Įstatymo įvykdomumas. Šiuolaikinė gydytojo atsakomybės didinimo tendencija ir gynybinės medicinos paradoksas

Abstract

Feasibility is the basic requirement to any legal provision. According to this requirement, such provision must not raise demands that are too difficult to be fulfilled. This brings the next requirement for any new legal provision: before its introduction, all measures have to be taken to ensure its feasibility. The phenomenon of unfeasible laws has attracted great attention recently. Numerous examples of unfeasible legal provisions were detected. Perverted consequences of such legal provisions (resistance, disobedience, different kinds of “defense” from its demands, criminal violation, etc.) were described. However, as far only unfeasibility of a single legal provision has been studied. In this article the problem is studied in a much broader context- feasibility/unfeasibility entire legal institution—medical law. The most important current (especially, last decade) world trend was an explosive increase of demands to health care standards, which, in turn, caused the sudden increase of legal liability of physicians and other representatives of health care. This abrupt increase in demands to a physician and his legal responsibility was not preceded by a related increase in his abilities and resources necessary to adapt to the change in law. This caused the set off of unintended side-effects, which arise from doctors’ intent to defend themselves from probable legal prosecution and which brought about a decrease of the quality of health care. Multiple manifestations of defensive medicine and its consequences for health care are reviewed. Ways and prospects for solutions to the problem of “defensive medicine” (especially, ensuring feasibility of related legal provisions) are examined.