Criminal proceedings concerning medical negligence are often among the most complex in judicial practice. The large volume of medical documentation, numerous expert examinations, questioning of specialists, and procedural motions make court proceedings lengthy. At the same time, the law establishes relatively short limitation periods for bringing people to criminal liability in such cases. This means that excessive delays in the proceedings by the defense could potentially lead to the criminal case being closed without a fair verdict, UNN writes.
The issue of limitation periods in medical negligence cases is particularly relevant today in the case involving doctors of the Odesa private clinic Odrex, Vitalii Rusakov and Maryna Bielotserkovska, who are accused of improperly performing their professional duties, resulting in the death of a patient.
The case concerning Adnan Kivan's death
According to the investigation's version, after the operation, the medical professionals may have failed to prescribe their patient, Adnan Kivan, the necessary antibacterial therapy and may have responded improperly to postoperative complications. According to the conclusions of the forensic medical examination, this could have led to the development of sepsis and the patient's death. The accused do not admit their guilt.
The court is currently considering the criminal proceedings on their merits; the case is at the stage of examining the evidence. The judge is now examining medical documentation, the conclusions of forensic medical examinations, clinical protocols, and other materials that are crucial for establishing the cause of the patient's death and assessing the medical professionals' actions.
However, the direct transition to the examination of evidence was preceded by months of procedural disputes and adjournments. The defense systematically disrupted hearings because of the attorneys' failure to appear, forcing the court to postpone them. The next hearing is scheduled for September 3. The examination of evidence in the case is expected to continue.
The nearly month-long interval between hearings obviously corresponds to the position of one of the accused — surgeon and endoscopist Vitalii Rusakov, who publicly stated that the case should be heard no more than once a month. He also criticized Judge Viktor Chaplytskyi for what he considered excessive intensity in the proceedings, although before that, court hearings had repeatedly failed to take place precisely because representatives of the defense were absent.
Overall, the criminal proceedings against the doctors have already been heard in court for more than 7 months. During this time, the attorneys filed motions to recuse the judges and initiated a change of venue at the evidence-examination stage, transferring the case from the Prymorskyi to the Kyivskyi District Court of Odesa. This set the hearing of the case back to the beginning, while the defense did everything possible to delay the preparatory process and postpone the start of the consideration of the criminal proceedings on their merits.
Against this backdrop, the question is arising more and more often: can lengthy court proceedings lead to the closure of a criminal case because the limitation period expires, while society never receives an answer as to whether the doctors will receive a fair punishment if their guilt in the patient's death is proven.
Closure due to the expiration of the limitation period is not an exonerating ground
Lawyers explain that in the case of charges under Part 1 of Article 140 of the Criminal Code (improper performance of professional duties by a medical professional), the limitation period is three years.
As for the limitation periods for bringing someone to criminal liability, they are calculated from the moment the crime is committed. In this case, under this article, the limitation period is three years
According to him, if the case is not considered within this period, taking into account the stage it has reached, the proceedings may be closed precisely because the limitation period has expired.
Lawyer Yevheniia Ohilko noted in a comment to UNN that the limitation period does not begin to run from the moment the criminal proceedings are opened or a notice of suspicion is served.
The limitation period is calculated not from the moment the criminal proceedings are opened, the suspicion is reported, or the indictment is sent to court, but from the day the criminal offense was committed. In a specific medical case, the starting date must be determined based on the charges formulated: the time of the relevant action or omission by the medical professional
According to the lawyer, a lengthy pretrial investigation or a years-long court process does not, in itself, suspend the running of the limitation period.
Reporting the suspicion, referring the indictment to court, and other procedural actions do not, in themselves, suspend the limitation period
The exceptions are expressly provided for by law.
According to Article 49 of the Criminal Code of Ukraine, the period is suspended if a person deliberately evades the pretrial investigation or the court, and resumes after the person appears with a confession or is detained
The period may also be interrupted if a new crime is committed under the conditions specified by the Criminal Code.
At the same time, according to lawyers, if the limitation periods have expired, the criminal case may be closed at the request of one of the parties to the proceedings.
At the same time, Rostyslav Kravets emphasizes that such closure does not mean acquittal, and both the accused and their lawyers may insist on continuing the consideration of the case until a verdict is issued.
A person may object to the closure of the proceedings and insist on continuing the consideration of the case in order to establish their innocence. This is because closing the proceedings due to the expiration of the limitation periods is not a rehabilitating ground
This means that if the case is closed, no guilty verdict is issued, and the person's guilt is not established by the court.
Why the entry of the verdict into legal force is decisive
Yevheniia Ogilko draws attention to another important feature. Even if the court of first instance manages to issue a verdict, this is not enough, because the verdict enters into force after it is upheld by the appellate instance or after the time limits for such an appeal have expired, if no appeal is filed.
The mere issuance of a verdict is not enough. Under Article 49 of the Criminal Code of Ukraine, the limitation period is calculated up to the day the guilty verdict enters into legal force
If the period expires during appellate review, when the verdict has not yet entered into legal force, the appellate court must decide whether to apply the provision on closing the case due to the expiration of the limitation periods.
At the same time, challenging the verdict before the court of cassation no longer affects this issue, since it takes place after the verdict has entered into legal force.
The time factor in the case of the Odrex doctors
In the case of the Odrex doctors, the time factor may be no less important than the results of forensic medical examinations or the examination of evidence. Since Adnan Kivan died at the end of October 2024, and the charges were brought under Part 1 of Article 140 of the Criminal Code of Ukraine, the three-year limitation period mentioned by lawyers expires in the autumn of 2027. By that time, the verdict must not only be issued by the court of first instance but also enter into legal force.
Given that the trial has already been accompanied for more than seven months by numerous attempts to delay the proceedings, the issue of reasonable trial periods is becoming particularly important. If the court proceedings continue to be delayed, this could theoretically raise the issue of applying the limitation periods before the verdict enters into legal force. In such a case, with the consent of the accused, the criminal proceedings may be closed without a guilty verdict being issued, and the court would never provide a final answer to the question of whether the doctors are guilty or innocent. That is why, in such cases, a timely and uninterrupted trial is important not only for observing the rights of the accused but also for ensuring the right of the injured party and society to receive a fair court decision.