Homicide and bodily injury caused by medical negligence

Before proceeding to a concise and summary development of the issue of Homicide and Personal Injury due to the negligence of physicians, it is imperative to clarify the terms homicide, personal injury, and of course negligence.

In order to be able to convict the accused, the elements of Article 14 of the Criminal Code (hereinafter referred to as the "CC") must be met and the legal form of the crime (otherwise referred to as the special circumstances, formal circumstances, criminal circumstances) must be established.

Article 14, therefore, states that "A crime is an act unjust and imputable to the person who commits it, which is punishable by law", while the term act means positive and reactive conduct, hence also omission (in this case, Non Genuine Omission).

With regard to the latter, it must be considered on the basis of Article 15 of the CC (and in cases of negligence consisting of a set of conduct) and in the finding of the particular legal obligation, together with the cumulative existence of characteristics such as the perpetrator being aware of the existence of the danger and being able to act without endangering his personal legal interest, i.e. human action being possible without being hindered by a real or legal obstacle.

The legal basis therefore includes proof of the objective and subjective elements of the crime and, where applicable, the external conditions of the merits and/or the subjective elements of the offence.

The objective substance includes the subject of the crime (otherwise, the perpetrator), the act (which, as noted in Article 14 of the PC, refers to either an act or the omission thereof), the result of the act (whether harm or danger was caused), the object of the crime (the legal good), the circumstances of commission in each case (for example, the time, manner, place), and finally the causal connection between the perpetrator's act and the result, using the theory of objective imputation.

The development of the subjective element is also of particular importance, since it is within this element that the concept of 'negligence' is embedded. In particular, the subjective element is established either by the existence of fraud or negligence, in accordance with Article 26 of the CC.

Fraud can take three forms, according to Article 27 of the CP:

1.     First degree direct fraud, or fraudulent intent (where there is a cognitive and volitional element, especially volitional for the occurrence of the specific result).

2.     Second-degree direct fraud, or otherwise fraudulent acceptance of the necessary/inevitable (where again the cognitive and volitional elements are present, but in this case the perpetrator seeks another result and, in order to achieve it, accepts as 'necessary' the result in question).

3.     Contingent malice (in this form of malice, the perpetrator does not know with certainty about the result of his act, yet accepts it as likely to occur and does not take countermeasures to avoid it, cynically disregarding it).

On the contrary, negligence, according to Article 28 PC, is based on objective criteria and is divided into two stages: External Negligence and Internal Negligence. In order to establish the subjective nature of the crime on the basis of negligence, both External and Internal Negligence must be proven cumulatively.

External negligence relates to the breach of the duty of care that the offender should have exercised, as an average person in the offender's relevant field of activity would have exercised.

Internal negligence, in turn, is distinguished into Conscious or Unconscious (one of the two forms in isolation). Conscious is often confused with the aforementioned Intentional Negligence, and refers to that case where the perpetrator has no volitional element to his act, yet there is a weak cognitive element, in the sense that the perpetrator had foreseen the possibility of the outcome in question occurring, but hoped that it would be avoided by taking appropriate countermeasures. Unconscious, as its name suggests, suggests that the perpetrator did not foresee the outcome, although he should have.

Therefore, in order to commit a crime of negligence under the foregoing, one must:

1.     It must be expressly established by law as a crime of negligence.

2.     It must be explicitly stated in the statute of limitations.

3.     It must be examined whether and whether the offender (and the offender's death) ought to have exercised due care, on the basis of the standard of the average prudent and conscientious person.

4.     And to consider the foreseeability or otherwise of the outcome (i.e. subjectively the degree of negligence).

Great emphasis is placed on the analysis of the above terms, since, as will be discussed further, criminal acts within the field of medicine are often intertwined with the term Negligence, whether Conscious or Unconscious.

Negligence in the field of medicine will be judged on the basis of the frameworks that impose objective criteria for the proper exercise of the medical profession/function, i.e. on the basis of its exercise by an average socialite in the same field of activity, as mentioned above. An incomplete or incorrect assessment of a patient's condition can have serious consequences, including manslaughter or negligent bodily harm.

