Volume 11 - Issue 57
/ September 2022
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https://www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2022.57.09.4
How to Cite:
Stepaniuk, R., Shcherbakovskyi, M., Kikinchuk, V., Petrova, I., & Babakin, V. (2022). Problems of investigation of medical crimes
in Ukraine. Amazonia Investiga, 11(57), 39-47. https://doi.org/10.34069/AI/2022.57.09.4
Problems of investigation of medical crimes in Ukraine
ПРОБЛЕМИ РОЗСЛІДУВАННЯ МЕДИЧНИХ ЗЛОЧИНІВ В УКРАЇНІ
Received: October 1, 2022 Accepted: October 31, 2022
Written by:
Stepaniuk Ruslan6
https://orcid.org/0000-0002-8201-4013
Shcherbakovskyi Mikhailo7
https://orcid.org/0000-0002-8413-9311
Kikinchuk Vasyl8
https://orcid.org/0000-0003-2241-6384
Petrova Iryna9
https://orcid.org/0000-0002-1652-6715
Babakin Vadym10
https://orcid.org/0000-0002-7157-0241
Abstract
In the article, the authors identified the main reasons for the low level of investigation of medical crimes in
Ukraine based on the analysis of 78 criminal cases of medical malpractice considered by courts since 2013,
the study of statistical information, scientific literature on the problems of investigating medical crimes,
national legislation. It was concluded there are significant problems with the investigation of medical crimes
in Ukraine. Less than one percent of the number of initiated criminal cases is sent to court. Most of the cases
sent to court end with a guilty verdict, however, medical workers are released from real deprivation or
restriction of freedom for various reasons. According to the specialties of medical workers, the most
criminogenic are obstetrics and gynecology, surgery, anesthesiology, and emergency care for injuries and
internal diseases. Methods of committing medical crimes are associated with using incorrect methods of
providing medical care and with the untimely or incorrect diagnosis of the disease. The problems of
investigating medical crimes in Ukraine are due to a number of reasons, including the closeness of the results
of the post-mortem examination of the corpse to relatives of the deceased, the lack of independent forensic
medical examination institutions in Ukraine, and gaps in the legal regulation of the protection of medical
records from unauthorized access. This greatly complicates the establishment of a causal relationship
between the actions or inaction of medical workers and the negative consequences that have occurred.
Keywords: Medical errors. Medical crimes. Medical malpractice. Problems of proving medical malpractice.
Investigation of medical crimes.
Анотація
У статті автори визначили основні причини низького рівня розслідування медичних злочинів в
Україні на основі аналізу 78 кримінальних справ щодо медичної недбалості, розглянутих судами з
2013 року, вивчення статистичної інформації, наукової літератури з проблем розслідування
6
Doctor of Law, Professor, Professor of the Department of Criminalistics and Forensic Science, Faculty № 1, Kharkiv National
University of Internal Affairs, Kharkiv, Ukraine.
7
Doctor of Law, Professor, Manager of the Department of Criminalistics and Forensic Science, Faculty № 6, Kharkiv National
University of Internal Affairs, Kharkiv, Ukraine.
8
Candidate of Law, Associate Professor, Manager of the Department of Criminalistics and Forensic Science, Faculty № 1, Kharkiv
National University of Internal Affairs, Kharkiv, Ukraine.
9
Doctor of Law, Professor, Honored Lawyer of Ukraine, Principal Researcher of the Laboratory of Theoretical Studies, Editorial and
Publishing and Scientific and Methodological Activities, National Scientific Centre «Hon. Prof. M. S. Bokarius Forensic Science
Institute», Kharkiv, Ukraine.
10
Doctor of Law, Associate Professor, Lecturer of the Department of Applied Mechanics and Environmental Protection Technologies
of the Faculty of Technogenic and Ecological Safety of the National University of Civil Defence of Ukraine, Kharkiv, Ukraine.
