When a physician walks into a room, the patient need not say anything. There is an unspoken assumption that the physician is there to help them. It is well understood that even when a physician does everything right, their patient may still not recover. However, no amount of training can eliminate a physician’s susceptibility for error. Domestically, over 400,000 deaths annually are attributed to medical error. In the high pressure, life-and-death environment known as healthcare, a provider’s intent to heal does not negate their ability to make mistakes. Accordingly, the law must ask, when a provider’s mistake ends a life, in spite of their intentions, how should the courts understand the mistake? Put differently, when a medical professional unintentionally makes a mistake that causes death, should their actions constitute a crime?
In cases of unintentional homicide, the law distinguishes between negligence and recklessness. Negligence occurs when an individual unknowingly fails to act as a reasonable person would in the same situation, resulting in harm. In contrast, recklessness involves a conscious disregard of a substantial and unjustifiable risk of harm.
Common law recognizes moral culpability, and thus, punishes intentional criminality. As such, in common law, mere negligence is not a crime; it is only punished when explicitly defined prior as a criminally negligent act or if it rises to gross negligence or recklessness. In Commonwealth v. Aurick (1941), the Pennsylvania Superior Court clarified gross negligence as “such a departure from what would be the conduct of an ordinary prudent or careful man under the circumstance as to evidence a disregard of human life or an indifference to consequences”. When negligence becomes gross, moral culpability can be found not from intention but rather from the failure of an individual to recognize an obvious risk that a reasonable person would have recognized. Moreover, the risk must have been obvious from the perspective of the individual in the situation, not to the hypothetical reasonable person. This distinction is made to ensure that the “right connection” is being drawn between the risk and the person in order to justify holding the person criminally responsible for taking the risk. While some common law theorists still dispute the leap of applying moral culpability to unintentionality, most western courts have established gross negligence as the standard for criminal negligence.
The decision to define “obvious” from the perspective of the individual, not the hypothetical reasonable person, underscores that negligence is no exception for the underlying principles of criminality: to punish an individual criminally, there must be moral culpability. It is important to clarify that the ongoing theoretical debates over whether negligence should be criminalized fall within a minority view among scholars and are not the focus of this discussion. Rather, if gross negligence is to serve as the threshold for moral blame, then the reliability of its determination becomes all the more critical. Yet, the healthcare environment requires individuals to make life-and-death decisions in seconds and is largely impacted by systemic conditions rather than provider action. As such, the reliability of this determination can not be ensured without an acute understanding of the healthcare environment. It is for this reason that the first issue of note is not whether negligence can be criminal nor whether medical professionals may be subject to criminal prosecution but rather a question of how. If medical professionals are to be criminally liable for errors, how should this be determined?
While it remains commonplace for lay juries to decide criminal proceedings, this practice must not become the standard for criminal negligence cases within medicine. The systemic influence that dominates the healthcare field, in principle, precludes juries from possessing the facts necessary to reach a concrete judgment. To ask juries to identify gross negligence in this setting is to instruct them to move beyond their intended role as interpreters of fact and into the position of creators.
Juries have always functioned to ensure the democracy of law by representing the voice of the people. They ask individuals to draw from their differing viewpoints to make decisions that reflect society’s moral values and ethics. However, for these decisions to indicate anything about the broader whole, jurors must possess the capacity to interpret the facts of each case. The very existence of an educational minimum to qualify as a juror is evidence of this need. This condition has long been a source of criticism of the system, dating back to the system’s inception under common law. Specifically, there are concerns that a lay jury’s educational competency would limit the complexity of cases that come before it.
Critics have continually argued that lay jurors’ inability to interpret specialized facts undermine the notion that their decisions represent a concrete societal moral viewpoint. Instead, reflecting individualized perspectives shaped more by attorney and expert performance than by the facts themselves. Jurors must operate with the same factual foundation. As originally intended, different verdicts should represent differences of opinion, not different realities. Scholars generally agree with the premise of this concern, however, they disagree with its practical significance. There has been no evidence suggesting that educational differences impair a jury’s ability to reach sound decisions. Still, these critiques do not undermine the logic of the argument. Accordingly, the premise remains worth consideration: for a jury’s judgment to be reflective of society’s moral values, it must be derived from a shared factual foundation, even if jurors differ on how they interpret those facts. By this rationale, lay juries are not meant to handle cases that would require them to derive the facts that underlie their judgments. But, this issue is inevitable when seeking a lay jury opinion in medical negligence proceedings.
