Human rights in Ukraine 2011. XVIII. THE RIGHT TO HEALTH CARE
1. General overview
Despite the principles, spelled out in the Constitution of Ukraine, and international obligations of the state with regards to each person’s right to the highest attainable standard of physical and mental health, the Ukrainian health care system fails to provide equal and free access to high quality medical services for everyone.
According to the official data, the situation is as follows:
— Life expectancy for the Ukrainian population is 68.2 years, which is approximately 10 years less than in the EU countries. The factor of children mortality is 2.5 higher than in the “old” EU countries. The rate of premature death is three times higher than the respective indicator in the EU countries; the rate of death from TB is 20 times higher in Ukraine.
— Indigent categories of population suffer from the lack of opportunity to get the necessary medical care. The departmental medicine (i. e. with restricted access) makes the goal of equal access to the services even less attainable.
— The access to medical services in urban and rural areas is incomparable. The burden of fees the public has to pay for medical services is very heavy. According to official statistics the payments, made by public, account for over one third of the whole branch funding (40% in 2008) and are made directly in the process of using health care services.
The Ministry of Health Care of Ukraine and Committee for Economic Reforms under the President of Ukraine point out the following causes of the said problems:
— Lack of connection between the quality of the offered medical services and their funding, as well as lack of motivation among medical staff for providing high quality services;
— Low level of preventive care and, partially, primary care in the total structure of the medical services;
— Inefficient use of budget funds allocated for health care. Per 100 thousand of population in Ukraine there are 5.6 hospitals, while in the EU-10 countries this indicator amounts to only 2.6; number of hospital beds in Ukraine constitutes 868 per 100 thousand of population, while in EU-10 it is only 644; number of physicians per 100 thousand of population in Ukraine is 302 as opposed to 261 in EU-10. 86% of budget funds allocated for health care is spent to maintain medical institutions and to pay doctors’ salaries;
— Duplication of medical services at various levels of health care, absence of mechanisms to manage the patients flows at various levels of health care;
— Low level of independence of medical institutions in the management of financial resources.
The funding of the branch itself also gives grounds for serious concern: the state budget of Ukraine for 2011 stipulated 5.25 billion USD for the health care system, which constitutes 3.4% of the GDP (0.24% less than in 2010, when this figure amounted to 3.64%), while the costs of medical equipment and all health care products are constantly increasing.
The Ministry of Health Care of Ukraine employs over 1.1 million people, including 197.6 thousand physicians and 430.8 thousand nurses and paramedic specialists, who hold respectively 224.6 thousand doctor’s and 432,7 thousand nursing positions.
At present there are vacant positions for 19.2 thousand doctors and 17.6 thousand nurses in Ukraine; 5.8 thousand doctor’s positions in the rural area remain vacant. Discrepancy between envisaged number of medical professional and actual number exceeds 46 thousand, and, including specialists who have reached retirement age, — 92 thousand. The need for physicians is satisfied up to 81.0% on the whole, and up to 75.2% in rural areas.
The indicator of number of physicians involved in direct care is rather stable (26.9 per 10 thousand of population) and below average, as compared to European standard, i. e. 33 per 10 thousand of population.
2. Failure of health care system reform
In 2011 Ukraine launched an ambitious project of reforming the health care system in accordance with the program “Ukraine for the people”, introduced by the President of Ukraine V.Yanukovych, National program for economic and social development of Ukraine for 2010 and Program for economic reform for the years 2010–2014 “Wealthy society, competitive economy, efficient state”.
At the first stage of the reforming its legislative basis was formed by the Law of Ukraine No. 3612 of 07.07.2011 “On Procedures for reforming health care system in Vinnytsya, Dnipropetrovsk, Donetsk oblast’ and city of Kyiv” (hereinafter — Law of Ukraine “On Procedures”) and the Law of Ukraine No. 3611 of 07.07.2011 “On amending the Fundamental law of Ukraine on health care with the goal of improving medical services”.
First of all, it should be stressed that implementation of the pilot project concerning reforms in health care system in Vinnytsya, Dnipropetrovsk, Donetsk oblast’ and city of Kyiv must go hand in hand with strict adherence to the provisions of the article 49 of the Constitution of Ukraine, stipulating attainability of medical services for all the citizens free of charge in all the public and communal health care institutions. The experiment should be conducted with due consideration of the patient’s rights to choose physician and clinic, under the article 38 of the Fundamental Law of Ukraine on Health Care.
Meanwhile, the Law of Ukraine “On Procedures” does not offer any mechanisms for organizing and providing primary, secondary, tertiary and emergency health care, or clear and unambiguous prerequisites for referring a patient to a medical institution where he can get primary, secondary, tertiary and emergency health care. Moreover, the said law does not establish medical staff responsibility for failing to comply with these requirements. The law contains a large number of various forms, which are to be completed for the health care executive bodies to approve the pilot project, but there is not indication of what normative and legal acts are to be complied with, and whether they exist at all.
