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The Criminal Justice System and Health Care$
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Charles A. Erin and Suzanne Ost

Print publication date: 2007

Print ISBN-13: 9780199228294

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199228294.001.0001

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Criminalizing Medical Malpractice

Criminalizing Medical Malpractice

(p.15) 2 Criminalizing Medical Malpractice
The Criminal Justice System and Health Care

Margaret Brazier

Neil Allen

Oxford University Press

This chapter examines the role that the criminal justice system does, and should play in ensuring accountability for medical malpractice. When are medical errors rightly crimes? If England and Wales prove to be moving towards a greater role for the criminal law, if in truth we are criminalizing medical malpractice, cui bono — will patients sleep easier in their beds in the knowledge that more doctors face ending up in the dock? It is argued that carelessness, incompetence, and error should not, save in exceptional cases, be the business of the criminal law. Only such conduct pursued with disregard for the life of others should merit punishment. Recklessness, not negligence of any degree, should transform mishap into crime.

Keywords:   medical errors, medical crime, medical mishaps, negligence, recklessness, criminalization, medical accountability

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