The main circumstances of Ambulatory Medical Malpractice include:

·       Non-diagnosis or misdiagnosis of the disease and the patient's particular problem: Physicians must correctly assess symptoms and medical examinations. A wrong diagnosis can lead to a wrong treatment, which can worsen the patient's condition (Example: incomplete taking of the patient's history, wrong interpretation of medical examinations, etc.).

·       Incorrect provision of treatment: in continuity and connection with the previous point: Administration of incorrect medication can have devastating consequences for the patient's health.

·       Technical error during or after the performance of a medical act (for example: leaving an instrument inside the patient's body, as mentioned below in case 1659/2003).

·       Failure of the doctor to refer the patient to a specialist doctor on the matter (otherwise called: negligence of the undertaking: this is particularly the case with a specialist doctor, as well as in cases of specialised problems of the patient which require specialised knowledge, which the doctor in question does not have in order to manage the situation correctly).

·       Failure by the doctor to monitor the patient (particularly following surgery, because complications are likely to arise during the post-operative period which the doctor should detect).

·        But also more generally in the breach of the duty of care of an average prudent doctor by not acting lege artis.

Often, the negligence shown by the doctor does not consist of a single act, but of a set of conduct involving more than one act.

Logically, the above-mentioned guidelines are not absolute.

Thus, the doctor is not considered to have shown negligence (external) when he or she acted as required, among other examples:

·       He took the trouble to obtain the history of the patient, who was not honest with him and withheld it from him (and if there was no other way to come to the doctor's knowledge, for example through X-rays. This case of deception clearly refers us to excusable error, Article 31(2) of the Penal Code). Therefore, the doctor cannot be held responsible for the incorrect diagnosis resulting from this lack of information, which he could not otherwise have obtained.

·       There was a lack of symptoms related to the disease in question, so the average prudent physician would not have been able to diagnose the particular health issue (for example, the patient would not have presented with a high febrile state, respiratory distress or decreased white blood cells, which among other things are key precursors to sepsis).

·            Acting under pressure, according to the axiom "no one is obliged to do the impossible", according to which the main examples are related to resident doctors during shift work, lack of special knowledge and doctors, equipment, infrastructure, referral possibilities, while at the same time he made every effort to provide medical assistance in accordance with the requirements of the Code of Medical Ethics (Law 3418 /It would be manifestly unfair to attribute this result to this condition in which the doctor did his best. Of course, we are not referring here to the doctor's taking action in the absence of any pressure, because if, despite his incompetence, he has attempted to take care of the patient, then he is in immediate danger of being accused of medical negligence.

·       He shall provide the patient, who shall give his express consent, with adequate information.

·       Even in the absence of his/her expertise, he/she shall provide first aid to the patient until he/she has been referred (directly) to the appropriate medical specialist.

·       And in general, he shall act in accordance with the rules required by the proper practice of medical science.

Of course, action and omission carry the same weight. As stated above, in order to establish the existence of a Non Genuine Omission under Article 15 of the PC, the specific legal obligation must be sought. In the present case, this is found in Article 9 of the Code of Medical Ethics, as well as in Articles 307 (Genuine Negligence) and 441 of the PC which states that ''doctors and midwives who, without justifiable impediment, refuse to perform their work or who, in relation to it, are guilty of any negligence from which a danger to another person may arise shall be punished by a fine or by detention for up to three months, if the act is not punished more severely by another provision''.

It has been argued, from the foregoing, that no doctor is liable for the outcome of any patient, but only the doctor who has been entrusted, even by informal contract, with the patient or has been entrusted with the patient in the past (for example: to attend to him) so as to hold a protective duty towards him. This guarantee is established if the doctor has been appointed, for example, as the responsible doctor on duty.  In addition, his special legal obligation may arise from his own previous dangerous acts, such as giving the patient the wrong treatment or performing a defective operation.

