OBJECTIVE ASPECT OF THE CRIME «IMPROPER PERFORMANCE OF PROFESSIONAL DUTIES BY A MEDICAL WORKER»

R. Lemekha 
Senior Partner, Bar Association “Lemekha & Partners”; Senior Lecturer, Department of Medical law of the Faculty of Post-Graduate Education at Danylo Halytskyi Lviv National Medical University

The features of the objective aspect of a crime, such as: non-performance or improper performance of professional duties by a medical worker, have been examined in the article. The problem of a doctor’s error in the practice, has been researched. Some issues of differentiation of a doctor’s error and medical negligence have been considered. There have been determined the notion of socially dangerous consequences, which fall into the scope of evaluation of the concept "heavy consequences" of the crimes, foreseen by Article 140 of the Criminal Code of Ukraine.  
Key words: crime, objective aspect of the crime, doctor’s negligence, medical error, “heavy consequences”.

Problem statement. Medicine is an important sphere of our life; its basic aim is to save people’s lives and maintain people’s health. During recent years medical science has reached serious progress in prevention and treatment of numerous diseases, which were considered as incurable or difficult to treat in the past. Medicine has become capable to penetrate into deep processes occurring in our bodies, to influence on the reproductive health, genetic status, and so forth.
Life and human health are not only personal, but also public goods, and, therefore, their protection is secured by the national legislation. In particular, the right to health care is foreseen in Article 49 of the Constitution of Ukraine. 
The activity of medical workers, as well as any other activity, is not deprived from drawbacks. According to Article 80 of the Basic Law of Ukraine on health care, medical and pharmaceutical workers, who during the performance of medical care have broken their professional duties, are subject to disciplinary, civil, administrative, or criminal liability under the law. In particular, while performing their professional duties, medical workers may admit cases of abuse, unwillingness to fully and thoroughly examine and establish the objective condition of a patient’s health, taking not enough actions necessary to provide proper medical care, etc., that causes the necessity of criminal and legal evaluation of medical workers’ actions. However, their actions or inactions can be considered as illegal ones only if the violation of professional duties by a medical worker is proven because of careless or dishonest attitude to a patient that causes “heavy consequences”.
Domestic and international studies have proved that the risk to die because of medical negligence or some error is tens and sometimes hundreds of times greater than the risk to die in the result of an accident. Experience of medical counselors and organizations involved in the patients’ rights protection has shown that 50-70% of official information reflected in medical records is totally or partially false. 
Moreover, analysis of judicial practice in Ukraine demonstrates that cases of holding medical workers liable for improper performing of their professional duties, and, furthermore, making a verdict of guilty for them in Ukraine can be found extremely rarely (In the Single State Register of court decisions we can find only 58 sentences). This situation may reveal that just some of the crimes committed by medical personnel are statistically reported; the rest are unregistered and thus belong to latent crimes committed by medical workers.
State of research. Issues connected with the characteristic of the features of objective aspects of the crime in medical practice were not enough highlighted by the researchers. However, some features were studied and revealed in the works of P.P. Andrushko, M.I. Bazhanov, O.F. Bantyshev, V.O. Glushkov, O.O. Dudorov, M.Y. Korzhansky, V.V. Stashys, O.Y. Svetlova.
Some aspects of criminal liability of a medical worker for improper performance of his or her professional duties have been highlighted in domestic criminal law and theory of law. In particular, these issues were considered in the works of I.M. Avdeeva, O.M. Alieva, V.V.  Balabko, V.V. Byryukov, R.V. Vereshi, V.O. Glushkov, N.E. Krylov, N.V. Miroshnychenko, I.A. Nikitin, S.G. Stetsenko, H.V. Chebotaryova and others. However, the investigations of the above mentioned scientists reduce to either comments on separate court judgments in the criminal jurisdiction or the fragmentary analysis of some selected subjects. Despite the considerable number of scientific works, focusing on the proper analysis of a crime, many issues are controversial or unexplored. Specifically, there is one common approach regarding the definition of the features of “proper medical care” notion. There are no fully-developed criteria according to which we can distinguish casual error of a medical worker from his or her negligence. The issue concerning identification of socially dangerous consequences, which form the concept of “heavy consequences”, has not been solved yet.
Thus, the basic purpose of this article is to study the features of the objective aspect of the crime of “improper performance of professional duties by a medical worker”.