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медичних злочинів, національного законодавства. Зроблено висновок, що в Україні є суттєві
проблеми із розслідуванням медичних злочинів. З-поміж розпочатих кримінальних справ до суду
направляють менше одного відсотка. Більшість справ, направлених до суду, закінчуються
обвинувальним вироком, проте від реального позбавлення чи обмеження волі медичних працівників
звільняють з різних підстав. За спеціальностями медичних працівників найбільш криміногенними є
акушерство та гінекологія, хірургія, анестезіологія та надання невідкладної допомоги при травмах та
внутрішніх хворобах. Способи вчинення медичних злочинів пов'язані з використанням
неправильних методів надання медичної допомоги та з несвоєчасною чи неправильною
діагностикою захворювання. Проблеми розслідування медичних злочинів в Україні зумовлені
низкою причин, серед яких закритість для близьких померлого результатів паталогоанатомічного
дослідження трупа, відсутність в Україні незалежних установ судово-медичної експертизи та
прогалини у правовому регулюванні питань захисту медичної документації від неправомірного
доступу. Це значно ускладнює встановлення причинно-наслідкового зв'язку між діями або
бездіяльністю медичних працівників і негативними наслідками, що настали.
Ключові слова: Медичні помилки. Медичні злочини. Медична недбалість. Проблеми доведення
медичної недбалості. Розслідування медичних злочинів.
Introduction
Unskilled criminal actions of medical workers, negligent attitudes to the life and health of patients, and
careless performance of professional duties, unfortunately, remain quite common. According to Ukrainian
legislation, medical crimes include a wide range of torts provided for by various articles of the Criminal
Code of Ukraine. Among them, in investigative and judicial practice, the most common crimes are related
to medical malpractice, that is, intentional or reckless socially dangerous acts that violate the rules for
providing medical care established by regulations in the performance of professional or official duties and
entailed death or other serious consequences for life and health of the patient. The acts under Art. 140 of the
Criminal Code of Ukraine "Improper performance of professional duties by a medical or pharmaceutical
worker", based on statistics, occupy the most significant share in the structure of crime in the medical field.
Medical crimes are among the most difficult criminal cases to investigate. This is primarily due to the
specifics of the mechanism of offenses. They are committed to the field of professional activity of medical
workers, which, in turn, is aimed at helping a person with various diseases, injuries, and physiological
processes. The problem of detecting medical crimes is exacerbated by the fact that a significant part of
medical procedures leads to the risk of an unfavorable outcome for the patient, regardless of the doctor's
fault (Hărătău A., 2017, p. 171). Therefore, in most cases, it is difficult to identify and establish a causal
relationship between the actions or inaction of physicians and the resulting harmful consequences for the
life and health of the patient. The problem of prevention and investigation of medical crimes is global and
requires constant attention from those sciences that develop methods for their prevention, detection, and
investigation.
There is a significant level of latency of medical crimes, low efficiency in the investigation of revealed facts,
as well as cases of unreasonable closure of criminal proceedings and failure to bring medical workers to
criminal liability in Ukraine. For example, according to official statistics for 2021, 565 criminal cases were
registered in Ukraine on the facts of improper performance of official duties by a medical or pharmaceutical
worker (Article 140 of the Criminal Code of Ukraine). Of these, suspicion was reported to two persons, no
cases were sent to the courts with an indictment, the proceedings on 310 cases were discontinued, and
investigations on the rest are ongoing. Thus, the effectiveness of the work of law enforcement agencies in
conducting a quick and objective investigation of such criminal offenses cannot be called high. Therefore,
for investigative practice, it is important to find out the typical difficulties and obstacles inherent in this type
of criminal proceedings and to determine ways to overcome them. Today, investigators need to develop and
use a methodology for investigating medical crimes, which includes algorithms for establishing
circumstances proving or refuting the guilt of a medical worker, a list of medical documents necessary for
proving, determining the range of questions that need to be answered by forensic experts, tactical features
of conducting investigative actions, etc.
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Literature Review
Research has been carried out in Ukraine to determine the demographic and occupational profile of
healthcare professionals who have been prosecuted for medical crimes, as well as to obtain information
about the criminal penalties applied to them (Franchuk & Trach Rosolovska, 2018; Danchenko & Taran,
2020).
To improve the situation of bringing medical workers to criminal liability for improper performance of their
professional duties, it was proposed to develop a legal mechanism for investigating cases of medical
malpractice (Gutorova, Zhytnyi & Kahanovska, 2019).
Also, domestic scientists developed the basics of a forensic methodology for investigating medical crimes
(Danshyn at al., 2019; V.V. Topchiy, 2020).
In addition, the problematic issues of appointing and conducting forensic medical examinations in criminal
cases of iatrogenic crimes were considered in the scientific literature (Grynko at al., 2018).
