Medical negligence and errors can cause serious — and sometimes fatal – injury. Patients and surviving loved ones can and should take civil action against medical professionals and facilities when they fail to meet the required standard of care.
Can these professionals be held criminally responsible as well? It depends.
What does the law say?
Two years ago, Kentucky became the first state to decriminalize medical errors with a new law. The law states that health care providers “shall be immune from criminal liability for any harm or damages alleged to arise from an act or omission relating to the provision of health services.” Note that the law doesn’t prevent other serious consequences for medical professionals, like suspension or loss of their professional license.
The law is intended to prevent those in the medical profession (doctors, nurses, pharmacists and others) from being punished by the justice system for unintended mistakes and negligence, even when they have catastrophic outcomes. Importantly, it makes an exception for “gross negligence or wanton, willful, malicious, or intentional misconduct.” Those are still prosecutable.
How decriminalization can improve patient safety and help with civil claims
This decriminalization can actually help those who have suffered harm due to medical negligence or error get justice and compensation via a malpractice claim. One of the medical associations advocating for the legislation, the Kentucky Nurses Association, pointed out that taking away the fear of facing criminal charges could encourage more health care professionals to voluntarily report errors and to cooperate with any investigation.
Getting rid of the fear of criminal penalties can also make medical professionals more likely to call attention to errors before they have a chance to cause serious harm, prevent mistakes in the future by bringing about better processes and practices and also help medical malpractice claims be resolved more quickly.
Advocates for the law noted that the fear of criminal punishment for an honest mistake was keeping some people from entering the medical field. With some of these professionals – particularly nurses – in short supply – the law could help with these critical shortages.
As noted, the law doesn’t affect Kentuckians’ right to bring a medical malpractice-related civil claim and seek justice and compensation. Anyone considering such a claim can benefit from getting sound legal guidance as early as possible to determine how best to proceed.