Every pharmacist and pharmacist working in a pharmacy has to deal with material assets. These include medicines, medical supplies, equipment, and, of course, funds. And responsibility for their safety falls on pharmaceutical specialists. Our new article is about how this aspect of the activities of pharmacists is regulated in the legislation of the Russian Federation, and how it is implemented in real practice.
Documents to be signed!
Financial liability refers to the obligation of employees to compensate for damage caused to individuals and legal entities. The Labor Code of the Russian Federation provides for three types of financial liability:
- Limited individual (Articles 238, 241 of the Labor Code of the Russian Federation) - occurs in cases where the employer has not concluded an agreement on financial liability with the employee. If you did not sign this document when you were hired, you will be compensated for material damage within the limits of your average monthly salary, even if the damage exceeds the latter. According to Art. 248 of the Labor Code of the Russian Federation, for this the employer simply needs to issue a written order.
- Full individual (Articles 242, 243 of the Labor Code of the Russian Federation) - consists of the employee’s obligation to compensate for damage in full on the basis of an agreement on full financial liability with each employee.
- Full collective (Article 245 of the Labor Code of the Russian Federation) - is based on the conclusion of an agreement on collective material liability, which determines the responsibility of a group of persons (usually the pharmacy team, shift) for material assets. The procedure for compensation for damage with full collective or individual liability depends on the amount of damage and the collection period.
Recovery of damages must occur within a month after establishing the fact of damage , in accordance with what type of liability agreement was concluded with the employee (or not). It is important: if the amount of damage is more than a month’s salary or the collection period has expired, recover damages in accordance with Part 2 of Art. 248 of the Labor Code of the Russian Federation, it is possible only in court, and this should happen within no more than a year from the date of discovery of the damage (in accordance with Article 392 of the Labor Code of the Russian Federation).
A liability agreement is usually signed when a pharmaceutical specialist is hired. A pharmacy employee does not have the right to refuse to conclude this document, since his activities are directly related to working with material assets.
As practice shows, pharmacies most often conclude collective agreements that determine the collective responsibility of employees, for example, of one retail outlet, for the material assets stored in it. On the one hand, it is clear and transparent. But this is in theory. The practical side is not so clear. We selected several “classic” situations in pharmacies and tried to figure out who is to blame for them and what to do in such cases.
1. Shortage based on inventory results
A typical case: during an inventory count, a shortage of inventory items is discovered. Obviously, this is the area of responsibility of pharmaceutical specialists (with collective responsibility of the entire pharmacy team). However, the employer can demand compensation for damage only if a number of conditions are fully met:
- Carrying out re-registration in accordance with the Procedure for conducting inventory, established by order of the Ministry of Finance of the Russian Federation No. 49 dated June 13, 1995.
- Registration of the re-registration results with a certificate indicating the amount of damage.
- Conducting an official investigation confirming the guilt of a specific person or the entire team for the damage caused (Article 233 of the Labor Code of the Russian Federation). As a rule, a commission is created for this purpose, which analyzes the inventory report and other documents. During the investigation, the employee(s) must explain in writing why they attribute the shortage. These explanations, according to Art. 193 of the Labor Code of the Russian Federation, must be given within two working days after the relevant notification is delivered to the employee. An internal investigation is formalized by an inspection report, on the basis of which the employer has the right to hold employees accountable. The employee(s) familiarize themselves with this document against signature.
- Issuing an order to hold an employee (employees) financially liable. According to Art. 248 of the Labor Code of the Russian Federation, the order must be issued no later than 1 month from the date the amount of damage is established. The employee(s) familiarize themselves with the order against signature.
2. Theft of material assets during a work shift
Only financially responsible persons should have access to the cash register or the room in which the proceeds are stored. But in practice, cases of third parties entering the “holy of holies” and stealing proceeds almost “in front of” pharmacy workers cannot be ruled out. Alas, often the thief either remains unknown - the pharmaceutical specialist does not even record the moment of the theft - or immediately after committing the crime he disappears from the sight of pharmacists/pharmacists and police officers.