Therefore, the legal imprecision of the Law of Ukraine “On Procedures” provisions is contrary to the article 19 of the Constitution of Ukraine, which maintains that it is the duty of public bodies to operate only within the competences and ways, stipulated by the Constitution of Ukraine and Ukrainian Laws.
It is also noteworthy that the Law of Ukraine “On Procedures”, contrary to the requirements of the article 49 of the Constitution of Ukraine, contains no provisions concerning the preservation of the current network of health care system in the pilot oblast’s and Kyiv.
Planning and forecasting the future operation of the communal health care network in the pilot regions should be done with due consideration of the profile, specialization and intensity of the medical services, health care norms according to various types of medical services (article 2 of the Law of Ukraine “On Procedures”). This, however, is not enough, if the infrastructure of administrative and territorial unit, i.e. roads condition and public transportation, especially in rural areas, is not taken into account. Air medical service, which disappeared in the first years of Ukrainian independence, should be re-introduced into the system.
Article12 of the Law of Ukraine “On Procedures” establishes prevalence of its norms over the other normative and legal acts for the period of experiment duration in the pilot regions. This provision covers the terms of validity of licenses and other permits, issued to the health care institutions in the pilot regions till the time that the Law comes into force, operation of reorganized health care institutions, which is not harmonized with procedures for licenses renewals, defined by the Law of Ukraine “On licensing of certain types of economic operation”.
Some paragraphs of the Final provisions of the Law of Ukraine “On Procedures” are especially disconcerting.
First of all, p. 2 of the Final provisions reads that medical specialists of the reorganized health care institutions, employed as general practitioners (family doctors), undergo respective specialized training free of charge and in preferential order. The medical specialist retains former qualification category until he/she is issued specialization certificate. It means that for several months a cardiologist, for example of highest qualification, receives his salary in accordance with respective tariffs. On obtaining the certificate of family doctor (general practitioner) he goes down the list in terms of tariffs and loses qualifications, earned by many years of work, as well as some portion of the salary.
Second, p. 3 of the Final provisions reads: “if, as a result of health care institutions reorganization, the staff of the said health care institutions are transferred, by agreement, to a lower paid positions at the same or another institution, they are paid in accordance with the provisions of this Law, or, upon their wish, their former mean salary is retained for the whole term of their work at the lower paid position, but not exceeding six months from the day of the transfer”. This paragraph mixes up several articles of the Code of Labor Laws of Ukraine (hereinafter — CLL), which does not help at all in its understanding and interpreting.
Article 32 of CLL stipulates that a transfer to the lower paid position is one of the indicators of significant changes in work conditions, of which the employee must be warned at least two months in advance. Also, if former work conditions cannot be retained, and the employee refuses to continue his employment under new conditions, then the labor contract is terminated under p. 6 of the article 36 of CLL. The labor contract, signed for indefinite term, as well as labor contract, signed for definite term, can be terminated by the owner or his representatives, before the expiration date only if the conditions of production and employment have changed, i.e. in case of liquidation, reorganization, bankruptcy or change of profile of a company, institution, establishment or organization, its downsizing”. (P. 1 of the article 40 of CLL).
The Law of Ukraine “On Procedures” does not define the types of health care institutions reorganization: mergers, combining, division or restructuring, which is a serious shortcoming. The mechanism to be used for setting up a new network of health care institutions on the basis of the existing one in the pilot regions (separation or merger) is not harmonized with the provisions of the Economic Code of Ukraine. It is possible that the use of the term “reorganization” ad nauseam is the result of legislators’ and reformers’ wish to avoid contradicting article 49 of the Constitution of Ukraine, which prohibits the downsizing of the existing health care institutions network. There are facts proving that in real life the reform involves not only the reorganization of the health care institutions, but also their liquidation under the article 59 of the Economic Code of Ukraine.
We would like also to point out that the definition offered in p. 3 of the Law of Ukraine “On Procedures”, i. e.” the payment to such employees is done in accordance with the provisions of this Law” is not legitimate, because the order of payment for work is regulated by the Law of Ukraine “On work remuneration”.
It is also noteworthy that the provisions of the Law of Ukraine “On Procedures” are not properly coordinated with other Ukrainian Laws in force. In particular, part 3 of the article 3 stipulates that “the centers of primary health (medical and sanitary) care can be set up as communal non-commercial enterprises or communal non-commercial institutions”, while Civil Code of Ukraine does not stipulate setting up of the said legal entities.
The reform activists seem to forget the most important issue, i.e. mandatory participation of the professional unions of medical workers in the health care institutions “reorganization”, i. e. their liquidation, change of ownership or partial cutting down of the production, which entails dismissal of employees or aggravation of work conditions. All that can be done only after submitting respective information to the trade unions, including the reasons for upcoming firings, number and categories of the employees affected, and time frame, envisaged for downsizing. The owner or his representative not later than three months after the decision is passed shall consult with trade unions on how to mitigate the adverse consequences of dismissals, to reduce the number of employees to be dismissed or to prevent dismissals at all.
