Medical malpractice is almost always addressed through civil litigation or professional discipline. However, in rare and exceptional circumstances, surgical or perioperative errors can give rise to criminal liability. These cases are important not because they are common, but because they illustrate the outer boundary between negligence and conduct that courts and prosecutors consider so egregious that it warrants criminal sanction.
Both in Canada and the United States, criminal liability requires proof of conduct that goes well beyond ordinary negligence. In Canada, the Criminal Code standard for criminal negligence requires a “marked and substantial departure” from the conduct of a reasonably prudent person in the circumstances. In the medical context, courts are reluctant to criminalize clinical judgment errors. As a result, prosecutions are exceedingly rare.
A review published in the Canadian Medical Association Journal noted that over a span of approximately 25 years, only a handful of Canadian healthcare providers faced criminal negligence causing death charges, with very few convictions.
One of the clearest historical examples involves an anesthetist in Saskatchewan who was convicted of criminal negligence causing bodily harm after a patient suffered catastrophic brain injury when oxygen supply was interrupted while the physician was absent from the operating room. The case is notable because it involved a fundamental breakdown in basic patient monitoring and safety.
More recently, criminal charges were laid in Quebec against an anesthesiologist following the death of a patient after surgery. Ultimately, the physician was acquitted on all charges.
The Canadian experience suggests that criminal liability is most likely to arise not from a technical surgical error, but from a profound failure in basic safety obligations, such as abandoning a patient, failing to monitor vital signs, or ignoring obvious risks.
The United States has seen a greater number of criminal prosecutions arising from surgical care, although these cases remain rare relative to the volume of medical malpractice litigation.
Perhaps the most well-known case is that of Texas neurosurgeon Christopher Duntsch, who was convicted and sentenced to life imprisonment after a series of catastrophic surgical outcomes. The prosecution framed the case not as mere incompetence, but as conduct that knowingly placed patients at extreme risk of harm.
In California, a cosmetic surgeon was convicted of involuntary manslaughter following a patient’s death during a liposuction procedure performed in a non-accredited facility without appropriate monitoring equipment or qualified anesthesia personnel. The appellate court upheld the conviction, pointing to multiple systemic safety failures.
More recent cases continue to illustrate the same pattern. In Colorado, a plastic surgeon was convicted of attempted reckless manslaughter after failing to call emergency services for hours when a patient went into cardiac arrest during surgery.
There are also ongoing prosecutions. Quite recently in Florida, a surgeon has been charged with manslaughter after allegedly removing the wrong organ during surgery, leading to a patient’s death.
Across jurisdictions, the fact patterns that give rise to criminal liability tend to share common features:
Courts are careful to distinguish between unfortunate outcomes, even those caused by negligence, and conduct that is so dangerous that it becomes a matter of public safety and criminal law.
Criminal prosecution of surgical error remains the exception, not the rule. In Canada in particular, it is extraordinarily rare. However, these cases serve as a reminder that where conduct crosses the line from negligence into recklessness or a marked and substantial departure from basic standards of care, the consequences may extend beyond civil liability.
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