By Giorgos Skampoulos, LL.M. Associate
In recent years, more and more cases, appearing in court practice, deal with the lack of prior information of the patient by the doctor, as a necessary condition for the legality of any medical act. Τhis legitimate ground of liability appears with such frequency in practice, especially in the context of civil justice, that it tends to replace actions brought primarily on the basis of malpractice or defects in the performance of a medical act (e.g. a surgical operation).
The obligation to inform is provided in Article 11 of Law 3418/2005 (Code of Medical Ethics) and has a very broad content, as it includes both general information of the patient regarding his/her health condition, which has the main purpose of allowing the patient to make responsible and informed decisions critical to his/her life, and therapeutic information oriented to a specific medical act and behavior that aims to prevent the patient from possible damage to his/her health (e.g. instructions on the use of the medical device, medicine etc.). The information must be complete, clear and understandable and it consists a prerequisite for the patient’s consent to be strong and legitimate. The obvious consequence of the patient’s failure to give valid consent is that the medical act is unlawful (either as a breach of a legal obligation or as a bodily harm) and therefore the doctor may be required to compensate the patient for any harm caused to the patient as a result of the failure to inform.
The information doesn’t need to be provided in writing. In the context of the relationship of trust between doctor and patient, information may be provided orally, provided that it is clear and understandable, whereas the “patient consent and information form” often used in practice serves mainly for evidentiary purposes and does not cover the doctor’s obligation to inform the patient.
Finally, the doctor must respect the patient’s wish not to be informed, although it is argued that when the patient does not wish to be informed of a medical act necessary for his or her health and life, the doctor must insist on its necessity in order to avoid liability. Unlike the patient himself, who may legitimately refuse to be informed, the refusal to provide information is prohibited both by third parties who consent on behalf of the patient (e.g. those exercising parental authority), as the right of consent for a third party is a functional right and therefore also involves a legal obligation, and by the doctor himself, who cannot decide on his discretion not to inform the patient, but only to adapt the manner of informing the patient according to the personality of each patient.