Legal evaluation of risk as a criterion for determining criminal liability of medical professionals

Abstract

Introduction:

In order to determine whether a medical professional is criminally liable for reckless conduct, a judge has to use a range of criteria. In modern legal doctrine, and especially in Colombian jurisprudence, it is increasingly important to assess to what extent a medical professional's conduct falls within the permitted margin of risk.

Objective:

To examine the importance for legal professionals of evaluating risk in the context of determining criminal liability pertaining to reckless conduct.

Methodoloqy:

The methodology used was the dogmatic criminal law approach; concepts embodied in the meaning of crime and that are needed to establish criminal liability of an individual were interpreted and systematized. The background material was the result of a search of national and international papers on this subject matter, and the decisions issued by the Criminal Chamber of the Supreme Court of Justice, Colombia, between 1995 and 2016 were reviewed.

Results:

There is a consensus between the majority doctrine and the criminal jurisprudence about the importance of assessing the presence of risk in medical practice.

Conclusions:

In cases where the medical action results in harmful consequences for the patient but there is proof that the physician performed within to the allowable parameters of risk for the particular procedure, the medical professional shall be considered exempt from any criminal liability.