Causation in criminal medical malpractice: a conflict of forensics and criminal law in the Russian Federaion / Причинно-следственная связь в ятрогенных преступлениях: проблемы соотношения категорий причинности в судебно-экспертной деятельности и в российском уголовном праве

Берчанский Кирилл Алексеевич аспирант кафедры уголовного права, криминологии и уголовно-исполнительного права Санкт-Петербургского юридического института (филиала) федерального государственного казенного образовательного учреждения высшего образования «Университет прокуратуры Российской Федерации» 191014, Россия, Санкт-Петербург, город Санкт-Петербург, Литейный проспект, 44 Berchanskiy Kirill Alekseevich Postgraduate student, the department of Criminal Law, Criminology and Penal Law, Saint Petersburg Law Institue (branch) of the University of Prosecutor's Office of the Russian Federation 191014, Russia, Sankt-Peterburg, gorod Sankt-Peterburg, Liteinyi prospekt, 44 cyrillbears@gmail.com Другие публикации этого автора

Introduction. The issue of uniformity in jurisprudence is constantly explored by Russian lawyers. Scholars highlight the desire of the Supreme Court of the Russian Federation to ensure that for all the Russian judiciary's decision-making ^[1]. Some researchers propose regulatory frameworks to ensure the uniform application of the law, in fact, trying to introduce a precedent system similar to that established in common law countries, as well as in several other ones ^[2]. Others point out that the decisions of the higher courts of the Russian Federation defacto already have some characteristics of a judicial precedent and should be perceived by lower courts as such ^{[3, 4]}.

But it is possible to establish the importance of a unified juducial interpretation in the Russian Federation without getting into this discussion. Provisions of the Constitution of the Russian Federation: Part 2 of Article 4, proclaiming the supremacy of the Constitution and Federal laws, and Part 2 of Article 6 – equality of rights, freedoms and duties of all citizens, as well as corresponding provisions of Articles 7 and 15 of the Criminal-Procedural Code of the Russian Federation, Articles 3 and 4 of the Criminal code of the Russian Federation, as well as other laws, dictate the need for uniform application of legislation regardless of the territorial affiliation of the court.

Especially acutely the need for unity is perceived in the sphere of iatrogenic crime. According to the Investigative Committee of the Russian Federation, in 2019 there were 332 cases related to the criminal activities of medical workers submitted to courts ^[5]. With a total of 820,414 criminal cases submitted to Russian courts in 2019, this category amounts only to 0.04%. Those cases are effectively «lost» and the absolute majority of judges do not encounter them throughout their whole careers.

If we consider this situation in the context of their general overencumberance, as well as the prevalence of property crimes in the caseload (38.35% of the total number), it is reasonable to assume that judges are deprived of any motivation in studying the specifics of iatrogenic crimes, and the judicial community as a whole – in forming unified positions on them.

Such a situation is bound to create differences in jurisprudence. This circumstance was revealed by analysing sentences by Russian courts in the period from 2011 to 2019 in cases initiated against medical professionals and qualified by investigative authorities under Part 2 of Article 109 of the Criminal Code of the Russian Federation (hereinafter – the Criminal Code) – as causing death by negligence due to improper performance of professional duties. And, quite expectedly – taking into account the specifics of medical profession, the courts were particularly confused by the problems in establishing causality.

Case study and problem statement. For maximum clarity, in order to demonstrate this phenomenon, we have combined three verdicts passed from June to September 2019 into one block.

Verdict № 1 ^[6]. A woman was admitted to a medical facility after pancreatic surgery, and later diagnosed with intra-abdominal bleeding and peritonitis. Those were not diagnosed in time by a surgeon, which led to surgery being performed too late, and consequently – to the patient's death. The expert commission during the initial examination indicated that the death occurred as a result of complications of the initial condition, and the defects in the provision of medical care affected its course. Thus, there was indicated no causal relationship between the surgeon's malpractice and the death of the patient, although with timely treatment such an outcome could have been avoided.

Re-examination also showed that the death occurred as a result of diffuse fibropurulent peritonitis and multiple organ failure, and the probability of a favorable outcome with timely diagnosis and treatment was not excluded. This time, however, experts pointed to a direct causal relationship between the death and malpractice. The same conclusions were set out in the additional expert opinion.

According to the conclusion of the Department of Complicated Examinations of the St. Petersburg State Budgetary Institution «Bureau of Forensic Medicine» (hereinafter – St. Petersburg BFM), treatment defects had not caused the development of the initial condition – acute appendicitis and its serious complications. However, they served as a negative condition (negative factor) to them, which became the cause of death. In this regard, experts did not see a direct cause-and-effect relationship between the patient's death and medical malpractice.

Conclusions of the expert committee from the Altai State Budgetary Institution «Altai Regional Bureau of Forensic Medicine» also stated that there was no direct causation. Experts pointed out that such a relationship occurs when there are no other causes that led to the death of the patient, as well as when proper medical care would definitely allow to avoid the occurrence of an unfavorable outcome. In this case, the defects in care only contributed to the patient's death, while the main cause was the initial disease, and a positive outcome with proper care could not be guaranteed.

The court recognized only the arguments of the last two examinations as reliable, pointing out that those conclusions that indicate the presence of a direct causation contain significant contradictions: in particular, that they simultaneously indicate that it was possible to avoid the patient's death («which is a value judgment indicating probability») and that timely diagnosis «would allow to perform a second operation in time and avoid the patient's death».

In it's final decision, the court pointed out that Part 2 of Article 109 of the Criminal Code requires a causal relationship between the act and the consequence, which must always be direct and there was no such connection in this case.

Verdict № 2 ^[7]. A woman with an unspecified diagnosis of «stomach ulcer and intestinal bleeding» was transported to the surgery department from the local Health Center. The endoscopist and the surgeon made diagnostic errors that did not allow timely detection of the initial condition. Subsequently, the woman's death occurred as a result of mixed genesis shock and multiple organ failure, which developed as a result of destructive pancreatitis.

