Types of liability of a doctor for committing a medical error. Accidents and medical errors in medical practice

The right of citizens to receive quality medical care is prescribed in the current legislation of the Russian Federation. Despite this, it is possible that an unforeseen situation may arise due to the prescription of incorrect treatment or an incorrect diagnosis. A medical error can lead to a deterioration in the patient’s well-being or death. In any case, it should entail punishment from the doctor. What it will be depends solely on the severity of the harm caused.

Medical error is a doctor’s misconception regarding diagnosis, prescription drug treatment resulting in harm to the patient's health.

At the legislative level, the concept of medical error is not fixed. There are also no separate articles providing for punishment for actions committed by a physician.

All cases are considered within the framework of general laws, i.e. Medical workers are judged under the same laws as other citizens.

Medical malpractice is often confused with negligence. However, these are two different concepts. The first involves unintentional harm to the patient’s health due to reasons largely independent of the physician’s capabilities. Negligence, to some extent, requires the physician’s awareness possible consequences of your actions.

The doctor’s error is unintentional, i.e. the harm caused to health was not planned by the medical worker in advance, it was the result of a negative combination of circumstances.

The causes of medical error are divided into subjective and objective. The severity of the punishment for the offense depends on them.

Subjective circumstances include circumstances that do not depend on the decisions and actions of the physician (sudden manifestations of allergies, lack of equipment necessary for diagnosis). As a rule, in such situations the physician’s guilt is not admitted.

Objective reasons are more significant.

These include:

The doctor does not have sufficient work experience;
Use of outdated treatment methods;
Insufficient qualification level

An accurate classification of medical errors is difficult, since in some cases they are individual in nature.

As a rule, they most often lead to:

Causing serious harm to health;
Unlawful termination of pregnancy;
Infection with AIDS through negligence

Medical errors also include selling medicines without a license, which led to a deterioration in the patient’s well-being.

Consequences of medical error

The consequences of a medical error can be varied, ranging from causing moral harm to death. The chosen punishment for the physician will directly depend on the severity of the consequences.

As a result of a medical error, the patient may suffer mild, moderate or severe harm, and death is also possible. Any case is considered individually. The most severely punishable offenses are severe harm and death.

The severity of the consequences is determined based on a forensic medical examination. The patient should contact the appropriate authority as soon as possible after causing harm. This will make it possible to record general state and determine the severity of the physician’s misconduct.

Liability for medical malpractice

There are three main types of liability for medical malpractice:

Disciplinary. The guilty person is punished by the management of the medical organization. It is possible to impose a fine, enter a reprimand into the work record book, or dismissal;
Civil law. Occurs in case of causing moral harm and mild harm;
. Involves conducting an investigation, filing a lawsuit. Used in case of death, moderate or severe harm

The victim or his official representatives (parents of the child, guardians) have the right to demand from a doctor or medical institution payment of compensation for moral or material damage caused. Its size depends on a number of factors. The final amount is determined in court.

The patient or his representatives may demand payment for subsequent treatment, sanatorium holidays, and rehabilitation.

The severity of the punishment will directly depend on the severity of the consequences of the medical error. Criminal cases can be opened under various articles, including: causing death by negligence, failure to provide assistance to a patient, causing grievous harm to the health of a patient.

Each of them provides its own punishment. As a rule, it consists of deprivation or restriction of freedom, maximum term for four years, as well as deprivation of the right to engage in medical activities for a certain period.

Professional help

Do you have any clarifying questions about the text of the article? Ask them in the comments!

Evidence of medical error and appeal to higher authorities

When faced with a medical error, victims (official representatives) in most cases do not know what to do in the current situation. The first thing you need to do is document the harm. As mentioned above, this can be done through a medical examination. In case of death, a pathologist's report will be required.

It is worth saying that when difficult situations, you should immediately contact the prosecutor's office or the police. Employees of these organizations will accept a statement from the injured party, help collect all the necessary evidence, conduct their own investigation and prepare the case for submission to court.

