Human incompetence, laziness or underestimation of the seriousness of a particular situation when a specialist performs his job duties is a fairly common phenomenon, but in different areas such connivance can be harmless to others or have socially significant negative consequences.
In both cases, we can talk about the negligence of the employee, but if harm is caused to the material or physical well-being of people or society, criminal liability may arise for the consequences of a harmful act or inaction. Medical negligence is especially dangerous for ordinary citizens, especially in the context of a pandemic declared on our planet.
Medical negligence refers to the provision of poor-quality services by medical institutions and their employees, which caused the deterioration of the patient’s health. As statistical data show, in medical institutions, doctors and medical personnel quite often commit negligence in relation to patients, which ultimately leads to very serious consequences, and sometimes death. Patients often do not suspect that negligence was committed towards them, therefore they do not know about legal rights and methods of protection from unscrupulous doctors.
Article navigation:
Characteristics of the crime of medical negligence
There is no individual article or legal norm regarding the negligence of medical workers, and their causing damage to the physical well-being of patients or premature death must be considered as neglect of duty. The duties of any official mean actions and behavior patterns that are prescribed to him by various norms specified in laws, rules, regulations, instructions or other documents and regulating his professional activities.
As an official, a doctor can commit a crime in cases where the decision he makes is capable of adversely affecting the health of the patient or causing death. Based on this, the crime is characterized by a combination of the following facts:
- Objectivity, expressed in the presence of an official duty that was not fulfilled by the doctor due to laziness, carelessness or underestimation of the seriousness of the situation, and this led to devastating consequences. The cause-and-effect relationship must be obvious and formalized, since the presence of an uncertainty factor during treatment frees medical staff from responsibility, because they could not know about the occurrence of negative consequences and took a justifiable medical risk.
- Subjectivity, determined by the presence of a specific medical professional whose actions led to a deterioration in the physical well-being of the patient or his death.
- Damage, which consists of a recorded event of deterioration in the patient’s well-being or death, which has a direct relationship with the treatment procedure due to known side effects of drugs or treatment procedures.
If all of the listed signs of a criminal act are present, it can be classified under Article 293 of the Criminal Code of the Russian Federation in its first part, if health is damaged, as well as the second or third when recording a single or multiple death of patients, respectively.
Where to complain about medical negligence?
The first instance to which an appeal must be made is the direct management of the doctor who has committed negligence in his duties, leading to adverse consequences, in the person of the chief physician of the medical institution. A similar procedure is drawn up in the form of a free-form application, which indicates all significant circumstances that allow the health worker’s misconduct to be classified as negligence and indicating the relationship between the treatment undertaken and the deterioration in well-being. The result of delivery of such an appeal, with a registration mark on the second copy, may result in disciplinary and/or financial impact by the head physician on a subordinate, therefore it is advisable to use this method in case of minor damage to health.
If an appeal to a senior medical worker is left without attention and an appropriate response, which must be sent by mail or delivered in person, then the next authority will be an appeal to the Ministry of Health, which is the highest level of the medical hierarchy and is obliged to take corrective action against personnel who have neglected their official duties, consisting usually in disciplinary punishment or dismissal of the guilty person and the head of the medical institution. An appeal to ministerial workers is drawn up in the same way as an application addressed to the head physician of a hospital, with the exception of the addressee and differences in the descriptive part of the incident, which includes a statement of details of the appeal to the head of the medical worker guilty of negligent attitude towards work.
Disciplinary responsibility
The first thing you can do is contact the head of the hospital where the doctor works . You write a complaint to him, in which you indicate that, as a result of negligence, you suffered serious harm to your health. The chief physician may take such a measure of responsibility as a disciplinary sanction, consisting of dismissing the doctor or issuing a reprimand and reprimand to him.
However, disciplinary liability is not enough to punish, so you can, depending on the degree of consequences of causing harm, bring the doctor to both civil liability (to recover material damage) and criminal liability (up to imprisonment).
How to open a criminal case for medical negligence?
Despite the presence of signs of a criminal offense, the fact of a connivance towards official duties on the part of a doctor is not considered by law enforcement agencies represented by the police and there is no point in filing a complaint with the police.
The prosecutor's office is authorized to conduct inspections in relation to any commercial and government institutions regarding compliance by staff with the rules of legality and legality of actions. Filing a statement of negligence committed by a doctor is a necessary procedure so that a check is carried out regarding the fact of harm to health and, if there is evidence of a crime, a criminal case is opened. In parallel with submitting a written application to the prosecutor's office at the scene of the incident, an appeal of similar content should be sent to the territorial body of Roszdravnadzor, whose functions include monitoring the activities of medical institutions in terms of organizing the treatment of patients, including.
Applications submitted to control and supervisory authorities must include an indication of the address, which is the name of the body and the applicant with his personal data allowing for feedback. The text of the appeal must contain:
- Description of the circumstances of harm to human health or causing the death of the patient, indicating the date of the incident, the period of treatment, treatment procedures and measures, the responsible health worker who made certain decisions regarding the content of treatment and the prescription of drugs that led to undesirable consequences.
