Medical error article uk. What is medical error and how to punish a doctor. Accidents and medical errors in medical practice - punishment

Working in the medical field involves special responsibility for the health and lives of people. In the event of a medical error, the medical institution, as well as the guilty doctor, bear civil liability. They are obliged to compensate the victim, for their actions or inactions, for material and moral damage. In cases where serious harm to health is caused or the patient dies due to a medical error, the physician faces criminal prosecution. What is considered a medical error, and what punishment can be imposed by the court in specific cases? In this article you will find a detailed answer to this difficult question.

Medical error - concept

There is no definition of the term medical error in Russian legislation. For this reason, everyone is free to interpret it as he pleases. But there is a problem. Every year hundreds of people become disabled or die in the country due to the fault of doctors. Lawyers and representatives of government institutions insist on introducing into circulation the concept of medical error and giving it legal status. Doctors are protesting because they believe that this will ruin domestic medicine.

In none of the developed countries is there criminal liability for medical errors, since human health is a complex system that does not have stability. In many cases, it is impossible to accurately predict the outcome of a particular action. Mistakes in such situations are inevitable.

According to the medical community, the most acceptable definition of the term medical error was given by the famous Russian pathologist I.V. Davydovsky: “Medical error is a consequence of a doctor’s conscientious error when performing his professional duties.” It is also correct from a legal point of view. The main emphasis in it is on the responsible attitude of the physician to his duties.

Is there an article about medical error in the Criminal Code of the Russian Federation?

The main issue is the absence of the doctor's fault, which can only be determined based on negligence or intentional harm. But neither one nor the other is a medical error, since in both cases the doctor acts deliberately, realizing that he is violating the established rules. Therefore, in case of serious harm to the patient’s health, Part 1 of Art. 118 of the Criminal Code of the Russian Federation. It provides for liability for negligence, the consequence of which was a sustainable and irreversible deterioration of a person’s condition.

A person accused of medical malpractice under this article faces one of the following penalties:

penalties in the amount of up to 80 thousand rubles. or in the amount of income of the guilty person for a period of up to 6 months;
compulsory work for a period not exceeding 480 hours;
correctional labor for up to 2 years;
restriction of freedom for a period of up to 3 years;
6 month arrest.

The penalty for medical malpractice is determined based on the amount of damage caused to the patient.

Courts often interpret negligence as medical malpractice. Then the doctor is held accountable under Part 2 of the same article. He faces restriction of freedom for a period of up to 4 years, forced labor or imprisonment for a period of up to 1 year. At the same time, the perpetrator may lose the right to practice medicine for 3 years.

Note!
The Criminal Code of the Russian Federation has a number of other articles that apply to medical workers, but they are not related to medical error.

Criminal liability for causing the death of a patient

If a patient, regardless of whether it was a child or an adult, died due to a medical professional’s mistake, the doctor will be held criminally liable. Its measure depends on the circumstances:

for causing death by negligence Art. 109 of the Criminal Code of the Russian Federation provides for one of the punishments: correctional labor, restriction or imprisonment for a term not exceeding 2 years;
if several people were injured at once, then the same measure will be increased to 4 years. In addition, the culprit may be deprived of the right to hold certain positions and work in his field for up to 3 years;
Although negligence is not a medical error, courts often apply Part 2 of the same article to medical workers. According to its provisions, an unscrupulous physician is punishable by restriction of freedom for a period of up to 3 years with deprivation of the opportunity to hold certain positions and work as a doctor during the same period. The court also has the right to send the perpetrator to prison for 3 years.

The main problem for relatives of victims in such situations is to prove a cause-and-effect relationship between the doctor’s actions and the death. The concept of medical error assumes that the doctor acted according to all the rules, but he had a choice - to do one way or another. If he did not violate any instructions, it is extremely difficult to accuse him of a crime. When the cause of death were factors that the doctor could not have known about, it will not be possible to hold him accountable at all.

Where to complain about a medical error

Victims of the action or inaction of a medical worker will need to:

Make sure there is evidence of a crime. To do this, you need to contact an independent doctor of the same profile as the accused to undergo an independent examination.
If the fears are confirmed, then you need to send a claim to that medical institution where medical care was provided. The document is drawn up in simple written form in the form of a business letter. It contains the reasons for the appeal and claims for compensation for damage and moral harm.
When the claims are not satisfied or there is a desire to bring the doctor to criminal liability for medical error, then you need to send a statement to the government authority. In the first case, the claim is filed against the medical institution, and in the second, directly against the doctor.

