The concept of medical error in Russian legislation still does not have a precise definition. The same situation is observed in many other countries. At the legislative level, such an act can be proven, and the punishment depends on the specific situation.
Definition of medical error
Medical error is a situation where a doctor makes a mistake in the course of his work. The misconception is not malicious, but it leads to a deterioration in the patient’s health or death.
A medical error does not necessarily occur because of a medical professional. The reason may be a lack of quality equipment for diagnosis or treatment.
Often the root cause of medical error is a lack of knowledge, experience and qualifications, as well as outdated techniques (possibly personal rejection of innovations).
Types of medical errors
Since medical error is not defined with a precise definition, the classification should be considered conditional:
- Diagnostic error. This option appears more often than others and means an incorrect diagnosis - this applies not only to the disease, but also to its complications.
- Treatment and tactical error. As a rule, it is allowed due to a diagnostic error. This group includes several options: incorrect prescription or provision of medication, incorrectly selected therapy, incorrect prescription or implementation of preventive measures.
- A technical error. Usually it consists of an incorrectly completed medical document. This could be: an incorrectly recorded measurement, an incomplete record, an inaccurate statement.
- Organizational error. Indicates errors in medical care in terms of organization. Often this concerns problems with recording, paperwork, and the lack of conditions for the functioning of a service.
- Deontological error. This issue is about ethics. The problem lies in the specialist’s behavior towards the patient, his relative, and lower-ranking personnel.
- Pharmaceutical error. Indicates an error by the pharmaceutical company, resulting in incorrect indications, contraindications, or interactions with other drugs.
- Errors caused by non-functioning medical equipment, technology or disruptions in the care delivery system.
Responsibility and punishment
Legal liability for medical malpractice can be civil or criminal.
Civil liability
This option means that the patient can receive reimbursement for several items:
- service costs;
- the amount spent on care required due to medical error;
- purchase of special transport;
- amount spent on medicines;
- costs for sanitary-resort therapy;
- compensation for lost income;
- costs of forced preparation for another profession.
Institutions are usually brought to civil liability, and employees face disciplinary and financial punishment. At the civil legal level, liability is reflected in the following sources:
- Civil Code;
- Law “On Protection of Consumer Rights” (Articles 14-17);
- Federal Law “On the fundamentals of protecting the health of citizens in the Russian Federation.”
Criminal liability and punishment
They are brought to such liability for medical error in situations where a specialist caused harm. If poor quality medical care did not cause harm, then there can be no criminal liability.
The Criminal Code of the Russian Federation does not provide for the exact concept of medical error, but there are several approximate options when a specialist acted due to negligence:
- Article 109. If a specialist incorrectly performed his duties, resulting in death, then he will be subject to restriction of freedom for 3 years (maximum term) or deprivation of it. An alternative to this could be correctional activities. The specialist is deprived of the right to hold a position (including activities) in this field.
- Article 118. Serious harm to health - a specialist is deprived of liberty for no longer than a year, or punished with forced labor. Activity and position may be prohibited for up to 3 years. Another punishment option is limited freedom to 4 years.
- Article 122. If a doctor performed his duties incorrectly and this resulted in the patient becoming infected with HIV, then the medical worker will face prison for up to 5 years (they may be replaced by forced labor). The ban on activities and positions is given for up to 3 years.
- Article 123. When a doctor, contrary to the law, artificially terminated a pregnancy, thereby causing grave harm to the patient, including death, he may be imprisoned for up to 5 years (replacement with forced labor is possible). Removal from office and prohibition of activities is given for up to 3 years.
- Article 124. When assistance was not provided contrary to duties (exception - a good reason), then two options are possible:
– harm of moderate severity – the specialist will be punished with a fine (maximum 40,000 rubles or the income of the victim), up to 360 hours of compulsory work, arrest for up to 4 months;
– grievous harm, death – the punishment is up to 4 years in prison (forced labor), while a ban on position and activity is possible for up to 3 years.
- Article 235. If a person carries out activities in the field of medicine or pharmaceuticals without a license, then the harm caused entails a fine of up to 120 thousand rubles (or the amount of the victim’s income), forced labor or restriction of freedom for up to 3 years. If the death of the patient ensues, the punishment is imprisonment for up to 5 years (can be replaced by forced labor).
