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This diploma thesis goes into a problem of the legal interpretation of the term lex artis, which some authors describe as well-known term of unknown content. Generally, this term relates to the activities of doctors and other health care professionals within taking care of patients, and usually we can meet with the ablative lege artis, which is used to denote a professionally correct action. This term is in common usage also in the reference books and case law where the breach of the duty to act lege artis is considered to be a precondition for liability of physician or health care provider for injury to the patient. Certain difficulty of using the term lex artis lies in the fact that the legislation in force does not mention not even define this term and its meaning must therefore be inferred from legislation by interpretation. For the legal definition of lex artis is from 1st April 2012 considered the provision of s. 4 (5) of Act No. 372/2011 Sb., about Health Services and Terms (the Health Services Act), as amended, which defines appropriate professional standard of providing health services and which is from the early beginning criticized by the part of professionals for its alleged conflict with patients' rights guaranteed by the Convention on Human Rights and Biomedicine. The aim of this...

This thesis examines the development of medical liability in Germany during its intense formative period from 1800-1945. The focus is on how the fault requirement in civil law was conceptualised and applied to liability for errors in the diagnosis and treatment of a patient. By focusing on the development of the law, and how it related and responded to changes in the nature of medicine, medical practitioners and healthcare over this period, this thesis uncovers a rich interaction between the legal and medical narratives of fault. In doing so, it offers an account of legal development where the law and lawyers were deeply embedded in, and influenced by, that broader social context. It identifies a gradual shift towards asserting courts’ independence from the medical narrative alongside greater willingness to question accepted practice, particularly in light of medical advances. The thesis says nothing directly about the closely related topic of liability for failure to secure the patient’s consent. We begin by mapping medicine and medical practice during this period. We then consider the evolution of ‘internal’ regulatory mechanisms and conceptions of error, in particular discussion over how to define a ‘Kunstfehler’ during the nineteenth century. We then unpack how the legal relationship between practitioner and patient was framed in nineteenth century Germany in criminal law, contract law and the law of delict before analysing the attendant standards of care and their application. Finally, we examine the changes wrought by the Bürgerliches Gesetzbuch and the growth of medical liability and technology in the first half of the twentieth century. The thesis offers a heavily contextualised study of legal development in a core area of private law and concludes that the pattern of development here was driven by acceptance of, and eventually reaction against, a concept of fault rooted in the medical discourse.

1 Abstract The thesis is focused primarily on medical litigations in which either patient or (usually) his family apply for a remedy due to a medical malpractice (deviation from medical proffesional duty of care (lex artis) resulting in injury or death of the pacient. Author concentrate on this problematics from the perspective of defendant. At first, he think about setting targets of the hospital (defendant) in the dispute, then he consider ways to achieve these goals (which instruments can be used) . The thesis also consists of analyses of 20 medical litigations. Before the main part author introduces general theoretical questions and refer to the literature on which he based his thesis, as he decided to not deal with general issues. In this context he mentions areas to which, according to him, the doctrine does not yet provide answers. The author's research follows these questions and in following text he concentrates on them and tries to find the answers to controversial questions. These includes, for example, whether in practice the concept of "další nemajetkové újmy" is fulfilled the intention of the lawgiver, wheter the regulation of liberation of liability is applicable in medical litigations and what is its relationship with the "lex artis corrections". After this, the author specifies the methods...

Damage to health: comparative study The final thesis deals with the issue of damage to health in the Czech, American and French legislation and case law. The work deals with individual claims arising from injuries and thesis describes the criteria and methods of compensation for these claims. The thesis is divided into three chapters, which are further divided into subsections and subchapters. The first half of the thesis describes the legislation of damage to health and personal injury in the Czech law. This part focuses on the conditions that must be met in order to create an obligation of compensation for personal injury. It also describes the damage to health and its partial claims which may be compensated and it describes the process of determining the amount of damages according to the Methodology of the Supreme Court. Final part of this chapter deals with damages to health caused by medical malpractice. The second half of the thesis is divided into two parts, the first part deals with the US legislation of compensation for damage to health and the second part concentrates on the French legislation which deals with this institute. In the chapter devoted to American law, the work describes the different types of personal injury compensation, which developed in the United States. The thesis...

This study explores resolution mechanisms for all types of medical malpractice cases with a special focus on the patients and their families¡¦ subjective experiences in such disputes, as well as the relevant factors that influence the process of decision-making and the relevant results. The previous studies on patients¡¦ actions to medical disputes in the literature assumed that patients and their families took certain actions due to monetary reasons or discriminated status under a restricted medical system. Most studies simply state the variables that led the patients and their families to certain resolution mechanism. Nevertheless, not many researchers have explored the micro experiences of meaning construction during the process to resolve malpractice cases. Neither did they study how the patients interpret the cultural and structural variables, which might result in different dispute resolution mechanism being used. Therefore, this study attempts to develop a tentative approach to integrate macro and micro analyses and take the advantage of the procedure of grounded theory to explore the dynamic process in the resolution of disputes over medical malpractice. In-depth interviews were applied in the study involving 16 patients and their family members, 13 third party groups and two physicians for a total of 31 people. Among the 16 patients and their family members, there were 14 cases of medical treatment dispute. It was found that the core concept of ¡§admitting a mistake was made¡¨ is the main goal of patients and their family members when dealing with the dispute. If the injury is not critical, normally the physician will admit his/her mistake in the beginning of the dispute. If the injury is critical, since the patients and their family members not having professional knowledge regarding medical injury and their social economical status as well as lower mobilization capabilities than physicians, they do not get an apology or the truth regarding the medical injury. They only receive compensation at most. There are two key causes of providing compensation: (a) crisscrossed interpersonal connection between patient, physician and the third party, such as a civil representative, who plays the role of coordinator; (b) after litigation, usually the court prosecutor or the judge will mediate between the patient and physician, so that compensation can be made. No direct judgment is made. Yet the patients and their family members are not satisfied because they do not receive a response from the involved physician regarding their request about ¡§admitting mistake was made¡¨ which is terminated since their is no money for further litigation, pressure from the civil representative or other objections of the family members. Furthermore, the interview of the third party and the involved physician show that public hospitals are more afraid of irrational acts from patients and their family members or the intervention of the civil representative when dealing with medical disputes. Even if there is no medical negligence, they still submit to the requests of the patients and their family members.

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In this paper, I use data from the Florida Closed Claims Database to investigate how Florida’s 2003 non-economic damage cap legislation impacted elderly malpractice claimants. More specifically, I measure whether or not non-economic damage caps adversely impact claimants in counties with high elderly densities. To measure the effect of Florida’s non-economic damage caps, I look at multiple metrics that measure both elderly claimants’ monetary gains and their access to the justice system after the reform is passed. I find mildly conclusive evidence that counties with higher elderly density, and assumedly more elderly claimants, are more likely to settle cases before reaching a jury trial and are less likely to file a medical malpractice claim. Conversely, though, I find limited evidence supporting the idea that elderly claimants receive less monetary damage payments or drop cases more. Overall, then, my findings are not consistent with the view that non-economic damage caps significantly discriminate against elderly claimants.