It is very difficult to prove the fact of a medical error, but it is still possible. According to the Law on the Protection of Consumer Rights, a person has the right to compensation for moral damage and harm caused through the fault of another person, in particular a medical worker.
According to the legislation of the Russian Federation, there is no such thing as a “medical error”, but it can be stated as follows: it is an unintentional infliction of harm to health that arose as a result of improper provision of medical care or inaction of a doctor.
The degree of harm to human health can be different: causing death by negligence, moderate to severe harm. Depending on this, the law provides for various types of punishment, from administrative and civil law to criminal.
Victim action plan
How to prove a medical error, if there really is one? It should be noted that the responsibility in the form of material compensation and compensation for damage caused most often lies not with the doctor himself, but with the head of the institution where he works. If the doctor is not registered in a medical institution, but is engaged in private activities, then he is responsible.
The victim should be the first to contact the head of the department or the head doctor with a request to resolve this issue. In the event that this does not produce results, then you will need to go to court. To start a business, you must go to the prosecutor.
The most important stage is a written confirmation that a health disorder occurred precisely through the fault of the doctor. This is not always possible to do. You will need to provide all the records from the medical record, research data. It is best to visit a research center and conduct an examination to confirm that there is a health problem after providing unqualified care.
Currently, the law provides for an independent examination, and an investigator’s resolution will be required. The Forensic Bureau provides assistance for a fee. Most often, the examination is carried out in a medical institution where the doctor who caused the harm works. As a result, the fault of the medical worker cannot be identified, as doctors do not hand over their colleagues.
Before initiating proceedings and proceedings, it is recommended to seek the help of advisory centers, they will help in this matter. In view of all this, it can be said that it is very difficult to prove a medical error. Even in the case of a successful result, the amount of compensation for damage is small and barely covers all the costs of the victim.
The term “medical error” is unknown to the law [ source not specified 275 days ], therefore, lawyers, as a rule, do not use it. It is prevalent mainly in the medical literature, but even here there is no generally accepted concept of this term.
A medical error can be given several definitions:
- “A medical error is the wrong action of a doctor in professional activity in the absence of guilt.”
- “A medical error is a doctor’s mistake in professional activity, due to bona fide delusion in the absence of negligence, negligence or ignorance.”
- “A medical error is a doctor’s error in the performance of his professional duties, which is the result of a bona fide delusion and not containing a crime or signs of misconduct.”
- “A medical error is an incorrect definition of a disease by a doctor (diagnostic error) or an incorrect medical event (surgery, prescription of a medicine, etc.) due to a conscientious error of the doctor.”
- “A medical error is the wrong action (or inaction) of a doctor, which is based on the imperfection of modern science, ignorance or inability to use existing knowledge in practice.”
The concepts developed by physicians (in particular, the idea of criminal impunity for “medical error” due to the honesty of a doctor’s error) were contrary to the provisions of criminal law and therefore actually fell outside the scope of practical application.
Forensic expert and scientist Israel Gamsheevich Vermel named three conditions under which (all at the same time), from his point of view, should be the criminal liability of medical workers for improper treatment:
- The actions of a medical worker in a particular case were objectively incorrect, in conflict with generally recognized and generally accepted rules of medicine.
- By virtue of the education received and the position held, the medical worker should have been aware that his actions were incorrect and therefore could cause harm to the patient.
- These objectively incorrect actions contributed to the onset of adverse effects - the death of the patient or causing substantial harm to his health.
But from the point of view of the law, the only basis for criminal liability is the corpus delicti stipulated by the Criminal Code. In each case, which is called a “medical error” (from a legal point of view, this is a very broad concept), it is necessary to determine the presence or absence of a corpus delicti.
In the Criminal Code of the Russian Federation, the closest articles relating to medical activity when it comes to medical error are Article 109 (causing death by negligence), Article 118 (causing serious or moderate damage to health through negligence), as well as Article 124 (refusal to help the patient).
A medical worker is not subject to criminal liability if he was guided in his work by the customs of medical practice (practice-tested immutable truths of the medical profession, generally recognized and generally accepted rules of medicine set forth in information sources or transmitted verbally or visually between colleagues in the profession).
When deviating from the customs of medical practice, in case of neglect of the canons of medicine, responsibility always follows by law.
The medical side [edit |
Unprofessional performance of their duties, neglect of them, sometimes leads to serious consequences. This is called a medical error when a patient suffers due to fraud.
These actions of the doctor are recognized as unintentional, but nevertheless the doctor should bear the punishment. This is already a criminal article if, as a result of treatment or surgical intervention, the patient showed significant health problems or, even more sadly, led to death.
To begin with, you need to understand the features of a doctor's guilty plea.
- Mitigation of punishment can be applied in cases where the error occurred by chance, without intent. To prove his guilt, it is necessary to provide documentary evidence that the doctor’s actions were intentional.
- The reasons that arose due to negligence, inexperience or distraction are considered objective. This also softens the sentence.
