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In practice, the patient (independently or with the help of a lawyer) quite successfully realizes his right to receive money for moral damage, using formal errors of the medical organization. The court, when making a decision on the validity of the patient’s claim of moral damage caused to him, proceeds from the fact whether the patient was informed about the method (recipe) of treatment, the possible change in the treatment plan, the outcome of the treatment and the consequences of treatment (including possible complications ) in advance – until the start of treatment within the framework of a written contractual relationship. Usually such information is received by the patient when the patient’s informed consent is drawn up for the provision of medical services. If it is possible to prove documented the fact that the patient was informed about all of the above, there is a sufficient guarantee of protection against any unreasonable claims of the patient to satisfy any damage (including moral), and reasonable priotensii do not lead to unjustified monetary losses. (Garasimchuck, 2016)
The fact of informing the patient and the patient’s consent to treatment (changing the treatment plan, refusing treatment, refusing treatment after the beginning of treatment, etc.) are stipulated orally, and in case of necessity, their availability is very difficult to prove. In most cases, a patient who has claims to a medical organization denies the fact of being informed and the fact of consent to medical intervention, if any, were spoken orally. As a result, against his word there are only verbal assurances of the organization’s employees that all the requirements stipulated by the legislation were observed. In practice this leads to the fact that the medical organization can not document its rightfulness and loses the case. Count on the moral and ethical decency of the “conflict” patient is not necessary. Hence the main formal principle of rendering medical services (especially paid): in writing, document all the principal points (including before the start of treatment). Particular attention should be paid to the quality criteria or the outcome of the treatment. Do not promise (or imply) a complete restoration of health, if modern medicine can not guarantee this. The patient must be informed that as a result of the treatment, one of the following conditions will occur: recovery, improvement, without changes (i.e., no deterioration). Evaluation of the quality criteria (outcome of treatment) can be done using any other terminology, including medical terminology. It should be noted that the patient may not have special medical knowledge, so medical terms should be explained in a form that is accessible to the patient. (Tidy, 2016)
Written recording of the fact of the patient’s awareness of the treatment plan, the consequences of treatment, the methods of treatment experienced at this sensation, etc., is made non-timely. This is the date of informing the patient and getting his consent to medical intervention. It is not always possible to establish the date of such consent on the documents that are in the organization. In particular, when you issue an informed consent of a person with a separate document, the date is not always put on it. Sometimes such a document specifies a later date than on documents fixing the beginning of the provision of medical services. In such cases, a patient who has a claim denies that he was informed before starting the service, and requires moral harm due to such untimely awareness. In addition, he denies the fact of his consent to the provision of medical services before the beginning of its provision, which is an additional justification for the moral damage suffered. (Nandimath, 2009)
Violations of the patient’s obligations (including multiple violations), leading to negative consequences, are not documented. Basically, this refers to the patient’s failure to appear on the prescribed appointments to the doctor within the framework of treatment (outpatient services) or in the after-care surveillance (preventive examinations). Medical organizations do not record such non-attendance, and in the event of a recurrence of claims (Cohen, Ezer, 2013)
It is difficult to prove the negligence of the patient. Fixing of such non-attendance should be carried out either in the registry (keeping a special journal) or by doctors (writing in the patient’s medical record). In addition to the absence of the patient, it is necessary to reflect the facts of the patient’s non-compliance with the doctor’s recommendations in the medical card. For example, strong dental plaque indicates non-compliance with oral hygiene, which can cause an increase in the inflammatory process when providing dental services. If the medical organization (clinic) manages to resolve the conflict with the patient on a pre-trial basis, it is necessary to record the refusal of the claim or partial refusal of the claim in writing (especially if the patient is paid in full or in part the money paid earlier). (Campbell, Solicitor, 2013)
However, a written refusal of a claim does not guarantee that the patient will not subsequently demand, in a court order, to satisfy the imposition of moral harm. According to the legislation, this possibility remains with the patient. The formal cancellation of the claim can guarantee the clinic full payment for the service if it is impossible to provide it due to the patient’s fault (clause 2 of Article 781 of the Civil Code of the Russian Federation);
Full or partial return of the service if the impossibility of treatment arose for circumstances for which neither patient, or clinic does not meet (clause 3 of Article 781, Civil Code of the Russian Federation).
The clinic has the right to refuse to fulfill the obligations under the contract for rendering medical paid services only on condition of full compensation to the patient of losses (clause 2, article 782 of the Civil Code of the Russian Federation).
The patient is entitled to refuse to perform the contract provided that the clinic has paid for the factually incurred expenses (Clause 1, Article 782 of the Civil Code of the Russian Federation).
When agreement is reached with the patient on conflict resolution, such an agreement should be formalized in writing. It is desirable to name such a document “waiver of the claim”; describe the medical services agreed upon (with the specification of the requisites of the agreement, if it was concluded in writing), fix the amount of money that is paid to the patient (if it is paid according to the results of the arrangement), and stipulate that this amount – return of prepayment, compensation for moral damage, etc .; put on the document date, get a patient’s signature on this document. In their claims, patients indicate large (sometimes very large) amounts of moral damage that they want to obtain from medical organizations in court. The practice of participation in court proceedings shows that courts only partially satisfy the demands of patients to compensate for moral damage.
From all of the above, it can be concluded that it is necessary to raise the literacy level of medical workers in key sections of law in the health care system.
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