Medical Risk in Criminal Law

Abstract

The goal of healthcare work is to save people’s lives, to maintain and improve their health. However, in spite of all efforts of doctors, this goal is not always achievable because of the factors and circumstances whose negative impact it may be impossible to take into account due to objective reasons. It leads to the question of the liability of a doctor for patient harm resulting from a medical intervention. There are numerous publications in the fields of both medicine and law dealing with the grounds, forms and limits of liability of medical staff for unintended harm to the patient. Considerably less attention is paid to researching the limits of this liability and the grounds for recognizing the harm to be lawful. The absence of criminal unlawfulness in a medical interference which led to a bad outcome was justified by different circumstances: absence of a causative connection between the actions of the doctor and the negative consequences, absence of guilt in the doctor’s actions, the situation of critical need, the situation of justified risk, etc. The authors prove the fundamental non-applicability of the institute of critical need to the assessment of a medical interference with a bad outcome, as well as the unsuitability of the criminal law norm on justified risk for recognizing patient harm as non-criminal because Art. 41 of the Criminal Code of the Russian Federation, on the one hand, includes requirements that do not refer to healthcare work, and on the other hand — they do not take into consideration its specific features. According to the authors, there is currently a necessity to supplement the Criminal Code of the Russian Federation with a criminal law norm on medical risk as a separate circumstance that precludes the criminal character of patient harm resulting from a medical intervention.