Interpretation of law. Border healthcare professional liability (reasonable risk).

Circumstances precluding the criminality of an act are those conditions under which the infliction of harm is not regarded as an act entailing criminal liability.

These include: necessary defense, emergency, the detention of the person who committed the crime, physical or mental coercion, and reasonable risk.

Reasonable risk takes place including in medicine.

See more: Article 41 of the Criminal Code.

The law defines the limits of the legality of risk, in which criminal liability is excluded:

- If the goal could not be achieved by non-risk actions, and the person who accepted the risk took sufficient measures to prevent harm;

- If the risk was fraught with danger for the lives of many people, with the threat of an environmental catastrophe or a public disaster.

Medical risk is a type of reasonable risk. It is possible with surgical interventions, therapeutic treatment, when conducting various biomedical experiments.


Legal responsibility

In the legal literature there is the concept of adverse treatment outcomes.

They are divided into medical errors, accidents and punishable omissions.

Cases where responsibility does not occur:

a. A medical error is a conscientious delusion of a physician in diagnosis, treatment methods, performing an operation, etc., due to significant reasons: imperfect medical knowledge, technology, lack of knowledge due to little experience.

b. An accident is an unfavorable outcome of such a medical intervention, as a result of which it is not possible to foresee and prevent it due to accidental circumstances, although the doctor acts correctly and in full accordance with the medical rules and methods of treatment.

Punishable offenses are cases of criminal punishable unfair medical care.


Criminal responsibility

The criminal code contains several articles that directly affect the interests of patients and medical professionals:

- Art. 109 of the Criminal Code Causing death by negligence;

- Art. 118 of the Criminal Code Causing grievous bodily harm through negligence;

- Art. 123 of the Criminal Code Illegal abortion;

- Art. 124 of the Criminal Code Refusing to help the patient;

- Art. 128 of the Criminal Code Illegal placement in a psychiatric hospital;

- Art. 233 of the Criminal Code The issuance or falsification of prescriptions or other documents giving the right to receive narcotic drugs or psychotropic illegally;

- Art. 235 of the Criminal Code Illegal occupation of private medical practice or private pharmaceutical activities;

- Art. 292 of the Criminal Code Official forgery;

- Art. 293 of the Criminal Code Negligence.

Progress in medical science in the field of transplantation has created the possibility of criminal situations in this area. In this regard, new articles have appeared in the Criminal Code:

- Art. 120 of the Criminal Code Forced organ transplants or tissues for transplantation;

- item "g" part 2 of Art. 105 of the Criminal Code Murder in order to use the organs and tissues of the victim.

Also, the novelty of the Russian legislation is the introduction of a norm of criminal responsibility due to the spread of HIV infection.

- Part 4 of Art. 122 of the Criminal Code Infection with HIV infection due to improper performance of their professional duties.


Civil responsibility

Article 309 of the Civil Code: Obligations shall be discharged in the proper way in conformity with the terms of the obligation and with the requirements of the law and of the other legal acts, and in the absence of such terms and requirements - in conformity with the customs of the business turnover or with the other habitually presented demands.

In order of article 732 of the Civil Code, The customer may demand the cancellation of a concluded consumer work contract without payment for the work done and also the compensation for damages when, as a result of the incompleteness or inaccuracy of the information received from the contractor, a contract was concluded for the performance of work not having the characteristics that the consumer had in mind. The contractor that did not finish the customer the information on the work indicated in Item 1 of this Article shall bear responsibility also for the defects of the work which arose after its transfer due to the absence of such information therewith.

In case of maiming an individual or of any other injury to his health compensation shall be extended to the earnings (income) which has been lost by the injured person and which he had or could definitely have, and also to the expenses incurred by injury to his health, including the expenses on medical treatment, additional nutrition, the acquisition of medicines, prosthesis, care by other people, the sanatoria and spa treatment, the acquisition of special transport vehicles, retraining, if it is found out that the injured person is in need of aid of these kinds and care and has not the right to receive them free of charge.

See more: article 1085 of the Civil Code.

Moral (non-pecuniary) damage is compensated by the causer in the presence of his guilt and represents such consequences of an offense that do not have an economic content and value form (physical and moral suffering).


Mechanisms for resolving legal conflicts with patients.

There are two mechanisms for resolving legal conflicts in the field of public health: extrajudicial and judicial.

The extrajudicial mechanism is not strictly regulated and can be implemented both without participation and with the participation of a third party. Often the third party is the Mandatory Medical Insurance Fund.

The largest number of out-of-court complaints are statements on the provision of citizens with medical insurance policies, as well as those associated with a shortage of drugs.

An important role in resolving legal conflicts is played by organizations that carry out licensing, certification and certification in the field of public health. Such organizations can take effective measures to protect the rights of citizens: suspending a license, sending an application to the court to revoke a license.

Public associations play a significant role in resolving these disputes. These include:

- associations for the protection of clients' rights;

- Commission on ethics in the field of public health;

- professional medical associations to which citizens can file complaints with their members;

- consumer rights protection societies;

- trade union bodies.

Thus, out-of-court conflict proceedings can occur as follows:

a. Administratively by committing an imperious act: for example, suspending a license.

b. In a disciplinary process by bringing a medical officer to disciplinary responsibility.

c. In civil law process by negotiation of the parties on the voluntary satisfaction of their requirements.


Dispute Resolution Mechanism

The right to judicial protection is enshrined in the Constitution of Russia. The court is the final authority that should resolve a legal conflict in the absence of the expected effectiveness from self-defense of rights, as well as protection from administrative bodies and public organizations.

Citizens who apply to the court for the protection of their rights should consider the following nuances:

- The victim must clearly define what he is waiting for as a result of the trial;

- It is necessary to formulate the subject and content of its requirements. General requests for the protection of rights will not be considered in court, even there will be no ability allows filing a claim.

- Claim proceedings can take a long time (up to several years).

- High costs, both material and moral (experiences of the plaintiff, related to the need to inform the court of intimate details of his health, unpleasant memories of getting injured in the process of treatment or the death of a loved one);

- The need to contact a lawyer who has medical and legal knowledge.

- Even if the claims are satisfied, the amount of compensation may be disproportionately small.