LAWYER FOR DOCTORS IN MEDICAL NEGLIGENCE CASES

Medicine and law are two great sciences whose paths cross in the field of medical negligence.

 

The most significant examples of medical negligence include:

1. Incorrect diagnosis,
2. Disregard or incorrect interpretation of laboratory tests,
3. Failure to recommend the appropriate examinations,
4. Inappropriate medication or dosage,
5. Unnecessary surgery,
6. Surgical error or operating on the wrong site,
7. Premature discharge from hospital,
8. Inadequate post-hospital treatment or care.

It must, however, be emphasised that even where the doctor takes all appropriate measures, the possibility of complications always exists, since no examination or operation is absolutely safe.

Thus, the meeting of these two sciences sometimes has an unpleasant starting point and, at times, an unpleasant outcome. Daily practice has shown that the understandable feelings of patients or their relatives in cases of health complications, or the negative state of mind faced with news of death, often lead, justly or unjustly, to a search for those responsible, particularly in the person of the doctor. On the other hand, it is also possible — in light of the foregoing phenomenon — that a proportion of doctors are forced to act not on the basis of medical science, but with a view to shielding their actions against possible involvement of themselves with the justice system, particularly the criminal justice system. This “defensive medicine“, as it is called, not only carries a cost — for example, by leading to excessive or in some cases unnecessary tests on the patient — but also clearly does not appear to advance the standard of medical care provided.

Independently of this practice, if, building on the foregoing, a criminal case of medical error or so-called medical negligence arises, much is at stake for both sides. For the doctor, beyond the imprisonment (misdemeanor) that may be imposed and the damages that he may be called upon to pay, his medical reputation and his standing as a scientist and professional are at stake. As for the patient, the safeguarding of his lawful rights and his judicial protection are paramount.

The criminal court in such medical negligence cases, after evidentially investigating and taking into account the positions and arguments of both sides, must determine the truth and attribute criminal responsibility only where, in the specific case, it actually exists. Accordingly, the central issue of the present subject is the critical question of the conditions and terms under which, according to law, the criminal court assesses and ultimately affirms a medical error, attributes negligence to the doctor in respect of its existence, and pronounces him guilty — obviously here — of either bodily harm by negligence or homicide by negligence (manslaughter).

A common prerequisite for finding that the doctor committed either of these two punishable acts is, first, that the existence of an objectively medical error be established through evidence. In the science and doctrine of criminal law, this is referred to, as is well known, as “external negligence“, and its content is one or more breaches in the medical act.

It is a fact that the prevailing view, both in the theory of criminal law and in the case-law of the criminal courts, regardless of how it is each time formulated, accepts that this so-called external negligence — or in other words, the objective medical error — exists where the doctor acts in breach of or in deviation from the commonly recognised rules or the prevailing scientific data of medical science, art and practice. Thus, where the doctor acts in a manner constituting such a breach or deviation and thereby performs a medical act dangerous to the life or health of the patient, the first prerequisite of externally defective — that is, erroneous — conduct is met. According to the prevailing view, this constitutes the first necessary condition for criminal liability for homicide or bodily harm by negligence to be attributed to the doctor (Articles 302, 314 and 28 of the Penal Code (PK)). This applies only where, under the second essential prerequisite, this objectively erroneous and dangerous conduct of the doctor is shown to be the causal factor in the harmful outcome subsequently suffered by the patient.

The above defective — that is, erroneous — conduct of the doctor may manifest itself by act, by omission, or by a combination of the two. For a better understanding of this distinction, characteristic examples are provided by the case-law of the criminal courts which have tried medical-error cases. Thus, for example, the following cases have been judged, by corresponding judicial decisions, to constitute medical error or medical malpractice committed by act: Erroneous diagnosis and the resulting incorrect administration of medication, but also the administration of erroneous medication following a correct diagnosis, as occurs, for example, in cases of overdose or unsuitable medication. Likewise, error in the performance of a surgical operation, due to incorrect handling, has been so judged, as occurs in the unintentional perforation of another organ during the surgical operation.

