When health problems arise, we all turn to doctors. However, unfortunately, it is not uncommon for a doctor’s negligence to lead to the death of a patient. And here, in addition to the grief of loved ones, the question arises of holding the doctor himself accountable.
When a doctor’s mistake leads to the death of a patient, it is immediately important for relatives to take the first steps in order to seek compensation for material and moral damage.
In particular, before contacting law enforcement agencies or the court, it is necessary to initiate a series of examinations to determine the actual cause of death of the patient.
How to prove a doctor's guilt in the death of a patient due to his negligence
First of all, it is necessary to appeal to the patient’s medical card and his medical history. After all, the negligent attitude of doctors can consist not only in an erroneous choice of treatment method, but also in an incorrect diagnosis.
In addition, medical negligence leading to the death of a patient is reliably established through forensic medical examinations. In some cases, it is necessary to carry out several of them in order to fully clarify the truth.
In some cases, exhumation of the body is required so that experts can conduct their research. This entire process must be carried out in full compliance with the norms of the Criminal Procedure Law.
If an accident occurs due to medical negligence, seek legal advice from an attorney. He will be able to set priorities and suggest the right course of further action.
If the careless attitude of doctors led to the death of the patient, Article 293 of the Criminal Code will be the main one for the investigative authorities. At the same time, it is possible that the actions of doctors can be qualified under other provisions of the criminal law.
For example, when the carelessness of doctors led a patient to a coma, then charges can be brought under other articles.
In what cases does a citizen have the right to contact Roszdravnadzor?
1. Incorrect diagnosis by a doctor and refusal of treatment.
2. The citizen did not receive his rightful means of rehabilitation, medicines and free medical care.
3. Violation of a paid contract with a patient by a private clinic.
4. The medical institution refused to issue a referral for surgery.
And this is an incomplete list of situations. In addition to Roszdravnadzor, a citizen has the right to apply to Rospotrebnadzor, FFOMS, insurance company, prosecutor's office and court.
Negligence of doctors: brief description
How to punish a doctor for negligence leading to death? In order to competently construct your position regarding the accusation of unscrupulous medical personnel in the death of a citizen, you need to understand what exactly is considered negligence?
From the point of view of criminal law, if a person died due to the fault of a doctor, as a manifestation of negligence, the situation can be considered in several cases.
The doctor, due to his insufficient professional training, chooses a deliberately incorrect method of treatment, which turns out to be fatal for the patient.
Sloppiness and careless attitude towards the patient will occur when the physician has not properly assessed the seriousness of the patient’s health condition. As a result of such laziness or carelessness, the patient dies.
Negligence can also be the desire to cure a patient in the simplest way, when the illness requires significantly serious medical intervention.
Whether there was dishonesty in the doctor’s actions will ultimately be determined by the investigation with the help of one or more examinations. In addition, the opinion of independent doctors will probably be taken into account.
The Supreme Court assessed moral damage from the fatal mistake of doctors
As the Investigative Committee reported on April 15, in 2021, 300 criminal cases involving medical errors reached the court. In total, the Investigative Committee received 6,500 complaints against the actions of doctors, and 2,029 criminal cases were initiated. Law enforcement officers note that their work is complicated by contradictory judicial practice. Previously, the Investigative Committee reported that, together with the National Medical Chamber, it was developing amendments to the Criminal Code so as not to deprive people of liberty for unintentional crimes. Human rights activists from the “Zone of Law” note that in practice doctors do not receive real sentences. But if a cause-and-effect relationship between the doctor’s actions and the harm is confirmed, then he should be deprived of the right to practice for some time, and the hospital is obliged to pay fair compensation, they say in the “Zone of Law”.
300 out of 2029 criminal cases of medical errors went to trial in 2021
Compensation can be recovered through civil proceedings. But judicial practice may be different here too. This is shown by the case of Valentina Dvorova*, who sought compensation for moral damages after the death of her husband and went all the way to the Supreme Court.