As evidence of medical error, it is possible to use the conclusion of a forensic medical examination, a copy of the victim’s medical card, testimony from the staff of a medical institution, prescriptions and instructions from the attending physician. It is worth saying that employees of a medical institution are required to provide a copy of the patient’s medical card; they cannot refuse from a legal point of view.

In the event that the injured party received minor harm, i.e. It is impossible to open a criminal case; you should contact the management of the medical institution directly with a complaint against the doctor. The administration has the right to punish its employee in accordance with internal rules.

You can download samples of complaints against a doctor on our website:

Subtleties of filing a claim in court

Medical malpractice litigation is considered the most complex. They conceal a lot of nuances in reaching a verdict.

As mentioned above, it is better for the injured party to contact the prosecutor’s office or the police. However, it is not excluded self-feed claim in court. For this purpose, it is recommended to hire a qualified lawyer who will help collect evidence and protect the interests of his client.

Note that in the event of a medical error, a lawsuit is filed against the guilty person, and not the medical institution. It is not responsible for the consequences of the actions of its employees.

The statement of claim is drawn up in a laconic and restrained style. It states:

Full name and legal address of the court;
Defendant's passport details;
Information about the plaintiff;
Subject of the trial;
List of evidence;
Date and signature of the applicant;
Number of document copies

The injured party has the right to demand not only criminal punishment of the defendant, but also payment of material compensation. Its amount must be equivalent to the damage caused. As for moral damages, any amount can be claimed, but the final determination of its amount is decided by the judge. The plaintiff may also request compensation for attorney fees.

The plaintiff is exempt from paying state fees. The application and evidence of medical error are submitted to the court secretariat in person or through ordered letter. After about a month, the judge schedules a preliminary hearing.

Jurisprudence regarding medical malpractice

Criminal punishment of medical workers for medical errors is quite rare. This is due to shortcomings and gaps in the current legislation. Statistics show that only every fifth case goes to trial.

Examplesmedical malpractice litigation:

A patient with signs of drug poisoning was admitted to the department of the Kaluga Emergency Hospital. The anesthesiologist on duty conducted an insufficient examination of the patient without prescribing proper treatment. The consequence was that the patient had breathing problems, which led to cardiac arrest and death. The doctor was sentenced to two years of probation under Article 109 of the Criminal Code of the Russian Federation “Causing death by negligence.”
Two employees of the infectious diseases department of Krasnodar were sentenced to imprisonment for a period of one year under Article 118 Part 2 of the Criminal Code of the Russian Federation “Causing grievous harm to health through negligence.” The reason for the punishment was the incorrect insertion of a catheter into a minor child, which led to arterial thrombosis and amputation of the arm.
The doctor on duty at the Ussuriysk City Hospital refused hospitalization to a patient with a severe traumatic brain injury. The court sentenced the doctor under Art. 124 Part 2 of the Criminal Code of the Russian Federation “Failure to provide assistance to a patient” to two years of imprisonment with residence in a colony settlement.

This article will discuss insurance issues, liability and punishment for medical errors. It is shown which article of the Criminal Code of the Russian Federation is provided for, i.e. What is the criminal liability for medical error?

Statistics and examples of medical errors are given. Recommended where to go and how to avoid medical errors. Examples are given from life during childbirth, dentistry, and surgery. How to prove a doctor's negligence.

Quite often, medical errors in Russia lead to serious and sometimes irreversible consequences. In judicial practice, the attitude towards such cases is ambiguous, and it is sometimes not possible to prove the fact of a medical error. The reasons, types and examples of doctors’ errors are very diverse, and unfortunately, the annual statistics of medical errors are not encouraging and each of us can face this problem.

As you know, “Forewarned is forearmed,” so we recommend that you carefully read this article in order to have an idea in what cases you can achieve the truth and hold doctors accountable for the medical errors they have made.

General information: causes, examples and types of medical errors

Medical or medical error constitutes non-malicious error medical worker(a doctor) in the process of carrying out his professional activities in the case where dishonest performance of his duties, as well as negligent attitude towards them, are excluded.

Every person has the right to medical care. This fact is enshrined in the Constitution Russian Federation(Part 1, Article 41 of the Constitution of the Russian Federation).