- But negligence, negligence and inattention on the part of the doctor during the examination of the patient and the appointment of a course of treatment are considered serious violations. They can aggravate the punishment.
If you look at the statistics, you can analyze the situation. In 2015, almost 700 cases were recorded, including children, of poor quality medical care. In the following year, 2016, more than 350 patients, including children, died at the hands of doctors.
The Investigative Committee received from the population more than two thousand complaints about the negligent attitude of medical workers. Nearly 400 cases of medical error were instituted.
Worth to know! In Russian legislation there is no precise concept of what may refer to a medical error. That is why all criminal cases opened for a particular doctor are considered complex. The trial is not conducted quickly, since it is required to confirm the fact of the presence of this error through the fault of the doctor.
To determine the severity of VO, a classification is applied, i.e. it turns out at what stage of the provision of medical services it occurred. This may be the initial stage in which the patient was misdiagnosed.
This also includes the very appointment of drugs, the use of which had a negative impact on the health of the patient.
We will understand this issue and find out by what principle VO can be classified.
- At the stage of diagnosis (diagnostic). These are the most common errors.
- Organizational. These are errors that occur due to the inexperience of a specialist, or with poor provision of medical services.
- Treatment errors are a consequence of an incorrect diagnosis. The patient is prescribed medications based on the diagnosis. If the disease was determined by the doctor incorrectly, accordingly, the prescription of drugs will be incorrect.
- Psychological, or else they are called deontolgic. This is the behavior of the health worker, his manner of communicating with patients, relatives of the patient and his staff.
- Technical errors occur as a result of inattentive filling out of the patient's ambulatory card, medical statements and other documentation. Entries entered in the document are not true.
- There are pharmaceutical errors that occur with the wrong prescription of drugs. Typically, such VOs occur due to the fault of the pharmacist who did not check the compatibility of the drug with other prescribed medications, and also did not identify contraindications.
We have to meet with such situations regularly, as evidenced by statistics.
There is another classification item - this is “Other” VO. They include errors that cannot be attributed to any of the above types.
It's important to know! The degree of responsibility for VO will depend on what type of medical error will be attributed.
The services of a dentist are not cheap, therefore, there are plenty of lawsuits on this topic. Sometimes, self-serving patients file a complaint with the Court.
According to statistics, more than thirty percent of the claims filed had no reason to initiate proceedings. The doctor’s guilt has not been proven. But this does not mean that there are no dental errors. They have a place.
The most common - this is the initial stage when the dentist makes the patient the wrong diagnosis. There are others, such as prescribing inappropriate anesthesia, the use of drugs that are not suitable for the patient, preservation of the tooth that must be removed, and others.
In order for there to be fewer such complaints from patients, the specialist is obliged to explain to the patient all stages of the treatment at the initial appointment and find out his contraindications to drugs.
The scheme of providing medical services must be provided to the client in an understandable form so that in the future he does not have any misunderstandings.
Important! The specialist is obliged to find out from the patient all the details, consult with him, pay attention to the little things.
Usually, a medical contract is concluded with the patient, which sets out all the points both for the provision of services and for the responsibility of the parties.
When it comes to a local check of a doctor’s work and violations in his work are revealed inside a medical institution, doctors usually get off with a reprimand in a personal file.
There are more serious punishments, such as a reduction in the category of a specialist, or transfer to another medical institution. Typically, those who violate are sent to advanced courses on their own specifics. They can transfer to a less prestigious job.
For example, to relieve the head of the surgery department from his post and transfer him to full-time surgeons of the same department, or to another medical institution.
When it comes to an external investigation, it is subject to severe penalties, up to and including detention. In this case, responsibility can be divided into two categories: criminal and civil.
Let's start with the civilian. This responsibility is considered to be financial, since it mainly carries out cash payments to the injured party.
Not only serious health consequences are compensated, but also moral damage, as well as reimbursement of money spent by the patient for medical services.
The guilty party fully assumes the material support of the patient in the future treatment, which will be carried out to eliminate VO. Therefore, in a lawsuit, as a rule, the amount indicated by the patients themselves is indicated.
There are no specific figures established for this liability. The plaintiff has the right to demand material compensation, which he needs to restore his health, including additional services. But everything should be within reason.
More severe punishment is a criminal article. It is used in cases where, due to a doctor’s mistake, the patient suffered serious irreparable harm to health. This is a threat to the life of the patient, or the death of the patient due to the actions of a medical specialist.
In cases where during the inspection it will be established that the patient was not inflicted any significant harm by poor medical services and nothing threatened his life, then in this case criminal punishment will be impossible.
All disputes are investigated and resolved by a special forensic medical commission. She conducts an examination, by the decision of which the degree of harm to the patient is determined.
You should know! The victims need to be patient, as they will have to make a lot of efforts in order for the court to satisfy the claim for compensation for moral damage. Doctors themselves rarely admit the fact of their mistake, and they have a lot of arguments in their favor.
