Legal qualification of a medially indicated surgical procedure performed upon patient's insistence
In this paper, the author explores the relationship between the medical indications for surgery and the patient's right to self-determination, i.e. the right of a competent adult to make an informed decision about his/her medical treatment. In that context, the author points out to three practi...
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| Format: | Article |
| Language: | English |
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Faculty of Law, Niš
2014-01-01
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| Series: | Zbornik Radova Pravnog Fakulteta u Nišu |
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| Online Access: | http://scindeks-clanci.ceon.rs/data/pdf/0350-8501/2014/0350-85011466013R.pdf |
| _version_ | 1818541855441158144 |
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| author | Radišić Jakov |
| author_facet | Radišić Jakov |
| author_sort | Radišić Jakov |
| collection | DOAJ |
| description | In this paper, the author explores the relationship between the medical indications for surgery and the patient's right to self-determination, i.e. the right of a competent adult to make an informed decision about his/her medical treatment. In that context, the author points out to three practical questions. First, does the patient's right to self-determination imply the patient's participation in determining the medical indications for medical treatment, or is it only limited to the patient's authority to consent or not consent to the doctor's proposal? Second, can the patient's consent or insistence justify a surgery which is not medically indicated? Third, does the patient's right to self-determination imply that the patient assumes the risk associated with a surgery which is not medically indicated, thus excluding the doctor's professional responsibility (liability)? Relying on the legal theory, legislative framework and judicial practice (case law), the author concludes that a surgery which is not medically indicated should be qualified as a wrongful act. The unlawful nature of this act cannot be excluded even by the patient's persistent demands to perform the surgery. The patient's right to self-determination implies only the possibility of accepting or refusing the medical treatment proposed by the doctor. The decision on the medical indication of a surgical procedure must be fully vested with the doctor, who is bound by the rules of medical science and medical ethics. In other words, a doctor should act in compliance with what he/she considers to be proper. Otherwise, the doctor may be held liable for medical malpractice. In principle, the doctor's liability for performing a surgery which is not medically indicated cannot be precluded by contracting a relevant doctor-patient agreement. The exception to this rule should be allowed only in cases when the patient is a medical expert who strongly believes that the medical intervention is medically indicated, in spite of the doctor's divergent opinion. |
| first_indexed | 2024-12-11T22:14:37Z |
| format | Article |
| id | doaj.art-73c962bf5d4c45839109575ce71e3ec9 |
| institution | Directory Open Access Journal |
| issn | 0350-8501 2560-3116 |
| language | English |
| last_indexed | 2024-12-11T22:14:37Z |
| publishDate | 2014-01-01 |
| publisher | Faculty of Law, Niš |
| record_format | Article |
| series | Zbornik Radova Pravnog Fakulteta u Nišu |
| spelling | doaj.art-73c962bf5d4c45839109575ce71e3ec92022-12-22T00:48:38ZengFaculty of Law, NišZbornik Radova Pravnog Fakulteta u Nišu0350-85012560-31162014-01-01201466132710.5937/zrpfni1466013R0350-85011466013RLegal qualification of a medially indicated surgical procedure performed upon patient's insistenceRadišić Jakov0University of Kragujevac, Faculty of Law, Kragujevac, SerbiaIn this paper, the author explores the relationship between the medical indications for surgery and the patient's right to self-determination, i.e. the right of a competent adult to make an informed decision about his/her medical treatment. In that context, the author points out to three practical questions. First, does the patient's right to self-determination imply the patient's participation in determining the medical indications for medical treatment, or is it only limited to the patient's authority to consent or not consent to the doctor's proposal? Second, can the patient's consent or insistence justify a surgery which is not medically indicated? Third, does the patient's right to self-determination imply that the patient assumes the risk associated with a surgery which is not medically indicated, thus excluding the doctor's professional responsibility (liability)? Relying on the legal theory, legislative framework and judicial practice (case law), the author concludes that a surgery which is not medically indicated should be qualified as a wrongful act. The unlawful nature of this act cannot be excluded even by the patient's persistent demands to perform the surgery. The patient's right to self-determination implies only the possibility of accepting or refusing the medical treatment proposed by the doctor. The decision on the medical indication of a surgical procedure must be fully vested with the doctor, who is bound by the rules of medical science and medical ethics. In other words, a doctor should act in compliance with what he/she considers to be proper. Otherwise, the doctor may be held liable for medical malpractice. In principle, the doctor's liability for performing a surgery which is not medically indicated cannot be precluded by contracting a relevant doctor-patient agreement. The exception to this rule should be allowed only in cases when the patient is a medical expert who strongly believes that the medical intervention is medically indicated, in spite of the doctor's divergent opinion.http://scindeks-clanci.ceon.rs/data/pdf/0350-8501/2014/0350-85011466013R.pdfmedical indicationpatient's consent to medical treatmentdoctor's mistakeliability |
| spellingShingle | Radišić Jakov Legal qualification of a medially indicated surgical procedure performed upon patient's insistence Zbornik Radova Pravnog Fakulteta u Nišu medical indication patient's consent to medical treatment doctor's mistake liability |
| title | Legal qualification of a medially indicated surgical procedure performed upon patient's insistence |
| title_full | Legal qualification of a medially indicated surgical procedure performed upon patient's insistence |
| title_fullStr | Legal qualification of a medially indicated surgical procedure performed upon patient's insistence |
| title_full_unstemmed | Legal qualification of a medially indicated surgical procedure performed upon patient's insistence |
| title_short | Legal qualification of a medially indicated surgical procedure performed upon patient's insistence |
| title_sort | legal qualification of a medially indicated surgical procedure performed upon patient s insistence |
| topic | medical indication patient's consent to medical treatment doctor's mistake liability |
| url | http://scindeks-clanci.ceon.rs/data/pdf/0350-8501/2014/0350-85011466013R.pdf |
| work_keys_str_mv | AT radisicjakov legalqualificationofamediallyindicatedsurgicalprocedureperformeduponpatientsinsistence |