The most important principle of health care in our country is the quality and availability of medical care.

High-quality medical care can only be called if it meets the following requirements:

1) Timely delivery.

2) The correct choice of preventive methods.

3) Correct choice of diagnosis, treatment and rehabilitation.

4) Achieving the result that was planned.
The above requirements are reflected in paragraph 21 of Article 2 of the Law “On the Fundamentals of the Protection of Citizens”.

Nevertheless, quite often we have to deal with medical errors that arise due to various circumstances. The consequence of such medical errors is harm to the health and life of citizens.

Medical or medical errors can be encountered both at the stage of diagnosis and during treatment or even surgery.

Most common reasons medical errors are as follows:

1) Uncoordinated actions of doctors. Especially if the patient is being treated by several doctors.

2) Improper handling of medical equipment.

3) Disregard for established sanitary standards.

4) Inattentive prescription of medications. For example, if they were prescribed in the wrong dosage or do not correspond to the diagnosis.

Criminal liability for medical error, article of doctor's fault

The Criminal Code of the Russian Federation does not provide for a special crime in relation to medical error. Actions, as well as inaction of a doctor, as a result of which he may be brought to criminal liability are described in the Special Part of the Criminal Code of the Russian Federation.

Note: A medical malpractice lawyer can advise you. The form for contacting him is given at the end of the article.

In this case, the following conditions must be met:

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

At first glance, it may seem that bringing a doctor to criminal liability in the presence of the conditions described above is not difficult. But in reality, everything is not so simple. It is often quite difficult, and sometimes simply impossible, to prove that illegal actions or inaction of a doctor took place.

Unlawful actions are those that violate the norms established by law regulating medical activities. Violations of customs and rules of medical practice in the process of carrying out a set of therapeutic, diagnostic and preventive measures are also considered illegal in the field of medicine. Moreover, they can exist not only in written form, but also in unwritten traditions of medical practice.

It is worth noting that the treatment process for each individual patient differs from all previous ones, even with a single diagnosis. In other words, the methodology for carrying out procedures (diagnostic and therapeutic), the treatment regimen and prescription of drugs, as well as monitoring the patient’s health status may be different in each individual case.

Simply put, if three patients are given the same diagnosis, but the first one has allergic reaction for some medications, the second has concomitant diseases, and the third is in old age, then individual treatment will be prescribed for each of them, taking into account all associated factors.

As a result of the situations described above, it is often not possible to objectively assess the illegality of a doctor’s actions in relation to a specific patient. The thing is that there are different approaches to treating the same disease.

It is also not easy to prove that the patient was harmed as a result of the doctor’s negligent behavior. This is explained by the fact that what is subject to punishment is not the fact that the doctor did not cure the patient, but the fact that in the process of treatment he significantly deviated from generally accepted norms, which led to a deterioration in the patient’s condition.

In case of a medical (medical) error, the doctor’s fault can exist solely in the form of negligence (negligence or frivolity).

A medical professional’s mistake in the form of frivolity occurs when he foresaw the possibility of undesirable consequences, but unreasonably expected that he had the power and competence to prevent them. In other words, he understood that his actions or inaction could harm the patient, but he thought that he could cope with the situation that arose, and in the end he did not have enough experience and knowledge.

Malpractice in the form of negligence occurs when a physician does not foresee the possibility of undesirable consequences as a result of his actions or inactions. Although if he had been more attentive and prudent to this situation, then such consequences could have been avoided.

Essentially, negligence is a significant discrepancy with generally accepted norms of action by medical workers with identical and similar education and experience, which led to harm to the health of the patient.

We also note that criminal liability in the event of a medical error is provided only in cases where the patient’s health has been seriously harmed. If the patient received medical care of inadequate quality and as a result his health suffered minor harm (mild and moderate severity), then the guilty doctor will not be held criminally liable. The severity of the harm is determined during the investigation based on the results of a forensic medical examination.

