Consumer protection, including lawsuits related to the quality of medical services
The Law of the Republic of Kazakhstan "On Consumer Rights Protection" dated May 4, 2010 (hereinafter referred to as the Law) defines the legal, economic and social foundations of consumer rights protection, as well as measures to provide consumers with safe and high–quality goods (works, services) and regulates relations between consumers - individuals, that is, citizens of the Republic of Kazakhstan, foreigners and stateless persons (Article 12 of the Civil Code of the Republic of Kazakhstan (hereinafter – Civil Code), who purchase and use goods, order works and services for personal household needs, or have such intentions, and sellers of goods, or their manufacturers, as well as performers of works and services, regardless of the forms of ownership and formation of a legal entity, including individual entrepreneurs (Article 19 of the Civil Code), and applies to legal relations, which arose or continued after its entry into force (Articles 4, 383 of the Civil Code).
The rights of consumers in the fields of financial, social, medical, tourism and other services, as well as issues of their protection, are established by the laws of the Republic of Kazakhstan (paragraph 2 of Article 2 of the Law).
According to paragraph 74 of Article 1 of the Code of the Republic of Kazakhstan "On the Health of the People and the Healthcare system", medical services are actions of healthcare entities that have a preventive, diagnostic, therapeutic or rehabilitative orientation towards a specific person.
The object of medical services is medical services provided by individuals and legal entities. Healthcare entities are healthcare organizations, as well as individuals engaged in private medical practice and pharmaceutical activities.
Relations with consumers, their rights and obligations, the procedure for exercising and protecting these rights, as well as the rights and obligations of performers of works and services, except for the Law, are regulated by the Civil Code and other legislative and regulatory acts that do not contradict it, as well as contracts and other transactions provided for by law or not contradicting it.
Regulatory legal acts of the Government of the Republic of Kazakhstan, ministries and departments, local representative and executive bodies may not restrict the rights of consumers and reduce the guarantees of their protection in comparison with those established by the Constitution, the Civil Code and the Law.
This resolution also states that courts should seek and study the regulatory legal acts of the central executive bodies and, if they contain rules that use the preferential (monopoly) position of sellers, manufacturers and performers or contradict the Law on Consumer Protection, keep in mind that such acts are invalid from the moment of their adoption and do not are subject to application (paragraph 5 of Article 3 of the Civil Code).
Jurisdiction of cases in this category
The jurisdiction of cases in this category is determined in accordance with the general rules provided for in art.29 of the CPC RK, claims against an individual are filed at his place of residence and against a legal entity at his place of residence.
At the same time, in accordance with the requirements of Part 9 of Article 30 of the CPC RK, consumer protection claims can be filed at the plaintiff's place of residence or at the place of conclusion or execution of the contract, therefore, when accepting a statement of claim, the courts must take into account the plaintiff's right to choose the place of consideration of the case.
Considering that the claim for monetary compensation for moral damage is a non-property claim and is derived from a property claim, the question of the jurisdiction of the dispute must be resolved by a judge depending on the main claim. At the same time, the provisions of the CPC and the Law of the Republic of Kazakhstan "On Consumer Rights Protection" do not exclude the possibility of applying contractual jurisdiction in consumer rights protection cases.
In accordance with the principle of dispositivity of the civil procedure, the consumer has the right to determine the court itself, which has jurisdiction over the case before the court accepts the statement of claim for its proceedings.
If, at the conclusion of a contract, including a loan agreement, the consumer has exercised his right to choose the court to consider the dispute, if any, then, guided by the principle of dispositivity of the civil procedure, the dispute must be resolved by the specified court.
The inclusion in the contract of a condition on the contractual jurisdiction of the dispute does not deprive the consumer of the right to challenge such a condition of the contract in accordance with the procedure established by applicable law.
Claims against an individual are filed at his place of residence and against a legal entity at his place of residence.
In accordance with paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 25, 1996 No. 7 "On the practice of application by courts of legislation on consumer protection" and in accordance with the general rules (29 CPC), claims are filed against an individual at his place of residence and against a legal entity at his location.
