Criminology

The criminal justice system, as well as the general public, is faced by a major challenge concerning the way it should handle various cases of fatal medical error.  Each and every nation seeks to minimize the rate of death from fatal medical errors however, differences in the justice system guide those endeavors to different trajectories. The issue of fatal medical errors divides society into two major groups those who propose and those who oppose criminalization of medical errors.  This paper evaluates the United States context to determine whether criminal law should be employed to control the careless conduct of medical professionals by highlighting both the views aired by opponents and proponents of prosecution of medical professionals for fatal medical errors.   

Introduction
Criminal legal responsibility for carelessness, according to McDonald (2008), has long been controversial as it increases critical issues concerning criminal principles which get their way into the heart of our awareness of when it is suitable for punishing those whose practice clearly portrays fault instead of an intention to cause injury. There are people who argue that carelessness should not be a base for criminal responsibility due to the fact that criminal sanctions should be enforced on people for the outcome of actions they had determined or effects that they foresaw as a likely outcome of their practice (McDonald, 2008). Others, as (McDonald (2008) illustrates, propose the enforcement of criminal sanctions for practitioners who were careless on the basis that the defendant could have acted as per the set standards of conduct, but did not do that. Proponents of criminalizing negligence argue, on practical basis, that the threat of criminal sanctions contains a potential consequence in that it promotes improved standards of performance (Monico, Kulkarni, Calise and Calabro, 2007). Careless acts by professional health care workers during their practice are part of human race condition. No one is perfect. Each and every person is destined to make mistakes. The just culture organization, according to Monico, Kulkarni, Calise and Calabro (2007), believes that healthcare system usually fail to identify that human beings have various intentions in all they do. Though the intentions of human beings towards a certain outcome may be recognized, people fail to notice the intention of human beings toward the behavior that results in that outcome. These outcomes has long been responded to through a variety of ways, especially by way of provision of damages to the injured person based on the law of tort and the enforcement of sanctions against healthcare experts through professional regulatory mechanisms (Dute, Faure, and Koziol, 2004). However, in the most serious of such situations, the criminal law has for long been a tool through which alleged carelessness in the conduct of a health professional resulting in the death or severe injury of a patient has been addressed. The state utilizes criminal law to hold an individual liable for all actions that are in contradiction of the interest of the general public (Monico, Kulkarni, Calise and Calabro, 2007).

Legal experts argue that there is no single person who should be protected from the criminal law on the basis of hisher professional status (Margaret and Neil, 2007). All in all, there are various situations associated with the provision of healthcare services that make it hard to find criminal legal responsibility for alleged negligence in the process of practice by a healthcare professional. One of the most significant difficulties, appertaining to the use of criminal law against healthcare professionals for negligence in their practice, is that the criminal law is not sufficiently equipped to tackle the difficulties of the specific environments in which healthcare professionals usually operate (Margaret and Neil, 2007). The model of the criminal law is founded on an acceptance of human agency an independent person makes a choice to either act or not to act in a way that breaches the law and must agree to the outcomes of that deed or omission (McDonald, 2008). This assumption envisages an uncomplicated world which recognizes a few relational factors. At the time when criminal law was first made use of, to control healthcare professionals, services were offered to a greater extent in a personal context, as there was no health system to be spoken of (Margaret, and Neil, 2007). The historical foundations of healthcare system are grounded on the sovereignty of professional workers who are either incompetent or competent in their professional practice and this application still echoes the way in which accountability is assigned in this realm (Margaret, and Neil, 2007). On the other hand, in the modern reality, a lot of healthcare professionals are entrenched in the complexity of contemporary healthcare, which is characterized by numerous interacting healthcare providers, treatments, modern technologies, patients suffering from numerous complications, and high pressure environment (Neumayer and Grunsven, 1999).  Though this context is not always approved, studies concerning psychology of error have shown that errors are not always the consequences of individual incompetence, but rather are produced by causes inherent to the intricate system in which a person works.

Criminal liability for medical errors
The topic of health experts facing criminal charges of criminal negligence leading to death, or grave bodily harm of a patient as a result of alleged negligence, or manslaughter in their professional practice was thrown into great relief by the recent exoneration of doctors accused of mishandling Canadas blood system in the in the early 1980s (McDonald, 2008). Stories such as these in addition to international reports portraying a rise in the number of health professionals being charged, and in a number of cases being convicted of critical criminal offenses due to alleged negligence in the process of their practice, have led to an increase in anxiety concerning the clear rise in the incidence of such charges in addition to their suitableness in healthcare context. Numerous researches focused on the frequency, suitableness and nature of criminal charges against health experts, especially physicians, for alleged carelessness in the process of their professional practice has been carried out in the United States, U.K, Japan, New Zealand and other nations ((McDonald, 2008).