The trade unions have right to submit proposals concerning the postponements or temporary stopping of the measures related to employees dismissal (article 49-4 of CLL). The Law of Ukraine “On Procedures» bears no reference to collaboration with trade unions.
Involvement of associations and professional unions in the decision-making process is mostly formal and declarative. Almost total lack of trust towards pilot experiment has been noted in the professional community. Medical workers do not support the course of action, proposed by the authorized bodies of power. The professional community has negative expectations as to the preservation of their labor rights..
Trade unions of medical workers are very skeptical about authorities’ plans of hospitals’ restructuring without additional budget funding. The head of Kyiv medical workers trade union Larisa Kanarovska believes that downsizing the staff and introducing similar reforms will only deteriorate the situation in Ukrainian health care. “According to the trade union data, in October-November 2010 2 thousand medical workers were fired in Kyiv only. People are not satisfied with low salaries. The country is facing TB epidemics, while the authorities intend to cut down the number of hospital beds. With such ambitious plans, the reform authors can quickly run out of resources for its implementation”, — stated L.Kanarovska.
“As a result of the reform our settlement Volodymyrivka (Artemivsk rayon) was assigned to Yakovlev out-patient clinic. There is no way to get there, as public transportation operates only on Fridays, Saturdays and Sundays. We have a lot of elderly people in the settlement. The reform was not meant for them” — stated a patient, who called the “health care reform hot line”, set up in Donetsk oblast’ last year.
“Many children running high fever are brought now to the out-patient clinic, as they cannot be placed in the hospital. Everyone is sent to the out-patient clinic instead. The chief physician said “it’s not his terms of references: someone divided the competences, he does not care a damn”. And slammed the door on that…”- reads information received from Novohrodivka (Donetsk oblast’).
Determination, with which the bureaucrats promise to cut down the number of beds and to shut down the whole hospital wards, caused uproar among the residents of some areas. They even organized protest actions, e. g. in Zugres and Kirovske (Donetsk oblast’).
Donetsk oblast’ organization “Front zmin” made public the information describing the situation in Kirovske (Donetsk oblast’), received on the “hot line” set up by the organization. The member of Kirovske town council Andriy Nemesh called to report the plans of downsizing medical staff and of shutting down the only town hospital, while another hospital is 26 kilometers away. “Kirovske hospital serves the miners’ town of 30 thousand residents as well as the residents of neighboring villages”, — pointed out the deputy. “Before shutting down the only town hospital authorities might have organized at least a token public discussion on the issue. We, as well as in the situations, when schools are shut down, invite authorities to open dialogue with local residents. These decisions cannot be made behind the closed doors” — argued the member of Yasynuvata rayon council Serhiy Chiryn.
Public organizations of Vinnytsya oblast’ and patients themselves believe that health care reform does not take into account the interests of the main stake-holders, i.e. medical workers and medical services consumers — the patients..
Public activists informed that former children out-patient clinic No. 1 does not have allergist, dermatologist or immunologist. The district pediatrician refers patients to the specialists working in other clinics. Young patients have to get acquainted with new doctors: some pediatricians are transferred to other clinics, while their former wards are distributed between other pediatricians. Patients do not understand this system of re-distribution of responsibility. Meanwhile, we hear the declarations to the effect that family doctor is to accompany a patient since birth till old age.
The head of public council for the protection of the patients’ rights under oblast’ health department M. Bardyn argues that global reforming projects are not patients-oriented at all and ignore the necessity to make health care efficient, convenient and available to an average citizen.
According to the author of the article, officials striving to make the medical institutions network more efficient (bureaucrats try to avoid calling it simply “cost savings”) somehow forgot that transportation infrastructure is poorly developed in rural areas, and one third of oblast’ population does not have money to get to the closest specialized clinic.
The head of “Vinnytsya medical workers association” R. Kharkovenko considers that “medical community is not living, but barely surviving”. The physicians are underpaid, they have no legal protection, hospitals lack appropriate medical equipment and medications. And the main problem, according to R. Harkovenko, is that “No one [among medical workers] knows where he or she will end up as a result of the reform — whether they will be transferred to another institution, re-trained or simply fired?”
Publication devoted to the reform reveals that there are plans of setting up a uniform system of emergency medical assistance in Vinnytsya oblast’. “These are ambitious plans, especially as far as transportaion goes. Ideally the time needed for emergency team to get from the site to the hospital should take 10 minutes in the urban areas and 20 minutes in the rural areas”, — points out the director of treatment and prevention department under the Ministry of Health Care M. Khobzey. However, it will become feasible only after the Law “On emergency medical assistance” is approved by the Supreme Rada. At present the draft law has been only registered in parliament.
