The medical profession has always been one of the most responsible. Doctors make difficult decisions every day that can have serious consequences for people’s lives and health. However, even under the best of circumstances, the risk of medical error remains. Wrong diagnosis, incorrect treatment, untimely medical assistance – all this can lead to serious consequences, and in some cases – even to the death of the patient. In such situations, the question naturally arises: where does medical negligence end and civil, administrative or criminal responsibility begins?
Holding medical professionals accountable is a hotly debated topic. Some believe that doctors should bear strict responsibility for their mistakes, because human life is at stake. Others emphasize that excessive punishment can lead to fear of decision-making, especially in difficult cases. After all, medicine is not an exact science, and each clinical case has its own characteristics.
Lawyers of the “Repeshko and Partners” Bar Association comment on how a doctor’s responsibility is determined, what types of punishment exist and what should be taken into account in cases where the injured party tries to protect his rights.
Our legal practice proves that bringing a doctor to justice is not an easy process. It requires a detailed review of the circumstances, expert opinions and an understanding of whether the actions of the medical professional were intentional, negligent or an unforeseen situation. Medical malpractice lawsuits are rarely straightforward, as it is usually necessary to determine not only the fact of the violation, but also whether it could have been avoided.
Apparently, the issue of providing medical care has never been more acute in Ukraine than in recent years. First, COVID-19 with its atypical symptoms and lack of treatment protocols that were written almost as the disease progressed. Then a full-scale invasion of the territory of Ukraine with active hostilities and the consequences of rockets already hitting the civilian population with injuries from explosive objects. How many times while reading the news has the message hurt my heart – the doctors fought for the life of the person pulled out from under the rubble for two months, but…. And at this very moment, everyone asks themselves the question – did the doctors do everything they could? Did the doctors make a medical mistake? And were they sufficiently qualified to treat this particular injury or illness? To what extent is it possible to check the integrity of the doctor and what is the chance of getting true information?
To get an answer to this question, we would like to familiarize you with the statistics from the beginning. Thus, in Great Britain, according to officially published data, errors in the work of medical personnel cause the death of about 70 thousand patients every year. To one degree or another, every twentieth English patient suffers from an incorrectly chosen method of treatment. In the United States, where informing citizens about problems in the medical field is the most common among other countries, the data on cases of professional shortcomings of doctors is impressive. According to research conducted by the US Institute of Medicine, more than 100,000 Americans are victims of medical errors every year, and medical errors are the fifth leading cause of death in the country. According to the American Medical Association, five people die every 15 minutes from medical errors or negligence of medical staff. The indicator is not much better even in those countries that we traditionally consider to be a model in the medical field. In Germany, almost 100,000 patients become victims of medical errors every year. According to statistics, the condition of 11% of patients (among the total number of hospital patients) deteriorates as a result of incorrect treatment, and 8% of medical errors lead to fatal consequences. We considered the example of developed countries precisely because medicine there is considered better than domestic medicine, as well as due to the fact that the statistics of medical errors are almost completely closed in our country, and only individual cases become known to the public. This problem dates back to the times of the USSR, and to this day, this category of cases is considered the most difficult among lawyers, and few take up these cases.
The difficulty of working with medical cases is that lawyers are not doctors. Medical knowledge is needed to bring the case to a logical conclusion, because one medical worker has the right and can be reviewed only by another medical worker. But everything in turn.
According to the “Fundamentals of the legislation of Ukraine on health protection, persons guilty of violating the legislation on health protection bear: civil, administrative or criminal liability.
At the same time, the doctor is not responsible for the patient’s health in the event that the latter refuses medical prescriptions or the patient violates the regime established for him (part five Article 34 Law of Ukraine “Basics of the legislation of Ukraine on health care”).
In a situation where a medical worker performed his duties properly and did not foresee or could not foresee the possibility of occurrence (prevent the occurrence) of negative consequences, he is released from responsibility. In cases where the actions or inaction of an official in the field of medicine did not cause a violation of the law, the rights of the patient and did not lead to negative consequences for health or life, responsibility does not arise.