The examination showed that the death occurred as a result of damage to the pancreas done by surgery before admission to the medical institution where the defendants were employed. There was established a direct causal relationship between these injuries and the onset of death.

However, the same examination indicated that there was such a connection also present between the death of the patient and the actions of the defendants. The court, in its turn, did not address the issues of cause and effect in its statement of reasons.

Verdict № 3 ^[8]. A woman came to a clinic complaining of dry cough, weakness and overall feeling unwell. A therapist, after a series of examinations, diagnosed «reconvalescent acute bronchitis» and «chronic iron deficiency anemia of moderate severity», prescribing expectorants and iron supplements.

Subsequently, the patient was taken to the intensive care unit with a diagnosis of «acute infected myocarditis. Bilateral community-acquired pneumonia. 3rd degree Infectious toxic shock. Pulmonary edema. Bilateral exudative pleurisy» and died later on.

According to the expert's conclusion, the cause of death was pneumonia, complicated by the lungs and brain edema.

An additional examination found that the immediate cause of death was acute respiratory and cardiovascular failure, which developed due to an infection. The expert pointed out that there was a causal relationship between the defects of medical care on the part of the therapist and the death of the patient, but it was probabilistic, since «the provision of timely and adequate medical care does not exclude the occurrence of an unfavorable outcome». It should also be pointed out that in response to the question of whether this disease could have appeared after going to the doctor, the expert indicated that «the development of pneumonia in three days or the development of this disease at an earlier time in both cases is not excluded».

The last report of the expert committee stated that the death occurred as a result of pneumonia, complicated by myocarditis and shock, which had already clearly occurred at the time of contacting the therapist.

Experts pointed out that with proper medical care, there was a real opportunity to prevent the onset of an adverse outcome. The defects in the provision of care contributed to the progression of the disease, aggravation of it's severity and eventually led to the death of the patient, which indicates a direct causal relationship between them. The court indicated that it agreed with the conclusions of all the examinations, pointing out that there was a direct cause-and-effect relationship between the defects in medical care and the consequences that occurred.

It is clear that courts' and experts' assessments on presence or absence of a causal relationship in those decisions are fundamentally contradictory.

In all cases, experts indicated that the main causes of death were preexisting conditions, not the actions of defendants.

The experts' arguments in Verdicts № 1 and 3 say that defects in medical care «contributed» and «served as a condition (negative factor) for the occurrence of death», respectively. However, these statements are obviously identical, and both mean that the main disease did not appear as a result of the doctors' activities.

Experts in both cases indicate that a favorable outcome with proper treatment was not guaranteed. However, in Verdict № 1, the initial examination showed that there was a direct cause-and-effect relationship, and the subsequent examination showed that such a relationship was not present precisely because of it. The court did not take the initial examination into account at all, pointing to contradictions in the conclusions about the guaranteed effectiveness of treatment, although both contested passages: «an opportunity to avoid» and «it would allow ( ... ) to avoid», equally constitute a probability, and not a guaranteed result.

Despite the fact that the circumstances referred to by experts in Verdicts № 1 and 3 are identical: the inaction of doctors as a negative condition for the course of the disease and its culpable nature, the absence of a guaranteed positive result of treatment and the onset of death of patients, experts in the first case indicate these circumstances as excluding the presence of a direct causality, and in the second – as determining it. The court in Verdict № 1 recognizes this as a circumstance precluding criminal liability and acquits the defendant, and in Verdict № 3 – passes a guilty verdict.

Even if you pass on the fact that in Verdict № 2 the court doesn't even discuss the issue of mutually determining nature of the acts of the defendants (who are two, and that in itself is a very complicated issue in the theory of criminal law), the expert opinion states that there is a direct causal relationship between the death of the patient and the actions of the doctors that damaged her pancreas, and at the same time – inaction of doctors who were unable to diagnose it. Also, according to the expert opinions on the basis of which the court concluded that there is no direct causal link in Verdict № 1, inaction cannot be the cause of death at all (since there are other circumstances that affect its occurrence).

As already mentioned, such discrepancies are expected given the small number of iatrogenic cases that go to courts in Russia and them being only a tiny share in the overall caseload. However, one circumstance indicates this issue going deeper than that: all these sentences were passed within four months on the territory of a single state of the Federation – the Zabaikalskiy Kray (region), and all of them were appealed to the Zabaikalskiy State Court, which denied the appeals.

In Verdicts № 1 ^[9] and 3 ^[10], the court of appeal simply repeated the conclusions of the initial courts in response to the defense's arguments about the absence of a cause-and-effect relationship. Verdict № 3 ^[11] was also appealed to the court of cassation, which, in particular, pointed out the «unambiguous nature» of the experts' conclusions, while assessing the possibility of a favorable outcome they all used probabilistic judgments: literally, that «it was probabilistic» in the first case, and that «there was a real possibility» in the second.

In Verdict № 2 ^[12], the court pointed to the arguments of the defense on cause-and-effect relationship being evident only with the actions of the doctors who performed the initial operation, that by not taking sufficient measures to diagnose the disease, the convicted stood «on the same level as them». The court also pointed out that the probability of a favorable outcome was high, although experts did not estimate it, only indicating that it was present. This decision is not exactly clear on how such probability affects the criminality of the act, especially in light of the court further rejecting the arguments of the convicted on impossibility of a favorable outcome in those circumstances as «being a subjective assessment».

It is obvious that the courts attach great importance to the categories of direct and indirect causation cited by experts. At the same time, experts use an indirect relationship as the opposite of a direct one, linking this either to the presence of other factors contributing to the patient's death – in addition to defects in medical care, or to the guarantee of a favourable outcome of treatment.

The above analysis highlights three major problems that courts face when assessing causation in allegations brought on the grounds of Part 2 Article 109 of the Criminal Code of the Russian Federation ^[13] (hereinafter – the Criminal Code) against medical professionals. This are the concept of direct and indirect causation in expert analysis, its relationship to the concept of causation in criminal law and the guarantee of the result of treatment as its characteristic.