On the other hand, the following have been judicially classified as medical errors manifested by omission, for example: failure to transfer the patient in good time to the hospital from the private surgery, defective clinical examination of the patient upon presentation at the hospital, and failure to perform in good time the appropriate laboratory or imaging examinations. Finally, medical malpractice — that is, a medical error of objectively composite conduct, involving initially an act and subsequently an omission of the doctor — has been judicially recognised, for example, where there was proven error during the surgical operation followed by failure to diagnose and address in good time the complication arising from that error.

It is clarified that, under Article 15 of the new Penal Code as well, for there to exist a medical error by omission of an owed action, there must be a particular legal obligation on the part of the doctor to prevent the occurrence of the punishable result — that is, of bodily harm in the sense of deterioration of the patient’s health, or of death. Such a particular legal obligation to handle a medical incident lege artis may arise either directly from the law, such as from the Code of Medical Ethics, or from a contract between the doctor and the patient or with a provider of medical services, such as a private clinic, or finally from a prior dangerous medical act of the doctor on the same patient whom he is called upon to treat, as occurs in the last of the above examples.

After establishing, in accordance with what has already been said, that there exists objectively erroneous conduct of the doctor in handling a medical incident and that there exists a causal link — that is, an objective connection — between that conduct and the causation either of bodily harm (i.e. deterioration of the patient’s health) or of death, the court then examines the subjective element and, in particular, whether these can be attributed to negligence on the part of the doctor in accordance with the fundamental Article 28 of the Penal Code. That is, the doctor commits, as the case may be, the punishable acts of bodily harm by negligence or of homicide by negligence, where the medical error and the punishable result of bodily harm or death set out above can be attributed to a lack of the attention which the doctor was, on the one hand, required to display under the specific circumstances and conditions, and, on the other hand, was able to display on the basis of his individual attributes — such as his level of training or experience. This last subjective criterion also operates in favour of the doctor. That is, if for example the objectively medical error is not due to a lack of attention which the recently specialised and inexperienced doctor was unable to display in the difficult incident he was urgently called upon to handle, no punishable act exists in respect of him, regardless of whether the adverse outcome occurred. Within the above subjective criterion of negligence falls, on the more correct view, the doctor’s personal condition at the time, whether physical or psychological. Thus, for example, criminal law assesses differently the standard of care for a doctor who continues to work after an all-night and heavy on-call shift, while at the same time being called upon to handle a difficult and extremely urgent incident. Ultimately, negligence is attributed as a criminal-law concept to the doctor where, from the cumulative concurrence of the objective and the subjective criteria thereof, he either did not foresee at all the punishable outcome of deterioration of the patient’s health or of death, or did foresee that outcome but, negligently — in the sense set out above — believed that it would not occur (Article 28 of the Penal Code (PK)).

Speaking of the criteria for medical negligence in the field of what is known as medical criminal law, it is clarified and emphasised that it is neither correct nor permissible for any exceptional successes or performances of a doctor in difficult cases, or his particular individual abilities — often recognised in the medical world — to weigh disproportionately, compared to other colleagues, on his criminal liability, in the sense that the legal order and justice would demand of him heavier requirements in the form of displaying a particular and superior standard of care in handling each incident. This is because, were the latter to occur, the particularly diligent or capable doctor would be treated more strictly under criminal law than his average colleague, which would be unjust and absurd. Therefore, the correct and reliable criterion for establishing whether or not there was a lack of the doctor’s attention in the objectively erroneous handling of a medical incident is the attention and care that the average doctor would have had to display, of the same specialty and with corresponding training and experience, under similar conditions to those of the medical incident to be handled. In this latter case — that is, of the average criterion in medical negligence and its case-by-case determination — the criminal-law treatment of doctors is both just and equitable in respect of the punishable acts of homicide by negligence and bodily harm by negligence.

Therefore, only if all the above objective and subjective prerequisites for medical negligence concur cumulatively — as substantive criminal law specifies and details — can the doctor be found guilty of having committed the above punishable acts. Here, however, and in the light of the foregoing, one essential issue carries particular value and significance. In dangerous or borderline cases for the patient, the doctor must take the risk of a medical act assessed lege artis as necessary but with outcomes that are doubtful according to medical science, in order either to improve the patient’s health or to prevent its immediate deterioration or his death. If — unfortunately — this medical act does not achieve its goal, something which according to medical science was, as has been said, possible, criminal law has no scope for application here. If the contrary view is accepted — which is plainly not correct — the necessary initiative of the doctor in difficult or dangerous incidents is curtailed to the detriment of the true scientific interest of the patient. That is, in this latter case the absurd would arise, namely that the legal order pushes the doctor towards the censured and decadent defensive medicine, as previously referred to.

