The Ukrainian Parliament is deliberating on the overhaul of criminal accountability for medical malpractice following the widely publicized “Odrex Incident.” Parliamentarians Viktoriya Vagner and Oksana Dmytrieva underscore the necessity for revisions to Article 140 of Ukraine’s Penal Code and an update to the expert evaluation framework to safeguard both patients and physicians.
The demise of a patient during an operation, dental procedure, or medical treatment represents a sorrowful occurrence that, within Ukraine, frequently escalates into protracted legal proceedings with uncertain outcomes. The notable “Odrex Incident,” alongside recurrent accounts of patients dying in healthcare facilities, have put a spotlight on the widespread issue of insecurity faced by Ukrainian patients while also highlighting the fact that criminal culpability primarily rests upon doctors. The relevant parliamentary body acknowledges the need for updated operational guidelines, as reported by UNN.
Deputy Viktoriya Vagner, an elected official and a member of the Verkhovna Rada’s Medical Committee, voiced the urgency for legislative modifications concerning criminal responsibility for the inadequate execution of professional obligations by medical practitioners. According to her, the present articulation of Article 140 of the Criminal Code of Ukraine (inadequate fulfillment of duties by a medical or pharmaceutical employee, resulting in grave consequences for the patient, encompassing death or disability, which is subject to penalties such as restricted freedom or imprisonment for up to 2 years (Part 1) or 3-5 years (Part 2, when the casualty is a minor), proves insufficient for effectively addressing patient fatalities.
From my perspective, the existing form of Article 140 within the Criminal Code of Ukraine lacks sufficient effectiveness as a means of prosecuting instances involving patient demise, due to its composition and evidentiary criteria that frequently render a guilty verdict improbable in real-world scenarios. Initially, establishing a causal relationship beyond any reasonable doubt between an action or inaction and a subsequent death presents considerable challenges. Secondly, the evaluative formulations (“improper performance”, “serious consequences”) allow for varied interpretations and render the proceedings vulnerable to justifications stemming from deficient evidence of the composition. Furthermore, the concentration is directed towards a specific employee, whereas many fatal occurrences are rooted in systemic issues such as duty assignments, routing procedures, resource inadequacies including equipment or pharmaceuticals, established protocols, and managerial decisions. The criminal process tends to “personalize” culpability, even when it could be attributed to organizational shortcomings
– says Victoria Wagner.
The judicial review of medical negligence is intrinsically linked to the caliber and impartiality of forensic medical assessments. Accordingly, as Wagner elucidates, the topic of amending criminal accountability under Article 140 of the Criminal Code must be considered in conjunction with an overhaul of the expert system. The parliament is already examining draft law No. 6284-2 “On Forensic Expert Activities”, which outlines revisions to the methodologies governing the structuring and oversight of forensic assessments.
The penalties prescribed by Article 140 are comparatively lenient, thereby curtailing both their deterrent impact and the stakeholders’ motivation to expedite the case towards a resolution. The central obstacle lies in the burden of proof, consequently, merely amplifying the penalties will not inherently resolve the fundamental issue. Should we pursue reforms, I would advocate for a holistic approach that enhances both equity for patients and legal certainty for physicians. Achieving an optimal outcome might entail integrating: clarifying the standards or degrees of culpability in tandem with reforms to expertise and investigation, coupled with robust mechanisms for civil compensation. The system of investigation into “medical” cases warrants amendments, not solely in sanctions, but also in procedure: ensuring independence of expertise, transparent assignment processes, and stringent deadlines for both the commissioning and completion of expertise. While the Criminal Procedure Code stipulates reasonable timelines, the absence of judicial oversight and procedural safeguards can prolong cases for extended durations
– Victoria Wagner said.
Oksana Dmytrieva, a parliamentary member and the vice-chair of the Verkhovna Rada’s medical committee, voices a congruent sentiment. She too emphasizes the significance of distinguishing between professional errors, criminal oversight, and systemic failures in management.
Prominent medical cases that have lingered in the courts for years are indicative of an underlying systemic concern. The crux of the matter extends beyond merely the severity of criminal liability, encompassing the fact that Ukrainian legislation has yet to precisely delineate between criminal negligence, professional error, and systemic inadequacies within the organization of medical care. Consequently, families of patients endure prolonged waits for equitable judgments, while physicians operate under persistent apprehensions of criminal prosecution, even amidst complex clinical circumstances. Such a paradigm does not foster trust or reassurance. Ukraine necessitates a system that simultaneously safeguards patient rights, delivers impartial professional evaluations for physicians, and apportions accountability not solely to the practitioner, but also to the institution and its administrative decisions. I firmly believe that we must transition from merely reacting to individual misfortunes towards enacting transparent and predictable regulations that cultivate greater trust within the medical framework
– says Oksana Dmitrieva.
We will remind you
The recent legislative discussions were propelled by the widely known “Odrex Incident.” The demise of businessman Adnan Kivan within the controversial Odrex clinic garnered widespread attention. Subsequent investigations revealed that the Odrex clinic and its healthcare personnel were implicated in 10 criminal proceedings pertaining to allegations of improper performance of professional duties, deceit, and premeditated homicide.
Against the backdrop of media disclosures and extensive narratives from past patients and their kin, the activist group StopOdrex emerged, dedicated to gathering and anonymously disseminating individuals’ accounts of treatment at the scandalous clinic via Telegram. This particular case brought to light a systemic issue: within Ukraine, the patient remains largely unprotected, and accountability in intricate “medical” cases remains predominantly focused on individual medical practitioners.
Concurrently, the organizational and managerial determinations of medical establishments infrequently become the subject of thorough legal scrutiny. A pronounced sense of inequity ensues: the clinic’s administration is responsible for formulating internal protocols and establishing the operational framework within which doctors are compelled to function. Nevertheless, when these matters are litigated, the medical practitioners are made “scapegoats”, while the management of medical institutions remains largely unaffected, thereby evading any consequential responsibility.