Provision of substandard medical services
The generalization established that the courts mostly correctly applied the legislation regulating consumer protection issues related to the quality of medical services. 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 particular 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. When considering cases of this category, in order to determine the quality of medical services provided, the courts need to examine the job descriptions of a particular medical professional, the scope of his functional duties, Orders of the authorized body, the Ministry of Health of the Republic of Kazakhstan, regulating the procedure for providing medical care and medical services. In addition, it is necessary to examine the conclusion of the authorized body ‒ the Department of the Committee for Control of Medical and Pharmaceutical Activities of the Ministry of Health of the Republic of Kazakhstan on the quality of medical services provided, which, as a rule, is issued at the request of the injured person before filing a lawsuit.
If necessary, the court may appoint an expert examination to determine the quality of the medical services provided. In resolving cases in this category, the courts generally adhered to these requirements. Currently, any civil case related to the quality of medical services is considered, as a rule, in the presence of an act of the State Institution "Department of the Committee for Control of Medical and Pharmaceutical Activities at the regional level of the Ministry of Health of the Republic of Kazakhstan" on verifying the correctness of the diagnosis, on the quality of medical care. When checking citizens' complaints about the quality of medical care, the Department has the right to request any information related to the provision of medical care and to involve independent experts. In the event of the death of a medical service consumer, the conclusion of a postmortem pathological, anatomical, and forensic medical examination is taken into account. For example, according to the claim of B. to LLP "D", dentist S. for the recovery in solidarity of a sum of money in the amount of 293,500 tenge paid by the plaintiff for prosthetics and compensation for moral damage in the amount of 100,000 tenge. The defendant installed 19 metal-ceramic crowns and one removable denture for the plaintiff, and the defendant received 293,500 tenge for his service. A few months later, the ceramic coating chipped on the plaintiff's 22nd tooth, and the plaintiff appealed to the defendant to replace the prosthesis, which was refused. According to the conclusion of a dentist's specialist, mechanical damage to the ceramic coating in the oral cavity occurred due to non-compliance with technical standards in the manufacture of orthopedic structures in the dental laboratory. To eliminate the defect, it is necessary to replace the orthopedic structure on the upper jaw. Considering that defendant S. is an employee of D LLP and fulfilled the plaintiff's order for the manufacture and installation of a removable prosthesis, by virtue of Article 921 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the court legitimately imposed the obligation to compensate the material damage caused to the plaintiff by providing substandard medical services in the amount of 293,500 tenge on the LLP. By virtue of Article 21 of the Law "On Consumer Rights Protection", compensation for moral damage in the amount of 100,000 tenge was recovered from the LLP in favor of the plaintiff. According to the claim of S. K. T. about the refund of the amount paid, compensation for moral damage. It was found that when providing dental care to the plaintiff, the defendant did not comply with the standards of endodontic and orthopedic dental treatment: slight color differences, overestimation of the crowns in the bite, crown protrusion in the cheek side, contact of the chewing teeth and crown cementation were disrupted, control X-rays were not taken after dental treatment. No contract has been drawn up with the client for the provision of paid services, treatment and prosthetics were performed without information consent.
