CORRELATION OF CONTRACTUAL AND TORTIOUS LIABILITY OF A HEALTH-CARE ORGANISATION TO A PATIENT
Authors:   Novosibirsk National Research State University (Novosibirsk, Russian Federation), Shepel Tamara V. 
Published: January 2021

The Civil Code of the Russian Federation and legislation in the sphere of health care do not contain norms about the civil liability of a medical organisation to a patient. The issues of the correlation between these types of liability remain under-researched in the literature. There is no uniformity in judicial practice in resolving disputes in this area. The analysis of the literature and practice allows us to identify the distinctive features of contractual and tort liability of medical organisations. They include the imperative nature of norms on tort liability and dispositive nature of norms on contractual liability; contractual liability of a medical organisation to a patient is possible only if no harm to life or health is inflicted upon it - when such harm is inflicted, tort liability arises. The medical organisation's guilt or the patient's guilt in imposing contractual or non-contractual liability on a medical organisation is not the same. As a general rule, where there is a plurality of persons on the side of a medical organisation, joint and several liability arises in the event of non-contractual liability. The forms of contractual and non-contractual liability are different. It is generally accepted in the legal literature that liability for harm to a patient's health or life in the provision of paid medical services is in tort. However, due to the expanding scope of contractual regulation in medicine, the correctness of such provisions has come into ques-tion. It seems that the position on the priority of contractual liability of a medical institution has no legitimate basis (Art. 1084 of the Civil Code of the Russian Federation). In court prac-tice, regardless of the existence of a contract for the provision of paid medical services, in case of harm to the patient's health or life, the rules on torts are applied. The nature of increased liability for causing harm to a citizen's life or health stipulated by the contract is disputed in the literature. It appears that the contract for the provision of medical services may increase the amount of liability but may not change its nature, it remains a tort. As a rule, the issue of possible application of tort and contractual liability to a medical organisation at the same time is not specifically discussed in the literature. In court decisions holding a healthcare provider contractually liable, compensation for moral damage is referred to as a form of contractual liability along with compensation for damages and payment of a penalty. This approach blurs the distinction in terms of contractual liability of a medical organisation and tort liability in the form of compensation for moral harm. Contractual liability arises irrespective of fault (paragraph 3 of Article 401 of the Civil Code of the Russian Federation); compensation for moral harm is allowed, as a general rule, only in the presence of the fault of the person who caused the harm (paragraph 2 of Article 151 of the Civil Code of the Russian Federation). The terms of liability in such cases must be determined with due regard to the above rules.