Legal Aspects of Anaesthesia

137 Pages·1989·14.09 MB·English

by  J. F. Crul (auth.)

LEGAL ASPECTS OF ANAESTHESIA
DEVELOPMENTS IN CRITICAL CARE
MEDICINE AND ANESTHESIOLOGY
Volume 21
For a list of the volumes in this series see final page of the volume.
LEGAL ASPECTS OF
ANAESTHESIA
edited by
J.F. CRUL
European Academy ofA naesthesiology
KLUWER ACADEMIC PUBLISHERS
DORDRECHT I BOSTON I LONDON
Library of Congress Cataloging in Publication Data
Legal aspects of anaesthesla I edited by J.F. Crul.
p. em. -- (Developments in erltlcal care mediclne and
anaestheslology ; 21)
Includes lndex.
ISBN ·13 :978·94-010·6945·8 e·ISBN·13:978·94·009·1011·9
DOl: 10.10071978·94-009·1011·9
1. Anesthesiology--Law and legislatlon--Europe.
2. Anesthesl0loglsts--Malpractice--Europe. I. Crul, J. F.
II. Serles.
[DNLM· 1. Anesthesiology--leglslation & jurlsprudence. 2. EthlCS,
Medical. 3. Malpractice. WO 233.1 L49s1
KJCS210.A53L44 1989
344.4·0412--dc20.
[344.04412J
DNLM/DLC
for Llbrarv of Congress 89-15578
ISBN-13 :978-94-010-6945-5
Published by Kluwer Academic Publishers,
P.O. Box 17, 3300 AA Dordrecht, The Netherlands.
Kluwer Academic Publishers incorporates
the publishing programmes of
D. Reidel, Martinus Nijhoff, Dr W. Junk and MTP Press.
Sold and distributed in the U.S.A. and Canada
by Kluwer Academic Publishers,
101 Philip Drive, Norwell, MA 02061, U.S.A.
In all other countries, sold and distributed
by Kluwer Academic Publishers Group,
P.O. Box 322, 3300 AH Dordrecht, The Netherlands.
All Rights Reserved
© 1989 by Kluwer Academic Publishers
Softcover reprint of the hardcover 1st edition 1989
No part of the material protected by this copyright notice may be reproduced or
utilized in any form or by any means, electronic or mechanical
including photocopying, recording or by any information storage and
retrieval system, without written permission from the copyright owner.
PREFACE
J.F. Crul
The topic Legal Aspects of Anaesthesia is still rarely treated in book
publications, but deserves increasing attention as more cases of litigation occur
each year and anaesthetists also become more aware of the legal structure
within which they practice their profession.
I am happy to have been able to obtain the cooperation of experts in this
field from various European countries. The contributing authors in this book
come from both the anaesthesia and surgery side as well as from the
jurisprudential background. As these two fields have their own professional
jargon we have been very careful in using definitions, avoiding that a specific
term might lead to misunderstanding and confusion. The international
authorship did not facilitate this task.
The subject of this book was also the topic of a meeting of the European
Academy of Anaesthesiology held at the French Study Center, La Suquette,
Saint Vincent Ie Palue~ held three years before publication of this book. The
organizers G. Barrier, J.F. Crul, and J. Lassner felt the need for a book
publication presenting the state of the art of anaesthesia and the law in
European countries. With the present book this plan has been realized. During
the meeting many subjects were thoroughly discussed and the editor considered
a number of them as very informative and therefore these were included in
this book.
v
CONTENTS
Preface v
J.F. Crul
List of authors ix
PART A -Geoerallegal aspects in different coUDtries
Legal aspects of anaesthesia mishaps in The Netherlands 1
J.F. Crul
Legal basis of medical liability after anaesthesia
mishaps in France 7
G.Barrier
Jurisprudential aspects of anaesthesia
in France 11
C. Paley-Vincent
Discussion 18
Medicolegal problems in the United Kingdom 21
R.L. Hargrove
Frequency and causes of legal suits in relation to
the general practice of anaesthesia in Sweden 23
B. Ha1l~n
Legal liability suits after anaesthetic accidents
in Germany 37
H. Wroblewsky
Discussion 43
