Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Medical Malpractice- When Does it Become a Crime? A Historical Review

Cristina Palacio, Esq.
Senior Associate General Counsel Shands Healthcare
9-2-1 In November 2011, Dr. Conrad Murray was tried and convicted of involuntary manslaughter for providing Michael Jackson with propofol; he is serving a four year sentence in prison.  A year before, Dr. Sandeep Kapoor, physician to Anna Nicole Smith, was tried and acquitted of involuntary manslaughter charges for providing her with numerous prescriptions for opiates and sedatives found in her system at the time of her death.  In 2006, Julie Thao, an RN in Wisconsin, pled guilty to two misdemeanors after being charged with criminal neglect in the death of a 16 year old patient after mistaking an anesthetic for an antibiotic. Ms. Thao administered the wrong drug after working 2 eight hour shifts, sleeping 7 hours at the hospital, and then starting another 8 hour shift.  In the aftermath of Katrina, Dr. Anna Pou, faculty at the Louisiana State University Health Sciences Center in New Orleans, was charged with murder for allegedly injecting critically ill patients with a lethal combination of drugs; in 2007 a grand jury refused to indict her. Do these high profile cases indicate a new or growing trend to criminalize medical malpractice?  Have the standards changed?   The concern regarding an increase in criminal prosecution for medical malpractice is not new. In 1993, concerned about the trend, the AMA adopted a resolution, which has since been reaffirmed multiple times, to “insure that medical decision-making, exercised in good faith, does not become a violation of criminal law….”1   In 1995 the AMA stated that it opposed “the attempted criminalization of health care decision-making especially as represented by the current trend toward criminalization of malpractice….”2   In a 1997 review of the issue, Paul R. Van Grunsven pondered “[w]hy does there seem to be [an] increase in criminal prosecution of health care providers for clinical mistakes and fatal errors?”3     In 1998, the AMA again addressed the issue -committing to “educate physicians regarding the continuing threat posed by the criminalization of healthcare decision-making….”4   While there is no definitive source of comprehensive data, the most frequently cited evidence supporting the view that the incidence of criminal charges against healthcare providers for alleged negligence is increasing, is a review published by James A. Filkins, The Criminal Prosecution of Physicians for Medical Negligence “With No Evil Intent.”5 In his review of the court cases, Filkins found only about 15 reported appellate cases in the 172 years between 1809 and 1981.  In the 20 years after that (1981-2001), Filkins found at least 9 reported appellate cases; additionally he found 12 other cases which were discussed in newspapers or television, but which did not result in reported cases. In the ensuing decade (2001-2011) another researcher using Filkins’ methodology found around 37 reported criminal cases.6   Even if this data does in fact indicate an increase, it is clear that such prosecutions nevertheless remain fairly uncommon, 7and they certainly are not new. Furthermore, the standard for a conviction seems to be fairly consistent over time. That is, it typically takes more than “mere” negligence to attract the attention of a prosecutor, and to ultimately get a conviction. Generally, for negligence – medical or otherwise to rise to the level of a criminal act, behavior that reflects “gross negligence” or “recklessness” is required.   The earliest reported case in American jurisprudence appears to be a Massachusetts Supreme Court case, Commonwealth v Samuel Thompson.8 (Mr. /Dr.) Thompson