This mandatory conditions conducting an investigation. After all, it is in the process of conducting a forensic medical examination of medical errors that it will be determined to what extent the nature of the treatment in relation to the patient complied with the standards. For example, if a doctor made a mistake during a surgical procedure, then the court will hear the opinion of an independent expert doctor regarding how and under what conditions this operation was performed.

Thus, resolving disputes regarding the medical cases described above is often quite difficult. This can be explained by the fact that each individual case is unique in its content, and it is not possible to reflect all standards at the legislative level.

As mentioned above, the Criminal Code of the Russian Federation does not provide for a separate crime for committing a medical error. If, as a result of unlawful actions or inaction of medical personnel, severe harm to the patient’s health was caused or there was a death, then criminal liability arises for certain elements of the crime that are provided for in the Special Part of the Criminal Code of Russia. The conditions under which this is possible were described above.

According to Part 2 of Article 109 of the Criminal Code of the Russian Federation, a medical error that led to the death of a patient can be punishable by imprisonment for up to three 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, then this doctor may be held criminally liable in the form of imprisonment for up to one 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 punishment:

1) Illegal abortion as a result of which the death of the patient occurred or serious harm was caused to her health. (Part 3 of Article 123 of the Criminal Code of the Russian Federation).

2) Infection of a patient with HIV infection as a result of improper performance of professional medical duties. (Part 4 of Article 122 of the Criminal Code of the Russian Federation). A sentence of up to 5 years in prison is provided.

3) Engagement in private pharmaceutical activities or medical practice without a license for these types of activities in the case 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, then the perpetrators will be punished in accordance with Part 2 of Article 235 of the Criminal Code of the Russian Federation.

4) Not helping the patient(Article 124 of the Criminal Code of the Russian Federation). IN in this case It is enough, as a result of negligence, to cause moderate harm to the patient’s health. If, as a result of the doctor’s negligence, serious harm was caused to the patient’s health or even death occurs, then the doctor’s act will be considered a qualified one (Part 2 of Article 124 of the Criminal Code of the Russian Federation).

5) Negligence. It represents improper performance or complete failure to perform his duties by an official as a result of a careless and dishonest attitude towards his work. If the doctor’s negligence led to serious harm to health or death of the patient as a result of negligence, then it will be qualified in accordance with Part 2 of Article 293 of the Criminal Code of the Russian Federation.

Let us note that after a criminal case has been initiated and before the judicial investigation, the victim has the right to file a civil claim and demand compensation for property damage that was caused by the crime, as well as compensation for moral damage. These rights are noted in Article 44 of the Criminal Procedure Code of the Russian Federation.

If the patient does not exercise this right, then after the verdict against the doctor is passed, claims for compensation for harm and compensation for moral damage can be filed in civil proceedings. According to Part 2 of Article 306 of the Code of Criminal Procedure of the Russian Federation, if the doctor’s guilt is not recognized, the court will refuse to satisfy the civil claim.

Medical risk

According to Article 41 of the Criminal Code of the Russian Federation, justified medical risk can exclude criminal liability.

But in order for this risk to be recognized as legitimate, the following conditions must be met:

1) Medical risk should be aimed at preserving the health and life of the patient.

2) The goal specified in the previous paragraph cannot be achieved by other means that do not involve risk. If there is alternative method treatment that is less risky or is not associated with risk at all, then the doctor should give preference to it.

3) The doctor is obliged to take measures sufficient from a professional point of view in order to prevent possible harm as much as possible.

If harm to the patient’s health was caused within the conditions described above, then no crime will be found in the doctor’s actions. If these conditions were not met and, as a result, the health and life of the patient was harmed, then if the doctor is guilty, it will be possible to prosecute him criminally.

Nobody keeps official statistics on medical errors. According to estimates by public organizations, medical errors claim the lives of 50 thousand people every year. According to the Center for Independent Medical and Legal Expertise, dentists take first place in professional errors. The death or injury of a woman in labor or a newborn in a maternity hospital is in second place. Third place is occupied by surgeons of all specialties.

So we've covered some very important questions.

