Criminal Liability for Medical Negligence in the Face of Hospital Shortages in NICUs in Ecuador

Abstract

Neonatal mortality and its relationship to resource shortages must be analyzed, since criminal liability may be attributed to a healthcare professional even when their involvement in an incident and its outcome is due to an environment characterized by a lack of supplies. Hence the importance of analyzing the degree of criminal liability for medical negligence arising from a lack of essential supplies, specifically in the Neonatal Intensive Care Unit (NICU) of Ecuador’s public hospitals, considering a scenario where the treating physician must fulfill their duty and the state acts as the guarantor of the right to health. For this study, a qualitative approach with a descriptive scope is adopted, applying dogmatic-legal and analytical methods. As a result, it is evident that the lack of essential resources in the neonatal area nullifies the physician's capacity to act, thus breaking the link of objective imputation because the physician did not create a legally unacceptable risk. Likewise, hospital shortages act as a cause of objective atypicality under the Comprehensive Organic Criminal Code (COIP), since the circumstances determine the impossibility of demanding conduct that is materially unfeasible, transferring legal responsibility to the State as guarantor of the right to health in Ecuador.