Causation in medical legislation. A number of references to cause-and-effect relationship (including direct one) are contained in one of the guiding documents of forensic expertise in the Russian Federation – in the order of the Ministry of Health and Social Development of the Russian Federation № 194n dated April 24, 2008 «On approval of Medical criteria for determining the severity of harm caused to human health» ^[14] (hereinafter referred to as the Criteria).

As a logical basis for further analysis of medical legislation, we use the general philosophical system of causality consisting of cause, effect, and condition as described by Ludmila A. Zimireva ^{[15, 29-40]}.

The cause, in this case – is a phenomenon that generates another phenomenon, i.e. an effect.

A condition, on the other hand, is a phenomenon that does not in itself produce an effect, but creates an environment that supports the cause.

Paragraph 5 of Section 2 of the Criteria states that harm to human health should be understood as a violation of the anatomical integrity and physiological function of human organs and tissues as a result of exposure to physical, chemical, biological and psychogenic environmental factors.

Accordingly, the impact of environmental factors for the purposes of this document acts as a cause, and a violation of functions – as a consequence. The condition is not highlighted in this definition.

An additional context in the framework of this study is provided by Paragraph 25 of the Criteria, according to which the deterioration of human health due to defects in medical care is considered as harm to health.

In this regard, in the presence of defects of medical aid, the latter would be the cause of harm, the consequence will be the worsening of an initial health problem, which acts as a necessary condition, for healthy people do not require medical help.

It would seem that a legal definition for terms that are widely used in everyday life is not necessary – just as Russian criminal law does not define the concept of a «drug den», the meaning of which is quite clearly seen from the context of the relevant law.

So, Vladislav V. Yurasov and Roman E. Smakhtin understand a «defect» as a «flaw», and consider synonymous the concepts of «defect of medical care» and «improper medical care» ^[16].

However, the first problem that arises in this analysis is not that the relevant regulatory framework does not contain a definition of a «defect». It is that it contains it in one way or another, but its meaning is much more limited than it appears to experts.

The concept of «medical care defect». Federal law № 323-FZ «On the Bases for the Protection of the Health of Citizens in the Russian Federation» of November 21, 2011 (hereinafter referred to as Federal Law № 323) does not contain the concept of «defect in the provision of medical care». Nevertheless, some of its provisions are genetically related to it and allow us to find out its true meaning in the context of assessing the inaction of a medical worker through system analysis.

The concept of a disease or condition, given in Paragraphs 16 and 17 of Federal Law № 323, defines them as a violation of the body's activity or its change caused by pathogenic factors. Being a characteristic of the human body, it cannot be an external factor in itself, because it does not relate to the external environment surrounding it.

Paragraph 21 of Article 2 of this law defines the quality of medical care as a set of characteristics that reflect the timeliness of medical care, the correct choice of methods of prevention, diagnosis, treatment and rehabilitation in the provision of medical care, the degree of achievement of the planned result.

According to Article 64, in order to detect violations in the provision of medical care, an examination of its quality is carried out, the criteria for which are the characteristics specified in Paragraph 21 of Article 2 of Federal Law No. 323 . To assess the quality of care, the Ministry of Health of the Russian Federation issued Order № 203n dated May 10, 2017 «On approval of criteria for evaluating the quality of medical care» ^[18].

This document sets out the criteria in a positive form, for example: Paragraph «g» of Part 2.1 indicates the clinical diagnosis within 10 days when providing medical care in an outpatient setting as a quality criterion, Paragraph 2 of Part 3.1.1. – conducting a complete blood count no later than 24 hours after admission to the hospital of a child with no seat of the infection. This Order allows us to find out by extrapolation what is «poor-quality medical care»: if the criteria are met to determine its quality, then their violation makes them poor-quality, which coincides with the definition of a defect given above.

The term «defect» itself is contained in Annex 8 of the Order No. 36 of the Compulsory Health Insurance Fund dated February 28, 2019 «On approval of the Procedure for organizing and monitoring the volume, timing, quality and conditions of providing medical care for compulsory medical insurance» ^[19] (hereinafter referred to as Order No. 36). It is not given a formal definition, but it is mentioned in the table of contents of Section 4 «Defects in medical documentation in a medical organization».

At the same time, Section 3 indicates non-compliance with the relevant regulatory requirements in the provision of medical care («non-compliance, untimely or improper performance of the necessary diagnostic and (or) therapeutic measures, surgical interventions»), but defines them as «violations».

It seems strange that the definition of a defect in the provision of medical care, including casees of inaction of a medical worker, was contained in an earlier version of Order No. 36 – in order No. 230 of December 1, 2010 «On approval of the procedure for organizing and monitoring the volume, timing, quality and conditions of providing medical care under mandatory medical insurance» ^[20].

Paragraph 67, supplemented by the additional sub-paragraph with the Order of the Compulsory Health Insurance Fund of July 21, 2015 № 130 ^[21], defined a defect in the provision of medical care, including a defect associated with causing harm to the health of insured persons in the event of medical professional's inaction if it caused harm to health.

Also, this Order defined as a defect in medical care the development of a iatrogenic disease – a deterioration of human health or the emergence of a new disease caused by the adverse effects of any medical influences.

It seems that the term «defect» itself came to modern Russian medical law from the Order of the Ministry of Health of the Russian Federation of December 10, 1996 № 407 «On introduction of rules of forensic medical examinations into practice». Paragraphs 19 and 20 of this Order indicated that defects of rendering medical aid which resulted in the deterioration of health should be stated by the expert in the conclusion, including the causal relations between them and the adverse effect. In this case, the deterioration of the patient's health condition was qualified as causing harm if it was the result of defects made during the surgery or a high-tech diagnostic procedure.

In our opinion, the discrepancies between the current version of Order № 36 and its previous iteration are explained by the fact that the order's author regarded the terms «violation» and «defect» as synonyms and did not consider it necessary to separate them specifically. This, however, does not excuse the author for violating the uniformity of the terms.

Thus, the current situation in Russian medical legislation is extremely unsatisfactory from the point of view of legal technique and harmonization of legislation: the regulatory framework of forensic expertise qualifies a defect in medical care as a circumstance that potentially causes harm to health, but does not define it. Moreover, a regulatory act that mentions a defect in the context of improper medical care refers it only to violations of the rules for maintaining medical records, which is quite rarely in itself associated with harm.

