Administrative responsibility of medical workers

Cases of adverse health care outcomes are often published in the media and receive public outcry. Lawyers note an increase in the number of complaints and litigation related to the provision of medical care. If a medical criminal case has not yet been initiated or is already being considered by the investigative authorities, the first thing to do is to seek help and advice from an experienced medical lawyer.

Sergey Gritsko has 17 years of experience in criminal law, defending the interests of patients whose health has been harmed and doctors accused of medical crimes.

Types of violations entailing criminal liability:

• causing death by negligence. Every case of death of a person within the walls of a healthcare institution or, in some cases, at home, is examined to find grounds for initiating a criminal case;
• causing harm to the patient's health. The severity of the harm may vary, but the main thing for qualifying a crime will be intent;
• untimely provision of medical care;
• leaving in danger. The profession is taken into account only if the situation involved the provision of medical care;
• performing illegal abortion;
• HIV infection;
• any means of forcing a patient to remove organs.

You need to prove 3 things:

1. The presence of a defect in the provision of medical care.
2. Causing serious harm to human health or causing death is a consequence of the action (inaction) of a doctor.
3. There is a direct cause-and-effect relationship between a defect in the provision of medical care and the infliction of serious harm to the patient’s health (death).

What needs to be done to prevent medical confidentiality from falling into the wrong hands?

Upon admission to the hospital, each patient signs a document - informed voluntary consent to medical care. As a rule, this is a standard form. It should include a section where the patient’s consent to transfer medical confidentiality to other persons is indicated. In this section, the patient either names the person to whom medical confidentiality can be transferred, or puts down about. In the second case, the doctor should not even disclose information about the patient’s health status to relatives. In the informed voluntary consent, you can make a reservation about the persons to whom medical confidentiality can be transferred after death. This is especially important when the patient is hospitalized and undergoes complex surgery.

Informed voluntary consent specifically stipulates the right of physicians to disclose medical confidentiality for the purposes of medical examination and treatment to third parties (for example, consultant doctors of other hospitals), as well as for the purpose of scientific research and publication of the results of such research.

The fault of health workers

Defects in the provision of medical care are actions, inactions, and non-compliance with established procedures, rules and standards.

Art. 24 of the Criminal Code of the Russian Federation contains different types of guilt, two main types are intent and negligence and 2 of their subtypes.

When applied to medical matters, these 4 types of guilt may look like this:

1. If we are talking about a direct form of intent, we are talking about situations where the doctor knew in advance about the potential danger of his actions, and could have assumed that they could cause damage to the life and health of the patient, but committed them. The doctor must not only know, but also desire the occurrence of these consequences; in medical criminal cases, this situation does not occur often due to the nature of the activity, one of the foundations of which is the prevention of harm.
2. The second type includes cases where the health worker knew about the potential danger, did not want harm to life and health to be caused, but did not take measures to prevent negative consequences.
3. From a legal point of view, a doctor or nurse will be guilty if they committed criminal negligence. Because much of the work responsibilities in healthcare is regulated, healthcare professionals must understand the potential dangers of their actions. If an employee ignored this danger, it means he committed negligence or improper performance of duties.
4. This type of negligence includes cases where the doctor or nurse was overconfident or underestimated the potential danger of the situation. For example, they thought that they could cope with the consequences on their own.

What responsibility is established for disclosing medical confidentiality?

Criminal liability under Article 137 of the Criminal Code of the Russian Federation. The maximum penalty is imprisonment for up to 5 years with deprivation of the right to hold a certain position or engage in certain activities for a period of up to 6 years.

Administrative liability under Article 13.14 of the Code of Administrative Offenses of the Russian Federation. Punishment for citizens in the amount of 500 to 1,000 rubles. For officials - from 4,000 to 5,000 rubles. The case is initiated by the prosecutor.

Civil liability in the form of recovery of material damage or moral damage. Both material damage and moral damage will have to be proven in court.

How to choose a lawyer?

The most serious discussions usually take place on the issue of the guilt of a medical worker.
Cases of defects in the provision of medical care cause acute rejection and moral condemnation of society and often reveal systemic problems in domestic healthcare. All this creates distrust of doctors among the population, which is why more and more complaints are being received. Representatives of the medical community are forced to defend themselves and sometimes hide facts about the work of their colleagues out of solidarity. But at the same time, clear-cut situations are extremely rare. In each individual case, there may be many different factors influencing the events that occurred. Therefore, when choosing a lawyer for medical cases, practical experience in this field is so important, because when assessing the actions of doctors, it is necessary to take into account all factors, including the condition of the patient himself and his medical history.

