For The Defense, July 2010 - DRI Today

M E D I C A L L I A B I L I T Y A N D H E A LT H C A R E L A WProfessor Hoffmann rationalizes thatcriminal prosecution has little deterrenteffect because the physician’s actions inthese negligence cases are not intentional.Additionally, she discussed how criminalprosecution can create an “oppositionalculture” and “anti- deterrent effect” amongphysicians, who may group together andview such prosecutions as illegitimate. SheThe concern is that juriesmay place more weighton the issue of state ofmind than the issue ofthe standard of care.also observed that rehabilitation for physiciansin the form of mentoring and retrainingis unlikely to be achieved within thecriminal justice system. Finally, there isthe goal of retribution, or repayment forthe offense that was committed. To ProfessorHoffmann, retribution for a criminalaction is unjustified if the element ofintent is lacking. Hoffmann, PhysiciansWho Break the Law, supra, at 1084.These problems illustrate that medicalnegligence as a criminal offense is one thatneither establishes a consistent standardwith which to prosecute nor fulfills theobjectives of criminal punishment. Therefore,medical negligence should remain acivil matter.The Lowest Culpable State of Mind forCriminal Medical Conduct Should BeRaised to the Level of RecklessnessHealth care professionals should not begiven a free pass from criminal liabilityfor mistakes made in their treatment ofpatients. The American Medical Association(“AMA”) itself, though opposed tothe prosecution of medical negligence,concedes that reckless conduct should becriminally culpable. The consensus is thathealth care professionals should be prosecutedwhere their conduct is reckless.Recklessness is a gross deviation from thestandard of care. If the physician or nurse38 n For The Defense n July 2010acted with a reckless state of mind, thenthe provider was “taking a substantial andunjustifiable risk, but consciously ignoredthe risk and continued the dangerous conduct.”Filkins, Criminalization of MedicalNegligence, supra, at 508.Negligence, on the other hand, occurswhen the health care provider was unawarethat he or she was taking a substantial risk.Recklessness should be criminally prosecuted.But, negligence should strictly beresolved in civil court. Negligence includespatient falls, bed sores, malnutrition, andother unintentional acts alleged in the traditionallong-term care case.Using Dr. Murray again as an example,the current criminal law dictates that thejury only has to find that Dr. Murray shouldhave known administering Propofol outsideof a hospital setting was a substantialand unjustifiable risk, and not whether hewas actually aware of the risk. Karas andO’Neill, What Is Involuntary Manslaughter?,supra.This should not be the standard. Dr.Murray’s knowledge of proper proceduremust be a factor in determining his criminalculpability. In this instance, a strongargument could still be made that Dr. Murray’sactions rise to the level of recklessness.One could try to show that, as a physician,he must have had knowledge that Propofolis usually administered in a hospital setting.If the prosecution can establish thathe had such knowledge, then it could alsodemonstrate that he disregarded the hazardsand decided to take the risks associatedwith administering Propofol in ahome setting.If the state can establish these facts,then Dr. Murray should face a criminaljury trial. This is a more effective standardbecause it takes into account the healthcare provider’s knowledge of existing protocol.Any standard short of actual knowledgeof the risk should be governed by thecivil system. This is especially true in thelong term care setting where nurses aretragically prosecuted for patient falls andother allegations of simple negligence. Thegovernment will argue that requiring thestandard is an attempt to exempt healthcare professionals from criminal negligence.Filkins, Criminalization of MedicalNegligence, supra, at 508 (footnoteomitted). However, applying the criminallegal system to medical negligenceis an excessive and ineffectual endeavorbecause it fails to consider the importanceof determining an objective standard ofcare and because it does not truly achievethe goals of criminal punishment. Accordingly,health care providers should onlyface criminal prosecution when their conductrises to the level of recklessness.Civil Liability Is the PreferableLegal System for ResolvingActs for Medical NegligenceThe preferable option is for actions of medicalnegligence to remain strictly a matterof civil liability. Civil liability for medicalnegligence is itself not a perfect system, butit provides redresses for civil wrongs thathave been committed.A civil claim for medical negligence providesthe plaintiff patient with the opportunityto receive compensation for injuries,and it gives the health care provider achance to reform conduct without theunnecessary punishment of prison.As compensation for injuries, plaintiffsare potentially entitled to economicand non- economic damages. Economicdamages enable the plaintiff to recoverfor objective monetary losses such as lostwages and medical expenses, while noneconomicdamages allow recovery for subjective,non- monetary losses such as painand suffering, loss of consortium, and lossof enjoyment of life. Ending the Confusion:Economic, Non- Economic and PunitiveDamages, Health Coalition on Liability andAccess, http://www.hcla.org/factsheets/2003-23-Damages.pdf. These two categories of recoveryprovide the plaintiff with a wide-rangeof potential recoveries for negligent conduct.In many cases, juries may also assesspunitive damages as a means to punish thedefendant health care providers to preventsimilar future negligence.In addition to compensating the injuredpatient, there are non- monetary methodsof punishing negligent health care providersthat negate the need for a prison sentence.These punishments are imposed bymedical and nursing boards. Each statemaintains its own medical board, whichis tasked with monitoring physician conductand investigating complaints receivedfrom the public. State nursing boards carryNegligence, continued on page 88