However, taking into account the historical analysis of the concept of «defect» and its use in modern vocabulary, we consider it possible to use it in the meaning of «violation of the established procedure for providing medical care». In turn, this allows us to conclude that the defect can have both the nature of an action and inaction.

The concepts of «direct» and «indirect» causal relationships in forensics. Some semblance of a definition to causal relationship is available in clause 6.8 of the Criteria: «a mental disorder, the occurrence of which must be in a causal relationship with the harm caused to health, i.e., be its consequence». The definition obviously contains a logical circle, because it follows that the harm caused to health must be a consequence of the cause.

Paragraph 6.7 contains the concept of «direct causation», but its meaning is not at all clear. First, it describes the procedure for determining termination of pregnancy as harm to health, and does not contain any indication that this rule may be applied elsewhere. Secondly, it indicates that termination of pregnancy should be the result of the mother's illness, which, in turn, should be directly related to the harm to health, and should not be due to the preexisting conditions of the mother or a fetus.

Such logical structure of the rule («should be (...) and should not be (...)») describes the situation when preexisting conditions and a direct causal link are unrelated and perform as separate criteria, which does not allow us to discern the meaning of «direct» causal relationship.

Thus, harm to health is the cause here, and the mother's illness is both the consequence of harm to health and the cause of termination of pregnancy. The presence of illnesses, existing before the causing of harm to a mother, is a condition that excludes causing harm.

It is obvious that the author did not compare its provisions with Paragraph 25 when creating it. Deterioration of health due to defects in the provision of medical care is considered as harm, and we have already indicated that the presence of a previous disease is a prerequisite in this case. However, the presence of such a disease paradoxically excludes the qualification of termination of pregnancy as harm to health due to defects in medical care, which follows from the combined analysis of paragraphs 25 and 6.7.

The most obvious explanation is that clause 6.7. was created without defects in the provision of medical care «in mind». The creator of the document sought to describe in it the termination of pregnancy as a result of «physical» harm: battery, poisoning, falling and so on. However, the fact that the author did not consider it necessary to clarify this, apparently, caused the experts to misinterpret these provisions as excluding a «direct» cause-and-effect relationship in the presence of other factors, i.e. preexistent conditions, contributing to death.

From Paragraph 15 of the Criteria, it follows that the occurrence of a life-threatening condition must be immediately related to causing harm that is dangerous to human life and cannot be accidental.

It is tempting to link the «directly related» and «accidental» nature mentioned here with the concept of direct causation.Thus, it turns out that «immediate» connection and «direct causal relationship» are synonyms, and the accidental nature of the connection is a characteristic that excludes its immediacy (directness). However, this approach is not correct.

Firstly, the relationship between paragraphs 15 and 25 is not indicated by the author. Secondly, the logical structure of the rule («must be ( ... ) related, and this connection cannot ( ... )») indicates again that these are two separate, unrelated circumstances. This rule, if read directly, says that a direct connection may, in principle, be of an accidental nature, but said nature in this case «does not count».

Apparently, this provision is the reason for experts attributing causal relationship to the warranty of the result, i.e. with absolute guarantee of benevolent outcome.

Based on the above, we can conclude that modern Russian medical legislation does not have a functioning definition of cause-and-effect relationship, either direct or any other one.

In this situation, it is not surprising that experts, researchers and law enforcement officials follow the path of least resistance and link a direct cause-and-effect relationship either to the absence of comorbidities or random factors. This, in turn, implies either their fatalistic attitude to the shortcomings of legal technique, or the lack of a systematic approach: they either immediately consider this interpretation to be the author's original intent, without even considering it necessary to criticize, or they do not consider it at all.

As a relatively positive example from the Russian judicial practice in iatrogenic cases, we can cite the verdict of the Oktyabrsky District Court of the city of Barnaul dated may 17, 2019 ^[22]. By this verdict a surgeon was found guilty of committing diagnostic errors, which did not allow to make a correct diagnosis in a timely manner and prescribe the necessary surgery.

At the same time, the expert committee pointed out that there is a causal relationship between defects in medical care, which, however, is indirect, since proper medical care does not allow to exclude the development of complications and the onset of death. But experts recognized that timely surgery was the only way to avoid a fatal outcome.

The court ruled that the expert committee went beyond its competence, pointing out that the concept of indirect causation is not provided for by law, and its establishment is not included in the expert's responsibilities. The court referred to Paragraph 15 of the Criteria, explaining that the occurrence of a life-threatening condition may either be directly related to the injury to health, or be accidental, which experts can and must indicate in their opinion.

As shown above, this conclusion does not follow from the law: it is not clear from the text of Paragraph 15 of the Criteria whether the random nature of the connection excludes its immediacy. However, the court's critical approach to the expert opinion deserves attention.

Despite all of the above, the lack of a unified understanding of the causal relationship among the expert community is essential for the qualification of criminal acts only if the understanding of the causal relationship in the forensics coincides with that in criminal law, which, apparently, is not the case. The following section is devoted to the understanding of cause and effect in criminal law.

Causation in criminal law. At first glance, the concept of causation in criminal law is in an even more unsatisfactory state than in the regulatory framework of forensics. This is due to the fact that the Criminal Code does not contain not only its formalized definition, but even mention. An indication of the need for a causal relationship between a socially dangerous act and it's consequences is provided in specific articles, for example: in Part 1 of Article 124 of the Criminal Code by the word «caused», in Part 2 – the word «entailed (...) the death of the patient, or caused the severe harm».

Thus, the idea of a causal relationship is purely doctrinal. However, the question arises: does any science need its own particular understanding of cause and effect?

One of the most detailed studies on the cause-and-effect relationship in omissions at the moment is the work of Anna. Y. Kosheleva.

The researcher distinguishes the concept of cause-and-effect relationship in a narrow sense – when the relationship itself comes first in its description, and in a broader sense – when the concepts of cause and effect come first in the analysis ^{[23, p.29]}.