This view cannot be considered valid, mainly because there are clear legal provisions that recognise the specific legal obligation of physicians to take physical action. If these provisions did not exist, then doctors in hospitals, who do not have a contractual relationship with patients, would have no legal obligation to provide lifesaving assistance in emergencies. According to Articles 24 para. 1 and 25(1). 1 of Law 1565/1939 ('on the code of medical practice'), every doctor is required to provide medical assistance with consistency, responsibility and dedication and to be available at any time of the day or night to provide first aid in sudden, dangerous or serious cases, without requiring immediate payment.

As noted above, in order to establish liability based on negligence, both external and internal negligence must be present.

Above we have discussed the main manifestations of External Negligence in the medical field. Turning to Internal Negligence, it presents itself, as we have already pointed out, either as Conscious or Unconscious. In this case, either the physician foresaw the result of his action, but hoped that it would not occur (Conscious), or he did not foresee it, as he should have done as a person bearing the responsibility for exercising due diligence in the medical profession, based on his knowledge, skill and experience (Unconscious).

Having developed the general forms of culpability, with a unique focus on negligence, and even more specifically on negligence in the medical field, we can now consider the specific crimes of negligent homicide and personal injury.

Under Section 302 of the CC, "Whoever negligently kills another shall be punished by imprisonment for not less than three months" and under Section 314 of the CC, "Whoever negligently causes bodily injury or damage to the health of another shall be punished by imprisonment for not more than two (2) years or a fine or community service. If the bodily injury caused is severe, it shall be punishable by imprisonment for a term not exceeding three (3) years, and if it is entirely minor, a fine or community service shall be imposed."

It is worth at least briefly noting here that the definition of death and injury or damage is vital in order to subsequently identify the extent of the liability of each medical practitioner, or the involvement or influence of other factors. The prevailing theory, therefore, which is consistently followed regarding 'death' is that it occurs with necrosis of the brain stem (otherwise known as brain death). Similarly, physical injury is any external action on the body, while damage to health is the disturbance of internal functions.

In this respect, in order to establish the objective nature of the crimes in question, the perpetrator must commit an objective error but also be causally linked to the result (as noted below with regard to causation).

In order to affirm their objective substance, therefore, it must be established each time:

1.     That conduct (by act or omission) of the physician consisting of external negligence.

2.     The criminal result.

3.     The causal connection between that conduct and the result.

The first element under consideration is the lack of the - objectively judged - care that the doctor was required to exercise, as any average prudent conscientious doctor would have been required to do, which in turn led to the occurrence of the negligent conduct.

In order to proceed with the analysis of the physician's culpability, however, the physician's obligation and his ability to foresee and avoid the outcome must be established, because as we have mentioned above and below, there are cases of lack of knowledge, lack of skill and so on, which under certain conditions may interrupt the physician's "culpability".

Finally, it is necessary to cause the death or bodily injury of the patient as a result of the negligent conduct of the doctor.

The criminal liability of the doctor is not based on a simple "connection" of the adverse outcome with his own conduct, but on a firm proof that this adverse development of the patient's health was caused by his act, in the sense that it was his "work" (or that of other doctors cumulatively, as will be analysed below in the context of contributory negligence), which is due to the fact that he did not act lege artis.

So, in summary, in order to establish a doctor's criminal liability for manslaughter or personal injury by negligence, the following is required:

1.     His action must be externally negligent, i.e. dangerous to the life or physical health and integrity of the patient.

2.     The action must have led to the result and the danger must have been realized.

3.     The result must be attributable to the physician-actor and there must be no grounds for removal.

4.     Not to have acted lege artis, to have been able to foresee the result, to have been able to prevent it.

One of the most important conditions, mentioned above, for the criminal conviction of a doctor is the connection between his negligent act or omission and the harmful result (otherwise, causation). It must be shown that the result (death or bodily injury) is a direct consequence of his negligence and not of other factors.