An independent examination is not absolute evidence for accusing a doctor. As prescribed by the government authority, you will be required to undergo a forensic medical examination. Its results must show that the harm to health was caused precisely as a result of the doctor’s action or inaction.

Note!
Bringing a physician to criminal liability does not exclude compensation for material damage and moral damage. These claims must be indicated in the statement of claim when going to court.

Summary

Doesn't exist in Russia legal concept medical error. For this reason, there is no separate article under which doctors are responsible for their actions or inactions. Lawyers and the public are advocating for the introduction of such a norm into the Criminal Code of the Russian Federation, which the medical community does not want. But there are facts of serious harm to health and even death of patients, as well as proceedings on them.

Most often, in such cases, the doctor’s actions are qualified as negligence. If proven guilty, he faces punishment, depending on the circumstances of the case: from a fine to imprisonment. The longest sentence is faced when the actions of a physician led to the death of several people; it is 4 years.

To bring a doctor to criminal liability, it is necessary to file a statement of claim in court. At the request of a representative of the authority, you will have to undergo a forensic medical examination. It is unlikely that you will be able to figure out the intricacies of legal and medical nuances on your own. We offer assistance from qualified lawyers who will use all their experience to achieve justice.

Medical malpractice implies that some actions of a health care worker worsened the patient’s condition, and in the worst case, led to his death. How can you prove that a medical error actually occurred? This possibility exists at the legislative level.

Medical error - article in the Criminal Code of the Russian Federation

The Criminal Code of the Russian Federation does not provide for a special crime in relation to medical errors. Inactions, as well as actions of a doctor, as a result of which he is brought to criminal liability, are indicated in the Special Part of the Code.

In the described case, the following conditions must be met:

Causing serious harm to health or death.
Illegal behavior of a doctor.
There is a cause-and-effect relationship between the doctor’s unlawful behavior and the harm.
The doctor's fault.

That is, criminal liability for medical error occurs only in cases where the patient’s health has been seriously harmed. If the patient received poor-quality medical care and his health suffered minor harm (of moderate or mild severity), the doctor will not be held criminally liable. The severity of harm is determined based on the results of the forensic examination (forensic medical examination).

Punishment for medical malpractice

If, due to unlawful actions or inactions, medical personnel caused severe harm to the health of the patient or led to the death of the patient, criminal liability arises only for certain elements of the crime provided for in the Special Part.

In accordance with Part 2 of Art. 109 of the Criminal Code of the Russian Federation, a medical error that led to the death of a patient may be punishable by conviction for up to 3 years with or without deprivation of the right to engage in medical activities for the same period.

If the patient’s health was seriously harmed as a result of improper performance of the doctor’s duties, this medical worker may be imprisoned for up to 1 year with or without deprivation of the right to engage in medical activities for the same period.

In addition to the above-mentioned crimes, there are the following types of medical errors that are subject to criminal liability:

Illegal abortion, which resulted in the death of the patient or caused serious harm to health (Part 3 of Article 123 of the Criminal Code of the Russian Federation).
Infection of a patient with HIV infection due to improper performance of professional duties of a doctor (Part 4 of Article 122 of the Criminal Code of the Russian Federation). A prison term of up to 5 years is provided.
Engagement in commercial pharmaceutical activities or medical practice without an appropriate license for these types of activities in cases where this led to harm to health as a result of negligence (Part 1 of Article 235 of the Criminal Code of the Russian Federation). If these types of activities led to the death of the patient, the perpetrators will be punished on the basis of Part 2 of Art. 235 of the Criminal Code of the Russian Federation.
Failure to provide assistance to a patient (Article 124 of the Criminal Code of the Russian Federation). In this case, it is enough to cause moderate harm to health due to negligence. If, for this reason, serious harm was caused to the patient’s health or it even led to death, the doctor’s act will be considered a qualified composition (Part 2 of Article 124 of the Criminal Code of the Russian Federation).
Negligence. This is improper performance or complete failure to perform duties by an official as a result of dishonest attitude towards work. If the negligence of a health care worker led to harm to the health or death of the patient as a result of negligence, it will be qualified under Part 2 of Art. 293 of the Criminal Code of the Russian Federation.

