Stuff of nightmares: Criminal prosecution for malpractice

What exactly puts a physician at risk of such a criminal charge?

The usual remedy is a civil suit

To understand why some medical actions constitute a crime, first let’s analyze the far more usual redress for a bad outcome—the malpractice suit. To be successful in such a suit, a plaintiff must prove four elements (see “Civil malpractice carries 4 elements”):

• duty
  
• breach
  
• damage
  
• causation.
  

A civil suit for malpractice is brought by the injured party or by his or her representatives. The compensation sought by the plaintiff is monetary.

CASE 2

Dr. David Benjamin, repeat offender. Benjamin’s license had been revoked for gross incompetence after the fifth occasion on which he perforated a patient’s uterus during a gynecologic procedure. Unfortunately for his patients, Benjamin was given a window of opportunity to do more harm while he appealed the revocation of the license.

During that time, Benjamin performed an in-office abortion on a patient at 20 weeks’ gestation; state regulations at the time required that a second-trimester termination be performed in a hospital.

After the abortion, the patient bled excessively—the result of perforation of the uterus (a 1” × 4” wound) and cervical laceration. Benjamin was aware of the heavy bleeding but placed the patient in a clinic corridor while he performed an abortion on another patient. The first patient remained in the corridor for an hour, without adequate monitoring, until she went into shock and cardiac arrest. According to the testimony of witnesses, emergency medical services staff were misinformed about the patient’s condition, further delaying timely intervention.

Benjamin was indicted for second-degree murder after a grand jury found “depraved indifference to human life.” He was tried, convicted, and sentenced to imprisonment for 25 years to life.^6-10

What made his conduct criminal?

What was he thinking?

Criminal malpractice is characterized by the same four elements as civil malpractice, and adds a fifth element: The physician’s state of mind (in legal terminology, mens rea). That state of mind can range from inattention to premeditation.

Here’s an example: One of Klvana’s residency faculty testified that the defendant-physician was “cavalier and casual in his approach and his duties.” Klvana’s training and experience should have been enough to alert him to the need for appropriate monitoring during augmented labor but, apparently, he chose to ignore these accepted standards of practice. He had, for example, used oxytocin stimulation by direct infusion and without fetal monitoring (and in his office, not the hospital) for a postdate gravida who had had two prior cesarean sections. Her newborn died of perinatal asphyxia.

Klvana repeatedly used this risky, life-endangering protocol, exhibiting what can be called a “wanton disregard for human life” and an indifference to his patients’ safety. His preference for more precarious, office-based delivery may have been the result of his difficulty obtaining admitting privileges.

Similarly, Benjamin may have been motivated by greed when he chose to perform an abortion on a second patient instead of attending to the patient who was bleeding to death in the corridor after an earlier procedure.

The standard of care

In some prosecuted cases, the level of gross negligence is so high that proving that a departure from the standard of care has occurred is unnecessary. A case in point is the growing number of physicians who are under the influence of drugs or alcohol when they treat patients. As early as 1887, courts recognized as grossly negligent surgeons who operated while drunk.¹¹ It is estimated that 10% to 15% of American doctors have had, or will have, a substance abuse problem sometime in their life. Many continue practicing while undergoing treatment for the illness.¹²