What should be done in case of a medical error, judicial practice

In the modern world, medical errors have entered our lives so deeply that no one is surprised when they occur. Every person is not immune from mistakes, and a medical worker is no exception. The only question is what prompted the doctor to make a mistake.

The reason for this or that medical error can be either a banal reluctance to help the patient, in violation of the “Hippocratic Oath,” or ignorance of the basics of one’s professional work due to the unsuccessful education reform (the introduction of the notorious Unified State Exam), the commercialization of education and the corruption of some representatives of the teaching staff of universities.

The concept of medical error: Russian legislation

There is no direct concept of “medical error” in Russian legislation. In a general sense, it is a mistake by a medical professional in his work, due to negligence or negligent actions. Also, a medical error can be considered as improperly performed actions or inactions of a medical employee, resulting in a deterioration in the patient’s health condition or his death. It is worth noting that in the world there is no single concept of what the term “doctor’s error” means, and it is not included in the Criminal Code of the Russian Federation. However, the Criminal Code of the Russian Federation contains a provision on negligence, as well as other articles that can be defined as medical error, for example this:

• infection of a patient with AIDS,
• illegal abortion;
• sale of pharmaceuticals without a license (if this worsened the patient’s health).

Based on these articles, we can conclude that a doctor’s error can be classified as follows:

• failure to provide assistance to the patient;
• causing death by negligence;
• causing grievous bodily harm through negligence.

Criminal proceedings

To initiate a criminal case for committing a medical error, the victim must submit an application to the Prosecutor's Office and collect a package of necessary documents: his medical record, test results and doctor's prescriptions.

The prosecutor's office reviews the case and, if the validity of the application is confirmed, files a claim in court.

Rules for communication between a health worker and investigators

A health worker suspected of committing a medical error is summoned for questioning to the Prosecutor's Office. There he is interrogated and all his answers are recorded in the protocol. In some cases, a suspected doctor may be forced to sign a written undertaking not to leave the country or detained for several days.

During the investigation, the doctor, like any other suspect, is subject to the presumption of innocence. This allows him to continue his professional activities until his sentencing.

Is it possible to reverse the process if a case has already been opened?

As in any other case, the plaintiff can withdraw his claim to initiate criminal proceedings, even if one has already been filed. To do this, both sides of the conflict need to reach a peace agreement. No consequences are envisaged due to the withdrawal of the claim from the court.

The only condition is that the plaintiff must write a statement to terminate the lawsuit.

When is a criminal case considered in a special manner?

A criminal case may be considered in a special manner due to the scale of the medical error or if the fact of intentional harm on the part of the medical worker has been proven.

The most high-profile case of a criminal offense on the part of a doctor over the past few years is the infection of more than 400 children with HIV infection due to negligence in compliance with sanitary standards.

In this case, the medical worker is punished not as a medical error, but as for deliberately causing harm to the health of minors. This affects the number of years of imprisonment.

Classification of medical errors in medicine

Medicine has its own classification of medical errors, which is very extensive. In a generalized version, six types of medical errors can be distinguished:

1. Diagnostic – stage of diagnosis;
2. Medical-technical – this is insufficient or erroneous diagnosis or treatment;
3. Therapeutic-tactical is an incorrectly selected research method that allows one to leave the diagnosis, incorrect or incorrect interpretation of the results obtained, or an error in identifying indications or contraindications for any of the therapy methods;
4. Organizational – allowed in the case of an incorrectly organized therapeutic process or low-quality, understaffed medical employees’ workplaces;
5. Incorrect execution and maintenance of mandatory documentation - if the actions taken in relation to the patient were not recorded in writing;
6. Inappropriate behavior of medical employees - disregard for the principles of ethics and moral standards in relation to patients.

There are no official statistics on medical errors in Russia, however, according to unverified data, about 300,000 patients die each year due to “blunders” by doctors. At the same time, the first place in the statistics of errors is the incorrect choice of medication for treatment and their dosage - 56% of a possible 100%.

How to bring the perpetrator to justice?

To bring a negligent doctor to justice, first of all, his guilt must be proven. And for this, the patient who has suffered from the actions of the unfortunate doctor will have to provide certain documents containing important information.

In addition, it is good if the patient has witnesses who can confirm the fact of the offense.

testimony , documents and an application for consideration of the case must be sent to the court or prosecutor's office. Moreover, it is best to send certified copies, because the originals may be useful to the patient.

