Lekarska greška i profesionalna krivica zdravstvenih radnika

Abstract

The paper discusses the concept and purposefulness of medical error in positive Serbian law (the Law on Health Care), then in comparative law, in order to formulate a proposal for the most adequate definition of this legal term de lege ferenda. The subject of the analysis is the different views of the doctrine and judicial practise on the reach of medical professional error, as well as its positioning in the structure of elements of civil liability for damages, especially in relation to professional fault. The author estimates that the liability of a physician for a medical error, although somewhat peculiar, is not a new legal basis of civil liability for damage in domestic law. It is only one of the possible manifestations of a breach of the due diligence of an expert (from the Law on Obligations), and it is a form of subjective civil liability for the basis of fault (guilt). Thus, physicians bear civil liability for mere negligence on the basis of (objectified) professional fault, which, as a broader term, includes medical error.