Medical malpractice should not be confused with negligence. The second concept is considered by the Criminal Code in Article 293.
How to prove?
To prove an error, you need to have certain documents, including:
- medical record (must be an evidentiary record);
- test results;
- examination results (copies are possible);
- a check or receipt for payment for services rendered or purchase of a prescribed drug.
You need to make copies of the collected documents and have them certified. For proof purposes, it is better to have witnesses.
You can file a complaint about a medical error in several instances. The choice depends on what result you want to achieve:
- If you need to achieve disciplinary action, then it is enough to contact the manager of the institution. He may resort to a reprimand, deduction from salary, fine or deprivation of bonus.
- If you want to punish not only the doctor, but also the institution, then you should contact the insurance company. After consideration of the case and examination, the institution faces a fine.
- To receive compensation you must go to court. You will need to file a claim and provide evidence.
- To initiate a criminal case, you need to contact the prosecutor's office. The proceedings are usually long, but if there is evidence, they bring the desired result.
Statistics and examples of medical errors in Russia
According to statistics for 2015, about 900 people suffered in Russia due to doctors’ errors. At the same time, more than 700 people died (317 of them were children). Statistics for the first half of 2016 indicate 352 deaths, including 142 children.
In the first half of 2016 alone, 2,500 thousand reports of medical errors were left with the Investigative Committee. As a result, more than 400 criminal cases were initiated.
There are many examples of medical errors across Russia. Here are some of them:
- In the Primorsky Territory, a doctor refused to admit a patient to hospitalization, which resulted in his death. The punishment in accordance with Article 124 of the Civil Code was a suspended sentence of 2 years.
- At the Moscow Research Institute of Eye Diseases named after. Helmholtz affected 9 patients at once. After injections with one drug, they became blind.
- In Chelyabinsk Hospital No. 2, an 11-year-old girl was treated for almost 2 weeks, but the diagnosis was incorrect. A timely ultrasound would correct the error. The girl was saved, but in another hospital - her appendix was removed. A criminal case was opened only after the intervention of lawyer Bastrykin, so the investigators will also have to answer.
- A pensioner died in Zhukovsky near Moscow. At the diagnostic center, he was given an MRI, which is prohibited if a man has a pacemaker implanted. The patient had a statement confirming its presence.
Video about medical errors
Watch also the program with active discussion by specialists of the current problem of medical errors and answers to many pressing questions:
There are many cases of medical errors in our country. They often end with serious consequences, including the death of patients. In case of a medical error, it is important to collect the necessary evidence and submit it to the appropriate authority. Such acts must be punished.
Get a lawyer's answer in 5 minutes
Sectional hall. Another ordinary autopsy. In front of me is a middle-aged man. Clinicians made a lifetime diagnosis of “Thrombosis of mesenteric vessels and intestinal necrosis.” But an examination of the abdominal cavity showed the presence of hemorrhagic pancreatic necrosis. And so a seemingly “ordinary” autopsy became an illustrative example of iatrogenicity in surgical practice. And many such examples accumulate during the career of a pathologist.
Our expert:
Oleg Inozemtsev
pathologist, 15 years of experience in the specialty. Part-time endoscopist and radiation diagnostician. Place of work: multidisciplinary hospital.
When the doctors are powerless and the patient dies, I begin my work as a pathologist. First at the dissecting table, then in the histology laboratory. In addition to establishing the exact cause of death of the patient, it is important for me to find out whether there is a discrepancy between the clinical and pathological diagnoses. If there is a discrepancy, every time I feel disappointed in the imperfection of medical science, in the illiteracy of my colleagues, and I think about their responsibility. Based on my own observations, I compiled my personal top list of the most common medical errors leading to the death of a patient, and provided illustration stories. Let's go from the most frequent to the least frequent.
1. Lightning situations
An example from personal experience: a young man of 20 years old fell ill with ARVI, which began with chills, fever, cough, and runny nose. Symptomatic treatment was started. But four days later the patient’s condition worsened sharply, and the diagnosis was “pneumonia.” The disease progressed rapidly, and the patient exited within 24 hours. A pathological autopsy confirmed the presence of pneumonia. Why did such a disease as banal pneumonia, which most often ends well, lead to a terrible ending?! The cause of iatrogenicity lies in the late diagnosis of the disease and its lightning-fast course.