The previously obtained research results require further development to determine the most criminogenic
areas of medical care, typical ways of committing medical crimes, systematizing the main reasons that make
it difficult to prove in criminal cases, and possible ways to eliminate them. This should contribute to the
development of effective measures to improve the situation with the detection and investigation of this type
of crime.
Methodology
According to the subject of the study, we analyzed and statistically processed open data on 78 criminal
proceedings on medical malpractice for the period January 1, 2013, to August 1, 2022, of the state database,
which contains records of all decisions of the courts of Ukraine (the Unified State Register of Judicial
Decisions). Statistical information on the state of crime posted on the website of the Office of the Prosecutor
General of Ukraine was also analyzed. In the course of the study, the data obtained were systematized into
groups: the identity of the offender, the consequences that occurred, the method of the offense, the means
of proof used, investigative errors, etc. The following data were collected: the number and date of the
judgment, the date of death or injury, the characteristics of the medical malpractice, the medical specialty of
the defendant, the length of the trial, and the outcome of the trial.
Domestic and foreign literature on the content and causes of medical crimes, the features of their
investigation, the classification of medical errors, and the commission of which leads to negative
consequences for the patient were studied. The criminal law, forensic and medical regulations of Ukraine
were analyzed.
Results and discussion
An analysis of literature data and judicial practice has shown that the most common causes of medical crimes
are medical errors and malpractice of medical personnel.
Medical error is defined by the US Institute of Medicine as "failure to perform a planned action for its
intended purpose or use the wrong plan to achieve a goal", i.e. planning or execution error (Institute of
Medicine (US) Committee on Quality of Health Care in America, Kohn, Corrigan & Donaldson, 2000).
Despite the best efforts of healthcare institutions, the prevalence of medical errors is still high (Tsigengagel
at al., 2020, p. 157).
There is no unambiguous interpretation of medical errors in the domestic literature. Without going into a
discussion about this concept, we note that only errors caused by subjective reasons lead to criminal liability
when there is an unreasonable deviation of a medical worker from medical standards, an unreasonable risk
of treatment, poor-quality examination, incorrect interpretation of clinical and laboratory data, not
accounting or reassessment of the results of consultations of other specialists, etc. Malpractice, in turn,
characterizes the subjective side of a criminal offense, which is a careless form of guilt and manifests itself
in the criminal arrogance or criminal malpractice of a medical worker. Thus, an important problem in the
investigation of medical criminal offenses is to establish the cause of death or harm to the health of the
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victim, which could be the result of a medical error of subjective origin or the malpractice of a medical
worker.
It should be recognized that most medical errors remain latent. Scientists point out that known court verdicts
may represent only a small fraction of cases where the medical practice has been proven to be substandard
in medical care (Dettmeyer, Egl & Madea, 2005). Proving the guilt of medical workers in committing
medical errors is characterized by lengthy lawsuits, a significant number of acquittals, and almost zero
punishment of doctors in the form of imprisonment (Wu et al., 2016). Although there are exceptions, such
as in Japan, which traditionally has a higher level of court convictions than the rest of the world in all
categories of crimes, including cases of medical errors (Starkey & Maeda, 2010, p. 4).
The investigation of medical crimes in Ukraine has some peculiarities. According to the previously
published results of the analysis of the judicial practice of Ukraine in cases of medical malpractice for the
period from 2007 to July 2019, it was found that in 96% of cases a sentence of imprisonment was not
imposed, or medical workers were released from serving their sentences (Gutorova et al., 2019, p. 2165).
The most severe was the punishment of a doctor in 2016 who was sentenced to imprisonment for a term of
three years and deprivation of the right to practice medicine for two years (Danchenko & Taran, 2020, p.
256). According to our data, for the period January 2013 - July 2022, out of 78 criminal cases considered by
the courts on the improper performance of professional duties by a medical or pharmaceutical worker, 12
(15.38% of the total number) acquittals were issued. Thus, the majority of sentences for medical workers
were convictions. However, it should be taken into account that most of the investigated criminal cases do
not reach trial. They are closed or remain for a long period at the stage of pre-trial investigation. In particular,
during the specified period, according to official statistics, 5551 criminal proceedings were initiated in
Ukraine on the facts of medical malpractice. Of these, only 33 (0.59% of the total) criminal cases were sent
to the courts, 2,754 cases (49.61%) were terminated at the stage of pre-trial investigation, and the
investigation continues in other cases. This testifies to the big problems in proving that do not allow
investigators and prosecutors to conduct investigations within a reasonable time and send cases to courts
with indictments.
