Medical Negligence Criminal Implications

Medical Misdiagnosis: Criminal Implications

Physicians are placed in a position of great trust as experts. This is one of the many reasons that the issue incites such strong feelings in the public, regarding how the law penalizes and addresses issues pertaining to medical misdiagnosis. Many medical diseases are so-called great pretenders, especially in their early stages. For example, chest pains may be the result of anxiety or a heart attack. In the case of one 5-year-old girl with a severe stomach ache, a physician misdiagnosed the girl as having a viral stomach condition, only for the girl to die at home two days later of appendicitis (Doctor given warning, 2022). After examination by a medical tribunal, the physician in question was reprimanded for failing to take into consideration certain critical symptoms of the child, such as lethargy, or performing a second examination of her abdomen, but was allowed to practice, given that the incident was an aberration in the otherwise strong record of the physician (Doctor given warning, 2022).

In this case, the child in question was located in the United Kingdom, and if the case occurred in the U.S., it is likely the parents would have sued the physicians. According to Black’s Law Dictionary, negligence occurs when a professional has a duty of care and acts according to common prudence, given the knowledge the individual has at the time (Pandit & Pandit, 2009). For medical misdiagnosis to take place, therefore, a physician would have to be shown to have disregarded doing conventional examination and diagnostic procedures, leading to the patient’s death. However, this can be very difficult to prove. For example, patients may elect not to perform certain tests because the physician may suggest them but not seem particularly urgent in his or her assurance, and the patient is concerned about medical insurance failing to cover such tests. Who is at fault in such an instance? Or a physician may, based on a superficial observation of the patient, make one diagnosis, but not gain a complete picture of the patient’s state of health, because the patient unwittingly withheld certain symptoms from him or her that would have resulted in a different diagnosis. In the case of the appendicitis, even the question of what constitutes lethargy can be highly subjective in the above-cited instance.

Standard medical practice, based on evidence-based medicine, is also continually evolving, and certain tests and procedures which may have been routinely performed in the past (or not) may no longer be supported. COVID-19 has also thrown an additional complication into the picture, given that symptoms can vary so greatly from patient to patient. The question of whether doctors are making more mistakes likewise can be difficult to determine, given that there is more extensive statistical tracking of medical errors, and simply because there may be more legal judgements against physicians does not necessarily mean that this is a reflection of medicine, but more of law. On the other hand, fatigue, being overburdened by patients, and pressures from insurance companies to lower costs may very well result in complications practicing medicine that were not true of the past, as may the aging of a population with greater comorbidities and the potential for contraindicated medicines and treatments.

On the other hand, willful misconduct, such as a physician using his or her position to advance a particular ideology (such as dissuading a patient from getting a COVID-19 vaccine, or misinforming a patient about the risks of a particular form of birth control), would definitely be the grounds for losing the physician’s license, versus an unintentional error. A charge of murder, under the model penal code, however, requires intent, and the question of intentional harm is rarely a factor in cases of medical negligence or malpractice, but rather the extent to which the physician was using all of the capabilities in his or her possession to assist the patient.