In 4years of the COIP, the Public Prosecutor’s Office has received in the country577 reports of culpable homicide due to malpractice in general. However, only68 cases have been admitted to the Judicial Branch, most of them are in preliminary investigation due to the lack of experts or “peer professionals”to evaluate these injuries or the causes of death.
Four years and four months have passed since the Organic Comprehensive Criminal Code(COIP) came into force. One of its knots of discussion was the typification of the crime of culpable homicide due to bad professional practice. This generated a wide debate, especially among health professionals, whose unions, until now,complain that their work is criminalized.
However,prior to its approval, approaches were made among the health actors of the country. Then it was established that for this to be configured as a crime,certain conditions had to be met before starting a legal process for professional malpractice. According to figures from the Attorney General’s Office, complaints of manslaughter for professional malpractice total 577between August 2014 and May 2018. Guayas is the province with the highest number with 155, followed by Manabí with 71 and Pichincha with 61.
The Office of the Public Prosecutor clarified that these data can not specify the profession of the suspect of culpable homicide established in Article 146.Regarding the figures of the Judicial Branch, between August 2014 and September2018 the number of cases admitted for processing on the base of the elements of conviction obtained during the fiscal investigation, total 68, of which 48(78.59%) have been resolved (judgment).
Lack of experts or “professional peers” slows investigations
The classification of professional malpractice, including medical, has allowed patients or their relatives who are victims of them to be covered in some way.However, there are complaints that have not followed the corresponding procedure or have been delayed in the different stages of investigation due,among other factors, to the lack of qualified personnel that allows a technical, real and determining expert opinion of the injuries or causes of death of the patient.
For Ernesto Carrasco, president of the Ecuadorian Medical Federation (FME), many of the lawsuits filed with the Prosecutor’s Office have been unfounded. He said that “work has been criminalized,” because when the doctor is accused, it remains in the hands of the prosecutor or the experts, “most of them ill-prepared, as well as judges who do not have the knowledge or expertise in health issues.”
The fiscal agent of Pichincha Veronica Murgueito, said that when analyzing acomplaint of professional malpractice, in the medical field, resort to experts,but revealed that there is not in all areas. He clarified that the lawstipulates that in these subjects health professionals should be resorted to and that it is not the prosecutors who appoint experts.
“We ask for support from the Ministry of Health, which are the ones that manage the database,” he said. That they indicate what specialists there are, so that with their experience they advise them in the medical audit that is practiced.Then the prosecutors have, for the investigations, with the participation of an expert and a specialist that sends them the Health authorities.
However,the lack of them delays the investigations or the results are not adequate and real. Assemblyman Ángel Sinmaleza, from the Right to Health Commission, said that the Legislature has presented an observation on this issue in the development of the new Health Code. “The justice agency must train and provide doctors or” peer professionals “, so that, for example, if an oncologist committed a bad practice, it is a pair oncologist who issues are port for the respective sanction.
This does not exist, “he said. That is one of the changes that arise in the new Code and that the FME supports. “What is required is that the prosecutor report when there is a complaint of malpractice, of culpable homicide, so that the Ministry of Health form a peer commission, investigate the case and determine whether or not there are indications or criminal liability.
This will improve the judicial procedures, “he said. Until then, victims of bad practices demand justice. Such is the case of Paola Cantuña, who for two years has been pushing for a legal action against the doctors and the clinic where she underwent cosmetic surgery that left her with serious consequences. “I have to hide behind a makeup, a girdle and a loose dress the deformity that I have inside”, she said. Her case is about to be closed due to the time that has elapsed, while the complaint she filed with the Health Quality Assurance Agency prescribed. “I just hope the authorities enforce the law,” said this girl who underwent surgery after winning the reality show”It’s me”.
Another case that has not been resolved and without justice for two years is that of Melanie Montenegro, a 22-year-old model who died in Guayaquil in a cosmetic surgery. Her mother Margoth Torres asks for an expert to contribute to the investigation. (I)