According to Vinnytsya mayor V. Groysman, setting up of a single center for emergency medical assistance can only deteriorate the quality of the medical services. He believes that “[reformers] want to take away the existing emergency system which we barely managed to organize properly, responding to the public need, and to set up a unified center for emergency medical assistance, governed directly from Kyiv”. V. Groysman assumes that it will negatively affect the quality of emergency system operation. “We are accountable to our city residents for the quality of services we supply. And how can we be in charge without any levers of influence — we would not even know whether the ambulance went out to the patient or not”, — argued Vinnytsya mayor.
In order to provide legal substantiation of the health care reform strategies, the Supreme Rada of Ukraine on 07.07.2011 passed the Law of Ukraine “On amending the Fundamental law of Ukraine on health care with the goal of improving medical services”. This Law comes in force on January 1, 2012, with the exception of paragraph 4 of clause 7 and clause 14 of the chapter I of the said Law, which would come in force on January 1, 2015. Under the Law of Ukraine “On Procedures for reforming health care system in Vinnytsya, Dnipropetrovsk, Donetsk oblast’ and city of Kyiv” the stage by stage implementation, based on the best practices, is envisaged.
The Law of Ukraine “Fundamental legislation on health care” legally is the main professional law, that’s why the definitions, given in its articles are prerequisites for the very existence and development of health care system of Ukraine with due adherence to the patients’ rights.
It is noteworthy that after changes have been introduced to the aforementioned Law, the Ukrainian oblast’s, not covered with experiment, remained without strictly defined concepts of primary, secondary and tertiary medical services, which were spelled out in the article 35 of the “old” “Fundamental legislation on health care”, as well as the new type of medical services — palliative care. This situation will change only after January 1, 2015, and till then only emergency medical assistance will be in place, as stipulated by the article 35 of the current “Fundamental legislation on health care”, despite the fact that article 8 underlines the right of every citizen to the emergency health care, primary, secondary (specialized) and tertiary (highly specialized) medical services, palliative care etc.
On the other hand, paragraph 4 of the clause 7 of the Law of Ukraine “On amending the Fundamental law of Ukraine on health care with the goal of improving medical services”, which is to come in force also on January 1, 2015, is incorporated in the current “Fundamental legislation on health care”: p. 4 of the article 18 reads “Medical institutions available to public are funded from the State Budget of Ukraine and local budgets. The funds, not used by medical institution, are not reclaimed and respective future funding is not cut down. This clause should be harmonized with the requirements of the article 57 of the Budget Code of Ukraine, which regulates procedures for closing accounts after the end of budget period. Besides, these issues should be regulated exclusively by the Budget Code of Ukraine, which defines legal foundations for the functioning of budget system in Ukraine, its underlying principles, budget process and inter-budget relations, as well as accountability for non-compliance with budget law.
The definition of the term “medical services” — “the operation of health care institutions and physical entities, i.e. entrepreneurs who are registered and licensed in due order, established by the law, in the health care area, not limited only to medical assistance” — does not seem clear enough. In particular, it provides no clue as to what kind of operation in the aforementioned area can be considered “medical services”.
Part 7 of the article 18 of the Law of Ukraine “Fundamental legislation on health care” addresses a most important issue concerning paid services:” all health care institutions have the right to use funds, voluntarily supplied by the companies, enterprises, organizations and individuals for the improvement of their operation, as well as with owner’s or his representative’s permit to charge fees for the health care services”. Meanwhile the new version of the said law contains neither definition of the term “health care services”, nor the list of the said services. The Constitutional Court of Ukraine in its decision No. 10-rp/2002 of May 29, 2002 ruled that the concepts of “medical assistance” and “medical services” are not to be separated, so that charging any fees for medical services (medical assistance) in public and communal medical institutions is unconstitutional. In general,
p. 7 of the article 18 of “Fundamental legislation on health care” is not legally accurate, as its contents obviously mixes up medical institutions with various forms of ownership in order to get around article 49 of the Constitution of Ukraine stipulating free medical assistance provided by public and communal medical institutions.
Non-governmental organizations, agreeing with the analysis of health care situation in Ukraine, given in the Program for economic reform over the years 2010–2014 and other official documents, with the necessity for rapid increase in the health care services for the population and introduction of new approaches in the system of health care institutions operation not only in the pilot regions, but in the whole country, with their appropriate funding; necessity for more efficient use of budget funds allocated for health care system development, are still concerned with the reforming trends and directions, chosen by legislative and executive official bodies of Ukraine.
This situation is probably accounted for by the fact that both at national and local levels the informational product with respect to the goal and essence of health care system-related experiment, available for various categories of population, has not been yet developed. The information provided by the local authorities cannot be effectively disseminated among various categories of population. On the other hand, the officials in charge of the pilot project implementation do not have viable channels to receive feedback from public at large, professional circles, local communities etc. In other words, the population is not aware of what benefits they will get as a result of the health care reform implementation in their oblast’, city, village or settlement.
Therefore, positive changes in pilot regions are hard to detect, while negative consequences, registered by the non-governmental organizations, can be summarized as follows:
1. Legal foundations of the Pilot project for reforming health care system fail to comply with Constitutional norms, Budget Code of Ukraine, Economic Code of Ukraine, Civil Code of Ukraine, Code of Labor Laws of Ukraine, and Law of Ukraine “On work remuneration”.
