Assault or causing death through negligence for (serious) medical malpractice

Assault is regulated by Articles 300 to 304 of the Dutch Penal Code. Assault occurs when someone intentionally inflicts pain or injury on another person.

Mistreatment in medical context has its own interpretation. In every surgery, the physician will deliberately put the knife into the patient's body and thereby hurt the patient. Obviously, the physician is not guilty of mistreatment in every operation. If the surgery is performed in accordance with medical guidelines, then the doctor is entitled to invoke the so-called "medical exception. The material illegality is then absent and the doctor is not punishable.

On the other hand, if the doctor made mistakes during the surgery, he cannot invoke the medical exception. Then it becomes important to assess whether the doctor caused the complication "intentionally. That requirement of "intent" has its own legal interpretation. The least deliberate form of intent is the so-called 'conditional intent'. This occurs as soon as a doctor knowingly and willingly accepts the significant risk of a certain consequence (in this case: the complication).

It is not always easy to determine whether this is the case. This was the case, for example, in the case of the ' The Hague breast doctor '. He placed breast implants under insufficiently hygienic conditions, without proper file formation and using unknown methods (the 'mammary navigator', a kind of caulking gun).

On the contrary, Janssen Steur - who made misdiagnoses on a large scale and persisted in doing so - was acquitted of (among other things) assault. That acquittal implied cassation also upheld in cassation.

Would you like to know more about this? Then contact Bram Horenblas. He publishes regularly on this subject (see recently: TvGR 2024-3, "Rechtbank Midden-Nederland 13 September 2023 (dormant social worker), m.nt. mr. A.J. Horenblas", p 279 -288).

causing death through negligence is regulated by Article 307 of the Dutch Penal Code. This article provides that a person who causes the death of another through negligence can be punished with imprisonment or a fine.

This provision also has its own interpretation in the medical context. A physician is (obviously) not always criminally liable when a patient dies. A health care provider is guilty of causing death through negligence if he or she caused the patient's by due to gross negligence or gross misconduct.

The "culpability" mentioned in article 307 Sr, in medical cases consists of a culpable act or a culpable omission: the health care provider has acted significantly careless and/or negligent and/or negligent. In short, there must be gross negligence during the caregiver's professional practice.

Not every medical error is prosecuted. In doing so, the Public Prosecution Service adheres to the “Instruction on fact-finding/criminal investigation and prosecution in medical matters.” In essence, this instruction means that the Public Prosecution Service works closely with the IGJ. The Public Prosecution Service tries to determine as quickly as possible whether a criminal offense has been committed. If this is not the case, the criminal proceedings will stop. If this is the case, the Public Prosecution Service will assess whether the criminal offense can be proven and whether prosecution is also appropriate. Before a public prosecutor decides to prosecute, he or she will ask the Expertise Center for Medical Affairs for advice.

Legally, a defendant may have to answer to both disciplinary and criminal proceedings. If the accused health care provider has faced labor law, civil law or disciplinary law consequences of his actions, under circumstances it may not be expedient (anymore) to initiate a criminal prosecution. Before initiating criminal prosecution in a medical case, a prosecutor asks the Medical Affairs Expert Center for advice.