Important! After a criminal case is initiated, until the judicial investigation, the victim has the right to file a civil claim and demand compensation for property damage caused as a result of the crime, as well as compensation for moral damage. These rights are noted in Art. 44 Code of Criminal Procedure of the Russian Federation.

If the patient has not exercised this right, after the verdict against the perpetrator is passed, claims for compensation for property and moral damage can be demanded in civil proceedings. Based on Part 2 of Art. 306 of the Code of Criminal Procedure of the Russian Federation, if the doctor is not found guilty, the court will refuse to satisfy the claim.

Where to go if there is a medical error?

If you think that your health has deteriorated after treatment, you first need to contact the head of the department of the clinic or hospital where the treatment was carried out. If no measures have been taken on his part, you should file a complaint with the head doctor of the same medical institution and you will be assigned another doctor.

But if a medical error causes serious damage to health, the appearance of another disease or disability, the doctor can be held accountable for his unprofessionalism. To do this, you need to contact either the city Health Department, or the Ministry of Health of this constituent entity of the Russian Federation, or the insurance company that provided you with the compulsory medical insurance policy.

To obtain compensation for property and moral damage caused to your health, you should contact a judicial authority.

Important! Also, regarding a medical error that caused serious harm to health, you can draw up and submit an application to the prosecutor's office.

Of course, the claims and facts indicated in it must be confirmed by an independent medical examination. A prosecutor's investigation may lead to the initiation of a criminal case against the violator. If, as a result of the proceedings, it is proven that a medical error occurred, this may lead to imprisonment of the perpetrator.

Consequences of medical errors

The consequences of a medical error can be different. And at certain points, a medical error leads to the need for expensive treatment and expensive rehabilitation measures. And these are additional financial expenses, the cause of which is the doctor himself.

Important! In any case, the patient has the right to compensation for harm to health caused by a medical error.

To be held accountable for such a mistake and to receive compensation for personal injury, you can contact professional lawyers who specialize in such cases.

ATTENTION! Due to latest changes due to legislation, the information in the article may be out of date! Our lawyer will advise you free of charge - write in the form below.

Refusal of three articles

After medical crimes are concentrated in one article of the Criminal Code, doctors will no longer be judged under Art. 109, 118 and 238 of the Criminal Code of the Russian Federation (“Causing death by negligence”, “Causing serious harm to health by negligence” and “Production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet safety requirements”), said President of the National Medical Chamber Leonid Roshal. It is these three articles that account for the majority of cases where doctors are brought to criminal liability. “And that’s why it was invented to introduce one article instead of three. But I believe that it is possible to judge doctors in order to imprison them only in the case of intentional, I emphasize, intentional harm to health,” Roshal said.

The Investigative Committee cannot fail to respond to citizens’ complaints about doctors and medical care, the acting acting director noted in response. Head of the committee's media relations department Svetlana Petrenko. Over the past five years, such requests have tripled - their number has increased from two to six thousand, she said. “We organize an inspection in each specific case. Not in every such case a criminal case is initiated, and of the total volume of criminal cases, only 10% go to court. That is, in 90% of cases, criminal cases against doctors are terminated,” she noted.

Medical lawyer Ivan Pecherey spoke out against a separate article for medical workers at the conference. “It turns out that every doctor, going to work every day, carrying out his professional duties, actually turns out to be a potential criminal, and his professional activity is considered as an area of crime,” he said.

Criminal statistics

In 2017, 175 criminal cases related to medical errors were sent to court, as follows from the presentation of the Investigative Committee presented at the conference. This is 11 more than in 2016. The number of complaints about medical care in the Investigative Committee in 2017 was 6,050. This is 1,100 more than the year before. In 2012 there were only 2,100.

The majority of doctors convicted in 2017 (74.7%) were accused of causing death by negligence (Article 109 of the Criminal Code). In the provision of services that do not meet safety requirements (Article 238 of the Criminal Code) - 10.9%. Another 6.3% were suspected of causing grievous harm through negligence (Article 118 of the Criminal Code). The rest were charged with negligence and failure to provide assistance to a patient.