In such cases, a criminal case may be initiated under Part 1 of Art. 158 of the Criminal Code of the Russian Federation, however, the likelihood of its successful disclosure is low, and even less likely to return material assets. But the guilt of the pharmacy employee who allowed third parties access to material assets is obvious, because his job responsibilities include maintaining cash discipline and ensuring proper storage of funds. Thus, even if an agreement on collective financial liability is concluded, there is the fault of a specific employee (or several employees of the same shift who committed negligence), who must compensate for the damage. There are no grounds for all members of the team to make claims for damages.
However, there are exceptions to the rules when financial liability in connection with theft is not assigned at all. So, according to part 4 of Art. 130 of the Labor Code, liability for material assets is removed if the damage was caused in a state of emergency. This definition includes situations that threaten public and state order, property, rights and freedoms of citizens. For example, if a pharmacy employee was forced to provide third parties with access to valuables under threat to life and health, financial liability, of course, does not arise.
3. Theft on the sales floor, for example, from open access display cases.
Open access display cases, on the one hand, provide an opportunity for sales growth, and on the other hand, they significantly increase the likelihood of theft on the sales floor. Even with a security guard vigilantly monitoring the situation, goods sometimes disappear from display cases. But in some networks there is no security guard at all, and his responsibilities are essentially shared among the chief captains! Is it possible to hold them responsible for thefts on the trading floor in such cases?
Fortunately, no, because this case falls under Art. 239 of the Labor Code of the Russian Federation, which provides for the obligation of a business entity to provide appropriate conditions for storing material assets. The possibility of direct access to medicines and medical supplies to third parties is direct evidence of non-compliance with the labor code in this regard, and, therefore, the removal of responsibility from the employee, that is, the pharmacy employee.
4. Increased liability in case of shortage of narcotic substances.
Narcotic and psychotropic substances are subject to strict registration. And yet, we cannot exclude a situation where there are shortages of drugs in the safe for storing them. In this case, standard damages are not enough.
Firstly, an employee (if it is possible to identify a specific specialist who is responsible, for example, a shortage at the end of a work shift) or a team with collective responsibility must give a written explanation of why and how the emergency occurred.
Secondly, according to paragraph 6 of Art. 59 No. 2-FZ “On Narcotic Drugs and Psychotropic Substances”, damages for shortages of drugs of this group must be compensated in 100 times the actual amount.
We have not examined all the cases in which financially responsible pharmacy employees may be held liable for damages. Of course, in practice, rarer, non-standard situations may arise. All of them are considered based on whether an agreement on liability has been concluded, and if so, which one - individual or collective. And based on this data, on the basis of the Labor Code of the Russian Federation, and sometimes additional legal advice, a decision is made on compensation for damage.
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Interested in the article? You can find out even more in the section Working in a pharmacy
Administrative responsibility of medical workers
Why are doctors hired?
Health workers are subject to administrative punishment for violations of administrative regulations, that is, the rules for the implementation of medical activities, the rules for the provision of medical services. Responsibility will follow only after the illegality of the actions of the guilty person is proven. Unlike criminal liability, an administrative offense does not always lead to adverse consequences, including harm. However, if a doctor or medical organization violated administrative regulations, although it was possible not to violate them, then even though no adverse consequences occurred, they may still be held administratively liable.
Both individuals and legal entities can be held administratively liable - a doctor, a chief physician, his deputy, medical organizations, and individual entrepreneurs who provide medical services can be subjects of administrative liability. At the same time, the legislation allows for one fact of administrative offense to simultaneously bring to administrative responsibility both an individual and a medical organization, and the imposition of an administrative penalty on a legal entity does not relieve the guilty individual from administrative liability.
To understand what kind of offenses the responsibility of medical workers in institutions arises for, you need to look at the Code of Administrative Offenses of the Russian Federation. For medical workers, the most significant is Chapter 6, which lists cases of administrative liability associated with violations of the protection of life and health of citizens. Let us consider those that are most closely related to medical activities in more detail.
