Aesthetic Medicine Toning Laser Case: An Analysis of Theories of Probability to Prevent a Prohibited Result and Heightened Risk of Prohibited Result in Criminal Medical Negligence Cases
In applying the objective imputation theory, the court held that although the defendant violated the standard operating procedures for laser treatments to remove dark spots on the right face of the complainant and caused bodily harm classified as the first and second-degree burn, the result cannot be objectively imputable to the defendant. More precisely, the viewpoint taken by the court is derived from the theory of probability to prevent a prohibited result (i.e. lawful alternative behavior). This comment first discusses the element of criminal negligence offense causing bodily harm and death, and then reviews the theory of probability to prevent a prohibited result and the theory of heightened risk of prohibited result in deciding the element of breach of duty of care. Finally, this comment will assess which one can provide a more acceptable solution for criminal medical negligence cases.