There are various situations in which the criminal justice system is faced by the challenge of coming up with a clear and fair ruling.  One of the cases of fatal medical error include for example where a woman dies as a result of catastrophic loss of blood in the process of surgery to remove cancerous liver tumor, the case where a young boy dies as a result of cardiac arrest during surgery for pyloric stenosis. This death may occur, for example, following a surgeons request to inflate the stomach and the anesthesiologist wrongly injects air into a tube entering the patients vein rather than the nasogastric tube (Clarkson and Cunningham, 2008). The other example, as illustrated by Clarkson, and Cunningham (2008), is where babies meet their deaths as result of cardiac arrest due to incorrectly carried out procedures. Failure of the medical staff to respond quickly to serious medical conditions of patients may also result in the death of patients. Anesthetic mismanagement also results in the death of a lot of patients. Presently, cases such as these one, are handled using the contentious as well as catch all offense of gross negligence manslaughter (Clarkson and Cunningham (2008).  Even though, through no ways exceptional as an example of criminal liability, crimes of negligence are rising day by day its place near the peak of serious criminal offenses in addition to the lack of a lesser charge or an inchoate offense, makes it an insufficient scenario, usually hinging on ethical luck as well as prosecutorial performance in terms of the result (Neumayer, and Grunsven, 1999). Though relatively uncommon, prosecutions such as these have risen tremendously over the last 20 years, thus developing extreme concern for the healthcare profession and calling for intellectual investigation (Clarkson, and Cunningham, 2008). Before evaluating the benefits of a particular offense for fatal medical errors it is important to address the question whether such conduct should be taken as criminal in then first place. 

Neumayer and Grunsven (1999) argues that it is highly unlikely that a lot of people would support all such fatal medical errors to fall outside the jurisdiction of criminal law the duty is therefore, to settle on an ethically meaningful as well as fair structure for responsibility.  The issues concerning the suitability of criminal negligence has for long given legal philosophers, who realized it was a tremendously troublesome area, a headache. Hall, according to Clarkson and Cunningham (2008), argues that the imposition of criminal liability losses sight of the concept of culpability which is the concrete groundwork of criminal law. Hall argues that the use of negligence should be extended to other sectors of criminal law the Law Commission approves criminal sanction for liable inadvertence, notwithstanding disposing of the label manslaughter for its preferential formulation of killing through gross carelessness (Clarkson, and Cunningham, 2008). There are those who support Halls opposition to penalizing carelessness. Others argue that the range of conduct as well as responsibility taken in by unintentional manslaughter is such that the label for the crime has become ethically uninformative. Nevertheless, even as there is an apparent case for improvement, there is less clarity in regards to what this should be. One alternative rests with developing a specific homicide offense for the health care context to take the place of gross negligence manslaughter. This can then be taken as a section of the greater re-modeling of homicide in addition to the more important question concerning the magnitude of criminal law required. This is an endless debate, and one which has been, to a great extent, based on the questions concerning the general role played by the criminal law (Neumayer, and Grunsven, 1999).  Ancient concerns of the reduction of guilt have gone on with more recent vital remark in regards to the problem of extensive over-criminalization dissatisfied from ethical culpability. Huask, as illustrated by Clarkson, and Cunningham, 2008), point an accusing finger at legal philosophers, who he says are too quick to consider the reasons for, instead of against, criminalization, and disputes convincingly for a standard of criminal law as well as punishment as last way out.

The most relevant issue currently is whether the offense of gross negligence manslaughter is specific and sensitive enough to act as a sign of different levels of responsibility for offense committed in various contexts (McDonald, 2008). The main question is whether medical cases are different enough to justify labeling in addition to prosecuting as a separate crime. The major challenge facing this issue regards the benefits as well as the demerits of establishing special criminal law for professional healthcare workers. The main anxiety is between the call for fair labeling of crime as well as offenders against the danger of over-specificity and therefore over-criminalization, a very serious danger in the rapidly moving world of criminal justice, law, and policy (Margaret and Neil, 2007). 

