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COVID-19 Treatment Refusal: Medical Liability Insurance in Greece in Light of the Oviedo Convention

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Covid-19 and Insurance

Part of the book series: AIDA Europe Research Series on Insurance Law and Regulation ((ERSILR,volume 7))

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Abstract

Amidst the Covid-19 pandemic, an increase has been observed in patients refusing medical treatment, hospitalisation and especially intubation, which can have detrimental effects on patients in a critical condition. This trend has caused great challenges to doctors and hospitals, which have the legal obligation to respect the patient’s right to self-determination, which dictates that the patient’s prior informed consent is a precondition for all medical treatment, albeit with strictly regulated exceptions, but at the same time have an ethical and statutory obligation to offer the best medical treatment available to save the patient’s life.

This chapter examines the issue of professional medical liability under such borderline Covid-19 refusal of treatment instances, and how refusal of treatment could impact professional liability insurance covers. The chapter aims to understand the nuances of informed consent, especially under the prism of Covid-19 patients refusing treatment; identify potential situations under this spectrum that give rise to professional liability; and outline how private professional liability insurance may provide coverage to doctors caring for Covid-19 patients who refuse treatment.

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Notes

  1. 1.

    The Convention further deals specifically with biomedical research, genetics and transplantation of organs and tissues. It is elaborated and complemented by Additional Protocols on specific subjects, such as the Protocol on the Prohibition of Cloning Human Beings and the Protocol concerning Transplantation of Organs.

  2. 2.

    In Greece, the Convention was ratified by Law 2619/1998. The Chart of signatures and ratifications is available at: https://www.coe.int/en/web/conventions/full-list?module=signatures-by-treaty&treatynum=164.

  3. 3.

    The same spirit is found in the relevant provisions of applicable Greek laws: According to Article 12 of the Code of Medical Ethics (Law 3418/2005) the doctor is not allowed to perform any medical procedure without the prior consent of the patient, while article 47 of Law 2071/1992 on the Modernization and Organization of the Health System regarding hospital care reiterates, that the patient has the right to consent or refuse the performance of any diagnostic or therapeutic act.

  4. 4.

    Secretary General of Council of Europe (1997), Explanatory Report to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, European Treaty Series No. 164. https://rm.coe.int/16800ccde5.

  5. 5.

    Article 5 par. 1, 2 par. 1 of the Greek Constitution, Fountedaki (2003).

  6. 6.

    Reflecting the obligation of respect for the autonomy of the individual, as established by earlier relevant legislation concerning patients’ rights and by Article 47 of Law 2071/1992.

  7. 7.

    Similar provisions can be found in Greek Law. The Greek Code of Medical Ethics states that if the persons do not have the capacity to consent to the performance of a medical act, the doctor shall inform them as far as possible. The doctor also informs the third parties who have the power to consent to the execution of this act, namely the person who exercises parental responsibility or has custody of the patient in case the patient is a minor, and the legal guardian, or in its absence a relative, in case the patient is an adult. In both cases the doctor may take into account the patient’s opinion if it is evaluated as substantial. The minor patient’s age, mental and emotional maturity and the adult patient’s understanding of their health situation and the content, risks and results of the medical act are taken into account.

  8. 8.

    Article 11 of the Greek Code of Medical Ethics provides that the doctor must fully and intelligibly inform the patient about the actual state of his health, the content and results of the proposed medical act, the consequences and the possible risks or complications of its execution, the alternative proposals, as well as the possible recovery time, so that the patient can form a complete picture of the medical, social and economic factors and consequences of his situation and to proceed, accordingly, to the decision-making. Particular attention should be paid to information regarding special procedures, such as transplants, methods of medically assisted reproduction, gender change or restoration operations, aesthetic or cosmetic procedures. See relevant case law: decision 196/2020 of the Rhodes First Instance Court, decisions 252/2020, 717/2018 of the Supreme Administrative Court (Symvoulio tis Epikrateias), decisions 687/2013, 424/2012 of Supreme Civil and Criminal Court of Greece (Areopag).

  9. 9.

    Under the Greek Code of Medical Ethics’ explanatory memorandum, consent to treatment exists only when it is free, effortless and informed, while it is not limited to the formal signature of a standard document.

  10. 10.

    Secretary General of Council of Europe’s Explanatory Report on the Oviedo Convention as above.

  11. 11.

    As mentioned in the Convention’s explanatory report: “A person’s “right to know” encompasses all information collected about his or her health, whether it be a diagnosis, prognosis or any other relevant fact.”

  12. 12.

    Pursuant to the Code of Medical Ethics, the patient also has the right to ask the doctor to inform exclusively another person or other persons, who they indicate.

  13. 13.

    Secretary General of Council of Europe’s Explanatory Report on the Oviedo Convention, as above.

  14. 14.

