Medical Illegality and Errors in the Leading Legal Practice

Abstract

The lack of a unified approach to understanding and tackling medical errors is a factor in the failure of the established leading legal practices of national courts. Under the Article 140 of the Criminal Code of Ukraine there exists a responsibility for improper performance of professional duties by a medical or pharmaceutical worker. Ukrainian law does not actually distinguish between a medical error and a criminal offense. Our results allow us to distinguish three approaches to understanding of the medical error. Under the first approach, a medical error is seen as objectively unlawful action with a negative social consequence inherent in it, a defect in professional activity. According to the second approach, a medical error is understood both as a result of good faith deceit and as a result of the committed negligence. In accordance with the third oneunder the error is recognized any departure from medical standards, including clinical protocols. The relationship between concepts "doctor's error", "medical error", "healthcare mistake" is determined. In the practice of the European Court of Human Rights, a medical error, medical negligence and deliberate failure or improper performance of professional duties are distinguished. The European Court of Human Rights sets out two aspects of dealing with cases of death due to failure of provision or inadequate provision of medical care: effective legal regulation of healthcare; efficient means of control, investigation and prosecution of perpetrators.