Facts
The case concerns the death of a patient following a laparoscopic bowel operation, for which the treating physician (the appellant) was convicted of negligent homicide.
Patient [D.E.] suffered from a bowel disease and underwent a laparoscopic bowel operation performed by the appellant [A.] on 16 August 2010. In the postoperative course, the patient repeatedly complained of severe abdominal pain despite pain medication. On 18 August 2010, [A.] ordered a computed tomography (CT) scan, which was evaluated together with radiologist [F.] . They did not detect any signs of a complication at the bowel suture (anastomotic leak). Subsequently, [A.] initiated further measures such as the insertion of a nasogastric tube and the administration of additional painkillers. Around 9 p.m. on the same day, [A.] was informed by the nursing staff about the patient's renewed severe pain, whereupon he reassured him by telephone and stated that no action was required. In the early morning hours of 19 August 2010, the patient passed away. The cause of death was found to be a leak in the bowel suture with leakage of bowel contents into the abdominal cavity and resulting peritonitis.
In 2016, the Regional Court of Bern-Mittelland found [A.] guilty of negligent homicide and sentenced him to a suspended fine. On appeal by [A.] and the public prosecutor's office, the High Court of the Canton of Bern in 2019 upheld the conviction but increased the sentence.
Considerations
The Federal Supreme Court dismisses [A.] 's appeal against the judgment of the High Court. It considers the lower court's findings on the violation of [A.] 's duty of care as not arbitrary:
- [A.] had misjudged the amount of free air in the patient's abdominal cavity, which indicated a complication, and failed to recognize the resulting need for further…