Thessaloniki Three-Member Court of Appeal (Criminal) 3127/2009
President: Antonios Tsalaportas.
Judges: D. Peristeridou-Konstantinou, Th. Yiatropoulou.
Prosecutor: Achilleas Zisis.
Lawyers: N. Ioannidis – V. Vasileiadis, E. ChatzIargyriou.
Whereas the appeal under consideration has been lawfully and timely filed, it must be formally admitted and examined on its merits.
Whereas from the testimonies of the prosecution witnesses examined before this Court, the reading of the minutes of the first-instance trial, as well as the documents lawfully cited, invoked and produced by the parties in the minutes of this trial, and the defendant’s statement in court, the following were proven:
According to Article 314 para. 1(a) of the Penal Code, “Whoever through negligence causes bodily harm or damage to another’s health shall be punished with imprisonment of up to three years.” From this provision, in conjunction with Article 28 of the Penal Code, which defines negligence, it follows that in order to establish the offence of negligent bodily harm it must be ascertained, on the one hand, that the perpetrator did not exercise the required level of care that any reasonably prudent and conscientious person would have exercised under the same circumstances, based on legal rules, common practice and ordinary experience and logic, and, on the other hand, that he could, based on his personal circumstances and abilities and particularly due to his service or profession, have foreseen and avoided the criminal result. Furthermore, a causal link must exist between the act or omission and the resulting harm.
According to prevailing legal theory and case law, a doctor incurs criminal liability for negligent bodily harm where the result is due to a violation of the generally accepted rules of medical science concerning diagnosis and treatment, and where his conduct does not conform to the objectively required duty of care. As regards the required standard of care, it is that of the average doctor under the same or similar circumstances. For a specialist doctor, the standard is higher than for a non-specialist, as it is reasonable to expect greater care in matters of their specialty.
Moreover, the duty of care depends on the specific medical act and therapeutic need. In medicine, it is accepted that “there are no diseases but patients”, and that medical rules are relative and must be applied in light of the specific circumstances of each case. Objective conditions include the findings and symptoms observed in the patient, which guide the doctor’s assessment and decisions based on scientific knowledge.
In negligent offences, Greek legal theory and jurisprudence also require the establishment of so-called “external negligence”, understood as the objective breach of generally accepted technical rules or standards of care. Once this is established, the causal link between the negligent conduct and the result must be examined.
Bodily harm may also be committed by omission, provided the conditions of Article 15 of the Penal Code are met, namely where the perpetrator has a specific legal duty to act and his omission constitutes a causal condition for the result. In the case of doctors, this duty arises from the law and from their position as guarantors of the patient’s health and safety.
In the present case, it was proven that on 29.10.2002 the civil claimant, then aged 20, underwent a tonsillectomy under local anesthesia at the ENT department of a General Hospital, performed by the defendant. After the operation, she showed signs of respiratory distress and rash, which subsided after medication. The defendant examined her, found her postoperative course normal, and discharged her the next day with instructions for medication and re-examination.
During follow-up examinations, she was found to have reduced mobility of the soft palate, resulting in nasal speech. Further examinations confirmed paresis of the soft palate. Various tests and speech therapy were recommended. Medical testimony established that this condition may occur as a complication of tonsillectomy in rare cases and is not necessarily due to negligence.
However, it was also proven that immediately after the operation the patient was unable to speak normally and exhibited nasal speech due to incomplete closure of the nasopharynx. This condition was attributed exclusively to the defendant’s negligence during the surgical procedure, specifically to improper handling of surgical instruments, which injured the glossopharyngeal nerve, resulting in reduced mobility of the soft palate.
Although expert reports mentioned multiple possible causes, they did not conclusively exclude negligence. A later medical opinion confirmed that the condition coincided with the operation and likely resulted from surgical injury or scar tissue formation.
Therefore, it was established that the defendant, through incorrect surgical handling and in violation of accepted medical standards, caused iatrogenic injury beyond what is normally expected, specifically damaging the glossopharyngeal nerve and causing long-term nasal speech.
Accordingly, the defendant must be found guilty of the offence attributed to him, as stated in the operative part of this judgment.