Accountability of a doctor for a medical error in light of increased criminal liability for manslaughter and serious injury

On 13 June 2019 The Sejm passed a bill amending the Act - Criminal Code and some other laws[1]. President Andrzej Duda, acting on the basis Article 122(3) Constitution of the Republic of Poland, decided to refer 28 June 2019 this amendment to the Constitutional Court under preventive control.

However, the President challenged the law on the conduct of the legislative process itself rather than on substantive changes, pointing out that it is understandable for the legislator to legislate criminal law that meets the requirements of justice.

The law introduces, among others, stricter penalties in the case of crimes against life and health and causing serious damage to health.

1. Introduction

In addition to the publicly debated changes in the media concerning greater criminal liability for crimes against sexual freedom and morals, he was tightened up in a bill that amends the dimension of penalties for crimes against life and health, including for manslaughter, i.e.

>TABLE> under Article 155 Act on 6 June 1997 - Criminal Code 2 (hereinafter: (k) and causing serious injury, i.e. included under Article 156 k.k. regarding first of the above-mentioned crimes, this penalty dimension has been changed from 3 months to years 5 to 2-15 years of imprisonment.

On the other hand, the extent of the penalty for the offence of causing serious damage to health – from the penalty for not less than years 3 to the punishment of freedom for years 3 to 20, and in the qualified type the minimum penalty has been increased from 3 years 5 years of imprisonment.

The above mentioned changes met with a negative reaction from the community of doctors. On the other hand, to the Minister of Justice Zbigniew Ziobro argues that the exacerbation of punishment for manslaughter was not introduced for doctors. In the explanatory memorandum to the Amending Act 3 is indicated that the change Article 155 k.k.

i 156 k.k.

has resulted from the need to strengthen the legal protection of human life, justified by the exceptional importance of this legal good, which requires that appropriate amendments be made to the provisions, in particular as regards their penalties, relating not only to cases of behaviour intentionally infringing this good, but also to accidents of inadvertently causing such an effect, as a result of the wrongful conduct required by the circumstances.

True, as an example of circumstances relating to liability Article 155(156) k.k. has been given such as a construction accident resulting in more than one However, that does not mean that the planned changes will not affect the situation of the medical community, which, in fact, is being held criminally liable under the abovementioned provisions.

Taking into account the scope of the planned changes in K.K., this study will discuss important aspects related to the criminal liability of the physician in the light of the Supreme Court case law.

2. Medical malpractice criminal liability

The case law of the courts defines a medical error as a doctor’s activity in the field of diagnosis and therapy, which is incompatible with medical science in the field of available medical advice[4].

In the Supreme Court ruling of 24 October 2013 5 However, it was pointed out that the concept of ‘medical malpractice’ therefore refers not only to a therapeutic error (treatment error, including an operational error), but also to a diagnostic error (recognition error).

If it is necessary to precede an operation with specialised tests, a diagnostic error may refer to the stage of these tests, and its consequence may be a misdiagnosis of the disease leading to a mistaken decision on the operation or the extent of such a procedure.

On the other hand, as regards the principles of physician responsibility, they have been set out in the judgments of the Supreme Court of 4 July 2013 6 and 11 October 2016 7 . In relation to the criminal liability of doctors for a medical malpractice for a criminal offence under Article 155 k.k. be Article 156 k., one of the most important issues is the concept of objective attribution of the effect, whose assumptions, in the light of the criminal responsibility of doctors, are set out below.

According to the findings made by the Supreme Court in the judgment of 2016 whether the medical procedure is a prohibited act by a doctor determines whether the rules of medical art have been breached in the context of negligence. Without prejudice to these rules in the case of a procedure resulting, for example, in the death of a human being, it is not possible to speak of the performance of the type of activity prohibited from Article 155 k.k.

In the case examined by the Supreme Court in the judgment of the Supreme Court of 2016 the subject of consideration was the consideration of the physician's liability for manslaughter, i.e. liability with Article 155 k.k.

This provision states that criminal liability is the responsibility of a perpetrator who inadvertently causes man's death.

In the light of criminal liability for a medical malpractice due to the involuntary nature of the offence, it is of paramount importance to establish the infringement of the precautionary rules in question under Article 9(2) k.k.

