Doctor Kasiulevičius: The doctor could not save his life, but should he be judged for it?

We sometimes hear of cases where physicians are responsible for medical errors not only against patients but also against the state because they are being tried for negligent deprivation of life that occurred precisely in the discharge of the physician’s duties. Such criminal proceedings are the subject of much debate.

Does the state, by imposing criminal penalties on doctors, discover more than it loses? Professor Dr. Dr. from the Santara Clinics Family Medicine Center shared his thoughts on this. Vytautas Kasiulevičius.

– In the last decade, there have been reports in the press of doctors convicted in criminal proceedings for essentially medical errors. How do you see, especially as a person, a citizen and, of course, as a doctor, the situations in which law enforcement agencies seeking to apply the strictest form of liability intervene in the relationship between doctors and patients (their family) in the event of a medical error?

– Compliance with the law is an important condition for the functioning of society, but it is also very important that the laws and statutes take into account the specific details of the health system processes. The doctor seeks to save the patient by making one decision or another during the operation or by prescribing a diagnostic or therapeutic procedure, medication. Even if all the steps have been carried out correctly, the result is far from always what we expect, which is why I consider unequivocally a negative opinion of the criminal liability of doctors for medical errors. Medical organizations have noted in the past that they are following with great concern the efforts of law enforcement to prosecute in case of medical failure where criminal law last ratio Application principle.

The difference between a prosecuted doctor and other criminals who have actually knowingly taken a human life is obvious. The doctor tried to save, but failed. Maybe you made mistakes that could have been avoided, but that’s a mistake. If the firefighter did not remove the child from the burning house or the child fell, should he also be tried?

The Lithuanian medical movement has repeatedly pointed out that complications are an individual reaction of the human body to the applied treatment. Even the most qualified health professionals, professionals with many years of experience in patient treatment and international practice, are not and cannot be absolutely sure that the right treatment does not generate complications for the patient. Also, complication and involuntary medical error are different phenomena with many common characteristics.

The relatives of a patient who died as a result of a medical error are undoubtedly entitled to compensation, but the vast majority of Western European countries deal with this problem differently, with less painful legal measures. In this case, the criminal process, which at first glance seems like a search for justice, is reminiscent of a witch hunt that will affect not only the doctor in question, but also the country’s patients and the health system in general.

– In public appeals to support and defend convicted colleagues, doctors use the term “defensive medicine” to emphasize the harm of such criminal proceedings. What does “defense medicine” mean and how does it relate to criminal proceedings?

– Medical courts can lead to a situation where doctors refuse to perform certain risky medical procedures for fear of failure, which could lead to trial. I am really very concerned about what message is sent to the public and doctors about such court decisions. The consequence is that doctors are afraid and we no longer do anything, we hide those errors and we no longer analyze them. This will encourage in the future not to admit mistakes, not to say, transfer work to another, get rid of responsibility, blame someone else. It’s sad, and that kind of situation encourages defensive medicine.

– The medical service in criminal proceedings is generally punished with one or two years in prison for non-compliance or undue fulfillment of official duties in criminal proceedings. What impact does such punishment have on the medical profession and patients?

– Undoubtedly, the trial itself and the fine imposed, and therefore the suspension of the license, have negative consequences for both the doctor and the patients. Paradoxically, professional doctors who have a lot of surgery or counseling and a lot of clinical experience are often found in the bank, whom patients have thanked before this process for their professionalism, for their lives saved. And suddenly everything stops, leaving only negative public information about the case. Due to the private right to participate in professional activities, a doctor loses his qualification and professionalism. Furthermore, significant damage to his reputation is being caused. It will remain a killer in the minds of patients after the court ruling. For these reasons, medically accused doctors are forced to migrate, which undoubtedly affects the state itself, the health system, as well as the patients, for whom said doctor could help or even save their lives. Therefore, in fact there are no winners in such a situation.

The Lithuanian Medical Movement seeks to draw the attention of the police to the fact that punishments such as restriction of liberty or prohibition to practice medicine due to error are not applied and are considered inappropriate in western countries.

– As in all medical work, obviously mistakes are inevitable. However, the question arises: where do the limits of liability of doctors, who are almost at risk every day, begin and end? And what responsibility should apply?

– In Western culture, the problem of medical errors is treated in a completely different way, in particular to reconcile the interests of the doctors who make such errors unintentionally and those of patients who clearly have a right to claim damages. In other words, there is a culture of medical error in Western Europe. The first steps have already been taken to implement such a culture in Lithuania: the no-fault patient compensation model has entered into force this year. And although not all the statutes of this model are already in force, doctors hope that this will improve the situation and remove the obstacles, and jurisprudence on a new culture of medical error will emerge.

