Między niestarannością a związkiem przyczynowym. Uwagi na tle orzeczenia Okręgowego Sądu Lekarskiego w Warszawie (OSL - 45/12)

Abstract

The article is a case study rather than a traditional commentary (glossa). Its subject is a disciplinary case, that was heard by a first instance medical court in Warsaw, attached to the Mazowiecka Okręgowa Izba Lekarska (Mazovian Regional Chamber of Physicians). The medical courts are not „real” courts as provided by Chapter VIII of the Polish constitution of 1997. Notwithstanding they are established by statutory law (Ustawa o izbach lekarskich) and they use both substantive and procedural rules that are provided by law and are clearly analogous to criminal responsibility. The starting point for the case was an medical intervention, undertaken (in 2009) for purely cosmetic purposes – „skin rejuvenation” or, more precisely, a fractional photothermolysis, by use of a specially designed laser device (fractional laser). It resulted in severe complications and, finally, in grave and irremovable scarring on the patient's cleavage. Facts of the case are thorougly presented, as well as scientific and practical background of the use of high-energy lasers in cosmetic surgery, including history of such practices since the late eighties of the 20th century. Then, three important legal questions are discussed: (1.) What is generally the status of purely cosmetic medical interventions under today's Polish law? – the answer appears vague, as this class of interventions is under some conditions perceived permissible both by the legal doctrine and the courts, but such a conclusion doesn't come from any actual statutory provisions (and Polish legal system is, as a rule, statutory). (2.) The article fully refers the court's detailed reasoning on the causal relationship between initial medical intervention and final harm, suffered by the patient. Within the scope of causation the case can be recognized as paradigmatic. The events arranged a clear „causal chain”, the chain's links were well identifiable and relatively easy to be proven, without referring to presumptions, suppositions, statistical typicality and similar instruments of arguing. The court didn't appeal as well to „but-for” (conditio sine qua non) reasoning and using of the „but-for” causation test (in this case it would be obviously useless, redundant and idle). The article contains also some considerations on the of so-called obiektywne przypisanie skutku (objective attribution of an effect, i.e. an equivalent of German objektive Zurechnung doctrine) and on use of such a test in the discussed case (this part is only hypothetical). (3.) Finally, the opposition „careful”/„careless” as a premise of responsibility is discussed. A human action is usually interpreted as careless if it is in discordance with some technical safety rules. In the case discussed the surgeon carried out the full scale intervention using arbitrary settings of the laser and omitted the test irradiation of a small area of the patient's skin. It could be put into doubt if the tests were really an obligatory rule, but the medical court decided it positively: however such a rule was not explicitly declared by medical manuals, it can be deduced from the the actual practice based on scientific evidence.