Causation is examined on the basis of the following questions:

Could another doctor, had he or she been in the same position, have prevented the harmful outcome?

Is the outcome a consequence of the physician's specific act or omission, or were there other independent contributing factors?

Particular emphasis must therefore be placed on the causal link between the result and the doctor's negligence, so that the criminal result can be attributed to him, in accordance with the theory of equivalence of conditions (conditio sine qua non = condition without which the result in question would not have occurred).

On the basis of this theory, therefore, it must be the medical offender's action that caused the result, or, in the case of a crime of omission, the medical offender's omission must have led to the occurrence of the result.

With regard to omissions, this theory is applied in a more different way than to actions. In crimes of omission, it is sufficient to prove that if the required action had taken place, the result in question would not have occurred, but on the basis of probabilities (albeit strong) that border on certainty.

The causal link is not broken by any contributory negligence, nor by contributory negligence, as noted below.

In addition to the theory of the equivalence of conditions, the case is also judged on the basis of theories such as:

       I. of proximate cause (causa adaequata) (:The cause of an effect is considered to be that event which, on the basis of common sense or experience, is capable of producing it),

     II. objective attribution (:Whether an effect can be attributed to the perpetrator on the basis of objective criteria. The result must be legally "foreseeable" and logically linked to the act in order to be attributable. Avoid excessive extension of liability in cases where the causal link is only accidental),

   III. the lawful condition (: cause-effect relationship on the basis of lawfulness, i.e. an inevitable or natural, irreversible link. The cause must be a necessary condition of the effect),

  IV. of legally distinct causation [: Among different degrees or types of causation, those causes are recognised which have a particular legal significance (substantial) and not just any cause which merely preceded the effect (incidental)],

     V. the physical unity of the act (: physical and temporal character of the act. The act and its consequences are considered as a single physical whole),

   VI. the disturbing cause (: Influence of external factors intervening and affecting the cause-effect sequence).

The Supreme Court (no.: 183/2006), in cases where more than one person acts, introduces the element of immediacy, i.e. the act of the actor in question is directly linked to the result. This is detected whenever his outwardly negligent act coincided with the result.

We must consider this element of causation, since the requirements of criminal law stipulate that each individual must be protected from doubts as to his or her culpability (in dubio pro reo).

Questions of causation arise particularly in situations where doctors and medical teams work together to treat an incident, which collectively brings about the criminal result. In such a case, we speak of contributory negligence. A common example is the cooperation of a surgeon and an anaesthetist in the performance of an operation, both bearing a heavy responsibility for the successful outcome.

It must, therefore, be the case that each of the individual acts, or all of them taken together, contributed to the outcome.

The case of the "principle of trust", which is essentially on the opposite side of the convergent negligence principle, is worth mentioning here, and according to which: although the person who initially engaged in conduct set the starting point for the path to the result, but this was interrupted by transferring responsibility to another person, the original person will not be liable for the result. This principle is relevant to our consideration of medical negligence because the exclusive attribution of the historical event to a foreign area of liability refers in particular to persons charged with duties/obligations/professions competent to prevent risks, such as doctors.

Since, therefore, the originally responsible and negligent actor no longer has control over the event and its outcome, the dominant negligent actor is the physician. A well-known example of a factual situation is the incident in which the initially negligent person causes injury to the victim, but the victim dies not because of the injury, but because of other fault, i.e. the medical error that occurs when the original perpetrator transfers sovereignty over the event exclusively to the medical practitioners. Another example based on the principle of reliance concerns the transfer of responsibility from the medical specialist to the specialist.

Following on from the latter and in a contrary case, the rule of "negligence of entrustment" is also found. Specifically, if the specialist entrusts an act to a specialist or another doctor, who does not have the necessary experience, he will be liable for the result (original), on the basis of the argument that he should have been able to foresee, even as a possibility, the wrong outcome of this act, and remains responsible for the care of the patient, according to case 114/2016 of the Supreme Court.

