Professional incompetence or human behavior in the form of laziness, carelessness, underestimation of the seriousness of the situation when performing duties is a common phenomenon.
But when it comes to medical care for the sick and injured, such behavior and connivance can be harmful and also lead to negative social consequences. How to figure out when faced with medical negligence, what to do and where to turn for justice? Dear readers! To solve your specific problem, call the hotline or visit the website. It's free.
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Medical negligence
Medical negligence is negligence in the performance of medical care, resulting in harm and damage to the health of the patient. According to statistics, this practice is observed in many hospitals, and some cases lead to death.
Most people do not protect their rights because they do not know that they have become a victim of medical negligence. To identify negligence in medical services, the following steps are presented:
- at the stage of examination and diagnosis;
- during the provision of medical care;
- at the stage of monitoring the progress of treatment and the patient’s condition.
Negligence in the activities of a doctor is manifested through the following factors:
- subjectivity – actions led to deterioration of health or death;
- objectivity – failure to fulfill official duties due to the human factor (for example, laziness, underestimation of the situation, carelessness). ATTENTION: if there is a factor of uncertainty of treatment, doctors can decline responsibility for the outcome of the consequences and discuss the risks with the patient or his relatives;
- disadvantage - a treatment procedure leads to deterioration or death (for example, understanding the side effects of drugs or treatment), and this fact is recorded.
If these factors were recorded by patients or their relatives, then medical activity can be considered under Article 239 of the Criminal Code of the Russian Federation.
Other crimes against public health (Articles 235-239)
Article 235 of the Criminal Code of the Russian Federation
establishes liability for illegally engaging in private medical practice or private pharmaceutical activities.
Objective side
the crime is characterized by two acts: a) illegally engaging in private medical practice; b) illegally engaging in private pharmaceutical activities.
Under private medical practice
refers to the provision of medical services, both outpatient and inpatient (diagnosing health conditions, counseling, treatment) in the private healthcare system with the aim of making a profit.
Private pharmaceutical activity means activities for the production of all types of dosage forms, their storage, delivery and sale outside the state and municipal healthcare system.
The crime in question is a special case of illegal entrepreneurship (Article 171 of the Criminal Code). But taking into account the social orientation of the act, the norm is placed in the chapter on crimes against public health and public morality and is included in the group of crimes against public health. The priority goal of the analyzed norm is to protect the population from unscientific methods of diagnosing and treating diseases, the use of drugs and preparations that have not received approval from the Russian Ministry of Health and are not recommended for use in medicine.
The crime is considered over
from the moment of causing harm to health (Part 1 of Article 235 of the Criminal Code) or the death of a person (Part 2 of Article 235 of the Criminal Code).
A mandatory feature of the objective side of a crime is a criminal consequence in the form of causing harm to human health. Its content is limited to serious harm. There must be a causal connection between a criminal consequence and a socially dangerous act.
From the subjective side
the crime is characterized by a careless form of guilt.
subject
of the crime is a person who has reached the age of 16 years. The presence or absence of medical or pharmaceutical education does not affect the assessment of the actions of the guilty person.
Article 236 of the Criminal Code of the Russian Federation establishes liability for violation of sanitary and epidemiological rules
Objective side
The crime in question is characterized by an act that violates established sanitary and epidemiological rules. The disposition of the norm is one of the blanket ones, therefore, in order to understand the essence of the sanitary and epidemiological rules, the violation of which constitutes a crime, it is necessary to refer to various laws and by-laws (Federal Law of March 30, 1999 No. 52-FZ “On the sanitary and epidemiological welfare of the population " and etc.).
A mandatory feature of the objective side of the crime under consideration is socially dangerous consequences in the form of mass disease or poisoning of people. Mass disease of people
diseases of a viral, intestinal, bacterial or other nature are recognized, the prevalence of which clearly exceeds the average incidence of a given disease for a certain period in a given territory.
Under mass poisoning
people are understood as acute, chronic, industrial, medicinal, chemical and other diseases, the occurrence of which is caused by the action of toxic substances of various origins on the human body through their absorption through the respiratory tract, as a result of contact with the skin, into the body, etc. The sign of mass disease or poisoning of people covers harm to health of any severity. A causal relationship must be established between the violation of the relevant rules and the onset of socially dangerous consequences.