Medical malpractice in Russia. Judicial practice, types, classification, definition, concept, consequences and causes of medical error

In medical practice, there are often situations where, due to errors by medical workers, patients suffer serious injuries or even die. Most often, doctors describe such situations as an unintentional act. However, if it is determined that the cause of the tragedy was medical negligence or the carelessness of the physician, the mistake quickly turns into a criminal offense for which the doctor will be punished.

Features and classification of medical errors

The legislator has not yet given a clear definition of the concept of medical error. You can catch a glimpse of it in the “Fundamentals of the legislation of the Russian Federation on health protection” and the Federal Law “On compulsory insurance patients when providing medical care." At the same time, criminal legislation does not contain any norms devoted to this concept.

Therefore, the formulation of the definition can be very diverse. The most common interpretations of the concept of medical error according to the classification are:

the inability of a health worker to use theoretical knowledge in the field of medicine in practice and leaving the patient without qualified assistance as a result of the inaction of the attending physician;
misdiagnosis of the patient and incorrectly prescribed medical procedures due to the doctor’s misconception;
medical error in the performance of one’s professional duties as a result of a mistake that does not have any basis in a crime;
the result of the professional activity of a doctor who, due to some neglect, made a mistake in his professional field, but it is in no way related to inactivity or negligence.

Whatever interpretation the user chooses, the result will still be the same. Depending on the damage received, the patient can write a complaint against the doctor or go to court.

Due to an error, the patient’s health is exposed to unprecedented danger and can lead to death.

Medical error essentially refers to generic concepts, and therefore it is classified into the following crimes:

Article 109 of the Criminal Code of the Russian Federation – causing death by negligence;
Article 118 of the Criminal Code of the Russian Federation – causing harm to health of increased severity through negligence;
Article 124 of the Criminal Code of the Russian Federation – inaction of medical staff and failure to provide timely assistance.

In countries Western Europe and the USA have regulations in the medical industry, and any mistake entails a violation of the approved rules. Consequently, the offender will be held accountable for his offense. Similar in Russia arbitrage practice does not apply, and therefore it can be incredibly difficult to prove that a doctor made an error due to negligence or other reasons. However, if it is established that the doctor had all the necessary knowledge and resources to provide timely assistance, but did not do this due to certain circumstances, then the negligence of the doctors will be recognized, for which he will be held liable.

In any situation, the law will first of all take the side of the victim, since medical error is considered a criminal violation. However, she has very a large number features, including:

Most often, the error occurs due to accidents and does not imply any bad intentions on the part of the medical staff. This alone makes it possible to commute the sentence of the attending physician if it is not established that his actions (inaction) are malicious.
The objective basis for the occurrence of an error may consist of a number of factors, including inattention, lack of experience and qualifications, and negligence. All of them can serve as a reason for mitigating the punishment.
Subjective reasons for doctors’ mistakes include ignoring approved rules, neglecting medications and negligence when conducting any examinations. Such reasons may lead to increased liability in legal proceedings.

In order to determine at what stage of working with the patient errors were made, they are usually classified into the following types:

diagnostic, which occurs most often; at the stage of examining the patient, the doctor does not take into account the specifics of the human body and makes an incorrect diagnosis;
organizational related to shortages material support medical institution, as well as insufficient level of medical care;
treatment and tactical errors, this type arises on the basis of an erroneous diagnosis, and the medical measures taken may lead to a deterioration in the person’s health;
deontological, associated with the unsatisfactory psychophysical state of the doctor, and his incorrect line of behavior with patients, their relatives and other medical staff;
technical, they are associated with incorrect preparation of the patient’s medical record or extract;
pharmaceuticals, which appear due to the fact that a specialist incorrectly determines indications and contraindications, and also does not pay attention to the compatibility of different groups of medications.

If you want to delve even further into this topic and learn about what medical confidentiality is, then read about it.

Causes of medical errors

Medical error occurs in situations where a certain action or inaction of a health care professional caused a deterioration in the patient’s condition or death. If it is determined that the error is directly related to negligence job descriptions or negligence, the doctor will be punished.

The reasons that lead to the occurrence of medical errors can be subjective and objective. The most striking example of an objective cause is the atypical behavior of the disease and its impact on human health. Thus, if a new strain of the virus has appeared that has not yet been sufficiently studied, and damage is caused as a result of treatment, the doctor will not be held liable, since the error here will be due to a lack of intent.

