Doctor of Law,
Associate Professor of justice
Taras Shevchenko National University of Kyiv
Review of criminal proceedings for improper performance of professional duties by medical and pharmaceutical workers
Actual issues of investigating crimes committed during performance of medical care. In particular, features of criminal proceedings review for improper performance of professional duties by medical personnel being examined herewith. Dissenting, Features of the review in criminal proceedings for improper performance of professional duties by medical personnel.
Key words: review, investigate crimes, medical worker, medical aid.
Life and human health are not only personal, but also public goods and therefore their protection is secured as by national legislation, as well as by regulations of international law. In particular Art. 49 of the Constitution of Ukraine establish the right to health care, medical care and medical insurance. Specific requirements in this regard are made to medical personnel whose activities directly related to the implementation of this law. Therefore, according to Article 80 of the Basic Law of Ukraine on health care, medical and pharmaceutical workers, who during the medical care provision have broken their professional duties, are subject to disciplinary, civil, administrative or criminal liability under the law.
A special place among the violations those are committed in providing medical care, take action, with signs of a crime. Under professional medical crimes should be understood crimes being committed by medical personnel due to a failure or improper performance of their professional duties, as a result of negligent or bad-faith attitude, that caused grave consequences for the patient.
Detection and investigation of crime begins with identifying features - traces of the crime, causes of their occurrence in a material medium, ie the mechanism of disclosure of crime: how, under what circumstances, by what means, in what way and who interacted with the material environment. Thus, any criminal activity ultimately comes down to the offender's interaction with objects (items) of animate and inanimate nature, where remain traces of criminal activity. The primary investigative (search) actions, conducted during the investigation of crimes committed in providing medical assistance, should ensure obtaining of evidences indicating the criminal event, as well as preservation and consolidation of evidences that might disappear or be changed.
According to these tasks the primary investigative (search) actions are:
a) inspection of the crime scene (if the information about the crime has been received immediately after its commission);
b) physical examination of the trauma patient.
c) examination of the body of a patient;
d) review of clinical records, materials of departmental examinations, anatomic and clinical conferences;
e)inspection of tools, medicines, packages from medications that were used during the treatment;
e) inspection of medical waste - bandages, wipes, tampons with traces of biological or chemical origin (of medical preparations).
During assessing the adverse consequences in medical practice, primarily it is necessary to establish the correctness of provided treatment. If the medical assistance was provided correctly, legally there is no need to examine causes of the adverse consequences. In case of wrongdoing by physicians it is necessary to establish the reasons that caused it. Identifying the reasons of the physician's wrongdoing enables to determine their nature and may be sufficient criterion for assessment of the results of wrongdoing [1, p. 66].
Assessing actions of medical workers, is necessary to consider that the provision of medical care (the treatment process) covers four standard stages: gathering information about the patient; establishing a diagnosis; selecting and implementing of treatment; definition of place and time for medical assistance [ 6, p. 59 ] .Accordingly, an inadequate medical care could be possible on each of these stages, what should be considered during establishment of a method of committing crime, traces of the crime and the offender. Inadequate medical care is possible as with providing proper diagnosis, as well as with misdiagnosis.
Thus, in determining whether improper medical care, the investigator should examine a complex of basic questions.
The first group of questions includes issues related to the failure or improper performance of diagnostic procedures:
1) incomplete examination which appears in the improper conduct of each of following events or of all these measures simultaneously: incomplete medical history; incomplete review or its absence; incomplete examination or its absence; incomplete special survey or its absence;
2) incorrect symptoms of illness rating of physician.
The second group includes issues related to the failure or improper performance of therapeutic measures by medical personnel:
1) inadequate performance of therapeutic measures, including: medical contraindications, not necessary therapeutic measures, violation of technology of surgical procedure, improperly manufacture of medications, injection in the patient's body of one medical substance instead of other, inappropriate use of medical substances, give an excessive dose of medical substance;
2) failure to conduct or untimely performance of necessary treatment (including surgery) measures. Late hospitalization;
3) foreign object related to any operative or invasive procedure that is left inside a patient
The above list of professional medical misconduct defines objectives that concerned with fact-finding of improper medical treatment, thereby allowing to outline solutions of these problems.
Objects that can provide useful information about a criminal action to the investigation are: person (patient); medical records (medical card of in-patient, out-patient medical file, surgery registry in a hospital, etc.); items (medical instruments); substances (medicines); premises; electronic data carriers (computer hard and floppy disks, Cd's, etc.) [2, p. 28-29].
