An adverse medical outcome does not in itself prove malpractice. It must be determined what professional conduct is being claimed, what damage was caused and whether there is a causal link. Civil liability for malpractice and criminal liability have different conditions; the same situation may justify one of them, both or neither, depending on the evidence and the law.
What is medical malpractice?
Article 653 of Law no. 95/2006 defines malpractice as the professional error committed in the medical or medico-pharmaceutical act, which causes harm to the patient and may involve the civil liability of the medical staff and the provider. The error may include negligence, imprudence, or insufficient medical knowledge. For analysis, the professional standard applicable at the time of the intervention, the available information at that time, and the actual conduct matter, not just the fact that the treatment did not have the desired result.
When can there also be criminal liability?
Criminal liability only arises if the act meets the elements of a crime. For example, Article 192 of the Criminal Code regulates manslaughter and the form related to the violation of professional rules. Article 196 concerns certain forms of corporal injury caused by negligence, including situations where rules for practicing the profession were violated. The classification and conditions for holding someone accountable depend on the resulting outcome, the imputed conduct, and the form of guilt.
Civil proceedings for malpractice do not exclude criminal liability when the conditions of the offense are met, but the referral to the criminal authorities does not automatically establish medical culpability. The medico-legal and legal analysis must distinguish professional misconduct, harm, and causality.
What evidence is useful
Depending on the case, the following may be relevant:
- the observation sheet and the entire medical file, including investigations, recommendations, treatments and the patient's evolution;
- informed consent, explanations provided to the patient and documents regarding treatment alternatives;
- images, laboratory results, referral letters, medical letters and the records of the moments when decisions were made;
- medical expertise or specialized opinions that analyze the conduct, the medical standard and the causal relationship;
- documents regarding the harm and consequences on daily life or on the ability to work.
An expert opinion must answer precise questions: what professional standard was applied, was it respected, what consequences were caused by the conduct and were there alternative causes. If the medical file is incomplete or there is a risk of losing evidence, request copies promptly and discuss with a lawyer the procedural way to preserve it.
The malpractice committee and the lawsuit
Law no. 95/2006 provides for a monitoring committee and professional competence for cases of malpractice at the level of the public health directorate. The procedure before the Committee is an alternative: according to Constitutional Court Decision no. 43/2024, the victim may file a complaint with the Committee or directly to the court, according to common law. If a party contests the Committee’s decision, Article 684 provides for a 15-day period from notification to file a complaint with the competent court, the civil section.
The choice of the path and the calculation of the deadlines must be verified on the documents and concrete data. The claim must identify the medical unit and the contested conduct, explain the damage and indicate the evidence that supports the causal link.
Legislation and next steps
See Law no. 95/2006, Criminal Code (Articles 192 and 196) and CCR Decision No. 43/2024. Keep the medical documents in the original form and record the consultations, recommendations and symptoms chronologically. For a legal assessment of the options, consult the page legal services.