Too wide

The medical community and the Investigative Committee still have disagreements regarding the proposed article of the Criminal Code, noted Leonid Roshal. The article does not indicate which specific violations of a doctor’s professional duties will be interpreted as the cause of serious harm to the health or death of the patient. Its formulation leaves room for a very broad interpretation.

According to Roshal, the medical community also does not like the appearance of the term “fetus” in this article. “If we leave the article in the form in which it is proposed now, obstetricians will leave the profession,” he said.

The Investigative Committee will not hold medical workers criminally liable for medical errors, Deputy Head of the Main Directorate of Criminalistics of the Investigative Committee Anatoly Sazonov stated several times during the conference.

“We are bringing to justice medical workers who have committed gross violations of treatment standards and protocols,” he explained. “As for the term “human fetus,” we are ready to discuss this with the medical community and come to a consensus,” Sazonov said. Separately, he noted that the Investigative Committee rejected “strongly imposed proposals” to bring doctors to criminal liability for causing minor and moderate harm to health. Sazonov did not disclose who imposed such norms on the TFR.

Leonid Roshal noted that all changes to the Criminal Code discussed with Investigative Committee, are still far from the final version. The doctor called working with SKR constructive. At the same time, the National Chamber of Medicine will continue to insist that it is up to the decision whether a doctor can practice professional activity, should not be a court, but “a professional medical association, as happens in other countries,” Roshal concluded.

Misyurina case

The discussion about the need to change articles on criminal liability for iatrogenic crimes intensified after the high-profile case. In 2013, she collected bone marrow from a patient with several complex diagnoses, including cancer. The patient died shortly after the procedure. According to investigators, the cause of the man’s death was a medical error: Misyurina allegedly could have punctured a vessel with a needle and caused internal bleeding in the patient.

In January 2018, Misyurina was sentenced to two years in prison: the court found her guilty of medical error resulting in the death of the patient. The court's verdict caused sharp criticism from doctors. After speeches in defense of Misyurina by the head doctors of the capital's hospitals and leading physicians, Moscow authorities in the person of Mayor Sergei Sobyanin and his deputy Leonid Pechatnikov, as well as a number of other federal politicians, also joined in criticizing the verdict. In April, the Moscow City Court overturned the verdict against Misyurina and returned the case to the prosecutor's office to eliminate procedural violations.

Each of us uses medical services - both paid and free.

For various reasons, we go to the clinic and trust our health and lives to doctors. In return, we expect to receive qualified, timely assistance and proper treatment.

Unfortunately, in reality, medical errors are inevitable. Their number is growing every year, as is the number of complaints from patients against doctors for illiterate or untimely medical care.

What to do and where to go if you were not provided with medical care or the doctor’s inattention led to a serious health problem?

What is medical error?

The law does not contain the concept of medical error. But the main guideline was given by Professor Davydovsky back in 1941.

Medical error is a bona fide mistake made by a doctor, which does not contain a crime and is based on imperfection current state medical science and research methods.

In this case, the misconception is based on the particular course of the disease in the patient or on the lack of experience and knowledge of the doctor, but without elements of negligence, negligence and professional ignorance.

Medical error is a mistake made by a medical professional that leads to adverse consequences for the patient, including death.

Medical error excludes dishonesty or dishonesty towards patients.

Classification and causes of medical errors

It is easy to see that the vagueness of the definition of medical error opens the way to permissiveness. Such an act is difficult to prove. Therefore, it is important to highlight its qualifying features.

These signs include:

tactical- improper organization of the treatment process;
technical- incorrect preparation of medical documentation;
diagnostic, treatment errors and errors in prevention. This is a conditional division, since diagnostic and therapeutic are closely related.

Also, special attention should be paid to the causes of medical errors. There are objective and subjective causes of medical error.

TO objective include:

shortcomings in the organization of healthcare, including advanced training of doctors;
objective diagnostic difficulties - short-term (up to 3 days) stay of the patient in the hospital, serious condition patient, difficulty of diagnosis.

TO subjective include:

personal characteristics of the doctor, his lack of sufficient experience and qualifications;
insufficient, poor or incorrect research and observation;
insufficient knowledge;
incorrect assessment of data or incorrect conclusions.

