Unraveling the Gray Area: Revisiting the Decriminalization of Article 238 and Its Implications for Medical Professionals
Will there be a potential decrease in the number of non-serious legal proceedings against physicians?
In a move that sparked debate, the decriminalization of Article 238 of the Criminal Code came into force on January 8. This legislature paragraph primarily governs liability for services that fail to meet safety requirements. However, the amendment exempts medical workers from the scope of this article in cases involving medical assistance.
Lawyer Polina Gabay views this adjustment as a progressive step. She posits that the article relevant to deliberately offering unsafe services seldom applies to medical professionals, and its enforcement often leads to investigations based on charges considered severe with a 10-year statute of limitations.
Despite the decriminalization, Gabay expresses some reservations about the ambiguity in judicial practices confirming the effectiveness of the norm. "The risks for medical professionals are not entirely eradicated," she cautions. Moving forward, she believes that cases related to medical assistance under the mandatory health insurance system are exempt. Yet, she can't rule out the applicability for paid medical services.
navigating the Legally Charged Waters: Perspectives from St. Petersburg
As we delve deeper into the realm of medical assistance and its risks, a trial under Article 238 is currently underway in St. Petersburg. The case revolves around the demise of a patient in the "AbrieLle" plastic surgery clinic. The general director and plastic surgeon, Maria Burlova, stands accused. Preliminary findings suggest that the patient was kept under general anesthesia for an extended period, and she received subpar medical services, leading to brain swelling.
Lawyer Victor Evstifeyev, representing the family, sheds light on the intricacies. He explains that law No. 323-FZ defines medical assistance, which is also mentioned in the new notes to Article 238. However, since the case involved a paid contract, the quality of services remains a matter of contention.
Evstifeyev shares that several ongoing investigations in St. Petersburg involve charges under Article 238 with fatal outcomes. These cases predominantly center around the cosmetology sector and the provision of unsafe services.
deciphering the Legislation: Commentary from a Former Investigator
Evstifeyev acknowledges the legislator's intention to decriminalize charges against medical workers and protect doctors. However, he questions the manner in which the norm was adopted. Originally, the changes were intended for Article 150 and Article 151, enhancing penalties for soliciting minors to commit crimes and engaging in anti-social activities. But, in December, a sudden note was added to Article 238, and the legislation was promptly adopted and enacted on January 8.
Evstifeev contends that the norm remains poorly defined and open to broad interpretation. He shares his concern about setbacks in the Criminal Code not featuring such extensive vagueness.
A Closer Look at Crimes Committed by Medical Professionals
Forensic experts' data from the 2022 All-Russia Congress of Perinatal Medicine reveals that obstetrician-gynecologists accounted for 15.3% of criminal cases, followed by infectious disease specialists and surgeons. This uptick in complaints against obstetricians, according to experts, is attributed to their efforts to treat premature babies with extremely low birth weight while maintaining higher mortality rates compared to other newborns.
Compiling statistics on iatrogenic crimes for 2024 remains a challenge, with ongoing queries to the Investigative Committee forwarded to the General Prosecutor's Office. In the 2023-2024 period, courts reviewed 104 criminal cases involving medical professionals, reflecting a mix of official violations and patient harm cases. The most common offense was part two of article 109 (causing death through negligence) cases.
Tatiana Kubrina, a senior lawyer at "Pepelyaev Group," shares her insights, stating that it's premature to discuss the impact of the decriminalization of Article 238 on the overall number of criminal cases against medical professionals. With the statute of limitations for negligent offenses (causing death or injury) being two years, Kubrina clarifies that even if a guilty verdict is issued, enforcement may be delayed due to the elapsed statute of limitations, rendering the court's decision moot.
a More Civil Approach: Settling Disputes Outside the Court
In civil proceedings, patients file claims against clinics, similar to labor disputes, with patients often considered the weaker party. Despite this, Yana Vinokurova believes that courts have become more inclined towards patients' interests. Although these decisions may be small, they appear to be moving towards a more socially-oriented resolution.
Polina Gabaeva, a legal expert, proposes halting the criminal prosecution of doctors through civil liability insurance. Unfortunately, this type of insurance is not effective in Russia. Another approach she suggests is creating an independent expert body, such as the National Analytical Health Care Expert Center (NAEHC), to mediate conflicts and offer patients two options: property compensation or compensatory treatment. According to Gabaeva, many patients seeking legal recourse are financially compensated but lack proper medical assistance.
- In light of the new decriminalization of Article 238, cases involving medical assistance under the mandatory health insurance system are exempt; however, concerns remain about the applicability for paid medical services.
- The ongoing trial in Podolsk, involving the demise of a patient at the "AbrieLle" plastic surgery clinic, illustrates the continued contention around the quality of paid medical services, despite the decriminalization of Article 238.
- Forensic experts' data from recent gatherings reveal that obstetrician-gynecologists account for a significant percentage of criminal cases, primarily due to the high mortality rates of premature babies they treat.
- As the statute of limitations for negligent offenses is two years, even if a guilty verdict is issued against a medical professional, enforcement may be delayed due to the elapsed statute of limitations, making the court's decision moot.
