There is no easy answer as to whether medical negligence cases should be handled in civil court or criminal court. It is my belief that medical negligence cases should start out in civil court, and if gross deviation from standard of care is found, it should move to criminal court. The first thing to consider is how to prove medical negligence in court. Medical negligence is proved in court after showing proof of four elements: 1. A professional duty owed to the patient, 2. Breach of such duty, 3. Injury caused by the breach, and 4. Resulting damages (Bal, 2008). This alone is difficult to do.
To take a case from civil to criminal court, proof must be found of “gross or flagrant deviation from the standard of care” (Barcus, n.d.). This is also difficult to do. Many issues arise while trying to prove this, such as jurors who are confused by medical jargon and jurors who over
look the standard of care while paying more attention to the physician’s state of mind (Barcus, n.d.). It is also difficult to figure out and prove whether the physician had prior knowledge of an important aspect that could cause harm unintentionally (Barcus, n.d.).
So, although this is a difficult process that has a few flaws, it is important to hold physicians responsible for their actions, whether they were intentional or not. This can be done by utilizing both criminal and civil court.
References
Bal, S. (2008). An introduction to medical malpractice in the United States. Clinical orthopaedics and related research, 467(2), 339-47. https://dx.doi.org/10.1007%2Fs11999-008-0636-2
Barcus, H. A. (n.d.) When does medical negligence become criminal? Retrieved from: http://www.latlaw.com/index.php/firm-news-articles/articles-2010/88-when-does-medical-negligence-become-criminal