Causation as a condition for liability of medical employees

Abstract

In order to hold a health care worker or a health care institution liable for damage caused to the patient, it is necessary to determine the causation as one of the permanent conditions for establishing liability. The causation issue is one of the central and most difficult issues in determining liability of health workers or health care institutions for damage. In effect, it is a matter of estimating whether the patient's poor condition is a result of a medical error rather than a natural outcome of a disease or a treatment itself. Considering the fact that every patient is different and has a different response to various diseases, medical treatment, and the use of medicines and medical devices, it is impossible to conclude with certainty the real cause of the deterioration of the treated illness in a specific case, or the cause of emergence of a new one, or why the body has suffered damage or why the patient died. Regardless of all the problems arising in determining causation in court proceedings, the task of the judges is to establish the existence or non-existence of causation in a specific case, depending on the independent judicial assessment of relevant facts. The subject matter of this paper is the problem of determining causation as the condition for establishing liability of health care workers and/or health care institutions for damage, both in Serbian legislation and in comparative law.

Keywords

• causation
• medical error
• medical devices