Civil Liability of Medical Workers and Medical Institutions

Anna Ivanova, Lawyer at BRACE Law Firm

May 8, 2022

BRACE Law Firm ©

Although the provision of medical care is legally classified as the provision of services, the issues regarding the liability of medical workers for violating patient rights are always complex and controversial to evaluate. In this article, we consider the specific features of the civil liability of medical workers.

General Rules for Civil Liability

First, it is necessary to distinguish two groups of grounds for the civil liability of medical workers. First are the legal grounds. Civil legislation provides for liability for harm caused as a result of substandard services, including medical services. It is important to understand that in this case, the medical worker bears liability regardless of fault or the existence of a contractual relationship. Furthermore, the law protects a patient of a medical organization on par with a consumer. Given this fact, qualified legal support for a medical organization is of great importance.

In addition to establishing the fact that harm was caused to the patient's health, it is necessary to establish a causal relationship, the wrongfulness of the actions of the person who caused the harm, and the relationship between the doctor and the medical institution.

Under the general rule established by clauses 1 and 2 of Article 1064 of the Civil Code, liability for causing harm is imposed on the person who caused the harm, unless that person proves an absence of fault.

The presumption of guilt of the person who caused the harm, established by Article 1064 of the Civil Code, implies that the defendant must provide evidence of the absence of fault. The victim provides evidence confirming the fact of injury or other damage to health, the amount of harm caused, and evidence that the defendant is the person who caused the harm or the person required by law to compensate for the harm.

In cases specifically provided for by law, harm is compensated regardless of the fault of the person who caused the harm. Specifically, under Article 1095 of the Civil Code, if harm is caused to the life, health, or property of a citizen or the property of a legal entity as a result of structural, formulation, or other defects of a product, work, or service, or as a result of unreliable or insufficient information about the product (work, service), it must be compensated by the seller or manufacturer of the product, the person who performed the work, or the person who provided the service (the "performer"), regardless of their fault and regardless of whether the victim was in a contractual relationship with them or not.

For a medical organization, this means that the patient does not have to prove that the doctor caused harm; rather, the doctor must prove that he or she did not cause harm to the patient. A medical worker is released from liability if he or she proves the existence of circumstances that excuse liability for non-performance or improper performance of an obligation, including for causing harm. These circumstances include force majeure or the fault of the consumer (the "patient"), such as a violation of the established rules for using the results of the service. A consumer may be found at fault if, for example, he or she did not properly follow a doctor's prescriptions. Force majeure does not include, in particular, a violation of obligations by a medical institution that undertook the obligation to provide services due to a lack of necessary equipment or medicinal products, including necessary funds.

Notably, a medical organization challenged these provisions because they allow a court, without establishing the fact of a crime or identifying the person guilty of its commission, to hold a medical organization civilly liable in civil proceedings for harm caused by an employee in connection with providing medical care of substandard quality. The Constitutional Court of the Russian Federation refused to consider this complaint, finding the challenged provisions to be in accordance with the law.

In accordance with current legislation, a medical worker may bear criminal, civil, administrative, and disciplinary liability for failure to provide or improper provision of assistance to a patient.

In both criminal and civil law, the presence of an indirect (mediated) causal relationship between an unlawful act means that this act lies outside the scope of the specific case and, therefore, outside the scope of the legally significant causal relationship.

Often, an expert examination is necessary to determine the fact of harm to a patient. When conducting a forensic medical examination, the expert commission must establish the presence or absence of a causal (direct) link between the action (inaction) of the medical worker and the occurrence of an unfavorable outcome for the patient.

The Presidium of the Supreme Court also notes the following important conclusion regarding the liability of medical workers: "In special cases of medical negligence, where the violation of the right to life and personal integrity was not intentional, the performance of the state's positive obligation to create an effective judicial system does not require the mandatory use of criminal law remedies in every case. In some cases, such an obligation may be performed by providing the victim with a civil law remedy that ensures the establishment of the liability of medical workers, as well as the receipt of proportionate civil compensation, such as, inter alia, a decision on the recovery of damages".

