Should Medical Errors Be Considered Criminal Offenses?
Written by Churnika Gudla
Criminal and civil court. These are terms one has probably come across at least once in their lifetime. But many do not understand the difference. The purpose of criminal court is to enforce compliance with regulations that uphold peace and security in everyone’s lives. On the other hand, civil court settles disputes between individuals, usually through the barter of money. And since medical malpractice is typically handled as a civil case, that means the victim's compensation overshadows the error itself. As Tara, from When We Do Harm, notes, "Each legal move felt like it had more to do with the lawyer earning money than it had to do with seeking justice for my husband." It fosters a dehumanizing culture that money can fix everything. But treating medical errors as criminal offenses can change that. It can help ensure that people are held accountable and that systemic changes are made.
This idea sounds good at first, but when we say people are held accountable, are we sure that right people? Consider the case of Dr. Hadiza Bawa Garba, a junior doctor in the United Kingdom. Bawa-Garba was lling in for several people who were unable to be present at the time. Her care was less precise due to that. Judges did not take into account Bawa-working Garba's environment when she was made the scapegoat and charged with manslaughter following the death of a young boy in her care. It may not seem like a problem to some, but treating the medical error as a criminal offense had serious drawbacks. The results caused widespread hesitancy among residents regarding performing procedures and making decisions on their own. Yet, this is just one example. If all malpractice cases shift to criminal court, the effects will endlessly multiply.
As mentioned before, the repercussions of changing malpractice cases to criminal proceedings will be forever implanted in medical communities. Criminal court is focused on whether or not the suspect is guilty, so it has little effect in improving the system. In fact, the blaming culture creates a “second victim,” like Dr. Ofri explained, in her book, “When We Do Harm.” Dr. Ofri never denies the primacy of the damage to the “first victim” (the patient), but doctors often experience their personal and professional lives being shredded during a very public and humiliating process, one that can drag on for years. It’s important to note that up to 40% of lawsuits turn out to contain no medical error at all. A not insubstantial number of doctors, therefore, have their lives upended when they haven’t done anything wrong. It also can create a ripple effect. Other doctors can hesitate to take on similar cases, as seen after the Bawa-Garba case, or turn to defensive medicine, the practice of recommending a test or treatment that is not necessarily the best option for the patient in order to protect the physician against the patient, a potential plaintiff. Defensive medicine is damaging for its potential to poses health risks to the patient. Furthermore, it increases the healthcare costs. It all slowly breaks down the patient-doctor relationship, a huge part of medical values and culture.
Finally, if we are going to be comparing criminal and civil law, I would like to point out that in criminal law evidence must be "beyond reasonable doubt.” This means that if medical errors are treated as crimes, patients will have to work even harder to prove the adverse event. Because of this, many cases will never reach court, and many innocent people will not be compensated. The effects of turning malpractice cases into criminal charges will be felt forever in the lives of patients and medical staff.
Written by Churnika Gudla from MEDILOQUY