With the increase in medical and aesthetic procedures, understanding when a physician may be held criminally liable is essential for professionals, patients, and legal practitioners.
Criminal liability for medical malpractice involves situations in which the acts—or omissions—of a healthcare professional result in injury, worsening of the clinical condition, or the patient’s death.
This article presents the hypotheses for criminal liability, explains how evidence is produced, and distinguishes between intentional (dolus) and negligent (culpa) conduct.
What is medical malpractice under Criminal Law?
In the criminal sphere, the Superior Court of Justice (STJ) has established that criminal liability for medical malpractice requires the simultaneous presence of the following elements:
- voluntary human conduct;
- breach of the objective duty of care;
- harmful result not desired or not assumed by the professional;
- causal link between the conduct and the result;
- foreseeability of the result;
- statutory classification of the conduct.
Liability may arise from either an act or an omission.
Example: if a physician fails to order essential exams, disregards relevant symptoms, or does not follow established protocols, the omission may generate criminal liability if it results in harm to the patient.
Difference between intentional and negligent conduct in medical malpractice
Intentional conduct (dolus)
Intentional conduct occurs when the professional wants the harmful result or consciously assumes the risk of producing it. Such situations are rare in medical practice.
Negligent conduct (culpa)
Most cases of medical malpractice derive from negligence, when the result stems from a breach of the duty of care. Negligence may arise from:
- recklessness: precipitated action or lack of caution;
- negligence: failure to take necessary precautions;
- malpractice: lack of technical knowledge or disregard for the lex artis.
Common examples of breaches of the duty of care include:
- failures in asepsis or hygiene;
- noncompliance with technical protocols (prophylaxis, anesthesia, instrumentation);
- practicing without adequate licensure or qualification;
- use of unregistered or non-traceable products.
Which crimes may arise from medical malpractice?
Although negligence is an exception in Criminal Law, criminal liability for negligent conduct is common in medical malpractice cases, especially for:
- involuntary manslaughter (when the error results in death);
- negligent bodily injury (when it causes physical harm, scarring, or sequelae);
- failure to render assistance (when the professional fails to provide necessary care).
How is evidence of medical malpractice produced?
1. Evidence of foreseeability of the result
The prosecution must demonstrate that the professional could foresee the harmful outcome.
Rare, unpredictable, or inherent complications of the procedure may exclude criminal liability.
Evidence commonly used to demonstrate foreseeability includes:
- opinions issued by the Regional Medical Council;
- testimony from other healthcare professionals;
- medical expert analysis of the patient’s records;
- technical reports by specialists.
2. Evidence of the causal link
The causal link confirms that the professional’s act or omission was decisive for the harmful result.
The analysis typically considers:
- the patient’s clinical history;
- technique employed during the procedure;
- materials used;
- progression of the clinical condition;
- existence of concurrent causes.
Permitted risk and patient consent
A patient may assume the inherent risks of a procedure, provided they are properly informed. This is known as permitted risk.
However, criminal liability may arise when the professional:
- exceeds the legally permitted risk;
- acts beyond their professional qualification;
- ignores contraindications;
- uses unregistered or non-traceable materials.
Conclusion
Criminal liability for medical malpractice depends on technical analysis of the conduct, the foreseeability of the result, and the causal link. The investigation requires robust evidence and a careful assessment of the circumstances.
Given the complexity of the subject, patients and healthcare professionals are advised to seek specialized legal counsel to ensure proper evidence production and full exercise of the right to defense.