As for the subjective reason, the situation here will be somewhat different. Thus, an error may occur due to the doctor’s lack of experience, incorrect filling out of medical documentation, or inappropriate behavior.

Criminal liability will be established in accordance with the current legislative framework.

Characteristics of the crime

Since there is in principle no separate standard for doctors who have made a mistake in the professional sphere, then a priori negligent actions of medical staff are considered as neglect job responsibilities, which are designed to regulate professional activities.

Acting as an official, a doctor can commit a crime in situations where the patient has died or his health condition has deteriorated sharply. In view of this, the crime will consist of various factors:

Objectivity. It is expressed in the presence of certain duties and instructions that the doctor neglected due to negligence, inattention to detail or underestimation of the seriousness of the disease. However, if the disease exhibits atypical characteristics, then the cause-and-effect relationship will be uncertain, and the medical staff will be exempt from punishment.
Subjectivity, expressed by the presence of a medical employee whose actions led to the appearance negative consequences for the patient's health, or death.
Damage, which consists in recording an event (deterioration in health or death) that is directly dependent on the prescribed treatment procedures and the chosen treatment method.

If all three factors are present, then the doctor’s crime will be classified under Article 293 of the Criminal Code of the Russian Federation, and medical negligence will be established certain type punishments. Qualified medical malpractice attorneys can help you achieve justice.

Liability for medical malpractice

Liability for medical malpractice can be of three types:

Disciplinary. In this situation, the error was identified by an internal investigation and a thorough analysis of the doctor’s actions. If the harm caused is minor, the violator will be fined, sent for retraining, deprived of positions or transferred to another place of work. also in work book the doctor will be reprimanded.
Civil law. If the doctor's actions cause harm to the patient, he may request monetary compensation, including compensation for damages, the cost of all additional medications and care, and moral compensation.
Criminal proceedings ordered in situations where the user received poor-quality medical services that resulted in serious harm to health or death. In situations where the damage is minor, it will be impossible to initiate criminal prosecution of the doctor. In addition, there will be a deprivation of the right to engage in medical practice in the foreseeable future for a certain period.

As an example of criminal proceedings on this topic, the following situations can be mentioned:

an illegal abortion was carried out, due to which the woman received serious injuries or died, the offender will be punished under Part 3 of Article 123 of the Criminal Code of the Russian Federation;
due to the doctor’s neglect, the patient was infected with HIV, in this situation the doctor will serve his sentence in prison for 5 years in accordance with the provisions of Part 4 of Article 122 of the Criminal Code of the Russian Federation;
illegal medical and pharmaceutical assistance will be punished under Part 1 of Article 235 of the Criminal Code of the Russian Federation, if we're talking about fatal outcome, the case will be classified under Part 2 of Art. 235 of the Criminal Code of the Russian Federation, but it will be complex, and a good lawyer will be required;
failure to provide assistance resulting in moderate or mild harm will be considered under Art. 124 of the Criminal Code of the Russian Federation, if the injuries are more serious, the medical worker will go under Part 2 of Article 124 of the Criminal Code of the Russian Federation;
If a case of medical negligence and neglect of current standards is established, the person responsible will be convicted in accordance with Part 2 of Article 293 of the Criminal Code of the Russian Federation.

Please note that the injured party has the right to full compensation.

If criminal proceedings are initiated, the victim also has the right to file a lawsuit to receive compensation for the damage caused. This is stated in Art. 44 of the Code of Criminal Procedure of the Russian Federation, the legislator does not establish clear dimensions monetary compensation, therefore the user will have to assess the level of damage in monetary terms independently.

It is worth saying that the amount of compensation will consist of material and moral damage. In the first case, this will include all costs for expensive treatment and the purchase of medications, as well as payment for additional care services. If the user is unable to work, this will also be taken into account. As for moral damages, the victim can request any amount, provided that its size is not greatly exaggerated.