The concept of “iatrogeny” was first proposed by the German psychiatrist Oswald Bumke in 1925. He proposed using this term to denote psychogenic diseases that arise as a result of a careless medical statement (from Greek: iatros - doctor, genes - generating, i.e. “disease generated by a doctor”). According to ICD-10, iatrogenics refers to any adverse or undesirable consequences of medical procedures (preventive, diagnostic and therapeutic interventions). This also includes complications of medical procedures that were the result of the actions of a medical worker, regardless of whether they were wrong or correct.
On a note: The mere possibility of a lightning-fast course of the disease makes it necessary to begin treatment as early as possible and with appropriate doses of effective drugs.
2. Invasive techniques
A patient with suspected peptic ulcer of the stomach and duodenum was referred for fibrogastroduodenoscopy. During the procedure, a perforation of the posterior pharyngeal wall occurred. The defect was not immediately detected; phlegmon of the neck with deep intoxication developed, and the patient died. Another example: a patient has diverticulosis of the descending and sigmoid colon. A colonoscopy is scheduled. During its implementation, a rupture of the large intestine occurred in the area of the rectosigmoid angle with heavy bleeding, and the patient died from blood loss.
On a note: Patients should be referred to invasive diagnostic methods only according to strict indications, and endoscopic interventions and treatment procedures should be carried out with extreme caution under the control of video endoscopic technology.
3. Diseases from “medicines”
A 55-year-old man has been suffering from metabolic arthritis for a long time. He became acutely ill after taking a combined NSAID. Immediately a rash appeared on the skin, changes in blood tests (increased ESR and leukocytosis). Later, severe shortness of breath, pain in the chest and lumbar region appeared. The treatment did not give positive results. The condition progressively worsened, and the patient soon died. At autopsy, virtually no macroscopic changes were found. However, a histological examination of the internal organs revealed serous-productive inflammation with a predominance of lymphocytic and macrophage infiltrates, proliferative membranous glomerulonephritis, endocarditis, interstitial pneumonia and hepatitis.
Intolerance or hypersensitivity to certain medications and procedures (radiotherapy, x-ray therapy, anesthesia) is common. Drug intolerance reaches 10-20%, and 0.5-5% of patients require treatment for drug complications. Timely discontinuation of drugs allows you to avoid unforeseen serious complications, for example, anaphylactic shock or acute hemolysis. But if the doctor does not connect the severity of the patient’s condition with the use of the drug and does not cancel it, then a fatal outcome is possible.
On a note: When prescribing any drug, you must remember that an undesirable reaction may develop. From personal experience, I recall severe ulceration of the gastric mucosa and fatal bleeding when taking NSAIDs. Cytostatics, glucocorticoids, tetracycline, caffeine, reserpine, etc. also have ulcerogenic properties.
You should especially beware of allergic reactions when taking antibiotics, sulfa drugs, non-narcotic analgesics, local anesthetics, antiepileptic drugs, iodine, arsenic, and mercury preparations. The consequences do not depend on the dose: even one tablet can lead to serious complications.
4. "Disguise"
There are cases that require a distinction between the concepts of medical error and medical misconduct. Let me give you an example. A patient is admitted with complaints of abdominal pain, nausea, and vomiting. The attending physician, and later the council, concluded: the patient had an exacerbation of chronic cholecystopancreatitis. Appropriate treatment was prescribed, but it did not produce positive results. The patient's condition worsened and he soon died. During a post-mortem autopsy, acute myocardial infarction was discovered. Obviously, there was an abdominal form of infarction without typical chest pain. What to do in this case: bring the doctor to criminal liability? Medical misconduct or medical error? In this case, we are, of course, talking about a medical error, since the disease had an atypical course.
On a note: Clinicians should always remember that many diseases have similar symptoms and are “masked,” leading the doctor astray. Therefore, we never forget about differential diagnosis: by comparing several diseases with similar symptoms, we will arrive at the correct diagnosis.
