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VI Latin American Congress on Private Law


in Monteria, Colombia.

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best reading of 2009

Ending the Year, comment a little about the best we've read in 2009.

probably be something in the pipeline ...

I. legal literature:

Individual Paper
1. : "Fundamentals of Contract Law", Noemí Nicolau. 2 nd prize : "Consumers", 2 nd ed., Ricardo L. Lorenzetti.
2. collective work : "Tribute to the National Congress of Civil Law" published by Academy National of law and Cs. Social Cordoba in 4 volumes.
3. Best Magazine specialized : "Abuse of corporate personality", Journal of Private Law and Community 2008-3 *.
4. Best article doctrine: "Back on the illegality and Budget (inexcusable) in civil liability, Marcelo J. Mesa López, JA 2009-I-1243.
5. Best article in collaboration : "Reforms to the law of consumer protection," Daniel Pizarro - Rubén Stiglitz, LL 2009-B, 949.

II. not legal literature:

1. Novel: "The Trap" 2 nd prize "Just Cause", both of the great John Grisham.
2. To think "Liquid Love", Zygmunt Bauman. ** 2 nd prize : "do you think those who think like me," Diana Cohen Agrest.
3. History: Brief history of the world, "Ernst Gombrich .**
4. Philosophy:" The Adventure of Thought ", Fernando Savater.

III. Other mentions:

- Mention Best Paper of the Year: "punitive damage: the most important reform to Law Consumer , Rodolfo M. González Zavala, in XXII National Conference of Civil Law, see volume of papers V, p. 103.

- The best "classic" right "of private law and social massification", Luis Díez-Picazo.

- "Punitive damages", Edgardo López Herrera

- Encoding and rationality: The right smart, "Caumont Arturo

- "Light Man", Enrique Rojas "

-" Poor my fatherland, "Marcos Aguinis

* Actually came out in April 2009.

** Not published in 2009.

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Coding and rationality: The right smart. Arturo Caumont

recommend an excellent article (actually prologue) of the great Uruguayan civil Arturo Caumont, published on the website of the National Academy of Law and Cs. Social Córdoba (on which I will upload a post soon.)

Arturo, whom I know personally for his many coming to Cordoba, is passionate about young people, and conferences, as well as deep and serious thoughts usually come with funny and some of the most amusing theatrics.

Communicate with your students through the following blog: http://republicadecaumont.tk/ . It also participates in the following: http://nucleoderechocivil.blogspot.com/ .

A big hug Arturo

LINK:

- Article about coding, here.

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How far should prolong life?

Man is a being biologically inert, but develops in several dimensions: cultural, spiritual, social, emotional ... The full life is the development of all these dimensions.

What happens is that the law must protect not only irrationally biological life at all costs, but should not neglect it, as it is essential for the development of the other dimensions.

With regard to the availability of life can not be said that life is absolutely unavailable (just think of mountain sports, surgeries and other risks assumed by men in their daily lives), nor absolutely available.

What one can argue, is the right to human dignity, and also recognize that there are cases in which the dignity prevail over life, and others that something will happen exactly reverse. That is, there will be the case.

For example, in cases where the necessary medical treatments appear disproportionate (those not justified the relationship between sacrifice and pain imposed on the patient and the expectation a favorable outcome), should prevail over the dignity of life. This is because the law can not force a person to bear the unbearable, to suffer cruelty, to see degraded their dignity, to adjourn briefly to life.

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Patient Rights - Law 26,529

The new law on patients' rights is through legislation to regulate many matters that until now were only recognized by the Court: clinical history and informed consent.

also is the first legal precedent in our country about advance directives will.

In the next post develop it some more.

Here goes ...

Patient Rights - Law 26,529

26,529 Law - PUBLIC HEALTH - Patient Rights in Relation to Professionals and Institutions of Health.

[1]
Published in BO: 20/11/2009

The Senate and House of Representatives the Argentina nation in Congress assembled, etc. Act enact as:

PATIENT RIGHTS, MEDICAL HISTORY AND CONSENT

SECTION 1 - Scope. The exercise of the rights of patients, in terms of autonomy, information and clinical documentation, is governed by this law.