Where to go and how to prove medical error

The law always protects the interests of the patient, so you should not be afraid to defend your point of view. In cases where there is a medical error that costs the victim his health or life, users will have to contact the following officials and authorities:

Administration of a medical institution. The management of the clinic will need to clarify the problem in detail and provide evidence. After an official investigation, if guilt is proven, the health worker will be subject to disciplinary action.
Insurance Company. If you have insurance, the victim or his representative will have to visit the insurers and explain the situation to them, and an examination will be initiated, which will show whether the medical staff is really to blame for the current situation. If the applicant's version is confirmed, fines will be imposed on the doctor and the clinic.
Courts. A claim must be sent here, which will carefully describe the situation and the applicant’s requirements. In addition, the user will have to take care of collecting evidence. Based on the claim, legal proceedings will be opened, and if everything is confirmed, the plaintiff will receive compensation.
Prosecutor's office. This is where you need to contact if the user intends to initiate a criminal case. Please note that the proceedings will be long and will entail serious consequences for the offender.

Many have heard or even encountered cases where, in the process of providing medical care (or its failure to provide it), the patient’s health was harmed. The last big story happened in Krasnodar region. Two-month-old Sofya Kulivets was taken to the children's infectious diseases hospital under New Year with a diagnosis of whooping cough. The girl was unsuccessfully placed with a catheter; a blood clot formed in the vessel. The operation was not performed; conservative treatment was prescribed. Two days later, the parents were informed that Sophia had to have her arm amputated.

In relation to this and some other cases, it is often said that the patient suffered due to a “medical error.” But, as a rule, this term is used incorrectly. The fact is that the definition of “error” includes only those actions of a doctor associated with causing harm in which there is no sign of guilt. That is, by calling this or that action a “medical error,” we seem to be admitting in advance that the doctor is not to blame for the deterioration of the patient’s health. Meanwhile, it is the presence or absence of guilt that largely determines whether a doctor can be held accountable.

“Medical errors are incorrect actions or inaction of a doctor in the performance of his professional duties, which are not a consequence of his dishonesty and do not contain elements of a crime or signs of misconduct,” says Anna Egorova, associate professor of the department of civil law and procedure at Moscow University of the Ministry of Internal Affairs of Russia. “... In Unlike a misdemeanor or a medical crime, a medical error cannot be foreseen and prevented; it is not a consequence of the doctor’s negligence in his duties, his ignorance or malicious action. Therefore, a doctor cannot be punished for medical errors, regardless of their consequences. disciplinary or criminal proceedings."

In general, the legal term “medical error,” as explained by the director of the Omsk Center for Medical Law, Alexey Panov, does not exist. According to him, lawyers use the concept of “inadequate medical care.”

For improper provision of medical care, a private practitioner or medical institution can be held civilly liable, that is, compensation can be demanded. According to Dr. med. sciences, prof. Department of Fundamentals of Legislation in Health Care MMA named after. I.M. Sechenov Oksana Aleksandrova, “for the onset of civil liability, four conditions are necessary: harm, illegality of behavior, cause-and-effect relationship and guilt.”

Alexandrova emphasizes that “illegality” can be associated with a violation of both written regulations and unwritten traditions of medical practice. “If a doctor violates either a normative act or the traditions of medical treatment, then this is already illegal behavior, that is, improper performance of professional duties,” says Alexandrova.

Experts note that resolving the issue of illegality of behavior in medical activities is important for the onset of criminal liability, but for the onset of civil liability it is not of paramount importance, since the determining factor in assessing the actions of a medical worker is the presumption of wrongfulness (illegality) of behavior adopted in civil law, causing harm. In other words, any harm in civil law should be considered unlawful unless the contrary is proven.

However, it will still be necessary to prove the existence of a cause-and-effect relationship between the actions of the doctor and the harm caused to the patient: according to the law, if a person did not cause harm through his behavior (even illegal) or the harm caused is not a consequence of this act, the person’s liability is excluded. This, according to Panov, is the most difficult thing in trial for medical affairs. “It is very difficult to prove the existence of a cause-and-effect relationship between the inappropriate actions of a doctor and the harm caused by these actions, since the evidence is the conclusion of a forensic medical examination, which is carried out by institutions subordinate to health authorities,” explains the director of the Center for Medical Law. .

