Cases of potential medical negligence are among the most complex for investigation and the courts. In such proceedings, forensic medical examination plays a key role, as it allows for the assessment of a doctor's actions, compliance with medical standards, and the existence of a causal link between treatment and harm to the patient. For more details on whether judges trust examinations and whether they can truly prove a causal link, read this blitz interview with Professor Andriy Bilyakov, Acting Head of the Department of Forensic Medicine and Medical Law at the Bogomolets National Medical University.
– What exactly does a forensic medical expert evaluate in cases of medical negligence?
– When investigating crimes against a person's life and health committed by medical professionals (specifically under Article 140 of the Criminal Code of Ukraine), a forensic medical examination is always conducted by a commission involving highly qualified specialized experts (clinicians).
The expert commission evaluates the following stages of medical care in detail:
Diagnostic stage: timeliness, completeness, and correctness of the diagnosis. Whether the full range of mandatory laboratory and instrumental studies was conducted.
Therapeutic and tactical stage: the correctness of the choice of treatment method (conservative or surgical), the timeliness of surgical intervention, the adequacy of dosage, and the compatibility of prescribed medications.
Technical stage: the quality of the direct execution of manipulations and operations (whether technical defects occurred, such as damage to vessels or nerves, or leaving foreign objects behind).
Organizational stage: the correctness of patient routing, the timeliness of convening a consultation, or transferring the patient to a higher-level care facility.
Defects in medical documentation: the thoroughness of filling out the medical record, as it is the primary object of the study.
– Is it mandatory for medical professionals to adhere to medical protocols?
– Medical standards and clinical protocols (approved by Orders of the Ministry of Health of Ukraine) are the basic criteria by which experts assess the "appropriateness" or "inappropriateness" of a doctor's actions. This is the benchmark for safe medical practice.
– Is a deviation necessarily a violation?
– No, it is not. The main requirement is that any deviation from the standard must be scientifically justified and mandatory recorded in the medical documentation with an explanation of the reasons. If a doctor departed from the protocol without objective medical grounds, it is qualified by the expert as a defect in the provision of medical care.
– Can a causal link be established between undocumented deviations from medical protocols and harm to the patient?
– Establishing a causal link is the most critical part of the examination. The expert must clearly distinguish the consequences of the disease itself from the consequences of the doctor's actions or omissions.
In forensic medical practice, two types of links are identified:
Direct (immediate) link: when the doctor's action or omission specifically triggered the chain of pathological changes that led to complications, disability, or death (for example: perforation of a healthy organ during surgery followed by peritonitis; administration of a drug to which the patient has a known allergy, causing anaphylactic shock). Criminal liability for a doctor arises only in the presence of a direct link.
Indirect (mediated) link: when a doctor's error only contributed to the development of an unfavorable outcome but was not its primary cause (for example: late diagnosis of an oncological disease reduced the patient's chances of recovery, but the cause of death was the tumor). Such a link is more often the subject of civil lawsuits for damages.
To achieve this, experts use the method of retrospective analysis, building a chronological chain: "initial state of the patient – action/omission of the doctor – pathophysiological changes – final consequences."
– To what extent do courts trust the findings of forensic medical examinations?
– Judges are experts in the field of law but do not possess specialized medical knowledge. They cannot independently assess whether a medical procedure was performed correctly or whether a drug dosage was chosen accurately.
According to Article 242 of the Criminal Procedure Code of Ukraine, ordering an examination is mandatory if it is necessary to establish the causes of death or the severity and nature of bodily injuries.
An expert's conclusion is an independent source of evidence (Article 101 of the Criminal Procedure Code of Ukraine, Article 102 of the Civil Procedure Code of Ukraine). It does not have pre-established force, but de facto, it serves as the foundation of a court decision.
In simple terms, an expert conclusion translates complex biological and clinical processes into the language of legal facts. Without a forensic medical examination, the court is legally unable to establish the existence of a corpus delicti or a civil offense in the actions of a medical professional.