The medical law and medical law is the branch of law that deals with the rules and responsibilities of professional doctors and patient rights.
Despite international recognition in our contemporary age, the name of medical law did not exist. However, a criterion expressed in law, doctrine or jurisprudence that could have clearly defined the content of what is or could be considered as Medical Law, and this is how, through research we find two concepts referred to this subject :
The first concept of medical law recognizes as an author the doctor and Venezuelan lawyer, Rafael Aguiar-Guevara, who in his work “Medical Law in Venezuela” (1996), defines medical law as:
“The set of legal norms and moral and ethical precepts, Public and Private, which regulates the activity of the physician in the exercise of his profession, regulates the doctor-patient relationship and the consequences derived from it, thus establishing the principles general medical liability “ . 2
The author defines, as in any concept of law (in general), a set of legal norms of control, but also includes ethical and moral norms and precepts, which, as a whole, regulate the physician in his professional practice, since Would be governed by the general and special rules of law. It consists of legal norms and precepts of public and private character, because the Medical Law consists of convergent standards of Public Law and Private Law that protect and guarantee the rights of patients, taken individually, but also monitoring concerning the Public Health, establishing a general control not only in the private practice of the profession, but also regulating and organizing public health care services dependent on the State.
Medical law does not really define the doctor-patient relationship, but certainly, it regulates and considers, with special attention, the consequences (legal) of the same, thus establishing the general principles of medical legal liability.
Years later, another definition of medical law, attributed to Angel Antonio Tullio, is obtained in these terms:
“Medical Law is defined as the branch of law that deals with the relationship and application of common and statutory principles and procedures of hygiene, health sciences and public administration laws” . 3
Under these principles we can see that in most of the countries associations or societies have been formed that group nationally, regionally or internationally to all those professionals of any area of health who are interested in medical law, it suffices to name some nationals as : the Venezuelan Association of Medical law , the Association of Medical law of Costa Rica , the Peruvian Association of Medical law , the Spanish Association of Health law and many other national character; in conjunction with other regional events such as the Iberoamerican Society of Medical Law , the American Association of Medical Law , and finally illustratively, there is also a global organization that brings together its members under the name of World Association for Medical Law founded in the city of Ghent, Belgium, in 1997, under the vision of its founder Ralph Dierkens , Faculty of law, University of Ghent, who had the vision to establish a professional association in which legal professionals And Medicine, dedicate their studies to this new discipline. 4
Medical law is fundamentally civilian in origin, not least remembered professor, Dr. Arturo Ricardo Yungano , defined the doctor – patient relationship as “Contract Medical Assistance” during the “Symposium Malpractice”, organized by the Federal Council of Collegial Medical Entities , in the city of Buenos Aires, in October 1979. 5
It is considered that medical law is an autonomous right, and therefore some authors, declaring their independence, do not want to subordinate it as a branch of medicine or law. However, it could be accepted as an autonomous discipline of law, which has its own sources of law, its own principles, and its own special characteristics, which differentiate it from any other branch of law.
Medical law is substantive and adjective, considering its particularity of understanding substantive legal rules (establishing full legal norms) and adjective (legal rules of a procedural nature), is fundamentally legislated, not attending to customs, but on the contrary, Obeying the legal norms written and legislated, product of the States or authorized Medical Associations, which serve as sources to the medical law, doctrine and jurisprudence. It is very dynamic, because of the changing of its norms and regulations walking, or so it tries, along with the advances of science, being fundamentally pragmatic.
In its conception, it has been tried to limit medical law to the mere substantiation of a legal (civil or criminal) trial, against a health care provider in a lawsuit. To accept it would be to close the fullness of medical law, being a common misunderstanding. According to the original definition of medical law, it is understood that its regulatory standards range from the beginning of life and even before, according to the legal regulation of the embryo and its rights, and assisted reproduction as such, through the rights of the Patient relationship, the medical care contract and the doctor-patient relationship itself, the various regulations on medical history, informed consent, medicine assisted by computer technology and communications (MATIC), legal aspects of various medical specialties, intrusiveness In all its forms, state regulations on the characteristics and requirements that health service providers should have, and finally, on the legal norms related to the right to die with dignity, euthanasia and assisted suicide. 5
Medical law and medical law is the branch of law that deals with the rules and responsibilities of professional doctors and patient rights.
Among other issues are: the contract for the provision of medical services – rights and duties of the parties, professional diligence as a guideline of conduct, obligations of means and obligations of result in the exercise of the medical profession – civil liability of the physician, Team liability and causes that aggravate or reduce liability, compensation and insurance, doctor’s relations with professional associations, need for association, advertising and intrusions, company doctors, forensic doctors and physicians integrated into a national public health system .
Medical law, accountability and changes in medicine
The changes that occur in medicine and the worldwide recognition of essential rights of patients in the Spanish-speaking countries are essential elements for the increasing vulnerability of quality and excellence in medical care, with irreparable professional and Personal by the greater judicialization of professional and institutional claims by mistake and malpractice, ultimately responsibility for damages, which generates from the beginning a drastic stressful trauma, with serious psychological and material consequences for the professional, often unfair.
The fear of having a legal claim generates in the Professional an excessive defensive medical activity and an increase of the insurance costs, in a specific situation that is directed towards the economic collapse of the medical companies and providers of health services.
It is essential to raise the parameters of quality and excellence of medical care, to know the legal provisions and to strengthen the right of access to health, with due knowledge about the legal requirements to which the medical professional is subjected and to distort the unjust preconception And media presumption of professional and institutional medical guilt in society.
The knowledge of Medical Law improves the patient doctor relationship, exceeds the quality levels of the medical professional practice, hierarchizes the professional and institutional medical service and undoubtedly, achieves the best quality positioning.
Mediation and Arbitration
The reduction of the judicialization of claims for the use of mediation, conciliation and arbitration is an elementary and effective mechanism of action, which was even received by WHO / PAHO at a special meeting in Mexico in 2002 and because of its importance was added in reports: “International Regulatory Mechanisms in Health and Social Security” and “New Tools for the Defense of the Right to Health”, prepared by the Regional Office of Health Legislation