Chapter 41
CONTRACT FOR PROVISION OF HEALTH CARE SERVICES
- 758. Definition of contract for provision of health care services
(1) By a contract for the provision of health care services, one person (the provider of health care services) undertakes, in the professional activities thereof, to provide health care services to another person (the patient), particularly by examining the patient in the interests of his or her health and observing the rules of medicine, by consulting and treating the patient or offering obstetrical care to the patient, and by informing the patient of his or her state of health and the progress and results of his or her treatment. The provision of health care services also includes patient care within the framework of the provision of health care services and other activities directly related to the provision of health care services.
(2) Qualified doctors and dentists, and nurses or midwives providing health care services independently, who participate in the provision of health care services and operate on the basis of an employment contract or other similar contract entered into with a provider of health care services shall also be personally liable besides the provider of health care services for performance of a contract for the provision of health care services.
- 759. Specifications for entry into contract
A contract for the provision of health care services is also, inter alia, deemed to have been entered into upon commencement of the provision of health care services or assumption of the obligation to provide health care services with the consent of a patient, and also if commencement of the provision of health care services to a patient without the capacity to exercise his or her will corresponds to his or her actual or presumed intention.
- 760. Duty to enter into contract
A provider of health care services is required to provide health care services to a person who applies therefor unless the terms or conditions of the contract applied for are in conflict with provisions of law or the standard terms of a contract for the provision of health care services.
- 761. Duty to pay fee
An established, agreed or standard fee or, in the absence thereof, a reasonable fee shall be paid for the provision of health care services. A fee may be demanded from a patient in so far as the expenses for providing health care services are not covered by sickness insurance or another person.
- 762. Provision of health care services
Health care services shall at the very least conform to the general level of medical science at the time the services are provided and the services shall be provided with the care which can normally be expected of providers of health care services. If necessary, a provider of health care services shall refer a patient to a specialist or involve a specialist in the treatment of the patient.
- 763. Use of generally unrecognised methods upon provision of health care services
(1) A method of prevention, diagnosis or treatment which is not generally recognised may be used only if conventional methods are not likely to be as effective, if the patient is informed of the nature and possible consequences of the method and if the patient has granted his or her consent to the use of the method.
(2) The legal representative of a patient with restricted active legal capacity shall grant the consent specified in subsection (1) of this section in the place of the patient in so far as the patient is unable to consider the pros and cons responsibly. A generally unrecognised method may be used in respect of a patient without the capacity to exercise his or her will without the consent of the patient or his or her legal representative if failure to use the method would put the life of the patient at risk or would significantly damage his or her health.
[RT I 2008, 59, 330 – entry into force 01.01.2009]
- 764. Duty of patient to provide information
A patient shall inform the provider of health care services of all circumstances which, according to his or her best understanding, are necessary for the provision of health care services and shall provide any assistance which the provider of health care services requires to perform the contract.
- 765. Provision of health care services in presence of other person
The presence of another person during the provision of health care services is permitted only with the consent of the patient unless it is impossible to provide the health care services without the presence of the other person, it is impossible to obtain the consent of the patient and failure to provide the health care services would significantly damage the health of the patient.
- 766. Duty to inform patient and obtain his or her consent
(1) The provider of health care services shall inform the patient of the results of the examination of the patient and the state of his or her health, any possible illnesses and the development thereof, the availability, nature and purpose of the health care services required, the risks and consequences associated with the provision of such health care services and of other available health care services. At the request of the patient, the provider of health care services shall submit the specified information in a format which can be reproduced in writing.
[RT I, 29.11.2013, 1 – entry into force 09.12.2013]
(2) As a rule, a provider of health care services shall not promise that a patient will recover or that an operation will be successful.
(3) A patient may be examined and health care services may be provided to him or her only with his or her consent. A patient may withdraw his or her consent within a reasonable period of time after granting consent. At the request of a provider of health care services, such consent or an application to withdraw such consent shall be in a format which can be reproduced in writing.
