By Kelly Bae
In the present-day United States, medical error by health care providers is the third leading cause of death. Recent studies have estimated errors to account for as many as 251,000 deaths annually, making it significantly higher than in other developed countries. When health care providers and physicians are sued for negligent acts that result in patient injury, such medical malpractice cases are usually advanced as civil suits. Negligence occurs when a health care professional or provider fails to strictly follow appropriate standards of care. The victims then need to prove that substandard medical care resulted in the injury. If proven, patients are compensated and may recover damages for medical costs, lost income, pain and suffering, disability or disfigurement. As such, civil suits for malpractices are far more common than criminal cases.
Criminal prosecution for medical errors and malpractice were rare in the United States. Between 1809 and 1981, there were only about 15 appellate cases of criminal medical malpractice. In recent years, there has been a rise of criminal medical malpractice cases and criminal prosecutions. Some of the common and obvious criminal acts that are often seen in the health care industry are: insurance fraud, illicit sexual contact, illegal distribution of narcotics, and tax evasion. Aside from these obvious examples are cases that are difficult to distinguish whether the medical wrongdoing is a mere negligent medical error or a criminally culpable one. In such cases, if the patient or patient’s family sues their physician, the physician’s state of mind is what determines whether the person is culpable by the prosecution.
To bring a civil personal injury claim, four elements must be met: duty, breach, damage, and causation. Criminal malpractice adds a fifth element, the physician’s state of mind, also known as “mens rea.” This state of mind ranges from inattention or reckless, to premeditation. Determining the physician’s state of mind can depends on whether the physician had a depraved indifference to human life, lacked a timely response, recklessly endangered the patient, or performed risky therapies. A physician may face manslaughter or even a murder charge, especially when a patient suffers a lethal injury, and results in death under a physician’s care.
The following are recent criminal malpractice cases.
The Case of Over-Prescription
In the early 2018, former doctor Chris Christensen was sentenced to 20 years in prison for his role in the overdose death of two patients as negligent homicide, nine counts of felony endangerment and 11 counts of distribution of dangerous drugs. The prosecution against Christensen argued that he distributed controlled substances outside the course of a professional practice and without a legitimate medical purpose. The case focused on 11 selected patients and the prosecution revealed that in nearly all of these cases, Christensen neither contacted the patients’ former physicians nor reviewed medical records before prescribing drugs such as methadone, oxycodone and Dilaudid.
The Case of “Dr. Death”
In February 2017, a Dallas neurosurgeon named Christopher Duntsch, also known as, “Dr. Death,” was convicted of five felony counts of aggravated assault of serious bodily injury and sentenced to life in prison. Duntsch was a trained, licensed physician who operated on 38 patients, leaving 31 paralyzed, seriously injured, or dead from surgical complications, over a span of two years. The prosecution during the trial alleged that he was not only incompetent but carried malice toward his patients. They argued he maimed his patients intentionally that put them in grave danger.
The above cases are examples of extreme circumstances where medical malpractice rose to the level of a criminal offense, especially because the patients had died under the physicians’ care. In the world of medicine, first-degree murder requires that the physician premeditate the act and had the intent to harm. Second-degree murder requires the physician to commit a reckless act of depraved indifference to human life. On a lesser degree, a charge of manslaughter would require the physician kill without any malice aforethought, but due to their gross negligence. Lastly, negligent homicide by a physician means there was a death by their carelessness, inattention, or indifference. Since a physician cannot always guarantee a risk-free 100 percent positive outcome in a procedure or treatment, the patient or the family has the burden to prove whether the outcome was caused by the physician’s actions. If they believe that it was, the case may institute a civil suit action for malpractice, and in some cases, as seen above, a prosecutor will decide that the facts warrant additional criminal charges.
Lowering the Criminal Culpability Bar?
Usually, the issue with distinguishing the level of charge is not in determining if the physician committed first or second-degree murder, but whether the physician’s negligent conduct is of a civil or criminal nature. To cross from civil to criminal negligence, there must be a gross deviation from the standard of care and the physician must also have had a criminally culpable state of mind. This degree of negligent is required to be beyond a mere civil negligence or a mere “breach.” The standard is measured with the ordinary degree of knowledge and skill commonly possessed by physicians in the same field of practice. This standard draws the line between criminal medical malpractice and civil medical liability. This also means that although negligent conduct may constitute a breach of duty of care, it is not necessarily a crime unless the physician takes an unjustifiable risk of causing harm to the patient. If the risk taking is objectively unjustifiable and the risk was substantial, the physician is then criminally negligent.
Currently, the American Medical Association acknowledges that recklessness or gross deviation from the standard of care should be criminally culpable, but it strongly opposes criminal prosecution of medical negligence. Similarly, many believe that recklessness should be criminally prosecuted, but the matter of negligence should remain a civil matter. It is true that with the growing numbers of “preventable” medical errors, health care providers should never be given a free pass from being liable for the gross mistakes made while treating patients.
What can be done to avoid deaths caused by medical errors? Would it realistically be possible to lower the bar and criminally charge physicians who are merely negligent in diagnosing patients or during treatments? Would doctors be able to perform without feeling one mistake can lead to years in prison? Probably not. It will also be harder for a patient to trust their physician knowing that they may possibly one day be a “criminal” if they made a mistake. Drawing a clear line between a medical incompetence and mere bad luck will continue to be tricky, but criminalizing the doctors for their negligence will not be the answer in combating medical errors. Perhaps imposing stiffer penalties while remaining “civil” is a better place to start.
Kelly Bae is a 2L at Suffolk University Law School. Kelly attended University of Georgia for undergraduate, where she earned a degree in International Relations. She is a staff member in the Journal of Health and Biomedical Law, currently working on a note regarding the influence of telehealth in clinical trials and how the innovation affects federal regulations. Kelly is interested in pursuing health care law in Boston, MA.
Resources Used & For Further Information
https://www.foxnews.com/health/when-does-medical-malpractice-become-criminal
https://www.hg.org/legal-articles/when-medical-malpractice-is-a-crime-39114
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/
https://www.propublica.org/article/dr-death-christopher-duntsch-a-surgeon-so-bad-it-was-criminal