Subjective side
characterized by a careless form of guilt.
Subject
special crime - a person obliged to comply with or ensure compliance with sanitary and epidemiological rules.
The qualified type of crime in question is characterized by causing the death of a person through negligence (Part 2 of Article 236 of the Criminal Code).
Concealing information about circumstances that pose a danger to the life or health of people (Article 237 of the Criminal Code). Subject of the crime
— information about events, facts or phenomena that pose a danger to human life or health or to the environment.
Objective side
crime is expressed in concealment (inaction) or distortion of information about events, facts and phenomena that create a danger to the life or health of people or to the environment.
Concealment
means concealment, failure to communicate information to the population or bodies specified in the law, when bringing it to the attention of these addressees is mandatory in accordance with the requirements of regulatory legal acts and is necessary to influence events, facts or phenomena that pose a danger to the life or health of people or to the environment .
Distortion of information
characterized by the reporting of incomplete information, falsification of factual data, incorrect official forecasts and assessments about the development of events and phenomena dangerous to the life or health of people, as well as to the environment.
The crime is considered over
from the moment the act specified in the law was committed, regardless of whether the addressees received the necessary information from other sources and whether the threatening danger was eliminated.
From the subjective side
the crime is committed with direct intent.
Subject
special crime - a person obliged to provide the population and bodies authorized to take measures to eliminate danger with information about events, facts or phenomena that create a danger to the life or health of people or to the environment.
The qualifying criteria (Part 2 of Article 237 of the Criminal Code) are: a) the commission of a crime by a person holding a public position in the Russian Federation or a public position in a subject of the Federation, as well as the head of a local government body; b) causing harm to human health as a result of the crime; c) the onset of other grave consequences.
Other grave consequences
include a significant violation of environmental safety (for example, pollution of air, water, land, destruction of fauna, etc.), large material costs incurred in connection with the elimination of environmental harm, disruption of the normal life support of the population, etc. Between these consequences and a socially dangerous act a causal relationship must be established. Guilt in relation to these consequences can be expressed in the form of negligence.
Article 238 of the Criminal Code of the Russian Federation establishes liability for the production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet safety requirements
This provision provides for liability for two relatively independent crimes that differ from each other in the subject of the crime and its objective side: a) illegal actions in the sphere of circulation of goods, performance of work or provision of services; b) illegal actions in the field of certification of goods, works and services.
Subject
The first crime is goods and products, as well as work and services that do not meet the requirements for the safety of life or health of consumers.
Consumer
is a citizen who intends to order or purchase, or who orders, purchases or uses goods (work, services) exclusively for personal (household) needs not related to making a profit.
Under safety
goods (work, services) is understood as their properties under normal conditions of use, storage, transportation, disposal or other use (consumption), as well as the safety of the process of manufacturing goods, performing work, providing services.
Works
— construction, installation, restoration and other work performed at the consumer’s request, in the process or as a result of which the consumer’s life or health is put at real risk.
Services
- this is the provision of medical, sanitary-epidemiological, household, transport and other services, the use of which creates a real danger to the life or health of the consumer.
Objective side
The crime consists of the production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet the requirements for the safety of life or health of consumers. The production, storage, transportation and sale of goods and products should be understood in the same way as in the crime provided for in Art. 171.1 CC.
The crime has a formal composition
and is considered
from
the moment any of the actions specified in Art. 238 CC.
Subjective side
characterized by guilt in the form of direct intent. In the production, storage or transportation of goods or products specified in the law, a mandatory sign of the subjective side is a special purpose - the sale of these goods or products.
Subject
- a person who is the owner or manager of a commercial organization, an individual entrepreneur and has reached 16 years of age.
Subject
the second crime under Part 1 of Art. 238 of the Criminal Code is an official document certifying the compliance of the specified goods, works or services with safety requirements. For goods (work and services) subject to mandatory certification, a certificate (mark of conformity) is issued (Federal Law of December 15, 2002 No. 184-FZ “On Technical Regulation”)[2].
