Raspunderea penala a persoanei juridice. Raspunderea spitalului în cazul infractiunilor contra vietii, integritatii corporale si sanatatii savarsite din culpa
Criminal Liability of Legal Persons. Hospital Liability for Offences against Life, Bodily Integrity and Health Committed by Negligence

Summary/Abstract: Criminal liability incurred by legal persons for offences against life, bodily integrity and health, committed by negligence, is an intricate issue, judging by the nature of the criminal acts and their perpetrators. The difficulty of supplying evidence is enhanced by the degree of culpability. The criteria by which the actus reus may be identified (determining criminal liability of natural persons who act similarly, establishing the constituents of the offence by analysing the conduct of natural persons, identifying the members of the managing board, clarifying their conduct, being aware of the rules which govern duty of care) are analysed simultaneously, so that a smaller or larger extent of the former shall indicate whether legal persons are to be held criminally responsible or not. When a hospital is accused of criminal negligence, consisting in breaching a rule for which there was a duty of care, it is not recommendable to use a criterion such as the usual medical practice as a standard of reasonable prudence and care in assessing the conduct of a hospital. Even if in most cases, medical practice is the standard of reasonable prudence and care, there are so many important precautions in this area, so that breaching that standard cannot be justified or excused by the fact that a large category of medical practitioners simply ignore it. In the present study, the author, a judge at the Bucharest Court of Appeal, after addressing the basics in the evolution of criminal liability of legal persons in Romanian law, continues by analysing the issue of hospitals as subjects of criminal liability, both from the viewpoint of criminal responsibility incurred by legal persons in Romania, and from that of provisions in the medical area. Accordingly, different sections of the article address the legal grounds and principles on the basis of which hospitals may incur criminal liability, and thus emphasize the individual character of hospitals criminal liability, apart from that of natural persons. The author’s article is of great interest, judging by her court experience, which enables an examination of specific evidence supplied in case of legal persons in general and in case of hospitals in particular. The author draws a distinction between the assessment of actus reus and mens rea of offences against life, bodily integrity and health committed by negligence. As regards the actus reus, a hospital may be guilty of an offence against life, bodily integrity orb health, committed by negligence, only if the way in which its activity is carried out, coordinated or organised represents a significant breach of the duty of care owed to the patient. In order to prove if a legal person may incur criminal liability, the starting point could be the establishment of criminal liability of natural persons who have the same conduct. The author however points out that this criterion is not always a sure one, thus transferring the analysis on to the mens rea. Additionally, the author shows that although irrelevant for the actus reus, establishing disciplinary liability of natural persons may be uses as evidence in proving culpability of legal persons. When it comes to the elements to be used in a criminal trial in order to prove mens rea required by the penal norm that was infringed, the author achieves an interesting taxonomy: elements that suggest existence of mens rea, and elements that may help to prove lack of mens rea, analysing many normative standards in the medical field. In the last part of the article, the author addresses the issue of tortuous liability of public hospitals for nuisance caused by doctors employed therein. Starting from the practice in the 80’s, which excluded joint liability of hospitals, the analysis reaches current practice, defined by a new approach, resulting both from recent case-law of the European Court of Human rights and the new perspectives on malpractice. In what follows, the author presents cases in which the hospital incurs joint criminal responsibility, pointing out the grounds of civil liability in each given case. In the same context, the author examines the duty to perform civil liability insurance contracts for nuisance caused to third parties, and criticises the current limits of indemnification as opposed to the amount of damages granted in case of bodily harm or death caused by traffic accidents.

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