Such investigative (detective) action, as a crime scene examination has the most informative sense depending on the method of provision of medical assistance and the period of time that has passed before the beginning of pre-trial investigation of inadequate performance of professional duties by medical or pharmaceutical worker. Where appropriate, it is expedient to conduct simultaneously both an overview of premises and documents verification, since each stage of provision of medical care includes an appropriate medical record. Rules of medical records management are governed by departmental normative legal acts: Order of the Ministry of Health of Ukraine from February 14, 2012 № 110 "On approval forms of primary accounting documentation and Instruction on procedure of their filling in, used at the health care institutions regardless of forms of ownership and subordination”, Order of the Ministry of Health of Ukraine from November 7, 2010 № 999 "On approval forms of reports and medical records for emergency medical and ambulance services of Ukraine", Order of the Ministry of Health of Ukraine dated December 29, 2000 № 369 “On approval forms of medical records used in in-patient and out-patient (ambulatories) facilities”, Order of the Ministry of Health of Ukraine as of December 27, 1999 № 302 “On approval forms for recording statistical information used in polyclinics (ambulatories)', Order of the Ministry of Health of Ukraine from August 5, 1999 № 197 "On approval forms for recording statistical accounting documentation used at the health care institutions", Order of the Ministry of Health of Ukraine dated July 26, 1999 № 184 "On approval forms for recording statistical accounting documentation used at the inpatient health care institutions" and others.
The importance of medical records is not limited to medical aspects only. Establishing the facts of a breach of rules in actions that became an object of investigation should be implemented on the basis (base) of consistent performance of the following tasks: to find out how an activity, which is associated with crime, should be performed in accordance with the rules of normative nature (establishing normative model of activity); determine how it is performed indeed (establishing actual model of the activity); compare actual and normative models and identify differences, deviations from regulatory requirements, ie violations of certain provisions of various rules [10, p. 704].
At the beginning of the investigation the investigator determines which documentary materials he/she shall inspect, seize, attach to a case, examine, and then use in work. Such documents may include: "Statement of accounting visits to the nursing staff of health centres, medical stations" (form № 039-1/p); "Journal of registration of outpatients' (form number 074/p); "copybook for recording of pregnant women who are under the supervision of health posts" (form number 075/o); "Journal of admission of patients and patients of health posts inpatients " (form number 098/o); "Medical emergency call card" (form number 109/o); "Ambulance departure card" (form number 110/o); "Cover sheet of an ambulance station" (form number 114/o); "Journal of registration of incoming calls on emergency medical care" (form number 115/o); "Registration book of incoming emergency calls and provision of emergency, planning and advisory assistance" (form number 117/o); "Task for sanitary check-out" (form number 118/o); "The task of the medical consultant and a certificate of performing the task" (form number 119/o); "Journal of registration of planned visits" (form number 120/o) [9, p. 107], and so on. To determine the list and further study of these documents investigator can take the help of disinterested medical specialists, who before the investigative (detective) action can provide consulting assistance on the list of medical documents to examine and verify. During the examination of medical records is necessary to pay attention on the presence of contradictions in the content, which may indicate an attempt to cover up a crime.
Review of medical documents and their seizures is carried out as during the examination of the crime scene, with recording their description to the protocol of examination of the crime scene, as well as performed as a separate investigative (detective) action. Review of documents is an investigative action, consists in verification and examination of documents in order to identify and secure of signs, which provide these documents with the value of real evidences [11, p. 128].The purpose of the document review is to identify and secure such signs, which provide these documents with the value of real evidences, as well as to establish facts and circumstances certified by these documents that are important in criminal proceedings, c [ 3, p. 568 ].
Certain facts of crime can be found during the review of "medical card of the inpatient" (form number 003/o) (case history), which must contain all data on the health status of the patient during the entire period of hospitalization, treatment course, as well as the data of X-ray, laboratory examinations and other methods. Case history is a kind of protocol of provision of medical care and is carried out in order to control accuracy of diagnostic and treatment process. If the victim was provided emergency medical care, it is necessary to inspect the "Calling Cards medical emergencies" (form number 109/o); to case of death of victim in a medical institution necessary to review "Act of ascertaining of biological death" (form number 017/o), "Protocol (card) postmortem examination" (form number 013/o); if he died in department (chamber) of anaesthesiology and intensive care, it is necessary to examine "List of basic indications of the patient" (form number 011/o) and the "Journal of the recording of surgical interventions in the hospital" (form number 008/o); if in respect of the patient were undertaken researches and analysis, in this case is necessary to verify "The direction on the Analysis" (form number 200/o) and "The result of Analysis" (form number 209/o) [7, p. 7, 16], and so on.
Depending on the type, content and value, documents should be attached to the criminal proceedings in the original, in copies and transcripts. In the original must be submitted medical documents such as: medical history, medical card, operational logs, laboratory, X-ray, cardiology data in case of death of the patient - a conclusion of forensic medical or postmortem examination of the corpse, and conclusion of histological examination and other special examination and so on. Materials, such as reports of clinical and anatomic conferences, as well as acts of the health care commission authorities, that have investigated circumstances of the case, should be submitted in copies [5, p. 261].
Case history is a major medical document, which allows to draw conclusions about the accuracy of diagnosis and treatment, and thus, has not only medical and scientific, but also legal effect. Legal effect of medical records in medical care provision is determined by the fact, that these documents could be used as a source of evidence in criminal proceedings. Very often, exactly information obtained during the examination of medical records becomes the basis to establish the offense. In turn, the doctors who provide medical care in accordance with stipulated requirements are secured from groundless accusations in its improper provision.
