Medical negligence in the legal practice (real use case inside)

The crime in providing medical assistance can be committed through carelessness or professional negligence. In the first case it is considered that a guilty person foresaw the potential outcomes of socially dangerous consequences of the actions made (or inaction), but lightly, without strong reasons considered their prevention (or absence) to be possible and/or true. In the second case (negligence), the offender, did not foresee such effects, but with the necessary approach and forethought should have and could have foreseen them.

An example of the negligence could be the next case (we are referring to the real cases provided by partners – medical negligence solicitors, although we omit names, surnames and geographical location of the case). A patient with uncomplicated closed fractures of the hip was brought to the hospital. Young surgeon on duty decided to take advantage of osteosynthesis. During the surgery a severe bleeding occurred, and as a result, clinical shock. The patient died, and it turned out there were no indications for osteosynthesis. The surgeon, counting on the fact that there would be no intraoperative complications, decided to perform operation and took an increased risk.

Criminal negligence is defined as the occurrence of unforeseen adverse effects, though the guilty party could and should have foreseen their offensive. In practice, criminal negligence is often associated with medical ignorance. There is a misconception that the ignorance of their duties does not entail criminal liability. This is not true. Getting medical diploma, young professionals not only get the right to engage in medical practice, but also take on the responsibility to be able to do it.

Non-crime legal precedents

There’s a term ‘medical incident’ (also classified as ‘medical accident’) that doesn’t imply criminal activity. In this case the doctor is believed to act deemed to be committed innocently (accidentally) if the perpetrator (for example medical worker) was not aware of the social danger of his actions, did not foresee its socially dangerous consequences and the circumstances of the case should not have been there or could have been foreseen.

Here’s another example to consider: before appointing/introducing an antibiotic, the doctor asks the patient whether he has some drug tolerance problems, allergic reactions or, in particular, unusual reactions to antibiotics. After receiving a negative response, the physician nevertheless fulfills the necessary samples to determine the patient’s hypersensitivity to antibiotics, and the sample is negative. However, with the introduction of antibiotics, a severe anaphylactic shock is developed in the patient, recovery from which demanded significant efforts. There is no fault of the doctor, as in this case he did everything that is required, and he couldn’t foresee the consequences. From a legal point of view, the incident must be regarded to as causing of harm innocently, as there is no form of guilt there.

From time to time in the medical literature there are reports that significant efforts are made to organise medical negligence information with legal aspects in minds. The authors of these publications argue a lot, defending their own points of view and moving in decentralisation direction, rather than in a uniform way. Unfortunately, these attempts are groundless, because they are going beyond the limits of medical knowledge and the competence of law intrusion.