Chapter I

PATIENT RIGHTS IN RELATION TO THE PROFESSIONALS AND INSTITUTIONS OF HEALTH

SECTION 2 - Patient Rights. Rights are essential in the relationship between patient and professional or health, or health insurance agents, and any effector concerned, the following:
a) Assistance. The patients, mainly children and adolescents have the right to be assisted by health professionals, without prejudice and discrimination on any product of their ideas, religious, political, socioeconomic status, race, sex, sexual orientation or any other status. The only professional acting may discharge the duty of care, when actually taken delivery of patient other competent professional
b) Treatment with dignity and respect. The patient has a right to agents involved in the health system, will give a dignified treatment, with respect to their personal and moral convictions, mainly related to their sociocultural, gender, modesty and privacy, whatever condition that is present and is extended to family members or companions;
c) Privacy. All medical activity - assistance aimed at obtaining, classifying, use, manage, store and transmit information and clinical documentation of the patient must observe strict respect for human dignity and autonomy, as well as due safeguarding the privacy of himself and the confidentiality of sensitive data, subject to the provisions contained in Law No. 25,326;

d) Confidentiality. The patient has the right to any person involved in the processing or handling of clinical documentation, or access the content thereof, with due reserve, unless expressly provided otherwise issued by competent judicial authority or authorization from the patient ;
e) Autonomy of the Will . The patient has the right to accept or reject certain medical procedures or therapies or biological, with or without expression of the facts, as well as to revoke later manifestation of the will. Children and adolescents have the right to intervene in terms of Law No. 26,061 to the purposes of making decisions about therapies or medical procedures involving biological or her life or health;

f) Health Information. The patient is entitled to receive necessary health information related to its health. The right to health information includes the right not to receive such information.

g) Medical Interconsultation. The patient is entitled to receive written health information in order to get a second opinion on diagnosis, prognosis or treatment related to his health.

Chapter II

OF HEALTH INFORMATION

SECTION 3 - Definition. For the purposes of this law, health information means that you, in a clear, sufficient and appropriate to the patient's ability to understand, report on their health, studies and treatments that may be made and the likely need outcomes, risks, complications or consequences thereof.

SECTION 4 - Authorization. Health information may only be provided to third parties, with patient permission.

Where the patient's inability or failure to understand the information because of their physical or mental, it will be offered to his legal representative or, failing that, the spouse residing with the patient, or the person who, without being a spouse, living together or in charge of care or care of himself and relatives to the fourth degree of consanguinity.

Chapter III

INFORMED CONSENT

SECTION 5 - Definition. Be understood to mean by informed consent, sufficient declaration of intent made by the patient or their legal representatives if any, issued upon receipt, by a professional speaker, clear, accurate and appropriate with respect to: a) Your condition health; b) The proposed procedure, specifying the objectives, c) The expected benefits of the procedure; d) The risks, discomfort and adverse effects expected; e) The specification of the alternative procedures and their risks, benefits and losses related to the proposed procedure; f) The likely consequences of non-completion of the proposed procedure or the specified alternative.

SECTION 6 - Mandatory. Every performance in medical-health, whether public or private, requires, in general and within the limits established by regulation, the patient's informed consent.

SECTION 7 - Instrumentation. Consent will be verbal with the following exceptions, in which shall be in writing and duly signed: a) Inpatient b) surgical intervention; c) invasive diagnostic and therapeutic procedures, d) Procedures that involve risks as determined by the regulations of this law, e) revocation.

SECTION 8 - Exposure for academic purposes.

required patient consent or otherwise, the legal representatives, and health professional exhibitions for intervening before academics, prior to the completion of such exposure.

Article 9 - Exceptions to informed consent. The health professional shall be exempted from requiring informed consent in the following cases: a) When a serious act of intimidation alters danger to public health; b) When an emergency act of intimidation alters with grave danger to the health or life of the patient, not could give consent by themselves or through their legal representatives.

The exceptions provided in this Article shall be credited in accordance with the established regulations, which must be interpreted restrictively.

ARTICLE 10. - Reversed. The decision of the patient or his legal representative, as to consent or refuse the above treatments may be revoked. The acting professional must abide by that decision, and to place on record it in history, taking the case all the formalities that are necessary to demonstrate conclusively that the late expression of will, and that it was adopted in knowledge of foreseeable risks that it entails.

Where the patient or his legal representative may revoke the refusal given indicated treatments, the acting career that decision sóloacatará whether to maintain the patient's health conditions from time to time advised that such treatment. The well-founded decision will settle the professional acting on clinical history.

ARTICLE 11. - Advance Directives. Everyone capable adult can provide advance directives about their health and may consent or refuse certain medical treatment, preventive or palliative, and decisions concerning their health. The directives will be accepted by the physician, except those involving developing practice of Euthanasia, which have to exist.

Chapter IV

OF THE MEDICAL HISTORY

ARTICLE 12. - Definition and scope. For the purposes of this law, understood by medical history, chronological binding document, numbered and complete stating the patient any action taken by professionals and allied health.