The concept of causation in a narrow sense is developed by philosophy and is used by all sciences that somehow study the relationship of various phenomena.

Based on this, the author identifies two types of cause-and-effect relationship: the theoretical criminal law structure and the mechanism of empirical causation.

The mechanism of empirical causation is an objectively existing cause-and-effect relationship between events (phenomena) of objective reality, including three elements: cause, effect, and the relationship between them. Thus, the mechanism of empirical causation is a concept of causation in a narrow, philosophical sense.

In philosophy, the doctrine of the definiteness of phenomena subject to necessary and sufficient conditions is called determinism. This concept should not be confused with the physical or theological (preached, for example, by Calvinists) concept of determinism, which postulate the predestination of everything and the complete dependence of the present on the past, and the future on the present ^{[24, p. 148]}.

In all the variety of deterministic concepts developed by philosophers, for the purposes of this study it is necessary to distinguish causal determinism – namely, the determination of effects by causes ^[25].

Causal determinism is qualitatively different from other types of determinism, whether it is statistical determinism – where the necessary consequences are generated by a set of apparently unrelated events ^{[26, p. 255]}, or structural determination, in which the whole, being the sum of it's parts, is determined by it ^{[27, p.18-19]}.

Anna Y. Kosheleva quite rightly comes to the conclusion that in criminal law, causal determinism is the methodological basis of the concept of cause-and-effect, being fundamental in the modern picture of the world as a whole, and in scientific knowledge in particular ^{[23, p.21-24]}.

The cause in this concept is a phenomenon that completely led to the occurrence or change in another phenomenon – the effect.

An effect, in turn, is the result of a cause, a phenomenon occurrence of which is due to the genetic action of a cause or a causal complex (a set of phenomena that together generate a consequence). The main feature of the effect is the regularity of its occurrence from the cause.

There are 5 characteristics of causation as necessary conditions for recognizing the effect as the result of the cause: 1. temporal asymmetry, 2. genetic character, 3. objective character, 4. regularity (necessity), 5. relativity.

Temporal asymmetry means that the cause always precedes the effect in time.

Genetic character means the production of effect by cause. In the interpretation of M. Makarov this feature is defined as follows: «This is a feature that expresses the essence of a causal relationship, that it is a connection of generation (evocation, production). The cause is what determines the appearance (not appearance) or disappearance of something else, that is, the consequence. Other features follow from this» ^{[28, p. 135]}. In other words, if there was no cause, the effect would not have occurred.

Objective character has a double meaning. The consensus of Russian legal scholars attributes the cause-and-effect to the material element of the crime – features that exist in external reality, but not in the mind of the criminal.

Subjective causality or subjective determinism is the determination of intellectual processes occurring in the mind of the criminal by the external circumstances. However, the philosophical basis for the mental element of a crime in Russian criminal law, as in the doctrine abroad, is the idea of free will, that is, the ability to choose between lawful and illegal behavior. The concept of free will belongs to the sphere of indeterminism – a philosophical concept that largely defies causality.

However, the concept of causation in the mind of a criminal may have some significance in understanding the essence of causation in criminal law, which will be explained later.

The regularity (necessity) of the causal relationship reflects the need for the occurrence of consequences as a result of the influence of the cause. In other words, to establish a causal relationship, the same consequences must always occur under the same conditions.

The relativity of a causal relationship is determined by its dependence on concomitant conditions. The condition in this case is a phenomenon or a set of phenomena, without which the cause cannot lead to an effect ^{[29, p. 16-18]}.

The above features describe the concept of causation in the general philosophical sense and, in one way or another, are used in all spheres of human activity in which it is necessary to establish the dependence of some clearly defined phenomena on others. However, they do not determine the specifics of the concept of causation in various fields, including criminal law.

Discussions about whether causation is a general philosophical category that does not require additional assessment from the point of view of criminal law have been taking place for many decades.

One of the most prominent researchers of causality in criminal law, Vasiliy B. Malinin, believes that criminal law should not create its own concept of causality, considering the postulates of philosophy quite sufficient for law enforcement and judicial practice ^{[30, p.21-24]}.

Similar views were expressed by his predecessors: by Sergei V. Poznyshev ^{[31, p. 316]} and Georgiy V. Timeyko ^{[32, p. 111]}, who also believed that criminal law does not need its own understanding of cause and effect, since this can cause terminological confusion.

The opposite views are expressed by Alfred E. Zhalinsky ^{[33, p. 367.]}, Leo B. Bazhenov ^{[34, p. 376.]}, A. Musika and Sergei R. Bagirov ^{[35, p.79]}, which indicate both the uncertainty of philosophical categories and the presence of certain specifics of law, which dictates a more flexible approach to determining the cause-and-effect relationship.

To cover this issue, Nikolai N. Tarasov identifies three groups of legal concepts based on their association with other fields of research: 1. organic concepts that arise exclusively in the legal sphere and belong exclusively to it, 2. consolidated concepts that are produced in other areas and are borrowed by law, but described differently in the process, 3. associated concepts – concepts uncritically borrowed from other fields, used in law in the same meaning ^{[36, p. 165-166]}.

Anna Y. Kosheleva consideres the causation to be consolidated – acquiring certain specifics in criminal law, with which we agree ^{[23, p. 38-45]}.

First of all, it should be noted that the understanding of the cause in criminal law is much narrower than in philosophy. While the cause is not specified in philosophical analysis, it is specified in legal framework.

In the general theory of law, the concept of a legal fact – a phenomenon that entails legal consequences and, thus, has significance in legal assessment, is distinguished. While in civil law, certain events (for example, a natural disaster as a force majeure entailing the possibility of release from an obligation) have legal significance as entailing civil consequences, in criminal law, only acts are presented as such.

Part 1 of Article 14 of the Criminal Code defines a crime as a culpably committed socially dangerous act prohibited by criminal law under the threat of punishment. Thus, such an act also acquires a characteristic of guilt – the presence of a certain state of consciousness, provided for in Chapter 5 of the Criminal Code.

