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Is it appropriate to recommend criminal legal knowledge in medical studies, even from the undergraduate level?
¿Es pertinente recomendar los conocimientos jurídicos penales en estudios médicos, incluso desde el pregrado?
José Ramón González Guadarramas1, Yordania Figueroa Álvarez2, Xenia Mónica Aguiar Santiago3
1 Professional Judge Holder of the Villa Clara People´s Provincial Court. Cuba.
2 Lawyer of the Collective Law Firm. Santa Clara. Villa Clara. Cuba.
3 PhD in Pedagogical Sciences. Central University "Marta Abreu" of Las Villas. Villa Clara. Cuba.
The feeling that emanates when talking about the doctor, the one who accompanies, heals and takes care of patients is indisputable. This framework of words coincides with the paraphrased expression that medicine is an art that is carried in the heart, of extreme human sensitivity.1
Every profession has its golden rules: that of the teacher consists of teaching its students, the lawyer represents the interests of his client under all questioning, the judge administers justice with equity; while the doctor saves human lives, which from a legal-philosophical perspective, is the most precious legal right. However, this feeling becomes adverse when they are felt in a society like the Cuban one, recognized for its achievements in public health, some negligent behaviors resulting from medical care, which end up becoming a punishable act before the State and society ; issue that currently attracts attention since law professionals directly linked to the confrontation of this type of behavior, warn a certain tendency to its commission, although it is valid to clarify that it is not a rise or growth, but rather -before that another conclusion is obvious to the reader - of signs that point to the existence of irregularities in medical care in some institutions and health professionals.
But what are its causes and conditions? Can criminal liability be demanded only by the doctor or paramedic? Is criminal responsibility attributed when the death of a person occurs or can it be demanded in the case of injuries? Is there a need? Real to expand the knowledge of students around this criminality even from undergraduate? These and other questions are obvious, and although thinking about it sometimes scares, this reality can not be ignored because of the importance for students and doctors to counteract this phenomenon.
This editorial intends to argue theoretical aspects linked to the practical experience of the work of its authors, of forced observation to feed the reader the wealth of knowledge that allows a comprehensive examination of the subject, especially when there are few scientific papers that have addressed this theme in Cuba; scarcely few studies have been carried out in the field of Criminology and Forensic Medicine which allows us to affirm that in the science of Law there is currently a gap that demands its necessary treatment; hence the motivation to critically approach its modality and transcendence in accordance with the performance of the legal sciences.
Some resolutions related to teaching in higher education were reviewed,2,3 in them the moral and labor obligations of the future graduates are explained, but not the legal consequences of their non-compliance when it comes to violations of the laws, so that It would be necessary to explore the study plans to verify if they refer to these topics.
Regarding the medical and paramedical personnel undoubtedly weighs the careful duty of care in the exercise of their profession, being obliged to prevent, with the available resources, those adverse or fatal results that are a consequence of their action or omission, regarding the choice of the means and the method of employment, and in accordance with the quality of service standards in terms of treatment. When this chain is broken, a bad medical practice (malpractice) occurs, which happens as a result of fraud or fault.
When talking about medical malpractice it is mandatory to introduce the concept of iatrogenesis, a term used in medical sciences; is any alteration of the patient's condition that is affected by the intervention of the doctor through its professional actions, behaviors or diagnostic, therapeutic, surgical, psychotherapeutic, etc.4,5 Such alteration can favor a bad result, a necessary evil or an accident with the enforceability of criminal responsibility. It is the undesirable effect that can be avoided if the doctor is more careful, prudent and has greater knowledge.
Undoubtedly, the exercise of any profession involves risks, however, these have to be for the Criminal Law and typically relevant, it is necessary to prove that this risk has not been allowed which has been reflected in the injurious result. It is necessary that the result has been produced as a consequence of objectively due disregard.6
The fraud is when a typically unlawful result occurs with awareness that duty is broken, with knowledge of the circumstances of fact and essential course of the causal relationship between the human manifestation and the change in the outside world, with will to carry out the action and with representation of the result that is wanted or ratified.7
Dolo lessons:
Determined: the agent wanted to commit a crime, whose consequences have been exactly foreseen.
Undetermined: the criminal act that the agent will execute can produce many and varied foreseeable consequences.
Direct: the agent has foreseen or been able to foresee the consequences of his action.