Statistics show that the consequences of the events under investigation in 80.77% of cases were the death of
the patient and in the remaining 19.23% serious harm to health. But among the guilty verdicts, punishment
in the form of real deprivation or restriction of freedom was imposed in 16.67% of cases. In the remaining
83.33% of cases, the courts most often also imposed deprivation or restriction of liberty as the main
punishment, but released the convicts from it before the end of the probationary period or after the statute
of limitations for the crime expired, or applied amnesty acts.
Criminal cases of medical crimes are characterized by long periods of investigation and trial. Scientists have
noted that from the moment the investigation is started to the final verdict in the case, on average, more than
7 years pass (Giraldo P. et al., 2016; Wu et al., 2016). According to our data, in Ukraine the duration of
criminal proceedings was: up to 1 year - 5.3%, from 1 year to 3 years - 38.46%, from 3 to 5 years - 25.64%,
from 5 to 7 years - 15 .38%, more than 7 years - 15.38%. This does not mean that medical crimes are
investigated faster in Ukraine than in other countries. It is necessary to take into account a significant number
of criminal cases that are at the stage of pre-trial investigation.
The scientific literature presents the results of studies aimed at determining the professional scope of medical
workers who are held criminally liable for errors and malpractice. With some differences in different
countries, surgery, therapeutic areas (internal medicine, family medicine), emergency medical care,
obstetrics and gynecology, anesthesiology, pediatrics, etc. are considered to be the most criminogenic.
(Cakmak et al., 2017, p. 446-448; Alkhenizan, & Shafiq, 2018, p. 1078; Chen et al., 2019).
In Ukraine, in terms of medical specialties, age characteristics, and work experience, doctors who are held
legally liable for medical errors are in line with global trends (Franchuk & Trach Rosolovska, 2018, p. 5).
According to researchers, in 2020, obstetricians-gynecologists were prosecuted - 33%; surgeons - 20%;
anesthesiologists - 12%; ambulance workers (paramedics) - 7.5%; paramedics - 5%; other specialties -
17.5% (Danchenko & Taran, 2020, p. 256). According to our data, the courts considered criminal cases on
charges of doctors - 92.3%, nurses and paramedics - 7.7%. Among doctors, obstetricians-gynecologists -
28.21%, surgeons - 20.51%, anesthesiologists - 11.54%, traumatologists - 8.97%, general practitioners and
family doctors - 7.69%, paramedics - 6, were brought to criminal responsibility. 41%. In other rare cases,
infectious disease specialists, urologists, bacteriologists, psychiatrists, and neuropathologists were judged.
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Despite some differences in the specialties of medical workers accused in court, there is a tendency for the
greatest criminality in the areas of obstetrics and gynecology, surgery, anesthesiology, as well as emergency
care for injuries and internal diseases.
According to studies conducted in Spain and the United States, the most common medical errors are the
erroneous or late diagnosis of a patient's illness (Giraldo et al., 2016). Turkish scientists who have studied
court decisions have found that the two most common causes of medical errors are the choice of the wrong
method of treatment and surgical errors (Cakmak et al., 2017). Based on the results of our analysis, we state
that in Ukraine the methods of committing medical crimes are most often associated with the use of incorrect
methods of providing medical care to patients (54.68%) and with the untimely or incorrect diagnosis of the
disease (34.64%). There were also cases of violation of the rules for the use of drugs (5.34%), leaving the
patient without proper medical care (4%), and failure to establish an appropriate treatment regimen for a
patient suffering from a mental disorder (1.34%). It should be noted that, based on the results of numerous
observations in the scientific literature, the relevance of analyzing not only the risk factors for medical errors
or medical malpractice but also the prosecution of a doctor for conflicts with patients is emphasized
(Bernain, Rodríguez, Tissie & Gómez, 2019, p. 112).
We agree that the process of litigation of possible medical errors is the key to establishing fair, prompt, and
effective access to justice (Alkhenizan & Shafiq, 2018, p. 1075). Therefore, the pre-trial investigation and
trial of the facts of probable medical error and malpractice must be carried out within a reasonable time, as
objectively, fully, and comprehensively as possible. This means that it is necessary to take into account the
typical difficulties, mistakes, and blunders of the investigating authorities, which lead to delays in the pre-
trial investigation and trial in such cases, as well as outline ways to overcome them.