At the same time, at the choice of the plaintiff (part 9 of Article 30 of the CPC), consumer protection claims can be filed at the plaintiff's place of residence or at the place of conclusion or execution of the contract, therefore, when accepting a statement of claim, the courts must take into account the plaintiff's right to choose the place of consideration of the case.
Due to the requirements of subparagraph 10 of Article 541 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory Payments to the Budget" and Article 42 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", claims filed by public associations of consumers, associations (unions) in the interests of consumers for consideration in court are not subject to state duty.
At the same time, consumers who independently apply to the court are not exempt from paying state duty on claims related to the violation of their rights. In these cases, reimbursement of court costs to the state and the parties, and their distribution between the parties is carried out according to the rules established by Article 109 of the CPC RK.
According to the Law of the Republic of Kazakhstan "On Consumer Rights Protection", the burden of proving circumstances exempting from liability for non-fulfillment or improper fulfillment of obligations lies with the seller (manufacturer, contractor, authorized organization or authorized individual entrepreneur, importer) (Articles 19 and 34 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection).
When considering cases on consumer protection, judges took into account the provisions of the Plenum of the Supreme Court of the Republic of Kazakhstan dated July 25, 1996, No. 7, as amended on December 30, 2011, "On the practice of courts considering cases on consumer protection".
By virtue of Article 21 of the Law of the Republic of Kazakhstan "On Consumer Rights Protection", moral damage caused to a consumer as a result of a violation by a manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) on the basis of a contract with him, his rights provided for by laws and regulatory legal acts of the Republic of Kazakhstan in the field of consumer rights protection, is compensated by the causer harm only in the presence of guilt in the amount determined by the court.
Since moral damage is determined by the court regardless of the amount of compensation for property damage, the amount of monetary compensation to be recovered for moral damage cannot be made dependent on the value of the product (work, service) or the amount of the penalty to be recovered, but should be based on the nature and extent of the moral and physical suffering inflicted on the consumer in each specific case.
In resolving the consumer's claims for monetary compensation for moral damage, the courts took into account the circumstances relevant to the proper resolution of the dispute, found out what types of suffering the plaintiff had suffered, and what they specifically expressed.
The damage caused is subject to compensation by the seller (manufacturer, performer) in accordance with paragraph 1 of Article 31 of the Law, regardless of his fault and regardless of whether the consumer was in a contractual relationship with him or not.
On January 1, 2016, the new Civil Procedure Code of the Republic of Kazakhstan was put into effect. The introduction of the new Code has not significantly affected the consideration of this category of cases, as the Code of Civil Procedure regulates the general rules of the case.
The jurisdiction of cases in this category also remained unchanged under Part 9 of Article 30 of the CPC RK.
106, Part 3 of the Civil Procedure Code of the Republic of Kazakhstan, the exemption of a citizen from paying state duty is described in more detail and on the issuance of a court ruling, which is not appealed.
Recovery of material and moral damage related to the provision of medical services
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.
Of the seven judicial acts of the supervisory instance, among them: in 6 cases (Astana -3, North Kazakhstan region -1, Kostanay region -1, West Kazakhstan region -1), it was refused to initiate supervisory proceedings to review decisions of the court of first instance, decisions of the appellate and cassation instances, since in accordance with the requirements of Articles 917,951 of the Civil Code The claims of the plaintiffs have been reasonably and lawfully refused to satisfy the claims of the plaintiffs, which provide for compensation for material damage and moral damage in the presence of the fault of the harm-doer.
Another example: Plaintiff Esmakhanova A.N. filed a lawsuit against the RSE "West Kazakhstan State Medical University named after Marat Ospanov" for recovery of moral damage due to the inadequate quality of medical services. By the decision of the Aktobe City Court of November 26, 2013, the satisfaction of the claims of Esmakhanova A.N. was denied.
By the decision of the Appellate Judicial Board for Civil and Administrative cases of the Aktobe Regional Court dated September 12, 2014, the decision of the court of first instance remained unchanged.
