When Does Medical Negligence Become Criminal?
For the Defense – July 2010
By Heidi A. Barcus and Eric Shen

When should a health professional go to jail for providing medical care?  The indictment and prosecution of health care providers is everyday news.  With greater frequency, state attorney generals are showing up unannounced at facilities armed with badges and subpoenas.  Practitioners are facing criminal prosecution and prison time is a very real possibility for these providers.  While some suggest that health care providers should simply obey the law and avoid performing any criminally negligent conduct, this is easier said than done.  The difficulty is in determining at what point and under what standard the health care provider’s negligent conduct turns into a crime.

The purpose of this article is to discuss instances in which negligent conduct is criminal, the problems associated with prosecuting medical negligence, and the reasons why civil liability should ultimately be the sole legal system for resolving medical negligence.

The Prosecution of Criminal Medical Negligence Is a Growing Trend
The prosecution of criminal medical negligence was once a relatively uncommon occurrence.  Between 1809 and 1981, there were only around 15 reported appellate cases.  James A. Filkins, With No Evil Intent: The Criminal Prosecution of Physicians for Medical Negligence, 22 J. Legal Med. 467, 472 (2001).  Yet, the indication is that these types of cases are growing.  There are apparently no comprehensive statistics on the subject, but combined figures from three recent law review articles have identified nearly 30 cases of criminal prosecution against physicians between 1981 and 2005.  Diane E. Hoffmann, Physicians Who Break the Law, 53 St. Louis U. L.J. 1049, 1082 (2009).

The most well-known and publicized recent example of a physician accused of criminal medical negligence is Dr. Conrad Murray, the personal physician of deceased singer Michael Jackson. Dr. Murray was arrested and charged with involuntary manslaughter in the death of Jackson.  He is alleged to have been grossly negligent in administering an anesthetic called Propofol to Jackson, the consequences of which apparently led to his death.  Propofol is a drug that is ordinarily administered in a hospital setting where medical equipment can monitor the patient’s condition, but Murray administered the drug at Jackson’s residence. See, Daniel B. Wood, Case Against Michael Jackson’s Doctor Centers on Gross Negligence, The Christian Science Monitor, Feb. 8, 2010, http://www.csmonitor.com/USA/Society/2010/0208/Case-against-Michael-Jackson-s-doctor-centers-on-gross-negligence.

The criminal pursuit of health care professionals is not limited to just physicians.  Currently, states across the country are prosecuting nurses and nursing assistants for neglect of elderly patients in nursing homes.  The concern and justification is to protect one of the most vulnerable demographics of the adult population from harm.  See, Abuse of Our Elders: How We Can Stop It, 10–12 (United States Senate: Special Comm. on Aging July 18, 2007).
These recent examples demonstrate that prosecution of criminal medical negligence is a growing trend.  With these increasing numbers, there is a greater concern regarding how medical negligence is applied in the criminal system and the difficulties that are associated with applying those standards in a criminal setting.

At What Point Does an Act of Negligence Become Criminal Conduct?
There is no clearly definable point at which a health care provider’s negligence results in criminal culpability.  Amy Cook, Criminal Medicine: When Malpractice Turns to Manslaughter, Feb. 9, 2010, http://crime.suite101.com/article.cfm/criminal-medicine.
To cross the line from civil to criminal negligence, there must be a “gross or flagrant deviation from the standard of care.” In addition, the health care provider must also have a criminally culpable state of mind.  A health care provider charged with criminal medical negligence does not necessarily cause intentional harm.  Instead, a negligent state of mind involves a situation in which the provider “should have been aware” of a “substantial and unjustifiable risk” but was not.  James A. Filkins, Criminalization of Medical Negligence 507, 508, Legal Medicine 7th ed. (S. Sandy Sanbar ed., 2007) (footnote omitted). 