This new law creates protection for doctors. A physician who has caused harm to a patient may be required to pay compensation in only two cases: if he or she intentionally caused the harm and if he or she was intoxicated or intoxicated by other psychoactive measures at the time of the harm. In all other cases, the damage will be compensated with a special fund, and the fact of (no) damage will be determined by a special commission.

– In what situations do patient disputes, which intensify in the intervention of public authorities, arise more quickly and are more difficult to suppress? It is sometimes argued that the lack of communication by doctors and the lack of information push patients towards litigation and seek justice in court. What is your opinion?

– I recognize that there are problems with communication. For the most part, this communication problem is systemic. In Western culture, the psychologist, a lawyer, and the person in charge of communication interact with the victim in the first stage. In Lithuania, the doctor generally remains alone. Although he survives a failure, his emotions are damaged, the conflict often has to resolve itself. This can be a major cause of patient complaints and demands in our society.

– The Lithuanian Medical Movement, like you, one of its founders, actively supports colleagues in the trial. What is the role of medical associations in this process?

– On the one hand, the objective of the Lithuanian Medical Movement and other organizations is to protect and represent doctors in conflict situations, but a much more important task is to implement the concepts and principles of rights and responsibilities adopted in European democratic societies. We propose to analyze the experience of western states in this field and to address the question of the need to decriminalize criminal offenses in the event of medical error and abandon article 230 of the Penal Code. Application of section 3 to medical personnel.

We believe that it is appropriate to initiate an inter-institutional discussion (medical, legal, political) about the legal justification and the application of “medical error / complication”. To eliminate situations in which the opinion of an expert may be the basis for deciding on the quality of a doctor’s work, it may be appropriate to establish expert commissions made up of a group of experts, including international experts, to assess the case in detail. .

We should all feel responsible and not confront the medical community with the rest of society, encourage the Soviet-era culture of accusation and mistrust of doctors who remain in our country, separate complaints about the mourning of loved ones or the desire to take advantage of death, supposedly for justice, of real errors, the repetition of which we all must resolutely avoid. Finally, we want doctors to stay in Lithuania, learn from mistakes, not hide them. We also want our patients to receive the highest quality services.

Our goal is to set clear limits and liability for medical errors and intentional crimes. We see the legal community as a partner in this process, which can help us regulate these concepts more clearly and incorporate the agreements reached in everyday life.

Comments

Dr. Raimundas Jurka, lawyer, professor at the Mykolas Romeris University School of Law

In the case of medical prosecution, criminal liability for errors in the direct provision of medical treatment, it is important to identify what is needed to apply criminal liability as the strictest and most extreme legal instrument. In my opinion, it is essential to establish two criteria for this: the danger of the actions (or omissions) of the doctor or another doctor and, secondly, the danger of the doctor himself as a person. These two elements must be directly linked in terms of the reality of criminal liability.

The consequences of a medical error, of course, are always painful and dramatic. However, is it really necessary in all cases to initiate criminal proceedings for medical errors without seeing other alternatives to legal effect? In my opinion, if a doctor is licensed to practice if he has met all the formal requirements for a patient examination, mandatory treatment, but there has been no objective view of the circumstances that can lead to medical error, it cannot be said make him as dangerous as a person. to be prosecuted In my opinion, in such cases, one of the fundamental principles of criminal liability is often overlooked or undermined: a person should be held criminally liable only if guilty of a criminal offense and only if it was possible to demand legal conduct when doing so. In other words, this principle is an integral element of the constitutional principle (legal acts may not require the impossible (lex non cogit ad impossibilia)) that protects a person from liability when their fault is not obvious.

In fact, doctors are required to exercise diligence, to exercise great caution, but if it becomes so dangerous that it did not foresee, it foresaw and could not foresee how the human body would react in a particular case, which often does not comply with strict rules. of operation. In interventional medicine, the probability of error is considered high because there are many and varied risk factors. Therefore, the choice of treatment tactics is not just a formal aspect.

No legislation can regulate the choice of treatment tactics for individual patients, as this depends on the professionalism, experience, wisdom of the doctor and, ultimately, the totality of the data available to him to make decisions and your evaluation. Therefore, it can be said that the relationship between the patient and the treating doctor is often similar to the “life lottery” in terms of treatment tactics, because no one will know how the body of a particular person will react to the chosen treatment, etc. When everything is done legally, the treatment is chosen based on the data available to the doctor, but the characteristics of the patient’s body show that the chosen treatment is inappropriate, in which case the criminal proceedings themselves and the penal sanctions cannot. be considered proportional.