Administrative responsibility
Let’s start with administrative responsibility. Administrative offenses in the field of public health protection include, in particular, the following: violation of sanitary norms (Article 42 of the Code of Administrative Offenses); Violation of the established procedure for the sale (issuance) of medicinal products (Article 424 KUpAP); violation of restrictions established for medical and pharmaceutical workers during their professional activities (Article 442 KUpAP); violation of the established order of collection, processing, storage, sale and use of donor blood and (or) its components and preparations (Article 451 KUPAP). As we can see, these categories of offenses have little to do with the average citizen and his health, and therefore are not interesting.
Persons who have committed administrative offenses are subject to administrative fines provided for in the sanctions articles, and mostly these are fines in the amount determined from the tax-free minimum income of citizens.
If, in the opinion of an average citizen, a medical error has occurred, the first thing that comes to mind in this case is the criminal liability of the doctor. We note right away that two types of liability can overlap here – criminal and civil, because a claim for compensation for material and moral damage can be brought within the framework of criminal proceedings. Also, in both of these types of liability, forensic medical examination plays an almost main role in proving the doctor’s guilt or innocence. It is her conclusion that finally decides:
- whether the patient’s health was harmed by the actions (inaction) of the medical worker;
- whether the damage was caused by the actions of the patient himself (non-compliance with recommendations);
- whether the damage is due to the individual characteristics of the patient’s body.
The following questions are usually asked for the solution of the forensic medical examination, but their list is not exhaustive and depends on the specific case:
- what is the cause of the person’s adverse outcome or death;
- regarding confirmation or denial of the fact of the presence of errors in the doctor’s work;
- what are the causes of doctor’s wrong actions;
- whether the doctor had the opportunity to predict and prevent the negative consequences of his actions;
- what are the likely causes of negative consequences in case of correct treatment;
- whether or not there were violations in the organization of health care in the medical institution where the case occurred.
If necessary, the judge or investigator has the right to appoint a forensic psychiatric examination on the case, which aims to establish the degree of severity and nature of the suffering, the psychological state of the patient.
As for conducting the mentioned examinations, there is a rather significant nuance here. First, the examination is carried out by doctors, and they have an unspoken rule – they do not pass theirs. And secondly, as it is not surprising, medicine is not an exact science, which gives many options. As an example – open the package of ordinary aspirin and look at the contraindications and side effects – we guarantee you will be surprised. That is why it is quite difficult to hold doctors accountable. However, on the contrary, it is extremely necessary to do this, for example, in such cases when the patient dies in the dentist’s chair precisely because the doctor did not check the patient’s reaction to the anesthetic in advance, which led to an anaphylactic shock to the administered drug and the subsequent death of the patient.
In general, the main thing in such cases is the evidence base. Experienced lawyers know how in one night in a medical institution they can rewrite all the patient’s medical documentation in their favor, and after that it is extremely difficult to prove anything. That is why this category of cases is handled by narrowly qualified lawyers, because in order to successfully manage the case, you need to have a thorough knowledge of all the medical documentation and the document flow of the hospital. This allows you to find evidence where it would seem impossible to find it – an entry in some registration log, a form that must be kept somewhere, etc.
For ordinary citizens, there is only one recommendation in this perspective: when you start treatment, keep the evidence. Take photos, copy all medical certificates and appointments. Save the results of tests and research, have almost a copy of the medical card on you at home and God forbid that it will never come in handy.
Criminal liability
It should be noted that bringing a doctor to criminal liability is possible only through a court. As for civil liability, here the compensation can be both voluntary and, again, through the court in case of diametrically opposite views of the parties on the existing problem.