2. The downsizing of the existing medical institutions network and charging fees for the health care services are unconstitutional.
Changes (reorganization) of the health care institutions or downsizing of the existing health care network take place not only in the pilot regions, but all around Ukraine.
3. The new “network” is being set up on the basis of the size of population in a given area. The current infrastructure of an administrative/territorial unit, i.e. road conditions and public transportation availability are totally disregarded. Meanwhile it is not feasible, especially in rural areas, to provide emergency assistance within 10 or 20 minutes, let alone transfer the patient to an emergency ward or hospital.
4. Primary health care centers in the pilot regions, especially beyond the boundaries of oblast’ center, in the rural areas are set up without any considerations as to their accessibility for the patients, including elderly people with limited mobility.
5. At present primary health care centers in the pilot regions are short of staff with appropriate qualifications, i. e. general practitioners-family doctors; they also lack equipment necessary for diagnostics and treatment of the most spread diseases, injuries, poisonings, pathological and physiological ( due to pregnancy) conditions.
6. The patients usually come to the clinic requiring specialized medical care (according to the article 4 of the Law of Ukraine “On Procedures for reforming health care system in Vinnytsya, Dnipropetrovsk, Donetsk oblast’ and city of Kyiv” — secondary medical assistance). However, in the pilot regions the medical institutions, capable of satisfying the patients’ need for the secondary (specialized) medical care, are located very far from the places of patients’ residence. Obviously, the most vulnerable categories of population have no access to the specialized and highly specialized (tertiary) medical care.
7. The prolongation of validity term for licenses and permits, issued to the health care institutions of the pilot regions till this Law comes into force, (p. 2 or article 12. “On Procedures…”) or to the reorganized medical institutions, for the duration of the pilot project is not in compliance with the Law of Ukraine “On licensing of certain types of economic activity”. It is especially important in palliative care, as the natural question arises, i.e. whether the license will cover the use of narcotic and psychotropic drugs in the reorganized hospital, which becomes a Primary health care center?
Supplying the “palliative care” patients, who stay at home and suffer from pain, with narcotic pain-killers today remains the duty of visiting nurses from the rayon out patient clinic, and is covered from state budget. However, besides the licenses for the use of narcotic and psychotropic drugs, primary health care centers should have appropriate facilities for the storage of narcotic substances, which still remains a problem for small hospitals. The quoted laws do not offer ways of resolving these issues– so one can anticipate further complications in the palliative care patients’ access to main medications.
8. Medical workers’ qualification is another factor contributing to the availability of medical services for the public. The world practice tells us that it takes up to 10 years to train general practitioner-family doctor of appropriate qualification. A cardiologist, for one, cannot acquire knowledge and skills of pediatrician within the six-month’ period. Nevertheless, this is exactly what pilot project stipulates: medical professionals are transferred to the lower paid jobs (because the specialty change annuls former qualification category) of general practitioners — family doctors, undergo retraining free of charge and in priority order (i. e. in accelerated mode).
Anticipated consequences of this reorganization:
— Loss of medical specialists, as they either won’t work according to their specialization any longer, or will establish private practice outside primary health care centers and not as private entrepreneurs.
— Total destruction of pediatric network.
— Long-term deterioration of health care services for the population, and, in particular, for most vulnerable categories of society.
9. Complete disregard of “every person’s right to the highest available level of physical and mental health” by public officials, despite declared principles.
10. The pilot project under implementation, as well as reforming plan for the branch by no means “ensures conditions under which everyone is guaranteed medical assistance and care in case of sickness”.
3. Analysis of court rulings on “medical cases” in 2011
Protection of patients’ rights is not feasible without appropriate judicial practice. Ukrainian legislation currently in force not always provides the necessary legal norms regulating complicated relations in the health care domain. That’s why summarizing the court practices is a very important component in the operation of human rights organizations.
Having analyzed the court rulings on “medical cases”, which came in force in 2011, obtained from the Unified State Registry of Court Decisions, we could identify certain general tendencies. Namely, out of the whole bulk of decisions, only 9 dealt with hospitals posing as defendant in civil lawsuits.
Three rulings were passed by the courts in Dnipropterovsk oblast’, two — by the courts in Kyiv oblast’, and in Kharkiv, Donetsk, Cherkassy oblast’ and ARC — one by each oblast’ court.
Detailed analysis of the rulings allowed identifying the following tendencies.
3.1. Internal incapacity of the courts to satisfy suits against hospitals.
The analysis of the lawsuits showed that in 6 cases out of 9 the claims were fully rejected , while in 3 cases the judge passed a ruling partly satisfying the claim.
3.2. Inadequate professional level of attorneys and lack of appropriate skills among claimants,
who cannot plead their case accurately and clearly
The claims often lack the necessary request for material damages. Thus in 4 lawsuits out of 9 only moral damages were mentioned. (No. 2-42/11, 2-14/11, 2-38/11, 3105/11).
