In their provision of health services, doctors and other medical services have a duty to act in accordance with the rules of the profession and to apply the required level of care. These procedures involve taking actions in line with current and routine medical standards. The criteria of knowledge, i.e., the doctors’ expertise, as well as the criteria of care is valued against the state od medical knowledge and standards at the time of undertaking the medical treatment. According to the Law of Contracts and Torts (“Official Gazette of FRY”, no. 29/78, 39/85, 45/89 – decision of the Constitutional Court of Yugoslavia and 57/89, “Official Gazette of FRY”, no. 31/93, “Official Gazette of Serbia and Montenegro”, no. 1/2003 – Constitutional Charter and “Official Gazette of RS”, no. 18/2020) the criteria for the care of healthcare professionals is the care of a great expert, meaning greater care in line with professional rules and customs. For the doctor to act with the required level of care, it is necessary to act in line with the medical standards, but they are also obligated to inform the patient of certain facts and to offer the necessary advice and instructions. Should the doctor violate their duty of professional and careful conduct or violate the patient’s right to self-determination (acceptance or refusal of medical measure), such conduct will represent the grounds for responsibility for the damages stemming from that care.
When discussing the relevant regulations, one must mention the Serbian Medical Chamber’s Codex of Medical Ethics (“Official Gazette of RS”, no. 104/2016), with provisions prescribing the doctors’ obligation of respecting the patient’s right, and also eliminating and preventing damages which the patient might endure through the course of activities.
The patient can exercise their right to compensation against the healthcare institution which they were treated at, during which treatment the medical error resulting in damages had occurred, or against the doctor which had undertaken the medical treatment personally. Healthcare institutions are responsible for the damages on the grounds of responsibility for the damages which the employee, in this instance the doctor, has inflicted upon a third party through work or in connection with the work, as well as on the grounds of special responsibility for personal failure in the organization of that same institution, which do not concern the work of the doctor. The injured patient can request compensation for damages both directly from the doctor if the damages have been caused intentionally, which is a less frequent situation and it is usually just the case of medical negligence without the intention of causing harm to the patient.
For the patient to be able to exercise the right to compensation for damages, the general requirements of the Law of Contracts and Torts must be fulfilled, the presence of damages, the presence of guilt, which in the case of a medical error is reflected in careless and seldom deliberate improper conduct of the doctor, as well as the presence of a proximate cause between the harmful act and the damages.
The injuries suffered by the patient can be reflected in material and nonmaterial losses, and therefore we need to differentiate between material and nonmaterial damages. Material damage would be the damages affecting the property of injured patient, which would customarily be the costs of patient treatment and rehabilitation or loss of revenue which the patient would have generated in the event of temporary inability to work or due to the incapability for work and the like. Nonmaterial damages consist of the damages to intangible assets in the sense of experienced pain or fear which the patient is enduring, and the compensation for this type of damages is specific and is viewed in relation to each individual case. Non-material damages which the patient endures can consist of physical pain, emotional pain due to reduced general life activity, endured fear, and emotional pain due to defacement.
When determining the compensation amount for nonmaterial damages the strength and duration of the endured pain, future pain and the percentage of reduction of general life activity are taken into consideration, while other circumstances could also be taken into consideration, such as the age of the injured patient, his or her general health condition, the type and characteristics of occurring injuries and the possibility of their treatment, and the compensation amount is weighed against each individual case.
The monetary amounts which the patient can realize in the name of nonmaterial damages on the above stated grounds can vary and amount to between several tens of thousands of Dinars to several hundreds of thousands of Dinars, and even over one million Dinars. The monetary amounts awarded in the name of nonmaterial damages in the Republic of Serbia are usually significantly smaller than the amounts awarded in western countries, where patients can expect much greater amounts for compensation in the name of nonmaterial damages.