As to the latter, it is worth noting that it was strongly criticised at the conference of exceptional interest on medical negligence held in November 2009 in Thessaloniki by the research network of the Aristotle University of Thessaloniki, named “Modern Medical Practice, Biomedicine and Law”, with the conference theme “Medical Liability in Practice” and with mixed participation of doctors and lawyers. There, the Professor of Obstetrics-Gynaecology and Human Reproduction of the medical school of the above University, Vasileios Tarlatzis, criticising defensive medicine, among other things noted that “the fear of judicial entanglement may lead, and has already led, particularly young doctors, to easily order, without absolute indication, a multitude of examinations, including very expensive ones such as CT or MRI scans, in order to feel covered“, with all the negative consequences that this practice entails. In addition, it is noted that this “defensive” excess is not what criminal law requires. For this reason, if the above unnecessary and excessive medical examinations are not performed, where according to medical science and practice they were not deemed necessary for handling the specific incident, there is no criminal liability of the doctor, even if deterioration of the patient’s health or death results. That is, the omission of the non-indicated lege artis excess to which defensive medicine pushes is not subject to criminal scrutiny, since here the doctor neither errs objectively nor is negligent subjectively.

Another critical issue in medical negligence, entirely related to the foregoing, which must be clearly delimited here and determined on the basis of the rules of the law in force, is the significance and resulting legal consequences of the patient’s consent or refusal to undergo a specific medical act. According to the legislative provisions in force today, this matter is dealt with as follows: As a rule, in every case the doctor is obliged to provide his services where the patient consents. If the patient refuses the performance of the medical act, the particular legal obligation of the doctor in respect thereof ceases to exist, and accordingly in this case the doctor does not commit the punishable acts of homicide or of bodily harm by negligence if, following such refusal, death or deterioration of the patient’s health ensues. This view prevails in the field of the science of criminal law and its doctrine, and is moreover grounded in the legislation in force. In particular, compulsory treatment, even where the patient’s life is in immediate danger, was prohibited in law as early as Article 47 § 3 of Law 2071/1992. This prohibition was subsequently enshrined in the European Convention on Human Rights and Biomedicine. This Convention was ratified in our country by Law 2619/1998 — with Article 6 § 1 thereof being critical — and accordingly forms an integral part of internal Greek law and prevails over any contrary provision of law, in accordance with Article 28 § 1 of our Constitution.

The same prohibition of compulsory treatment is now included, harmonised with the above European Convention, in the Code of Medical Ethics, where it is expressly stipulated that the doctor is obliged to refrain from any medical act without the patient’s prior consent. This is provided for in Article 12 § 1 of that Code, namely Law 3418/2005. Indeed, even in urgent cases, where there is an immediate, absolute and pressing need to provide medical care, the doctor, pursuant to Article 12 § 3 of the Code of Medical Ethics, may intervene without consent only where such consent cannot be obtained. Thus, the need to handle an urgent and critical incident creates, in some cases, an obligation of intervention by the doctor without prior full information of the patient and without his consent having been given to a specific course of treatment. This occurs, for example, where the patient is brought to a hospital following an accident in a state of aphasia and absolutely critical condition, or is psychiatrically deemed entirely lacking criminal capacity.

In such cases, pursuant to the above Article 12 § 3 of the Code of Medical Ethics, the doctor is obliged to proceed immediately with carrying out the necessary medical act, in order to avert the danger threatening the patient’s life or health. There is even heard, in this case, the view that the doctor should in any event seek the consenting opinion of the patient’s relatives or of the persons who have undertaken his care, as in the case of a minor. However, on the absolutely prevailing view, the doctor has no such obligation in law; rather, he must immediately proceed with the necessary medical acts to handle the critical and urgent incident, since, moreover, no relative — much less any third party — can dispose at will of the life or health of other persons. The above arises directly also from Article 12 § 3 (c) of the Code of Medical Ethics.