Dr. Filkins’ research suggested that there were particular patterns of physician conduct that not only influenced the prosecutor’s decision to file charges against the physician, but these same patterns also influenced the trier of fact when determining whether that physician was criminally culpable.  Filkins, Criminalization of Medical Negligence, supra, at 509; Filkins, With No Evil Intent: The Criminal Prosecution of Physicians for Medical Negligence, supra, at 492.  These patterns of conduct consisted of physicians ignoring recurrences of the same problems, failing to act in a timely manner, and the appearance of improper motive, which involve such actions as “practicing outside of one’s area of expertise” or “attempting to cover up a clinical mistake.”  Filkins, Criminalization of Medical Negligence, supra, at 509.

Using Dr. Conrad Murray as an example, the prosecution will only need to prove that he should have been aware of the risks associated with administering Propofol outside of a hospital setting, and not whether he had actual knowledge of those risks.  Beth Karas and Ann O’Neill, What Is Involuntary Manslaughter?, CNN, Feb. 9, 2010, http://www.cnn.com/2010/CRIME/02/08/jackson.murray.involuntary.manslaughter/index.html.

Legal experts and health care professionals are eager to see what standards are relied on in this case and whether there will be any “‘new or interesting legal frameworks with respect to affirmative defenses for physicians.’”  Wood, Case Against Michael Jackson’s Doctor Centers on Gross Negligence, supra.  Whether the trier of fact in Dr. Murray’s case will be influenced by any patterns of conduct in his prior treatment of Jackson or other patients is an issue to watch.

The Problems Associated with Criminal Medical Negligence
There are significant problems with the prosecution of health care providers including the disregard of standard of care and the concern that criminalizing acts of medical negligence fails to achieve the goals of criminal law.  Criminal jurors are likely to overlook the objective standard of care.  In his article, With No Evil Intent: The Criminal Prosecution of Physicians for Medical Negligence, Dr. James A. Filkins researched nine criminal medical negligence cases running from 1981 to 1995.  The results of these cases indicated that the standard of care in these negligence cases was an issue that was “difficult for the lay trier of fact to comprehend, particularly when disputed by opposing experts.”  Consequently, Dr. Filkins found the trier of fact in these cases had the tendency to overlook the objective standard of care and go straight to deciding whether “the defendant physician possessed a guilty state of mind.”  James A. Filkins, With No Evil Intent: The Criminal Prosecution of Physicians for Medical Negligence, supra, at 491–92.

While establishing the standard of care is an important element in theory, according to Dr. Filkins, in practice, the approach is often to go directly to the health care provider’s state of mind.  The concern is that juries may place more weight on the issue of state of mind than the issue of the standard of care.  Id.

Dr. Filkins’ research demonstrated that juries sometimes apply their own “internal or subjective standard” by trying to determine whether the physician displayed genuine concern toward his patient rather than whether the physician followed the appropriate standard of care.  Thus, a jury may find an accused physician guilty “even if the prosecution fails to establish causation or the standard of care” so long as the jury finds that the physician was “irresponsible or indifferent.”  Filkins, Criminalization of Medical Negligence, supra, at 509.
The importance of establishing a standard of care is that it provides a guideline for the degree of care that a reasonable person would exercise.  In civil medical negligence cases, the jury must determine whether the defendant acted as a reasonable person in the same or similar circumstances would act.  If not, only then can the jury find the defendant negligent.  When criminal juries determine guilt without objectively considering the appropriate standard of care, arbitrary judgments result.

In her law review article, Professor Diane E. Hoffmann offers another reason why criminal medical negligence should not be applied to health care professionals.  Diane E. Hoffmann, Physicians Who Break the Law, supra, at 1083–84 (2009). She specifically discusses the goals of deterrence, rehabilitation, and retribution, and analyzes how each of those goals fails to apply in a criminal medical negligence action.