In 5 remaining lawsuits the claimants requested material and moral damages. It is noteworthy that these lawsuits were rejected by the judges completely. It means that on seeing words: “material damages” in the claim, the courts immediately set up to deny any satisfaction to the claimant, despite the fact that the circumstances of every lawsuit are different.
The analysis of broader spectrum of court rulings (let’s say for the last 5–7 years) is needed to arrive at more comprehensive conclusions.
One of the lawsuits (No. 2-66/11) contained the claim “to reimburse the damages” without any indications as to what kind of damages the claimant referred to. It is the result of low legal awareness of the public, as the said claimant represented herself and her minor son without hiring an attorney or other legal representative.
Only one of 9 lawsuits (No. 2-890/11) contained claimant’s request to qualify actions and inertia of medical workers as illegal and demand to be reimbursed for moral and material damages.
Here are some reasons which can account for this state of things:
— lack of foresight among the patients who do not keep the receipts for purchased medications;
— incapability of the patients and their representatives to justify material damage caused by the doctors’ actions, and to calculate its amount on the basis of checks, receipts and respective notes;
— failure to believe that the lawsuit can be resolved in the claimant’s favor.
The majority of the lawsuits lack the request to qualify actions and inertia of medical workers as illegal. Only one out of 9 lawsuits contained this request (No. 2-890/11).
This negative tendency should be overcome. Under the articles 1166 and 1167 of the Civil Code of Ukraine illegal, harmful or culpable action of the perpetrator creates grounds for tort charges. It means that damages can be reimbursed only if the illegality of actions is established. In other words, damages, caused by legitimate actions, will not be recompensed. It refers to both material and moral damages.
That’s why the claim should contain the clause on qualifying actions and inertia of medical workers as illegal, and, consequently — demand of material and moral damages compensation.
The motivation part of the court rulings confirms the conclusions cited above. In all the three rulings, by which court partly satisfied the claims, judges refer to the illegal nature of medical workers’ actions.
In its ruling No. 2-42/11 the court decided, having considered all the circumstances, that “as a result of illegal actions of the physician of Simferopol 6th municipal hospital, manifested in untimely diagnosis, the claimant suffered moral damage, as suffering from a spine fracture, he was prescribed physical exercise, which caused him a lot of pain”.
In its ruling No. 2-38/11 the court also stresses that “under article 23 of the Civil Code of Ukraine a person has right to claim moral damages, caused by the violation of his/her rights. Moral damages consist in physical pain and suffering imposed on a person as a result of injury or other harm to a person’s health; in mental sufferings caused by illegal actions against the said person or his/her close family.
Under article 1167 of the Civil Code of Ukraine moral damages, caused to physical or legal entity by the illegal actions or inaction, is to be recompensed by the entity who caused if the entity’s guilt is shown”.
In its ruling No. 2-14/11 the court states unambiguously “The court recognizes the fact of illegal actions of “Municipal hospital No. 1”staff in providing medical assistance to so-and-so as established.”
3.3. Lack of sustainable and accurate mechanisms
for calculating monetary equivalent of moral damage,
caused by actions or inaction of the medical workers
Court rulings on satisfying petitioners’ claims rarely make reference to the Resolution of the Supreme Court of Ukraine Plenum “On judicial practices in the cases concerning moral (non-property) damages” of 31.03.1995 (hereinafter — Plenum).
Out of three “positive” rulings only the ruling No. 2-38/11 made reference to this normative/legal act. The absence of such reference in other decisions can be accounted for by:
— incapacity of the courts to apply the provisions of the said act appropriately;
— disregard for the decisions of the Plenum and undermining the importance of its provisions in “medical cases”.
Neither legislation nor judicial practice defines the procedure for calculating monetary equivalent of the moral damage.
Thus, in two cases, the moral damage was assessed at about 50% of the amount claimed by petitioner (50 thousand UAH as opposed to 100 claimed in one lawsuit (No. 2-38/11), and 60 thousand UAH as opposed to 118 claimed in another (No. 2-14/11).
In the third lawsuit the court position remains unclear: it ordered the payment of less than 1% of the amount claimed by petitioner: 10 thousand UAH as opposed to 1 million 200 thousand UAH claimed in the suit. (No. 2-42/11).
It is noteworthy that the actual damages amount has nothing to do with gravity of consequences suffered as a result of physicians’ negligence. In the first case (No. 2-38/11) a surgeon, while performing surgery, negligently left a gauze cloth in the patient’s leg, which led to the inflammation and development of osteomyelitis.
In another case (No. 2-14/11) in the course of maxillary sinusotomy, the wick drain was probably left in the patient’s left sinus, which led to deterioration of this latter condition and the necessity for large number of additional procedures.