Illegal practice of traditional medicine
. The concept of “traditional medicine” should not be misleading. We are talking about any medical activity that is carried out without a license. Medical activities are subject to mandatory licensing - it is necessary to obtain a special permit for its conduct from the authorized government body. If activities are carried out without such permission, this constitutes an administrative offense.
Violation of established rules in the field of circulation of medical devices.
It is important to understand that medical devices are not only hardware, but also software and electronic devices that are used to diagnose, detect and treat diseases.
All medical devices must comply with the rules that are established on the territory of the Russian Federation and relate to the production, operation, installation, and maintenance of medical devices. All medical products are subject to mandatory state registration,
control of their storage and movement, and warehousing.
Violations of legislation in the field of ensuring sanitary and epidemiological welfare of the population.
Medical activity is very closely related to compliance with sanitary and epidemiological standards, and these violations are among the most common in the healthcare sector. In April 2020, a new clause was added to the article, which toughens penalties for violations of sanitary and epidemiological standards during quarantines, epidemics and emergencies. Therefore, responsible persons should pay increased attention to compliance with these standards and take into account that these standards apply to the maintenance of premises where medical activities are carried out, and special clothing of persons who provide medical care, and drugs, tools, equipment, and so on.
Failure to comply with obligations to provide information about conflicts of interest.
What we are talking about here is that, in accordance with Federal Law No. 323 “On the fundamentals of protecting the health of citizens of the Russian Federation,” a medical worker, if he has a material interest in prescribing a patient a particular medicine, a particular method of treatment, is obliged to report this to his immediate supervisor, and the head of the medical institution to the authorized government body in order to create a special commission to ensure that actions are taken to resolve this conflict of interest. The subjects of this administrative offense can be not only officials of medical institutions, but also ordinary doctors.
Circulation of falsified, counterfeit, substandard and unregistered medicinal products.
This includes cases of use of medicines that do not have appropriate registration, are falsified or have not passed the necessary recognition by authorized government bodies.
Of course, offenses that may entail administrative liability for medical workers are indicated not only in Chapter 6 of the Code of Administrative Offences, they are also contained in other chapters. For example, about the implementation of medical activities in gross violation of the requirements established and prescribed by a special permit - license
. Those. Serious sanctions threaten those medical organizations or individual entrepreneurs who have received a license to provide relevant medical services, but act contrary to its requirements.
How to behave if a case of an administrative offense is initiated.
Initiating a case of an administrative offense in most cases begins with drawing up a protocol. The person in respect of whom the protocol will be drawn up must be invited to participate in the preparation of the protocol
. The invitation is issued by summons or notice.
Having received a summons and notification of drawing up a protocol on an administrative violation, you must appear for its drawing up. The idea that you don’t have to come is wrong,
otherwise, the protocol will be drawn up without your participation, and if the case is considered in court, by default it will be recognized that by not appearing for its preparation, you will plead guilty to an administrative offense.
From the moment you receive a summons or notification of a summons, you should seek the services of a lawyer to draw up a protocol on an administrative offense
. The procedure for drawing up a protocol on an administrative offense has many nuances. Often violations are committed already at the stage of drawing up the protocol. How the case will develop further depends on what is written in the protocol, whether the person will be held accountable for administrative offenses or the case will be dismissed for lack of evidence or for the absence of an administrative offense event. In the presence of a lawyer, the person in respect of whom the protocol is being drawn up can be sure that all violations committed during the preparation of the protocol will be identified, recorded and suppressed.
If you were unable to attract a lawyer at the stage of drawing up the protocol, then remember that even before starting to draw up the protocol on an administrative offense, the person drawing up the protocol is obliged to explain to you your rights,
provided for by the Code of Administrative Offences. All rights must be clear and understandable to you. If you have questions, they need to be asked. Separately, you are required to explain the right provided for in Article 51 of the Constitution of the Russian Federation, which states that “no one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law.”
