1. Introduction

Medical law is a developing field of law, which means that there is not much theory nor research done on the topic. All medical errors for which a doctor is imputable can be considered a part of the much wider known term of “malpractice”. There is no such thing as a clear delimitation between civil liability and criminal medical liability, both being considered part of the larger notion of malpractice. Medical malpractice is defined in Romania (Law 95/2006) in accordance with the medical system reform concerning medical misconduct as being “a vocational error committed during the medical or medical-pharmaceutical practice, generating damage towards the patient.

This article will highlight the most important opinions from the Romanian juridical literature on the criminal medical liability side of malpractice - manslaughter committed by the doctor. I am going to describe the difference between medical liability and ordinary law liability and the standard procedure used when analysing the doctor's guilt. Finally, I will trying to fight the opinion according to which the doctor should be responsible when the state is, in fact, guilty of not providing the material means that are necessary for performing the medical act safely.

2. Manslaughter in Romanian Criminal Law

Manslaughter is a crime sanctioned by Article 192 of the Romanian Criminal Code. In cases of such a criminal offence, the legislator seeks to punish those found guilty of the crime through provisions which classify the killing of a person as an involuntary wrongdoing.

This violation also includes two aggravated forms. The second paragraph of Article 192 defines ‘manslaughter as the consequence of inobservance of legal dispositions or of the measures of precaution for exercising a profession or a trade, or for the performance of an activity’. The punishment for the aggravated form is imprisonment from 2 to 7 years. This form was named in doctrine ‘occupational manslaughter’. By intending to define occupational manslaughter, the doctrine provides that there are three types (culpa lato, culpa levis, and culpa levissima) according to the offender’s level of knowledge in its field of expertise. The conclusion is that the offenders will face criminal responsibility if they were aware of the provisions or measures of precautions, but acted without taking them into account, or if they had no knowledge of the provisions, but they should have, or at least had the possibility of knowing them. From here on out, we shall only refer to cases in which the applicability of the incriminating text applies to doctors.

3. Criminal liability in the medical profession

A medical career has its specific characteristics along with moral and social implications which modify to some extent the meaning of the notion of culpable conduct – compared to what is expected from another professional in a different field. Even so, a doctor is not exempted from criminal liability. The lack of criminal liability in the medical profession would cause medics who do not possess satisfactory theoretical or practical competences to remain within the medical field. The potential added value such doctors might bring to the field within the limits of their competences would come with a high risk of damage for the physical integrity, health or even lives of some patients, therefore the system of justice must act upon it.

Therefore, the doctor could be prosecuted due to not interfering or interfering in a wrong manner. It is certain that in each case a proportionate relation should always exist between the deed and its consequences. The causal nature of this relation should never be broken or corrupted by any exterior factors or occurrence.

4. Liability under ordinary law and liability for a medical act - comparison

Right from the off, we must become aware of the distinction between liability under ordinary law - conduct existing pursuant to the general law of manslaughter in an aggravated manner, and the liability linked to the medical act- which is established through a more rigorous control. In order to determine if we are, indeed, talking about a malpractice situation, a difference must be made between a case of failure by hazard and one that results from the doctor's own error.

In the first category, for example, we could include a situation in which the doctor finds himself under the influence of psychoactive substances while working, followed by the death of the patient. Here, we have to deal with liability pursuant to ordinary law, because the source of the liability does not include a medical act (such as taking a wrong medical decision), but it relates to aspects of the private life of the doctor (the decision to take psychoactive substances).

In the second category, we include liability linked to the proper medical act. From an objective perspective, the illicit medical act can be commissive or omissive, and it can be classified as an improper medical fault (errors such as wrong diagnosis in controlling the medical act, forgetting certain objects inside a patient’s body, prescribing faulty treatment) or the breach of the obligation to inform the patient (the doctor-patient relationship is not just a simple work relationship, in this context being of high importance and risk). On a larger scale, a medical act is to be considered faulty when it is clear that the doctor did not act pursuant to a conduct which the medical science would have imposed. The doctor is obliged to intervene in order to prolong a patient’s life, even if the patient suffers from an immedicable disease.

One must take into consideration certain standards when identifying the existence or the non-existence of culpable conduct. If the standards were respected, no matter the state of the patient, the doctor is not to be held criminally liable. These standards have both a scientific side (theoretical knowledge regarding the treatment) and a practical side (the doctor’s practical experience regarding the treatment). This is the reason why a doctor is required to theoretically know a medical procedure, but also have practical experience. The medical standards are applied differently on a case-to-case basis. Therefore, even if an error in diagnosing does not represent a culpable act for a general practitioner, it can still be culpable when made by a specialist, because the medical standards required differ in such situations. Medical standards are also established in accordance with the conditions under which a procedure is completed by the doctor. Consequently, it is possible that an error in a diagnostic made by a doctor which works in a hospital during times of war to not reach culpable heights, in contrast with actions undertaken in regular conditions. The same principle applies when acknowledging that the medical standards differ from country to country. Material and human resources are key elements of the medical act, and only a hypocritical approach would consider sanctioning a doctor because the society has not provided more resources. According to these standards and to the differences between liability under ordinary law and liability linked to the medical act, these must be sanctioned differently.

