A considerable number of General Practitioners, surgeons and other practicing medical specialists occasionally misdiagnose medical conditions causing devastating effect on patients’ lives. Many times that ends fatally with death. The question we have to answer is could that bring murder charges against physicians whose patients die. The answer is positive because practically this is a murder and murder is a crime. The most significant element of an act to be qualified as a crime is the guilt. In the Criminal law guilt is the psychical attitude of the intruder towards the crime. We distinguish two types of guilt: direct – when the perpetrator knows the result of his/her action and aims it and indirect (negligence) – when the perpetrator has to foresee the result of his/her action and avoid it.
Should be medical misdiagnosis be considered to be a crime, charged as a crime and not handled through professional sanctions when the patient dies, the answer again is positive, because the result is distortion of human’s life i. e. we may qualify it as a crime.
As a flamboyant example in this direction is the case of Dr. Norman Hair former Zions in 1919, described by Diana Wyndham in her Article Misdiagnosis or miscarriage of Justice?
Dr. Norman Hair and the 1919 influenza Epidemic at Newcastle Hospital (Health and History, vol. 2, No. 1 (Jul., 2000, pp. 3 - 26).
Dr. Norman Hair, then Zions was a head of Newcastle Hospital, Australia since 1918. Presently after the World War I, during which about ten million people were killed in four years, probably four times that number died in the influenza Epidemic for less than twelve months. It was believed that the Epidemic started in Spain and it was called Spanish Flu. It spread over the world with unexpected quickness and took millions victims everywhere. In Australia it came with ships arriving at Australian ports. The Commonwealth Quarantine Department put every arriving ship under quarantine for seven days observation. Nevertheless, the first cases were recorded in Sidney, then Victoria. Due to the measures for quarantine the cases were limited. There was no one case of Flu in Newcastle. The population was vaccinated and the newspapers spread around the instructions of Dr. Norman Zions, the head of the local hospital, which in that time was not in a flourishing condition. The first case that appeared was the twenty nine years old \mcAlister who was misdiagnosed with symptoms of enteric fever (typhoid) and was allowed to be placed in Newcastle hospital. He died in couple of days and when the Government medical officer carried out the autopsy of his body it was proved that he died from pneumonic influenza.
“Two doctors on the ship – husband and wife, named McNaughton – had the case under observation for a fortnight and diagnosed it as enteric fever (typhoid). Dr. Hubert Harris of Storkton on behalf of the Government agreed with their diagnosis and recommended the man’s admission to the hospital. The patient was placed in Dr. ward and showed no strong chest symptoms until shortly before his death which occurred about midnight.” (p. 13).
Many nurses, doctors and patients were infected in sequel. Respectively heated debates took place and the doctors in the lead of Dr. Zions were charged and punished.
Usually the intentions of the physicians are to heal the patients and the misdiagnosis occurs in result of overwork and inattention. When the misdiagnosis results in serious harm of a patient, the negligence is available and it is followed by relevant charges. The composition of a crime is accomplished i. e. negligence as a reason for the result is available.
Misdiagnosis is painful for both parties, the physicians and the patients. It destroys patient’s life and brings inauspicious consequences for the physician.
Reference
Wyndham, Diana, Misdiagnosis or Miscarriage of Justice? Dr. Norman Hair and the 1919
Influenza Epidemic at Newcastle Hospital, Health and History, vol. 2, No 1,
( Jul., 2000 ), pp. 3 - 26