Griffiths and Sanders (2012) analyzed the reasons for the low efficiency of the criminal investigation of
medical crimes in the UK. They noted a large number of criminal cases closed by the police without
collecting evidence, and only 5% of cases where the investigation was fully completed, but only half of them
resulted in a conviction. Among the reasons for this situation, the authors name the lack of a medical worker's
obligation to exercise caution in a certain professional situation; the inability of the investigation to establish
a causal relationship between the act of a medical worker and the ensuing consequences, as well as to
establish a “gross” threshold of gross malpractice (Griffiths & Sanders, 2012, p. 31-45).
Difficulties in investigating medical crimes in Ukraine are due to similar reasons. Some differences are due
to the specifics of regulating the issues of professional and criminal liability of medical workers for the
improper performance of their duties, the peculiarities of criminal law regulation, and criminal procedural
proof under national legislation.
Almost always, a criminal investigation of medical crimes in Ukraine begins with complaints of inadequate
medical care received from the victims or their relatives. There are few cases when the reason for starting
an investigation is the reports of the health authorities based on the results of a post-mortem examination of
the corpse of a deceased patient. This situation is explained by corporate solidarity in the healthcare sector
and highlights the shortcomings of the domestic system for detecting and preventing medical malpractice at
an early stage. At the same time, it is believed that post-mortem autopsies are quite a sufficient method for
detecting cases of medical malpractice (Burkhard & Preuß, 2009).
In Ukraine, after the death of patients, routine autopsies are performed by regular pathologists at medical
institutions. In general, this departmental procedure is regulated by the order of the Ministry of Health of
Ukraine. At the autopsy, the attending physician or another representative of the department where the
patient died is always present. The presence of relatives and friends of the deceased is prohibited. Based on
the results of the autopsy, a protocol for a pathoanatomical examination is drawn up, in which the
pathoanatomical and final clinical diagnoses are indicated, and the presence of discrepancies in them and
their causes are assessed. This protocol and related documents are stored in the archive of the healthcare
institution (Order No. 1877, 2021). Interested parties from the side of the deceased patient are not provided
with them. If based on the results of the autopsy, signs of a possible medical error or malpractice are revealed,
a commission is appointed with the participation of health officials to assess the guilt of medical workers
through a departmental investigation. This happens extremely rarely, which is largely due to the corporate
solidarity of doctors.
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As a rule, the described procedure for post-mortem autopsy in the event of a conflict situation regarding the
adequacy of medical care does not inspire confidence among the relatives of the victims, primarily because
of its closeness. It contributes to the formation among interested parties of the belief in the bias of
pathologists and other doctors, the inability to find out the true cause of death without contacting law
enforcement agencies. The result of the described procedure is a significant number of applications for
medical criminal offenses in their actual absence.
It is also important to note that the documents drawn up based on the results of a post-mortem autopsy are
subsequently important sources of evidence in the investigation of medical crimes. Therefore, the
consequences of their falsification are very difficult to overcome and restore the true picture of the event.
In this matter, we consider the experience of Japan to be useful, where a model for investigating a possible
medical error has been in place since 2005. After the autopsy of the corpse, an assessment commission from
among medical specialists draws up and submits a report on the causes of death of the patient and the
necessary preventive measures to the medical institution and the family of the deceased. The report with the
edited identifiers is then published (Leflar & Iwata, 2005, p. 223). Improving the domestic system of
departmental investigations of possible cases of medical errors or malpractice by ensuring the openness of
the results to interested parties, in our opinion, would help reduce the number of unreasonable appeals to
law enforcement agencies about medical crimes. It could also increase public confidence in the quality of
medical care.
Based on the results of the analysis of criminal cases on medical crimes, it can be stated that investigators
and prosecutors in all cases carry out such actions as demanding and analyzing documents, interrogating
witnesses, victims and suspects, and involving forensic medical experts.
In 97.44% of cases, suspected medical workers do not admit their guilt in committing an error or malpractice.
They explain the resulting harmful consequences for the victim by unforeseen reactions of the body, atypical
symptoms, violation of the prescribed regimen by the patient, imperfect equipment, violations by other
medical workers involved in the provision of medical care, etc. Therefore, the investigation process implies
the need for a thorough check of the arguments of the defense and is accompanied by the resolution of
disputes of a professional nature both in the field of organizing the work of medical workers and regarding
the direct provision of medical care in specific situations.