Criminal intent and criminal negligence

Criminal intent presupposes that the offender has a motivation to cause harm to another person. There are several forms of intent:

• direct intentional. In this case, the physician is aware of the consequences of his actions. It is important to find out for what reasons the motivation to commit a crime arose. Perhaps it was committed out of revenge or under the influence of drug intoxication;
• criminal omission. In this case, the physician realizes that the life and health of the patient depends on his inaction, but does nothing to improve the situation;
• negligence (carelessness). Negligence is said to be the case if a physician was negligent in the performance of his own professional duties;
• frivolity: the doctor did not appreciate the harm from his actions or behaved too arrogantly.

IMPORTANT! It is quite difficult to assess the harm caused by the actions of doctors to a patient. After all, people often turn to medical institutions when their health condition leaves much to be desired. In order to determine whether a crime has occurred, a forensic examination is necessary.

Help from a lawyer in criminal medical cases

Articles of the Criminal Code related to negligence, causing serious harm or death due to negligence, danger associated with failure to provide services, etc. are most often applied to doctors.

Before a criminal case is initiated

Before a doctor is charged, there are several stages of investigation. At the very beginning, relatives or the patient himself contacts the investigative authorities with a statement about the crime committed. Next, the investigator conducts a preliminary check of the information received from the applicant. The main task of this stage is to identify facts that could indicate the classification of the crime. For this purpose, all relevant information of a medical or other nature is requested, and a forensic medical examination is appointed.

If you contact a criminal medical lawyer in a timely manner, you can build a line of defense or prosecution even before a criminal case is initiated.

Depending on the situation, the lawyer may request:

• attaching to the materials documents that can confirm the guilt or innocence of the doctor;
• calling for a survey of persons who could positively characterize the doctor or confirm the words of the patient who wrote the statement;
• supplementing the list of questions for experts that must be answered during the examination, etc.

After the initiation of a criminal case

If the investigator decides to initiate a criminal case, the assistance of an experienced lawyer will be crucial.

You should not neglect the personal presence of a lawyer during interrogation, even if the medical worker is involved in a criminal case as a witness. A lawyer will help check the protocol so that all words are recorded from the witness’s words accurately and correctly.

If a doctor/nurse is suspected or accused of a crime under the Criminal Code of the Russian Federation, the presence of a defense lawyer during the interrogation is necessary. In such a situation, it is worth choosing a professional lawyer with industry experience that the medical professional is willing to trust.

Unfortunately, the lawyers appointed by the investigator, if the accused or suspect cannot invite one, are not so interested in a positive outcome of the case, and may miss some facts and opportunities.
You need to choose a lawyer who will fight for the rights of his client and insist on their implementation. Do you need qualified legal assistance in the field of medical criminal law? Contact lawyer Sergei Gritsko right now.

Responsibility of medical workers for professional offenses

To resolve the issue of criminal liability of medical workers for professional crimes, the investigator and the court need to clarify the following circumstances:

1) incorrectness or untimely provision of medical care, and in cases of its failure to provide - whether there were good reasons for this and the life-threatening condition of the patient at the time of failure to provide assistance;

2) death or serious harm to the victim’s health;

3) a causal relationship between the listed actions (inactions) of medical workers and the specified adverse outcome;

4) the presence of guilt of the medical worker;

5) the reasons and conditions that contributed to the commission of the crime.

Incorrect and untimely provision of medical care is determined based on the rules, regulations and instructions existing in medical science and medical practice. It is quite difficult to establish a causal relationship between the action (inaction) of medical workers and the unfavorable outcome of treatment, even in cases where its incorrectness or untimeliness has been indisputably proven.

Therefore, before deciding on the causal relationship between the action (inaction) of a medical worker and an unfavorable outcome, it is necessary to establish the direct cause of death or harm to the health of the victim.

The culpability of the medical worker in the unfavorable outcome follows from the essence of the facts listed above, which indicate the objective side of the offense. These data should be supplemented with information about the personality of the medical worker (his professional qualifications, attitude towards work, patients, assessment of previous activities, etc.).

The legal assessment of an unfavorable outcome depends on the conditions that could contribute to the unfavorable outcome. These include various shortcomings in the work of medical institutions, in particular the lack of a qualified assistant during emergency operations, shortage or low qualifications of nursing staff, lack of necessary equipment, etc.

