Criminal liability for medical error

Uncategorized | r. pr. Monika Hensler

Due to the increasing legal awareness of the society – in particular as regards the rights held by patients, and also due to the universality of medical services provided (both in the public and private sector), the number of proceedings concerning public and civil liability of persons and entities performing medical professions and providing such services is increasing. When providing medical services, it is worth being aware of the legal risks that may be associated with the provision of services in an incorrect manner, i.e. in breach of the rules of art and contrary to the indications of current medical knowledge (so-called medical error).

Who can be held liable for medical error?

In addition to doctors, other health professionals, i.e. nurses, midwives, paramedics, medical technicians, are also responsible for proper patient care. Healthcare providers may also be liable for breaches of the precautionary principle in the provision of medical services.

The Polish legislator has provided for several regimes of liability under which a person who has committed a medical error may be held liable. The first point to note is civil liability. It can be borne by both individuals and economic entities that provide medical services (public hospitals, private clinics and medical centres). In addition, individuals in the medical profession may also incur disciplinary liability – in accordance with the regulations governing the profession. Disciplinary liability is incurred for violation of the rules of professional ethics or violation of the regulations governing the practice of the profession. In addition to the above-mentioned liability regimes, individuals in the medical profession may also be liable under the provisions of the Criminal Code. Due to its specificity, it is criminal liability that can carry the most severe consequences for the individual who has committed a medical error.

Criminal liability for offences against health or life

Polish Criminal Code provides for a number of provisions aimed at protecting the most essential legal asset of human health and life. As far as the charges against medical professionals are concerned, offences whose subjective side is characterised by inadvertence predominate.

A charge that can be successfully brought against a health care professional is manslaughter. According to the Criminal Code, attribution of liability is only possible if a direct causal link is established between the result in the form of the death of a human being and the doctor’s behaviour, which is objectively considered to be a medical error. A separate category of offences against life that may affect medical professionals are the prohibited acts of euthanasia and abortion.

From practice, it appears that the allegations most often made against members of the medical staff relate to causing harm to the patient’s health. Only an action by a doctor or other medical practitioner which is contrary to current medical knowledge and the art of medicine can be considered an offence. The legislator in the Penal Code has divided the offences resulting in causing health damage into three categories: those causing severe, moderate or slight health damage. It is also criminal for a person to be exposed to imminent danger of loss of life or grievous bodily harm by a person owing a duty of care.


Full article is available in Polish here.

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