In the third case the consequences were even more serious (No. 2-42/11) — the doctor field to recognize spine bones fracture and prescribed strenuous physical exercises, which caused the patient severe pain, and, probably, deteriorated his physical condition. The court, nevertheless, ruled that only physical pain, caused to the patient by negligent physician’s order, was an established fact. The patient became disabled as a result of the injuries, lost his mobility and cannot live without medication. It did not stopped the court from cutting the claimed amount of 1 million 200 thousand UAH down to 10 thousand UAH.
The motivation, underlying the courts’ rulings, — i. e. why the court would decide to cut down the compensation for moral damage, what mechanisms and ratios are used while calculating it — remains unclear.
3.4. Ambiguous interpretation of “moral damage” by the courts
P. 3 of Plenum Resolution provides the definition of moral damages as losses not related to property, as a result of physical or moral suffering or other adverse effects, exerted on physical or legal entity by illegal actions or inaction of other persons. Under current legislation moral damage may include, in particular, disrespect of honor and dignity, prestige or business reputation, moral suffering due to health deterioration, violation of property rights ( including intellectual property), consumers’ rights, other civil rights, sufferings caused by lawless detention and incarceration, breach of normal life links due to incapability of leading active social life, breach of connections with other people, other negative effects.
The court rulings, analyzed above, show, however, that the courts believe that only physical suffering gives grounds to order compensation of moral damages.
Decision No. 2-14/11 is a vivid example of this statement. The operative part of the resolution contains denial of satisfaction to two petitioners who, as patient’s’ relatives, claimed moral damage.
“The court also rules that claims of persons 2, 5 and 3 are not to be satisfied. The claimants demanded payment of moral damages caused by leaving the wick drain in the patient’s left sinus, in the course of maxillary sinusotomy, performed in 1998, in the amount of 5 000 UAH to each claimant, as under the article 440-1 of the Civil Code of Ukraine (1 963 version), moral damage is paid directly to a person who suffered from it. Besides, the claimants have to prove not only the fact of damage, but also establish connection between this damage and illegal actions of the defendant and his guilt in causing it.”
In the same ruling court denied satisfying of the claimant’s demand for compensation of moral damage, caused by the loss of the patient’s medical history, without offering any explanations:
“Concerning the petitioner’s claims on compensation of moral damage due to the loss of the patient’s 2 medical histories, at the amount of 10 000 UAH (5 000 UAH per each history), the court finds that the claimant failed to prove the damage and its amount, and, therefore, denies the satisfaction of this part of the claim”.
Another ruling (No. 2-42/11) also offers explanation in support of this negative tendency:
“The Court believes that the fact of untimely x-raying of the patient’s spine and failure to provide accurate diagnosis, i. e. “spine fracture” is established, as confirmed by the letter No. Ц512 of 17.09.05, written to the patient by the Deputy Minister of Health Care and the conclusions of forensic medicine experts No. 77 of 07.06.2010.
Taking all the circumstances into consideration, the court rules that illegal actions of the physician, working in the Simferopol city hospital No. 6, i. e. failure to timely diagnose the patient, led to moral damages for the claimant, who suffering from the spine fracture, was prescribed physical exercises causing him severe pain”.
3.5. Court experts in cahoots with medical workers,
whose action or inaction is under investigation
The results of forensic expertise, used in the judicial process to verify the validity of the facts, stated by the persons claiming that they are victims, play very important role in all the rulings.
However, the analysis of the aforementioned rulings leads one to believe that there is a number of unresolved issues, namely, that forensic medicine experts still adhere to the practices of siding with their medical colleagues and offering interpretations in their favor.
The ruling in the case No. 2-66/11 on individual 2 claims is most demonstrative in this context. The claimant demanded to be recompensed for material and moral damages, caused by communal hospital “Cherkassy oblast’ TB center”, the medical staff of which allegedly failed to diagnose the claimant’s minor son with Ewing sarcoma on time, which led to substantial waste of precious time and subsequent amputation of the third finger’s joint in another hospital.
The expert conclusions read that:
“no causal connection has been established between the treatment of individual 2 in the communal hospital “Cherkassy oblast’ TB center” between 07.09.2009 and 22.10.2009 and patient’s Ewing sarcoma; at the time of treatment in the said hospital individual 2 already had Ewing sarcoma, but there were no indications for the finger amputation at the time of the treatment. The amputation of the third finger of child’s left hand was performed because of Ewing sarcoma, and not due to the prolonged treatment in communal hospital “Cherkassy oblast’ TB center”, although, taking into account the child’s age, they had to detect sarcoma at the beginning and not at the end of treatment, as acute pain, edema of soft tissues, limitation of finger’s function are common symptoms for both TB and Ewing sarcoma”.
Thus, pointing out that the doctors, by virtue of their qualification, had to diagnose sarcoma, forensic medicine experts, nevertheless, arrive at the conclusion that there is no causal relation between actions (or, rather, inertia) of the medical staff of the hospital and subsequent development of patient’s disease.
Therefore, the analysis of the aforementioned court rulings, which came in force 2011, gives grounds to register certain common features in all decisions related to “medical cases”.
