Criminal prosecutions of physicians for grossly substandard care almost invariably involve the death of multiple patients revealing a pattern of gross negligence or reckless indifference to patient safety, says Ben A. Rich, JD, PhD, professor in the Department of Anesthesiology and Pain Medicine at the University of California — Davis Health System’s School of Medicine.
In an October 2013 case, a gastroenterologist was sentenced to life in prison after being found guilty of 27 charges, including unsafe propofol injection practices that resulted in one infected patient’s death.
"The issue that is often, and properly, raised in the context of such prosecutions is whether the criminal law is the appropriate avenue by which to approach the physician’s conduct," says Rich.
Rich says that prosecutors tend to operate as "lone rangers," disinclined to confer with medical boards or other regulatory bodies in determining whether to file charges. "They aren’t known, however, to follow malpractice claim filings looking for egregious cases that are ripe for criminal prosecution," he adds. "It is important to keep in mind the two dramatically different burdens of proof."
Beyond a reasonable doubt
In a malpractice claim, the plaintiff’s burden of proof is a mere preponderance of the evidence, meaning that the evidence is interpreted to show that it is more likely than not that the defendant physician’s conduct fell below the minimally acceptable standard of acceptable care. "In stark contrast, the burden of proof in a criminal case is beyond a reasonable doubt," says Rich.
Most criminal prosecutions of physicians involve charges that a physician’s conduct caused or materially contributed to the deaths of multiple patients, says Rich, and the burden of proof applies to each and every element of the crime. "First-degree murder requires proof of premeditation and intent, elements that would not usually be present in any physician-patient relationship, however dysfunctional," says Rich.
Most criminal prosecutions, therefore, are for one of the following:
• second-degree murder, which requires proof of a reckless act and grave indifference to human life;
• manslaughter, which doesn’t require malicious intent;
• negligent homicide, which requires proof of carelessness or indifference to patient well-being.
"A notable exception is the prosecution of Michael Swango some years ago for multiple premeditated murders of patients," says Rich. "Ultimately, Swango plead guilty and accepted a sentence of life in prison in order to avoid the risk of the death penalty being imposed upon conviction."
Mark J. Silberman, JD, a partner at Duane Morris in Chicago, says that if criminal charges brought against a physician were upheld, "at that point, arguably, the job of the malpractice attorney would be done." Silberman is a former state and federal prosecutor and former deputy chief counsel for the Illinois Department of Public Health.
The reason? If the physician’s criminal conduct was established beyond a reasonable doubt, and the criminal conduct was related to the provision of care, then the fact that the physician failed to meet the standard of care is already established.
"Individuals may be aware of a malpractice case and pushing to make it a criminal case, and individuals may also be looking to also reframe those as allegations of malpractice," says Silberman.