Types of liability for medical errors

The legislator provides for several types of liability for the negligence of medical workers in their duties:

• disciplinary (carried out by the administration of clinics or hospitals, consists of labor relations, for example, in the form of suspension from work, reprimand or dismissal);
• civil;
• criminal.

Let's look at the last two responsibilities in more detail.

Important! The main problem for lawyers is that it is extremely difficult to prove that a doctor committed guilty actions. But if there are appropriate conclusions from independent experts, the doctor’s incorrect actions may fall under a certain article of the Civil or Criminal Code of the Russian Federation.

Characteristics of concepts

Medical error should be distinguished from negligence ; these two concepts define completely different circumstances that must be taken into account when assigning punishment.

Thus, a medical error involves the mistake of a medical professional.

This misconception is always unintentional (that is, the specialist conscientiously performs his duties, trying to help the patient).

However, the correct diagnosis and treatment in this case may be influenced by various unfavorable factors , such as:

1. A special, uncharacteristic course of the disease in a particular patient, when the disease manifests itself with symptoms uncharacteristic for this pathology (or if there is no clinical picture).
2. Misleading the doctor by the patient himself, in particular if the patient hides any information from the specialist or presents it in the wrong light.
3. Imperfection of medical technologies and diagnostic techniques. This is especially true in the treatment of complex diseases.
4. Inexperience of the medical worker. It is known that professionalism comes with practice, however, a young specialist who has recently graduated from medical school does not yet have a sufficient amount of practical skills; all his knowledge and skills are built mainly on theory. And therefore the possibility of error cannot be excluded.

It is important to take into account the fact that a medical error always presupposes the conscientious performance by a medical professional of his professional duties. There are no signs of negligence or dishonesty here.

About negligence

Any professional negligence presupposes the presence of such components as laziness, inattention, and neglect of one’s own responsibilities .

And, if, for example, in production or in another field of activity, such an attitude rarely leads to fatal consequences, then medical negligence is the most dangerous phenomenon, because the patient trusts his own health and life to a medical professional.

And the consequence of neglect of his duties can be the death of a person.

Medical negligence can manifest itself in an irresponsible and disregardful attitude towards one’s duties and patients, as well as in the desire to obtain the greatest possible material benefit (for example, if we are talking about paid medical institutions).

In this case, the specialist deliberately treats a large number of patients without paying due attention to each of them.

In this case, the likelihood of an incorrect diagnosis increases (for example, if only the existing symptoms of the disease are assessed without studying the medical history), which means that treatment will be prescribed incorrectly .

Civil liability in case of medical error

In almost all civil cases of medical malpractice, the defendant is not the doctor, but the medical institution in which he works. Civil liability is based on the provisions of several articles of the code and is primarily of a material nature. Thus, Articles 1085 and 1087 of the Civil Code of the Russian Federation regulate the types of possible expenses that may be imposed on doctors or a medical institution in the event of harm to health or injury to a patient by their actions or inactions. These will be the costs for:

• treatment, including sanatorium-resort treatment;
• purchase of medicines;
• departure of specially hired people;
• acquisition of special vehicles and devices for movement in case of deprivation of ability to work and/or disability;
• prosthetics;
• retraining to prepare for another profession.

Another article of the Civil Code - 151, provides for the patient the opportunity to receive compensation for moral damage. The plaintiff must present evidence of physical and mental suffering caused to him, as well as a causal connection between them and the harm caused to him.

Important! The norm of civil law provides for a presumption of guilt for the causer of harm, that is, it is the medical worker or his employer who must prove that the harm was not caused through his fault, which is very important when considering the patient’s claims.

Arbitrage practice

One of the most precedent-setting cases regarding the recovery of compensation from a medical institution for medical error is the case of a resident of St. Petersburg, who was suing one of the city’s maternity hospitals. The woman was admitted to the antenatal ward of the hospital, where she asked the doctors to perform a planned caesarean section on her, since due to her fragile physique she had problems during the birth of her first child.

Despite the fact that the fetus was quite large, doctors decided to give birth naturally. As a result of a long and painful birth, which ended with the use of medical forceps, the child was born with damage to the bones of the skull, which subsequently led to the diagnosis of cerebral palsy.