Nikolai Dvorov* died at the beginning of 2021 in Megion City Hospital (KhMAO-Yugra). He came to the hospital complaining of cough, high temperature and shortness of breath. At four in the morning he was examined by the therapist on duty, diagnosed with ARVI and acute bronchitis and prescribed treatment. But just three hours after hospitalization, at 7:15, Dvorov died in the ward from massive thromboembolism (thrombosis).
- The Supreme Court stood up for patients who were treated incorrectly
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May 29, 20:43
His wife Valentina Dvorova* was sure that the doctors were to blame for this because they made an incorrect diagnosis and did not prescribe the necessary treatment. She filed a lawsuit in which she demanded 3 million rubles. compensation for moral damage, because “the husband died in the hospital due to untimely and poor-quality medical care.” Dvorova claimed that for a long time they could not tell her what was happening to her husband, and at the moment of clinical death he was found on the floor in the hospital.
Experts who studied the case confirmed the violations, but at the same time noted the ambiguity of the situation. An audit of the Department of Health of the Khanty-Mansi Autonomous Okrug-Yugra showed that the therapist on duty did not order a full examination of Dvorov, incorrectly assessed the severity of his condition, did not monitor the implementation of her appointments, and so on. At the same time, the incident was also the fault of the patient himself, who sought help too late and spent too little time in the hospital, the inspectors specified. These arguments were generally confirmed by the forensic medical examination at the claim of the wife of the deceased. Experts came to the conclusion that medical care was provided poorly and untimely, and the medical documents were poorly filled out. But experts made an unfavorable prognosis for Dvorov himself. Thrombosis could have occurred at any time, and even effective treatment does not save from this, as stated in the conclusion of the forensic examination.
The examination confirmed that the patient was treated incorrectly, but recognized that this was unlikely to help save him.
From this, the Megion City Court concluded that the claim should be partially satisfied. Dvorova is not entitled to compensation for moral suffering after the death of her husband, because he died not through the fault of the doctors. At the same time, the hospital must pay her for treating her husband incorrectly. With this justification, the city court ordered the institution to transfer 750,000 rubles to the plaintiff. compensation for moral damage.
The court recovered 1 million rubles for the death of a patient due to an incorrect diagnosis
But the Court of the Khanty-Mansiysk Autonomous Okrug - Ugra overturned this decision. He decided that the lower court allowed two claims: it denied compensation for death and awarded compensation for improper treatment. The appeal agreed with the first part, but canceled the decision to pay 750,000 rubles. According to the district court, here the first instance went beyond the stated requirements. After all, Dvorova demanded compensation for moral suffering due to death resulting from improper treatment, and not for the incorrect treatment itself. Such conclusions can be drawn from the appeal ruling No. 33-2030/2018.
But the Supreme Court saw a mistake here. “The appeal improperly divided one claim into two independent ones,” he pointed out. This happened because the subject’s court did not take into account the factual grounds of the claim, the Supreme Court panel chaired by Lyudmila Pchelintseva decided. But Dvorova wrote in the lawsuit that her husband was misdiagnosed, left without treatment, and at the moment of clinical death he was lying on the floor. The plaintiff experienced moral suffering due to the health condition of a loved one, but the appeal ignored this, as indicated in determination No. 69-KG 18-22. With these conclusions, the civil panel of the Supreme Court overturned the decision of the district court and upheld the decision of the first instance.
Recovery of moral damages from hospitals: difficulties for both plaintiffs and courts
The position of the Supreme Court in this case is atypical, because the courts are generally reluctant to satisfy demands for compensation for moral damage, even if it is clearly formulated, declared and justified, admits the general director of the Faculty of Medical Law, Polina Gabay. At the same time, claims for compensation for moral damage in medical cases are complex and specific, and the category “Moral damage” is quite subjective, says Gabay. Therefore, the practice, she said, is “completely different.” It is difficult for judges themselves to navigate the amount of compensation, because the amounts are usually hidden in judicial acts, adds PB Legal lawyer Nadezhda Simakova.
