Malpractice or murder? Criminalization of medical errors is a troubling trend

Physicians traditionally worried about malpractice lawsuits and license suspensions resulting from their medical decisions. Now there's an added fear of landing in criminal court or possibly jail.

By Tanya Albert, amednews staff. Oct. 22/29, 2001.

When physicians picked up newspapers a decade ago and read about a colleague charged with a crime, it was most often a crime that had nothing to do with medical decision-making.

Today that's not always the case.

Increasingly, doctors are being charged with crimes as a result of medical decisions made in the operating room, emergency department or office exam room.

"Things have changed," said Kansas surgeon and lawyer Thomas R. McLean, MD, a physician attorney who teaches at the University of Missouri-Kansas City and University of Kansas schools of medicine. "As a doctor, I can go to jail for a medical error." He has been researching the criminalization of medical errors.

Over the past couple of years, doctors have been charged with murder for prescribing pain medicine. But they've also been prosecuted for underprescribing for pain. A state prosecutor accused one physician of treating wounds in a way that violated laws designed to protect the elderly. Doctors also have faced criminal and civil charges for the way they've billed Medicare and Medicaid.

Examples are being seen in Japan and England as well.

Doctors have been charged with murder for prescribing and underprescribing pain meds.

"There's been a small but a clearly disturbing number of cases where a doctor is charged with a crime," said American Medical Association President Richard F. Corlin, MD.

Medical and legal experts are quick to point out that the number of physicians who have been charged with crimes is relatively small, and the chances of an overzealous prosecutor pressing charges remain remote.

Nevertheless, they say the trend toward criminalizing medical decisions is troubling.

"The safest way to characterize the response of our members is that they are horrified," said American Academy of Family Physicians President Richard Roberts, MD. "If these kinds of cases become too prevalent, you will see physicians altering their behavior in a way that's not good for the patient."

"Applying criminal charges to medical decisions is counterproductive," Dr. Corlin added.

Chilling cases

Although the number of physicians charged with crimes is small, the examples of doctors who have faced criminal and civil accusations are already making some physicians think twice about the way they treat patients.

Pain management is one area where court interference has made it difficult for physicians to do their jobs without fear that they might face criminal or civil charges for their medical decisions. In the past few months:

Michigan prosecutors charged an Ann Arbor surgeon with three counts of second-degree vulnerable adult abuse for care he provided to patients at two Detroit nursing homes. Surgeon Frank Paul Bongiorno, MD, has said he hasn't done anything wrong. He is believed to be the first physician charged under the four-year-old law.
A California jury found internist Wing Chin, MD, guilty of elder abuse for undertreating a patient's pain. Dr. Chin prescribed Demerol (meperidine hydrochloride, Sanofi Pharmaceuticals Inc.) to an 85-year-old man to ease the back pain he complained of when he arrived at an area medical center. He sent the patient home with Vicodin (hydrocodone bitartrate and acetaminophen, Knoll Laboratories). A jury awarded the family $1.5 million. The judge reduced that to $250,000, the state limit on general damages in medical malpractice cases.
Denis Deonarine, MD, a Florida family physician, faces murder charges. He is accused of improperly prescribing a painkiller that contributed to a 21-year-old man's death. The charge is part of an 80-count indictment a Florida grand jury handed down that also accuses the physician of racketeering and drug trafficking involving oxycodone hydrochloride, alprazolam and diazepam.
Utah psychiatrist Robert Allen Weitzel, MD, awaits a new trial on charges that he overmedicated five elderly patients, ultimately resulting in their deaths. He is charged with negligent homicide and manslaughter.

"It's getting more and more difficult to practice medicine because whatever you do can be wrong," said Tucson, Ariz., internist Jane Orient, MD, executive director of the Assn. of American Physicians and Surgeons.

The association has publicly supported Dr. Weitzel and filed a court brief on his behalf.

What's driving the trend?

The shift toward criminalization of medical decisions likely started during the years Bill Clinton was president, experts say.

Among the regulations and laws imposed on the practice of medicine in the late 1980s and 1990s were physician self-referral laws that made it illegal for doctors to refer patients to services in which they had a financial interest. In addition, the Clinton administration took an aggressive approach to rooting out Medicare and Medicaid fraud by filing criminal and civil charges against doctors officials believed were cheating the system.

"I don't see it changing soon," said health lawyer Harvey Tettlebaum, a partner at Husch & Eppenberger in Jefferson City, Mo.

Several things seem to be driving prosecutors' willingness to charge doctors with crimes for their medical decisions. The profession's reputation isn't as strong as it once was, and physicians are making more complicated decisions than ever before.

New technology has given physicians more options for treating their patients, but that means they have even more decisions to make when choosing the best way to care for their patients. And what medical decision will result in the best outcome for a particular patient isn't always crystal clear, especially in end-of-life care.

"Medicine isn't a precise science," Dr. Roberts said. "If the science about the right thing to do isn't there, who is the DA to step in and say what has to be done?"

Dr. Roberts said that on some topics, every state Medicare peer review organization has defined different standards for the best way to handle the same procedure.

"If I can do 175 different tests for a senior in a nursing home ... and I only do 29 of them, will I be held criminally liable?" he questioned. "As a profession, we have so much that's not defined or clear."

But prosecutors are not the only ones feeling bold enough to second-guess physician decisions.

"Patients and the family certainly are part of the threat," Dr. Orient said.

Patients and their family members have higher expectations about what medical advances should be able to be provided, making them more likely to ask prosecutors to pursue criminal and civil charges.

"Basically, everybody and their brother think they can make medical decisions," Dr. McLean added.

What's next

Physicians and legal experts don't expect criminal and non-malpractice civil cases filed against physicians to disappear from the judicial landscape anytime soon.

Dr. McLean said physicians and the medical system as a whole need to do three things to help make that happen.

First, he said, physicians need to reclaim the trust they have lost since managed care came into medicine, some of which was lost after patients learned that some HMO contracts rewarded physicians who ordered fewer tests.

"Until doctors are viewed as acting in the patients' best interest, that is one thing that will continue to fuel the trend," Dr. McLean said.

Second, the nation needs to change the way it pays for medical care. Now, employers pay much of the cost for health insurance. They have tried to contain those costs by shifting to managed care, but that hasn't worked.

Third, Dr. McLean believes the False Claims Act, which is driven by whistle-blowers, needs to change.

Physicians nationwide have faced criminal and civil charges under the act. The government uses information from citizens to build cases against doctors they believe are defrauding Medicare and Medicaid.

Even in cases where the physician is cleared of any wrongdoing, hundreds of thousands of dollars are spent in legal defense.

Also, the accusations tend to take a physical toll on the doctors, and in some cases physicians have been forced to close their practices.

Dr. Orient agrees that the law needs to change so there is more allowance for honest mistakes. "They are using the False Claims Act in ways that weren't intended," she said. "We also need to repeal some laws, HIPAA [the Health Insurance Portability and Accountability Act of 1996], for example."

But legislative changes aren't likely anytime soon, so Tettlebaum suggests that one way for physicians to protect themselves is to approach the potential for criminal charges as a risk management issue.

To prove criminal charges, prosecutors need to prove that there was intent for the bad thing to happen, he said.

"This is no different than any other risk management issue," Tettlebaum said. "Corporate compliance programs are a good way to prove that the intent wasn't there."