The consequence is also limited in criminal law by the relevant rules of the Special section of the Code. Article 109 of the Criminal Code specifies as the only possible consequence the occurrence of death.

The same applies to conditions that can be established by the legislator as constructive elements of a crime (in particular, Article 124 where the criminal liability is directly related to the patient's status, which indicates both the presence of a disease and a special legal status that gives rise to the obligation to treat such a disease). Conditions may also be specified as qualifying features (Article 125, which provides for a condition in the form of danger to life or health, as well as the inability to take measures to ensure persons own safety) or an aggravating circumstance, as provided for in Paragraph "l" Part 1 Article 63 of the Criminal Code in the form of committing a crime in a state of emergency.

The presence of certain conditions may also be grounds for exemption from criminal liability, such as an illegal act commited in the state of defense, or the presence of an extreme situation in causing harm without fault.

The differentiation of some circumstances from others in the framework of criminal law imposes certain restrictions on the philosophical understanding of causality.

As a clear example of how the specifics of philosophical, medical, and criminal law analysis affect the description of cause-and-effect relationships, we will use the conclusion of the Commission of the St. Petersburg BFM in the Verdict № 1.

Thus, the cause of death of the patient were complications (peritonitis) of the underlying disease (appendicitis), while defects in medical care served as an unfavorable condition (negative factor) for the course of this disease.

Such an «emphasis placement» is more than acceptable in the implementation of pathoanatomical research, since it establishes processes in the human body. For such an analysis, it does not matter whether the damage was the result of an act, what specific form it took, whether it was guilty or not – the cause will always be a disease or condition.

Even in the event of death as a result of the doctor's action, the cause of death in the expert opinion will still indicate the underlying disease that occurred as a result. So, in the verdict of August 30, 2019 by Koryazhemskiy City Court of the Arkhangelsk region, an expert opinion indicated an air embolism of the heart as the cause of death, which is regarded as a life-threatening condition, usually causing death. However, the embolism occurred as a result of careless actions of a surgeon, which makes his actions a cause in the criminal law sense ^[36].

In criminal law analysis, only a narrow group of circumstances is considered as potential causes, which in criminal law can only be acts.

If a medical worker doesn't act, death or harm to the patient's health occur as a result of the progression of the disease (condition), while the doctor him or her self take a passive role. In terms of criminal law, he or she perform an act in the form of omission.

In Verdict № 1, only one such act is described: diagnostic defects expressed in violation of the established procedure for medical care. The result here was the onset of death, and the condition – the presence of a serious illness.

The need to identify only relevant phenomena in legal analysis is emphasized, in particular, by Professor Sarah Green of the University of Bristol (Great Britain), who points out the irrationality of establishing entire set of circumstances that can potentially affect the outcome of the situation when deciding on the culpable harm ^{[37, p.13-15]}.

The dependence of the choice of cause-and-effect components on the goals and objectives of the researcher is also indicated by Zoricto B. Soktoev ^{[38, p. 109, 260]}.

Naturally, the very existence of the guilty act, the consequences that have occurred and their designation as a cause and effect does not determine the existence of causal relationship between them. This reasoning is nothing more than a hypothetical model that raises the question: is there an actual connection between the hypothetical cause and the hypothetical effect under consideration? At the same time, considering an act as a different element of the cause-and-effect, that is, mixing the concept of cause in the criminal and medical sense, leads to paradoxical results.

The St. Petersburg BFM and the Altai Regional Bureau of Forensic Medicine concluded that there was no direct cause-and-effect relationship in the Verdict № 1 due to the occurrence of death as a result of complications of the underlying disease, which was not caused by the actions of the doctor. This conclusion may or may not be true from the point of view of forensic methodology, but it is absolutely irrelevant for the purposes of criminal law.

The allocation of a direct or indirect cause-and-effect relationship, if it is justified anywhere, cannot be justified on this basis in criminal law, because it completely excludes the possibility of bringing criminal liability for omission.

Inaction as a tantamount to action is a form of criminal behavior used by the legislator as a mandatory aspect of criminal acts in the General section of the Criminal Code (Paragraph 1 of Article 5, Part 2 of Article 9, Part 2 of Article 14, Part 2 of Article 17, etc.), and therefore, can be considered to be a valid form of illegal behavior in articles, which do not provide a specific form of an act as a constructive element.

An example of such a composition is Part 1 of Article 105 of the Criminal Code – murder, defined by the legislator as intentional causing of death. Since the form of the act is not specified in it, it can be either by action or omission, which corresponds to both the position of the Supreme Court of the Russian Federation ^[39] and the most prominent Russian scholars specializing in the criminal qualification of murder ^{[40, p.7]}.

Also, inaction in the Criminal Code can be provided as a constructive element. These articles include: Article 124 – failure to provide assistance to a patient, Article 270 – failure of the ship's captain to help those in distress, Article 157 – refusal to provide child support and many others.

Thus, the assessment of a causal relationship between the consequence and not only the guilty act, but also external factors, as excluding causality in the criminal sense, cannot be considered justified.

In addition to the Verdict № 1, this position of experts, uncritically perceived by the courts, was the reason for acquital, in particular, by the Azov District Court of the Omsk on September 28, 2018. In this case, the doctor made diagnostic errors, as a result of which she was unable to make a proper diagnosis and prescribe treatment for the newborn, who later died of pneumonia ^[41]. However, the court also noted that even if proper medical care was provided, a favorable outcome was not guaranteed, and the experts had only probabilistic conclusions.

This fact leads us to the next question to be resolved: the influence of probabilistic conclusions of experts on the criminal qualification of an act, as well as to another difference between the concept of causality in criminal law and philosophy – random circumstances.

Part 2 of Article 25 of the Criminal Code provides as a characteristic of direct intent foresight and desire for the possibility or inevitability of consequences. Indirect intent (Part 3 of Article 25) and negligence in the form of criminal flippancy (Part 2 of Article 26 of the Criminal Code) are characterized only by foreseeing the possibility of their occurrence.

