Dopuszczalność wykorzystania tzw. opinii prywatnych w cywilnych procesach medycznych – uwagi na tle prawa pacjenta do dokumentacji medycznej

Abstract

A ‘private opinion’ is a statement of opinion referring to a specific issue made by a privately appointed expert as opposed to an opinion delivered by an expert witness appointed by the court. Consequently, in medical related proceedings a private opinion does not carry the same weight of importance as evidence from an expert witness within the meaning of Article 278 § 1 of the Polish civil code. Nevertheless, the role of private opinion in civil medical litigation is increasing, primarily due to crisis within the institutions of expert witnesses. The author focuses on the issue of whether a private expert has the right of access to information gathered in medical records. Where such expert is appointed by the patient this issue does not raise any doubts because the patient himself holds the right to access those records. Th e situation becomes problematic when a private expert is appointed by a medical entity to act against a patient and intends to use that patient’s medical records as the basis of opinion. The medical entity may process sensitive data contained in medical records but only for purposes strictly defined by law. In view of this dilemma, the author presents the thesis that both the patient and the medical entity have the right to use this evidence, if it is based on medical documentation. Her view is founded on the content of art. 27 sec. 2 point 5 of the Data Protection Act, which allows the processing of the data necessary to enforce rights before a court and also on referral to the principle of equal treatment in civil proceedings.