Criminalization of healthcare negligence

Criminalization of healthcare negligence. Historically, the medical malpractice lawsuit stood alone within the four corners of any description of liability arising out of the practice of medicine. Now, criminal sanctions against medical personnel for medical acts that result in harm to patients represent a new page in the book on professional liability. This paper discusses traditional medical malpractice juris prudence, reviews criminal counts against medical personnel and discusses arguments for and against criminal charges resulting from medical acts.


Negligence law offers plaintiffs the legal framework upon which to build their civil suit. A plaintiff in a medical malpractice action must satisfy four elements-duty, breach, causation and damage- in order to prevail.3 In a negligence case, the wrongdoer’s actions are compared to what would be expected of a reasonable and prudent person in the same or similar circumstance

Criminal Law

Decriminalization of healthcare negligence. Criminal law defines offenses against the community at large, regulates how suspects are investigated, charged, and tried, and establishes punishments for convicted offenders. In a criminal case, the state, through a prosecutor, initiates the suit. Persons convicted of a crime may be incarcerated, fined or both. Criminal law has the added objective of seeking to achieve deterrence and retribution through punishment.

Generally, the basic elements of a crime include a voluntary act coupled with the appropriate mental state.18 Usually, the criminal law punishes only affirmative harm the offender inflicts. However, failure to act may be a crime if the defendant had a legal duty to act or the inaction rises above civil negligence to include a level of risk taking indifferent to the attendant risk of harm.19 A legal duty to act may arise out of other laws such as statutes (a law passed by a legislative body),2 or contract ( a binding agreement between two or more bodies enforceable by law).

Criminalization of healthcare negligence. Health care providers are subject to both. For instance, physicians are legally prohibited from refusing to treat patients because the patients are seropositive for the human immunodeficiency virus (HIV).20 Similarly, hospitals, HMO’s and nursing facilities have physician employment contracts creating a legal obligation to treat all patients admitted to the facility

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