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Athena Varianes v. Dr. Andreas Vorkas, appeal 269/2006

Cyprus Law on medical negligence – The appellant had filed a legal action against her doctor. The doctor is an eye specialist and well-known for his services to treat nearsightedness with laser surgeries. When the patient arrived home, she could already feel nuisances on both her eyes. There is still doubt as to whether patient’s eye sight may ever fully recover.

Written in coordination with fellow law student Elena Alexandrou

Facts

The name of the appellant is Athena, and at the litigious period she was 29 years old, a non-married person, who had twelve and seventeen degrees of myopia in each eye respectively. These amounts of myopia are considered as the highest scale. By wearing glasses or contact lens, she was able to see clearly and healthy.

The appellant had filed a legal action against her Doctor. The doctor is an eye specialist and well-known for his services to treat nearsightedness with laser surgeries. A relative of the appellant, her uncle, had already undergone a similar laser treatment from the same doctor. The treatment was successful, and as a satisfied ex-patient, had recommended the services of the doctor to his niece.

Notably, the uncle was the person who had also arranged the first appointment of the appellant with the doctor. We can argue about the necessity of a laser surgery considering Athena’s circumstances. Not only because if she used eyewear, she was able to see things clearly, but also because she did not know that she was also affected by the disorder of keratoconus. Perhaps she could have suspected the possibility on the base that keratoconus is an illness with a genetic hereditary factor and on the ground that another two of her family members were suffering from the same disorder.

The first meeting with the doctor which included the examination had a duration of about 10 minutes. Μainly he mapped the shape of the cornea of both patient’s eyes. By carrying out a corneal topography, a doctor is able to check the possibility of keratoconus disease. Under the doctor’s opinion, the indicators of keratoconus were not triggered in Athena’s case. The intention of the second appointment was to proceed with the laser operation. The patient was charged the amount of € 900 for excimer laser with duration half an hour. When Athena arrived home, she could already feel nuisances on both her eyes.

The next day her doctor was absent out of the country, so she proceeded to consult a second doctor. The two doctors after contacting each other, they compiled a Medical prescription.  After two months the eye pain was persisting, and Athena’s doctor could not find the correct remedy. Athena’s ordeal lasted approximately five years. In the meantime, she underwent transplant surgery on both eyes. There is still doubt as to whether Athena’s eye sight may ever fully recover.

One serious consequence of this ordeal was the closing down of her own private business. Perhaps that is the reason why the statement of Athena’s claims encompasses not only allegations based on assault and battery acts but also arguments drawn upon mental injuries.

Procedural History

Following the branch of medical negligence, we should mention the «bolito» legal test. Under the judicial precedent, the interpretation of that legal test should encompass at least two elements. Firstly comes satisfaction of the standard of the term «reasonable doctor». If this process drives to morally unacceptable outcomes, as a second stage, we should consider the public opinion.

In the past, the same doctor was sued by another patient. Chris’ circumstances were very similar to Athena. He also had enough degrees of nearsightedness and keratoconus illness as well. Chris as plaintiff against the doctor adduces the issue in the scope of wrong treatment. In the statement of claim, the patient submits that the doctor should choose the transplantation surgery instead of the laser operation.

The judge handed down that if a doctor considers that the unsuccessful rates of the treatment are meager, he is not obligated to inform the patient about any rare possibilities, and still satisfy the standard of reasonable doctor.

For the purposes of this summary we should highlight that the doctor during his decision-making, has the discretion to overlook some secondary details. For example, if he/she has a strong opposite point of view, notwithstanding if it is based on empirical data.

After three years, Athena is intending to initiate legal proceedings against that doctor. Athena’s written submissions also included a new approach. The doctor may set aside some rare situations when he draws his medical conclusion, but at the same time, he or she is obligated to inform the patient under the pressure of standard of reasonable patient. This neophyte criterion should be interpreted in the light that a person (as a patient) is likely to want to know any possible consequences resulting from this particular treatment or choice.

Legal Issue

Taking an inside look at the main legal issue of the «Vorkas II» case, firstly we shall depend on the determining what exactly is expected to be obtained by the meaning of informed consent.

In respect of «Vorkas I» case – the judicial transposition of Bolam and Bolitho’s indicators in Cyprus legal order – it was enough to advocate for the doctor’s state of mind under professional norms. In the attempt to elaborate the doctor’s sincerity with regard to the judicial precedents, we run through the thinking of weighing up the opinion of medical experts mixed up with the medical practice.

Interim the Vorkas I and Vorkas II, legal activism expanded the Common Law’s boundaries by introducing a whole strain on the medical negligence status quo.  During the Pierces decision, the aim of the judges was to enhance the negative dimension of patients’ right to treatment. In other words, sometimes equally important is also the freedom of a person to refuse treatment after taking into account those views which would affect his or her judgment as a prudent patient.

For example, in an attempt to test the scenario of what would happen if Athena didn’t decide in favor of receiving this particular treatment, is creeping more uncertainty in our brainstorming process that should alarm us about potential doctor’s duty of informing the patient.

Court Ruling

According to the judges’ opinion, a prudent patient could have the legitimate desire to be aware of any noticeable or remarkably opposite viewpoint about the prescribed treatment, which has been raised by any part of the medical society.

Under the initial case against the Vorkas doctor, it would be sufficient if the probabilities of any unfortunate circumstance were extremely low as absolute terms. The Pierces UK case varied in a way that the relevant criterion became more sensitive towards patients’ desires and interests.

For the sake of completeness, we underline that this doctors’ obligation as a new entrant into the law sphere arises not only from judicial precedent. As further validation, the principle lays down a second solid foundation, using the convenience of legislative power. We refer to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, without underpinning the latter Rights Of Patients Act (Act 2005/1(Ι)). Both codifications are highlighting the meaning of fully informed patients.

We shall be accountable for allegedly erred as a matter of law saying that doctor profession care varied afterward when the court had delivered his judgment. Doctors still have broad discretion while they face the medical practice or other treatment procedures. Besides the treatments’ core act, a new legal framework is setting up for the preliminary activity of one doctor and mainly upon his relationships with the patients.

Courts still embrace the uses of Bolam and Bolito legal standard but also make a distinction between pre-medical and medical acts. Two layers compose that new legal principle. In the context of probabilities, first arrives the examination of causation between doctors’ acts and personal injuries, which are being challenged before the court. As second layer is considered the valuation, in terms of quality and diversity, of patient’ information.

Legal Reasoning

Lord Hope relocates the debates by including the public factor of the reasonable expectations of the contemporary society. Nowadays medical science is directly linked with cosmetic purposes as well. For example, Athena when she wore glasses she could see clearly and satisfactorily. Trying to measuring Athena’s benefits from this surgery many opinions would arise, especially taking into account the risks and any possible physical or mental loss.

The process of disclosure from the doctor to the patient the proper information encompasses some moral and practical dilemmas. In a matter of health one thing without any doubt is the access to the treatment. While the borders of medicine are blurring and mixing up with other dimensions of our civilization, then the role of the patient is an equally crucial factor in terms of welfare.

The enlargement of our perspective on such matters was facilitated by the synergy of the Judiciary and Legislature power. Under the existence of an injured patient without remedies, the rule of law is devoid all its content and the law ceases operating as stable of norms.

The free and enlightened consent of patients has become a crucial element into medical and clinic environments. On the other hand, the manner of how the medical operation is performed undoubtedly complies absolutely with the acute sensitivity of the medical practice.

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