Certificate of conformity
—a document issued in accordance with the procedure established by law to confirm compliance of certified products with established requirements; mark of conformity is a mark registered by the State Standard of the Russian Federation, which confirms the conformity of products marked with it to the established requirements.
Objective side
The crime consists of unlawful issuance or unlawful use of what is specified in Art. 238 of the Criminal Code of the document.
Illegal issuance of a certificate of conformity
means its illegal provision to a manufacturer of goods, work or services without certification or in spite of its negative results; the unlawful use of a certificate of conformity is characterized by the fact that the culprit uses a certificate obtained illegally.
The crime is considered over
from the moment of performing any of the acts specified in the law.
Subjective side
characterized only by direct intent. The motive and purpose of the crime do not affect its qualification, but must be taken into account when assigning punishment. For the unlawful issuance of an official document certifying the compliance of the specified goods, works or services with safety requirements, a special subject - an employee of the body carrying out the certification of these goods, works or services - is responsible.
Qualified and especially qualified types of crime are defined respectively in parts 2 and 3 of Art. 238 CC. The qualifying and specially qualifying features are: a) the commission of these crimes by a group of persons by prior conspiracy or by an organized group; in relation to goods, work or services intended for children under 6 years of age, resulting through negligence in causing serious harm to health or the death of a person (Part 2 of Article 238 of the Criminal Code), resulting through negligence in the death of two or more persons (Part 3 of Art. 238 CC).
Article 239 of the Criminal Code of the Russian Federation establishes responsibility for organizing an association that encroaches on the personality and rights of citizens
Public and religious associations are voluntary associations of citizens who, in accordance with the established procedure, united on the basis of their commonality to satisfy spiritual and other non-material needs for the purposes for which they were created (Article 6 of the Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations” "). Federal Law No. 82-FZ dated May 19, 1995 “On Public Associations” prohibits the creation and activities of public associations for anti-state and anti-social purposes[3].
Objective side
The crime in question is the creation of a religious or public association, the activities of which involve violence against citizens or other harm to their health, or inducing citizens to refuse to perform civil duties or to commit other illegal acts, as well as the leadership of such an association.
Creation of a religious or public association
means both the establishment of such an association and its actual organization without official registration; leadership is the exercise of the functions of a leader or manager of an association. Violence, as one of the signs of a prohibited association, involves the use of various forms of violence by some of its members against others in accordance with the cultivated ideology.
Ending
the crime depends on the nature of the act - from the moment of the actual formation of the association or when its activities turned out to be associated with the circumstances specified in the law or from the moment of the actual exercise of leadership functions.
A crime can only be committed with direct intent.
Subject of the crime
- the founder or head of the said association. Responsibility for direct participation in the actions of the association is provided for in Part 2 of Art. 239 of the Criminal Code. For propaganda of acts provided for in Part 1 of Art. 239 of the Criminal Code, not only members of the association, but also persons who are not members of it are subject to punishment.
Article 235 of the Criminal Code of the Russian Federation
establishes liability for illegally engaging in private medical practice or private pharmaceutical activities.
Objective side
the crime is characterized by two acts: a) illegally engaging in private medical practice; b) illegally engaging in private pharmaceutical activities.
Under private medical practice
refers to the provision of medical services, both outpatient and inpatient (diagnosing health conditions, counseling, treatment) in the private healthcare system with the aim of making a profit.
Private pharmaceutical activity means activities for the production of all types of dosage forms, their storage, delivery and sale outside the state and municipal healthcare system.
The crime in question is a special case of illegal entrepreneurship (Article 171 of the Criminal Code). But taking into account the social orientation of the act, the norm is placed in the chapter on crimes against public health and public morality and is included in the group of crimes against public health. The priority goal of the analyzed norm is to protect the population from unscientific methods of diagnosing and treating diseases, the use of drugs and preparations that have not received approval from the Russian Ministry of Health and are not recommended for use in medicine.
The crime is considered over
from the moment of causing harm to health (Part 1 of Article 235 of the Criminal Code) or the death of a person (Part 2 of Article 235 of the Criminal Code).