First of all, in the case of a medical act, the evaluation of the culpable conduct should always be done ex-ante and never post factum (as it is usually done). The analysis of the error is done in accordance with the moment of the performance of said medical act, not when the consequences occur, even if in time the medical science would evolve, and the treatment recommended at the time would be considered later dangerous.

Secondly, it has to be specified that the activity of the doctor is governed by the principle of freedom when it comes to deciding upon a medical treatment. This means that a doctor has the ability to propose a different approach from the standard decided by traditional medicine, as long as it does not expose the patient to a greater risk than the one expected from the prescribed treatment. In such a situation, there is no culpable conduct in the doctor's effort, but a concretisation of the principle of freedom in medical practice when it comes to choosing the treatment. The existence of liability must be determined in accordance with the general humanistic obligation of the doctor to inform, to supervise and to take care of the patient. If liability is automatically attracted upon a doctor if he commits an error, this is equivalent to repressing the spirit of initiative. On the other hand, diminishing the legal consequences of a diagnostic or medical treatment would not be possible, as this would offer privilege to a certain category of professionals. When there are certain verified clinical procedures, a doctor is not allowed to derogate from them but has to apply them to the extent of which they are found in nowadays modern practice.

Thirdly, medical conduct also means the obligation of a permanent training of a doctor. In case a medical professional is not prepared theoretically and practically for the new medical standards, following the application of procedures that are considered unsatisfying or even dangerous at the moment, culpable conduct does exist. The level of documentation required from a doctor must be at least reasonable. The medical fault in case of doctors who work in circumstances with a higher risk for a patient’s health must be appreciated in each case accordingly, through analysing the means used by the doctor and not the result. In the case of manslaughter, the situation is assessed in accordance with the result - the death of a person.

The analysis of the medical fault from a criminal law perspective should not be done only in accordance with the legal definition of this form of guilt. It is absolutely obvious that a doctor predicts the result of its culpable conduct and it is usually not based on the objective circumstances of the patient's demise. The decisive element in the determination of fault (seen as a component of guilt) lays in the approachability degree of the result.

One of the major difficulties in the criminal sanctioning of manslaughter results from the existence or non-existence of proof for a medical fault. Most of the time in the Romanian system, the forensic expertise is considered to be absolute proof, whether incriminating or exculpatory. Instead, the judge is able to propose a different solution from the result of the expertise when the doctor’s fault is shown by clear evidence (for example, when the doctor forgets objects inside the patient during surgery).

5. Doctors vs. State - who bears the responsibility?

It has been shown before in the doctrine that this sanctioned conduct can include organisational activities as well. For example, in a specific situation where a patient is not transferred quickly enough to a specialized clinic, we could discuss about faulty management that could also create a right to ask for criminal liability of the person who was in charge of the case. Other examples of errors caused by logistical matters are the use of unqualified or exhausted medical staff, the usage of faulty equipment or instruments improper to the medical act. It is noticeable that among these examples, based on relevant case law in the field, there are situations in which doctors should not be considered guilty. The innocence should be based on the fact that doctors are sometimes placed in positions where they have to work in hospitals which lack both the material and human resource necessary for saving lives. This is the reason why the ‘organisational errors’ are not necessarily a result of doctors’ behaviour, but rather the result of the State’s attitude in respect of the medical system.

The European Court of Human Rights’ (ECHR) case law establishes that a human’s right to life has a dualistic nature, including both the individual's interest in its own rights and the detached interest of the state regarding the lives of people under the state’s jurisdiction. Therefore, the State has an obligation to intervene in order to save lives. Some examples of ways in which this obligation must be fulfilled could be equipping hospitals with modern technology, hiring a proper number of well-trained doctors or supporting medical research. In accordance with how much a state invests to respect these positive obligations, it is to be taken into account the medical illicit acts created through organisational errors, strictly limited to cases in which the doctor has a choice, but chooses wrongly (not taking into account the measures imposed by the law) or refuses to take action. In cases in which the State does not respect its positive obligations, it is not the doctor to be blamed for a faulty outcome, as long as the doctor cannot be held responsible for the problems inherent to the medical system.

6. Conclusion

To be a doctor is one of the most noble professions and there must be no greater satisfaction than seeing how your efforts can save a life. Given that some of these professionals fulfil their duties in good faith, one must nevertheless not dismiss the fact that they are criminally liable. However, this liability should intervene only after a thorough analysis on the said doctor' s liable behaviour. It is this procedure that I have tried to review, as a result of academic expertise.

To conclude, I strongly believe that medical liability should be given a lot more importance, since its purpose is that of defending one of the fundamental parts of the society.




By Sabina Stefana Hutu


This article was originally published in issue 6.2 of the magazine, which can be accessed here. All references used can be found at the end of that issue.


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