Acquittal of a surgeon paediatrician the condemned by the imprudent homicide of a baby who died by asphyxia
The AP Asturias, in sentence 18/2019, of 11 of January (Resource 259/2018), acquits to a paediatrician of the crime of homicide by serious professional imprudence that was imputed to him by the death of a minor of 19 months as a result of the asphyxia caused by the obstruction of the trachea by a maize grain, that had originated an episode of choking five days before.
One is before an exceptional case as it credits the numerous practiced expert and pertaining to a witness test, that demonstrates that any infraction of the lex artis on the part of the paediatrician did not exist that followed the habitual procedure: exploration of the patient, to wait for evolution, radiological tests in inspiration and espiraci³n, being unforseeable the fatal outcome.
The defendant valued the possibility of making a bronchoscopy to the minor based on the evolution that experimented, and even ordered that she stayed in uninformed for the case that outside necessary to test to him based on the course of its evolution, but being been positive the evolutionary picture and before the absence of respiratory clinic, except for one weighs hypoventilation that had improved to the auscultation, and after repeating a plate to him without pathological findings, it considered that the bronchoscopy when an invasive and complex being test that was not indicated it is necessary to do in operating room, that it requires general anesthesia, and that can have serious complications (diaphragmatic breakage, bradycardia¦) with an index mortality in children of 2%.
The mother of the minor referred occasional cough by cold antecedents, indication that she justifies that the paediatrician reasonably thought that the few symptoms that as far as the hypoventilation the minor to the time presented to sign his medical discharge they would be rest of that one cold.
The paediatric surgeon faced the decision to test invasive, that she could not be necessary, requested opinion to the guard paediatrician, by the mere data of a slight hypoventilation, because all the others were normal, did not only have printing, neither cyanosis, nor cough, nor fever, considering as additional factor the preceding cold, but finally she decided to very discharge from the hospital to the being under the suspicion index and unthinkable that the process will finalize with so bad evoluci³npues she was sudden the impactaci³n of the maize grain in the trachea and the death.
All the experts agree in that it is an exceptional case, that the fatal outcome was unforseeable and that there were criteria no clear to make a bronchoscopy, considering the risks and important complications of this technique and the clinical and radiological state of the minor.
The acquittal of the defendant of the crime of imprudent homicide justifies the Hearing in which, in the scope of the medical criminal responsibility, it is only possible to describe a medical action as penal reproachable when the medical or surgical treatment carried out the patient it affects conducts neglected from which is a behavior rash, with lack of investigations or precise verifications as essential to follow the course in the state of the patient, and in these cases, the culpability reproach not as much comes dice by the error, if it will have to him, but by the carelessness, the abandonment, the negligence and the negligence of the attention that one requires and it is had to base on an incontestable fault, fault that in this case is absent to the exhausted salary the paediatrician all the means to its reach to understand that its decision of not realising the bronchoscopy was reasonable.
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