For what exactly is it possible to bring a doctor to criminal responsibility? The list of articles of the Criminal Code of Ukraine will be as follows: improper performance of professional duties, which caused infection of a person with the human immunodeficiency virus or other incurable infectious disease (Article 131 CC of Ukraine); disclosure of information on conducting a medical examination to detect infection with the human immunodeficiency virus or other incurable disease (Article 132 of the Criminal Code of Ukraine); illegal abortion or sterilization (Article 134 of the Criminal Code of Ukraine); illegal medical activity (Article 138 of the Criminal Code of Ukraine); failure to provide assistance to a sick medical worker (Article 139 of the Criminal Code of Ukraine); improper performance of professional duties by a medical or pharmaceutical worker (Article 140 of the Criminal Code of Ukraine); violation of the patient’s rights (Article 141 of the Criminal Code of Ukraine); illegal conduct of experiments on humans (Article 142 of the Criminal Code of Ukraine); violation of the procedure established by law for the transplantation of human anatomical materials (Article 143 of the Criminal Code of Ukraine); forced donation (Article 144 of the Criminal Code of Ukraine); illegal disclosure of a medical secret (Article 145 of the Criminal Code of Ukraine); violation of the right to free medical care (Article 184 of the Criminal Code).
At the same time, it is not a criminal offense to cause damage to the state absolutely necessary, that is, to eliminate a danger that directly threatens a person or the rights of this person or other persons protected by law, as well as public interests or the interests of the state, if this danger in this situation could not be eliminated by other means and if at the same time it was not allowed to exceed the extreme limits necessary (Article 39 of the Criminal Code of Ukraine).
We would like to emphasize that bringing criminal cases to their logical end is sometimes directly hindered by legislation. Yes Mr. 4 hours 2 Art. 65 of the Criminal Procedure Code of Ukraine establishes that medical workers and other persons who, in connection with the performance of professional or official duties, became aware of an illness, medical examination, examination and their results, intimate and family cannot be questioned as witnesses aspects of a person’s life – about information that constitutes a medical secret. Based on the above, pre-trial investigation bodies, which conduct investigative (search) actions, cannot summon a doctor to testify regarding information that constitutes a medical secret. And therefore, as we said earlier, the main evidence base will be the medical documentation and the hope for its correct and timely registration.
Thus, the procedure for bringing doctors to criminal responsibility is quite long in time and involves a significant number of procedural features related to the professional activity of a doctor. So, after the appointment of one examination, which can last for six months or more, according to its results, one or more examinations may be required, which in turn will also take a certain amount of time.
Sometimes the investigation of criminal cases and their trial is deliberately delayed, because the defense side hopes for many vital factors: a change in legislation; expiry of the terms of bringing to responsibility, loss of relevance of the case and many others. It should be noted that this practice applies not only to medical cases, but in general to all criminal cases.
Civil liability
As for civil liability, according to civil law, in the case of proving the fault of the medical worker, the patient can claim compensation for all types of damage caused:
Property – all types of property expenses.
Non-property (moral) – monetary compensation to the violator of the physical and mental suffering that resulted from his offense. When calculating the amount of money, the level of physical pain and suffering suffered by the patient due to the mutilation and other negative consequences for his health is taken into account (Article 23 of the Civil Code).
Property damage, in turn, consists of real losses — property costs spent on restoring the violated right, as well as lost profits — profits that a person could have received if his rights had not been violated.
Depending on the case that resulted in harm to the patient, both the health care institution and the doctor directly can be responsible – it all depends on the specific situation. Article 1172 of the CCU stipulates that legal entities or individuals shall compensate the patient for damage caused to his health by a medical worker in the course of performing his professional duties.
Therefore, we advise patients of doctors not to rush to conclusions and first find out all the circumstances of the situation. If you believe that you have become a victim of a medical error, it is important to act calmly and consistently: collect all the medical documentation, get the opinions of independent experts, and only then decide whether you should go to court. At the same time, it is important to understand that not every negative result of treatment is the result of medical negligence.
We recommend that doctors take care of their medical records, as they are the key evidence in the case of legal proceedings. Adherence to professional standards, timely consultation of colleagues and clear explanation of all risks to patients can significantly reduce the likelihood of conflict situations.
The law should protect the rights of both patients and doctors. Therefore, the best option is constructive dialogue, proper legal regulation and responsible attitude of all parties to their rights and obligations.