5. Atypical story
In surgery, it sometimes happens that a properly performed surgical intervention leads to death. Example? It was described in 1983 in the book “Dialogue about Medicine” by Nathan Vladimirovich Elshtain. The patient's tonsils were removed. The operation is simple, performed frequently and usually has no consequences. But this patient started bleeding from the surgical wound. The fact is that the patient had an atypical location of a blood vessel, and this vessel was damaged during the intervention. Fortunately, the bleeding was stopped in time. But how could the surgeon have foreseen the presence of this anomaly?! This is a typical case of surgical iatrogenicity, which is difficult to predict. And in this case it is very difficult to explain to the patient’s relatives why and how a simple operation could lead to a tragic outcome.
Note: Surgeons should not forget that the human body is not ideal; organs and vessels may have an atypical arrangement. You can sometimes suspect and be prepared for “surprises” based on external anomalies (stigmas). For example, during any surgical intervention in a patient with Morphan syndrome with obvious external stigmata, rupture of the dissecting aortic aneurysm, which occurs in this syndrome, is possible. If in any doubt, it is better to be on the safe side by doing additional research (angiography, ultrasound, etc.).
6. A terrible thing - statistics
A 35-year-old patient was admitted to the hematology department of a hospital with enlarged lymph nodes in several areas of the body, enlargement of the liver and spleen. Cough and shortness of breath were also present. The CBC revealed anemia, and an X-ray examination revealed an area of 4x5 centimeters of darkening in the lung tissue and hemorrhagic effusion (punctate) in the pleural cavities. A smear was taken from the enlarged lymph nodes, in which Berezovsky-Sternberg cells and reticular cells were found. Based on these data, a diagnosis was made: lymphogranulomatosis. Treatment has been prescribed. Soon the patient died. A pathological autopsy revealed bronchial cancer with metastases to the lymph nodes and liver. The clinical and pathological diagnosis did not coincide due to incorrect diagnosis and treatment.
This curious case of iatrogenic “from the word”, which ended in the death of the patient, occurred in my practice. The woman had chronic ischemic heart disease. This naturally bothered her both physically and psychologically. And in order to somehow reassure his patient, the attending physician “encouraged” the patient, telling her that everything would be fine and that she would not die before him. A fatal accident led to the attending doctor dying the next day from intracerebral hemorrhage. And the patient, having learned about his death, died a few days later from a myocardial infarction.
What caused the diagnostic error? Doctors know that lung cancer is rare in young women, about 5-6 times less common than in men. This fact “weeded out” the hypothesis of lung cancer. Then, a sharp and widespread enlargement of the lymph nodes raised suspicion of lymphogranulomatosis. Clinicians also misinterpreted the hemorrhagic nature of the effusion, which indicated lung cancer, and incorrectly interpreted the cytological data from the lymph nodes. It was necessary to take a biopsy from the lymph node for histological diagnosis, which was not carried out. In this case, a correct diagnosis would hardly be able to contribute to recovery, but the fact of iatrogenicity is present.
On a note: a propaedeutics teacher told us medical students: “If you think about statistics, you will never make the correct diagnosis.” He was damn right. In addition, if a diagnostic standard has been developed for a certain condition, follow it.
For the sake of a common cause
The job of pathologists is not to convict the attending physician of mistakes made, not his moral defeat (sometimes even material), but to help the doctor learn from the mistakes made. Every time I conduct an analysis, as well as inviting doctors to perform autopsies, I hope that these difficult “training” events will delay the next case of iatrogenic death.
It is not uncommon for yesterday’s students to continue to copy “independent work” for which they were not prepared from a more experienced friend.
A doctor at a commercial clinic takes money for a service that is provided improperly. And the clinic specialist does not treat according to the protocol, simply because he does not have the necessary technical means and reagents. Sometimes such violations end tragically. What to do? How to hold a doctor accountable?
Concept of medical error
There is no strict concept of medical error in Russian law. Just as there is no separate article under which a specialist providing medical services could be held accountable.
There is Art. 41 of the Constitution, in accordance with which Russians have the right to medical care. There are laws aimed at protecting health and providing medical care through insurance, compulsory and voluntary. Finally, there are diagnostic and treatment protocols that doctors must follow when providing medical care. However, there is no mention of medical error anywhere.
There are several definitions of this concept in the legal literature. Typically, they describe the bona fide actions of a medical professional. A number of authors also include intentional actions in the category of medical error. However, this classification is not of great importance for a practicing lawyer. From a legal perspective, what is important is harm to the patient. If there is harm, then there may be liability.
