In 2011 seven doctors were charged with the crime of involuntary homicide of a 2-year-old child. In brief, the facts of the case were such that the minor child began to vomit and despite the parents giving their daughter Voltaren, her temperature continued to persist, and she continued to vomit. Consequently, they took her to St. James Hospital in Sliema. After being examined, the doctors at St. James hospital informed the minor child’s parents that she had gastric flu. The following day, the minor child’s mother called their family paediatric doctor and set up an appointment with him for that very same day. Their paediatric doctor decided that it is better that the daughter be admitted into hospital for rehydration and be put on a drip. The minor child spent 4 days in hospital and was seen by 6 doctors over that period of time, besides her paediatric doctor. All doctors continuously examined her and updated her chart sheet, as well as inform the family paediatric doctor of the minor child’s progress. However, the minor child suddenly went into cardiopulmonary arrest and although the doctors attempted to resuscitate the minor child, they were unsuccessful.
The medical experts concluded that the cause of this tragic death was meningitis caused by the organism streptococcus pneumoniae type 19A. This organism is known to cause meningitis at this age and is vaccine preventable. Some of the cardinal symptoms to diagnose this microbe is neck stiffness and photophobia (fear of light). However, these symptoms are not always clinically present and at times not many symptoms can be present. Moreover, the medical experts explained that this microbe is preventable by a vaccine and that normally children ages 6 upwards are vulnerable to this microbe.
The medical experts went further to explain that the only tests which the doctors could have potentially carried out to decipher that the minor child was suffering from meningitis was a lumbar puncture. It was emphasised that although a lumbar puncture would have detected the meningitis, there were not enough clinical findings to order a lumbar puncture, nor is it good practice to order a lumbar puncture when there are non-specific symptoms as otherwise such a procedure would be performed on every child admitted to hospital with an infection. Additionally, the medical experts stressed and described the procedure of a lumbar puncture to be “a very traumatic test particularly in a child”. Moreover, they explained that:
Trid tkun konvint biżżejjed li l-lumbar puncture hi meħtieġa u li inti ħa tieħu r-riskji li huma associated mal-lumbar puncture u mhux tagħmilha bl-addoċċ biex niftiehmu għal jista’ jkun, just in case ma tapplikax f’din is-sitwazzjoni. Triq ikollok bazi fuq xhiex tagħmel test li fl-aħħar mill-aħħar hemm a mortality associated with it …”
The Court of Magistrates, in passing judgement made a thorough analysis of the requisites required for a PROFESSIONAL, specifically a MEDICAL PRACTIONER, to be found criminally responsible for involuntary homicide.
Given that there are no stringent rules on how criminal medical liability arises in the Maltese legal system, the Court made a comparative analysis between the English and French legal system.
The crime of involuntary homicide in the English system is known as gross negligence manslaughter (GNM). The Court citied an English jurist who commented on a famous medical case which was decided by the House of Lords which established that for the crime to persist there must be gross negligence. Blackstone goes further and delineates the following:
“… gross negligence is wider than recklessness, particularly in the sense that negligently ‘ruling out the risk’ may negative recklessness but not necessarily gross negligence.”
The approach in the UK contrasts with the French system. This is because under the French system even simple negligence, such as a mistake, which causes the death or harm is considered to bring about criminal liability.
The Court of Magistrates concluded that simple negligence is not enough for a medical professional to be found criminally responsible for the crime of involuntary homicide or involuntary bodily harm. This is also a result of the fact that doctors and other professionals who work in the health care field already work in a high-risk environment. Even more so when compared to other professionals, as when the patient goes to visit the doctor, he/she is already in a bad state of health. Thus, a simple and reasonable mistake can easily give room to very serious consequences.
Nevertheless, the Court continued to analyse the French legal system and remarked on the legal concept known as ‘faute caracterisee’. This concept, when taken in a wider sense, is similar to the English concept of recklessness. The English concept of recklessness is defined as the conduct of a person who exposes another to a serious risk when that person should have known that such conduct could endanger that person, but nevertheless, although not wanting to endanger that person, conducted himself/herself in that manner anyway and this led to harm being caused.
However, in the Maltese legal system, the legal concept of professional medical negligence is not statutorily regulated and therefore criminal responsibility can only be determined by applying the principles that govern the concept of culpa. Hence, one would need to carry out an objective test and determine whether the defendant acted without the necessary prudence, diligence and skillfulness expected out of him.
Consequently, the Court of Magistrates, after assessing all the evidence, the medico legal experts’ opinions, as well as the legal requisites required to find a medical practitioner criminally responsible for involuntary homicide, found the seven doctors not guilty of the offence. The Court concluded that all the accused seven doctors, individually, treated the minor child adequately and reasonably given the symptoms that she presented as any doctor should and would treat such a patient.
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