A mandatory feature of the objective side of a crime is a criminal consequence in the form of causing harm to human health. Its content is limited to serious harm. There must be a causal connection between a criminal consequence and a socially dangerous act.
From the subjective side
the crime is characterized by a careless form of guilt.
subject
of the crime is a person who has reached the age of 16 years. The presence or absence of medical or pharmaceutical education does not affect the assessment of the actions of the guilty person.
Article 236 of the Criminal Code of the Russian Federation establishes liability for violation of sanitary and epidemiological rules
Objective side
The crime in question is characterized by an act that violates established sanitary and epidemiological rules. The disposition of the norm is one of the blanket ones, therefore, in order to understand the essence of the sanitary and epidemiological rules, the violation of which constitutes a crime, it is necessary to refer to various laws and by-laws (Federal Law of March 30, 1999 No. 52-FZ “On the sanitary and epidemiological welfare of the population " and etc.).
A mandatory feature of the objective side of the crime under consideration is socially dangerous consequences in the form of mass disease or poisoning of people. Mass disease of people
diseases of a viral, intestinal, bacterial or other nature are recognized, the prevalence of which clearly exceeds the average incidence of a given disease for a certain period in a given territory.
Under mass poisoning
people are understood as acute, chronic, industrial, medicinal, chemical and other diseases, the occurrence of which is caused by the action of toxic substances of various origins on the human body through their absorption through the respiratory tract, as a result of contact with the skin, into the body, etc. The sign of mass disease or poisoning of people covers harm to health of any severity. A causal relationship must be established between the violation of the relevant rules and the onset of socially dangerous consequences.
Subjective side
characterized by a careless form of guilt.
Subject
special crime - a person obliged to comply with or ensure compliance with sanitary and epidemiological rules.
The qualified type of crime in question is characterized by causing the death of a person through negligence (Part 2 of Article 236 of the Criminal Code).
Concealing information about circumstances that pose a danger to the life or health of people (Article 237 of the Criminal Code). Subject of the crime
— information about events, facts or phenomena that pose a danger to human life or health or to the environment.
Objective side
crime is expressed in concealment (inaction) or distortion of information about events, facts and phenomena that create a danger to the life or health of people or to the environment.
Concealment
means concealment, failure to communicate information to the population or bodies specified in the law, when bringing it to the attention of these addressees is mandatory in accordance with the requirements of regulatory legal acts and is necessary to influence events, facts or phenomena that pose a danger to the life or health of people or to the environment .
Distortion of information
characterized by the reporting of incomplete information, falsification of factual data, incorrect official forecasts and assessments about the development of events and phenomena dangerous to the life or health of people, as well as to the environment.
The crime is considered over
from the moment the act specified in the law was committed, regardless of whether the addressees received the necessary information from other sources and whether the threatening danger was eliminated.
From the subjective side
the crime is committed with direct intent.
Subject
special crime - a person obliged to provide the population and bodies authorized to take measures to eliminate danger with information about events, facts or phenomena that create a danger to the life or health of people or to the environment.
The qualifying criteria (Part 2 of Article 237 of the Criminal Code) are: a) the commission of a crime by a person holding a public position in the Russian Federation or a public position in a subject of the Federation, as well as the head of a local government body; b) causing harm to human health as a result of the crime; c) the onset of other grave consequences.
Other grave consequences
include a significant violation of environmental safety (for example, pollution of air, water, land, destruction of fauna, etc.), large material costs incurred in connection with the elimination of environmental harm, disruption of the normal life support of the population, etc. Between these consequences and a socially dangerous act a causal relationship must be established. Guilt in relation to these consequences can be expressed in the form of negligence.
Article 238 of the Criminal Code of the Russian Federation establishes liability for the production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet safety requirements
This provision provides for liability for two relatively independent crimes that differ from each other in the subject of the crime and its objective side: a) illegal actions in the sphere of circulation of goods, performance of work or provision of services; b) illegal actions in the field of certification of goods, works and services.
Subject
The first crime is goods and products, as well as work and services that do not meet the requirements for the safety of life or health of consumers.