ARTICLE 13. - Medical records.

The content of medical records, on magnetic media can be drawn up subject to arbitrate all means ensure the preservation of its integrity, authenticity, fastness, durability and recoverability of the data contained therein in a timely manner. To this end, it must adopt the use of restricted access with identification keys, non-rewritable storage media, control of modifying fields or any other useful technique to ensure integrity.

The regulations provide supporting documentation to be retained and appointed officials who will be responsible for safeguarding the same.

ARTICLE 14. - Ownership. The patient owns the medical record. At the simple request to be provided with a copy thereof, certified by a competent authority of the institutional care. Delivery will be made within forty-eight (48) hours of request, except in case of emergency.

ARTICLE 15. - Seats. Without prejudice to the preceding articles and as provided in the regulations, the clinical history should establish: a) The starting date of their making; b) Details identifying the patient and family, c) Details identifying intervener and professional specialty; d) clear and accurate records of acts performed by professionals and auxiliary speakers e) genetic background, physiological and pathological if any; f) Every medical act performed or directed, whether it be prescription and supply of medications, performing treatments, practices, and complementary major studies related to diagnosis presumptive certainty if any, proof of involvement of specialists, diagnosis, prognosis, procedure, evolution and all other activities inherent in particular medical admissions and discharges.

seats that correspond to the provisions of paragraphs d), e) f) of this Article shall be made based on classifications and universal models adopted and updated by the World Health of , that the enforcement authority established and updated by regulation.

ARTICLE 16. - Integrity. Part of history, informed consent, the leaves of medical indications, the forms of nursing, surgical protocols, dietary requirements, studies and practices carried out, rejected or abandoned, debiéndose accompanied in each case, a brief summary of the act aggregation and disaggregation authorized to record the date, signature and seal of professional acting.

ARTICLE 17. - Uniqueness. The medical history is unique within each public or private care facility and should identify the patient by means of a "uniform key", which should be communicated to it.

ARTICLE 18. - Inviolability. Depositories.

The history is inviolable. Public hospitals or private health professionals, as holders of private clinics, are responsible for their care and custody, assuming the character depositary thereof, and shall implement the necessary means and resources to prevent access to the information contained therein by unauthorized persons. For the custodians they are extensive and apply the provisions of contract are set out in Book II, Section III, Title XV of the Civil Code, "the tank", and similar norms.

The requirement in the preceding paragraph shall govern for the minimum period of ten (10) year statute of limitations of contractual liability. That period runs from the last performance recorded in history and defeated the same, depositary will have the same in the manner and form determined by regulation.

ARTICLE 19. - Standing. Provides that are entitled to request medical records: a) The patient and his legal representative; b) the spouse or person residing with the patient in the union, whether or not of different sexes as determined by the regulatory accreditation and the heirs, if any, with patient permission, unless that person is unable to give it; c) Physicians and other professionals in the art of healing, when they have express permission from the patient or his representative legal.

for these purposes, the depositary must have a copy of medical records by way of back-up, coating the copy all the formalities and guarantees due to the original. They may also be released, where appropriate, certified copies of the respective health authority medical records, noting the person making the measure, monitor their data, reasons and other considerations that are necessary.

ARTICLE 20. - Negative. Action. All persons authorized under the terms of Article 19 of this law, from the negative delay or silence the person responsible is responsible for safeguarding the history, have the practice of direct action of "habeas data" to ensure access and obtain it. In such action is how to process print in each jurisdiction is most suitable and fast.

in national jurisdiction, this action is exempt from legal expenses.

ARTICLE 21. - Penalties. Without prejudice to criminal or civil liability that may correspond to, breaches of the obligations arising from this Act by practitioners and of health care facilities constitute serious misconduct, be liable under national jurisdiction to the penalties provided in Title VIII of the Act 17 132-Legal Regime Exercise Medicine, Dentistry and Related Activities of the same-and, local jurisdictions will be subject to the penalties of a similar nature that correspond with the legal system of medical practice in force at each of them.

Chapter V

GENERAL

ARTICLE 22. - Authority national and local implementation. The authority for implementing this law in national courts, the Ministry of Health of the Nation , and in each of the provinces and autonomous city of Buenos Aires, the highest local health authority.

invite provinces and the Autonomous City of Buenos Aires , to adhere to this law as it is a matter of the sanctions regime and the benefit of free on access to justice.

ARTICLE 23. - Term. This law is of public order, and will take effect from NINETY (90) days from the date of publication.

ARTICLE 24. - Rules. The Executive Branch shall regulate this law within NINETY (90) days after its publication.

ARTICLE 25. - Communicate to the Executive.

