Oaktsamt orsakande och relevans - En rättsdogmatisk studie om gärningsculpa i vården

Sammanfattning: During the period of June 2011 until July 2013, the thorax surgeon Paolo Macchiarini carried out four transplants with synthetic trachea on three different patients at the Karolinska University Hospital. These transplants entailed the later death of all the patients. Macchiarini was notified suspicion of a crime in June 2016, causing another's death, gross felony, alternatively, causing bodily injury, gross felony. The preliminary investigation was in October 2017 closed, due to the absence of proving criminal causation. However, the preliminary investigation was later resumed and Macchiarini is now charged for three cases of aggravated assault, alternatively, three cases of causing bodily injury, gross felony. This study has investigated the criminal law concept gärningsculpa, which purpose is to distinguish relevant criminal causation between acts and the effects of the acts, within health and medical care situations. The assessment of gärningsculpa is carried out at different levels and contains different steps. The two steps which have been more thoroughly investigated are the so-called illicit risk-taking and the relevance of the act. Furthermore, this study has aimed to explain criminal causing and what it means for an act to be considered criminally relevant. The issue that has characterized this essay is whether the application of gärningsculpa is affected by the circumstance that an act is carried out by a health care professional. Another question that has been discussed is different methods of determining different acts´ relevance to an occurred effect. Mostly within gärningsculpa and partly in terms of a hypothetical test, which is used within the context of criminal law. This study has taken the position that the correlation between the application of gärningsculpa on acts taken by health care professionals is, in some situations, and depending on the nature of the act, deviating from an ordinary application of gärningsculpa for other categories of peoples.