CRIMINAL LIABILITY FOR MEDICAL MALPRACTICE IN ECUADOR

Progress in Science and Technology in the 21st century is immeasurable. This has generated a risk society, in which the Legal Sciences and Criminal Law, in particular, intervene constantly to regulate the behaviors that arise around the current social transformations. In this context, health management has become the protagonist of scientific changes, with the application of new methods and clinical and surgical technical procedures, which in turn have led to the permanent modification of protocols and clinical practice guidelines. Doctrinal assumptions on criminal liability for medical malpractice in Ecuador are analyzed. A legal-doctrinal systematization methodology was used. The right to life is analyzed as a protected legal right in the context of the risk society, and the way in which it impacts on Criminal Law. The doctrinal assumptions of criminal liability for medical malpractice are founded, and a normative analysis is made from the Constitution and the Organic Integral Penal Code. As main results, a preventive lex artis is proposed to avoid the criminalization of medical practice, and thus strengthen the knowledge of the objective duty of care, which is based on determining the standard or requirement of care under which a subject should have acted, taking into consideration that the harmful result of a legal good could have been foreseen and avoided.