Truths as hell: a practical jurisprudential philosophical vision of health liability derived from the fundamental right to informed consent, in its connection with the right to physical and moral integrity

Abstract

Under the approach of the Philosophy of Law, in this study we intend to carry out a jurisprudential review on the treatment that our courts give to health obligations and especially those of the dentist, who as a health professional, has specific characteristics; with special emphasis on the responsibility that arises from the breach of his duty to inform. The systematic search was carried out through the CENDOJ data base, of the Judicial Power, using as keywords the keywords "health responsibility", "dentist", "duty of information", "informed consent". As a result, after an introduction, we collect different judgments of the Spanish Supreme Court that come to give the keys to the jurisprudential treatment of the subject studied, with a view to its study as a practical philosophy of law. In conclusion, we can affirm that the obligation of the dentist is always one of means unless a result would have been insured. The responsibility arises from the damage is subjective and the courts do not usually apply the consumer legislation in this health field, applying it only to organizational aspects. It can be contractual and / or non-contractual, based on the provisions of Book IV of the Obligations and contracts of the Spanish Civil Code and special laws, such as the named «Patient Autonomy law».