Applicable CPC Articles
The Russian Criminal Code of the Russian Federation does not imply a specific article for HE, but there are clauses for certain actions of a doctor who are considered criminal and for which a physician should be held criminally responsible.
The articles of the Code of Criminal Procedure will be applied when it is established that the death occurred due to the fault of the doctor, or the patient suffered irreparable harm due to incorrect actions of the doctor. This conclusion is issued by the judicial commission, which conducts an examination on the fact of violations.
If the error is proved, then, according to Code 109 (part 2), the doctor may face up to 3 years in prison if the patient dies, and 1 year in case of serious harm to health.
Both options also imply another significant punishment for the culprit of what happened is the deprivation of his right to provide medical services. Such a doctor may forever lose the opportunity to conduct medical practice.
We list the criminal acts of doctors for which severe punishment can be incurred.
Such medical crimes include:
- Unlawful abortion. When as a result of an abortion, the patient suffered irreparable damage in terms of health, or as a result of which there was a fatal outcome. The article number one hundred twenty three, part three of the Criminal Code will be applied here.
- A doctor can receive a sentence in a colony for 5 years, due to neglect of which the patient was infected with HIV infection. 122 articles of the Criminal Code of the Russian Federation, part 4, will act here.
- Under article 125, parts -1 and 2 provide for the criminal responsibility of the Criminal Code of the Russian Federation for doctors engaged in pharmaceutical and medical practice, as a result of which the patient was seriously harmed. The second part of the Criminal Code provides for liability in cases of death of the patient.
- When the patient was injured due to the provision of medical care to him in moderate or mild degree, the 124th article of the Criminal Code will be applied. Serious harm is considered in part two of the same article.
- Negligent attitude to his duties, due to which the patient was seriously injured or died, is considered in Article 239 of the Code of Criminal Procedure, the second part.
Worth to know! After the criminal case has been instituted on the doctor, the injured party has the right to apply to the court with a civil lawsuit for compensation for moral and material damage. Cash payments are envisaged in accordance with article 44 of the CPC.
Who should I file a complaint with?
If HE is detected, it is necessary to inform the appropriate authorities that are entitled to deal with such cases.
There are several options.
- Management of a medical institution. You can write a complaint and forward it to the head. department, or the head doctor of a medical institution. There is an opportunity to make an appointment, and at a meeting to describe your problem. It is necessary to have a justification for such accusations, so you have to stock up on evidence.
At this stage, issues are resolved immediately. The guilty party bears administrative punishment in the form of deprivation of bonuses, a fine or reprimand if medical guilt is proved.
- You can contact the company that issued you the medical policy. Это страховая фирма, которая обязана по предоставлению жалобы, начать проведение страховой проверки (экспертизы). Сотрудники компании вынесут заключение по действиям врача и, в случае подтверждения фактов нарушения, выставят штраф на оздоровительное учреждение.
- Суд. It will also require written evidence and a statement of claim. In your claim, you must indicate clearly defined requirements that you make to the defendant. After the investigation and trial, the decision will be made. As a rule, in such cases, the patient wins and the doctor is obligated to compensate the damage in monetary terms.
- Prosecutorial authorities. This is another state authority where it is possible to send a complaint about the actions of a particular doctor. This body considers serious cases with criminal penalties. Here we must be prepared for the fact that the trial will be long, and the consequences - serious. This applies to both parties, as for false evidence in our country also provides liability.
You should not deviate from your decisions, you must defend your point of view and punish the guilty. One must be prepared that the business that has been launched will be difficult to prove. Therefore, it is necessary to save all the documents that the doctor wrote to you in order to provide them in the future to prove their innocence.
What is required to provide evidence?
We’ll give some tips to follow. Do not try to immediately get rid of the prescribed prescriptions and other documents written by the doctor during treatment. They may come in handy.
The evidence base includes:
- an outpatient medical record of a patient from a hospital, clinic, department, in which there will be records of a specialist in the treatment,
- analysis results,
- documents on the conducted surveys with the results,
- financial documents on payment for medical services,
- checks from the pharmacy where the prescribed drugs were purchased for the course of treatment.
If the case is considered in state bodies, then it will not be amiss to invite witnesses to the case who can confirm the fact of VO. Documentary evidence should be copied in advance and notarized (if necessary).
Originals always remain with the injured party, and certified copies are transmitted to the appropriate authorities.
A doctor’s mistake can be considered a doctor’s actions that were committed as a result of the examination, or treatment of the patient. That is, at a time when the doctor was at work and performed the duties assigned to him.
Despite the fact that Russian law does not have a clear wording for HE, it will be possible to prove the doctor’s guilt. Since, according to both patients and physicians themselves, the doctor has no right to neglect the mission assigned to him. After all, we are talking not only about the patient’s health, but also about his life.
Therefore, it is necessary to take a responsible approach to the matter and pay attention to all the moments, even those that may seem insignificant at first glance, at the first stages, when conducting a patient examination.