Thus, the protection of patient rights resulting from harm is legally established, as is the right to compensation for such harm.

Based on the above information, it can be concluded that legislation provides for the liability of both medical workers and medical organizations. At the same time, it is often quite difficult to prove a causal relationship between the doctor's actions and the harm caused to the patient due to the specifics of medical activity and the need for specialized knowledge in this field. In this article, we consider the main issues and law enforcement practice related to the civil liability of medical workers and medical organizations.

Specific Features of Civil Liability of Medical Workers and Medical Organizations

Under Article 73 of Federal Law No. 323-FZ dated November 21, 2011, On the Fundamentals of Health Protection of Citizens in the Russian Federation (the "Law No. 323-FZ", the "Law on Health Protection"), medical workers and pharmaceutical workers carry out their activities in accordance with the legislation of the Russian Federation, guided by the principles of medical ethics and deontology. Medical workers must: provide medical care in accordance with their qualifications, job descriptions, and official and professional duties; and observe medical secrecy.

At the same time, employees of a medical institution bear material liability to that institution in accordance with labor legislation. An employee compensates only for direct actual damage within the limits of his or her average monthly salary, except for cases provided for in Articles 242 and 243 of the LC RF (shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him or her under a one-time document; intentional infliction of damage; infliction of damage in a state of alcohol, narcotic, or other toxic intoxication; infliction of damage as a result of criminal actions of the employee established by a court verdict; infliction of damage as a result of an administrative offense, if established by the relevant state body; disclosure of information constituting a legally protected secret; or infliction of damage while not performing labor duties). Thus, full material liability cannot be imposed on an employee in all cases, and therefore, using such liability as the basis for insurance risk is unjustified.

Under Article 1068 of the Civil Code, a legal entity or a citizen compensates for harm caused by its employee in the performance of labor (service, official) duties. A legal entity (the "medical institution") will be liable not only for those working under a labor contract but also for workers performing work under a civil law contract if they act or should have acted on the instructions of the relevant legal entity or citizen and under its control. Similar norms are established in Articles 402 and 403 of the Civil Code.

Thus, a patient who has been harmed has the right to approach the medical organization directly whose employee (the "doctor") provided substandard medical care and caused harm. It is also important to remember that consumer protection legislation applies to patients, under which the right to demand compensation for harm caused by service defects is recognized for any victim, regardless of whether he or she was in a contractual relationship with the performer.

In practice, patients seek compensation for harm directly from the medical institution where the medical worker who caused the harm was employed.

As noted by the Supreme Court of the Russian Federation, in accordance with clause 1 of Article 1068 of the Civil Code, a legal entity or citizen compensates for harm caused by its employee in the performance of labor (service, official) duties. It follows from the above that in the event an employee of a medical organization causes harm to the life and (or) health of citizens while providing medical care, the medical organization must compensate the harm to the person entitled to such compensation. The necessary conditions for the civil liability of a medical institution for harm caused during the provision of medical care are: the causing of harm to the patient; the wrongfulness of the conduct of the person who caused the harm (violation of legislative requirements (procedures for providing medical care, standards of medical care, and clinical recommendations (protocols)) by the actions (inaction) of the medical institution (its employees); the presence of a causal link between the occurrence of the harm and the wrongfulness of the conduct of the person who caused the harm; and the fault of the person who caused the harm—the medical institution or its employees.

Next, we consider the main examples from such judicial practice.

Claims for compensation for harm by relatives of a deceased patient are a fairly common occurrence.

For example, in an appeal to the court, a claimant alleged that his wife's death occurred as a result of defects in medical care committed by hospital employees, consisting of incorrect diagnosis, failure to perform necessary diagnostic measures, and incorrectly chosen treatment methods, as a result of which the disease progressed and led to a fatal outcome. The courts awarded compensation in the amount of 40,000 rubles to each claimant. However, the Supreme Court of the Russian Federation did not agree that this amount of compensation was proportionate. The Court established that the lower courts, in determining the amount of compensation for moral harm, did not take into account circumstances regarding the degree of the defendant's fault in the patient's death. Meanwhile, expert opinions and acts of medical care quality experts from the Chelyabinsk branch of AlfaStrakhovanie-OMS LLC established numerous defects in the provision of medical care by employees of the regional hospital. A correct diagnosis was made by employees of the Chelyabinsk Regional Clinical Hospital on the day of the patient's death. In light of the above, the court's conclusion to award the claimant and his minor daughter the amount of compensation for moral harm in the amount of 40,000 rubles each cannot be recognized as lawful because, in violation of substantive law on the grounds, principles, and criteria for determining the amount of compensation for moral harm, it was not reasoned and does not meet the criteria of reasonableness and fairness.