According to the Criminal Code of the Russian Federation, medical workers are subject to criminal liability for the following professional crimes:

- failure to provide assistance to the patient;

- leaving in danger;

- illegal abortion;

— illegal engagement in private medical practice or private pharmaceutical activities;

— violation of sanitary and epidemiological rules;

- official forgery;

— illegal production, acquisition, storage, transportation, shipment or sale of narcotic drugs or psychotropic substances;

— theft or extortion of narcotic drugs or psychotropic substances;

— illegal issuance or forgery of prescriptions or other documents giving the right to receive narcotic drugs or psychotropic substances;

— illegal trafficking of potent or toxic substances for sales purposes;

- negligence.

Professional crimes of medical workers also include sterilization of women and men without medical indications, unacceptable experiments on humans, although these categories of criminal acts are not specifically provided for by the Criminal Code of the Russian Federation. These actions are usually considered by investigative bodies and the court by analogy as causing grievous harm to health due to the loss of an organ’s function in the case of sterilization (Article 111 of the Criminal Code of the Russian Federation) or as abuse of official powers in cases of unacceptable experiments on humans (Article 285 of the Criminal Code of the Russian Federation).

Among all the criminal actions of medical workers, negligence and negligence in the provision of medical care are considered by lawyers as crimes of negligence, and the rest are classified as intentional professional crimes of medical workers.

Intentional professional crimes of medical workers

As a rule, intentional crimes by medical workers are committed with indirect intent, since doctors and their assistants usually do not consciously want to cause harm to the patient, but in such cases they cannot exclude it. The law provides that, regardless of the form and nature of intent, it under all conditions includes the awareness by a medical worker of the socially dangerous consequences of his action or inaction.

Of all the intentional crimes of medical workers, the most anti-professional and significantly socially dangerous crime is refusal to provide assistance to a patient.

Failure to provide assistance to a patient. A widely ramified network of ambulance and emergency care, a large number of medical workers in areas where there is no ambulance and emergency care, create objective conditions that exclude the possibility of failure to provide assistance to a patient.

In cases that threaten the life of a citizen, medical workers have the right to use free of charge any available type of transport to transport the citizen to the nearest medical institution (Article 39 of the “Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens”). Therefore, any case of failure to provide medical care to a patient is always subject to public condemnation, often with the medical workers responsible for this being brought to criminal liability under Art. 124 of the Criminal Code of the Russian Federation.

The question of whether the reason for failure to provide assistance is valid is decided by the investigative authorities and the court in each specific case based on all the circumstances of the case. From a legal point of view, a valid reason why medical workers are not criminally liable for failure to provide assistance to a patient is their own illness, the inability to leave another seriously ill person at the time of the call, or the danger of moving to the patient’s location.

Under the grave consequences of failure to provide assistance, the Criminal Code of the Russian Federation provides for serious illness, serious harm to health, and criminal liability for these consequences, as well as for the death of the patient, occurs only when the medical worker guilty of this was aware (or could and should have been aware ) the possibility of serious consequences for the patient caused by failure to provide him with medical care.

Failure to provide assistance to a patient most often manifests itself in the failure of a medical worker to appear when called, in the refusal to hospitalize him and organize observation of him, in the refusal to provide emergency medical care to citizens on the road or on the street. Practice shows that such cases occur more often in conditions where it was not particularly difficult for a medical worker to provide medical care.

At the same time, the effectiveness of medical care depends on the timeliness of its provision, and, consequently, on the time of application for it by the patient, his relatives or surrounding people. It should be borne in mind that helping a person in danger is not only a moral duty, but also the responsibility of every citizen. This is discussed, in particular, by Art. 125 of the Criminal Code of the Russian Federation.

Consequently, any citizen can be held criminally liable if he himself did not provide assistance to a person in a life-threatening condition, or did not inform the appropriate institutions or persons about the need to provide such assistance.

Illegal abortion. The punishment for this crime is provided for in Art. 23 of the Criminal Code of the Russian Federation. A doctor's liability for performing an abortion outside a hospital or other medical institution is excluded if the doctor acted in a state of extreme necessity (for example, a pregnant woman could not be transported to a hospital, but for medical reasons the abortion had to be performed immediately).

Currently, there are objective conditions for the complete elimination of criminal abortions. However, there are cases when a woman, for one reason or another, often wanting to hide the termination of pregnancy, tries to have an abortion outside of the hospital.

It should be emphasized that responsibility for illegal abortion depends not only on the consequences, but also on all the circumstances of the crime, in particular the behavior of the doctor when he determines the occurrence of serious consequences (bleeding, perforation of the uterus, shock, etc.).

Illegal engagement in private medical practice or private pharmaceutical activities (Article 235 of the Criminal Code of the Russian Federation). From a legal point of view, illegal medical practice can only be committed with direct intent, when the perpetrator realizes that he is engaged in private medical or pharmaceutical practice as a profession and wishes to do so.

