Equity rules (bonos mores) as a mechanism of compensation for bodily injury in medical malpractice cases

For over 40 years Article 419 of the Civil Code constituted an extraordinary mechanism of compensation for injuries incurred by patients in the course of medical treatment. This provision, being a kind of no fault liability of the public hospitals, was favourable for the injured and applied, among all, when the damage resulted from obligatory vaccinacion or other compulsory treatment (justified by social reasons), when the patient was treated with new methods which appeared to be harmful and consequently was abandoned by medicine and when a particular patient’s case contributed to the development of medical science. The situation of the injured patients changed significantly with the derogation of Article 419 of the Civil Code, which took place in 2004. The new Article 4172 of the Civil Code is narrower in scope and, as a rule, does not cover damages resulting from medical malpractice (dominium). The only exception may be, as the doctrine say, compulsory treatment (vaccinations, treatment of contagious diseases and psychiatric patients), since only then can a doctor (a hospital) exercise the power to act as a public authority (imperium). Up to now the Supreme Court has not decided any case on the ground of the new regulation. The doctrine hopes that the view to compensate patients in the narrower scope will be continued anyway.Uniwersytet Mikołaja Kopernika w Toruni