    Thessaloniki Court of Appeal, decision nr 1954/2017.

  15. 15.

    Sakellaropoulou, Virginia, Sakellaropoulos Theodoros, Adult detainees’ consent for medical acts. Available via the Nomos Greek case law database, https://lawdb.intrasoftnet.com/. The matter was acutely discussed in Greece in the case of a hunger strike by a prisoner.

  16. 16.

    Yohannes Lowe (2021) UK Covid-19 patients dying needlessly due to unfounded fears about ventilators, The Guardian, https://www.theguardian.com/world/2021/jan/31/uk-covid-patients-are-dying-needlessly-due-to-unfounded-fears-about-ventilators.

    https://www.wbrc.com/2021/09/29/some-covid-patients-around-world-are-refusing-ventilators/.

  17. 17.

    The doctor who intubates a patient inserts a flexible plastic tube through the nose or mouth of the patient into the trachea which is connected to the ventilator that pushes oxygen into the patient’s lungs to assist with breathing. Intubation is necessary for patients with respiratory failure and the leading medical opinion is that the benefits of intubation greatly outweigh the risks, as intubation may be the only method available to save the patient’s life. In this relevance among others, Mohammadi et al. (2021) https://pubmed.ncbi.nlm.nih.gov/34540642/.

  18. 18.

    Articles 297, 298, 299, 330(b), 914 and 932.

  19. 19.

    Covid-19 treatment in Greece has been confined to public hospitals and public facilities, although a number of private medical clinics have been mobilised in the service of treating coronavirus patients as public hospitals struggle with mounting admissions and intubations. The liability of public hospitals and their doctors is specifically regulated in Greek law. As a rule, it is the hospital and not the doctors who will be liable for compensation vis-à-vis the citizens, while the public fiscus will have a claim for recourse against the doctor (Article 38 of Law 3528/2007 – Code on the Status of Public Civil Servants and Employees of Public Entities), although the state has not been extremely active in pursuing such claims against doctors (see document Nr 2/39008/0026/ 28.08.2012 of the General Secretariat of Fiscal Policy). There is an ongoing public discussion on whether it should be made possible for public hospitals and their health professionals to purchase private medical malpractice insurance so as this risk passes to the private sector, however the relevant law was not yet drafted at the time this chapter is written (March 2022).

  20. 20.

    In the UK, the appropriate standard of care that must be exhibited by doctors was set in the case Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. According to the Bolam test “if a doctor reaches the standard of a responsible body of medical opinion”, he is not negligent. Moreover, “the doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatment” as well as for ensuring that the patient has consented to the medical treatment, Montgomery v Lanarkshire Health Board [2015] AC 1430.

  21. 21.

    Trocellier v. France (dec.), no. 75725/01, ECHR 2006-XIV, Codarcea v. Romania, no. 31675/04, 2 June 2009.

  22. 22.

    Judgment of the Supreme Administrative Court (Symvoulio tis Epikrateias) n. 252/2020, Judgment of the Supreme Civil and Criminal Court of Greece (Areopag) n. 687/2013.

  23. 23.

    V.C. v. Slovakia, no. 18968/07, ECHR 2011.

  24. 24.

    196/2020 (Rhodes, Greece, First Instance Court).

  25. 25.

    Ibid.

  26. 26.

    Cooper (2010). https://journalofethics.ama-assn.org/Article/taking-no-answer-refusal-life-sustaining-treatment/2010-06.

  27. 27.

    Arskaya v. Ukraine, no. 45076/05, 5 December 2013.

  28. 28.

    Ibid.

  29. 29.

    Pighin et al. (2012) Decision making under hypoxia: Oxygen depletion increases risk seeking for losses but not for gains. Judgment and decision making. July Vol. 7. https://www.researchgate.net/publication/254426086_Decision_making_under_hypoxia_Oxygen_depletion_increases_risk_seeking_for_losses_but_not_for_gains.

  30. 30.

    Nakata et al. (2017) https://doi.org/10.1152/japplphysiol.00348.2017.

    https://journals.physiology.org/doi/full/10.1152/japplphysiol.00348.2017.

  31. 31.

    “Patients who are on the verge of intubation, may acknowledge that they are sick, but sometimes do not feel shortness of breath – the disease is such that they do not feel it – and therefore we intubate them. We do not (listen to their objections). The patient is not in a position to make decisions in that state. They are very often overwhelmed by fear, but also the disease itself causes hypoxemia, which – before it reaches the stage delirium – may not be understood by the patient because it does not cause shortness of breath. So the patient wonders: “why should I be intubated?” and says: “let me stay with the mask.” We have intubated at least 25 people in that condition. Should we let them die because this is how the coronavirus disease presents itself? Of course not.”

