Zbornik Radova Pravnog Fakulteta u Nišu (Jan 2019)
Civil liability in medicine in the legal system of the Republic of North Macedonia
Abstract
The Macedonian legal system does not contain special rules on the liability of medical institutions and medical staff for damage that is caused while providing health services. This implies that the general rules of civil liability, which can be found in the Macedonian Obligation Relations Act (ORA), apply to professional liability of physicians and medical institutions. The comparative law shows that the rules of contractual and non-contractual liability, fault and strict liability as well as vicarious liability can be applied in cases of medical liability. The aim of this paper is to present the existing rules on liability in the Macedonian legal system that may apply in cases of civil liability in medicine, as well as to present cases involving different kinds of liability and analyze the specific differences among them. A clear distinction among different types of liability is essential for deciding which liability rules apply in a particular case: the rules on contractual liability or non-contractual (tort) liability. The legal relationship between a patient and a physician is primarily a contractual relationship and, in these cases, a medical treatment contract is the legal ground of the patient's and the physicians' rights, duties and obligations. The application of the fault liability rules is predominant in comparative law but the mass usage of medical devises and the introduction of high technology into medicine in general have resulted in the tendency to increase the application of strict liability in practice. In this paper, the author addresses the following questions: which of these tendencies and cases are accepted in the Macedonian legal system, and under what conditions are they applied in the Macedonian legislation and in practice.