The most informative definitions:
- A medical error (ME) is an unintentional, conscientious error of a specialist, in whose actions there is no negligence or ignorance.
- VO is the improper performance by a specialist of his duties. Action or inaction resulting in harm to health, even death.
Thus, according to most experts, an error by a doctor or other medical professional is precisely an unintentional error. Negligent or dishonest actions that have resulted or could have resulted in harm to the patient do not apply to VO. But there is another opinion.
But in any case, guilty actions will be qualified under the relevant article of the criminal code (CC) or administrative code (CAO). For example, intentional harm caused to a patient resulting in death will be classified as intentional murder. Negligent actions of a doctor will also be classified depending on the consequences, i.e. harm caused to a person or people. This can be mild, moderate or severe harm to health, death, creating a danger to human life, etc.
Article of the Criminal Code of the Russian Federation
If serious harm is caused to the patient, the act will be qualified under the Criminal Code. As mentioned above, there is no special article in the criminal code, and the one that corresponds to the harm caused will be applied.
When considering and preparing for such cases, important features need to be taken into account. In relation to the doctor and the medical institution (clinic, clinic, hospital, maternity hospital, etc.) in which the crime occurred, there is actually a presumption of guilt. Those. It is they who will have to prove that the negative consequences for the patient’s health are not their fault. That the harm, if it occurred, was not caused by their culpable actions. This eases the fate of the injured patient, whose capabilities, unlike medical. institutions are very limited.
Discussion on topic:
Articles of the Criminal Code that can be applied in case of medical error:
- 109 Part 2 provides for the establishment of liability for a doctor or other medical specialist whose incompetent or careless actions resulted in the death of a patient. The maximum penalty is 3 years. And not necessarily colonies. Possible involvement in correctional labor.
- 118 part 2 - causing grievous harm due to careless professional actions. Serious harm is characterized by a condition in which there is a threat to life. This degree of harm also includes: deprivation of an organ, loss of organ functions, disfigurement, etc.
- 122 part 4 - infection of a patient with an incurable disease leading to death - HIV.
- 124 part 2 - inaction of a health worker resulting in harm. You can also be charged under this article if the necessary assistance was not provided in a timely manner.
- 293 part 2 - negligence.
In all cases, a forensic medical examiner and a medical dispute lawyer will be required. If the doctor is really guilty, and it can be established, then it is absolutely possible to bring him to criminal liability. Although it must be admitted that judicial practice is very sparse. Medical workers are subject to criminal prosecution only in cases where their guilt is obvious.
Causes of medical errors
Harm to health can be caused due to the following reasons:
- Objective, which arose regardless of the actions of the health worker, his knowledge, prof. preparation. The first group includes the difficulty of diagnosing rare, poorly understood diseases. The same group includes time limitations for diagnostic measures caused by the patient’s condition. There are many situations when measures need to be taken urgently, and the diagnostics required in such cases last too long. This group of reasons, as a rule, does not make it possible to hold a doctor accountable under the law.
- Subjective, having a direct relationship with the actions of the specialist. If the doctor inattentively questioned the patient or made incorrect conclusions from all the available information, it will not be easy to prove guilt, but it is possible, since in this case the doctor is guilty. But if the health worker did not prescribe the diagnostic measures necessary in such cases, which led to harm to health, then the grounds for persecution are obvious. However, a correct diagnosis often requires considerable experience in order to suspect a rare disease. An expert may have it, but a doctor in a rural hospital does not. That is why it is so infrequent that courts satisfy the demands of victims, and investigative bodies initiate cases if the disaster did not occur as a result of medical negligence.
Medical errors can also include defects in the provision of medical care. This concept includes:
- Complications resulting from errors by health care workers (improper transportation of the patient, incorrect or untimely diagnosis, etc.).
- Accidental harm. Usually occurs as a result of surgery.
- The emergence of a new (different) disease as a consequence of treatment. The doctor may be found guilty in this case if any of the diagnostic and treatment measures were used unreasonably, i.e. were not required or were required in the wrong volume, etc.
Examples
In practice, prosecution of a doctor or institution for medical error is not very common. Most often, in connection with the guilty, unintentional actions of medical specialists, civil cases are initiated, allowing patients to receive compensation for actual and moral damage.