By the decision of the cassation judicial board of the Aktobe Regional Court dated January 6, 2015, the decision of the court of appeal remained unchanged. The applicant applied to the supervisory authority for the cancellation of the judicial acts in the case.
By the resolution of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated December 15, 2015, the decision of the Aktobe City Court dated November 26, 2013, The decision of the Appellate judicial board for Civil and administrative cases of the Aktobe Regional Court dated September 12, 2014 and the decision of the cassation judicial board of the Aktobe Regional Court dated January 6, 2015 were canceled with the referral of the case for a new hearing to the appellate judicial board for civil and administrative cases of the Aktobe Regional Court in a different composition of the court.
The grounds for the cancellation of the above judicial acts were, in accordance with Part 3 of Article 387 of the CPC (in the old version), the admission of significant violations of substantive and procedural law. It follows from the case file that the plaintiff's child Samgat Garifollauli, born on June 15, 2009, at the age of 1 year 11 months, was diagnosed with a congenital heart defect.
TetradaFallo". On June 21, 2012, the child was admitted to the cardiac surgery department of the Marat Ospanov ZKSMU Medical Center for surgical treatment of the defect. The mother's consent was obtained for the operation. On June 27, 2012, the child underwent surgery using artificial circulation: "median sternotomy, radical TetradoFallo correction with plastic surgery of the right ventricular outlet tract with an autopericardial patch, ligation of the open arterial duct, atrial fistula discharge in conditions of artificial circulation, cardioplegia."
The surgical treatment of the child was carried out by the staff of the cardiac surgery department of the above-mentioned medical center with the participation of foreign specialists. After the operation for a heart defect, the child's condition deteriorated sharply, postoperative complications arose in the form of paralysis, disorders of the internal organs.
The courts, refusing to satisfy the plaintiff's claims, were motivated by the fact that on the basis of written evidence, including repeated expert opinions from specialists in the field of cardiac surgery, the results of an inspection by the competent medical control authority, it was established that the defendant was not guilty of the child's postoperative condition and any significant medical violations during surgery.
However, the supervisory board considered these conclusions to be unfounded and inconsistent with the factual circumstances of the case. According to paragraph 2 of Article 951 of the Civil Code of the Republic of Kazakhstan, moral damage is compensated if there is fault of the causer.
In order to clarify this issue, the court appointed a forensic medical examination, for the experts to resolve a number of questions about the proper quality of medical services provided, the presence of a causal relationship between the services provided and the subsequent deterioration of the patient's health and disability, etc.
However, according to the conclusion of the experts of the Center for Forensic Medicine No. 120 dated August 14, 2014, it was not possible to answer these questions due to the lack of conclusions from relevant specialists who were not represented by the court.
According to the Inspection Results Act No. 111 dated October 18, 2012 of the Department of the Committee for Control of Medical and Pharmaceutical Activities of the Ministry of Health of the Republic of Kazakhstan, illegal medical activity by anesthesiologists and intensive care specialists who do not have certificates for the right to provide medical care to children was revealed in the defendant's medical center.
The court did not investigate and did not give a proper assessment of this circumstance, and also did not find out whether these violations of the requirements of legislation in the field of medical services could have caused harm to the patient.
Taking into account the established circumstances, the judicial acts of the court of first instance, the court of appeal and the court of cassation were annulled with the referral of the case for a new trial to the court of appeal, as a number of circumstances of significant importance to the case remained unclear.
The legal basis for regulating this category of civil cases is:
- The Constitution of the Republic of Kazakhstan;
- The Civil Code of the Republic of Kazakhstan;
- The Civil Procedure Code of the Republic of Kazakhstan;
- The Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the Budget";
- Code of the Republic of Kazakhstan No. 193-IV dated 18.09.2009 "On the health of the people and the healthcare system";
- The Law of the Republic of Kazakhstan "On Consumer Rights Protection" dated 05/04/2010;
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 7 dated July 25, 1996 "On the practice of courts applying legislation on consumer protection".
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