Consumer
is a citizen who intends to order or purchase, or who orders, purchases or uses goods (work, services) exclusively for personal (household) needs not related to making a profit.
Under safety
goods (work, services) is understood as their properties under normal conditions of use, storage, transportation, disposal or other use (consumption), as well as the safety of the process of manufacturing goods, performing work, providing services.
Works
— construction, installation, restoration and other work performed at the consumer’s request, in the process or as a result of which the consumer’s life or health is put at real risk.
Services
- this is the provision of medical, sanitary-epidemiological, household, transport and other services, the use of which creates a real danger to the life or health of the consumer.
Objective side
The crime consists of the production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet the requirements for the safety of life or health of consumers. The production, storage, transportation and sale of goods and products should be understood in the same way as in the crime provided for in Art. 171.1 CC.
The crime has a formal composition
and is considered
from
the moment any of the actions specified in Art. 238 CC.
Subjective side
characterized by guilt in the form of direct intent. In the production, storage or transportation of goods or products specified in the law, a mandatory sign of the subjective side is a special purpose - the sale of these goods or products.
Subject
- a person who is the owner or manager of a commercial organization, an individual entrepreneur and has reached 16 years of age.
Subject
the second crime under Part 1 of Art. 238 of the Criminal Code is an official document certifying the compliance of the specified goods, works or services with safety requirements. For goods (work and services) subject to mandatory certification, a certificate (mark of conformity) is issued (Federal Law of December 15, 2002 No. 184-FZ “On Technical Regulation”)[2].
Certificate of conformity
—a document issued in accordance with the procedure established by law to confirm compliance of certified products with established requirements; mark of conformity is a mark registered by the State Standard of the Russian Federation, which confirms the conformity of products marked with it to the established requirements.
Objective side
The crime consists of unlawful issuance or unlawful use of what is specified in Art. 238 of the Criminal Code of the document.
Illegal issuance of a certificate of conformity
means its illegal provision to a manufacturer of goods, work or services without certification or in spite of its negative results; the unlawful use of a certificate of conformity is characterized by the fact that the culprit uses a certificate obtained illegally.
The crime is considered over
from the moment of performing any of the acts specified in the law.
Subjective side
characterized only by direct intent. The motive and purpose of the crime do not affect its qualification, but must be taken into account when assigning punishment. For the unlawful issuance of an official document certifying the compliance of the specified goods, works or services with safety requirements, a special subject - an employee of the body carrying out the certification of these goods, works or services - is responsible.
Qualified and especially qualified types of crime are defined respectively in parts 2 and 3 of Art. 238 CC. The qualifying and specially qualifying features are: a) the commission of these crimes by a group of persons by prior conspiracy or by an organized group; in relation to goods, work or services intended for children under 6 years of age, resulting through negligence in causing serious harm to health or the death of a person (Part 2 of Article 238 of the Criminal Code), resulting through negligence in the death of two or more persons (Part 3 of Art. 238 CC).
Article 239 of the Criminal Code of the Russian Federation establishes responsibility for organizing an association that encroaches on the personality and rights of citizens
Public and religious associations are voluntary associations of citizens who, in accordance with the established procedure, united on the basis of their commonality to satisfy spiritual and other non-material needs for the purposes for which they were created (Article 6 of the Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations” "). Federal Law No. 82-FZ dated May 19, 1995 “On Public Associations” prohibits the creation and activities of public associations for anti-state and anti-social purposes[3].
Objective side
The crime in question is the creation of a religious or public association, the activities of which involve violence against citizens or other harm to their health, or inducing citizens to refuse to perform civil duties or to commit other illegal acts, as well as the leadership of such an association.
Creation of a religious or public association
means both the establishment of such an association and its actual organization without official registration; leadership is the exercise of the functions of a leader or manager of an association. Violence, as one of the signs of a prohibited association, involves the use of various forms of violence by some of its members against others in accordance with the cultivated ideology.
Ending
the crime depends on the nature of the act - from the moment of the actual formation of the association or when its activities turned out to be associated with the circumstances specified in the law or from the moment of the actual exercise of leadership functions.
A crime can only be committed with direct intent.