You must read the protocol carefully; you cannot sign without reading it.
it may contain points with which you disagree or partially agree.
Very often, a protocol on an administrative offense is prepared in advance and even printed, and when you come to draw it up, you are offered a ready-made document for review. Read very carefully, try to understand for yourself every term, every wording, every numerical value that is indicated in the protocol. It will be more difficult for a lawyer to build a defense if the document states that there are no objections or comments to the protocol on your part. When drawing up the protocol, do not rush in any way and read all its points before signing.
You have the right to write objections to the protocol
. You can point out those points with which you disagree, indicate what in the protocol is not true, contradicts your position or opinion on the situation under consideration. Typically, little space is allocated on the objection form and may not be sufficient to fully state the objections. In this situation, it is necessary to ask for an additional sheet of paper or take several blank sheets of paper with you in advance and set out in detail all the objections to the protocol on the administrative offense. If you come to draw up a protocol with a lawyer, he will help you formulate objections to the protocol and describe your position in a legally competent manner, implying that this document will then go to court and be given a proper assessment.
Next, you need to ask the person drawing up the protocol to attach objections to the materials of the proceedings regarding the administrative offense. A court or administrative body, when considering a case of an administrative offense, will definitely study your objections, noting that you objected at the stage of drawing up the protocol - this is an additional reason to take your arguments into account when making a decision.
In court, as a rule, the assistance of a lawyer is also required in order to correctly convey your position to the court. In addition, the Code of Administrative Offenses, in the event of a case being considered by a court, always provides for the possibility of replacing an administrative fine with a warning. A lawyer, participating in the consideration of a case in court or in an administrative body, will certainly petition for this to improve your position.
If, nevertheless, you are found guilty of an administrative offense, the decision can be appealed in court or in an administrative manner. In the case of an administrative appeal, the complaint is submitted to a higher authority that considered the case of an administrative offense; in the case of a judicial appeal, the complaint is submitted directly to the court. The period for filing a complaint is short and is only 10 days. Therefore, if you intend to appeal the decision to commit an administrative offense, you need to seek legal assistance from a lawyer on the same day as you receive this decision, because he will certainly need time if he did not participate in the consideration of the case, not participated in the preparation of the protocol in order to study the materials, look at the existing judicial practice, evaluate them, and based on this, build your defense, file a complaint to the court and protect your interests already in the process of considering a case of an administrative offense in court.
In any case, the lawyer will take all possible measures to ensure that the rights and interests of the client are properly protected, all evidence presented is given a proper assessment, and the court or administrative body makes the only correct objective decision.
The material was prepared within the framework of a grant from the President of the Russian Federation provided by the Presidential Grants Foundation (in accordance with Decree of the President of the Russian Federation dated January 30, 2019 No. 30 “On grants of the President of the Russian Federation provided for the development of civil society”)
Concept of harm caused to the patient
Harm caused to a patient should be understood as damage caused to his non-material benefits, namely life and health, privacy, honor and good name by a medical organization or medical workers.
Health care legislation distinguishes two types of harm caused to a patient:
- property damage is damage caused as a result of certain actions of a medical organization (medical workers), resulting in material consequences.
- moral harm - physical and moral suffering caused to the patient as a result of certain actions that violate his personal non-property rights or encroach on his intangible benefits.
- More detailed information about the concept of harm is reflected in the article “Who is responsible for harm caused to a patient.”
Cause and effect relationship between the offense and the harm caused
For civil liability to arise, there must be a cause-and-effect relationship between the offense and the harm caused. When deciding on the issue of causing harm to health, this connection is established based on the results of a forensic medical examination and if it is consistent with other evidence in the case.
In the absence of a cause-and-effect relationship between the actions (inaction) of a medical worker and the resulting harm, civil liability does not arise. At the same time, we note that only direct cause-and-effect relationships (not indirect) have legal significance.