Furthermore, in one case, the Supreme Court of the Russian Federation noted that a direct causal relationship between the identified defects in the provision of medical care and the death of the patient is not mandatory for the compensation of harm. Specifically, the necessary conditions for the civil liability of a medical organization for harm caused during the provision of medical care are: the causing of harm to the patient; the wrongfulness of the conduct of the person who caused the harm (violation of legislative requirements (procedures for providing medical care, standards of medical care, and clinical recommendations (protocols)) by the actions (inaction) of the medical organization (its employees); the presence of a causal link between the occurrence of harm and the wrongfulness of the conduct of the person who caused the harm; and the fault of the person who caused the harm—the medical institution or its employees. Civil legislation provides for a presumption of guilt of the person who caused the harm: the person who caused the harm is released from the obligation to compensate if he or she proves that the harm was caused not by his or her fault. In relation to the disputed relations, in accordance with current legal regulation, the defendant in this case (the "Gubkin Central District Hospital") must prove the absence of its fault in causing moral harm to the claimant in connection with the death of her father, to whom medical care was provided improperly. The judicial instances did not take into account that in this case, an indirect (mediated) causal relationship may also be of legal significance if the defects (deficiencies) in the provision of medical care to the patient by the hospital's medical staff could have contributed to the deterioration of his health.

It should be noted that in not all cases does the court rely exclusively on the data of the expert examinations performed. Thus, the Supreme Court did not agree with the conclusions of the lower courts to refuse to award compensation for harm in connection with the loss of a breadwinner because: "the conclusion of a forensic medical examination must be evaluated by judicial instances in conjunction with other evidence in the case, including the opinions of specialists presented in the materials of this case by the plaintiff and defendant, the conclusions of other examinations in the case file conducted as part of a criminal case initiated upon the death of the patient against the doctor, during the pre-investigation check, as well as during the court's consideration of this civil case, and the results of this evaluation of evidence must be set forth in the decision adopted in the case. The courts of first and appellate instances did not provide a legal evaluation of the fact that the conclusion of the repeated forensic medical examination noted defects in the provision of medical care".

Also, in one notable case, a patient directly filed a lawsuit against a regional center for the prevention and control of AIDS and infectious diseases for the recovery of moral harm. The claims were based on the fact that while being treated in a hospital with a diagnosis of "pneumonia", he gave blood for analysis, after which he was discharged from the hospital without completing treatment and without explanation. An employee of the AIDS Center informed him by telephone that the blood test results revealed a positive reaction for HIV infection. On the same day, the plaintiff appeared at the AIDS Center, where he received explanations that he had been infected with HIV for over a year. By the decision of the district court, upheld by the appellate court, the claimant's demands were refused because, in the opinion of the courts, the evidence presented did not establish the fault of specific employees of medical institutions whose incorrect or incompetent actions led to the erroneous diagnosis during the analysis of the plaintiff's blood. The circumstances of the blood collection from the plaintiff and from an HIV-infected patient, R., who was undergoing treatment in the hospital at the same time, exclude the possibility of a swap of blood containers. The fact of the presence of blood serum containing HIV infection in a container at the AIDS Center with the plaintiff's surname, A., is not sufficient to impose civil liability on the defendants for compensation for moral harm, as the fault of the medical workers was not reliably established, and the initial erroneous diagnosis did not cause any actual harm to the plaintiff's life or health. The plaintiff suffered moral suffering as a result of the information provided to him about the possible presence of HIV infection in his body.