Under criminal law, illegally engaging in private medical practice or private pharmaceutical activity is a crime, regardless of whether or not it results in harmful consequences for the patient.

Violation of sanitary and epidemiological rules (Article 236 of the Criminal Code of the Russian Federation). “Fundamentals of the legislation of the Russian Federation on protecting the health of citizens” provide for a set of measures to ensure the sanitary and epidemiological well-being of Russian citizens. Control over their implementation is carried out by sanitary and epidemiological surveillance centers. Violation of sanitary and epidemiological rules is subject to criminal liability.

Responsibility under Art. 236 of the Criminal Code of the Russian Federation occurs both in the case when the violation of the rules named therein resulted in the spread of epidemic and other contagious diseases, and in the case when, as a result of the violation of these rules, a real threat of their spread arose. The spread of diseases should be understood as any increase in the number of cases of a homogeneous disease. The degree of public danger of a particular violation of the rules depends not only on the scale of the spread of the disease, but also on the nature of the disease and its outcome. The subjective side of this crime is expressed in intent or negligence in relation to the consequences that have arisen.

Official forgery. The illegal preparation and issuance by medical workers of various deliberately false official documents is considered by investigative bodies and courts as official forgery, provided for in Art. 292 of the Criminal Code of the Russian Federation.

From a legal point of view, forgery of documents is expressed in changing the content of an original document by introducing false information into it (instead of the correct information contained in it), amendments, erasures, etc. (for example, changing the date of birth, forging a signature in an official document, false diagnosis of a disease, etc.), or in drawing up and issuing a document whose contents do not correspond to reality (in particular, issuing a false certificate of work experience, pregnancy, some disease in their absence, etc.).

According to the law, any document emanating from a state or public institution, organization or enterprise and indicating facts of legal significance should be considered official. Documents emanating from individuals are also of an official nature if they are in the affairs of state or public institutions, enterprises or organizations and have legal significance. Therefore, forgery of such documents by an official who holds them due to his official position (for example, issuing a false medical certificate about a disease to a person from whom he obviously does not suffer) is also punishable under Art. 292 of the Criminal Code of the Russian Federation.

The law provides for forgery as a crime that is committed with direct intent. Its motive may be self-interest, i.e. the desire to derive any material benefit from the forgery (for example, to receive a bribe), or other personal considerations (to provide a service to relatives or friends, etc.), regardless of whether it was possible or not to achieve the goal for which the official forgery was committed.

Judicial and expert practice shows that official forgery of medical workers is more often associated with the issuance of false certificates and certificates about illness, physical condition, pregnancy, age, etc. Most of these criminal cases relate to the issuance of deliberately false certificates of incapacity for work or examination results (including including when conscripted into the armed forces).

Among other deliberately false medical documents, there are currently cases of issuing false health certificates to obtain a sickness pension, to receive an insurance premium for accident or illness insurance, false pregnancy certificates, etc.

Illegal production, acquisition, storage, transportation, shipment or sale of narcotic drugs or psychotropic substances. Since the use of narcotic or psychotropic substances can be dangerous to the life and health of people, their production is carried out only with a special permit. Criminal liability for violation of such permission is provided for in Art. 228 of the Criminal Code of the Russian Federation, and for the theft of these funds - Art. 229 of the Criminal Code of the Russian Federation.

Both private individuals and officials can be held criminally liable under these articles. This primarily applies to medical and pharmaceutical workers who have access to narcotic drugs or psychotropic substances.

Art. 233, which provides for liability for the illegal issuance or forgery of prescriptions or other documents giving the right to receive narcotic drugs or psychotropic substances.

Article 234 of the Criminal Code of the Russian Federation provides for liability for the illegal trafficking of potent or toxic substances for the purpose of sale.

Substances included in List “B” by the State Pharmacopoeia are considered potent if they can cause harm to health when consumed in certain doses or in an unauthorized way.

Toxic substances are substances that have a poisonous effect on humans and are capable of causing death or serious harm to health when consumed in certain, even small, doses. Toxic substances are included in list “A” by the State Pharmacopoeia.

Rules for the production, acquisition, storage, accounting, release, transportation or shipment of potent and toxic substances are issued by the competent government bodies, in particular the Ministry of Health of the Russian Federation. For violation of these rules, disciplinary, administrative and criminal liability is established.

The severity of the violation of the rules is assessed in each specific case, taking into account all the circumstances of the case. In particular, it takes into account in what quantity, for what purposes and in relation to which substances the rules were violated.

Crimes of medical workers committed through negligence

This type of crime is provided for in Art. 26 of the Criminal Code of the Russian Federation.