It is difficult to weigh when there really is a mistake and when there is gross negligence and how to distinguish it from civil or disciplinary liability. This type of case is generally not resolved by expert consultations in these types of cases, which often do not answer the key question of whether the death was caused directly by inattention or an unpredictable reaction from the patient’s body.

Ramūnas Šileika, Chief Prosecutor of the First Prosecution Division of the Vilnius Regional Prosecutor’s Office

There are no special exceptions for a doctor in criminal law. A doctor is the same member of society as other people. In the rules of the Penal Code, which are generally used to apply responsibility for possible guilty acts of doctors: article 132 of the CC. (negligent deprivation of life), art. (breach of official duties), there are no exceptions for doctors.

It should also be understood that certain rules apply to the investigation and prosecution of cases in court. Therefore, medical action investigations must also meet certain procedural requirements. Of course, the prosecutor or other law enforcement officer is not involved in the treatment process and does not control whether the doctor is performing his duties well or perhaps not very well. Typically, such investigations are initiated upon receipt of statements from victims or their families. There are no exceptions for not examining such statements, unless the data on the criminal offense indicated in the statement is manifestly incorrect (Article 168 of the PCC) or there are other data to make the investigation of said statement meaningless (Article 3 (1) the PCC regulates the reasons for the termination).

It should be understood that no law enforcement officer has the precedent of necessarily punishing a doctor and bringing him to justice. Furthermore, the investigation of each of those statements is certainly not passed to the court to impose certain sanctions on a doctor. To verify the validity of the statement received and reach a certain procedural decision, an investigation is required.

The prosecutor or other officer involved in the investigation does not have sufficient medical knowledge to assess whether the doctor performed his duties properly. Not surprisingly, the training of future doctors is probably the longest compared to representatives of other specialties. In this case, other medical professionals are almost always asked to evaluate the data provided. Specialists are assigned tasks to evaluate certain medical aspects presented in the statements received or identified in the study and to present their conclusions. Such a finding essentially becomes the primary source of proof of a doctor’s guilt. I can hardly imagine a case in which my colleague would try to prove the guilt of a doctor without reaching such a conclusion.

I would like to emphasize that not all statements received actually lead to judicial proceedings in criminal proceedings. I will note that I am not aware of any case in which a physician has been prosecuted for a complication that has occurred during proper treatment procedures. It is necessary to distinguish error from treatment of overtly careless behavior. Only after receiving specific data on the possible fault of the doctor and summarizing other data from the investigation carried out, the prosecutor makes the decision to refer the case to the court.

Mindaugas Povilanskas, Vice-President of the Vilnius Regional District Court, Judge

Recently, there has been a heated debate in society and doubts as to whether doctors can be held criminally responsible for incorrectly rendered treatment services, mistakes made, which have had painful, often irreversible consequences. There are opinions in the public sphere that physicians may refuse to perform complex surgeries or undergo other extremely complex treatment processes to avoid the risk of being prosecuted.

Doctors can only be held criminally responsible for acts or omissions that, in the eyes of the public, including the medical community, are unreasonably negligent, with serious and, unfortunately, often irreversible consequences.

The legal regulations in force in the Republic of Lithuania do not link the patient’s rights to receive compensation for medical treatment services provided incorrectly only with the application of criminal liability to doctors.

The Law of the Republic of Lithuania on the rights of patients and compensation for damage to health and its implementing statutes guarantee patients the right to claim compensation for treatment services provided inappropriately outside the court, as well as your rights potentially violated in accordance with the Civil Procedure Code and / or the Administrative Procedure Law. . Criminal liability for doctors, as well as for other members of society, can only be used as a last resort.

It is also worth mentioning that even in cases where the issue of medical criminal liability is addressed, deontological tests are generally carried out (diagnosis, evaluation of treatment tactics). The deontological examinations are carried out by specialists / experts with medical education, they are also interviewed during the judicial hearing, their evaluations, opinions and explanations are heard. Assessment of specific actions provided by the medical community, among other case data, is often essential before a procedural decision can be made about the criminal liability of physicians.

In summary, medical liability does not apply to physicians for all of their professional misconduct, but it should be noted that the gross negligence or omission of physicians can also be assessed in the criminal justice context. A contrary interpretation would allow the spread of abuse and impunity. It would also give doctors a privileged position compared to other professions.