Criminalizing medical care: Overview

Abstract

Criminal medical negligence and manslaughter (unintentional killing) are legal causes of action in civil law and common law countries. They strike fear into the minds of health care providers worldwide. The authors performed a scoping review of electronic literature to learn whether countries are criminalizing medical care and if potential relationships exist among common and civil law jurisdictions applicable to Thailand. A natural language keyword search (base: crime, provider, medicine, negligence, gross, wanton, willful, and manslaughter) using a modified scoping review (Arksey and O’Malley) methodology. Searchers utilized a commercial or an open source browser (Google Chrome^™ or Mozilla Firefox^®) and a single internet search engine (Google^™ (e.g. Web, Scholar, and News plus News Archives) or Microsoft Bing^® per query or a metasearch engine (DuckDuckGo^©)), if either single search engine (Google^™ or Bing^®) failed to return items  (N = 0 attempts). Sources included public (Google, Google Scholar, EBSCO, and Medline) and private (Lexis) databases. Authors mined text for information to analyze qualitatively. Searchers identified 57 potential articles for review. Of the 57, 40 (~70%) reviewed articles consisted of peer-reviewed journals (N = 34: Legal Journals (N = 20) v. Nonlegal Journals (N = 14: Medical = 9 v. Policy/Safety = 5) and non-peer reviewed publications (Gov’t Reports = 2; Chapters = 2; and nonacademic, scholarly website Articles = 2). The decades for increased publication were 2000–2009 (N = 19) and 2010 - 2016 (N = 11). Published authors reported upward trends in criminalizing medical care related to direct patient care based on a variety factors. One author found physicians reduce chances of a criminal charge by (1) keeping their skills, training, and knowledge current while endeavoring to remain within the scope of their practice, (2) avoiding repetition of problems with same or different patients, (3) intervening to avoid harms to a patient, and (4) avoiding the appearance of financial or self-interest-based motives in caring for patients. The best way to avoid a claim may be a reduction in medical errors and avoidance of outrageous conduct departing from a recognized standard of care.