Man died after gallbladder removal: court found surgeon guilty but exempted from punishment

The Kamianka District Court of Cherkasy region considered a criminal case regarding the head of the surgical department of the "Kamianka Multidisciplinary Hospital" of the Kamianka City Council, who was accused of improper performance of professional duties by a medical worker due to negligent and careless attitude, which caused serious consequences for the patient.

The court established that the doctor treating the patient for an acute gallbladder disease committed violations during diagnosis, surgical intervention, and postoperative management of the patient.

Circumstances of the case

The court found that the patient applied to the "Kamianka Multidisciplinary Hospital" complaining of pain in the liver and intestine area. After hospitalization to the therapeutic department and initial examinations, a decision was made on the necessity of surgical intervention.

Subsequently, the patient was transferred to the surgical department, where the head of the surgical department became his attending physician. On March 9, 2023, a surgical intervention to remove the gallbladder — cholecystectomy — was performed.

The prosecution stated that during treatment the doctor improperly performed professional duties, in particular, did not ensure a full range of necessary diagnostic measures, did not conduct a number of laboratory and instrumental studies, did not obtain proper consent from the patient for surgery and anesthesia, and did not ensure proper medical documentation.

Moreover, according to expert conclusions, the surgical treatment was performed without sufficient laboratory and instrumental confirmation of disease symptoms, and after the operation, necessary bacteriological examination of the infiltrate with determination of microorganism sensitivity to antibiotics was not conducted. Experts also pointed to insufficient antibacterial therapy in the postoperative period.

After discharge from the hospital, the patient’s condition worsened. He was later hospitalized to the Cherkasy Regional Hospital, where complications were found, including abdominal abscesses, peritonitis, and other pathological processes. The patient underwent repeated surgeries but could not be saved — he died.

According to the conclusion of the joint forensic medical examination, the cause of death was complications after surgery, specifically acute inflammation of the abdominal cavity, which led to the development of internal organ failure.

Experts established a direct causal link between improper medical care at the Kamianka hospital and the patient’s death. According to experts, proper performance of professional duties by medical workers could have prevented the fatal outcome.

The accused did not admit guilt. He insisted that treatment was conducted according to medical protocols, the surgery was necessary, and the patient’s condition after surgery allowed discharge. The doctor also claimed that expert conclusions were made with violations and did not consider all circumstances of the disease course.

The defense requested the court to acquit the doctor, arguing that the prosecution did not prove the presence of a criminal offense in his actions.

Position and conclusions of the court

After examining the evidence provided by the parties as a whole, the court concluded that the doctor’s guilt in improper performance of professional duties by a medical worker was proven beyond reasonable doubt. The court noted that the evidence collected by the prosecution and examined during the trial was interconnected, admissible, and confirmed the circumstances subject to proof in the criminal proceedings. At the same time, the court did not find circumstances indicating inadmissibility of this evidence according to criminal procedural law requirements.

Evaluating the evidence, the court found proven that the doctor improperly performed his professional duties due to negligent attitude, which caused serious consequences for the patient. The accused’s actions were qualified under part one of Article 140 of the Criminal Code of Ukraine — improper performance of professional duties by a medical worker due to negligent or careless attitude, which caused serious consequences for the patient.

The court did not agree with the doctor’s arguments about the absence of a criminal offense in his actions. According to the court, the totality of the examined evidence fully confirms his guilt.

Separately, in case No. 696/645/24, the court assessed the defense’s reference to the conclusion of the Health Department of the Cherkasy Regional State Administration, which stated that medical care provided to the patient allegedly complied with the local protocol for treating acute calculous cholecystitis. The court noted that forensic medical examinations conducted in the criminal proceedings established otherwise: medical care at the initial stage in the therapeutic department was provided correctly, but from March 9 to 21, 2023, when the treatment was carried out by the head of the surgical department, medical care was provided improperly, violating regulatory health care documents.

The court also rejected the accused’s claim that he took all necessary measures to provide emergency medical care. The court referred to the conclusions of joint forensic medical examinations, according to which the timing of the surgery — eight days after disease onset — was not optimal, and there were no absolute indications for immediate surgery.

At the same time, the court noted that the doctor’s reference to the necessity of surgery does not refute conclusions about his guilt, since this circumstance does not exempt a medical worker from the obligation to comply with health care legislation and regulatory documents governing medical care provision.

The court emphasized that according to the Law of Ukraine "Fundamentals of Ukrainian Legislation on Health Care," the attending physician is obliged to conduct timely and qualified examination and treatment of the patient. Additionally, according to the job description of the head of the surgical department, the doctor was obliged to ensure the provision of quality medical care to the population.

The court did not accept the defense’s argument that the cause of the patient’s death was complications after further surgery in another medical institution. The court stated that it considers the criminal case only within the scope of the charges presented. Also, the court found no confirmation of the version that the cause of death was exclusively acute heart failure, as such claims were not confirmed during the trial.

Evaluating the conclusions of the joint forensic medical examinations, the court found no grounds to consider them inadmissible evidence. The court noted that the expert conclusions are complete, reasoned, and consistent with other evidence in the case.

At the same time, the court critically assessed the accused’s explanations and the defense’s position, as they did not align with the testimony of the victim, witnesses, experts, and written evidence examined in court.

When deciding on the consequences of recognizing the person guilty, the court took into account the provisions of Article 65 of the Criminal Code of Ukraine and assessed the severity of the criminal offense, data about the accused, as well as the presence or absence of mitigating or aggravating circumstances. The court considered that the criminal offense is minor, the doctor had no prior criminal record, was positively characterized at work, was married, and had a second group disability. The court did not find circumstances mitigating or aggravating punishment.

At the same time, the court concluded that despite recognizing the doctor guilty, he is subject to exemption from punishment due to expiration of the statute of limitations for criminal prosecution. The court noted that part one of Article 140 of the Criminal Code of Ukraine provides liability for a minor crime, and the statute of limitations for such a criminal offense is three years.

Since more than three years have passed since the commission of the criminal offense, the court applied part five of Article 74 of the Criminal Code of Ukraine and paragraph 2 of part one of Article 49 of the Criminal Code of Ukraine and exempted the doctor from punishment without determining its type and size. At the same time, the court issued a guilty verdict and recognized the person guilty of committing a criminal offense.

Subscribe to our Telegram channel t.me/sudua and to Google News SUD.UA, as well as to our VIBER and WhatsApp, page on Facebook and on Instagram to stay updated on the most important events.