case of a malpractice case the insurer will pay the patient the fair amount established by the court, in the limit set through the insurance policy.