This provision provides that a prohibited act is committed inadvertently if the offender, having no intention of committing it, commits it as a result of a lack of caution required under the circumstances in question, even though the possibility of committing the act provided for or could have foreseen it. Article 9(2) k.k.

requires that the precautionary rules in force in the particular circumstances are respected. As is accepted in a judicature, it is generally the requirements of a person prepared to perform a specific activity, which uses the appropriate tool and performs the activity in accordance with his or her professional knowledge and experience.

Precautionary rules can either be codified in a formal manner or function in practice in the performance of particular professions – this will be the case for so-called medical art rules.

Whether a medical procedure is a prohibited act by a doctor determines whether the rules of medical art have been violated, in the context of not being careful. Without prejudice to these rules, a procedure resulting, for example, in the death of a human being does not constitute a performance of the type of activity prohibited from Article 155 K.k. and therefore no doctor’s fault is established in this regard[8].

During the examination of criminal matters, the responsibility of the physician for the conduct of Article 155 k.k. be Article 156 k.k., verification of the infringement of medical art rules must be carried out on the basis of all evidence collected, in particular medical records and expert opinions.

Then, on the basis of the evidence carried out, the court is obliged to determine both what the current rules of medical art are when carrying out a particular type of medical procedure and whether these rules have been infringed and whether there is a causal link between their possible violation and death or the injury to the patient.

The Supreme Court strongly emphasises in its case-law that this is not a matter of any violation of these rules, but – due to the functions and objectives of criminal law – of a material infringement which in a criminal way increases the risk of an effect[9].

Behaviour of the perpetrator to provide a basis for attribution under Article 155 k.k. the effect in the form of human death must also be accused, i.e. There must be wine on the perpetrator's side. This means that this effect must be attributable to the perpetrator.

In the judgment of the General Court of 2013 it was pointed out that the necessary condition for updating, on the part of the addressee of the sanctioned standard, the obligation to act in accordance with the rules of conduct required under the circumstances is the predictability of the effect.

The lack of intention to commit a prohibited act must be accompanied by second element – predicting the possibility of committing a prohibited act (conscious involuntaryness) or the ability to predict the possibility of committing a prohibited act (unconscious involuntaryness).

The absence of objective predictability of a criminal effect in a particular factual situation excludes the possibility of acting in accordance with the rules of procedure and therefore excludes the recognition of such conduct as remaining within the scope of the sanctioned standard[10].

In such a situation, it is not possible to conclude that the perpetrator acted unlawfully and could be held liable for the objective effect[11]. Moreover, it is necessary to demonstrate the causal link between death and the behaviour of the perpetrator[12].

At this point, it should be further pointed out that a doctor may become an entity which, as it were, joins another person's criminal responsibility (as was the case in the case presented in the judgment of the Supreme Court of 2013).

This is meant to include in the assessment of the normative conditions for attributing an effect to a potential offender cases of criminal liability by an objectively incorrect person third, to which the scope of professional responsibility was to remove the danger to the legal good[13].

An example is the situation in which a person who is injured as a result of a criminal act goes to a hospital where help is given incorrectly, resulting in his death. Such cases are very complex in terms of determining the degree of guilt of the perpetrator and often have a complicated factual situation.

Summary

In summary, the assumptions in the Supreme Court case-law should be noted that a doctor may be liable for a medical malpractice if:

• 1) demonstrating, in the case of offences involving action, the purely physical flow of information or energy, between the behaviour of the perpetrator and the effect 14 ,
• 2) establishment at the normative (legal) level of infringement of the rules of conduct (rule of medical art) with legal good 15 (health or human life),

1. the occurrence of events leading to an objective predictable outcome, i.e. would be consistent with the legal standard of conduct of a person with adequate knowledge and experience of life 16 (i.e. a person on the basis of his medical education should have foreseen certain effects),
2. infringements of the rules of conduct (infringements of the rules of medical art), which are to be a material infringement, which in a criminal manner increases the risk of an effect, i.e. where the behaviour of that perpetrator created or substantially increased the legally unacceptable danger (risk) for the legal good of the assassination and the danger (risk) of that perpetrator, the result of that criminal effect has been realised.

However, referring to the planned changes in K.K., it is now difficult to assess how the tightening of criminal liability for criminal offences that have been profiled under Article 155 k.k. i 156 k.k. will affect the position of the courts in relation to the degree of criminal liability of doctors for a medical malpractice. It can be hoped that, given the substantial tightening of criminal liability, the courts will be more reliable in considering cases, especially in terms of evidence and causality.

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