Note that chemical impairment is no longer accepted as an excuse for error. Just as a charge of driving while intoxicated that involves bodily injury may be tried as a felony, surgical damage done while intoxicated is now generally prosecuted as criminal negligence.3
In most criminal prosecutions for malpractice, however, expert testimony is required to 1) attest to the relevant standard of care and 2) characterize the defendant’s actions as a marked departure from such a standard. Deviating from accepted modes of treatment, or employing dubious approaches known to be highly risky, constitutes such a departure.
The applicable standard of care is defined locally and varies from jurisdiction to jurisdiction. Each societal unit determines and defines the limits of acceptable conduct by its professional members, beyond which certain actions become intolerable. (An example of this variability is that, in 1991, an ObGyn in the United States had, on average, been sued three times, but the typical ObGyn in the State of New York had been sued eight times.13)
Furthermore, those societal definitions of “acceptable conduct” may be influenced by prevailing social attitudes about such charged issues as abortion, sexual promiscuity, faith healing, or sedation at end of life.
Repeat performances
Physicians who have been found guilty of criminal malpractice don’t seem to learn from experience. They continue to produce similar adverse results when they treat particular medical problems. Consider Benjamin: Five times, he caused a life-endangering uterine perforation during gynecologic procedures before the fatal episode described earlier occurred. And Kvlana: nine stillborn and neonatal demises in 11 years as he persisted in his grossly deficient practice of managing labor. This sort of repetitive behavior, constituting a pattern of negligence, is another invitation to criminal prosecution.
Depraved indifference; reckless endangerment
The unwarranted delay in dealing with a postabortal hemorrhage led, in Benjamin’s case, directly to the patient’s death. Such a delay displays either a lack of understanding of basic physiology or a depraved indifference to human life. Benjamin’s behavior was not simply a matter of faulty medical judgment; it was a willful repetition of precarious substandard practices that constituted reckless endangerment. His criminally culpable error was twofold: the recurrence of uterine perforation (a risk he should have been aware of because it had happened in prior surgeries) and, more so, his willful neglect of a bleeding patient.
What might the future of criminal malpractice be?
More recent criminal prosecutions may give “good-faith” physicians pause and make them wary of entering into particularly troubled areas of medical practice:
- Chronic pain Fear of prosecution by the US Drug Enforcement Administration (DEA) has had a chilling effect on the practice of physicians who prescribe opioids for chronic pain.
- Late-term abortions Federal legislation criminalizing so-called partial-birth abortions has, similarly, influenced the performance of all second-trimester abortion.
- End-of-life care Dispute over the legitimacy of terminal sedation has placed hospice physicians in legal jeopardy in some jurisdictions.
- Physician-assisted suicide Legal only in the state of Oregon, this practice has already sent its most prominent practitioner to jail. Legislation to legalize the highly controversial procedure has been introduced in other state legislatures.
- Prosecutors building support for re-election This appears to have been the impetus for Louisiana’s Attorney General charging Anna Pou, MD, with murder in the deaths of four elderly New Orleans nursing home patients stranded by Hurricane Katrina in 2005. Dr. Pou administered to her patients what she believed to be pain relief and comfort in the form of morphine and midazolam. The grand jury refused to return the indictment.1
Reference
1. Okie S. Dr. Pou and the hurricane—implications for patient care during disasters. N Engl J Med. 2008;358:1-5.
Is criminal prosecution necessary?
The legitimate desire of society 1) for its members to receive diligent treatment and 2) to prevent the repetition of inept or dangerous medical practices is central to the question posed atop this section. Consumers of health care are, increasingly, aware that the usual processes of professional discipline and state regulation do not always protect patients from harm: Dangerous physicians have eluded attempts to discipline them by moving from one jurisdiction to another, always a step ahead of attempts to control them. A civil malpractice suit, however large the settlement sometimes is, does not always deter a defendant from repeat performances of his or her negligent behavior.
It is reasonable to expect prosecutors to become more active in filing criminal charges as public frustration with inadequate self-policing grows.14 The Benjamin and Klvana cases are striking instances of the failure of government licensing agencies to take timely action to protect the public from harm. And, so, in the most egregious cases of physician misconduct, society resorts to criminal prosecution. Will such prosecutions become more frequent? The answer depends on how effectively quality assurance measures in health care are implemented.