scholarly journals Medical Error – Should it be a Criminal Offence?

2018 ◽  
Vol 11 (1) ◽  
pp. 47-66 ◽  
Author(s):  
Miha Šepec
Keyword(s):  
Criminal Law ◽  
Medical Error ◽  
Medical Malpractice ◽  
Medical Science ◽  
Medical System ◽  
Medical Professionals ◽  
Criminal Offence ◽  
Doctor Who ◽  
Medical Standards ◽  
Negligent Treatment

Medicine is a risky profession where medical professionals have a duty to do anything in their power to help their patients. However, what if a doctor makes a grievous mistake that leads to the death but could have been avoided? Are moral responsibility and apology to patients’ family enough? Should we impose sanctions (civil or criminal) on the doctor who negligently caused the patients’ death? To answer this questions, we present arguments against criminalisation of medical error, where the strongest arguments are uncertainty of medical standards, counterproductive criminalisation seen in defensive medicine, using criminal law as the last resort, and the argument of doctor’s immunity. On the other hand, arguments for criminalisation are obvious negligent treatment with serious consequences, general prevention of future negligent conduct, sanitation of a medical system gone wrong, and the argument of privileged criminal offence. Our conclusion is that criminal law repression of medical malpractice or medical error is justified, however only in the most obvious cases of undisputed negligence or carelessness of a doctor, where his inappropriate conduct has led to a serious deterioration of health of a patient, which could have easily been avoided, if a doctor respected the practice and rules of medical science and profession.

scholarly journals Legal responsibility for infringements related to providing medical assistance and services

2019 ◽  
pp. 18-21
Author(s):  
Tetiana YAMNENKO ◽  
Oleksandr ALEKSANDROV
Keyword(s):  
Medical Error ◽  
Criminal Liability ◽  
Medical Science ◽  
Legal Liability ◽  
Legal Responsibility ◽  
Medical Professionals ◽  
Medical Assistance ◽  
Services Research ◽  
Professional Misconduct ◽  
Analysis And Synthesis

The purpose of the paper is to investigate legal liability for offenses related to the provision of medical assistance and services. Research methods: documentary analysis and synthesis, comparative analysis, objective truth, cognitive-analytical, etc. The main types of legal liability for offenses in the sphere of medical services and services were investigated, in particular: the grounds for the application of civil, disciplinary, administrative and criminal liability were revealed. The development of medical science, the improvement of the standard of living of the population and the establishment of democratic institutions help to increase the demands on the work of medical professionals and to increase the cases of their responsibility for the improper performance of their professional duties. The specificity of the legal liability of medical professionals and medical institutions is the problem of the not legally fixed concept of medical error (which is considered to be a purely medical concept, but is nonetheless a ground for exemption from legal liability) and an accident. When considering medical cases, the court is always forced to establish the absence or presence of guilt in the actions of medical professionals, and the presence of a medical error or accident precludes the liability of medical professionals. Therefore, defining the boundaries of a medical error and an accident is a top priority. Therefore, it is necessary to distinguish concepts such as medical error, accident and professional misconduct in medical practice. In this case, a medical error should be understood as legitimate actions of medical professionals. It should also be noted that it is worthwhile to take advantage of the experience of many countries and to introduce a professional error insurance institution that results in harm or loss to the health of a citizen unrelated to the negligent or negligent performance of their professional duties. However, in legal practice, it is necessary to refuse to use the term medical error, and to speak only about professional or medical error.

MEDICAL FALLIBILITY

PEDIATRICS ◽  
1977 ◽  
Vol 60 (2) ◽  
pp. 243-243
Author(s):  
Gorovitz ◽  
MacIntyre ◽  
Keyword(s):  
Medical Error ◽  
Medical Profession ◽  
Medical Science ◽  
Medical Problem ◽  
Medical Sciences ◽  
Physician Patient Relationship ◽  
The Public ◽  
Iatrogenic Illness ◽  
The Individual ◽  
Physician Patient

At present, the typical patient is systematically encouraged to believe that his physician will not make a mistake, even though what the physician does may not achieve the desired medical objectives, and even though it cannot be denied that some physicians do make mistakes. The encouragement of this inflated belief in the competence of the physician is of course reinforced by the practice of not keeping systematic and accessible records of medical error. Yet everyone knows that this is a false confidence . . . the current high incidence of iatrogenic illness constitutes a medical problem of enormous proportions, well recognized within government agencies and segments of the medical profession, but only dimly suspected by the public at large. There is still a relatively high probability of a patient suffering from medical error. What patients and the public have to learn is to recognize, accept, and respond reasonably to the necessary fallibility of the individual physician. The physician-patient relationship has to be redefined as one in which necessarily mistakes will be made, sometimes culpably, sometimes because of the state of development of the particular medical sciences at issue, and sometimes, inevitably, because of the inherent limitations in the predictive powers of an enterprise that is concerned essentially with the flourishing of particulars, of individuals. The patient and the public therefore must also understand that medical science is committed to the patient's prospering and flourishing, and that the treatment of the patient is itself a part of that science and not a mere application of it.

