Should there be criminal responsibility for medical errors?

First, we must define how legal scholars define medical error, medical malpractice,

negligent treatment, medical mistake, doctor's error, doctor's fault or doctor's

mistake. All of these phrases are used more or less synonymously. However, it is

more appropriate to speak of medical error, medical mistake or medical malpractice,

since the latter terms are not limited to doctors but also include negligent treatment

rendered by other medical professionals (anaesthetists, medical nurses and other

health professionals that treat or help treating the patients). Doctors and hospitals

are expected to provide medical treatment employing all of the knowledge and skill

at their disposal. Doctors owe certain duties to their patients and a breach of these

duties triggers a cause of action for negligence against the doctor (Pandit & Pandit,

2009).

In the IOM report “To Err Is Human: Building a Safer Health System”, clinical error

was defined as failure of a planned action to be completed as intended or the use of

a wrong plan to achieve an aim (Kohn, Corrigan & Donaldson, 2000).

Legal definitions of medical error began in 1869 when medical expert Rudolf

Virchow defined medical error as an error that occurs in a deviation from the

generally accepted rules of medical profession because of insufficient care (Matz,

1869, in: Kaufman, 1989).

Today, medical malpractice is defined as an act or omission by a physician or

medical expert during treatment of a patient that deviates from accepted norms of

practice in the medical community and causes injury to the patient (Sonny Bal,

2009). Grunsven (1997) argues that only an extreme deviation from generally

accepted standards of practice should constitute gross negligent medical care.

It is undeniable that in criminal law, the first element that must be considered when

determining whether a doctor’s negligence or medical error constitutes a chargeable

offence is to determine whether there was a breach of the medical profession’s

standards (Korošec, 2016). 

Medical duty of care

The relationship between a doctor and a patient is a special one. Most anaesthetists work in a hospital environment and do not usually have patients directly admitted under their care. When a patient is admitted to hospital, a duty of care relationship is created, which can be applied to any doctor coming into contact with the patient not just the admitting team. Hence, it has been argued by medical law academics that any patient we come across in our professional environment is owed a duty of care, not only by the doctors the patient comes into contact with, but also by those who are employed by the Trust to deliver patient care. For example, a patient who has a cardiac arrest on a hospital corridor is owed a duty of care by any doctor who happens to be passing, and provision of assistance in such circumstances would probably be expected and would not be classed as a ‘good Samaritan’ act, however this academic view has not currently been tested in a British court environment to our knowledge.

Who’s at fault here? And if it’s more than one individual, how much of the “blame” should each be accountable (and perhaps punishable) for? We now enter the next great difficulty in trying to use a punitive model to address medical errors: the complexity of how errors occur in medicine means that true analysis of them require honest self-reflection and reporting. In other words, the culture of how we view and approach medical errors must first shift away from the traditional shame-based paradigm.

Harm and causation

Establishing causation can be difficult, as it must be demonstrated that ‘but for’ the doctor's action/inaction harm would not have occurred. Anaesthetists rarely work alone and it can sometimes be difficult to establish where the harm occurred in relation to an episode of medical care (e.g. paralysis after aortic aneurysm repair may be caused by the surgery or the provision of epidural analgesia). Unsurprisingly, claims for medical negligence most frequently fail due to an inability to establish causation as there are often a variety of possible explanations for the outcome. However, if it can be shown that the breach materially contributed to the damage or it is more likely that the damage was due to negligence than another cause that is usually sufficient.

Sometimes, in the absence of any other reasonable explanation for a phenomenon, the principle of ‘res ipsa loquitur’ (literally ‘the thing speaks for itself’) applies (e.g. the finding of a retained swab in the abdomen at laparotomy can only be assumed to be due to its negligent loss during a previous laparotomy). Such a situation would apply to procedures performed on the wrong limb/side (e.g. brachial plexus block and if damage occurs from that, then causation is assumed to be established unless the defendant can show that there is another reasonable explanation).

Conclusion

Medical negligence is a three-part test whereby a duty of professional care is owed to a patient and as a consequence of a breach of that duty, the patient suffers harm. All parts of the test must be satisfied.

Civil considerations of negligence require doctors to act to an appropriate standard usually but not exclusively judged by the standard of their peers, whereas for criminal negligence the standard of practice has to result in serious harm from actions that could be considered to be incompetent or grossly negligent. Due to the greater availability of practice guidelines to guide the courts, doctors should always consider the implications and justification for deviations from accepted practices should the patient suffer harm, and doctors in training should be aware that they are expected to seek advice and assistance where they lack experience in order to preserve public safety. Adequacy of note keeping to help defend any claims is vital.