Legal value history is because it allows you to draw conclusions about the correctness conducted diagnostic process; shows the dynamics of health of the patient; testifies the proper respect to the legal rights of the patient during provision of medical care; a source of evidence in criminal proceedings.
Thus, information about violations in the work of medical personnel can be obtained from medical records. Violations can be associated as with careless or illiterate record keeping, as with defects in providing medical care.
Properly compiled histories and other medical records allow understanding the circumstances of the so-called medical errors and offenses. Based on these documents are not only actions of doctor being studied, but also deeds of other medical staff, as well as the behaviour of the patient. The case history or outpatient medical card in such cases is subject to strict examination by investigative and judicial authorities as well as by forensic expert commissions. Sometimes medical records are the only and the main source of evidence, therefore the fulfilment of these documents should be carried out very carefully. However, facts indicate frequent cases of negligent, inattention to the execution of the document. Thus, in order to avoid liability, some doctors clean, correct, supplement, and sometimes, even completely rewrite the case history. Investigating authorities may consider such actions as falsification. Exactly the assistance of forensic expert in the field of research of documents would be helpful for clarifying signs of document fraud (falsification). Those, responsible for maintaining of these documents the investigator should interrogate in order to clarify the following questions: Does anybody was taking the documents from storage; if so, who and for what purpose; whether other workers have an access to the documents.
Investigator should Seized documents investigator to examine in detail, pointing out factual information, contained in these documents, as well as the form and order of their exposition, term and timing of scheduling and conducting of various therapeutic measures As well as during the examination of medical records it is necessary to pay attention to the authenticity, whether these documents contain traces of changes to the text (erasures, etching, washing off the text, additional notes, corrections records). It is advisable to note, that during the examination and preliminary investigation shouldn't be applied methods, tools and techniques that cause changes in appearance and condition of the document. To detect signs of forgery should be applied special methods of verification, including: including in the oblique falling light and pervading, with using optical magnifying devices, in the ultraviolet and infrared rays, using an electron-optical image intensifier.
Sometimes, in order to improve the efficiency of verification, the investigator may involve an expert in the investigation (forensic, chemist and others). Explanations of medical expert have great practical importance when studying (as part of the investigative actions) medical documents, acquaintance to which almost always requires a special knowledge.
Full and comprehensive technical study of medical records is performed during the technical expertise, ie technical and forensic investigation. Reasons for changes to the text should be clarified during the interrogation of persons responsible for compiling these documents.
It is appropriate to note, that the daily records should also be written in the person's a case history by the attending physician (registrar, senior registrar). During doctor's round, records of daily observations from the words of doctor may be written by a nurse, who participates at the doctor's round. The doctor, in such cases is obliged to verify and sign such records. Control over case histories exercises the head office, and the chief doctor of the hospital (clinic) has overall responsibility for the proper maintenance of case histories (medical cards) and other medical records, as well as for saving them in the prescribed manner.
During nominating versions of the reasons for the adverse consequences of treatment an important role may play materials of departmental inspections, clinical and anatomic conferences. After examining and analysis of factual information contained in documents, the investigator can establish as certain evidence, as well as important witnesses in the case, who should be interrogated later on.
Traces of crime on the body of a living person or corpse have the direct connection with the state of aggregation of medicinal substances (solid, liquid, gaseous substances), with the method they getting into organism, the stage of their movement in the body and the dose of the substance. Substances can enter the body by inhalation (through the respiratory system), orally (through the gastrointestinal tract), percutaneously (through blood).Medical science distinguish the following stages of progression of medical substance in the body: absorption (absorption) division in the Wake of blood or tissues of the organism, biotransformation (metabolism), excreta from the body (elimination) [8, p. 22-23] that must be considered during the search for traces of the crime. For example, medical substances could be found on the walls of the syringe, in their packages (eg, vials) or other items During the inspection of the scene of the patient's death in a hospital, by the investigator was seized a glass with the remains of the substance, that the patient was drinking before his death. Forensic chemical examination established that the liquid is a solution of 50 grams of solid solution of "Trilon B" to a glass of water. Forensic examination has found that the the victim's death occurred in the result of poisoning by medical preparation "Trilon B", taken orally .
A patient, who used to take medicinal preparations, may have both external and internal traces, for their identification a detailed examination of the body and special medical research shall be undertaking. Examination of the corpse is conducted by investigator, prosecutor with the mandatory participation of a forensic expert or doctor (ch. 1, Art. 238 of the CPC of Ukraine) examination of the body of the affected patient performed by the investigator, if necessary - involving forensic expert or doctor (h .1, 2 Art. 241 of the CPC of Ukraine).
During inspection an investigator, prosecutor or specialist involved on their behalf has the right to make measurements, photo, sound or videotaping, draw up plans and schemes, produce graphics of the inspected place or certain items, make prints and casts, inspect and seize items and documents relevant to the criminal proceedings (p. 7, Art. 237 of the CPC of Ukraine) in respect of improper medical care, as it stated in the protocol, which is made in accordance with the requirements of Article 104-106 of the Criminal Procedure Code of Ukraine.
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