scholarly journals The reaction to femicide in criminal law

Temida ◽  
2016 ◽  
Vol 19 (3-4) ◽  
pp. 431-451
Author(s):  
Ana Batricevic
Keyword(s):  
Violence Against Women ◽  
Criminal Law ◽  
Special Form ◽  
Comparative Law ◽  
The State ◽  
Criminal Offence ◽  
Global Problem ◽  
Efficient Suppression

Misogynous and sexist violence against women, which often results in death, represents a global problem. Numerous international and national legal instruments are dedicated to the prevention and sanctioning of violence against women. However, the reality implies that existing mechanisms of penal reaction to femicide, as its most extreme and brutal form, should be re-examined. Having in mind the frequency and severe consequences of this criminal offence and the discriminatory character of the message that the state sends by tolerating it or inadequately punishing its perpetrators, the author attempts to define femicide, to present basic forms of state reaction to femicide in comparative law as well as to analyze the features of femicide as an independent criminal offence. Arguing for the incrimination of femicide as an independent criminal offence, or as a special form of aggravated murder, the author points out that such solution could contribute to more precise observation of this form of crime, to a better estimation of the quality of the state? s reaction to it and to its more efficient suppression.

scholarly journals Sex and gender characteristics in the Criminal Code of the Republic of Croatia with special reference to the criminal offences of rape and domestic violence

Temida ◽  
2013 ◽  
Vol 16 (1) ◽  
pp. 33-54
Author(s):  
Marissabell Skoric
Keyword(s):  
Domestic Violence ◽  
Social Relations ◽  
Criminal Law ◽  
Gender Stereotypes ◽  
Statistical Data ◽  
Criminal Code ◽  
Criminal Offence ◽  
Male And Female ◽  
Female Sex ◽  
The Republic

The study deals with the issue of whether the norms of criminal law make a distinction between male and female sex with regard to the perpetrator of the criminal offence as well as with regard to the victim of the criminal offence and also the issue of whether male or female sex have any role in the criminal law. It is with this objective in mind that the author analyzed the provisions of the Criminal Code of the Republic of Croatia and statistical data on total crime in the Republic of Croatia and the relation between male and female perpetrators of criminal offences. The statistical data reveal that men commit a far greater number of offences than women. Apart from this, women and men also differ according to the type of the criminal offence they tend to commit. Women as perpetrators of criminal offences that involve the element of violence are very rare. At the same time, women are very often victims of violent offences perpetrated by men, which leads us to the term of gender-based violence. Although significant steps forward have been made at the normative level in the Republic of Croatia in defining and sanctioning of genderbased violence, gender stereotypes can still be observed in practice when sexual crimes are in question so that we can witness domestic violence on a daily basis. All of this leads to the conclusion that it is necessary to make further efforts in order to remove all obstacles that prevent changes in social relations and ensure equality between women and men, not only de jure but also de facto.

scholarly journals The Standards of Proof in Medical Malpractice Cases

2020 ◽  
Vol 13 (2) ◽  
pp. 173-196
Author(s):  
Nina Cek
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Legal System ◽  
Medical Error ◽  
Medical Malpractice ◽  
Civil Proceedings ◽  
Standards Of Proof ◽  
Evaluation Of Evidence ◽  
Procedural Aspect ◽  
The Eu

The article examines the procedural aspect of medical malpractice cases. It focuses on the differences in proof standards by first explaining the characteristics of the Slovenian legal system and then comparing it with German and English legal systems. The author sheds light on the EU court's approach on the question of the responsibility of the manufacturer for the product (vaccine) and suggests the direction to use a broader framework for the evaluation of evidence and presumptions. Given the disclosed problems of proving through a medical expert's help, the article emphasizes the importance of respect for human rights in civil proceedings. Particular emphasis is also placed on no-fault systems. The question is raised of how introducing such a system into the Slovenian legal system would affect the perceived problem of proving a medical error and informed consent omission.

scholarly journals Criminal Law Dilemmas in Withholding and Withdrawal of Intensive Care

2016 ◽  
Vol 9 (1) ◽  
pp. 21-39
Author(s):  
Damjan Korošec
Keyword(s):  
Intensive Care ◽  
Medical Treatment ◽  
Criminal Law ◽  
Medical Science ◽  
Criminal Code ◽  
Patient Rights ◽  
Dying Patients ◽  
Dying Patient

Regarding the question under which conditions a physician in Slovenia is allowed to omit life-prolonging medical treatment of dying patients, the main legal source is the Patient Rights Act, adopted in Slovenia in 2008 (parallel to Criminal Code of Slovenia). Under this law, there are two possible circumstances in deciding about life-prolonging medical treatment regarding dying patients: a) on the basis of the so-called patient’s testament in the sense of Art. 34 of the Patient Rights Act; and b) without any known patient's testament in the sense of Art. 34 of the Patient Rights Act. Such decisions can also be contrary to a decisive wish of relatives of the dying patient to prolong the patient’s life under all circumstances. If this decision is reached with full respect of the Patient Rights Act as well as the rules of medical science, omitting life prolonging medical treatment cannot be unlawful in the sense of medical criminal law.

scholarly journals Administrative Sanction Decisions, the More Favorable Law Application and Trust on Judiciary