viii
PART B -Special medicolega1 problems
Awareness. A medico-legal problem 59
R.L. Hargrove
Delayed respiratory effects of the administration of
the new morphinomimetics 67
F. Marchetti
Medico-legal consequences deriving from inquiries on the
incidence of anaesthetic mishaps 75
J. Lassner
Discussion 80
Problems of surgical and anaesthesiological abstinence:
legal and ethical consequences 93
L.Rene
Discussion 97
Legal and ethical problems of anaesthesia for
organ-transplantations 105
C.Manni
Discussion 111
Rules of procedure for anaesthesiologists in case of faults
or (near) accidents 11 7
J.F. Crul
Discussion 121
Anaesthesiological responsibility for the day-care patient 125
C. Roos
General conclusions 133
J.F. Crul
UST OF AUTHORS
Prof. G. Barrier
Departement d'A nesthesiologie
Group Hospitalier Necker-Enfants Malades-Laennec
149, Rue de S~vres
75743 PARIS CEDEX 15. FRANCE
Prof. J.F. Crul Ph.D.
Department of Anaesthesiology
University Hospital St. Radboud
Geert Groteplein Zuid 10
652S GA NDMEGEN. THE NETHERLANDS
Dr. B. Hall~n
Department of Anaesthesia
Karolinska Sjukhuset
Box 60500
S-10401 STOCKHOLM. SWEDEN
Dr. R.L. Hargrove
Magill Department of Anaesthetics
Westminster Hospital, Medical School
Page Street Wing
LONDON SWlP 2AP. UNITED KINGDOM
Prof. J. Lassner
7, Rue Mechain
75014 PARIS. FRANCE
Prof. C. Manni
Istituto di Anestesiologia e Rianirnazione
Universita Cattolica del Sacro Cuore
Largo Agostino Gemelli, 8
00168 ROMA. ITALIA
Dr. F. Marchetti
Responsable du Departement d'A nesthesie
Laboratoire Janssen SA.
ix
x
17, rue Galilee
75116 PARIS. FRANCE
C. Paley-Vincent
a
Avocat la Court
40, rue de Monceau
75008 PARIS. FRANCE
Dr. L. Rene, surgeon
Conseil Departemental de la Ville
Ordre des Medecins
14, rue Euler
75008 PARIS. FRANCE
Dr.C.Roos
Strandvlietlaan 17
1191 CG OUDERKERK AID AMSTEL. THE NETHERLANDS
Dr. H. Wroblewski
Institut fUr Anasthesiologie
Klinikum Grosshadem
Marchioni Strasse 15
8000 MiiNCHEN. WESTERN GERMANY
PART A. GENERAL LEGAL ASPECTS IN DIFFERENT COUNTRIES
LEGAL ASPECTS OF ANAESTHESIA MISHAPS IN THE NETHERLANDS
J.F. Crul
Every citizen is legally responsible for the actions he/she takes towards other
persons. If their actions damage those other persons directly, materially or
immaterially, then one is responsible for that damage and should be punished.
These principles are laid down in almost all European countries in either civil,
penal or disciplinary law codes.
The medical profession is no exception and we find therefore Statutes of
Misconduct for the medical profession in every legal system in Eurcpe.
Medical specialists have a greater responsibility because of their greater
knowledge, skills and experience and usually also take greater risks during
treatment of their patients. They are therefore judged more rigidly.
As the profession of anaesthesiologist is a recognized medical specialty in all
countries to which the members of the European Academy of Anaesthesiology
belong, it is useful to discuss the similarities and differences of the legal
aspects of anaesthesia in a representative group of countries in Europe.
The number of malpractice suits in Holland is not as high as on the other
side of the Atlantic, but it is on the increase. Those malpractice suits bring
out an increasing awareness among the general public about anaesthesia, its
risks and rights. This necessitates us to upgrade our knowledge in that field.
Nobody is free of exposure to liability, particularly the anaesthesiologists. A
legal case may happen only once or twice during our professional lifespan, but
if not handled properly, it can ruin the practice and usually also the personal
life of the anaesthesiologist involved.
I shall discuss the legal aspects of anaesthesia mishaps in Holland according to
the three different systems, namely:
A -civil law codes
B -penal law codes
C -disciplinary law codes