Patients often encounter the concepts of medical malpractice and medical error, however it is very important to know the difference between these two on the appearance of the same term.

The material regulation that regulates the issue of medical error is the Law on Patients’ Rights. It is important to note that this regulation only indirectly mentions medical or professional error in terms of compensation for damage according to the general rules of liability for damage prescribed by the Law on Obligations. The definition of professional error is not explicitly stated, legal guidelines are given in terms of interpretation, so the law prescribes that “A patient who, due to a professional error by a health worker, i.e. a health associate in the provision of health care, suffers damage to his body, or a professional error causes a worsening of his health condition, has the right to compensation for damage according to the general rules on liability for damage”. It is also important to note that according to the Law on Patients’ Rights, a medical error does not have to be made only by a doctor, but it can also be another healthcare worker, i.e. an associate, therefore the law gives a wider possibility of interpretation of who can be a harm in the relationship with the patient.

The legal nature of responsibility, which is prescribed by the Law on Patients’ Rights, is material – legal responsibility, that is, it is about responsibility for damage. However, the difference between medical or professional error and negligent treatment is precisely in the form of responsibility.

Negligent treatment, i.e. negligent provision of medical assistance, is prescribed as a criminal offense by the Criminal Code of the Republic of Serbia. The Code prescribes the following: “A doctor who, when providing medical assistance, applies an obviously inappropriate means or an obviously inappropriate method of treatment, or fails to apply appropriate hygiene measures, or in general acts in an obviously negligent manner and thereby causes the deterioration of a person’s health condition”. The Criminal Code clearly prescribed the definition of negligent provision of medical care, which includes medical error, but the criminal offense was committed only if the patient’s health condition worsened. Apart from the consequences reflected in the deterioration of the patient’s health condition or the most severe form, the death of the patient, it is important to know that the law foresees four ways of executing this act. The first way is if the doctor used an obviously unsuitable tool, the second way is that the doctor used an obviously unsuitable method of treatment, the third way is that the doctor did not apply appropriate hygiene measures and the fourth way is that the doctor acted in general with obvious negligence. All these methods of execution must lead to a consequence in order for the offense to be committed in the sense of the Criminal Code.

In practice, both professional error and negligent provision of medical care are very complex concepts that need to be proven. Given that in order to determine the existence of either civil or criminal liability, the behavior of the healthcare worker must be related to the possible consequences that the patient suffers, which is proven by the expert testimony of an expert in the field of medicine who can reach conclusions based on medical practice and protocols whether there is an omission in the treatment of the patient and whether this omission led to the consequence.