Administrative penalties were applied against dentist T.. In connection with this decision of the Almaty District Court of Astana dated August 14, 2017, the claim of Sh. partially satisfied. An amount of 1,060,000 tenge was recovered from the defendant in favor of the plaintiff, 150,000 tenge for moral damage, 100,000 tenge for representative services and a state fee of 11,735 tenge. Another example: Sh. I filed a lawsuit with the KGP "Temirtau City Ambulance Station" for compensation for moral damage in the amount of 200,000 tenge in connection with improper medical care. The plaintiff's claims were partially satisfied by the court decision, the amount of 40,000 tenge was recovered from the defendant in favor of the plaintiff in compensation for moral damage, and the rest of the claim was denied. In making the decision, the court found that the plaintiff is registered at the dispensary with a district therapist with a diagnosis of grade 2 encephalopathy of mixed genesis (dysmetabolic and vascular).; vestibulopathic syndrome; astheno-vegetative syndrome; arterial hypertension of the 1st degree, risk group 3; type 1 diabetes mellitus, insulin-dependent, subcompensation stage; occlusion and hypoplasia of the right vertebral artery. He is a group 3 disabled person. March 9, 2016 Sh. I called an ambulance three times because I felt unwell. On the second call, a team consisting of doctor D. and paramedic S. arrived. Doctor D. injected the plaintiff with an intravenous solution of A. without consulting him, after which he was completely disoriented. An audit conducted by the Russian State Institution "Department of the Committee for the Control of Medical and Pharmaceutical Activities in the Karaganda region" revealed violations on the part of Doctor D., which resulted in insufficient collection of complaints and medical history, underestimation of objective data, which led to an incorrect formulation of the diagnosis. By Company Order No. 24-K dated May 19, 2016, Doctor D. was severely reprimanded for non-compliance with protocols for the diagnosis and treatment of patients with neurological symptoms. Having established guilt in the actions of the ambulance doctor, which led to harm to the plaintiff's health, the court, applying the norms of Articles 921, 951, 952 of the Civil Code, the normative resolution of the Supreme Court of the Republic of Kazakhstan dated November 27, 2015 No. 7 "On the application by courts of legislation on compensation for moral damage", partially satisfied the plaintiff's claims. The generalization also showed that there are cases when performers of substandard medical services, knowing about the responsibility provided by Law, satisfy the requirements of consumers on a voluntary basis. For example, B. She filed a lawsuit against the City Hospital No. 4 and doctor Sh. on the recovery of material damage and moral damage, justifying her claims by the fact that on July 4, 2016, she applied to the defendant for medical services for breast lift (reduction mammoplasty). The operation was performed by the head of the department, surgeon Sh. She paid 140,000 tenge for the service. After the operation, the plaintiff discovered a defect – a hematoma, as well as a deformity in the location of the breasts: one breast was higher than the other. When contacting the defendant, Sh. complaining about the quality of the service, the latter reassured her with the answer that the blood supply to her right breast had been disrupted during the operation and that it should improve over time. At the same time, the plaintiff went for bandages every day.
However, the condition of the breast and mammary gland worsened daily, the breasts turned blue, and sensitivity completely disappeared. On July 18, 2016, the plaintiff contacted another doctor, M., who, after examining her breast, discovered extensive skin necrosis on her right breast and advised her to treat the wound with a manganese solution on her own. On August 3, 2016, the wound was completely cleaned, and the plaintiff attended an appointment with Sh., who offered to perform a skin graft on the wound. As a result of the hopeless situation and unbearable pain, the plaintiff appealed to the NGO CCI "A" to protect her rights. Doctor Sh. After the claim was made, he voluntarily reimbursed her 340,000 tenge, of which 140,000 tenge was the payment for the operation and 200,000 tenge was paid as compensation, in addition, he offered to perform a skin transplant free of charge to eliminate the defect. The plaintiff agreed to Sh.'s proposal. On August 9, 2016, a second operation took place. After the operation, the plaintiff discovered that part of the right breast was missing, the nipple-aureolar complex was deformed, the lower edge of the halo was missing, a scar remained on the right breast and it turned out to be significantly higher than the left. In connection with the poorly performed repeat operation, the plaintiff appealed to law enforcement agencies and the Department of the Committee for Control of Medical and Pharmaceutical Activities in the East Kazakhstan region. As a result of the checks carried out and within the framework of the criminal case initiated, it was established that the doctor Sh. medical services were provided poorly, and during the second operation, they misinterpreted the condition of the wound and, as a result, chose the wrong tactics for surgical treatment with all the ensuing consequences. According to the recommendations of specialists, the plaintiff needed repeated plastic surgery abroad, at the GLORISMED clinic (Helios Zehlendorf) in Berlin, the cost of medical services is 18,416.55 euros, the cost of an air ticket from the Republic of Kazakhstan to Berlin and back is 1,200 euros, the total cost is 19,616.55 euros, which is equivalent to 6,836,956 tenge. The Court of first instance refused to satisfy the plaintiff's claims, as it found that the plaintiff, represented by the NGO "Amanat", had already filed similar claims against the City Hospital No. 4 as a legal entity that is the employer of Sh., However, the proceedings were terminated due to the plaintiff's rejection of the claim. At the same time, the statement of dismissal of the claim was signed by both the chairman of the Board of the NGO "Amanat" O. and B. herself, the Court also took into account that in the materials of the civil case on the claim of the NGO "Amanat" in the interests of B. the original receipt dated March 14, 2017, was available to City Hospital No. 4 for the recovery of material damage, compensation for moral damage and penalties, from which it followed that B. received a sum of money in the amount of 3,400,000 tenge from Sh., as a result of which claims against City Hospital No. 4 and Sh. for transactions dated July 5 and August 9, 2016 does not have.
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