Răspunderea distinctă a medicului pentru neîndeplinirea obligaţiei de informare
Physician's Distinct Liability for Failure to Comply with the Obligation to Inform

Summary/Abstract: Whereas, regardless of the responsibility for the maladministration, the doctor's liability for the non-fulfilment of the information obligation is assumed. In this article we have analyzed this responsibility in the pre-contractual phase on the realm of the tort liability. The conditions to be met for the engagement of this responsibility fully complies with those governed by the common law in the case of tort liability under Art. 1349 of the NCC. Therefore, the damage caused by the non-fulfilment of the information obligation or the inappropriate fulfilment of the obligation is not closely related to the information that the patient is entitled to receive. The link that concerns the injury relates to the healing or survival chances the patient had before expressing the consent for the medical act in relation to which the information was made. Regarding the causality condition, the difficulty in proving this condition led the French courts to use presumptions as evidence. Subsequently, the judicial review courts have pointed out that the need for the judge to determine in concret terms the fulfilment of the condition of the causation report. As far as the condition of the doctor's fault is concerned, it does not need to be proved, because we accept the qualification of the obligation to inform as a result obligation, the main consequence is precisely the assumption of the debtor's fault. Thus, in order to prove the culpability of the doctor, it is sufficient merely to prove the failure or inadequate fulfilment of the obligation of information. In order to assess the damage consisting in the loss of an opportunity, the provisions of Art. 1385 par. (4) of NCC will apply. The amount of the repair will be calculated in proportion to the real probability determined in relation to the circumstances and the concrete situation of the victim. With regard to injury consisting in the loss of a chance suffered by the patient, we underline that the remedy will not cover the bodily harm caused to the victim by the medical act as a result of the avoidable risk. From the amount of this damage, the court will have to assess to what extent the risk could be avoided or a more advantageous choice could have been made for the patient, granting compensation in relation to that identified probability according to the circumstances of the case and the patient's condition.

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