Despite the fact that the maternity hospital denied its guilt in the incident until the last moment, the medical error was confirmed by an examination carried out during the trial of the case by the court. The plaintiff received compensation for material and moral damage in the amount of 4 million rubles, which is one of the largest amounts of compensation in the judicial practice of medical errors.

If you still have questions about liability for medical malpractice, ask them in the comments to the article

Criminal liability for medical error

Criminal cases in case of medical errors are initiated extremely rarely; the medical worker himself is held accountable. The essence of the problem is that the Criminal Code of the Russian Federation does not contain a direct article that would provide for a specific standard of liability for committing a medical error. Therefore, lawyers are guided by the composition of several separate articles related to causing harm to health and death to a person:

• Part 2 of Article 109 of the Criminal Code of the Russian Federation provides for criminal liability for causing the death of a person through negligence, and is charged in the event of improper performance by a medical worker of his duties.
• Part 2 of Article 118 of the Criminal Code of the Russian Federation provides for criminal liability for causing grievous harm to human health.
• Part 2 of Article 124 of the Criminal Code of the Russian Federation establishes liability for inaction in the form of failure to provide appropriate assistance to the patient.
• Part 4 of Article 122 of the Criminal Code of the Russian Federation provides for punishment for infecting a patient with HIV infection as a result of improper performance by a doctor of his duties.
• Part 1 of Article 235 of the Criminal Code of the Russian Federation establishes liability for engaging in medical practice without a license.
• Part 3 of Article 123 of the Criminal Code of the Russian Federation provides for liability for illegal abortion.
• Part 2 of Article 293 of the Criminal Code of the Russian Federation provides for the possibility of prosecuting a doctor for negligence as a result of performing the labor functions assigned to him.

Important! Criminal liability can only arise if a cause-and-effect relationship is proven between the occurrence of consequences and the actions of the doctor, which in most cases is very difficult to prove.

For what reasons are such mistakes made?

The causes of medical errors can be:

• lack of knowledge or experience of the medical professional;
• difficulties in diagnosing the patient’s condition or feeling too unwell;
• lack of necessary equipment;
• biological processes that could not be predicted;
• use of outdated techniques and drugs;
• treatment period is too short;
• shortcomings of the healthcare system (for example, rare staff training);
• transfer of the victim from one department to another.

As we see, not all of the hypothetical situations are associated with the doctor’s shortcomings - sometimes it is the condition of the victim or the insufficient amount of modern equipment.

Where to go in case of medical error

If the patient is dissatisfied with the outcome of his treatment, he must visit the head of the medical institution or the head physician of the institution - the patient will be assigned a new attending physician of the same profile, and disciplinary measures must be taken against the first doctor - a reprimand or deprivation of a bonus. If the “first persons” of the medical institution have not taken measures, the patient has the right to go to another medical institution and obtain a conclusion there, and then contact the city Health Department or the Ministry of Health of a constituent entity of the federation or Rospotrebnadzor with a statement about the need to conduct an inspection in a medical institution where he is not provided the necessary medical care. If serious consequences occur from the “treatment”, the patient has the right to independently apply to the court with a claim for compensation for moral damage and harm to health, as well as to the prosecutor’s office, where, after an inspection, a criminal case can be initiated.

Important! The possibility of compensation can be considered both in civil proceedings and in criminal proceedings.

Written request to the hospital

The first step in the fight for justice will be a written appeal to the treatment organization. As a rule, there will be no reaction from doctors, because... they often refuse to admit their mistakes.

In this case, the law enforcement system will come to your aid.

It is necessary to write a statement to the police or the Investigative Committee (depending on the jurisdiction - Article 151 of the Code of Criminal Procedure of the Russian Federation) and describe in detail all the nuances of the event that occurred, which resulted in a medical error.

If the police fail to act, you must file a complaint with the prosecutor's office.

Where to contact?

If there is a fact of error or medical negligence, the patient has the right to apply :

• to the head doctor of the hospital;
• to the insurance company that issued a medical policy to the person;
• to court;
• to the prosecutor's office (if the doctor needs to be prosecuted).

What constitutes a violation of the privacy of citizens? Find out about this from our article.

How to prove guilt?

As evidence, the patient must provide the following documents :

1. A medical record that displays all the necessary information regarding the disease, the diagnosis performed and the prescribed treatment.
2. Results of laboratory and instrumental studies.
3. Receipts for payment for medical services provided and medicines purchased.
4. Written testimony (if any).