First of all, for the effective investigation of this type of crime, the investigator (prosecutor) needs to know
the specifics of the functioning of the sphere of medical services, namely: what specific legal acts and rules
governing the professional activities of a medical worker have been violated; what specific negative
consequences were caused by errors or actions (inaction) of a medical worker; what is the mechanism for
the development of an unfavorable process that arose as a result of an error or actions (inaction) of the
subject; what is the nature of the cause-and-effect relationship between the factors that caused the onset of
negative consequences, etc. When solving these issues, the investigators experience significant difficulties,
which adversely affect the criminal-legal assessment and collection of the necessary evidence.
In each investigation of a medical crime, two types of legal documents that regulate the performance of
professional duties by medical workers must be analyzed. These are the standards and protocols of medical
care applied to a specific situation and the job descriptions of a suspected medical worker. The rules
established in these documents are mostly general and are not always clear concerning the obligatory actions
of a doctor in a given situation. It is practically impossible for an investigator, without the help of a specialist
in the field of medicine, to assess whether the action or inaction of a medical worker complied with the
established rules. Moreover, it is impossible to make an unambiguous conclusion about whether there is a
direct causal relationship between the act of the subject and the socially dangerous consequences that have
occurred without a specialist. It is noted that a causal relationship is more difficult to prove than the very
fact of a violation of official duties by a medical worker, due to the uncertainties inherent in medical practice
(Merry, 2009, p. 2165). With this in mind, the legal acts on forensic medical examination in Ukraine provide
for a mandatory commission to conduct it in all cases of professional violations of medical workers (Order
No. 6, 1995).
In general, the specific difficulties of the investigation force the investigator to shift the assessment of the
collected evidence to medical professionals, and the main source of evidence of the guilt or innocence of a
medical worker is the results of a forensic medical examination.
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To draw reasoned conclusions about the guilt or innocence of a medical worker in each specific case of
medical care that had adverse consequences, knowledge of the treatment process for a particular pathology
is necessary. In the procedural form, this knowledge, as mentioned above, is implemented by the
investigator, and the court in the form of the appointment of forensic medical examinations. It is possible to
identify a number of typical problems that arise in the appointment and conduct of forensic medical
examinations in the investigation of medical crimes.
So, the presence of the so-called "medical (corporate) ethics" causes the concealment of illegal acts of some
doctors by others, as a result of which some examinations are carried out incompletely, not according to all
medical documents, questions put to the permission of experts are not deeply and unscientifically
investigated. The analysis showed that two or more forensic medical examinations were carried out in all
criminal cases. Quite often the conclusions of different examinations contradicted each other, which
hindered the possibility of deciding the case on the merits.
The Bureau of Forensic Medical Examinations of the Ministry of Health of Ukraine is a communal
institution financed from the regional budgets. This circumstance may indirectly indicate the incomplete
independence of a forensic expert conducting research on criminal proceedings against a colleague working
in the same region, and even more so in a state medical institution. According to our observations, in cases
where employees of commercial medical institutions were accused of medical malpractice, the conclusions
of the forensic medical examination were more specific and confirmed the malpractice of the suspects.
Therefore, an urgent issue for Ukraine is the creation of independent institutions for forensic medical
examination. In turn, in today's conditions, when there are no such institutions, the investigator must take
into account measures to ensure the objectivity of the expert's conclusions. To do this, scientists recommend
appointing an examination to institutions of another region, attracting foreign experts to the commission,
not allowing attending physicians, employees of the medical institution where the event occurred, and
specialists participating in the internal investigation to participate in the examination (Grynko at al., 2018,
p. 176-177).
The quality of a forensic medical examination harms the lack of methodological recommendations on the
formulation of questions for experts and the list of documents required for a forensic medical examination.
As a rule, the investigator, investigating the facts of improper provision of medical care, initially sends for
examination as an object of study only medical documents filled out by medical workers whose actions will
be evaluated. However, these records in some cases are added or rewritten by interested parties after the
offense has been committed. There are also cases of destruction of medical records to prevent seizure by
law enforcement agencies. In the forensic literature, measures are proposed to improve industry legislation
aimed at minimizing the facts of falsification of medical records (Khizhnyak at al., 2018, p. 565-566). For
an investigator and prosecutor in a specific criminal investigation, it is tactically correct to immediately seize
all “medical” material at the disposal of a medical institution.
