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, AMNews 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.

"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. [...]