Draft bill 225.

Summary.

The draft bill would add Article 28-A to the Criminal Code (Código Penal) to determine fault in offenses connected with the provision of health services. The assessment would begin with a breach of the objective duty of care required of the relevant profession. It would consider scientific, technical, and ethical knowledge generally accepted at the time and place of the act, the particular circumstances of the case, and the conditions affecting the professional and the care setting. A harmful outcome alone would not constitute an offense if the health professional acted in accordance with the professional standards in force at the time of the act, unless there is conclusive evidence of negligence, lack of professional skill, or gross recklessness contrary to those standards.

Proposed Article 133-A would punish a person who, through fault while providing health services, causes another person's death with five to eight years of imprisonment. The convicted person would also be prohibited from providing health services for a period equal to the prison term. This provision would add to the Criminal Code a specific offense concerning a death culpably caused during the provision of those services and would attach a restriction on providing health services to the prison sentence.

Proposed Article 139-A would address injuries culpably caused while providing health services. Where the injury results in incapacity lasting thirty to sixty days, the penalty would be two to four years of imprisonment; if incapacity exceeds sixty days, it would be three to five years. The penalty would increase by half if the injury produces any circumstance identified in Article 137 of the Criminal Code. In each case, the convicted person would also be prohibited from providing health services for a period equal to the sentence.

The draft bill would add Article 39-A to Law 68 of November 20, 2003 (Ley 68 de 20 de noviembre de 2003). Physicians or other care professionals who fail to comply with Articles 37, 38, and 39 of that law by omitting observed symptoms, diagnoses, or treatments from a clinical record would commit an administrative violation. Applicable regulations at the health facilities where they provide medical services would govern the sanction. If the missing record contributes to or causes a medical error that harms a patient, the conduct would be treated as culpable and punished under the Criminal Code provisions on culpable injury or homicide, according to the harm caused.

The text identifies the additions to the Criminal Code and Law 68 of November 20, 2003, and provides that the law would take effect upon promulgation. Its provisions concern the public authorities responsible for applying criminal and administrative rules and the health sector, including physicians, other care professionals, health facilities, and patients.