Compensation for moral damage as a result of a medical error
Medical institutions, as well as medical professionals engaged in private practice, bear civil liability.
The liability provided for in Article 921 of the Civil Code applies to the legal relations in question, when errors in the treatment of a patient were the result of unfair attitude of medical personnel to work, the medical institution is obliged to compensate for the damage caused to the patient's health. The mandatory basis for liability is the fact of harm: deterioration of health, death of the patient, complication of the underlying disease, etc.
When determining the amount of compensation, the degree of guilt of the violator, the physical and moral suffering of the victim, as well as the actual circumstances under which the harm was caused are taken into account.
Moral harm caused to the patient can be expressed in emotional and volitional experiences, expressed in feelings of humiliation, irritation, depression, anger, shame, despair, inferiority, discomfort, etc. These feelings can be caused by harm to health, including disfiguring open parts of the human body with scars and scars; disclosure of medical secrets.
Physical suffering as a manifestation of moral harm may include physical pain experienced by a citizen in connection with causing harm to health.
By the decision of the Zhanaarkinsky District Court of the Karaganda region, left unchanged by the appellate judicial board, on June 19, 2015, compensation for moral damage in the amount of 1 million tenge was collected in favor of Ms. Z.S. from the Central District Hospital of Zhanaarkinsky district.
The court found that the plaintiff's spouse, working as a locksmith at Saryarka-ENERGY LLP while performing work duties during maintenance of a mobile diesel sorting plant after repairs, was sandwiched between it and a tanker. As a result, he was taken to the Central District Hospital with a stab wound and extensive subcutaneous hematoma of his left thigh, where he received first aid and stitches, and was sent home. Due to the inflammation of the wound, the victim was sent to the Regional Center of Traumatology and Orthopedics named after Professor H.Zh. Makazhanova, where an extensive suppurated hematoma of the left thigh was detected during the operation, the victim died in the hospital.
The conclusion of the forensic medical examination established that the death of the victim, S.M.A., occurred in the hospital from a bruised wound of the left thigh, complicated by phlegmon of subcutaneous fat and soft tissues of the left thigh, thrombosis of the subcutaneous vein of the left thigh, thromboembolism of small branches of the pulmonary artery, multiple hemorrhagic pulmonary infarctions.
The conclusion of the commission's forensic medical examination established that at the level of the Central District Hospital, during diagnostic and treatment measures, the severity of the traumatic injury to the left hip was not assessed, incomplete primary surgical treatment of the wound was performed, the left lower limb was not immobilized, tetanus serum was not administered, insufficient hemostasis and antibacterial therapy were performed, due to a superficial examination, purulent-an inflammatory process on the part of the wound, the patient was hospitalized late. From the results of an inspection conducted by the Department of the Committee for the Control of Medical and Pharmaceutical Activities of the Ministry of Health of the Republic of Kazakhstan in the Karaganda region upon the treatment of T. Z.S., it follows that the main cause of death of the patient, S.M.A., was improper provision of primary medical care, which led to suppuration of the wound and late hospitalization of the patient.
In assigning responsibility to the defendant, the court proceeded from the norm of Article 921 of the Civil Code, which stipulates that a legal entity or a citizen compensates for damage caused by its employee in the performance of labor (official, official) duties. In determining the amount of compensation, the court took into account that the plaintiff had lost a loved one, her spouse, and she had three dependent children, and proceeded from the principles of fairness, reasonableness and sufficiency.
In another case, the decision of the Saryarkinsky District Court of Astana, left unchanged by the appellate judicial board, denied the claim of S.V.I. to the State Institution "Astana City Health Department", GKP na PHV "City Hospital No. 2" of the Akimat of Astana, FAO "Railway Hospitals of Disaster Medicine" - "Central Road Hospital", KGP at the Municipal Polyclinic No. 2 on compensation for moral damage in the amount of 5,000,000 tenge.
As it was established, from December 14, 2013 to January 17, 2014, S.V. was observed by doctors of the city polyclinic No. 2 of the Akimat of Astana and received treatment for pneumonia. During his examination, doctors did not prescribe or perform a computed tomography of the lungs, taking into account the clinic and X-ray examination data, sputum analysis for tuberculosis, the temporary disability list was closed by the district doctor without full recovery, and a control X-ray was not recommended. From April 22 to April 30, 2014, the plaintiff's son was undergoing inpatient treatment at the Central Road Hospital. The Commission found that the plaintiff's son was not examined by the head of the department upon admission, a CT scan of the lungs was not performed, and an eye specialist was not consulted, taking into account arterial hypertension, or a urologist due to 27 changes in urine tests. He underwent contraindicated physiotherapy.
The letter from the Department of the Committee for the Control of Medical and Pharmaceutical Activities in Astana states that the failed diagnostic and treatment measures did not affect the outcome of the disease. Doctors who are employees of the defendants violated medical records and certain procedures in the treatment of the plaintiff's son, but these violations did not affect the outcome of the disease. The plaintiff's arguments that her son died as a result of improper actions by doctors were not confirmed during the trial. In such circumstances, the court did not find any legal grounds to satisfy the claim.
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