At this point it must be stressed that the public prosecutor in medical negligence cases, as a judicial officer pursuant to Article 88 of the Constitution, who investigates a case of medical error, has the power and indeed the legal obligation under Articles 43 and 51 of the new Code of Criminal Procedure (KPD) — if from his investigation through the conducting of a preliminary examination he judges that no sufficient indications arise that, in the specific case, the above legally substantive prerequisites for the existence of a medical error attributable to negligence of the doctor in the sense set out above were present, and consequently that the doctor did not commit the punishable acts of bodily harm by negligence or of homicide by negligence — to refrain from instituting criminal prosecution against the doctor for those acts, but instead to file the case away or to dismiss the formal complaint of the aggrieved party, as the case may be. In this way, a pointless, mentally exhausting and costly criminal procedure for the doctor is avoided, as is his unjustified defamation up until his eventual acquittal by the criminal court, since, as previously stated, no criminal offence arises in the specific case. At the same time, it must be said that this also prevents possible financial exploitation of an unfounded criminal prosecution against a doctor for medical negligence — a phenomenon known in everyday practice.

All the above elements of a case in which a medical error or medical negligence is investigated must arise, in accordance with the provisions of the Code of Criminal Procedure (KPD), from the joint evaluation of the assertions of any complainant, the witness statements, the documents in the case file and the assertions of the doctor involved. Among the documents, a prominent place in this evaluation is held by any forensic medical report drawn up by the competent forensic pathologist.

In particular, as regards the medical witnesses in medical negligence cases — especially those of the same specialty as the doctor under investigation for negligence, who testify in such a case — the following are noted: Scholarly research on the matter has shown that there is indeed a cautious stance of the Greek courts as to the credibility of the doctors-defence-witnesses. This stance of the courts sometimes goes as far as direct challenge of their testimony, as is strongly evident in the wording of the relevant Areios Pagos 1438/2001 judgment. It is a fact that the collegial or scientific solidarity among doctors, and their often anxious effort to assist, as witnesses, their accused colleague, is sometimes evident in the eyes of the judges, who to some extent justifiably hesitate to accept manifestly unfounded or even tainted assertions. There are not a few who consider that the reversal of this climate of suspicion as to the credibility of doctor-witnesses in criminal trials of medical error of their colleagues lies in the response of the doctors themselves, of the Medical Associations, of the Medical Schools and of the Medical Scientific Societies.

In conclusion, in order finally to determine, by judicial-jurisdictional ruling, the existence or otherwise of a medical error objectively and of negligence of the doctor subjectively in the sense set out above, which causally brought about either deterioration of the patient’s health or his death, and accordingly to determine the commission or otherwise of the punishable acts of bodily harm or homicide by negligence within the meaning of Articles 28, 314 and 302 of the Penal Code (PK), the court — if the case is referred to it — must, exercising correct judgment and after weighing all the evidence and the assertions of the accused doctor, also take into account the following, in line with the consistent position of the case-law of Areios Pagos: His overall handling of the specific medical incident of the case under judgment, in accordance always with the data of medical science, art and practice. The diligence, attention and care he displayed in handling the medical incident, with the safe criterion always being the diligence of the average doctor of the same specialty and experience. And, finally, in any event, the court must take into account and weigh also the subjective criterion of negligence — namely, the particular conditions of exercising the medical work in the specific case, such as workload, the need for speed in handling the incident, its difficulty, or any concurrent and parallel obligations of the doctor to respond to multiple emergency cases, as for example in the case of a serious traffic accident with many seriously injured persons. Then, indeed, there can be a safe, just and correct judicial-jurisdictional ruling, capable of dealing accurately with the concept of negligence — as doctrinally developed by scholarship and judicial decisions — in the field of medical acts and omissions. And this in view, moreover, of the above serious issues which, as said at the outset, are at stake in cases of what may be termed medical criminal law.

The above text is based on the addresses of the Public Prosecutor of the Larissa Court of Appeals and lecturer at the National School of Judicial Officers, Mr Stamatis Daskalopoulos, at the 37^th Annual Conference of the Orthopaedic and Trauma Society of Macedonia–Thrace and at the 20^th Cardiology Conference of Central Greece.