The possibility of consequences is opposed to regularity of the causal determinism. Possibility is a category of uncertainty in which the impact of the same phenomena generates the same consequences not necessarily, but with a certain probability, in other words – with an element of randomness.

As mentioned above, the perpetrator's understanding of the consequences of the crime does not belong to the category of causal causality. However, a combined analysis of articles 25 and 26 of the Criminal Code allows us to conclude that the legislator provides for liability for an act in which the result is not a natural, inevitable consequence.

In other words, there is an exception to causal determinism in criminal law: as long as an accident is recognized by the subject as a means of achieving a criminal result or as a circumstance that contributes to the occurrence of socially dangerous consequences, a causal relationship is presumed, although the occurrence of the result does not necessarily follow from the cause.

Tellingly, the same situation is observed abroad. Thus, in common law countries, there is a postulate: «intentional harm cannot be accidental», although accidental harm caused by negligence, as a rule, does not entail liability ^[42].

Michael Moore identifies two groups of scientists with opinions on this issue: the first group believes that such a connection exists objectively as a general philosophical category, the other – that the rules for its establishment should be based on the requirements of legal policy ^[42]. In his opinion, the standard concept of conditio sine qua non, or the theory of the necessary condition, too often gives results that go against the intuition of judges on causality, which is why exceptions and restrictions on it appear.

In our opinion, this is also true for the Russian legal policy: the standard idea of causal determinism does not suit the legislator, since for the purposes of state regulation, it is necessary to criminalize acts that have an increased public danger, but do not entail a necessary occurrence of socially dangerous consequences.

Opponents of this interpretation may object: the perpetrator's understanding about the possibility or inevitability of consequences has nothing to do with the cause-and-effect relationship, which the consensus of researchers refers to the material element of the crime.

So, Anna Y. Kosheleva refers randomness into categories of indeterminism, and connects it in criminal law only with the concept of incident – innocent infliction of harm, i.e. lack of foresight and the obligation to foresee ^{[23, p. 69]}.

However, it should be clarified that she also indicates the need to apply an adequate theory of causality in the qualification of so-called «high-risk crimes» – Articles 215, 340 and 341 of the Criminal Code, on the basis of which responsibility arises for the acts that could (which is a category of possibility, not necessity) cause consequences, but their occurrence is not necessary for liability. She calls this phenomenon a «potential causal relationship», justifying its existence in criminal law by necessity ^{[23, p. 71.]}.

In our opinion, this interpretation also does not allow criminal act to be brought to justice if they involve use of random factors – those that are not under the control of the perpetrator.

The possibility of the influence of random factors in a criminally significant causal relationship is particularly clear in Part 3 of Article 26 of the Criminal Code, which somewhat «stands out» in the line of the forms of guilt provided for in Chapter 5 of the Criminal Code. It provides for the lack of awareness of the possibility of socially dangerous consequences if there is a duty and the ability to be aware of them.

This article does not characterize the internal, mental attitude (mens rea) to the act or its consequence, describing the material element of the crime – its external characteristics that exist regardless of the perpetrator's consciousness.

This means that criminal liability for negligence also occurs when socially dangerous consequences are not inevitable, but objectively possible.

Michail D. Sharogorodsky did not exclude causality in case of randomness, in particular, in his criticism of the theory of adequate causality – a concept proposed by the German physiologist and philosopher Johann von Kries ^[43], in which a phenomenon is considered a cause only when it necessarily entails a result ^[44].

Plehan S. Dagel directly pointed out the generally accidental nature of consequences in negligent crimes, as well as the inadequate nature of consequences for violating the precautionary rules, which can materialize in a wide range: from a successful outcome to a catastrophic one, which depends on a variety of uncontrolled factors ^{[45, p.31-35]}.

Zoricto B. Soktoev, in turn, believes that a person's failure to perform the assigned duties can be recognized as a cause only if there is a «more or less high» degree of probability of harm as a result of such a violation ^[46].

Despite all the criticism, we agree with Anna Y. Kosheleva in her assessment of the randomness in the criminal law – it really cannot have a place in causal determinism. However, one important point must be made: randomness is not only a description of a causeless event, but also a limited understanding of it.

For example, if you flip a coin, the result is either «heads» or «tails». Determinism is dictated by the principle of universality of physical laws and the behavior of this coin is completely predetermined, just as the result of the throw. However, an outside observer does not have the ability to comprehend all the factors that affect its behavior, and, as a result, to repeat it. This means that the relationship between the toss of a coin as a cause and its fall on one of the sides cannot be comprehended in terms of causal determinism. The result of a coin toss is objectively determined, but for us it is random.

The problem is that doctors, experts, and law enforcement officers are similarly unable to objectively understand reality in its entirety, which means that they are forced to «generalize» them using simplified models when assessing the circumstances of the case.

In medicine, this is fully manifested in determining the effectiveness of treatment.

If we examine the regulatory framework for testing new therapies and diagnostic procedures, it turns out that the new treatment is considered effective if: a) it can be effectively used in medical organizations, b) increases quality of medical care (provides reduction of hospitalizations, in-hospital mortality, a longer duration of remission, reduction of period of temporary disability, reduces the degree of disability, the risk of development of diseases, establishes diagnosis in the early stages) ^[47].

It is easy to see that of all the characteristics in the second category, the absolute indicator is only the possibility of establishing a diagnosis at an earlier stage, all the others are relative, that is, probabilistic.

Modern medical science, with all the breakthroughs of the XX and XXI centuries, is not able to guarantee neither the inevitability of a cure or the absolute correctness of the diagnosis in most cases ^{[48, p. 4-6]}, since the human body is an extremely complex system, the behavior of which cannot be predicted and explained with sufficient accuracy. The most realistic answer to an investigator's or court's question to an expert: «Would have treatment helped if provided timely and properly?» is not «Yes» or «No», but «Likely, yes» or «Likely, no».

In this situation, it is necessary to return to the words of Zaricto B. Soktoev about the «more or less» high degree of probability of harm that is required for liability in criminal inaction.

