“First, do no harm”: a regulatory and expert assessment of the consequences of failure to provide or improper provision of medical care

The subject of research are regulatory acts which in their comprehensive interrelation define the characteristics of harm inflicted on human health, including its description as publicly dangerous consequence of failure to provide medical care, or improper provision thereof. The study was conducted with regard to criminal and healthcare legislation provisions, as well as regulation of particularities of forensic medical expert examination. The paper aims to test the hypothesis on the regulatory amendments’ to medical legal acts influence on the understanding of iatrogenic crimes, and the practice of their qualification by criminal courts.
Historical-legal methodology is deployed to show preconditions, grounds and directions of development of legislation defining criteria of infliction of harm on human health. Systemic analysis methodology allowed the author to disclose the particularities of interconnections between criminal and forensic-medical legislation, to prove the blanket nature of the characteristics of crimes against human life and health. The comparative-legal methodology of research allowed identification of the constant part of legal framework related to provision of medical care, and the definitions extensively transformed by the legislator (harm to human health, shortcomings of medical care provision, consequences of improper provision of medical care). Methods of philosophy and logic allowed for disclosure of particularities of the causation connection to publicly dangerous consequences, and the specificity of causation in criminal cases on medical workers’ omission (including with regard to failure to provide medical care to a patient).
Main results. It was established that infliction of harm in the course of, or as the result of provision of medical care cannot be considered an intentional crime, but rather is either innocent or negligent. Inaction of a doctor, as seen from the forensics point of view, is not a harmful external factor, and therefore the feature of infliction of harm on the health of a patient must be established legally (juridically) rather than through expert examination. New normative regulations are aimed at clarifying the features of shortcomings of medical care and their harmful consequences, thus seeking to eliminate some matters of argument and ensure the unified law-enforcement practice. When considering criminal cases related to harm inflicted by medical workers the courts must not only base themselves upon the results of forensic medical expert examinations, but also separately apply the normative regulatory provisions to which there is a blanket reference in the criminal legislation, and which themselves define the criteria of properly qualified medical care as well as the assessment of harm inflicted where said care was improper.
Conclusions. The scientific analysis carried out by the author has confirmed the hypothesis of the research, and proved direct application of medical legal acts by courts considering criminal cases on failure to provide medical care to patients or improper provision thereof.

1. Nagornaya I. Criminal liability of medical workers for professional crimes: a new approach. Rossiiskii yuridicheskii zhurnal = Russian juridical journal, 2021, no. 1, pp. 147–157. DOI: 10.34076/20713797_2021_1_147. (In Russ.).

2. Bimbinov A.A. Causing harm in the healthcare delivery as the provision of services that do not meet safety requirements. Zhurnal rossiiskogo prava = Journal of Russian Law, 2022, vol. 26, no. 7, pp. 125–136. DOI: 10.12737/jrl.2022.077. (In Russ.).

3. Stepanova I.B., Sokolova O.V. Problematic issues of differentiation of crimes related to medical neglect or inadequate medical care. Rossiiskaya yustitsiya, 2023, no. 7, pp. 18–26. (In Russ.).

4. Semina T.V. (ed.). Criminal liability of a doctor in modern Russia, Monograph. Moscow, Prospekt Publ., 2021. 352 p. (In Russ.).

5. Bozhchenko A.P. On rules and medical criteria for the determination of the severity of harm caused to human health (Message 1). Meditsinskoe pravo = Medical law, 2022, no. 3, pp. 32–38. (In Russ.).

6. Pashinyan G.A., Ivshin I.V. Problems of qualification of acts infringing on human health in connection with the introduction of medical criteria for determining the severity of harm caused to human health. Meditsinskaya ekspertiza i pravo, 2009, no. 1, pp. 16–20. (In Russ.).

7. Galyukova M. Rules for determining the severity of harm caused to human health. Ugolovnoe pravo, 2008, no. 1, pp. 33–34. (In Russ.).

8. Veselkina O.V., Sidorovich Yu.V. Problems of legal regulation of forensic medical aid defects: The Way Forward. Aktual’nye problemy meditsiny i biologii = Actual Problems of Medicine and Biology, 2018, no. 2, pp. 73–76. DOI: 10.24411/2587-4926-2018-10024. (In Russ.).

