Medical error: what must be proved in court under Kazakhstan law

People usually come with a question about a medical error after treatment has not produced the expected result, the condition has worsened, or a discrepancy has emerged between the diagnosis and a subsequent examination. The first thing to establish is whether there was a defect in medical care and whether the deterioration is connected with the doctor's actions rather than with the course of the disease itself. Without an answer to these questions, any claim remains emotional rather than legal.

The article examines how Kazakhstan law defines a medical error, how it differs from an accident and from a defect in treatment, and which types of error most often become the subject of a dispute. The elements of the offence, harm to health, causation, the clinic's liability and the role of medical expertise are considered separately. The material is aimed at an injured person who is facing such a situation for the first time and wants to understand the logic of proof before going to court.

Medical error: what it is under Kazakhstan law

In everyday usage, a medical error is a discrepancy between the expected and the actual result of treatment. Kazakhstan law does not know such a construct: the Code of the Republic of Kazakhstan on Public Health and the Healthcare System speaks of the quality of medical care and harm to the patient's health, not of a doctor's error as a separate ground for liability.

The definition rests on two elements: a breach of standards and clinical protocols in the provision of a medical service, and the harm that followed. If the service was provided poorly but there is no harm, there is no subject for a dispute. In other words, a medical error is revealed through a poor-quality service and its consequences, not through the specialist's subjective fault.

• The standards and clinical protocols in force at the time the care was provided.
• The fact of harm to health and its severity.
• Causation between the departure from the requirements and the harm.
• The absence of circumstances excluding the liability of the medical organisation.
• Proper documentation of the medical records at each stage of care.

How a medical error differs from an accident and from a defect in treatment

Under the law of the Republic of Kazakhstan, a medical error, an accident, iatrogeny and a defect in the provision of medical care are different legal constructs, although in practice they are often confused. A medical error is an incorrect act or omission by a medical worker without intent, caused by objective difficulties of diagnosis or treatment. An accident is an unfavourable outcome not connected with the actions of medical staff and caused by a chance combination of circumstances or an individual reaction of the body.

Iatrogeny covers any undesirable consequences of medical intervention, including foreseeable but unfavourable reactions, which do not always amount to an error. A defect in medical care is a broader concept: a breach of standards, rules or timeframes, which may be both an error and the result of organisational failures. The difference between a medical error and an accident lies in the presence of a causal link with the actions of a particular specialist: if there is none, the elements of the offence do not arise.

• Diagnostic error: an incorrectly established diagnosis or its late detection.
• Treatment error: the wrong choice of method, intervention or medicine.
• Organisational error: breach of routing, documentation or continuity procedures.
• Deontological error: breach of ethics and of informing the patient.
• Accident: an outcome without fault on the part of medical staff, caused by chance or an individual reaction.

The distinction determines the subject of proof and the circle of persons liable.

Which types of medical error most often become the subject of a dispute

In disputes about medical error, four groups of situations most often appear. A diagnostic error is the incorrect or untimely recognition of a disease: claimants prove the incompleteness of the examination, the ignoring of complaints and of test results. A medical error in diagnosis may manifest as overdiagnosis, when treatment is prescribed for a disease that does not exist. A medical error in treatment concerns incorrectly chosen tactics, dosage or regimen of medication. An error during surgery covers damage to anatomical structures, leaving a foreign body behind and an incorrect scope of intervention.

Organisational errors are defects in the routing of a patient, inconsistency between departments and a breach of continuity. The subject of proof shifts: in diagnosis, to the completeness of the examination; in treatment, to compliance with the clinical protocol; in surgery, to the technique of the intervention. Under civil procedure, the claimant must prove the fact of harm, its amount and the causal link with the actions of the medical institution. A forensic medical examination establishes whether there was a defect in the provision of medical care. Distinguishing between types of error determines which evidence to collect first. In cases of improper treatment, the key importance attaches to the entries in the medical record, the prescriptions and the observation sheets. In surgical disputes, to the operation report, the description of the postoperative period and the imaging data. In organisational defects, to the routing sheet, the admission logs and the waiting time for care.

• Diagnostic error: complaints on admission, examination plan, conclusions of instrumental methods.
• Error in treatment: prescription sheet, diary entries, clinical protocol.
• Error during surgery: operation report, postoperative observation, results of follow-up imaging.
• Error in prescribing medicines: prescription forms, dosages, notes on administration of the drug.
• Organisational error: routing sheet, timing of admission and transfer between departments.
• Forensic medical examination: questions about the defect in care and the causal link.

