Clinical negligence around the globe: the legal perspective

medical crimesAccording to the United States Model Penal Code, medical personnel commits two forms of crime – inadvertently (recklessly), carelessly (negligently). Thus, the American commentary on the Criminal Code and the Manual on criminal law define criminal negligence as a situation of ignoring the substantial and undue risk, which the subject did not know, but should have known and taken into account. These same sources interpret criminal negligence (recklessness) as a situation of ignoring the substantial and undue risk, a subject was aware of, but consciously ignored them and continued risky behavior. It is easy to conclude that the domestic legal literature describes this form of guilt as ‘criminal irresponsibility’.

An important difference in the process of qualification of the crime in the US trial is that contemporary American law to the causes of death include any illegal actions that led to death within 3 years after they were committed. In this connection it is appropriate to list the cases where the doctor is obliged to report the obvious or suspicious signs of violent death to the coroner or medical examiner: all the cases of violent death must be reported, e.g. death of unknown etiology, death during illegal abortions, sudden death during medical interventions, deaths in custody, death of persons subjected to cremation, burial at sea and/or transportation to other states.

As in the US, in the UK there is a special kind of lawyers – coroners, who often have two higher educations – medical and legal one, investigating the case of a violent and sudden death. Less complicated cases are led by solicitors; the largest aspiring databases of legal services in the UK have around 1750 accredited medical negligence solicitors across the country.

Unlike in other countries information on the number of convictions and acquittals by courts and cassation bodies in Russia is not registered and published officially. The country is ignoring a very important principle for crime prevention in medicine – ‘forewarned is forearmed’.

medical lawIn this regard, the foreign management of medical law is way more comprehensive, because they pay significant attentions to recommendations for the prevention of crimes among health personnel. The idea is emphasised and actively implemented that the doctors should be clearly informed about the methods and circumstances of care, which are the most risky in terms of occurrence of adverse outcome of the guilty, and especially – on materials where trials are completed and the cases are closed. Basing on the results obtained by non-commercial funds in Russia, malpractice in the country is estimated at 12% level – a relatively high number in comparison with the UK (3-4%) and the US (4-5%).

The foregoing demonstrates the need for in-depth study of forensic and legal aspects of the problem of inadequate medical care – this allows you to choose the best way to prevent crimes with the exception of a positive experience and mistakes already committed by medical personnel.