Propositions. High degrees of probability, such as in conducting genomic expertise, the margin of error in which, as a rule, is ten thousandths of a percent, people tend to regard as conditional inevitability. Low degrees can also be regarded as conditional impossibility.

In an interview with the portal donnews.ru, the head of the Rostov Regional Perinatal Center, Valery Bushtyrev, called premature babies «dandelions, because they do not tolerate a breath of wind or any other negativity». He also pointed out that among all infant deaths in the first month of life, 65% are in the first week, even if appropriate medical care is available ^[48].

An analysis of the mortality of premature babies in the Stavropol region shows that the main predictor of their survival is the gestational age: while 97% survive at 30 weeks, the proportion of successful outcomes at 22 weeks is only 9% ^[49]. This means that it is almost impossible to help those babies, and the quality of medical care has almost no effect on their survival. In such a situation, it is impossible to establish the prevalence of defects in medical care over the severity of the disease.

If, as a hypothetical, the criterion for the possibility of consequences in the criminal law, for example, is a probability of more than 10%, then defects in the provision of medical care before this threshold will not have any criminal law significance at all. This may seem unacceptable, because it «unties the hands» of unscrupulous doctors, depriving them of the motivation to take a responsible approach to the performance of their duties in those cases. However, it should be remembered that the fear of criminal liability is not the only factor of prevention, and the examination of the quality of medical care is in any case carried out in cases of hospital mortality. According to its results, the doctor may be, in particular, brought to disciplinary responsibility.

The problem with this approach is that such models do not take into account the multiplicity of at least the main factors contributing to adverse outcomes. So, among the causes of death of premature babies, the bacterial sepsis of the newborn is the highest one (38, 7%) ^[49]. Accordingly, a combination of different factors – low gestational age, sepsis or other diseases, will yield a fundamentally different level of probability. Accordingly, for these purposes, it is necessary to develop a separate statistical method and identify the most important and measurable factors.

Another problem is that such estimates are inevitably averaged, not taking into account the specifics of each individual case.

First, the quality of medical care can varies greatly depending on the equipment of the medical facility. Victor E. Radzinsky and Igor N. Kostin point out that the quality of medical care for premature babies critically depends on the level of the medical institution, where Lv. 1 institutions are the most poorly equipped, and Lv. 3 are the most technically advanced. However, the same researchers found significant violations in the statistical recording of newborn deaths, which also needs to be taken into account ^[50]. Nevertheless, these circumstances can potentially be taken into account in the statistical model.

Secondly, this approach inevitably makes the issue of criminal liability dependent on the behavior of other persons who have nothing to do with the case under investigation. This «averages» all doctors among each other, making their qualifications irrelevant when deciding on criminal liability – even a doctor of the highest category will be subject to the same requirements as the «common denominator» between him or her and an inexperienced Intern. However, it seems that this factor also can be taken into account in the statistical model theoretically.

Based on the above, it can be concluded that the establishment of regulatory criteria for the possibility of adverse consequences on the basis of statistical models is, in principle, possible. But even rough estimates of the necessary joint efforts of doctors, lawyers, statisticians and other specialists make such an outcome unlikely, and hoping for it is irrational.

The question of determining the degree of probability necessary for liability may also be referred to the judicial discretion and determined ad hoc.

First, this approach is somewhat contrary to the principle, formulated by the Constitutional Court of the Russian Federation – this of certainty of criminal prohibitions ^[51], for it refers to the discretion the grounds of criminal liability which, by virtue of Article 8 of the Criminal Code, can be established only by the Federal law.

Secondly, this practice is observed, in particular, in Croatia, and researchers note its generally unsatisfactory results. For example, Igor Vuletić, Professor at the University of Osijek, describes the problems faced by Croatian law enforcement in iatrogenic crimes. The author, similarly to us, notes the unhealthy dependence of courts on expert opinions and the lack of a single standard in determining the cause-and-effect relationship in iatrogenic cases.

As an example of applying the probabilistic standard of causality, he cites the acquittal of the Belovar District Court of February 16, 2012, where it was found that the surgeon violated the established diagnostic procedures, which resulted in the patient not being diagnosed with aortic stenosis and dying within two days. The initial examination showed that the probability of a favorable outcome for this disease is 40%, but the second examination reduced this number to 14-20%. The court, while pointing out that it interprets the results of examinations in favor of the accused, did not indicate in the decision why it does not consider the lower probability as criminally significant.

Based on his analysis of judicial practice, the author calls for abandoning the special law on the responsibility of medical workers for negligent harm, and introducing one on the responsibility for treatment in the absence of informed consent to medical manipulations in its place ^[52]. This approach is evidently radical, but worthy of attention.

Questions about the limitation of liability for medical professionals have been repeatedly raised in foreign legal science.

Professor Alexander MacColl Smith of the University of Edinburgh suggested limiting the liability of doctors to cases of intentional or criminal flippancy ^[53].

A group of authors from the Yale University believe that criminal prosecution of medical professionals should be extremely rare, carried out only for the most serious violations of established standards of care ^[54].

Professor Miha Shepec of the University of Maribor (Slovenia) points out that it is actually necessary to introduce a strict standard of necessity for causation in iatrogenic cases ^[55].

Similar views are sometimes voiced by representatives of the Russian medical community, including those who hold high positions in the Federal legislature^[56].

Given the current lack of uniform and objective standards for determining cause and effect in cases of improper medical care, limiting the liability of physicians to cases of intentional or flippant harm, as well as negligent omission with a conditional guarantee of the result, may be a reasonable alternative and the only way out that would protect medical professionals from unjustified criminal prosecution. It is also most easily implemented in practice, in particular through the explanation by the Plenum of the Supreme Court of the Russian Federation.

Conclusion. In our opinion, the most rational approach would be to introduce statistical standards for determining the threshold of preventability of socially dangerous consequences. However, as already mentioned, this approach is at the same time the least realistic. The way out of the situation through a «moratorium on negligence» is realistic, but potentially affects the interests of patients and is unfair to representatives of other professions that are complicated by the risk of harm.

The question of which of the approaches should be applied, in our opinion, must be evaluated in terms of state and public priorities in criminal policy.