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But at the same time, the statements themselves are often poorly written, Gabay shares: “Patients and their relatives may not indicate what exactly the moral harm was, and may not provide any evidence of its infliction.” This is another reason why claims are unsuccessful or are awarded significantly less compensation than claimed, Gabay says. And according to Simakova’s observations, it can be difficult to prove illegality and causation. “For example, courts often refuse compensation if the development of the disease somewhat deviates from normal and it is not entirely clear whether there was an opportunity to avoid the development of complications,” says Simakova. In such cases, the courts do not confirm a direct cause-and-effect relationship between medical care and the consequences.
“Courts often refuse compensation if the development of the disease deviates somewhat from normal and it is not entirely clear whether it was possible to avoid the development of complications.”
But there is good news for plaintiffs in this category of cases. It becomes easier for them because in recent years unreasonably high standards of proof have been lowered, including in cases of moral damage, Simakova claims. “In particular, the Supreme Court allowed the recovery of compensation for medical malpractice if there was no harm to health, but only moral suffering,” the PB Legal lawyer cites as an example an explanation from the Review of Judicial Practice of the Supreme Court No. 4 (2016).
In general, Gabay says, patients and their relatives are increasingly suing hospitals, including claims for compensation for moral damages. According to her, this is not only a Russian, but also a global trend.
* – first and last names have been changed by the editors.
- Evgenia Efimenko
- Supreme Court of the Russian Federation
How to hold a doctor criminally liable in the event of a patient’s death in 2021
If a person dies in the hospital, what should you do? Relatives of an injured patient have two ways to hold unscrupulous doctors accountable.
The first of these is filing a complaint with the police. Then the decision to initiate a criminal case will be made based on the results of checking all the facts stated in the application.
Along with the demand to hold the doctor accountable, relatives of the deceased patient may raise the issue of collecting material and moral damages. Then the possibility of recovering the amounts will be considered in a civil lawsuit.
Attention is important! Do not rush to immediately file a claim in court for compensation. It is necessary to wait for the results of an inspection by the competent authorities regarding the death of a patient due to the negligent actions of a doctor or other medical workers.
When filing a claim, you need to describe in detail what exactly the negligence of the medical personnel consisted of. In addition, it is necessary to outline the range of actions that the doctor actually had to take.
Another way is to contact the prosecutor's office. Read how to do this in our next subsection.
Each case of medical errors is individual. Therefore, before contacting law enforcement agencies, you should consult with a lawyer in Moscow specializing in medical law.
What to do if a medical organization refuses to comply with your request?
The refusal of a medical organization to fulfill your request on a voluntary basis for the poor-quality medical service they provided forces you to write a claim to them. A claim against a medical organization for providing poor-quality services must have a detailed description of the current situation and the demands that you put forward to the organization.
The claim must be made in two copies so that you keep one of them. Submit the claim yourself through the reception organization, and in the rest of the claim, the medical institution employees are required to write down the exact date of receipt and full name. the person who accepted the claim.
You can submit your claim by registered mail with return receipt requested by mail. A notification of delivery will be given to you upon receipt of the letter by the addressee and you will be given a check for using such a service, which will be considered evidence in court even if your request is ignored. Or send a valuable letter with a list of attachments confirming that it was the claim that you sent.
With your claim, attach copies of documents indicating that you received medical services at this institution. And the patient’s medical record, contract, x-ray or receipt will serve as evidence.
Again, the medical institution did not respond and did not try to satisfy your demands? Then you need to go to court with a statement of claim.
When writing a statement of claim, you must clearly indicate your requirements and describe the current situation in detail, as well as indicate your compliance with the pre-trial procedure for contacting a medical institution. Attach a copy of your claim and original documents that prove that this institution provided you with poor-quality services.
By defending your legal rights and interests in court, you have every right to both a refund of the money spent and compensation for moral and physical harm that resulted from the poor-quality service provided. Therefore, additional requirements should be indicated in the statement of claim.
How to write a complaint to the prosecutor's office about the negligence of a doctor in the death of a patient
First of all, you need to decide with the prosecutor's office where to send the appeal. This can also be done at the place of residence of a relative of the deceased person.
