What you need to know if your loved one died during a medical procedure: advice from a lawyer

Every year in Ukraine, there are cases when patients die after surgery or other medical interventions. Relatives find themselves in emotional shock, not knowing what to do or where to turn.

Danylo Tryasov, an attorney at LESHCHENKO & PARTNERS, explained in a commentary to RBC-Ukraine how to achieve justice in such situations.

According to the Constitution of Ukraine (Article 49), everyone has the right to health care and medical assistance. The Law on the Fundamentals of Legislation of Ukraine on Healthcare guarantees citizens the opportunity to appeal against the actions or inaction of healthcare professionals if they violate the patient’s rights. In addition, the state is obliged to ensure the restoration of these rights and compensation for damages.

However, in practice, relatives of patients who died after medical intervention often face systemic resistance. According to Danylo Tryasov, law enforcement officers are reluctant to investigate cases under Article 140 of the Criminal Code (improper performance of professional duties by a medical professional) because they are complex and require deep medical and legal knowledge.

He notes that the main difficulty in such cases is establishing a clear link between the patient’s death and the actions or inaction of doctors. It is at this stage that cases often get stuck, and the statute of limitations (3 years for this category of cases) expires.

Algorithm of actions for relatives of the deceased

An attorney Danylo Tryasov advises not to hesitate and act according to a clear plan:

• Consult a lawyer. A specialist will help develop a strategy for holding doctors accountable and seeking compensation for moral and material damages.
• Insist on an autopsy. Regardless of where the patient died (in hospital or at home), an autopsy will help determine the cause of death and serve as evidence in the case. If the family refuses for religious reasons, all available medical records must be collected.
• Obtain official documents. These include a death certificate, forensic medical examiner’s report, and a civil death certificate.
• File a report with the police. This refers to a complaint about a crime under Article 140 of the Criminal Code of Ukraine. The police must enter the case into the Unified Register of Pre-Trial Investigations (ERDR) and initiate an investigation.
• Seek victim status. Investigators often refuse to grant this status, but such decisions can be appealed in court under Article 303 of the Criminal Procedure Code. Victim status provides access to case materials and allows one to influence the course of the investigation.
• Contact the Department of Health. Relatives can initiate a Clinical-Expert Commission (CEC), which will assess the quality of care provided. If the conclusion is negative, it can be appealed to the Ministry of Health. In case of violations, the ministry has the right to revoke the clinic’s license.
• Request a forensic medical examination. This must be initiated by an investigator or prosecutor. If no autopsy is performed, high-quality medical documentation may be sufficient. A refusal is unlawful.
• Interrogate the doctors. Investigators must question all medical personnel involved in the treatment.
• If no suspicion is issued, file a claim in civil court. Without a formal suspicion against a doctor, victims cannot seek compensation within criminal proceedings. Therefore, a civil lawsuit may be filed.

Death of a patient after surgery in a private clinic

Danylo Tryasov says that he is currently representing a relative of the deceased in a case investigating the improper performance of professional duties by doctors at a private facility.

“My client is a relative of a man who died after a minimally invasive surgery performed in a private clinic without any laboratory tests. This is a violation of the clinical protocols of the Ministry of Health of Ukraine,” the lawyer said.

After the intervention, the patient’s condition deteriorated sharply, and he was transferred to the city state hospital. There, they found Staphylococcus aureus, which caused sepsis and systemic multiorgan failure. The patient died.

His relatives attribute the deterioration of his condition to medical intervention in a private institution. According to the lawyer, the doctors did not conduct mandatory examinations, explaining that the operation was “minimally invasive”.

In this regard, the relative filed a report of a crime under Part 1 of Article 140 of the Criminal Code of Ukraine (improper performance of professional duties by a medical professional) and was recognized as a victim in the criminal proceedings.

The Ministry of Health recognized the actions of doctors as improper

In addition to the criminal proceedings, a complaint was filed with the regional health department demanding a clinical expert assessment of the quality of medical care. However, its consideration took place without the applicant’s participation, which is contrary to current legislation.

The CEC of the Ministry of Health recorded a number of gross violations:

• lack of adequate pre- and postoperative examination;
• ignoring the medical history (anamnesis);
• absence of anesthesiologist’s conclusions;
• deficiency of primary medical documentation;
• underestimation of the patient’s condition.

In addition, the Ministry of Health upheld another complaint regarding the clinic’s compliance with the license conditions. If violations are found, this may be grounds for revocation of the license.

Examination without an autopsy is possible

As part of the criminal proceedings, the investigator ordered a commission forensic medical examination. However, the expert refused to conduct it due to the lack of an autopsy report.

“I prepared a petition for an examination based on the available medical documentation at the Main Bureau of the Ministry of Health of Ukraine. The prosecutor granted it. This is an important precedent: even in the absence of an autopsy, an examination is possible,” the lawyer emphasizes.

The pre-trial investigation is currently underway. The lawyer emphasizes that it is at this stage that it is important to collect evidence to be able to file a civil claim for compensation for property and non-pecuniary damage in the future.

Earlier, RBC-Ukraine reported that in April 2024, a 67-year-old patient hospitalized for aortic valve replacement surgery at the Odesa Regional Clinical Hospital received an incompatible donor blood transfusion. The anesthesiologist, in violation of established protocols, failed to conduct the necessary biological test, which led to the transfusion of blood of the second group instead of the first positive group.

As a result, the woman developed acute kidney damage, which required urgent hemodialysis and other medical measures to stabilize her condition. The prosecutor’s office served the doctor a notice of suspicion under Part 1 of Article 140 of the Criminal Code of Ukraine – improper performance of professional duties by a medical professional, which caused serious consequences for the patient.