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The STUDIA UNIVERSITATIS BABEŞ-BOLYAI issue article summary
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Abstract: This article aims at analyzing the special procedure of establishing the professional liability of physicians, pharmacists and other health care personnel, as specified in arts. 668-674 from Title XV, Law 95/2006 and Order no. 1343/2006.
Failure to observe the law attracts the physician’s legal responsibility. This may be disciplinary, civil, labor law related, or penal. It is of course possible, even likely, that the same illicit action may entail two or several types of liability, such as both disciplinary and civil. However, the procedure of establishing each type of responsibility separately and subsequently apply the penalty is distinct. Therefore the first issue to be tackled is to delimitate the procedure of establishing professional civil liability for physicians from other procedures of liability establishment, namely the procedure of disciplinary responsibility of the physicians as specified in arts 442-451 of Law 95/2006, and the procedure of establishment labor-law-related responsibility as specified in arts. 267-268 of the Labor Code (Law 53/2003) respectively.
The next issue is the legal nature of the procedure of establishing the professional liability for physicians. Despite apparently belonging to the category of jurisdictional procedures, the procedure of establishing professional liability of physicians lacks the inherent features of an administrative procedure (e.g. the conflict is not resolved and the principle of contradictoriness is not observed).
The third section of the article analyzes the rules of the procedure: the participants in the procedure (Monitoring and professional competence commission for the malpractice cases, the petitioner, the accused physician, the employer and the insurer), the terms and documents of the procedure (classification of terms and documents), judgment before the Commission (the Commission investing document, debate sessions, submission of evidence, the verdict), access to the court of law (its control over the decision of the commission and the necessity of a new trial).
Finally, in order to avoid the deficiencies mentioned in the third section, a change of the Romanian legislation is proposed, which borrows the French institutional system and procedure, also briefly described.
Key-words : Jurisdictional procedure – Impartiality – Contradictoriness – Access to the court of law.
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