To criminal liability honey. institutions are not involved. In case of serious consequences for the patient due to the guilty actions of the doctor, a criminal case is initiated against the specific specialist. Such cases are very rare, since establishing the cause of negative consequences requires special knowledge, sometimes in different fields of medicine, equipment and many other things that the patient and his relatives do not have.
Examples from life
- Responsibility under Art. 109 occurred for a resuscitator who inattentively examined an admitted patient with drug intoxication. As a result, an incorrect diagnosis was made and the wrong treatment was prescribed. The lack of proper medical care resulted in the death of the patient.
- Responsibility under Art. 124 occurred for an ambulance paramedic who incorrectly pre-assessed the patient’s condition and refused hospitalization. The lack of timely medical care led to the death of the patient. The doctor was sentenced to 2 years probation. Unfortunately, in Russian reality such cases are not uncommon. Because hospitals are overcrowded and the availability of diagnostic tools is limited. To prove harm due to refusal of hospitalization, you need to obtain an expert opinion. To begin with, the opinion of another doctor can be very useful.
- In one region of the country, a teenager was treated for more than 2 weeks after being diagnosed incorrectly. The story ended happily only because the relatives, on their own initiative, went to another medical institution, where an ultrasound was performed, which made it possible to establish the true cause of the illness.
The doctor’s guilt in the deterioration of health must not only be proven, but also established. And this is very difficult. Therefore, medical errors most often remain on the conscience of the specialists who made them. As the old proverb, once coined by one of the medical philosophers, says: “Every doctor has his own little cemetery.” In such a personal cemetery lie patients whom he could have saved, but at that moment he lacked experience (he was a young specialist), knowledge, ingenuity (the correct diagnosis came to mind later), and strength.
The concept of medical error can be considered in several aspects. On the one hand, even the most conscientious specialist, who is responsible for his reputation and in no way wants to harm the patient, can make mistakes.
However, some doctors perform their functions poorly and show negligence and indifference to the patient. At best, this will have no effect on the patient; at worst, it will lead to deterioration in health, or even death due to medical error. It is in such situations that the relatives of the victim wonder what responsibility the doctor bears, whether a medical error can be classified under an article of the Criminal Code of the Russian Federation (Criminal Code of the Russian Federation).
The definition of a medical error comes down to the fact that it is an unintentional or indirectly intended criminal act of a physician in relation to a patient.
Any crime entails criminal liability, therefore, in this case, criminal law clearly protects the interests of the injured party.
The question is how serious the punishment will be, and here it is necessary to understand the following points:
- This crime in itself does not imply an intentional illegal act, so the sanction for careless behavior will be far from maximum. In order to punish the attacker on a grand scale, you will have to look for factual evidence of intent to cause harm.
- There are also mitigating circumstances that the judge takes into account when sentencing. This is careless behavior or lack of practice and experience. These circumstances characterize the objective side of the offense.
- At the same time, the subjective side is expressed in the criminal’s attitude towards his actions. Thus, negligence in the performance of duties means that a person understands the meaning of his actions, does not fully devote himself to work, may lead to negative consequences, and still acts in this way due to negligence. Of course, such circumstances are taken into account when deciding the fate of the offender and aggravate the situation of the defendant.
According to judicial practice, medical omissions occur about 700 times a year. Slightly less than half of the cases of poor-quality medical care concern the treatment of minors. The country's Investigative Committee recorded about 350 fatal cases, 150 of which involved children.
As you know, the state has compulsory health insurance (CHI). If you have a policy, a citizen can contact the insurance company with an application or complaint about a medical institution or a specific specialist. The latter, in turn, conducts its own investigation and engages the competent authorities to prevent further violations and punish the perpetrators. So, statistics show that every year insurance companies receive about 2,500 complaints that the activities of doctors have signs of negligence and criminal features.
The concept of medical error has not been established legally. The main thing is that proving the fact of an offense falls on the shoulders of the victim, who must present maximum evidence to confirm this circumstance.
Depending on at what point in the treatment the error occurred, there are several types of mistakes by doctors.
So, the classification of medical errors is:
- The most common errors occur in practice when diagnosing clients.