In each case the court assesses the evidence as a whole and orders a forensic medical examination.

Elements of an offence in a medical error case: what needs to be proved

The elements of an offence in a medical error case comprise four components: harm to the patient's health or life, unlawful conduct by the medical professional, causation and fault. The absence of even one of these excludes liability of the medical organisation, so before making claims it is necessary to understand what has to be proved and to assess the prospects of the dispute.

To prove a medical error, it is necessary to establish that the actions of the medical professional deviated from the standards of medical care, clinical protocols and rules. Unlawfulness is manifested in incorrect diagnosis, incorrect treatment, delayed intervention or a breach of the procedure for managing the patient. An unfavourable outcome does not in itself mean unlawfulness if the care was provided within accepted standards.

• The fact of harm to the patient's health or life
• Unlawful conduct by the medical professional, deviation from standards of care
• Causation between the actions or inaction and the harm that occurred
• Fault of the medical professional or organisation
• It is the medical organisation, not the patient, that must prove the care was of proper quality

Harm to health as the main consequence of a medical error

Harm to health is the key consequence of a medical error: without it, the claim is meaningless. A deviation from the standard of diagnosis or treatment does not in itself give grounds for compensation; what matters is its effect on the body. The severity of the harm is established by a forensic medical examination ordered by the court or in the course of pre-trial proceedings.

The expert determines severity by the criteria of the rules of forensic medical examination: danger to life, duration of the health disorder, permanent loss of general working capacity. Minor harm is a short-term disorder, moderate harm is a prolonged one, and grave harm is a life-threatening condition or permanent loss of working capacity. Loss of professional working capacity is assessed separately if the injured person cannot return to their previous work.

• Danger to life at the time care was provided.
• Duration of the health disorder and the period of treatment.
• Permanent loss of general working capacity.
• Loss of professional working capacity.
• Disability and its group.
• The need for constant medical supervision.

In medical error cases, the outcome is decided not by the severity of the consequences in itself, but by how fully the link between the doctor's actions and the harm that occurred is confirmed.

Causation between the doctor's actions and the harm: how it is established

Causation means that it was precisely the action or inaction of the medical professional that led to the unfavourable outcome. A confirmed error does not in itself entail liability if the harm occurred for other reasons. Only a forensic medical examination can establish the link: the court is not entitled to substitute itself for the expert and draw conclusions about medical patterns.

In medicine, a link is almost never straightforward. The expert analyses the dynamics of the patient's condition, compares it with the intervention and assesses whether the deterioration was a natural consequence of it. The key question is whether the harm would have occurred if the doctor had acted correctly. If so, there is no link to the error.

Several circumstances can break the link.

• Severe concomitant diseases which in themselves could have led to the same outcome.
• The severity of the patient's condition on admission, where an unfavourable prognosis existed from the outset.
• Individual intolerance to a medicinal product that was not identified when taking the history.
• The patient's refusal of the recommended examination or treatment, which affected the course.
• The addition of a new infection or a complication not connected with the doctor's actions.
• The imperfection of the treatment method itself where there were no alternatives at the time the care was provided.

Fault of the medical organisation: when the clinic, and not only the doctor, is liable

The medical service is provided by the organisation with which the patient concludes a contract. The doctor and other employees act within the scope of their employment duties, and therefore under the Civil Code of the Republic of Kazakhstan a legal entity is liable for harm caused by an employee in the performance of employment duties. Claims are brought against the organisation, not against the specialist, even if he caused the harm.

The organisation's fault may consist in improper selection of personnel, lack of supervision, failure to provide equipment and consumables, breach of the patient's care pathway, or defects in documentation. In the provision of medical care the presumption of the tortfeasor's fault applies: the organisation is released from liability only if it proves that it was not at fault. This applies both to compulsory medical insurance and to a contract for the provision of paid services.

• Harm was caused by an employee in the performance of employment duties — the medical organisation is liable.
• The service was provided under a contract or within the compulsory medical insurance system — the presumption of the organisation's fault applies.
• The harm occurred as a result of force majeure — liability is excluded.
• The patient by his own actions contributed to the increase in harm — the amount of compensation may be reduced.
• The organisation has proved compliance with protocols, standards and procedures — fault is not presumed.
• The claim is brought against a specific doctor as an individual — the clinic remains the proper defendant.

