News & Events
Medical Errors and Criminal Charges
Updated 12th October 2009
Medical Errors and Criminal Charges By Ken Thomas, Partner and Medical Negligence lawyer at Harding Evans Solicitors.
Could doctors and nurses who make fatal medical errors when treating patients find themselves facing criminal charges? This is an emotive issue that has been raised again locally with reports in the Western Mail earlier this month of a bereaved couple, whose adult son died after alleged medical negligence, wanting police to investigate errors made by medical staff.
This is not a new debate. As long ago as 1831 a doctor was charged with manslaughter following the death of a woman after she had given birth. A study carried out in 2006 found that in the preceding 200 years or so, 85 doctors had been charged with manslaughter. In the 1990’s there was a substantial rise in the number of such prosecutions however, the actual conviction rate remained rather low. There have been successful prosecutions nonetheless. In 2004 a surgeon received a 21 month suspended jail sentence when he proceeded with an operation that should have been terminated – the patient died after catastrophic blood loss and the surgeon was found guilty of manslaughter.
Of course, claims for compensation arising from medical negligence proceed through the Civil Courts. The burden of proof is then balance of probability. Where a criminal charge is brought against the medical practitioner, then as with criminal courts generally, the burden of proof is beyond reasonable doubt. Members of the public can understandably get the two codes mixed up, quite often client’s who consult me for advice upon a medical negligence claim begin by saying that they feel a doctor or nurse has been “guilty” of medical neglect.
"A study carried out in 2006 found that in the past 200 years or so, 85 doctors had been charged with manslaughter."
The question arises whether wide scale criminal prosecutions against those in the health care professions would be a good thing. Quite possibly not. There have been calls in many quarters over the last few years for those working in the health care sector to be more candid when a treatment error arises. Any such moves would no doubt be hindered to say the very least by more criminal prosecutions - a doctor or nurse who finds a colleague has made an error might think twice about making the patient/family aware if that colleague’s liberty might be at stake were criminal charges to ensue.
In my personal experience, where a police investigation has taken place, for instance regarding a hospital’s failure to prevent a suicide, the involvement of the police and CPS if anything only served to hold up the substantial medical legal investigation and claim for damages. This raises the question whether bereaved families in such situations would want criminal charges necessarily investigated and explored, their priority might be to press on with their claim for damages to compensate for lost income that their loved one had previously provided.
Those who call for more frequent prosecutions where medical errors occur may find that it does little if anything to reduce the level of mistakes arising. Indeed, it may have other knock on effects – think of a particularly risky surgical procedure, surgeons might be loath to carry out such operative intervention if it could go wrong leaving them facing the possibility of being dragged through the criminal courts.
Where a doctor or nurse has been so negligent that an obvious
crime has been committed, they already know they could face
criminal charges. The worse, obviously very extreme
example, of course was Manchester GP, Harold Shipman.
Likewise, Beverley Allitt, a nurse convicted of murdering
patients in her care. Moreover, there are of course
already many regulatory pre-checks and balances in place though
there is always scope for improvement. Whether the
level of prosecutions will increase in the years to come will no
doubt depend upon governments, as well as the courts and the
medical profession itself.