Civil liability in medicine in the legal system of the Republic of North Macedonia

Marija Ampovska
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Abstract

The Macedonian legal system does not contain special rules on the liability of medical institutions and medical staff for damage that is caused while providing health services. This implies that the general rules of civil liability, which can be found in the Macedonian Obligation Relations Act (ORA), apply to professional liability of physicians and medical institutions. The comparative law shows that the rules of contractual and non-contractual liability, fault and strict liability as well as vicarious liability can be applied in cases of medical liability. The aim of this paper is to present the existing rules on liability in the Macedonian legal system that may apply in cases of civil liability in medicine, as well as to present cases involving different kinds of liability and analyze the specific differences among them. A clear distinction among different types of liability is essential for deciding which liability rules apply in a particular case: the rules on contractual liability or non-contractual (tort) liability. The legal relationship between a patient and a physician is primarily a contractual relationship and, in these cases, a medical treatment contract is the legal ground of the patient’s and the physicians’ rights, duties and obligations. The application of the fault liability rules is predominant in comparative law but the mass usage of medical devises and the introduction of high technology into medicine in general have resulted in the tendency to increase the application of strict liability in practice. In this paper, the author addresses the following questions: which of these tendencies and cases are accepted in the Macedonian legal system, and under what conditions are they applied in the Macedonian legislation and in practice.
北马其顿共和国法律体系中的医疗民事责任
马其顿的法律制度没有关于医疗机构和医务人员在提供保健服务时所造成损害的责任的特别规则。这意味着《马其顿义务关系法》中关于民事责任的一般规则适用于医生和医疗机构的专业责任。比较法表明,医疗责任适用于合同责任和非合同责任、过错责任和严格责任以及替代责任。本文的目的是介绍马其顿法律体系中可能适用于医疗民事责任案件的现有责任规则,以及介绍涉及不同类型责任的案件,并分析它们之间的具体差异。明确区分不同类型的责任对于决定哪一种责任规则适用于具体案件是至关重要的:是关于合同责任的规则还是关于非合同(侵权)责任的规则。病人和医生之间的法律关系主要是一种合同关系,在这种情况下,医疗合同是病人和医生的权利、责任和义务的法律依据。过错责任规则的适用在比较法中占主导地位,但医疗器械的大量使用和高技术在医学上的普遍应用导致了严格责任在实践中的应用增加的趋势。在本文中,作者探讨了以下问题:哪些倾向和案例在马其顿法律体系中被接受,以及在什么条件下它们在马其顿立法和实践中适用。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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