• See also the article Administrative Law Lawyer
• See also the article Civil Service Law Lawyer
• See also the article Lawyer for Application for Annulment
• See also the article Lawyer for State Civil Liability
• See also the article Lawyer for Petition to the European Court of Human Rights (ECHR)
• See also the article Medical Negligence Lawyer
• See also the article Vaccination Policy
• See also the article Defamation
• See also the article Bodily Harm
• See also the article Manslaughter (Negligent Homicide)

FREQUENTLY ASKED QUESTIONS ABOUT LAWYER FOR DOCTORS IN MEDICAL NEGLIGENCE CASES

1. What sentence does a doctor face for medical negligence?

Where prosecution is brought for bodily harm by negligence (Article 314 of the Penal Code (PK)) or homicide by negligence (Article 302 of the Penal Code (PK)), imprisonment (misdemeanor) is generally provided for, the duration of which depends on the seriousness of the outcome and the degree of negligence. In practice, there is significant scope for mitigation: suspension of sentence (Article 99 of the Penal Code (PK)), conversion into a monetary penalty or community service (Article 80 of the Penal Code (PK)), and recognition of mitigating circumstances (Article 84 of the Penal Code (PK)) such as a prior law-abiding life and good conduct following the act. In parallel, a damages claim is also brought by the patient or his relatives, which is dealt with separately. Correct handling from the preliminary examination stage is critical in order to avoid referral to trial.

2. How is the absence of medical negligence proven?

The criminal liability of the doctor presupposes cumulatively an objective medical error (breach of the commonly recognised rules of medical science), a causal link with the harmful outcome, and subjective negligence under Article 28 of the Penal Code (PK). The defence focuses on each of these elements separately: documenting that the medical act was in accordance with lege artis treatment, that the adverse outcome is due to a complication or to a pre-existing condition of the patient and not to the doctor’s handling, or that the owed and possible attention is lacking under the specific conditions (on-call duty, urgency, available resources). Important elements are the technical reports of expert witnesses and the testimony of doctors of the same specialty as witnesses.

3. What does a doctor do as soon as he receives a summons or criminal complaint?

From the first moment that the doctor learns of a criminal complaint, a summons to provide explanations, or a summons to a preliminary examination, he must contact a lawyer before making any statement. A spontaneous statement without preparation is not advisable, since in medical negligence cases every wording can be exploited in the case file. The doctor immediately gathers the patient’s complete medical file, hospitalisation charts, test results, consent forms and on-call notes. The lawyer drafts a substantiated memorandum with medical and legal argumentation, so that the public prosecutor may assess from the outset the absence of sufficient indications.

4. How long does a medical negligence case last in Greece?

The duration varies depending on the complexity of the medical incident and the courts’ caseload. The preliminary examination and the conducting of a forensic medical report or expert witness opinion may require several months to over a year. If the public prosecutor files the case away, the procedure is concluded there. If criminal prosecution is instituted, the main investigation or direct referral and the trial in the courtroom follow, with a time horizon that may extend to two to four years overall, while legal remedies (appeal, cassation) add further time. Correct handling at the pre-trial stage can considerably shorten matters.

5. What documents does a doctor need for his defence?

The basic pillar is the patient’s complete medical file: history, diagnostic and imaging examinations, hospitalisation chart, medication regimens, surgical protocols, anaesthesiology charts, discharge documents and post-hospital care instructions. In addition, the patient’s signed information and consent form is required, evidencing compliance with Articles 11 and 12 of the Code of Medical Ethics (Law 3418/2005). Also significant are details of working conditions (on-call schedule, available staff and equipment), the contract with the hospital or clinic, and any professional civil liability insurance policy. The lawyer simultaneously makes use of case-law on similar incidents.

6. What is the role of a specialised lawyer in medical negligence cases?

Medical negligence is a particularly technical subject that requires a combination of criminal law and an understanding of medical protocols. Our office undertakes the defence of the doctor from the preliminary examination stage, with the aim of filing the case away before prosecution is instituted. It drafts thoroughly substantiated memoranda, cooperates with medical expert witnesses of the appropriate specialty, challenges forensic medical reports where they present deficiencies, prepares the defence statement and develops standalone pleas for mitigating circumstances. In the courtroom, it represents the doctor at all stages up to and including cassation, while at the same time coordinating with the civil damages file, so as to safeguard both the criminal position and the professional reputation of the client.