Often, it is the incompetence of the doctor that becomes the cause of a medical error.

Where to go if there is a medical error?

The consequences of medical errors can be dire, including the death of the patient. At the same time, it is extremely difficult to prove that the harm to health was caused precisely by the unprofessional actions of the doctor, but it is possible.

Use all possible options:

Contact the head physician of the medical institution

If you believe that you have received incorrect treatment, you should contact the head physician of the hospital with a statement. This needs to be done first.

Your application will be reviewed. Results will be notified within 30 days.

The medical institution can meet you halfway and offer options for solving the problem - additional treatment or compensation. This method is suitable if there is not much damage involved.

Contact your insurance company

The option is acceptable when it comes to large monetary compensation.

If you were treated under a compulsory medical insurance agreement, then you will need to collect a certain package of documents for your application:

a copy of a medical card or an extract from the medical history. They must be provided to you at the institution where you were treated;
statement - indicate where you were treated, for what period of time, what diagnosis was made, who the attending physician was, what procedures you underwent, what damage was caused.
documents confirming the amount of damage.

Not only the doctor, but also the medical institution in which he works is responsible for causing harm to the patient.

The received application is reviewed by the management of the medical institution within 10 days.

If the fact of a medical error is disputed, an independent medical examination is carried out. Based on its results, the amount of compensation for material damage is determined, which is issued by a special order from the head of the medical institution. It specifies the amount and timing of compensation. The money is transferred to your bank account.

Remember that you must be given a copy of the compensation order.

File a claim in court

You should go to court to recover compensation for property and moral damage caused to your health. Submit a statement of claim and attach the results of an independent medical examination.

As part of the legal process, in addition to compensation for damages, you can demand that the medical worker who committed the medical error be brought to disciplinary, administrative or criminal liability.

Compensation for material and moral damage is sought through the court.

If you have used the services of a private clinic, for example, dentistry, then before going to court you should file a claim. This is a mandatory rule.

Guided by the Law of the Russian Federation “On the Protection of Consumer Rights,” you have the right to demand compensation for poorly provided services. If the clinic refuses, feel free to file a lawsuit.

Before filing a claim in court against a private clinic, send a claim demanding compensation for material damage.

Based on Art. 1085 of the Civil Code of the Russian Federation, you also have the right to demand compensation for earnings lost due to loss of health.

To the prosecutor's office

This body should be contacted when it is necessary to initiate a criminal case against a doctor. For example, in case of irreversible harm to health or death due to negligence.

Criminal liability of a doctor for a mistake

A health worker may be held liable for a medical error:

disciplinary (reprimand, reprimand, dismissal, deprivation of bonus);
civil law (full compensation for damage through the court and compensation for moral damage);
criminal

A doctor can be held criminally liable for causing serious harm to health or the death of a patient.

What article of the Criminal Code of the Russian Federation is punishable for medical error?

The medical worker will be punished under Art. 118 of the Criminal Code of the Russian Federation for causing grievous harm to the health of a patient in the form of:

restrictions of freedom up to 4 years;
forced labor for up to 1 year;
imprisonment for up to 1 year.

An additional sanction is deprivation of the right to work in the medical field for up to 3 years.

For a medical error that results in serious harm to the patient’s health, the doctor can be sent to prison for a year.

If the actions of a health worker led to the death of a patient due to improper performance of his professional duties, then he will be judged under Art. 109 of the Criminal Code of the Russian Federation. The court has the right to order:

restriction of freedom for 3 years;
forced labor for up to 3 years;
imprisonment for 3 years.

Additionally, the doctor may be deprived of the right to practice medicine for 3 years.

For the death of a patient caused by negligence, the doctor faces prison term up to 3 years.

For contracting HIV infection, a medical worker faces punishment under Art. 122 of the Criminal Code of the Russian Federation in the form:

forced labor for up to 5 years;
imprisonment for 5 years.

The court also has the right to deprive a doctor of the opportunity to work in medical institutions for 3 years.

Remember that proving medical malpractice is problematic. And it is better to enlist the support of an experienced lawyer in advance in order to punish an unscrupulous health worker for unprofessionalism.