Deseret News, Friday, October 11, 2002

Resolution backs physicians          Resolution>>

Shouldn't criminalize medical mistakes, it says

By Lois M. Collins
Deseret News staff writer

When a physician's best medical judgment has a bad result, it may turn out to be fodder for a malpractice suit. But it shouldn't become a criminal case, according to the Utah Medical Association.

In a resolution adopted recently by its House of Delegates, the UMA warns that "criminalization of medical care" is a "serious threat to patient care . . . and an unreasonable burden on the medical profession."

UMA spokesman Mark Fotheringham said the resolution is not a "carte blanche exemption" but that "a physician's professional judgment ought to be treated as such and not as a criminal act."

Fotheringham said the UMA is "not trying to make any statement on current cases," referring to the upcoming retrial of psychiatrist Dr. Robert Weitzel, accused of killing elderly patients with morphine. The UMA takes no position on that case, which has gathered broad national attention, but he said it certainly "fanned interest in the issue itself."

Prosecutors scoff at the notion that any profession should receive special treatment or protection from prosecution.

"The medical profession is not beyond the reach of the criminal laws in the state of Utah," said Kent Morgan, assistant Justice Division chief in the Salt Lake District Attorney's Office. With strong indication a physician has committed a homicide or other crime, he said, charges will be filed as long as there's evidence of guilt and reasonable likelihood of conviction, "even though his fellows may desperately wish he will not be prosecuted."

The UMA statement, written by a blue-ribbon task force for pain management, says the public must be protected from criminal act of a physician but questions whether a lay jury in a criminal court would be able to "fairly and knowledgeably" determine the difference between medical incompetence and criminal negligence.

While not mentioning Weitzel, the UMA refers to the conviction of a former physician, David Warden, for negligent homicide, a class A misdemeanor with a maximum one year sentence. In 1986, he delivered a patient's baby at home. It turned out the baby was premature and the infant died.

Warden's conviction was overturned. Then the Utah Supreme Court reinstated it, by a 5-3 vote. Fotheringham said the UMA supports the position taken by Justice Daniel Stewart, who wrote the dissent: "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," Stewart wrote.

The UMA says in cases where the prosecution and defense must rely on contradictory paid expert testimony to make their points or where this is evidence supporting a reasonable, noncriminal explanation for the doctor's actions, it should not be a criminal case.

But Morgan counters that many cases — and not just those involving medical questions — rely on contradictory testimony from each side's experts. "The fact two raise different sides is not reasonable doubt," he said. At worst, it raises the point that one may be lying "or wrong."

Medical expert testimony has been crucial to the criminal justice system, Morgan said. "We could not achieve justice without them. But we cannot elevate their profession above the reach of any other profession in a democracy."

The resolution also says that when a medical expert counsels a prosecutor against filing a criminal case, that prosecutor should seek the opinion of the UMA, the Physicians Licensing Board or another "regularly established and constituted panel of medical peers."

Failure to do so could be a "judicial embarrassment," the resolution says, and a "serious threat to good patient care for all Utah's citizens."

© 2002 Deseret News Publishing Company

Note:  Although the spokesman above is quoted as saying that the Association does not make "a statement on current cases," the wording of the resolution is unequivocally aimed at the Weitzel case.  See the resolution>>

<<Back to Home Page