The application itself should begin with a detailed description of the circumstances that led to the request for medical help (hospitalization, calling an ambulance to your home, visiting a doctor on an outpatient basis).
After this, the complaint to the prosecutor’s office about the doctor’s negligence must contain a reference to the person’s death. If its causes are already known, then you should write about them (improper treatment, drug overdose).
You can submit an application to the prosecutor's office regarding the actions or inaction of a doctor that led to the death of the patient yourself, but it is better to entrust this matter to a professional who has the necessary experience.
Next, we should describe the actions that formed the elements of the doctor’s alleged crime. In other words, it is necessary to indicate what exactly the negligent attitude towards the patient consisted of.
At the end of the application, you should ask to check the stated facts and take measures to initiate a criminal case.
Naturally, it is necessary to attach all medical documents confirming the visit to the doctor and the statement of the fact of death. The more there are, the easier it will be for the prosecutor’s office to make an informed decision on the further development of the case.
Arbitrage practice
- In 2008, the federal court of the Central District of Tolyatti sentenced a neurosurgeon and the head of the department to suspended sentences, depriving them of the right to practice medicine for three years, because they had discharged without further treatment a person of no fixed abode, who subsequently died from a diagnosed disease. .
- In 2007, a resuscitator-anesthesiologist at the regional specialized infectious diseases children's hospital in Krasnodar and a nurse on duty were sentenced to a year's stay in a penal colony and a subsequent ban on practicing medicine for two years. This preventive measure was applied for incorrect actions when inserting a catheter into a little girl admitted with a diagnosis of whooping cough, which caused thrombosis of the artery of the right forearm, which led to death due to the failure to perform an operation that could save the child’s life.
So, now you know how to prove medical negligence and how to punish negligent doctors. We wish that the knowledge gained will never be useful to you!
Liability of a doctor for negligence resulting in the death of a patient in 2021
We have already noted above that Article 293 of the Criminal Code of the Russian Federation establishes liability for the sloppiness of doctors. What do its norms imply?
So, if negligent actions resulted in death, then punishment is possible, both in the form of forced labor and in the form of imprisonment. In both cases, the maximum criminal penalty can be 5 years.
If a medical error resulted in the death of several people, then the maximum term of imprisonment can last 7 years.
In addition, a physician may be temporarily deprived of the right to practice medicine. The period of suspension from duties may be 3 years.
When determining the final penalty, both mitigating and aggravating circumstances surrounding death due to medical negligence will be taken into account.
Liability and consequences of medical negligence
What is the criminal liability of a doctor? If it was nevertheless proven, then the specialist will face the following penalties, dictated by Article 239:
- A fine of up to 120 thousand rubles, arrest for up to 3 months and compulsory or corrective labor for up to 1 year - if the damage was minor.
- Forced labor for up to 5 years, a ban on further medical practice for up to 3 years, or imprisonment for up to 7 years, if the consequence of the specialist’s negligence was the death of the patient or serious harm was caused to him.
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Two more ways to resolve the issue to restore justice
Once you have discovered a medical error, the patient can write a statement to the chief physician. Describe the situation in detail and indicate the date and location, as well as write down your passport details. For improper performance of duties, the head of the institution is obliged to punish his employees. If the manager is on the side of his subordinates, record the words on a tape recorder or make a video recording, or demand a written response from him.
And of course, there is another authority to help victims of medical errors - the Compulsory Medical Insurance Fund. With its help, funds are distributed among medical institutions, which come from each working owner of a compulsory medical insurance policy. They have the right to cut funding to those who have received a complaint.
Chances of winning a medical malpractice lawsuit
Unfortunately, you do not have access to complete information about your diagnosis, course of illness and history, and the patient will not be able to pick up a medical record. And a doctor accused of medical malpractice may destroy important incriminating information. The patient will need to file a statement with the police or a lawsuit as soon as possible, order an independent examination to prove his case, and draw up a correct statement of claim. And of course, do not forget to transfer the available evidence of the services provided with checks, etc.