Another case relevant to inclusion, where the original unlawful risk caused by the offender is not realised, but a different one, is the case of free and conscious self-risk or self-injury, and therefore the risk comes from the victim himself, but he is fully aware of the consequences of his action and has responsibility and control over the situation, so that the original offender no longer has the ability to prevent the outcome.

However, in order for self-harm to operate as a ground for relieving the perpetrator of responsibility, certain conditions must be met (linked to the 'exoneration' of the medical practitioner, as noted below):

1.       The victim must be fully aware of the risks he or she is taking, which is only the case when he or she is fully informed and no dangerous aspect of the situation is concealed from him or her.

2.       The victim must fully understand the risks involved, which means that the risk he or she is consenting to must be directly related to his or her action.

3.       The victim must, in the circumstances, have the capacity to understand the dangerous nature of his/her act and to act accordingly, i.e. he/she must have full consciousness and mental capacity to control his/her behaviour.

4.       The victim chooses to commit the dangerous act and puts himself or herself at risk by his or her own decision, spontaneously and independently, acting with complete freedom and a sense of responsibility. It is a serious, conscious and deliberate act of violence.

If these conditions are not met, then the responsibility may revert to the original perpetrator, as the victim did not have the capacity to perceive or prevent the risks.

An example, specifically in relation to the Third Note, is the process of detoxification of a drug addicted patient, but who is not in a state to comply with the attending physician's instructions, so that he or she is unable to control the patient's behaviour, and thus in the event of death occurring, the physician would be liable for negligent homicide as he or she should have been able to foresee this inability of the patient.

Similarly, with regard to the Fourth Note on the exposure of the victim by his own decision, we should bear in mind that the performance of a timely medical act falls outside the above circle of "victim's choice", as it is a professional activity (Code of Medical Ethics: Article 9) and its main objective is to protect the health of the patient

Criminal liability in the medical field is shaped by the possibility of foreseeability and deviation from prescribed ethical conduct.

The justificatory basis for the non-liability of a medical practitioner for an effect that occurs lies in the rule of permissible risky action, according to which the act, although initially unjust, is necessary because it is linked to the broader field of activity (in this case medicine, but also other examples are interwoven with the Highway Code, etc.), because the expected benefits outweigh the possible risks.

The doctor must, as a consequence of this rule, have chosen the appropriate method for dealing with the problem in question, in accordance with the rules of medicine (Code of Medical Ethics: Article 2).

At the same time, information (Code of Medical Ethics: Article 11) and patient consent are of particular importance. The patient should be informed about the medical procedure in a complete and comprehensible way, so that he or she understands the general procedure and the risks, and the doctor should also explain the alternative methods and criteria for choosing the treatment in question. If the patient is not in a position to be informed, the doctor must inform him or her as far as is 'possible', and if this is not possible, then he or she must inform the persons who by law consent (for example: the patient's relatives; Code of Medical Ethics: Article 12 ). Similarly, the patient's consent must be explicit.

The doctor's liability exists when the applicable rules of medicine (lege artis) have been violated (Code of Medical Ethics: Article 2 and 3). The whole of the court cases concerning medical 'negligence' and their criminal liability are based on whether an act has been committed lege artis (and we would say less concerned with the consent given or the information provided).

Accordingly, no liability of the doctor is established if the four elements mentioned above are cumulatively observed, viz:

1.     The appropriate method is followed.

2.     The appropriate method is followed.

3.     The patient explicitly consents.

4.     The physician's action is lege artis.

Regarding whether all of the above can also be applied to qualified doctors (decision no. 19/2001 Ch. Satlani), they are responsible if certain conditions are met, as follows (also noted above):

1.     They failed to refer the case to the specialist ("negligence of the assuming physician").

2.     Failure to provide first aid as required by the rules of medicine.

3.     They acted in violation of the instructions they received from the medical specialists.

4.     They acted in any other way against the rules of medicine (lege artis).

Of course, a thorough approach is required in each case, since, as already noted, there may be cases of 'subordination', special knowledge required and so on.