Medical examination in a case of medical error: how it is carried out

In cases of improper provision of medical care, the key evidence is the opinion of a forensic medical examination. The court does not possess special knowledge of medicine and cannot independently assess whether the doctor's actions complied with clinical protocols and standards. The examination effectively predetermines the outcome of the dispute: without it, establishing a causal link between the actions of the medical worker and the harm to health is almost impossible.

The examination is ordered on the application of a party or on the court's own initiative, by a ruling that sets out the list of questions. The wording must be specific, neutral and free of legal assessments: questions of law are decided by the court. Well-drafted questions to the expert make it possible to obtain clear conclusions on diagnosis, treatment and their consequences, while vague ones lead to an incomplete opinion and a repeat examination.

• Whether the actions of the medical worker complied with clinical protocols and standards of medical care
• Whether the diagnosis was established correctly and in good time, and whether the necessary examinations were carried out
• Whether there are defects in the provision of medical care and what they consist in
• Whether the harm to health or death of the patient is in a causal link with the actions of the medical worker
• Whether the outcome could have been different had medical care been provided properly

Evidence of medical error: what the court relies on

The court relies on specific documents. The basis is medical documentation: the inpatient or outpatient record, operation reports, prescriptions, test results and instrumental examinations. The records establish what decisions the doctor made and how the patient's condition changed.

The forensic medical examination report is of key importance: it answers questions about a defect in the provision of care and causation. If no examination has been ordered or it is impossible, written opinions of engaged specialists and witness testimony — of the patient, relatives, other medical workers — gain weight.

• medical record, reports and prescriptions — record the course of treatment
• forensic medical examination report — the main conclusion on the defect and causation
• written opinions of specialists — fill the gaps where examination is impossible
• witness testimony — confirm the condition and circumstances
• correspondence with the clinic and responses from authorities — record acknowledgement of shortcomings
• originals of documents — ensure their admissibility and verifiability

When the doctor is not liable: circumstances excluding medical error

A doctor's liability does not follow automatically from an unfavourable outcome. Under the law of the Republic of Kazakhstan, harm caused in a state of extreme necessity is not compensated if the medical professional acted to eliminate a danger threatening the patient's life and did not exceed its limits. Emergency surgery without consent where there is a threat of death excludes wrongfulness. The basis remains a real danger, not an assumption.

Justified risk exempts from liability where the goal could not be achieved without risk and the medical professional took sufficient measures. An innovative method applied according to indications and with the patient informed does not constitute medical error. The court assesses whether the risk corresponded to the current level of knowledge and the conditions in which care was provided. The line between risk and negligence is determined by the expert.

• extreme necessity in medicine: eliminating a danger to life without exceeding its limits
• justified risk of the doctor: impossibility of achieving the goal without risk where sufficient measures are taken
• improper conduct of the patient: refusal of care, breach of regimen, concealment of information
• objective impossibility of diagnosis: atypical course, lack of equipment, brevity of contact
• force majeure and circumstances of insuperable force in the conditions of a medical institution
• compliance with mandatory prescriptions and standards where there is no alternative

Liability for medical error and the procedure for applying

Liability depends on the nature of the violation and its consequences. Civil — under Article 917 of the Civil Code: harm to health is compensated by the medical organisation, including compensation for moral harm. Administrative — under the Administrative Offences Code for violation of the requirements for the provision of medical care. Criminal — under the articles of the Criminal Code on improper performance of professional duties and causing harm by negligence.

The injured person has the right to apply to the management of the medical organisation with a written claim. If no reply is received or the reply is unsatisfactory, a complaint is filed with the authorised body in the field of healthcare or with its territorial department. The conclusion based on the results of the inspection becomes evidence in a subsequent dispute. This helps to avoid missing deadlines and to gather supporting documents.

• written application to the head of the medical organisation demanding explanations and copies of documents
• complaint to the authorised body in the field of healthcare or its territorial department following the application
• recording of the consequences and causation, including the ordering of a forensic medical examination
• filing of a statement of claim with the court for compensation for harm to health and compensation for moral harm
• if necessary — an application to initiate a criminal case on the fact of improper provision of care
• participation in court proceedings using the findings of an inspection and expert examination