Another complex issue concerns the guilt of a medical worker whose actions caused harm to the patient. It is on this basis that doctors distinguish between “medical error” and “defect in medical care.” According to Oksana Alexandrova, a medical error is an innocent infliction of harm, and a defect in medical care is a culpable one. The latter concept in this case is identical to what lawyers call “inadequate medical care.” “Responsibility can only be borne for culpable harm,” explains Professor Moscow medical academy named after I.M. Sechenov.

Guilt can manifest itself in two forms: intent or negligence. Let us note that it was for “causing grievous bodily harm through negligence” (Part 2 of Article 118 of the Criminal Code of the Russian Federation) that the prosecutor’s office of the Prikubansky District of Krasnodar opened a criminal case for the amputation of the arm of a two-month-old girl.

According to Oksana Aleksandrova, a doctor cannot be held responsible for innocent causing of harm, since his activities in any case are connected with causing harm: be it a violation of the skin during an injection or operation, by-effect from taking pills or something else. “In our profession, harm is inevitable,” the doctor summarizes. “But this is harm caused by lawful activities in order to prevent even greater harm.”

Only a court can determine a doctor's guilt. This takes into account the “doctor’s internal attitude towards his actions,” that is, whether he was properly attentive and careful, says the MMA professor. “For example, in the 19th century, a doctor could, after listening to a patient with a phonendoscope, diagnose a patient with lung cancer as “pneumonia.” But he did not have an X-ray, he did everything he could, but did not cure the patient. This is a medical error. Today, if a doctor does not take an x-ray and makes an erroneous diagnosis - this is already a defect in medical care, that is, culpable harm,” she explains.

Olga Sukhova,www.rian.ru

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Medical error: where to go

The primary measure in the event of a medical error is pre-trial compensation for the harm caused. In this case, you should contact a medical institution where the doctor who committed non-malicious harm works. This can be done through an official written request, which is addressed to the chief physician of the institution. The appeal should indicate your arguments confirming the fact of non-malicious harm, and the desired form of compensation for harm. If it was not possible to resolve the consequences of the harm in a pre-trial manner, then the next resort will be a lawsuit.

How to prove medical malpractice

A wider range of compensation can be claimed in court proceedings – moral injury, costs of purchasing drugs and conducting research. If a relative dies from doctor's harm, you can request compensation for all funeral costs loved one. However, remember that all compensation that you claim in court must be supported by receipts confirming your expenses. The only exception is moral damage.

The defendant in a doctor's error lawsuit will be the medical organization. To file a claim, you must go to the court at the place of residence of the person who was harmed. As a rule, when considering such disputes, it will be necessary to conduct an examination, for example, an examination of the quality of the medical care provided. help. In this regard, when filing a claim, you should immediately submit a list of issues that can be resolved through a forensic examination.

Medical error in articles of the Criminal Code of the Russian Federation

What articles of the Criminal Code of the Russian Federation stipulate punishment for non-malicious harm? Bringing a negligent doctor to criminal liability for medical error under article of the Criminal Code of the Russian Federation no longer uncommon today. The current version of the Criminal Code provides many grounds for bringing a doctor to justice. An example of this could be part 2 of Art. 109 of the Criminal Code of the Russian Federation, which establishes liability for causing death by a doctor through negligence. Art. 118 “Causing grievous or moderate harm to health through negligence”, Art. 124 “Failure to provide assistance to a patient.”

There are also more narrowly focused articles of the Criminal Code:

, part 4 “Infection with HIV”;
“Illegal termination of pregnancy”;
“Failure to provide medical care”;
"Leaving a patient in danger."

All these articles provide for liability for a doctor who has committed a miscarriage of justice, up to a real prison term. To bring criminal liability for medical harm, you must contact law enforcement agencies - the police. During the consideration of your application, investigators will check whether non-malicious harm was caused and, if necessary, join the court proceedings. In this regard, the most effective would be to combine appeals to the court and the police.