Permissible Risk in Medical Malpractice – the Criminal Law Perspective
Permissible Risk in Medical Malpractice – the Criminal Law Perspective

Summary/Abstract: The present paper deals with permissible risk in the context of potentially criminal conduct by healthcare professionals. In practice, we have come across several cases involving wrongful death or bodily harm committed by doctors, and in most of these cases the doctors have claimed strict compliance with professional standards. Although some of them ended up in the prosecution phase, a significant number of defendants were convicted. Also, checking the case law in the field, only 8% of cases of culpable homicide, respectively culpable bodily injury, ended with acquittals, acquittals that were wrongly based, as we will show in the article, on the provisions of Article 16 para. 1 letter b) sentence II of the Criminal Procedure Code. Romanian jurisprudence also reveals that defendants who have this status do not follow the procedure of admission of guilt, invoking precisely the respect of the professional standard, and the practice of the courts is in the sense of lack of guilt in this context, a solution that is incompatible with the simplified procedure of admission of guilt. The aim of this paper is to clarify the concept of permissible risk and to frame it correctly within the architecture of the offence. At the same time, we will analyse a number of cases in the case law where either a breach of the professional standard has been found or where it has been held that this standard has been respected by the doctor.

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