Conceptual issues of the problem. The objective need of current practices of prevention of crimes in the sphere of the professional activity of medical workers associated with causing specific kinds of personal injuries causes the necessity of a detailed study of such elements, their qualifying features, criteria, distinguishing them from other elements of crimes from the perspective of current conditions and scientific achievements. It should be noted that the problems of criminal responsibility for improper performance of professional duties has not yet been profoundly studied. 
Based on the content of disposition of legal rule of part 1 Article 131 of the Criminal Code of Ukraine, the objective aspect of this crime lies in improper performance of professional duties by the medical workers resulted from negligent or careless attitude to such duties, which caused infection of a person with HIV or any other incurable contagious disease, being dangerous for human’s life. To ensure proper understanding of the crime’s disposition, determined by legislator, first of all it is necessary to study the content of the definitions according to each separate element of conceptual framework, used in the criminal law for statement of objective aspect of crime. 
The objective aspect of the crime, foreseen by Article 140 of the Criminal Code of Ukraine, is the failure to perform or improper performance of professional duties of medical workers. Main features of components of the medical crime are socially dangerous activity of a medical worker, socially dangerous consequences, and casual connection between them.  
Incompetence can be expressed as complete failure to perform and incomplete performance, and “mixed” omissions that may occur as follows: 1) improper performance of professional duties; 2) insufficient or untimely performance of professional duties (e.g. incomplete vaccination of a person). 
In the legal and medical literature improper performance of professional duties of a medical worker is generally determined as violations of storage and transportation of vaccines, the inoculation of a double dose of vaccine, various technical errors in inoculation of vaccine; use of non-sterile medical instruments or dissolved vaccine stored with violations of period of validity, false use of another drug instead of the vaccine, improper inoculation of the vaccine. 
There is no exact list of cases of non-performance and improper performance of professional duties by medical workers. Such situation is absolutely legal because of the variety of medical aid (emergency, first aid, specialized care, highly specialized care and palliative care). In each separate case doctor uses different measures to save a patient’s life. 
Having done the judicial review, it becomes obvious that most common cases of improper performance of professional duties of medical workers are the following: leaving a patient without proper medical care after performed operation; improper therapeutic approach; improper fulfillment of hospital emergency capabilities; partial observation of an objective condition of a patient, etc.   
According to the scientific literature in the sphere of criminal law and law enforcement practice, it is not easy to distinguish doctor’s negligence because of non-performance and improper performance of professional duties from doctor’s error, known as a doctor’s equitable fraud. Any doctor’s error is not punished by the law regardless of seriousness of consequences; it is considered not to be a crime. The causes of therapeutic errors have objective and subjective aspects. Objective aspects are connected with factors, independent of a doctor’s personality, such as pour-quality medicine, dysfunction of medical equipment, physiological peculiarities of a patient’s body and etc. Subjective preconditions consist of experience and qualification of a doctor, fulfillment of instructions and standards, personnel relations between a doctor and a patient, in other words, their trustworthiness.  
The next issue, which needs to be investigated, is definition of the concept of “heavy consequences”, which is referred to estimated ones in the theory of criminal law. As it is known, the concept of “heavy consequences” has different qualitative and quantitative features in different components of crimes. Their concrete definition depends on the type of the crime, crime components, and legislative construction of the rule. 
It is obviously that any medical worker, improperly performing professional duties, encroaches on social relations, which provide protection of a patient’s life and health form poor-quality medical care. Thus, heavy consequences are considered to be those which cause harm to human life and health, in other words, consequences of physical and psychological character. Law review shows that such consequences include a patient’s death, serious bodily injury and slight bodily injury. 
Conclusion. All in all, the objective criminal and legal evaluation of medical workers’ illegal actions is getting complicated because of specific character of professional medical practice, the main goal of which is to provide a proper medical and preventive care. That is why, the bodies of pre-trial inquest and the court shall evaluate actions of a medical worker, using special expert knowledge and exempted medical records, that allows equaling the tactics of medical and preventive measures and actions, which would be necessary to perform in a definite situation according to the requirements of normative medical documents.