9. Vermel’ I.G. Questions of the theory of forensic medical opinion. Moscow, Meditsina Publ., 1979. 128 p. (In Russ.).

10. Pashinyan G.A., Ivshin I.V. Professional crimes of medical workers against life and health. Moscow, Meditsinskaya kniga Publ., 2006. 196 p. (In Russ.).

11. Kovalev A.V., Kadochnikov D.S., Martem'ianova A.A. The definition of a failure to render assistance to the patient in the forensic medical practice. Sudebno-meditsinskaya ekspertiza = Forensic Medical Expertise, 2015, vol. 58, no. 1, pp. 4–7. DOI: 10.17116/sudmed20155814-7. (In Russ.).

12. Shmarov L.A. Inaction and causation. Sudebno-meditsinskaya ekspertiza = Forensic Medical Expertise, 2021, vol. 64, no. 2, pp. 58–62. DOI: 10.17116/sudmed20216402158. (In Russ.).

13. Mokhov A.A. (ed.). Medical cases: legal and expert assessment of problems of improper provision of medical care, Monograph. Moscow, Blok-Print Publ., 2024. 368 p. (In Russ.).

14. Steshich E.S. The problem of correlation of legal and forensic assessment of the severity of harm caused to human health. Vestnik Vostochno-Sibirskogo instituta MVD Rossii = Vestnik of East Siberian institute of the Ministry of internal affairs of the Russian Federation, 2017, no. 1, pp. 56–65. (In Russ.).

15. Kalinin R.E., Barinov E.Kh. On the need to develop medical criteria of cause and effect relationship in cases related to improper provision of medical care. Sudebno-meditsinskaya ekspertiza = Forensic Medical Expertise, 2024, vol. 67, no. 6, pp. 5–11. DOI: 10.17116/sudmed2024670615. (In Russ.).

16. Bozhchenko A.P. On the possible consensus over correspondence of the notions of medical malpractice, medical care defect and iatrogeny. Meditsinskoe pravo = Medical law, 2018, no. 3, pp. 7–12. (In Russ.).

17. Kalinin R.E., Barinov E.Kh. Use of alternative data sources in forensic examination of medical cases. Moscow, Prospekt Publ., 2023. 176 p. (In Russ.).

18. Shmarov L.A. Shortcoming or defect in the provision of medical care - analysis of the concepts. Vestnik sudebnoi meditsiny = Bulletin of forensic medicine, 2023, vol. 12, no. 2, pp. 33–39. (In Russ.).

19. Tinyanaya M.A. On the problem of the character of relationship between inactivity and socially dangerous consequences within negligence. Vestnik Tomskogo gosudarstvennogo universiteta. Pravo = Tomsk State University Journal of Law, 2013, no. 3, pp. 77–80. (In Russ.).

20. Pristanskov V. Methodological problems in establishing a causal relationship when investigating rash of crimes committed by medical personal. Vestnik Sankt-Peterburgskogo universiteta. Pravo = Vestnik of Saint Petersburg University. Law, 2015, iss. 3, pp. 87–99. (In Russ.).

21. Grishin A.V. Problems of methodical support production of forensic expertise in the investigation of crimes related to improper medical care. Meditsinskoe pravo: teoriya i praktika = Medical law: theory and practice, 2016, vol. 2, no. 1, pp. 56–63. (In Russ.).

22. Borzenkov G.N. Crimes against life and health: law and law enforcement practice, Teaching and practical aid. Moscow, Zertsalo-M Publ., 2013. 256 p. (In Russ.).

23. Klevno V.A., Kulikov S.N. The bounds of contents and admissibility of interpretations of practical text-based definitions of the medical criteria for the harm to health. Sudebno-meditsinskaya ekspertiza = Forensic Medical Expertise, 2012, vol. 55, no. 5, pp. 49–52. (In Russ.).

24. Pikurov N.I. The legal nature of acts determining the severity of harm to health and the amount of narcotic drugs: their similarities and differences. Rossiiskaya yustitsiya, 2009, no. 8, pp. 34–40. (In Russ.).

25. Yani P.S. The problems of qualification of the intentional infliction of grievous bodily harm. Zakonnost’, 2023, no. 2, pp. 32–36. (In Russ.).

26. Esakov G.A. Causation in non-ordinary situations: case law and criminal law theory. Pravo. Zhurnal Vysshei shkoly ekonomiki = Law. Journal of the Higher School of Economics, 2016, no. 1, pp. 81–102. (In Russ.).