Healthcare services inherently involve risk. Even where medical treatment complies with accepted professional standards, the administration’s liability is not limited to technical accuracy. It also encompasses the patient’s right to be informed and to give free and informed consent.
Distinction Between Service Fault and Complication
Not every adverse medical outcome constitutes administrative fault. A distinction is made between service fault and complication. If the medical intervention is appropriate in indication and technique and the adverse outcome is a known complication, pecuniary damages may not be awarded. However, this does not eliminate the obligation to obtain informed consent.
Legal Basis of Informed Consent
The requirement of informed consent derives from national legislation, the Convention on Human Rights and Biomedicine, and the positive obligations under Article 2 of the European Convention on Human Rights. Valid informed consent must:
- Be specific to the intervention,
- Clearly describe potential complications,
- Contain the patient’s signature and date,
- Avoid generic, abstract language.
Non-Pecuniary Damages and Lack of Information
Even in the absence of medical negligence, failure to inform the patient may violate the individual’s right to self-determination and bodily integrity. Such violation may justify an award of non-pecuniary damages.
Conclusion
Administrative liability in healthcare extends beyond medical technique. Even where a complication is medically acceptable, failure to obtain properly documented informed consent may give rise to non-pecuniary liability.