Indirect or eventual: when the action produces more serious consequences than those that the agent has foreseen or foreseen. Eg: when a diabetic is injured without knowing that it was.
Positive: when the act that is performed consists of an action.
Negative: when it consists of an abstention.
Guilt is singled out as a fault, a defect in behavior, will or intellect, inattention or neglect, lack of necessary scientific knowledge about the case or the applicable technique. These limitations show that what was foreseeable was not foreseen, but the behavior was not observed to avoid it. In the field of science or medical practice, it includes the following manifestations: medical error, non-observance of regulations, incompetence, imprudence and negligence, explained below:7
By medical error: it is linked to an unfortunate diagnosis, since this depends on the treatment that must be followed, and therefore, the recovery or deterioration in the patient's health. It can be manifested by insufficient knowledge or by negligence in the diagnosis given the complexity of the clinical picture; then the diagnostic conclusion or the therapeutic indications do not correspond to the true affection of the patient. Conceptually, it is the result of a mistake in which there is no bad faith, nor are elements of imprudence, negligence, or incapacity or professional ignorance revealed (imperious); therefore, when it occurs, criminal liability is not required.
By non-observance of the regulations: it is the breach of the protocols of action and the regulations that are working in each level of health.
Due to lack of skill: it means insufficient knowledge that is assumed in a person who has made special studies in the field of medicine, it may indicate lack of practice even though they may have the necessary knowledge, it may lead to errors due to poor performance or by default, either in the diagnosis or in the treatment. Due to lack of skill, a doctor can stop doing an essential examination or not make an adequate diagnosis.
By recklessness: it consists in not acting with the due caution that medical science claims to avoid the risk to which the medical act carried out without further reflection, is the omission of due caution. Actions are carried out in which a coping with risk, recklessness or lightness, lack of inexcusable foresight, a disregard for care are appreciated; for example: to force the therapeutic dose beyond the indicated limits of the experience, to carry out serious interventions in order to attend insignificant injuries, to carry out operations without the consent of the patient or of the person legally representing it.
For negligence of conduct: it translates into an omission. It consists of the breach of a duty, a lack of precaution, an omission of attention and due diligence; evidence a volitional laziness that brings with it a lack of prediction of fatal results that can be derived from omission, because its lightness, prevents measuring results. Here he does not distinguish the lack of foresight, but the contempt of care.
The fraud and fault are criminal legal concepts that clarify predictable medical behaviors and that through ignorance may constitute criminal acts; remember that ignorance of the law does not exempt from criminal responsibility.
Declaration of interests
The authors declare no conflict of interest.
BIBLIOGRAPHIC REFERENCES
1. Vélez Correa LA. Ética Médica. 3 ed. Colombia: Corporación para Investigaciones Biológicas; 2003.
2. Cuba. Ministerio de Educación Superior. Resolución No. 2/2018. Reglamento de trabajo docente y metodológico de la educación superior. La Habana: Gaceta Oficial de la República; 2018.
3. Cuba. Ministerio de Educación Superior. Resolución No.111/2017. Reglamento de organización docente de la educación superior. La Habana: Gaceta Oficial de la República; 2017.
4. Court Morazo E. Responsabilidad Civil Médica. Chile: Universidad Católica de Valparaíso. 1998.
5. Real Academia Española. Diccionario de la Real Academia Española.23 ed. Madrid: Espasa Libros S.L.V; 2015.
6. Vera Carrasco O. Aspectos Éticos y Legales en el Acto Médico. Rev Med La Paz [Internet]. 2013 [citado 25 Oct 2018];19(2):[aprox. 12 p.]. Disponible en: http://www.scielo.org.bo/scielo.php?script=sci_arttext&pid=S1726-89582013000200010&lng=es
7. Palomar Llatas F, Fornés Pujalte B. Úlceras y heridas como consecuencia de
una iatrogenia. Rev Enfermería Dermatológica [Internet]. 2013 [citado 12
Oct 2017];(20):[aprox. 6 p.]. Disponible en:
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=16&ved=2ahUKEwip
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8. Cuba. Código Penal de la República de Cuba. Ley No. 62/1987. La Habana: Ediciones ONBC; 2009.
Submitted: November 1 2018.
Accepted: November 15 2018.
José Ramón González Guadarramas. Professional Judge Holder of the Villa Clara People´s Provincial Court.Villa Clara. Cuba. E-mail: guadarramas@vc.tsp.gob.cu o xaguiar@uclv.cu
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