Irrespective of the industry, from aviation to firefighting, in high risk fields with an inherent duty of care, the predominant understanding of the cause of error is systemic shortcomings. This conceptualization of error extends to the healthcare field, with clinical investigations primarily showing that error is more closely tied to a systemic shortcoming than any event of individual ignorance. As such, healthcare actors generally accept a systemic conceptualization of error, in agreement that systemic issues are the foremost source of medical error. This understanding goes as far as to say that hospitals often have systemic issues that prevent workers from functioning under ideal conditions. Yet, depending on the jurisdiction, when deciding medical negligence cases, jurors are either 1) given liberty to ignore these systemic issues, and compare an individual’s action to the ideal standard of care or 2) attempt to account for the systemic issues themselves by deriving their own standard of care given the circumstances to hold the provider to. Both of these acts misunderstand the central purpose of lay jurors in criminal law.
- Imposing an ideal standard of care on an individual operating under unideal conditions, does not establish the adequate risk to person connection that is needed to justify criminal sanction. By the same determination of “obviousness” that underlies criminal negligence, it is improper to find moral culpability by holding an individual to an ideal standard when that standard deviates from the reality they acted within.
- While seemingly well-intentioned, asking jurors to derive their own standard of care to accommodate systemic issues, and then make a determination on the reasonableness of an individual’s actions, violates the shared factual foundation jurors are supposed to possess. While it is correct that jurors can have varied interpretations of facts, this goes beyond interpretation and breaches into the realm of creation. Rather than rely on facts presented, it asks jurors to construct a fact, which then becomes the direct standard they use in making their final judgments.
Neither of these realities are consistent with the purpose of criminal law nor the purpose of juries. However, when asking lay jurors to decide the criminality of medical negligence cases ,it is an inevitable consequence. Therefore, lay jurors should not be used to determine criminal cases of medical negligence. This naturally raises the question: if not lay jurors, who should?
Scholars have discussed the use of panels of medical experts to decide negligence cases. While this would allow jurors’ education and professional experience to inform the construction of a standard of care, it inherently still requires jurors to construct the facts they use. Following this pattern, it becomes apparent that any type of panel would fall to the same criticisms previously discussed. This is no coincidence. Given the systemic issues at play, no individual is capable of serving as a juror in criminal medical negligence cases without deriving an individualized standard of care. Accordingly, to preserve both the moral culpability required for criminal negligence and the role of juries in criminal law, juries should not be used in such cases. Moreover, in the absence of a jury, no judgment on criminality can rightly be issued. The irony of this conclusion does not go unnoticed; however, its consistency with the principles underlying the criminal legal system must not be dismissed for that reason. While gross negligence remains a sound legal standard for criminality, occupying the space between ordinary negligence and recklessness, this does not resolve the issue that such a standard must still be located within that range. Given the complexities of the healthcare system, locating it with the level of precision so routinely applied in other areas of the law cannot be achieved.
Thus, a conclusion objecting to the criminal sanction of gross negligence in healthcare is necessary. However, for the justification not to be misunderstood as aligned with ongoing theoretical objections. Let this be clear: this conclusion does not stem from disagreement with the theory of criminalizing medical errors, but rather from the practice of determining them.
To those who question the justice of this opinion, it is worth recalling the presumption of innocence that shrouds every individual before the law. If, by societal limitations, we remain unable to pinpoint the line of gross negligence in healthcare, then why should the burden of that ambiguity fall upon the practitioner? It should not. It is by this presumption that we assume the best. And it is by this standard that medical errors, lacking intent, must remain beyond the reach of criminal sanction.