Professor Hoffmann rationalizes that criminal prosecution has little deterrent effect because the physician’s actions in these negligence cases are not intentional.  Additionally, she discussed how criminal prosecution can create an “oppositional culture” and “anti-deterrent effect” among physicians, who may group together and view such prosecutions as illegitimate.  She also observed that rehabilitation for physicians in the form of mentoring and retraining is unlikely to be achieved within the criminal justice system.  Finally, there is the goal of retribution, or repayment for the offense that was committed.  To Professor Hoffmann, retribution for a criminal action is unjustified if the element of intent is lacking.  Hoffmann, Physicians Who Break the Law, supra, at 1084.

These problems illustrate that medical negligence as a criminal offense is one that neither establishes a consistent standard with which to prosecute nor fulfills the objectives of criminal punishment.  Therefore, medical negligence should remain a civil matter.

The Lowest Culpable State of Mind for Criminal Medical Conduct Should Be Raised to the Level of Recklessness

Health care professionals should not be given a free pass from criminal liability for mistakes made in their treatment of patients.  The American Medical Association (“AMA”) itself, though opposed to the prosecution of medical negligence, concedes that reckless conduct should be criminally culpable.  The consensus is that health care professionals should be prosecuted where their conduct is reckless.  Recklessness is a gross deviation from the standard of care.  If the physician or nurse acted with a reckless state of mind, then the provider was “taking a substantial and unjustifiable risk, but consciously ignored the risk and continued the dangerous conduct.”  Filkins, Criminalization of Medical Negligence, supra, at 508. 

Negligence, on the other hand, occurs when the health care provider was unaware that he was taking a substantial risk.  Recklessness should be criminally prosecuted.  But, negligence should strictly be resolved in civil court.  Negligence includes patient falls, bed sores, malnutrition, and other unintentional acts alleged in the traditional long-term care case.
Using Dr. Murray again as an example, the current criminal law dictates that the jury only has to find that Dr. Murray should have known administering Propofol outside of a hospital setting was a substantial and unjustifiable risk, and not whether he was actually aware of the risk. Karas and O’Neill, What is Involuntary Manslaughter?, supra.

This should not be the standard.  Dr. Murray’s knowledge of proper procedure must be a factor in determining his criminal culpability.  In this instance, a strong argument could still be made that Dr. Murray’s actions rise to the level of recklessness.  One could try to show that, as a physician, he must have had knowledge that Propofol is usually administered in a hospital setting.  If the prosecution can establish that he had such knowledge, then it could also demonstrate that he disregarded the hazards and decided to take the risks associated with administering Propofol in a home setting.

If the state can establish these facts, then Dr. Murray should face a criminal jury trial.  This is a more effective standard because it takes into account the health care provider’s knowledge of existing protocol.  Any standard short of actual knowledge of the risk should be governed by the civil system.  This is especially true in the long term care setting where nurses are tragically prosecuted for patient falls and other allegations of simple negligence.  The government will argue that requiring the standard is an attempt to exempt health care professionals from criminal negligence.  Filkins, Criminalization of Medical Negligence, supra, at 508 (footnote omitted).  However, applying the criminal legal system to medical negligence is an excessive and ineffectual endeavor because it fails to consider the importance of determining an objective standard of care and because it does not truly achieve the goals of criminal punishment.  Accordingly, health care providers should only face criminal prosecution when their conduct rises to the level of recklessness.

Civil Liability Is the Preferable Legal System for Resolving Acts for Medical Negligence
The preferable option is for actions of medical negligence to remain strictly a matter of civil liability.  Civil liability for medical negligence is itself not a perfect system, but it provides redresses for civil wrongs that have been committed.

A civil claim for medical negligence provides the plaintiff patient with the opportunity to receive compensation for injuries, and it gives the health care provider a chance to reform conduct without the unnecessary punishment of prison.

As compensation for injuries, plaintiffs are potentially entitled to economic and non-economic damages.  Economic damages enable the plaintiff to recover for objective monetary losses such as lost wages and medical expenses, while non-economic damages allow recovery for subjective, non-monetary losses such as pain and suffering, loss of consortium, and loss of enjoyment of life.  Ending the Confusion:  Economic, Non-Economic and Punitive Damages, Health Coalition on Liability and Access, http://www.hcla.org/factsheets/2003-23-Damages.pdf.  These two categories of recovery provide the plaintiff with a wide-range of potential recoveries for negligent conduct. In many cases, juries may also assess punitive damages as a means to punish the defendant health care providers to prevent similar future negligence.

