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The Limits of Criminalization of Medical Errors: Russian and Foreign Law Approaches
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The Limits of Criminalization of Medical Errors: Russian and Foreign Law Approaches
Annotation
PII
S1605-65900000622-5-1
DOI
10.12737/jrp.2023.083
Publication type
Article
Status
Published
Authors
Maxim Kratenko 
ORCID: 0000-0002-6583-0588
Occupation: Associate Professor
Affiliation: Saint-Petersburg State University
Address: St. Petersburg, Russia
Edition
Volume 27 No. 7
Pages
119-132
Abstract

With regard to defects in medical care, there has always been a dilemma: is it sufficient in such cases to apply disciplinary and civil liability measures, or is it also necessary to prosecute the perpetrators? And for which medical errors is criminal punishment a proportionate and necessary sanction?

The purpose of the study is to determine the criteria for qualifying improper (erroneous) actions of medical workers as crimes, taking into account the ultima ratio principle; to evaluate the set of iatrogenic crimes available in the Russian Criminal Code as optimal or, on the contrary, excessive; to formulate proposals for optimizing criminal law policy in the area under study.

Research methods: formal-logical, comparative-legal, legal forecasting.

Conclusions: unlike some foreign countries (Great Britain, Italy, China), in Russia, the basis of criminal liability of medical workers is any of their careless acts that caused death or serious harm to the patient’s health. The Criminal Code contains several elements of crimes for which erroneous actions of medical workers can be qualified, while the differentiation of competing structures (in particular, provided for in Part 2 of Article 109 and paragraph “b” of Part 2 of Article 238 of the Russian Criminal Code) causes difficulties for investigators and state prosecutors. The choice in favor of a more serious charge often has no rational grounds, is due to the nature of the medical care provided (paid or guaranteed by the state) or the need to comply with the statute of limitations for criminal prosecution. With reference to foreign experience, the author of the study substantiates the possibility of decriminalization of nonsevere medical errors in Russia by making appropriate amendments to Articles 109 and 118 of the Russian Criminal Code or supplementing the Criminal Code with a special composition. At the same time, it is proposed to create out-of-court mechanisms for the settlement of patients’ property claims, to increase the role of medical associations in allowing persons to carry out medical activities, i. e. to realize the potential of civil and disciplinary liability.

Keywords
patient, medical error, gross negligence, criminal punishment
Date of publication
21.07.2023
Number of purchasers
12
Views
187
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0.0 (0 votes)
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