The Supreme Court of the Russian Federation did not agree with these findings, as it was established that the hospital's medical workers collected blood from the plaintiff, which was sent to the AIDS Center for research on the presence of HIV infection. The container with blood serum in which the AIDS Center detected HIV infection was marked with the plaintiff's surname; however, subsequent tests did not confirm the presence of the disease in A. The erroneous diagnosis was given to the plaintiff not as a result of false-positive testing but as a result of a blood sample not belonging to the plaintiff, marked with his surname, being received for research. In this regard, the fact that moral suffering was caused to the plaintiff by the message about the "HIV infection" diagnosis is obvious. The decisions of the lower instances were overturned.

It is important to note that clause 2 of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 dated December 20, 1994, Certain Issues of the Application of Legislation on Compensation for Moral Harm, explains that moral harm is understood as moral or physical suffering caused by actions (inaction) encroaching on intangible benefits belonging to a citizen from birth or by law (life, health, personal dignity, business reputation, privacy, personal and family secrets, etc.) or violating his or her personal non-property rights (the right to use one's name, the right of authorship, and other non-property rights in accordance with laws on the protection of rights to the results of intellectual activity) or violating the property rights of a citizen. Moral harm, in particular, may consist of moral distress in connection with the loss of relatives, the inability to continue an active social life, loss of work, disclosure of family or medical secrets, dissemination of information that does not correspond to reality and defames honor, dignity, or business reputation, temporary restriction or deprivation of any rights, physical pain associated with injury, other damage to health, or in connection with a disease suffered as a result of moral suffering, etc..

Thus, a wide range of grounds for compensation for moral harm has been established. Not only the patient himself or herself but also his or her legal representatives or close relatives of a deceased patient have the right to seek compensation for harm. At the same time, we believe the position of the courts, guided by the priority of the interests of the patient and his or her close relatives when determining the grounds for compensation for moral harm, is correct.

Nevertheless, in the course of considering several cases, patients, in defending their rights, may actually act against their own interests or demand the non-disclosure of medical secrets in cases where the law establishes the necessity of such disclosure. At the same time, the views of the Supreme Court of the Russian Federation may differ radically from the opinion of the ECtHR. For example, in one case, having received refusals from courts of all instances in the Russian Federation, the claimants appealed to the European Court of Human Rights. The application was connected with the fact that medical documentation about their treatment was presented to the prosecutor's office as part of ongoing inspections. Specifically, the deputy prosecutor suggested to the chairman of the St. Petersburg Healthcare Committee that all medical institutions in St. Petersburg be instructed to report every fact of refusal by citizens who are followers of the Jehovah's Witnesses faith from blood transfusions and its components, and to send such information received from medical institutions to the St. Petersburg Prosecutor's Office. The claimants demanded the seizure and destruction of these materials from the prosecutor's office. However, the European Court of Human Rights recalled that: "...the interest of the patient and society as a whole in protecting the confidentiality of medical data may be outweighed by the interest in the investigation and prosecution of crimes, as well as the publicity of judicial proceedings, if it is proved that these interests are of more serious importance; the state's obligations to create guarantees of judicial protection against encroachments on the right to life or personal integrity in the medical sphere are not limited to criminal law remedies and may include rules on civil compensation, in particular on compensation for damage, as well as on disciplinary measures". Nevertheless, the European Court did not see in the text of the judicial decisions of the Russian courts any indication that the national authorities attempted to establish a fair balance between the claimants' rights to respect for their private life and the activities of the prosecutor's office aimed at protecting public health and the rights of citizens in this field. No relevant and sufficient motives were provided to justify the transfer of confidential information. In connection with this, the claimants were awarded appropriate compensation. It is noteworthy that in this case, the actions of the prosecutor's office were challenged, whereas the data were transferred by medical institutions and, in accordance with Russian legislation, the medical institution could not refuse to provide such data. This decision further emphasizes the particular complexity in considering and evaluating circumstances in cases involving the disclosure of medical secrets.