(4) In the case of a patient with restricted active legal capacity, the legal representative of the patient has the rights specified in subsections (1) and (3) of this section in so far as the patient is unable to consider the pros and cons responsibly. If the decision of the legal representative appears to damage the interests of the patient, the provider of health care services shall not comply with the decision. The patient shall be informed of the circumstances and information specified in subsection (1) of this section to a reasonable extent.
(5) A provider of health care services shall not disclose information specified in subsection (1) of this section to a patient if the patient refuses to be given such information and if his or her legitimate interests or the legitimate interests of other persons are not damaged thereby.
(6) In the cases and to the extent provided by law, the consent of a patient or his or her legal representative is not required for the provision of health care services.
[RT I 2002, 53, 336 – entry into force 01.07.2002]
- 767. Provision of health care services to patients without capacity to exercise their will
(1) If a patient is unconscious or incapable of exercising his or her will for any other reason (a patient without the capacity to exercise his or her will) and if he or she does not have a legal representative or his or her legal representative cannot be reached, the provision of health care services is permitted without the consent of the patient if this is in the interests of the patient and corresponds to the intentions expressed by him or her earlier or to his or her presumed intentions and if failure to provide health care services promptly would put the life of the patient at risk or significantly damage his or her health. The intentions expressed earlier by a patient or his or her presumed intentions shall, if possible, be ascertained using the help of his or her immediate family. The immediate family of the patient shall be informed of his or her state of health, the provision of health care services and the associated risks if this is possible in the circumstances.
(2) Within the meaning of this Chapter, immediate family means the spouse, parents, children, sisters and brothers of the patient. Other persons who are close to the patient may also be deemed to be immediate family if this can be concluded from the way of life of the patient.
- 768. Duty to maintain confidentiality
(1) Providers of health care services and persons participating in the provision of health care services shall maintain the confidentiality of information regarding the identity of patients and their state of health which has become known to them in the course of providing health care services or performing their official duties and they shall ensure that the information contained in documents specified in § 769 of this Act does not become known to other persons unless otherwise prescribed by law or by agreement with the patient.
(2) It is permitted to deviate from the duty provided for in subsection (1) of this section to a reasonable extent if failure to disclose the information could result in the patient significantly damaging himself or herself or other persons.
- 769. Duty to document
A provider of health care services shall document the provision of health care services to each patient pursuant to the requirements and shall preserve the corresponding documents. The patient has the right to examine these documents and to obtain copies thereof at his or her own expense, unless otherwise provided by law.
- 770. Liability of providers of health care services
(1) Providers of health care services and persons specified in subsection 758 (2) of this Act shall be liable only for the wrongful violation of their own obligations, particularly for errors in diagnosis and treatment and for violation of the obligation to inform patients and obtain their consent.
(2) Providers of health care services shall also be liable for the activities of persons assisting them and for any defects in the equipment used upon provision of health care services.
(3) The burden of proof regarding circumstances which are the bases for the liability of the provider of health care services and of a person specified in subsection 758 (2) of this Act shall lie with the patient unless the provision of health care services to the patient is not documented as required.
(4) If there is an error in diagnosis or treatment and a patient develops a health disorder which could probably have been avoided by ordinary treatment, the damage is presumed to have resulted from the error. In this case, the burden of proof regarding the damage resulting from the health disorder shall also lie with the patient.
- 771. Limitation period
The limitation period for a claim of a patient concerning compensation for damage is five years as of the time when the patient becomes aware that a provider of health care services or a doctor has violated an obligation or caused damage.
- 772. Specifications for expiry of contract
(1) A contract for the provision of health care services shall, inter alia, expire:
1) upon the death of one party;
2) upon termination of the provision of health care services;
3) if another provider of health care services assumes the provision of health care services.
(2) A patient may cancel a contract for the provision of health care services at any time without giving a reason.
(3) A provider of health care services may cancel a contract only with a good reason due to which the provider of health care services cannot, taking into account all the circumstances, be expected to continue providing the health care services. If necessary, the provider of health care services shall continue to provide health care services until the patient is able to receive the health care services elsewhere.
- 773. Mandatory nature of provisions
Any agreements which derogate from the provisions of this Chapter to the detriment of a patient are void.