Respect for Human Dignity. Ethical and Legal Reflections Regarding the Breach of the Obligation to Inform the Patient | Lacrima Rodica BOILA
Summary: The starting point of our analysis is to present the grounds of a jurisprudential solution issued by the French Court of Cassation, in the Decision no. 573 of June the 3rd 2010, considered in doctrine as a true “reversal” in the light of the new interpretation of the ethical foundation and of the legal consequences regarding the lack of information towards the patient. If until now, it was considered that only those situations where lack of information resulted in a “loss of a chance” entitles the patient to claim compensation, these compensations being only in proportion to his loss, this time it moved forward, stating that in case the doctor is guilty only of failing to inform his patient he may be responsible for the moral damage caused to the patient, on the basis of tort liability. For the first time, the solution of the Court brings into question the ethical and legal foundation of responsibility the lack of respect for human dignity, by disregarding the individual as patient. Thus, the lack of information acquires new dimensions, of ethical nature, much deeper and with complex meanings. Following these coordinates, the paper proposes a new approach to the doctor’s obligation to inform his patient, this time from an ethical perspective, related to the respect owed to human beings, especially those in need – the suffering. Respecting dignity is an inherent right of every human being, free to decide his own destiny. The patient, a person so vulnerable to his inevitable fate, is entitled to know his illness diagnosis, the intervention and treatment options, the risks that the patient could be exposed to, when expressing freely and in full knowledge the “assent on basis of information”. The failure of its information on certain aspects which, if they were known, would be likely to offer the possibility to choose a particular solution, is not only a breach of a professional duty, which involves not only tort liability, but also an ethical misconduct by ignoring his dignity as a human being. Information is closely linked to the trust that the patient offers to a specialist, in order to apply the method of prevention or treatment that is best suited for his health condition, displaying the lowest risk. If, however, the doctor acts without correctly and fully informing the patient, he betrays his patient’s trust, the patient being unable to choose the best solution, according to his own will.
Keywords: human dignity, informing the patient, tort liability for lack of information, loss of a chance.
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