The contratual nature and consequences of relationships involving patients, medical practitioners and health institutions

Abstract

In spite of the limitations posed by the title to this thesis, examining the nature and consequences of contractual relationships in the medical sphere requires an understanding of the traditional application of the law of tort and the Courts' application of the law of contract. The first chapter of this thesis exposes the reader to an analysis of the circumstances wherein contractual relationships may arise in the medical scenario. The formation of a contract between patients and medical practitioners or health institutions is examined in both private and public sector. The second part of this chapter delves into the application of tort law by our Courts, considering all emerging principles through a chronological assessment of local pronouncements. The reader is finally presented with the doctrine of "cumul" and the possibility of instituting proceedings on contractual and tortuous basis concurrently. The second chapter of this thesis considers the four essential requirements of contract, with particular reference to their application in the context of medical law. The reader is thus invited to consider the notions of capacity, subject matter, consideration and consent, in doctor-patient and hospital-patient relationships. The law on contractual consent and its vices, and the consequences of withholding consent are given particular importance on account of the indispensable requisite of informed consent in health care matters. This part of the thesis innovatively examines a sample of consent forms, both local and foreign, and discusses their legal consequences and probatory force in judicial proceedings. Consent must always be "informed". General principles of medical law advocate the importance of this concept in the light of the technical nature of the information. The third chapter presents the reader with a detailed elucidation of this requirement, determining the extent of disclosure expected of medical practitioners in general, and aesthetic surgeons in particular, from judicial pronouncements. The juridical nature of the duty of information is subsequently considered and the effects of each legal classification are contemplated. Having thus obtained an overall view of the creation of a "medical contract" and of the essential requirements for its validity, the reader is then invited to consider the performance and execution of such contracts. The final chapter elucidates the application of general provisions on contract to such "sui generis" contracts. In order to help the reader understand the execution of said contracts, a list of duties incumbent upon medical practitioners and health institutions is drawn up. These include the duties arising from the fiduciary nature of similar relationships. Although generally unenforceable, fiduciary duties and ethical norms may serve for interpretation purposes. The reader is then presented with a list of duties conveniently categorised for academic purposes. Pre-intervention, during intervention and post-intervention duties traced exclusively from local judgments anticipate the consequences of non-performance, the requirements for successful judicial proceedings, and the liquidation of damages. The conclusion to this thesis offers recommendations for the introduction of legal provisions expressly regulating the relationships involving patients, medical practitioners and health institutions.