There are those who advocate for a re-conceptualization of fatal medical errors at the level of satisfying theory of criminal liability. This is a section of the larger attempt to posit a virtue jurisprudence of criminal responsibility, which means linking the conditions for criminal culpability to specific vices (Margaret and Neil, 2007). Gross negligence manslaughter responsibility for healthcare experts is susceptible too the response in such a way that it leaves a wide gap between irresponsible homicide and no criminal response, and in terms of criminalization is, therefore, all the more all or nothing than the status quo (Clarkson, and Cunningham, 2008). It may also, on the other hand, appear unjust in terms of unwarranted protection for such experts. Nevertheless, healthcare is adequately special as compared to other contexts under consideration. If people then accept that the current stance on this issue is unacceptable there are two choices to make demote and prosecute more, or promote and therefore reduce the focus on irresponsible homicide as the business of criminal law and justice (Monico, Kulkarni, Calise and Calabro, 2007).

Margaret and Neil (2007), states that law regarding medical negligence provides plaintiffs with a legal ground on which they built their lawsuit. In a medical misconduct case, a plaintiff must satisfy four conditions duty, breach, causation and damage in order to emerge victorious (Margaret and Neil, 2007). In a negligence case, on the other hand, the actions of the wrongdoer are compared to what would otherwise be expected of a sensible and careful individual in the same scenario (Margaret and Neil, 2007). In most cases it is this sensible standard of care that is used to determine whether legal accountability attaches (Clarkson and Cunningham, 2008). Cases of medical malpractice are different from those of typical negligence in that, in medical malpractice plaintiffs are required to ascertain positively the applicable standard of medical care through the testimony of other healthcare professionals. Based on that fact, the legal system has allowed physicians to establish their own standard of healthcare in cases dealing with medical negligence. The two major aims brought to medical malpractice by civil legal action, according to Margaret and Neil (2007), are to compensate injured patients as well as to examine the value of healthcare. The extent to which medical malpractice legal action is at attaining either of these two objectives is at the center of criminal persecution of medical personnel (Margaret and Neil, 2007). The extremely low numbers of file claims made by injured patients against medical professionals portrays that legal action for medical malpractice does very little in reimbursing injured patients. There are claims that even those whose claims are successful are not compensated completely for financial loss incurred during the process of litigation (McDonald, 2008).

Prosecutors who do not depend on statute can succeed if a healthcare professional indifference to the risk of injury results in either criminal negligence or carelessness. If it is clearly shown that the negligence of a medical personnel increased to the level of horrible inattention, gross incompetence, or criminal insensitivity to the wellbeing of the patient, criminal negligence could attach. General Law as well as the courts has not been of much help in elucidating the way criminal negligence applies to medical practice (Keyes, and The American Bar Association, Committee on Biotechnology, 2007). 

It appears, as Hurwitz and Sheikh (2009), argues, that the current period is one in which the magnitude of healthcare services is slowly finding roots in all industrialized nations. Physicians who make a mistake once in their healthcare decisions and actions receive no significant feedback to call their attention to the mistake and to do all they can to prevent repeating that mistake (Hurwitz and Sheikh, 2009). Likewise, in numerous situations in which the mistake has been exposed, the absence of effective feedback hinders its causes as well as the strategies for its prevention from being appropriately investigated. Physicians may continue repeating mistakes due to the fact that autopsies are uncommon and admission of errors is feared and, thus, avoided. Various factors have resulted in the dissatisfaction of the public with healthcare (McDonald, 2008). The continual increase in medical errors has stimulated patients to seek legal assistance for obtaining compensation for any medical error that may arise (Dute, Faure, and Koziol, 2004).  Medical administrators prompted by a force to enhance the efficiency of healthcare, usually end up increasing the rate of medical mistakes through cost containment. The two major factors that lead to an increase in the rate of medical errors as well as critical events, as pointed out by Dute, Faure, and Koziol (2004), are the reduction in the monitoring of healthcare in addition to attempts to control its cost. The tremendous rise in medical errors in the late twentieth century culminated in widespread changes in the healthcare practice and eventually in the attitude of the public towards the healthcare profession (Dute, Faure, and Koziol, 2004). The account of maltreatment of patients in addition to cases of criminal negligence as well as intentional criminal conducts by healthcare professionals led to development of an atmosphere of mistrust of healthcare professionals (Hurwitz and Sheikh (2009). This mistrust tremendously affected the efficiency of healthcare, due to the fact that it lowered the efficacy of treatment and may also have resulted in a reduction in the patients compliance to the advice of physicians. 