    Gianna Soulaki (2021) Evangelismos: Why it was decided to intubate a 54-year-old coronavirus denier against her will. Iatropedia. https://www.iatropedia.gr/eidiseis/evangelismos-giati-apofasistike-diasolinosi-54chronis-arnitrias-tou-koronoiou-para-ti-thelisi-tis/146559/ (In Greek).

  32. 32.

    “Intubation of a patient is deemed necessary in case of hypoxemia, i.e. very low level of oxygen in the body, or serious electrolyte disorders. In both cases, the patient’s level of consciousness is disturbed”. The Prosecutor investigates the death of a Covid-19-patient who refused intubation. Keep Talking in Greece (2021). https://www.keeptalkinggreece.com/2021/09/03/greece-covid-intubation-patient-refused-dead-54-year-old-woman/ (In Greek).

  33. 33.

    As soon as the patient was taken off the intubator he asked for his lawyer. He disputes the reason for his hospitalization. Law and Order (Greek online press) (2021). https://www.lawandorder.gr/Article/154429/ellada/molis-aposolinothike-asthenis-me-covid-19-zitise-ton-dikigoro-tou-amfisbitei-tin-aitia-nosileias-tou (in Greek).

  34. 34.

    March 2022.

  35. 35.

    ECHR Health Report, https://www.echr.coe.int/Documents/Research_report_health.pdf, accessible until January 2022.

  36. 36.

    Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, 22/11/2010, Tysiąc v. Poland, no. 5410/03, ECHR 2007-I, X and Y v. the Netherlands § 22, 26 March 1985, Series A no. 91, Pretty v. the United Kingdom, no. 2346/02 §§ 61 and 63, ECHR 2002-III, Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003-IX.

  37. 37.

    Glass v. the United Kingdom no. 61827/00.

  38. 38.

    Article 12 par. 2c of the Greek Code on Medical Ethics and Articles 140-157 of the Civil Code.

  39. 39.

    Prosecutor investigates death of Covid-patient who refused intubation. Keep Talking in Greece. (2021) https://www.keeptalkinggreece.com/2021/09/03/greece-covid-intubation-patient-refused-dead-54-year-old-woman/ (In Greek).

  40. 40.

    Inquiry launched into death of antivaxxer who refused intubation (2021). Daily newspaper Kathimerini. https://www.ekathimerini.com/news/1167317/inquiry-launched-into-death-of-antivaxxer-who-refused-intubation/; Gianna Soulaki (2021) Evangelismos: Why it was decided to intubate a 54-year-old coronavirus denier against her will. Iatropedia. https://www.iatropedia.gr/eidiseis/evangelismos-giati-apofasistike-diasolinosi-54chronis-arnitrias-tou-koronoiou-para-ti-thelisi-tis/146559/ (In Greek).

  41. 41.

    For example, some policies provide cover under the “good Samaritan clause”, i.e. in emergency cases where the doctor’s assistance or intervention is required while they are off duty.

  42. 42.

    Freistellungsanspruch under German law.

  43. 43.

    See among others Ioannis Rokas (2021), p. 835.

  44. 44.

    Ioannis Rokas, op. cit., p. 841 and p. 844.

  45. 45.

    An analysis was provided by.

  46. 46.

    In this relevance certain elements of legal protection insurance may apply; for example, the policyholder should not be deprived by the policy of his right to elect his counsel.

  47. 47.

    See Ioannis Rokas, p. 835, and p. 837.

  48. 48.

    Exclusion of pandemic is not within the scope of analysis of this Chapter. Therefore, it is not analysed whether the policy wordings have changed to exclude or include pandemics.

  49. 49.

    See Ioannis Rokas, op. cit. p. 843 fn 5.

  50. 50.

    A contrary interpretation made in the form of obiter dictum is included in the Supreme Civil and Criminal Court of Greece (Aeropag) decision 921/2009, available at Commercial Law Review (Epitheorisi tou Emporikou Dikaiou) 2009 p. 588, criticised by Achilleas Bechlivanis in Armenopoulos (2011), p. 258, reiterated by Efi Tziva (2014), p. 55.

  51. 51.

    Ioannis Rokas, op. cit. IV 9.

  52. 52.

    This term is encountered as medical malpractice (English), Behandlungsfehler (German), fault médicale (French), etc.

  53. 53.

    Articles 297, 298, 299, 330(b), 914 and 932 of the Greek Civil Code.

  54. 54.

    Judgments of the Supreme Civil and Criminal Court of Greece (Aeropag) 655/2019 and 1/2019, available in the NOMOS legal database.

  55. 55.

    Article 165 of Law 4876/2021, which came into force on 23 December 2021.

  56. 56.

    Judgment of the Supreme Civil and Criminal Court of Greece (Aeropag) 693/2020; Multi-member court of first instance of Thessaloniki Decision No. 8947/2017, available in NOMOS legal database.

  57. 57.

    Multi-member court of first instance of Thessaloniki Decision No. 8947/2017.