In addition to compensating the injured patient, there are non-monetary methods of punishing negligent health care providers that negate the need for a prison sentence.  These punishments are imposed by medical and nursing boards.  Each state maintains its own medical board, which is tasked with monitoring physician conduct and investigating complaints received from the public.  State nursing boards carry the equivalent duty of protecting the public from the negligent conduct of licensed nurses.  Investigations from these boards can lead to punishments that include reprimands, suspension or revocation of license, or probation.  Alternatively, the medical or nursing board can also choose to focus its attention on re-educating and retraining the health care provider, a remedy not feasible within the confines of a prison cell.  See,Protecting the Public: How State Medical Boards Regulate and Discipline Physicians, http://www.fsmb.org/smb_protecting_public.html, and National Council of State Boards of Nursing, https://www.ncsbn.org/163.htm.

Negligent conduct is not excusable, but the strenuous working conditions that health care professionals must endure each day has lead to a nursing shortage.  In 2007, The American Health Care Association (“AHCA”) estimated a need for 109,900 health care personnel to “fill vacant nursing positions at nursing facilities across the United States.”  2007 AHCA Survey: Nursing Staff Vacancy and Turnover in Nursing Facilities, 4 (American Health Care Ass’n Dep’t of Research July 21, 2008).  These vacancies consisted of positions for registered nurses (“RNs”), licensed practical nurses (“LPNs”), and certified nursing assistants (“CNAs”).

With fewer nurses to attend to large volumes of patients, mistakes are bound to occur even when these health care providers perform to the best of their abilities.  Bringing criminal charges against a well-intentioned nurse can only discourage those interested in entering the nursing profession.  Additionally, the possibility of criminal charges may make it more difficult for nurses to be frank about these unintentional errors they made.  An inability to examine mistakes or errors places all patients at risk.  See, Criminalization of Nurses for Unintentional Errors, Wisconsin Nurses Association, available at http://www.wisconsinnurses.org/media/WNA_Position_Paper_Criminal_Neglect.pdf.  The focus should be on providing these professionals with the opportunity to learn from their mistakes, not to punish them with criminal sanctions.

Conclusion
Criminal punishment for medical negligent conduct is a growing trend.  Studies of these cases indicate that the triers of fact tend to place a greater emphasis on the defendant’s subjective state of mind.  The concern is that a jury may render a “guilty” judgment without considering whether the health care provider’s conduct fell within the objective standard of care.  Moreover, the criminalization of medical negligence fails to serve the three goals of criminal law.  Criminal culpability for health care providers should be limited to instances of recklessness.  Providers who are reckless will be criminally punished for undertaking actions in which they were aware of the risks.

Ultimately, civil liability is the preferred method for settling issues of negligent conduct.  It provides the patient with the opportunity to recover for his or her injuries and medical expenses.  Additionally, medical and nursing boards already have existing procedures for punishment and reform, all of which supersede the necessity of a prison sentence.  With these existing civil liabilities and sanctions, the focus should be on rehabilitating these health care providers to prevent them from repeating the same mistakes, and not imprisoning them for unintentional error.

Heidi A. Barcus is a partner in the firm of London & Amburn, P.C., and focuses her practice in civil litigation including the defense of doctors, hospitals, and nursing homes.  She is a member of the University of Tennessee Legal Clinic Advisory Board, the Hamilton Burnett American Inn of Court and DRI. She is a Tennessee Bar Foundation fellow and Secretary of the Knoxville Bar Association. Eric Shen is a third-year student at The University of Tennessee College of Law and is currently a law clerk at London & Amburn, P.C.

Disclaimer: The information contained herein is strictly informational; it is not to be construed as legal advice.