All in all, if physicians are punished for any medical mistake they make, as it was the case with the hammurabian society, it is possible that the modern society might find itself in a very critical situation without any dependable doctor (Clarkson and Cunningham, 2008).  There are various ways through which the aggression of the public towards physicians and health establishments has portrayed itself. However, it has resulted in an increase in legal action as well as violence against health professionals (McEvoy, 2007). To a certain extent the general public appears to have taken hold of the significance of this controversy in its relation to the increased level of damages claims as well as its deleterious effects on healthcare (Dute, Faure, and Koziol, 2004). There is no evidence that the danger of unprofessional conduct hinders physicians from carelessness. Instead, the fear of legal action is a very strong reason for taking actions to prevent the claims.

There are various reasons given in support of or opposition to persecution of healthcare professionals. There are those who cite a growing recognition to regard medical negligence as a white collar crime with its hybrid general nature (Wolman and Manor, 2004). Others cite the lack of proper supervision of medical professionals by the state and federal organizations. Advocates for criminal prosecution depend on practical and retributive theories of justice to make their stance rational. Utilitarians, according to Wolman and Manor (2004), believe that criminal sanctions are suitable when penalizing negligent practice, due to the fact that prosecution makes sure that healthcare professionals undertake their functions with more caution. Retributive justice, on the other hand, is a theory centered on the perception that punishment is warranted on the base that the offender has developed an imbalance in the social order, that advocate criminal sanctions healthcare conducts.  A medical professionals unintentional risk taking may be taken as a fault in social interaction that warrants punishment through criminal sanctions (Wolman and Manor, 2004).

Critics of criminally punishing negligent healthcare conduct, on the other, hand argue that the criminal justice system should only penalize those who intentionally commit a wrong (Wolman and Manor, 2004). Based on retributive theory, it would not be just to penalize a healthcare expert for unintentional risk taking or when the healthcare professional is not aware that the conduct develops a risk of danger. Medical organizations argue that criminally punishing healthcare professionals for clinical errors would establish a risky model (Wolman and Manor (2004). These organizations make it clear that such a precedent would deter physicians from taking hard cases or even undertaking research in new areas. Others still, argue that such a model would promote the practice of defensive medicine and further aggravate the cost of medical care.  Whereas, the general public with the support of the legal system advocate penalizing medical professionals for fatal medical errors (McEvoy, 2007), healthcare professionals and advocates argue that criminal prosecution of healthcare workers eventually does more harm than good. Critics of criminalization argue that criminal sanctions would finally make professionals to stop reporting errors and discourage enrollment as well as retention of a profession already in dwindling supply. They also argue that this criminalization would bring vital initiatives of safety of patients to a halt (Wolman and Manor, 2004).

Conclusion
The criminal justice system, as well as the general public, is faced by a major challenge concerning the way it should handle various cases of fatal medical error.  The criminal law is a significant regulatory instrument to utilize against medical professionals who grossly move away from safe practice but not when a negligent conducts, however devastating their results, is one to which all human beings, in particular those working in intricate organizations are prone.  The few numbers of cases as well as the very small conviction rate portrays that the justice system administrators clearly see that the criminal law should have minimal use in this sector. International reports portraying a rise in the number of health professionals being charged, and in a number of cases being convicted of critical criminal offenses due to alleged negligence in the process of their practice, have led to an increase in anxiety concerning the clear rise in the incidence of such charges in addition to their suitableness in healthcare context. The increase in the number of prosecution for fatal medical errors over the last 20 years has developed an extreme concern for the healthcare profession and called for intellectual investigation. Critics of criminalization of medical errors accuse legal philosophers, who advocate prosecution, saying that they are too quick to consider the reasons for, instead of against, criminalization, and disputes convincingly for a standard of criminal law as well as punishment as last way out. Critics of prosecution of health professionals for negligent conduct, clearly states that the criminal justice system should only penalize those who intentionally commit a wrong. Medical organizations argue that criminally punishing healthcare professionals for clinical errors would establish a risky model, which would deter physicians from taking hard cases or even undertaking research in new areas.

Criminalization of medical errors in addition to imposition of criminal sanctions would finally make professionals to stop reporting errors and discourage enrollment as well as retention of a profession already in dwindling supply. Proponents of criminalization of medical errors argue that the account of maltreatment of patients in addition to cases of criminal negligence as well as intentional criminal conducts by healthcare professionals lead to development of an atmosphere of mistrust of healthcare professionals. This mistrust tremendously affects the efficiency of healthcare. Proponents of prosecution for fatal medical errors also claim that there is no evidence that the danger of unprofessional conduct hinders physicians from carelessness. They claim that instead, the fear of legal action is a very strong reason for taking actions to prevent the claims.  However, if physicians are punished for any medical mistake they make it is possible that the modern society might find itself in a very critical situation without any dependable doctor.