  58. 58.

    Tsalaportas (2013), pp. 13–14; Sakellaropoulou (2007), p. 45.

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Authors and Affiliations

  1. Rokas Law Firm, Athens, Greece

    Alkistis Christofilou, Sofia Getimi, Sotiria Bouranta, Konstantinos Ntallas & Viktoria Chatzara

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  1. Alkistis Christofilou
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  2. Sofia Getimi
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Correspondence to Alkistis Christofilou .

Editor information

Editors and Affiliations

  1. Department of Private and Commercial Law, University of Oviedo, Oviedo, Spain

    María Luisa Muñoz Paredes

  2. Łyszkiewicz Tarasiuk Kancelaria Radców Prawnych sp.p., Warsaw, Poland

    Anna Tarasiuk

Appendices

Legislation

  • Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings (ETS No. 168), Council of Europe (2001) Strasbourg. https://rm.coe.int/168007f2ca

  • Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin (ETS No. 186), Council of Europe (2006) Strasbourg, https://rm.coe.int/168007f2ca

  • Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research (CETS No. 195), Council of Europe (2007) Strasbourg. https://rm.coe.int/168008371a

  • Additional Protocol to the Convention on Human Rights and Biomedicine concerning Genetic Testing for Health Purposes (CETS No. 203), Council of Europe (2018) Strasbourg. https://rm.coe.int/1680084824

  • Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164), Council of Europe (1999), Strasbourg. https://rm.coe.int/168007cf98

  • Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II)

  • European Convention on Human Rights (ECHR), Council of Europe (1952) as amended by Protocols Nos. 11, 14 and 15 supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13 and 16, Strasbourg. https://www.echr.coe.int/documents/convention_eng.pdf

Greek Legislation

  • Presidential Decree 456/1984, Civil Code (Greek) (Government Gazette 164/A/24.10.1984) as amended

  • Law 2251/1994, Protection of consumers (Greek) (Government Gazette 191/16.11.1994) as amended

  • Law 2071/1992, Modernization and Organization of the Health System (Government Gazette 123/A/15.07.1992) as amended

  • Law 2496/1997, Insurance Contract Act (Government Gazette 87/Α/16.05.1997) as amended

  • Law 2619/1998, Ratification of Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Government Gazette 132/A/19.06.1998) as amended

  • Law 2776/1999, Prison Code, (Government Gazette 291/Α/24.12.1999) as amended

  • Law 3418/2005, Code of Medical Ethics (Government Gazette 287/A/28.11.2005) as amended

  • Law 3528/2007, Code on the Status of Public Civil Servants and Employees of Public Entities (Government Gazette 26/Α/09.02.2007)

  • Law 4876/2021, Provisions for combating the Covid-19 pandemic and protecting public health

Case Law

  • Arskaya v. Ukraine, no. 45076/05, 0512.2013

  • Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

  • Codarcea v. Romania, no. 31675/04, 02.06.2009

  • Glass v. the United Kingdom no. 61827/00

  • Jehovah’s Witnesses of Moscow v. Russia, no. 302/02, 22.11.2010

  • Montgomery v Lanarkshire Health Board [2015] AC 1430

  • Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III

  • Trocellier v. France, no. 75725/01, ECHR 2006-XIV

  • Tysiąc v. Poland, no. 5410/03, ECHR 2007-I

  • V.C. v. Slovakia, no. 18968/07, ECHR 2011

  • X and Y v. the Netherlands, 26 March 1985, Series A no. 91

  • Y.F. v. Turkey, no. 24209/94, ECHR 2003-IX

Greek Case Law

  • Judgment n. 424/2012 of the Supreme Civil and Criminal Court of Greece (Areopag)

  • Judgment n. 687/2013 of the Supreme Civil and Criminal Court of Greece (Areopag)

  • Judgment n. 1954/2017 of Thessaloniki Court of Appeal

  • Judgment n. 717/2018 of the Supreme Administrative Court (Symvoulio tis Epikrateias)

  • Judgment 8947/2017 of Thessaloniki First Instance Court

  • Judgment n. 921/2009 of the Supreme Civil and Criminal Court of Greece (Areopag)

  • Judgment n.196/2020 of the Rhodes First Instance Court

  • Judgment n. 252/2020 of the Supreme Administrative Court (Symvoulio tis Epikrateias)

  • Judgment n. 693/2020 of the Supreme Civil and Criminal Court of Greece (Areopag)

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Christofilou, A., Getimi, S., Bouranta, S., Ntallas, K., Chatzara, V. (2023). COVID-19 Treatment Refusal: Medical Liability Insurance in Greece in Light of the Oviedo Convention. In: Muñoz Paredes, M.L., Tarasiuk, A. (eds) Covid-19 and Insurance. AIDA Europe Research Series on Insurance Law and Regulation, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-031-13753-2_8

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