2020 ◽  
Author(s):  
Gürsel Özkan
Keyword(s):  
Criminal Law ◽  
Administrative Law ◽  
Constitutional Court ◽  
Criminal Offence ◽  
Administrative Act ◽  
The Law ◽  
Administrative Sanction ◽  
Set Up ◽  
Council Of State ◽  
Administrative Sanctions

In terms of administrative sanctions, application of the more favorable law means that when the law in force the time an act was committed and a law subsequently brought into force is different, the law which is more favorable should be applied. EHRC states that applying more stringent punishment to an offender on the grounds that more stringent punishment was in force when the time criminal offence was committed. Misdemeanors have been considered within the scope of criminal law by the Constitutional Court and the Constitutional Court accepts that the principle of the application of the more favorable law should be applied to misdemeanors. Danıştay (the Turkish Council of State) decides that “it should be take into account in terms of administrative sanctions, when a law which is the ground of punishment is set aside or more favorable law is brought into force”. Since administrative acts are reviewed during annulment cases, a law brought into force after an administrative act cannot affect the act retrospect. A law which is enters into force after an administrative act established, could set up a rule which has retrospective affect only if the rule clearly is an amnesty. After an administrative fine is imposed, applying criminal law principals to administrative law and administrative sanctions, in other words, rendering decision of annulment on the ground of the principle of the more favorable law betrays the trust on judicial bodies and law.

scholarly journals CONSIDERATIONS OF CRIMINAL LAW AND FORENSIC SCIENCE REGARDING THE ILLEGAL ACCESS TO A COMPUTER SYSTEM

2018 ◽  
Vol 11 (2) ◽  
pp. 49-57
Author(s):  
Adrian Cristian MOISE
Keyword(s):  
Computer System ◽  
Criminal Law ◽  
Personal Information ◽  
Social Engineering ◽  
Criminal Code ◽  
Criminal Offence ◽  
Web Page ◽  
Council Of Europe ◽  
Visual Identity ◽  
The Social

Starting from the provisions of Article 2 of the Council of Europe Convention on Cybercrime and from the provisions of Article 3 of Directive 2013/40/EU on attacks against information systems, the present study analyses how these provisions have been transposed into the text of Article 360 of the Romanian Criminal Code.  Illegal access to a computer system is a criminal offence that aims to affect the patrimony of individuals or legal entities.The illegal access to computer systems is accomplished with the help of the social engineering techniques, the best known technique of this kind is the use of phishing threats. Typically, phishing attacks will lead the recipient to a Web page designed to simulate the visual identity of a target organization, and to gather personal information about the user, the victim having knowledge of the attack.

scholarly journals MEDICAL ERROR AND LIABILITY FOR IT IN SOME POST-SOVIET COUNTRIES (BELARUS, KAZAKHSTAN, MOLDOVA, UKRAINE)

2019 ◽  
Vol 72 (5) ◽  
pp. 877-882 ◽  
Author(s):  
Alesia Gornostay ◽  
Alona Ivantsova ◽  
Tetiana Mykhailichenko
Keyword(s):  
Human Rights ◽  
Medical Errors ◽  
Medical Error ◽  
Criminal Liability ◽  
Effective Means ◽  
National Court ◽  
Further Education ◽  
European Convention ◽  
Medical Professionals ◽  
Treatment Protocols

Introduction: Infliction of harm to life and health due to medical errors is common for the whole world and post-Soviet countries, in particular. The problem of these errors is one of the most important in medical law, although there is no unified concept of it. A small number of sentences in cases of criminal negligence of medical professionals indicates a high latency and often unprovability of this crime in a number of post-Soviet countries. The aim: To disclose the objective and subjective prerequisites of a medical error, reasons for its occurrence, to establish the grounds for criminal liability of medical professionals in case they commit an error and to examine the judicial practice in this regard. Also, to define the concept and types of circumstances exempting criminal liability and their impact on criminal liability issues concerning medical professionals. Materials and methods: The study is based on the Belarusian, Kazakh, Moldavian and Ukrainian statutory acts as well as international acts, the European Convention for the Protection of Human Rights and Fundamental Freedoms, case law of the European Court of Human Rights (ECHR), national court judgments. Such methods as dialectical, comparative, analytic, synthetic and comprehensive have been used in the paper. Review: On the basis of the study, it has been established that there is no unified concept of a medical error, medical personnel are fairly brought to criminal liability only if they commit an unjustifiable error in the presence of all the mandatory elements of a crime provided for in the relevant article of the Criminal Code. At the same time, it is extremely difficult to prove existence of such an error. Besides, at the state levels, causes and mechanisms of occurring errors have not been revealed, they are not even discussed, which makes it impossible to outline measures to prevent them or reduce their frequency and degree of danger. Conclusions: The struggle against medical errors should encompass a number of such activities as standardization of clinical treatment protocols, further education of medical professionals and lawyers in regard to patient safety, thorough investigation of each incident in order to exclude a justifiable error or circumstances exempting criminal liability. Equitable, severe and uncompromising punishments for perpetrators should be an effective means preventing commission of crimes in medicine.

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