Conclusions
There are significant problems with the investigation of medical criminal offenses in Ukraine. Less than one
percent of the number of initiated criminal cases is sent to court. The rest, in approximately equal
proportions, are stopped or considered for a long time at the stage of pre-trial investigation. Most of the
cases sent to court end with a guilty verdict, however, medical workers are released from real deprivation or
restriction of freedom for various reasons.
In the specialties of medical workers accused in court, there is a tendency for the greatest criminality of
obstetrics and gynecology, surgery, anesthesiology, and emergency care for injuries and internal diseases.
The methods of committing medical crimes are most often associated with the use of incorrect methods of
providing medical care to patients and with the untimely or incorrect diagnosis of the disease. In addition,
medical malpractice is manifested in actions (inaction) that violate the rules for the use of medicines, leaving
the patient without proper medical care, and failure to comply with the proper treatment regimen for the
patient.
The problems of investigating medical crimes in Ukraine are due to the following reasons: the specifics of
the mechanism of offenses that are committed in the field of professional activity of medical workers aimed
at helping a person with various diseases, injuries and physiological processes; closeness for relatives and
relatives of the deceased of the results of the post-mortem examination of the corpse with a possible medical
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error; the lack of proper knowledge of investigators about the mechanism of medical crimes, which leads to
low efficiency in the collection and evaluation of evidence; denial by medical workers of their guilt and
shifting it to unforeseen reactions of the body, symptoms, violation of the prescribed regimen by the patient,
imperfect equipment, violations by other medical workers, etc.; the presence of corporate opposition of
doctors who are involved as forensic experts or witnesses in the case; the absence in Ukraine of independent
institutions of forensic medical examination and gaps in the legal regulation of the protection of medical
records from unauthorized access. These reasons exacerbate the difficulty of establishing a causal
relationship between a medical error, actions, or inaction of medical workers and the resulting negative
consequences for the life and health of the patient.
Bibliographic references
Alkhenizan, A. H., & Shafiq, M. R. (2018). The process of litigation for medical errors in Saudi Arabia and
the United Kingdom. Saudi Med J, 39(11), 1075-1081.
Bernain, G. R., Rodríguez, L. B., Tissie, D. L., & Gómez, L. C. (2019). Analysis of Chilean Supreme Court
rulings in medical malpractice cases, 2014–2015. Spanish Journal of Legal Medicine, 45-3, 108-113.
Burkhard, M., & Preuß, J. (2009). Medical malpractice as reflected by the forensic evaluation of 4450
autopsies. Forensic Science International, 190, 1–3, 58-66. DOI:
https://doi.org/10.1016/j.forsciint.2009.05.013
Cakmak, C., Demir, H., & Kidak, L.B. (2017). A research on examination of medical errors through court
judgments. J Turgut Ozal Med Cent, 24(4), 443-9. DOI: https://doi.org/10.5455/jtomc.2017.06.089
Chen, L. J., Lian, Y. L., Li, L. Z., Yue, X., Qiao, D. F., Li, D. R., Wang, H. J., & Wang, Q. (2019).
Retrospective Analysis of 291 Cases of Medical Malpractice Involving Death. Fa Yi Xue Za Zhi, 35(6),
701-705. DOI: https://doi.org/10.12116/j.issn.1004-5619.2019.06.010. [In Chinese]
Danchenko, K., & Taran, O. (2020). Criminal Liability of Medical Profecionals Negligience: Comparative
Analysis. Cuestiones Políticas, 38: Especial II, 251-263. DOI: https://doi.org/10.46398/cuestpol.382e.19
Danshyn, M.V., Bespalova, O.I., Denisov, S.F., Denisova, T.A., & Kostenko, M.V. (2019). Iatrogenic
crimes: issues of investigation methodology. Georgian Medical News, 5(290), 163-170. Recovered from
https://cdn.website-
editor.net/480918712df344a4a77508d4cd7815ab/files/uploaded/V290_N5_May_2019.pdf [In
Russian].
Dettmeyer, R., Egl, M., & Madea, B. (2005) Medical Malpractice Charges in Germany - Role of the Forensic
Pathologist in the Preliminary Criminal Proceeding. Journal of Forensic Sciences, 50(2), JFS2004136-
5. DOI: https://doi.org/10.1520/JFS2004136
Franchuk, V. V., & Trach Rosolovska, S. V. (2018). Demographics and professional characteristic of
Ukrainian physicians involved in criminal negligence. German Science Herald, 5, 3–6.
