Determination of medical liability

Determination of medical liability

It is a fact that the professionals in medical practice tend to do their work with the goal of guarantee a positive result for their patients, which ends in an improvement of their health. Nevertheless, some procedures, exceptionally, could produce different results than expected, harming, in occasions, the health, physical integrity and even the own life from the patients; without a doubt, these harms can be between the own-risks of the realized interventions or have its source in careless or negligent actions as well as actions perpetuated by omitting procedures and erroneous acting from the medical professional.

The current General Law of Health contemplates that the results produced by negligence and infraction of certain procedures are set to be known through medical auditors appointed by MINSA (Health Ministry, by its acronyms in Spanish), which its main function is to determine, if in the concrete case, exist administrative liability from the audited medic. This is a first step of the analysis of the legal liability in the actuation of the medical professionals.

From my point of view, the General Health Law should be reviewed in order to update some aspects provided for the determination of administrative liability, taking into consideration what is contemplated in the modern compared law and our social reality; in the understood that the medical professionals must in an exclusive manner be whom examine the denounces presented by the patients, as a first filter for acquainted of administrative infractions, negligence and minor indiscretions and leave for criminal matters, based on the principle of ultima ratio only “eminently serious recklessness” and allow to be the medical auditors whom qualify this imprudence to determine its severity, taking into consideration our current penal code “only punishes the recklessness” understood as ” the violation of elementary standards of care or due diligence”.

Nonetheless, the submission to a penal procedure does not mean per se the anticipated conviction from the medical professionals, it is clear that our penal legislation recognizes the due process and the judicial protection as rights for every defendant, in other words, the parties of the trial have the right to present evidence of charge and discharge, taking into consideration that the medical professional who is being tried for reckless imprudence, It should be released during the process until it is determined or not guilty. The imposition of precautionary measures such as preventive detention in these cases should not apply, except as provided in the Criminal Procedure Code.

It is accurate appoint, that in penal court, the defendant for imprudent crimes can reach a mediation, prior and during the process, with the affected party, even before the dictation of the sentence.

Finally, given that in Nicaragua does not exist a specific law that regulate the actuation from the medical professionals, this is an appropriate moment to draft a special law that regulate the actuation ambit from the medical and the determination of civil and administrative liability and let to the penal jurisdiction those cases considered as very severe by the involved.

María Asunción Moreno Castillo
CENTRAL LAW Nicaragua

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