Lex artis ad hoc Applied in the Field of Healthcare

Abstract: The lex artis ad hoc is the technical-legal criterion that allows evaluating the correctness of a medical act based on the specific circumstances in which it is performed. In contrast to the traditional concept of a uniform lex artis, its ad hoc version recognizes the inherent variability of the science and art of healing, as well as the need to consider concrete factors such as the patient’s clinical situation, the conditions of the healthcare environment, incidents inherent to professional practice, and the physician’s qualities. In civil liability, this standard reaffirms that the medical obligation is one of means and not of results, ruling out attribution of liability based on unavoidable diagnostic errors or the demand for infallibility. Fault arises only when the professional unjustifiably deviates from the rules of their art and from the diligence required according to the state of scientific knowledge.

The lex artis, the technical rule of conduct for a profession, is used to refer to the assessment of the work performed by a professional, in order to determine whether it is correct or not. It applies to professional activities and refers to two important aspects thereof: the diligence exercised by the author and the result produced.

It is applicable to those professions in which it is necessary to act by employing a technique through which the results of the activity are obtained, that is, to experimental or scientific activities in which the application of technique yields results that are objectively and materially verifiable. It has been said that the lex is applied to measure the work or the result obtained by a professional.

In the case of medical activity, we note that the application of the lex artis depends on various factors, such that the technique may vary depending on each case. We cannot speak of a general lex artis, but rather, when it comes to medicine, understood as both a science and an art (of healing), we must speak of a lex artis ad hoc, characterizing its special aspect.

The lex artis ad hoc is a value judgment regarding the correct application of the medical act. In the evaluation, the following must be taken into account:

• The specific case in which the medical act is performed.
• The circumstances in which it is performed.
• Unexpected incidents in the normal professional practice.
• The qualities of the author of the medical act.
• The characteristics of the patient.
• The influence of endogenous factors (the patient’s condition, the emotional state of family members, and the conditions of the healthcare facility).

These considerations will serve to determine whether or not the medical act complies with the standard technique required.

When deciding cases, the following criteria must be taken into account, in some way following the trend of comparative law:

• Medical liability is not determined by diagnostic errors, nor by lack of skill in the performance of surgical activities (since infallibility is not required in this, nor in any aspect of social life).
• Medical liability is determined to the extent that fault involves conduct that is inadequate in relation to certain ordinary requirements and means.
• Medical liability is established when treatment involves negligent conduct that, disregarding the lex artis, leads to harmful outcomes.
• The conduct of healthcare professionals must be governed by the so-called lex artis ad hoc, which takes into account the specific case in which the medical act is performed, the circumstances under which it is carried out, and the incidents inherent in normal professional practice.
• Lex artis ad hoc is understood as that evaluative criterion of the correct application of the medical act performed by the professional, which takes into account the specific characteristics of its author and of the profession.

In short, the lex artis is, by its nature, a variable standard that reflects the constant evolution of medicine and the increasing specialization of its techniques. In this context, the lex artis ad hoc stands as the true guiding parameter of the medical act, requiring that professional conduct be appropriate to the specific case and consistent with the physician’s training, skills, and ethical principles. This criterion not only defines proper conduct but also justifies a higher requirement of diligence for those who professionally practice the art of healing, as compared to those who lack such specialization. Negligence arises, therefore, when the professional fails to apply the knowledge and resources imposed by their specific training, unjustifiably deviating from the technical and ethical standard required by the lex artis ad hoc.

Author: Enrique Varsi-Rospigliosi