DADA EN LA SALA DE THE ARGENTINE CONGRESS, IN BUENOS AIRES, THE TWENTY DAY OF OCTOBER TWO THOUSAND NINE. - Julio Cobos CC. - EDUARDO A. Fellner. - Enrique Hidalgo. - John H. Estrada.

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November 25. Day against gender violence.

The "days are a time ...", to reflect on various social problems, in this case on one that affects us very directly: domestic violence.

• To discuss this issue we first data, ie statistics.

• Can we prevent abuse? . How? .

• legal protection :

• Protective Order .

• Guide specific rights of women victims of gender violence .

• Labour Rights and Social Security .

• specific employment program .

• Rights immigrant women victims of gender violence .

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The Kirchner, Vargas Llosa

The newspaper El Pais, an ironic description of how the presidential couple was enriched in recent years, taking advantage of a system that supposedly hates ... capitalism.

• "The operations bordering on the genius had the scenario of the magnificent city of El Calafate
• " ... Their hearts are left ( only their pockets and Dona Cristina dresses are right) ... "

GREAT, here.

Shingles On Your Breasts

warn you that the course of "TRUST" directed by José Fernando Marquez and coordinated by Magdalena Oliva Cornet has new start date (Monday 10/08).

The subject is topical and speakers are quality, so we recommend it.

themes and arrangements are in the brochure.

big To view the brochure click on the image or here: BROCHURE .

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TRUST Course XXII National Conference on Civil Law

Less than two months to the conference, so we want to make a second invitation (the first, here ) .

All information on the conference website: http://www.derechocivilcba.com.ar/ .

addition questions can be sent to: jornadascivil@gmail.com, or as a comment on this blog.

I stress the job deadlines: 15/08 and 14/08 PAPERS CASE STUDIES FOR THE COMPETITION OF STUDENTS so no one forgets.

continue in the next post, analyzing the issues to be addressed.

I hope everyone can participate.

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Case study: should a class action against the sms to 2020?

I read a post (I went from the obiter dicta of Garballó ) entitled Extra, extra! If you send "Stop asshole" to 2020 you receive from asshole.

gives very good examples and comparisons ironic about the case of fraud companies to provide "content services" provided to users of mobile phones (Ubbi etc.)

is a great theme: a once sent a little message, and gets caught for all eternity, for unsubscribe is an ordeal.

On the analysis of the phenomenon, see below in the LINKS add good articles on the subject, but I want to propose a practical case:

1. "According to the Consumer Protection Act, already upheld by the Supreme Court in" Halabi ", come a collective action in these cases?

2. Who would legitimadospara interposing?

3. How to solve the problem of distribution of compensation?

My answer will write later, but I want to know what you think.

LINKS:

- 1

- 2

- 3

- 4

Susquehanna Harvestmarinara

application of punitive damages in the case: 2 cases

We know of two cases in which it has applied the intended civil penalty Consumer enshrined in Article 52 bis of the LDC.

The first is from October 2008 entitled "CAÑADAS PEREZ MARIA DOLORES C / BOSTON BANK NA S / DAMAGES", a person who was left in the truthful for two years after it canceled its debts to the Bank Boston. The civil penalty was imposed on the defendant was $ 6000 .-

As seen in the seventh paragraph, the institution called punitive damages aims to dismiss this kind of behavior, it seeks to deter further similar events .

The second fault is June 8, 2009, "Machinandiarena NICOLAS HERNANDEZ C / TELEFONICA DE ARGENTINA S / CLAIM AGAINST ACTS OF INDIVIDUAL", there is extensive explanation of the figure. On its application in the case says

is accredited non-observance different rules of hierarchy (global, regional, national, provincial and municipal) in the context of consumer relationship that bound the parties and a impaired upper right consumer by not providing a dignified in terms of art. 8 bis of Law 24,240, which determines the application of the civil penalty (conf art. 52 bis of the Act referred-to law 26 361-) (consid. e).

The case concerned a person claiming to Telefonica for not having ramps for disabled, ie according to this court, the application of punitive damages appropriate in the case of any violation obligations on the supplier, without giving much importance to the subjective aspect.

The truth is that punitive damages are already positive law in our system, so we like it or not, should consider carefully the first cases, to mark the course of Figure at least in its first steps in a order that, at first sight, is considered a stranger (played away).

Links:

- Infobae

- Blog Rusconi

-

our on punitive Posts 1 and 2 .

- Garballó Post before the enactment of the Act

-recommend reading Herrera López, Edgardo, Punitive damages, Ed Abeledo-Perrot, Buenos Aires, 2008.