- A statement of the history of interaction with the management of the medical institution and the relevant Ministry in terms of establishing the doctor’s guilt in negligent attitude towards his official duties and taking administrative measures against him.
- A request to verify the legality of the attending physician’s actions and establish the corpus delicti under Article 293 of the Criminal Code of the Russian Federation or other signs of an unlawful act.
- A petition to satisfy certain requirements: compensation for material, physical and moral damage or bringing the perpetrator to criminal liability.
Copies of all available documents that can confirm the presence of a crime should be attached to the application and listed as attachments in the text.
Any written application must be completed with the applicant’s handwritten signature and the date of its writing.
Below you will find an example of a statement to the prosecutor's office for medical negligence. It is also possible.
Civil responsibility
To punish a doctor with rubles, you will need to go to court yourself by filing a lawsuit. To determine the amount of material damage, you will need to collect all receipts and receipts confirming the purchase of medications, necessary medical equipment, paid operations or other medical services. Everything you spent on eliminating the consequences caused by the doctor’s negligence can be recovered from him.
In the claim you indicate,
- that you went to a medical institution for help due to illness or sudden pain (depending on the circumstances),
- the doctor conducted an examination and performed a number of actions, but due to an incorrect diagnosis, complications began , which in turn aggravated the problem with the wrong treatment method.
- As a result, the following damages were caused (list), which arose due to the doctor’s negligence,
- and accordingly, after that you were forced to eliminate all the consequences that arose through the fault of the doctor.
- Also write about compensation for moral damage, the amount of which you determine yourself, in accordance with the damage caused.
At the end, ask to recover the amount of material damage and moral damage.
As evidence, use medical documents (epicrisis, medical record, etc.), expert opinion, checks and receipts, contracts for subsequent treatment; if you contacted the head physician, the Ministry of Health or other authorities, then attach their answers.
At the trial, the doctor must prove himself that he provided assistance and carried out the treatment properly. , a forensic medical examination may be , which will confirm your arguments or refute them. If there is no such request, the court will make a positive decision.
Medical malpractice litigation
Going to court without an attempt at pre-trial resolution of the conflict in the form of an appeal to the head physician and the Ministry of Health, as well as without an inspection by the prosecutor's office and Roszdravnadzor into the negligent actions of an official, is futile and will not be accepted for proceedings due to the lack of any evidence established causally - investigative connections and validity of the applicant’s claims.
It is necessary to contact the justice authorities only if a prosecutorial/supervisory inspection is refused or to appeal the results of its conduct. Judicial resolution of the conflict is allowed when the plaintiff demands to recover material damages from medical negligence.
How in practice
A client consulted a lawyer who sought medical help after being involved in an accident. During the first examination, bruises and a broken leg were revealed, but the doctor did not conduct a detailed examination, as a result of which it was not immediately possible to detect that the internal organs were severely damaged. A day later, internal bleeding began and the client’s condition worsened. However, the doctor did not take any action, which led to serious consequences , but another doctor took over the treatment and performed the operation.
- According to the medical record, the consequences of moderate harm to health occurred as a result of an incorrectly chosen treatment method.
- The lawyer suggested filing a lawsuit and bringing the doctor to justice , punishing him with a ruble.
- At the trial, the doctor petitioned for an examination, the findings of which confirmed the doctor’s negligence and the court awarded him material damages and moral damages.
Punishment for medical negligence resulting in the death of a patient
If a health worker improperly performs or fails to fulfill his official duties, if this leads to the death of the patient, he is subject to punishment under Part 2 of Article 293 of the Criminal Code of the Russian Federation, which provides in such cases:
- five years of forced labor followed by a ban on medical practice for no more than 3 years;
- imprisonment for up to 5 years and a subsequent ban on treating people for another three years after release.
The age of the deceased is not an aggravating factor when determining a preventive measure for a doctor who, due to negligence in his official duties, allowed the death of a patient. That is, punishment for the death of a minor or minor patient occurs under Part 2 of Art. 293 of the Criminal Code of the Russian Federation.
Examples of judicial practice:
In 2008, the federal court of the Central District of Tolyatti sentenced a neurosurgeon and the head of the department to suspended sentences, depriving them of the right to practice medicine for three years, because they had discharged without further treatment a person of no fixed abode, who subsequently died from a diagnosed disease. .
In 2007, a resuscitator-anesthesiologist at the regional specialized infectious diseases children's hospital in Krasnodar and a nurse on duty were sentenced to a year's stay in a penal colony and a subsequent ban on practicing medicine for two years. This preventive measure was applied for incorrect actions when inserting a catheter into a little girl admitted with a diagnosis of whooping cough, which caused thrombosis of the artery of the right forearm, which led to death due to the failure to perform an operation that could save the child’s life.
Often, patients who have received poor-quality medical care and suffered from the negligence of doctors do not even think that they can complain somewhere. This is how people who have lived their whole lives in our country are built; they humbly accept what they give. But human health is not something that should be neglected. You need to defend your interests even in such a difficult service sector as healthcare. If you are faced with a blatant case of medical negligence that has led or may lead to harm to health or, worst of all, death, be sure to contact the relevant authorities for help!
Want to share?
