By R. Chet Loftis, UMA General Counsel
Physicians know about the risk of civil liability for negligent or intentional misconduct. They also generally know about the risk of disciplinary action against their license or staff privileges for unprofessional, unethical, or incompetent care. But until recently, physicians probably had little, if any, reason to believe that practicing medicine could ever expose them to the risk of criminal liability.
The risk, however, is real. It is real in the sense that there are general laws on the books that apply as much to the practice of medicine as they do to anything else. It is real in the sense that there are specific laws on the books and government programs in place to identify and prosecute allegations of billing fraud. It is real in the sense that people in our society tend to look for a wrongdoer as the first response to a bad outcome and put pressure on prosecutors "to do something." And, finally, it is real in the sense that physicians in Utah and other states have faced criminal charges of Medicaid fraud and even homicide.
Our
system of justice is based on the adversarial model, and the notion that truth
is most likely to result from the zealous advocacy of competing parties. Rightly
or wrongly, this model is relied on not only in the civil context, but in the
criminal one as well. It turns the state into your opponent and prosecutors into
your adversary-a gut-wrenching thought and an incredibly daunting prospect. All
that it takes to trigger these events is probable cause and prosecutorial
discretion: 1) Probable cause applies when, in the opinion of a judge or grand
jury, it is more likely than not that a crime was committed and that the
defendant committed it; and 2) It is the decision of the prosecutor, subject
only to his or her discretion, that a particular set of facts warrants the
expenditure of time and money to pursue the case as a crime or not.
Historically
speaking, prosecutors have rarely brought criminal charges for treatment errors.
One need only compare the number of wrongful death lawsuits with the extremely
low number of criminal prosecutions to conclude this.
The
fact remains, however, that the threshold for bringing a criminal case is low-it
just takes probable case and prosecutorial discretion. Moreover, if the
prosecution comes, it will come in the form of both an opponent and an adversary
until, most likely, the bitter end.
Few
protections are afforded to a criminal defendant before his or her case goes to
court. But if and when it does, the Constitution and other legal protections
will kick in-protections such as the burden that is placed on prosecutors to
prove their case by proof beyond a reasonable doubt, the right to exclude
unreliable or improperly obtained evidence, the right to cross-examine one's
accusers, the right to appeal the details of the proceeding to the scrutiny of a
higher court, and the right to have a jury-rather than an arm of the
state-decide the ultimate question of guilt.
It
is also where two of the most important factors of all come into play: the
testimony of the expert witness and the language of the law itself.
The
law relies heavily on expert testimony. In my opinion, there is no question that
the existence of well understood and defined community standards for a
particular medical procedure or course of treatment is the best way to minimize
the risk of improper civil or criminal prosecutions.
Without
commonly accepted standards, hindsight decisions about what is right and what is
not are left to a hired expert to determine and to communicate to a jury.
Consequently, the more that physicians in the same specialty develop such
standards and find proper and legal ways to hold those who give contrary
testimony accountable, the more likely it is that unfounded claims will not be
brought or rewarded.
Homicide
is, of course, the greatest prosecutorial threat to any person, physician
included. Utah law divides homicide into four categories: aggravated murder,
murder, manslaughter, and negligent homicide.
Aggravated
murder occurs when a person intentionally or knowingly causes the death of
another under one of 17 different aggravating circumstances. Examples include:
multiple victims, murder-for-hire, hostage situations, and extreme cruelty.
Aggravated murder is a capital offense punishable by death, life imprisonment,
or life in prison without parole.
Murder
occurs when: (a) a person intentionally or knowingly causes the death of
another, (b) a person engages in conduct that is clearly dangerous to human
life, and with the intent to cause serious bodily injury, that results in death,
or (c) a person engages in conduct that evidences a depraved indifference to
human life that results in death. Murder is a first degree felony punishable by
five years to life in prison.
In
the context of medicine, manslaughter occurs when a physician has created an
unjustifiable risk that results in the death, that the physician knew of the
risk and failed to try and correct it, and that such failure was a gross
deviation from the standard of care. Manslaughter is a second degree felony
punishable by one to five years in prison.
Similarly,
negligent homicide occurs when a physician has created an unjustifiable risk
that results in the death, that the physician failed to perceive the risk, and
that such failure was a gross deviation from the standard of care. Negligent
homicide is a class A misdemeanor punishable by up to one year in prison.
The
primary difference, therefore, between aggravated murder and murder is the
existence or absence of one of the 17 aggravating factors. The primary
difference between manslaughter and negligent homicide is whether the risk was
actually known and ignored or the risk should have been known.
But
in either case, aggravated murder and murder require an intentional or knowing
killing, and manslaughter and negligent homicide require: (1) a death, (2) the
physician's affirmative creation of an unjustifiable risk, and (3) the failure
to act upon the risk amounting to a "gross deviation from the standard of
care."
Moreover,
in all four cases, there must be evidence of proof beyond a reasonable doubt to
convict.