Giraldo, P., Sato, L., Martínez-Sánchez, J.M, Mercè, C., Dwyer, K., Sala, M., & Castells, X. (2016). Eleven-
year descriptive analysis of closed court verdicts on medical errors in Spain and Massachusetts. BMJ
Open, 6, e011644. DOI: https://doi.org/10.1136/bmjopen-2016-011644
Griffiths, D., & Sanders, A. (2012). The road to the dock: prosecution decision-making in medical
manslaughter cases. Bioethics, Medicine and the Criminal Law: Medicine, Crime and Society, 2,
Cambridge University Press, Cambridge, 117-158.
Grynko, L. P., Grynko, P. O., Teremetskyi, V. I., & Batrin, O. V. (2018). Problematic issues of appointing
and conducting forensic medical examination in iatrogenic crimes. Medical Affairs, 3-4, 175-179.
Recovered from https://doi.org/10.31640/3-4.2018(29) [In Ukranian]
Gutorova, N., Zhytnyi O., & Kahanovska, T. (2019). Medical negligence subject to criminal law. Wiad Lek,
72, 11 cz. I, 2161-2166. DOI: https://doi.org/10.36740/WLek201911118
Hărătău, A. (2017). Theoretical and case-law considerations on the professional negligence of doctors that
could result in criminal, not only civil, liability. Challenges of the Knowledge Society, 7, 166–173.
Institute of Medicine (US) Committee on Quality of Health Care in America, Kohn, L. T., Corrigan, J. M.,
& Donaldson, M. S. (Eds.). (2000). To Err is Human: Building a Safer Health System. National
Academies Press (US). DOI: https://doi.org/10.17226/9728
Kharytonov, E., Kharytonova, O., Kharytonova, T., Kolodin, D., & Tolmachevska, Y. (2019). Human rights
as the basic value of the concept of private law in modern Europe. Amazonia Investiga, 8(20), 477-485.
Retrieved from https://amazoniainvestiga.info/index.php/amazonia/article/view/177
Khizhnyak, V.V., Olkhovskyi, V.O., Morgun, A.O., Kutsenko, K.V., & Morgun, O.O. (2018). Forensic
medical support of "medical cases". Theory and practice of forensic examination and criminology, 18,
558-567. Recovered from https://doi.org/10.32353/khrife.2018.65 [In Ukranian].
Volume 11 - Issue 57
/ September 2022
47
https://www.amazoniainvestiga.info ISSN 2322- 6307
Leflar, R. B., & Iwata, F. (2005). Medical Error as Reportable Event, as Tort, as Crime: A Transpacific
Comparison. Widener Law Review, 12, 189-225. Available at SSRN: https://ssrn.com/abstract=920991
Merry, A. F. (2009). How does the law recognize and deal with medical errors? Journal of the Royal Society
of Medicine, 102(7), 265–271. DOI: https://doi.org/10.1258/jrsm.2009.09k029
Order No. 1877. The procedure for conducting a pathological autopsy. Approved by order of the Ministry
of Health of Ukraine, dated September 6, 2021. Recovered from
https://zakon.rada.gov.ua/laws/show/z1239-21#Text [In Ukranian].
Order No. 6. Instructions on conducting a forensic medical examination. Approved by of the Ministry of
Health of Ukraine dated January 17, 1995. Recovered from https://zakon.rada.gov.ua/laws/show/z0254-
95#Text [In Ukranian].
Starkey, L.J., & Maeda, S. (2010). Doctor as criminal: reporting of patient deaths to the police and criminal
prosecution of healthcare providers in Japan. BMC Health Serv Res 10, 53. DOI:
https://doi.org/10.1186/1472-6963-10-53
Topchiy, V.V. (2020) Directions for improving the investigation of crimes in the medical field. Scientific
Bulletin of the Uzhhorod National University. Series Law, 60, 186-190. [In Ukranian].
Tsigengagel, O. P., Glushkova, N. E., Samarova, U. S., Begimbetova, G. A., & Khismetova, Z. A. (2020).
Prevalence and management of medical errors (review). Georgian Medical News, 11(308), 153-160.
Recovered from https://www.geomednews.com/v-308-november-2020.html [In Russian].
Wu, K. H., Cheng, S. Y., Yen, Y. L., Wu, C. H., Tsai, M. T., & Cheng, F. J. (2016). An analysis of causative
factors in closed criminal medical malpractice cases of the Taiwan Supreme Court: 2000–2014. Legal
Medicine, 23, 71-76.