The law provides for two forms of negligence: arrogance , when a medical worker who committed negligence foresaw the possibility of socially dangerous consequences of his action or inaction, but frivolously expected to prevent them, and negligence , when a medical worker did not foresee the possibility of adverse consequences, although he should have and could have foreseen them.

With arrogance, the expectation of preventing adverse consequences is not only unfounded, but also frivolous with the hope of good luck, “luck”. In case of negligence, the perpetrator does not foresee the possibility of dangerous consequences of his action or inaction, and does not think about the fact that this action or inaction may cause harm to collective interests or the interests of individuals.

When deciding the issue of criminal negligence, they first find out whether the accused should have foreseen the possibility of dangerous consequences of his action or inaction. This, in turn, depends on the objective conditions in which the accused acted, on his official position and position, etc. For example, there may be cases where a doctor, who should have foreseen the results of his action or inaction, could not do so due to objective circumstances (the electricity was unexpectedly turned off or the equipment deteriorated during an operation) or the subjective state of the accused (painful condition, inexperience of the doctor) .

The issue of careless actions of medical workers is often associated with unjustified and unlawful risks in the process of providing care to a patient. From a legal point of view, risk is justified and legitimate when a dangerous action is taken to achieve a socially useful goal, when it is scientifically proven that there was an objective possibility of achieving this goal, and when it was impossible to achieve it by non-risky means. At the same time, the onset of adverse consequences is only possible, but not inevitable. Similar situations occur in medical practice. However, the patient or his relatives must be aware of a certain risk of the upcoming operation or other medical procedure and give their consent to this.

The nature and degree of responsibility of medical workers for the consequences of their careless actions or inactions depend on the degree of arrogance or negligence demonstrated. The Criminal Code of the Russian Federation does not have a special article providing for criminal liability of medical workers for careless actions. This type of professional crime refers, as in other professions, to malfeasance related to the negligent performance by an official of his duties.

Criminal liability for medical negligence depends both on the actions of the doctor themselves and on their consequences.

Thus, to prove the doctor’s guilt, establishing a cause-and-effect relationship between careless actions and an unfavorable treatment outcome is of great importance. An unfavorable outcome often depends not on the actions of the doctor, but on objectively random reasons.

Negligent , negligent attitude towards one's official duties is the most common reason for bringing medical personnel to criminal liability (Article 293 of the Criminal Code of the Russian Federation “Negligence”). Forms of negligence in the actions of doctors can be different. They can manifest themselves in an overly hasty, inattentive history taking or even ignoring it, in a superficial, careless examination of the patient, which entails an erroneous diagnosis and incorrect treatment.

In some cases, the arrogance and negligence of doctors is manifested in insufficient training, careless anesthesia, careless performance of surgical interventions, failure to follow the rules of postoperative treatment, etc.

A relatively common consequence of the negligence and negligence of a surgeon is the leaving of a foreign object (gauze swab, napkin, instrument) in the body cavity during surgery.

Unfavorable outcomes of diseases and surgical interventions can also be the result of negligence and negligence of nursing and junior medical personnel who did not provide observation and care for a sick child or seriously ill adult.

In some cases, the negligence of a doctor is associated with the failure to use the various technical means at his disposal, which leads to gross diagnostic errors and unfavorable outcomes (for example, failure to conduct an X-ray examination in the case of a head injury can lead to an error in diagnosing a skull fracture and death from compression of the brain by gushing blood).

Most often, negligence of medical personnel is associated with the use of another drug instead of the required one, or an overdose, or the use of very concentrated solutions of drugs.

Many medical actions in the process of examination and treatment are regulated not only by separate orders of the ministry and other health authorities, but also by special rules and instructions (for example, on the administration of serums). Failure to comply with the requirements of these rules and instructions when treating patients may be regarded as an aggravating circumstance. In particular, in case of unfavorable outcomes from blood transfusion, such circumstances should include transfusion of incompatible, non-sterile, hemolyzed blood. Practice shows that non-compliance with certain rules and instructions is often associated with defects in the organization of medical care.

Physician negligence sometimes manifests itself in the dishonest maintenance of a medical history or other medical documentation. Knowing that the medical history is also a legal document indicating the dynamics of the disease, diagnostic measures taken and treatment, in case of unfavorable outcomes, doctors sometimes make attempts to correct, supplement and even completely rewrite the medical history. It must be emphasized that various amendments, insertions between lines, inserts, etc. may be considered by investigative bodies and expert commissions as recording a medical history after an incident, especially in cases where these amendments do not correspond to other medical documents.