Application of the Law in Utah
Physicians
have not been tried for murder in connection with a death caused by improper
medical treatment in other states. Rather, they hive been tried for manslaughter
or, more recently, negligent homicide in those rare Instances when charges have
been brought. See generally: Annotation, Homicide Predicated on Improper
Treatment of Disease or Injury, 45 ALR 3d 114 (1972, Supp. 2000). One exception
to this is People v. Phillips, 73 Cal. Rep. 720 (App. 1969) where a physician
was convicted of murder because the care and treatment accorded was so reckless
and wanton that malicious intent could be implied.
Utah
is one of the few states with a court decision on the question of criminal
liability for medical treatment. The case is State v. Warden, 813 P.2d 1146
(Utah 1991), and the ruling of the court upheld the jury's verdict convicting
Dr. David Warden for negligent homicide.
In
1986, Dr. Warden agreed to deliver an 18-year-old patient's baby at home. The
jury returned a verdict of negligent homicide against Dr. Warden, relying on
evidence that he failed to: (1) use an ultrasound to confirm the due date, (2)
examine the patient when labor began six weeks early and only asked to be
contacted when contractions were three to five minutes apart, and (3) treat or
disclose to the family the respiratory problems of the newborn, which resulted
in the child's death within 10 hours of birth. In addition, expert testimony
established that: (1) the baby was six to seven weeks premature and
weighed
about four pounds, (2) the baby's condition could deteriorate quickly with
subtle symptoms, (3) the standard of care called for an examination before
delivery and hospitalization for a baby six weeks premature, and (4) the baby
would have had a 99 percent chance of survival had he been hospitalized.
On
appeal, Dr. Warden's conviction turned on whether there was sufficient evidence
from which a jury could conclude that there was a substantial and unjustifiable
risk of death of which the defendant should have been aware.
At
the Utah Court of Appeals, two of three judges ruled in favor of Dr. Warden,
stating that the evidence was "sufficiently inconclusive" to establish
that there was a substantial and unjustifiable risk of death that defendant
should have been aware of, even looking at the evidence in a light most
favorable to the jury.
The
Court of Appeals ruling was appealed, and four of five justices of the Utah
Supreme Court reversed that ruling, holding that the evidence was sufficient to
convict Dr. Warden of negligent homicide citing the facts mentioned above.
Despite
its ruling, the Supreme Court attempted to allay the fears of physicians with
the following language:
"In
situations where it is alleged that a medical doctor was negligent in the
treatment of a patient, that doctor may be held civilly liable if the evidence
establishes that it is more likely than not that the doctor's treatment fell
below the appropriate standard of care. In contrast, a doctor may be held
criminally liable only when the evidence establishes beyond a reasonable doubt
that the doctor's treatment created a substantial and unjustifiable risk that
the patient would die, that the doctor should have but failed to perceive that
risk, and the risk is of such a nature and degree that the failure to perceive
it constitutes a gross deviation from the standard of care. Given the high
showing required for negligent homicides, doctors' negligence in the treatment
of patients will rarely precipitate criminal liability. It is also true,
however, that if doctors act with criminal negligence, they should not escape
criminal liability merely because the negligence occurred in a professional
setting."
Justice
Stewart dissented, arguing that there was not sufficient evidence to support the
verdict on various grounds and, in conclusion, stated:
"In
my view, the criminal law should not be used to punish a physician for a death
when he or she makes a decision that turns out to have a fatal consequence,
simply because some other physician, acting in more favorable circumstances,
would have done differently."
The
message of the majority is that doctors should not be overly concerned with the
possibility of being prosecuted but, at the same time, they should not expect
special treatment under the law.
In
contrast, the message of Justice Stewart is that it is not appropriate to impose
criminal liability on physician by second guessing his or her professional
judgment.
Physicians
are not strangers to death, but despite the large number of wrongful death
lawsuits, very few prosecutors have brought criminal charges.
It
is also clear that some judges are particularly sensitive to the difficult
situation that physicians find themselves in. If you add all of the judges
together, the vote was 5 to 3 against Dr. Warden and in favor of ruling that
there was enough evidence to support the jury verdict for conviction.
Moreover,
if a physician were convicted of a crime, the crime, in all likelihood, would be
for negligent homicide which, as a class A misdemeanor, would carry a prison
term of up to one year. Since one year is the maximum, it is possible that a
conviction would result in little or no prison time.
Still,
the risk is real. Death is, after all, the ending of a life. And when a death
could have been avoided there is the possibility, because the loss is so great,
that a physician could be exposed to criminal liability if major gaps are found
in the treatment of the patient.
In
addition to taking every reasonable precaution to prevent medical errors, the
next key, in my opinion, is to have a plan to manage the financial costs of
defending yourself should the need ever arise. In my limited experience, I have
seen that it is possible for the threat and expense of prosecution to be as
emotionally debilitating and financially destructive as the penalty the state
seeks to impose for the alleged crime.