Imputación objetiva y principio de confianza en la actividad médica punible

Abstract

In this study, an analysis was made upon the Objective Imputation Theory and the Confidence Principle as determining factors for contributing to the analysis of whether a certain behaviour is criminally relevant or not, when there is a harmful result produced by actions taken under medical practice. Results show that Objective Imputation Theory, is clear enough and perhaps the most recommended for determining the existence of a crime committed by action or omission under punishable medical practice and it is fully precise for adjusting it to medical practice; especially when such practice creates or increases the risk of exceeding the limits allowed, generating a decisive criminally relevant result. With the application of the Objective Imputation Theory, we can provide a clear response, meaning that when circumstances are causal for excluding cause of action, excluding typicity, and to clarify under which assumptions a person can be considered imputable or unimputable. Moreover, the Theory allows screening and analysis of facts that need to be considered in order to attribute responsibility to medical malpractice as a criminal offense. Finally, this research includes an exhaustive analysis of the principle of trust as a key element to observe whether the objective duty of care in a reckless crime and the allowed risk limit within a medical practice are fulfilled or not, attributing responsibility according to the degree and the form of participation in a surgical intervention. In the latter, each participant of a medical practice plays a specific role for which they have to deal with probity and limitation; otherwise, they must legally answer for that. The principle of trust is key when deciding to what extent, in the case of undertaking a risky activity such as medicine, it would be legal or allowed to trust the rest of the participants. This conducts to the analysis of inclusive, exclusive, imputable and unimputable causes according to the degree of participation, responsibility when delegating and professionalism when practicing medicine