Subject of the crime
- the founder or head of the said association. Responsibility for direct participation in the actions of the association is provided for in Part 2 of Art. 239 of the Criminal Code. For propaganda of acts provided for in Part 1 of Art. 239 of the Criminal Code, not only members of the association, but also persons who are not members of it are subject to punishment.
Legal basis
According to Russian legislation, negligence is considered under Article 239 of the Criminal Code of the Russian Federation as negligent performance of official duties. There is no separate article specifically for medical workers.
According to Article 239, the following fines and penalties are provided for negligence:
- for violation of citizens' rights - a fine of up to 120 thousand rubles or in the amount of income for a year, compulsory labor for up to 360 hours, correctional labor for a year, arrest for up to 3 months;
- for causing major damage (from 1.5 million rubles) - a fine of 200 to 500 thousand rubles in the amount of annual income, deprivation of business rights for 3 years, compulsory work for up to 480 hours, correctional labor for up to 2 years, arrest for up to 6 months;
- for causing serious harm to health - forced labor for up to 5 years, deprivation of the right to office for up to 3 years, imprisonment for up to 5 years;
- lethal outcome - forced labor for up to 5 years, deprivation of work rights for up to 3 years, imprisonment for 7 years.
Procedure for detecting violations, where to contact
If, while in a medical institution, the patient or his relatives noticed a violation in the actions of the doctor, then you should adhere to the following actions:
- If improper performance of official duties is detected, document or video/photograph the fact of deterioration in health or harm.
- Contact the head physician at a medical institution. The head of the institution will conduct a consultation, review the patient’s case and medical record, the course of treatment and the selected stages and methods of treatment by the specialist.
- When receiving treatment based on a compulsory medical insurance policy, contact the insurance company for advice. Provide the lawyers with a package of documents (a copy of the medical record, an extract from the hospital, a written application for treatment indicating the hospital/clinic, the diagnosis, the progress and timing of treatment, a list of treating specialists and an indication of the damage). Within ten days, the management of the medical institution reviews the application and orders an additional medical examination ( REFERENCE: the victim can challenge the result in court). If there are no disagreements, monetary compensation from the insurance company is awarded.
- The patient or his relatives have the right to file a lawsuit. This can be done through an insurance company or a lawyer. You will need: a lawsuit, a complaint against a doctor, a copy of a medical record, an extract from the hospital, the result of an independent medical examination.
- When receiving treatment in a commercial clinic - when using a list of services not included in the compulsory medical insurance and voluntary medical insurance policies, seek help from a lawyer, the prosecutor's office, or the court.
Also, the patient and his relatives, if negligence in medical care or services is detected, have the right to contact the Ministry of Health and Rospotrebnadzor.
Important: complaints and statements of medical negligence are submitted personally by the victim, his relatives or through a proxy.
When is a trial required?
Bringing a case to court requires good legal preparation, as well as collecting a large package of documents for evidence. It is necessary to prove that the doctor’s actions were precisely negligence on his part, and not other factors. Legal proceedings are required in the following cases:
- with an incorrect diagnosis and incorrectly chosen treatment tactics;
- causing harm to the patient's health;
- untimely discharge;
- treatment led to disability;
- pharmacist error;
- death.
Commentary to Art. 239 Criminal Code
1. The objective side in Part 1 consists of actions to create or manage a religious or public association, the activities of which involve: a) violence against citizens (physical or mental); b) with other harm to their health (for example, deprivation of food, food, sleep).
2. The objective side in Part 2 consists of actions to create or manage a non-profit organization (including a non-profit organization performing the functions of a foreign agent) or a structural unit of a foreign non-profit non-governmental organization, if their activities involve inducing citizens to refuse to fulfill civil duties (responsibilities, imposed on citizens by the Constitution of the Russian Federation, other laws) or to commit other illegal acts.
3. The objective side of Part 3 consists of actions to participate in the activities of a non-profit organization specified in Parts 1 or 2, or propaganda of acts provided for in these parts. Propaganda is the dissemination of information about acts listed in the law, their open or veiled approval, orally or in writing, with or without the use of the media.
4. The subjective side of the crime is characterized by the presence of direct intent.
