Bristande information och samtycke - brister lagen? Patientens ställning ur ett ersättningsperspektiv

A patient who comes up against a bodily injury due to medical care, may be entitled to compensation - but the legal requirements in order to recieve compensation diversifies with the cause of damage. PSL comprises certain circumstances and identifies situations under which a patient may be entitled to insurance based indemnification. SKL is generally applicable on questions of pain-and-suffering awards and is used when nothing else is specifically prescribed. The chance to get compensated is greater when the cause of damage is comprised by PSL, since the burden of proof is easier in PSL than in SKL. It is therefore interesting to investigate how come deficient information and omitted consent are left out of PSL - when, at the same time, the importance of information and consent are pointed out in other legislation concerning medical care. The legislation on medical care can overall be characterised as built upon the care staff's obligations, rather than upon the patient's rights. It is, among other things, enacted that the medical care shall build upon respect for the patient's self-determination and integrity, and that it as far as possible shall be formulated and implemented in consultation with the patient. But this is, as a main principle, still nothing that a patient can legally demand. Medical actions are often associated with certain risks, even when they are correctly carried through. The question is how our society of today compensationwise categorizes, and in the future ought to categorize, cases where the patient on beforehand not has been aware of a risk which has come to materialize - and resulte in a bodily injury. Such injuries which originates from deficient information&semic that the patient would have made another decision about (would not have given his or her consent to) the medical action if he or she had known about its risks - are today left out of PSL. A public investigation has considered whether this should be comprised by PSL or not, and accentuated the importance of constructing a satisfying solution for the patients, concerning compensation for injury because of deficient information - however without suggesting any solution. The law provides authority to ethical standpoints about how people should act in different situations. In order to choose how a law should be formulated, one ought to know which values one wish to protect. Medical law and ethics are closely connected to eachother. For the care situation and the patient-provider relation, are two central ethical ideas represented by deontological ethics and consequentialist ethics, as by the opposite interests autonomy and paternalism. Should a patient always control and govern him- or herself, or should the health care provider make all desicions regarding the patient? In order to analyse and reach an answer to the question of which compensation system would be preferable, will ethical and legal reasonings be interweaved during this thesis. Some important aspects that appears, are that compensation partly functions as a feature for establishing rights, and that it is possible to create compromises between the individual's sovereignity and other's higher knowledge - but it requires that the intentions elucidate in law. The one who, like the author of the thesis, concludes that the patient's position can and should be strengthened concerning information, consultation and self-determination, could advocate that PSL shall comprise also those situations where deficient information and omitted consent with predominant probability has caused bodily injury