- Which appear when there is insufficient provision of medical workers with equipment or medicines. This also includes the uncoordinated and disorganized work of medical staff.
- After establishing an incorrect disease, the doctor automatically prescribes incorrect treatment (in the form of medications taken, method of taking medications, other health procedures). As a result, one error is superimposed on the second, which leads to unpredictable results.
- The doctor’s next omission is of a psychological nature, and concerns the choice of the wrong tactics of behavior when communicating with the patient or his family members.
- Often, with a large flow of documents, health workers record information about one person in the medical records of another: they confuse tests, medical histories, etc.
- The last category concerns pharmaceutical errors, when a specialist incorrectly compared the effect of a drug with the client’s diagnosis or dispensed medications that are incompatible with each other.
Of course, these mistakes have completely different subjective and objective sides, so they will be assessed taking into account the details of the act. Equally important when choosing the type of criminal liability of the offender will be the damage caused by the error of the healthcare employee.
Dentist services most often cost the client a large sum, regardless of whether the treatment is provided by a private clinic or a public one. Of course, the price tags in paid medical institutions are higher, but the cost of the service will not insure against mistakes.
Claims against representatives of the dental medical industry vary depending on the object and subject of the appeal.
Thus, dishonesty may be on the part of a visitor who, through the court, tries to accuse the doctor of lack of qualifications and return the amount of an expensive procedure. In turn, some specialists have the habit of performing services poorly, thereby securing work for themselves in the future so that the client will come again.
The latter case is almost impossible to prove, and it hardly amounts to a criminal offense. But in the first situation, statistics are observed that a third of cases involving accusations against dentists remain without a solution satisfactory to the plaintiff due to lack of grounds.
However, the rest (and most) of the cases still confirm the fact that dentists make mistakes in practice.
In general, the mistakes of a dentist in a dental office boil down to the following:
- incorrect diagnosis of dental or oral disease;
- poor choice of pain reliever;
- treating the wrong tooth, etc.
In order to minimize the risks of a client going to court, the doctor should carefully study the disease, clearly explain to the patient what the problem is, propose a treatment concept, coordinate and clarify all the nuances. If the patient needs thorough treatment, an agreement can be concluded with him, which spells out the conditions of treatment and gives the patient’s consent to carry it out.
The types of medical errors also affect the punishment of the employee. If errors in the work of a physician are identified within the work team, then disciplinary sanctions are applied to him in the form of a decrease in the level of skill, a reprimand. The perpetrator may also be sent to advanced training classes. The doctor may be demoted or even fired.
If the defect was noticed by patients and they came to complain about the doctor, then one of these types of liability may await him:
- In accordance with civil law. This type of liability is considered as part of a civil claim for damages. This often includes a moral damages clause. The victim chooses an amount that, in his opinion, would cover the costs of restoring health and mental suffering. Of course, the cost of the specified damage must be confirmed by evidence in the form of checks and receipts for payment for medicines and health procedures.
- Sanctions provided for by criminal law. Apply if negligence caused harm to human life or health. Also, if the consequence of the defect was the death of the unfortunate person. The patient must understand that the irresponsibility, inaction and carelessness of the doctor is assessed as a crime only if the harm caused turns out to be significant. In order to determine how badly the patient’s health has been affected, an examination is carried out to identify medical indicators.
Separately, you need to think through the tactics of proving that a person has suffered morally. In general, the evidence base must be strong, since, most likely, the doctor will deny everything and not admit guilt.
So, if a medical error occurs, the article that should be applied is absent as such. Criminal law provides for certain crimes under which a physician can be punished for causing adverse consequences to a patient due to improper actions of medical personnel.
So, if the judge established, based on the results of a medical analysis, that the occurrence of a death is directly related to the actions of a resuscitator, gynecologist or other specialist, the employee will face punishment under Part 2 of Art. 109 of the Criminal Code. According to the disposition of this norm, a sanction is applied in case of careless actions of an official that resulted in death.
Punishment can be in the form of restriction or deprivation of liberty for up to three years. It is possible to be held less liable if the claim relates to adverse consequences in the form of serious danger and grievous bodily harm. For such an offense, the perpetrator is punishable by up to 1 year in prison (Article 118 of the Criminal Code). Along with these sanctions, the doctor may be deprived of the right to work in the medical field.