In particular, the Constitutional Court of the Russian Federation, in Ruling No. 300-O dated May 23, 2005, indicated that the special procedure for providing information containing medical secrets provided for by healthcare legislation, which excludes the possibility of its receipt at the request of third parties and thereby protects everyone's right to privacy (Article 24, part 1, of the Constitution of the Russian Federation), does not prevent participants in both criminal and civil proceedings, in accordance with the principle of adversariality and equality of the parties, from realizing their right to defense by all means not prohibited by law, including by filing motions for the reclamation of this information by inquiry and investigation bodies, the prosecutor, or the court, and a refusal to grant such motions does not prevent participants from subsequently refiling them at the trial stage, insisting on a review by higher judicial instances of the legality and reasoning of the decisions taken both on these motions and on the results of the case consideration as a whole.

Having considered these examples from judicial practice, it is impossible not to note the extreme difficulty of proving the causing of harm, as well as the particular importance of a fair consideration of cases for the proportionate award of compensation to the injured person or his or her relatives.

It is also recommended that medical institutions provide professional liability risk insurance for their employees. Currently, under clause 7 of part 1 of Article 72 of the Law on Health Protection, medical workers and pharmaceutical workers have the right to insure the risk of their professional liability. Thus, the professional liability insurance of medical workers is a voluntary form of insurance. However, such insurance may allow a medical institution to avoid significant material risks in the future.

It is also recommended that special attention be paid to concluding medical services contracts with patients that clearly state the conditions for their provision, as well as complying with requirements for obtaining informed voluntary consent from the patient or his or her legal representative for medical intervention based on full information provided by the medical worker in an accessible form regarding the goals, methods of providing medical care, the risks associated with them, possible options for medical intervention, its consequences, and the expected results of providing medical care.

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References

[1] Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 dated January 26, 2010, On the Application by Courts of Civil Legislation Regulating Relations on Obligations Resulting from Harm to the Life or Health of a Citizen.

[2] Boitsov G. Liability of a Medical Institution for Errors in the Treatment of Patients under a Contract with an Enterprise. Disputes and Advice to Companies. Labor Law. 2017. No. 5. pp. 57 - 112.

[3] Ruling of the Constitutional Court of the Russian Federation No. 205-O dated January 29, 2019, On the Refusal to Accept for Consideration the Complaint of the State Budgetary Healthcare Institution of the Novosibirsk Region "Suzun Central District Hospital" regarding the violation of constitutional rights and freedoms by Articles 150, 151, 1068, 1101 of the Civil Code of the Russian Federation

[4] Procedure for Conducting a Forensic Medical Examination and Establishing Causal Relationships regarding the Fact of Non-provision or Improper Provision of Medical Care. Methodological Recommendations approved by the FSBI "RCSME" of the Ministry of Health of Russia on June 21, 2017.

[5] Generalization of the Practice and Legal Positions of International Treaty and Non-treaty Bodies Acting in the Field of Protection of Human Rights and Freedoms on Issues of Protecting a Person's Right to Life, approved by the Presidium of the Supreme Court of the Russian Federation (clause 100 of the decision dated December 16, 2010, in the case of "Romokhov v. Russia").

[6] Ruling of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation No. 45-KG21-6-K7 dated May 17, 2021.

[7] Ruling of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation No. 48-KG20-19-K7 dated February 8, 2021.

[8] Ruling of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation No. 57-KG21-11-K1 dated August 2, 2021.

[9] Ruling of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation No. 64-KGPR21-1-K9 dated June 21, 2021.

[10] Clause 4 of the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 4 (2016), approved by the Presidium of the Supreme Court of the Russian Federation on December 20, 2016.

[11] Clause 2 of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 dated December 20, 1994, Certain Issues of the Application of Legislation on Compensation for Moral Harm.

[12] ECtHR Judgment in the case of "Avilkina and Others v. Russia" (Application No. 1585/09).

[13] Ruling of the Constitutional Court of the Russian Federation No. 300-O dated May 23, 2005, On the Refusal to Accept for Consideration the Complaint of Citizen Inozemtsev Evgeny Vasilyevich regarding the violation of his constitutional rights by Article 61 of the Fundamentals of Legislation of the Russian Federation on the Protection of Health of Citizens.