Глава 12. Розгляд медичних справ у порядку цивільного судочинства: наукові підвалини та практичні інструменти

In civil proceedings medical cases are considered, that is cases in the field of medical care, the peculiarities of proceedings in this category of cases are determined and general disputes arising from civil cases in practice are determined. Regulatory gaps have been clarified, proposals for improving the legislation of Ukraine have been developed and also practical algorithms that can be useful for ensuring human rights in the field of health care are highlighted.
After conducting a study of the outlined issues, a number of conclu­ sions have been formed that may be useful for law enforcement and law application, when considering medical cases in civil proceedings and also for law making in the process of preparing a new edition of the Civil Procedure Code of Ukraine. The study has established that most of the problems that arise in practice are caused not so much by legislative shortcomings as by spectral legal understanding, and therefore, different approaches in the exercise of rights and application of the provisions of the legislation of Ukraine.
The study has formed the following regulatory proposals to the Civil Procedure Code of Ukraine: 1) to amend Article 228 (1) of the Code of Civil Procedure of Ukraine to read as follows: «The court, having heard the opening remarks of the participants in the case, if necessary, their additional explanations, finds out the circumstances to which the participants in the case refer, as the basis of its claims and objections, and examines, in the manner prescribed in the preparatory meeting in the case, the evidence by which they are substantiated»; 2) change the name of the legal structure from “opinion of an expert in the field of law”, which is enshrined in paragraph 7 of chapter 5 of section 1 of the Code of Civil Procedure of Ukraine to advisory opinion of a specialist.
The following practical advices on law implementation and enforcement in medical cases has been prepared:
1) when conducting an examination in criminal proceedings, the expert’s conclusion will be evidence in civil proceedings in a medical case because it contains information about the subject of evidence in a medical case;
2) the statement of the Article 82 (6) of the Code of Civil Procedure of Ukraine is uncontested and imperative, therefore, in all cases, the decision to close the proceedings and exemption of a person from criminal liability is the basis for exemption from proof in the question of whether these actions took place (inaction) and whether they are committed by that person;
3) the Civil Code of Ukraine guarantees the right to compensation for damage caused by unlawful behavior in relation to both a family member and a close relative;
4) family members and close relatives are entitled to compensation for non-pecuniary damage if the death of a relative is not in direct causal connection with the actions of medical workers, but the actions of doctors were illegal, during the life of the patient, illegal behavior was committed against him;
5) father and mother will be entitled to compensation for non-pecuniary damage in case of intranatal and antenatal death of the fetus, when establishing the composition of the civil offense;
6) in the absence of an autopsy or forensic autopsy, the case has a civil law perspective, therefore, family members or close relatives have the right to file a claim for compensation for moral damage if there is evidence of illegality of the actions of doctors.