- Process in obstetrics and gynecology, if the legal process for performing an abortion was not followed or other cases when the patient was injured in the gynecological office, Art. 123 CC.
- If the health worker did not comply with safety measures and his actions caused the person who applied to become infected with HIV infection. Punishment occurs in accordance with part four of Art. 122 of the Criminal Code and consists of imprisoning the perpetrator for 5 years.
- If the clinical measures taken by a doctor or pharmaceutical employee led to moderate or severe negative consequences for human health, then they are punishable under Part 1 of Art. 235. Under part two, the same acts are qualified if they caused death.
- Art. 124 implies punishment for refusal to provide assistance by an employee who should and could have provided it. Here there is also a difference between parts one and two in terms of consequences from moderate harm to death.
- The law separately spells out Article 293 of the Criminal Code, which establishes liability for the negligence of medical personnel. To punish a person under this article, serious health consequences or death must occur.
The classification of offenses depends on the specific elements of the crime: the objective and subjective side. That is why the legislator did not leave a single legal concept and norm stipulating responsibility for misconduct in treatment and prevention.
Along with a claim for a crime, the injured party has the right to file an application in which to demand that the defendant be forced to pay monetary compensation.
Where can you go and complain if what the doctor does goes beyond the boundaries of what is acceptable and harms clients:
- To the management team of a medical institution. Even if the medical clinic is paid, it must have an employee who is responsible for his subordinates. In public hospitals, this is the head of a structural unit of the organization or the chief physician. The victim must write a statement or come to a personal appointment, explain the situation in detail, provide evidence of the doctor’s erroneous actions and show the result of the mistake. The head physician or manager analyzes the application and takes disciplinary actions: making a decision to deprive a subordinate of monetary remuneration, reprimanding, imposing penalties, raising the issue of reducing qualifications.
- To the insurance company where the citizen received health insurance. A detailed statement is written here and evidence is included. Based on the submitted facts, the insurance company conducts an investigation, and if there is no fact of slander, the organization will face a fine.
- To the court. To begin legal proceedings, you will need to draw up a statement of claim indicating the circumstances and justifying the legal requirements from a legal point of view. Based on the testimony and evidence of the parties, the judge will decide whether the defendant should pay compensation and determine its amount.
- To the prosecutor's office. The appeal to this authority must be based on the fact that the defendant is accused of a crime. Here the complainant needs to be careful as he will have to go through an unpleasant conversation if the allegations turn out to be untrue.
The function of supervision over the activities of medical organizations is also performed by the Ministry of Health and Roszdravnadzor, to which a citizen has the right to file a complaint.
When choosing a competent authority, a person should focus on the relationship between the violation and the consequences caused. Of course, for any charges, the person must have sufficient evidence of the offense and cause-and-effect relationships.
What is included in the evidence base
It is necessary to begin the explanation with the fact that the patient was treated in the clinic by a specific specialist.
Identification of the fact of the state in a relationship can be carried out on the basis of the following documents:
- documentation about the patient from the medical record;
- papers with survey results;
- payment documents confirming the fact of payment for the services of the medical institution;
- pharmacy receipts for the purchase of medicines;
- written prescriptions, etc.
Witness testimony may be used to support the victim's accusations. If a person decides to complain, he should take care of copies of the above papers; lawyers recommend keeping the originals.
Arbitrage practice
Medical errors examples from life:
- Doctors' mistakes also happen in pediatrics; one of the cases caused the death of a little girl, which was caused by a severe lung disease. Pneumonia had no obvious symptoms, so the doctor considered the baby healthy. The pediatrician discharged a sick child whose body could not withstand the overload in kindergarten.
- Another patient suffered after the operation. The medical staff violated technical standards, and a wound appeared, which became a source of infection, due to which the patient died.
- In the field of pathology, about 21% of cases of incorrect examination results were found.
- Citizens note that medical examinations in hospitals are carried out fictitiously. There are cases when a baby dies or becomes disabled when obstetricians pull him out of the birth canal.
Based on the reports of police officers and experts, it can be concluded that such consequences are caused by a lack of practice and knowledge among employees. To prevent and prevent such situations, employees should include professional development classes in their schedule and spend time on self-development.
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