Nevertheless, one is not to come up with unambiguous conclusions as to certain tendencies prevailing in “medical cases” as the sampling was far from complete. In order to have a more objective view, one should analyze a sampling of cases for a longer period of time, e. g. starting from January 1, 2004 — the date when the Civil Code of Ukraine, defining patients’ rights, came in force.
1. Bringing the norms of the Law of Ukraine “On Procedures for reforming health care system in Vinnytsya, Dnipropetrovsk, Donetsk oblast’ and city of Kyiv” No. 3612 of 07.07.2011 and Law of Ukraine No. 3611 of 07.07.2011 “On amending the Fundamental law of Ukraine on health care with the goal of improving medical services” into compliance with the Constitution of Ukraine, Budget Code of Ukraine, Economic Code of Ukraine, Civil Code of Ukraine, Code of Labor Laws of Ukraine, Law of Ukraine “On work remuneration”.
2. Defining in the Law of Ukraine “Fundamental law of Ukraine on health care “ primary, secondary ( specialized) and tertiary (highly specialized) medical care, referred to in the article 35 of the “old” “Fundamental law…”, and the new type of medical assistance — palliative care.
3. Bringing provisions of the Law of Ukraine “On Procedures for reforming health care system in Vinnytsya, Dnipropetrovsk, Donetsk oblast’ and city of Kyiv”, concerning the licensing of the newly set up or reorganized health care institutions, into compliance with the Law of Ukraine ”On licensing certain types of economic activity”, in particular, with respect to obtaining licenses for handling narcotic and psychotropic drugs.
4. Continuing reorganization of health care institutions in the pilot regions with due consideration of the available infrastructure in the administrative/territorial units, i.e. road conditions and public transportation.
5. Introducing target budget lines for road construction and development of air medical service in the pilot regions.
6. Banning downsizing the health care institutions network and charging fees for the medical services under the Constitution of Ukraine, enhancing law enforcement and prosecutor’s office control over the process of health care institutions’ reorganization and abiding with economic and labor legislation in force. Prohibiting termination of economic entity (health care institution) operation by way of its liquidation.
7. Introducing the institute of family doctors step-by-step, with respective training of medical professionals, taking into account best international practices (up to 10 years of training).
8. Developing primary health care centers adequately staffed with specialists of relevant qualifications. Staff list of the primary health care centers in the pilot regions should include positions of district physicians and pediatricians only.
9. Amending article 49 of the Constitution of Ukraine with respect to provisions dealing with free medical services, supplying precise list of free medical services and identifying the sources of funding for health care reform: state budget and fund, set up on the basis of mandatory medical insurance.
10. Drawing lawyers’ attention to the necessity of filing accurate claims, which would not only refer to moral and material damages, but also contain request to qualify actions or inaction of the medical workers as illegal.
11. Issuing a handbook of sample claims against medical workers related to their actions or inaction.
12. Recommending the courts to make reference to the provisions of the Resolution of the Supreme Court of Ukraine Plenum “On judicial practices in the cases concerning moral (non-property) damages” of 31.03.1995 in their rulings.
13. Recommending the courts to take into account in their rulings the gravity of consequences of certain actions or inaction of the defendants.
14. Recommending the courts to interpret correctly p. 3 of the Plenum decision, with due attention to the definition of “moral damage” provided by the Supreme Court of Ukraine.
15. Drawing lawyers’ attention to the necessity of referring to p. 3 of Plenum decision, when establishing what kind of moral damage was caused to the petitioner by illegal actions of the defendant.
16. Making broader use of alternative experts’ assessment to avoid “mutual protection” between experts and medical workers.
17. Recommending the courts to treat the results of forensic medicine with prejudice as to their objectivity and validity.
 Prepared by Andiy Rakhansky, Director of the Center for legal research and strategies, and Natalia Okhotnikova, KhHRG lawyer.
 Results of operation in the health care area in Ukraine for the first half of 2010. — К.: MHC of Ukraine 2010. Program for economic reforms for the years 2010-2014. Committee for economic reforms under the President of Ukraine.
 Results of operation in the health care area in Ukraine for the first half of 2010. — К.: MHC of Ukraine 2010.
 Donetsk oblast’ organization”Committee of Ukrainian voters” http://gurt.org.ua/articles/13112/
 Future health care reform in Ukraine can lead to medical staff downsizing.. www.asz.org.ua
 Roman Lebed’. Medical reform treading on health care? http://bbc.co.uk/
 Roman Lebed’. Medical reform treading on health care? http://bbc.co.uk/
 Health care reform in Vinnytsya oblast’: illusions and reality. http://vinpress.org.ua/index.php?Item_Id=28&Doc_Id=183&lang=ua&p=1.
 Health care reform in Vinnytsya oblast’: illusions and reality http://vinpress.org.ua/index.php?Item_Id=28&Doc_Id=183&lang=ua&p=1.
 International pact on economic, social and cultural rights.