Executive Summary
The government has increased enforcement actions against healthcare providers, including prosecuting physicians for quality-of-care issues, according to defense attorneys.
There might be such a gross deviation from the standard of care that the physician’s conduct fits the definition of criminal intent.
Physicians have been prosecuted for discretionary decisions involving medical judgment.
A physician who is improperly distributing controlled substances might face actions from the Drug Enforcement Agency and the United States Attorneys
The federal government has become "very aggressive" with enforcement actions against healthcare providers, according to Mark J. Silberman, JD, a partner at Duane Morris in Chicago. Silberman is a former state and federal prosecutor and former deputy chief counsel for the Illinois Department of Public Health.
Michael E. Clark, JD, LLM, special counsel in the Houston, TX, office of Duane Morris, says prosecutors looking at fraud and abuse "are far more willing to take on issues of medical necessity than they were in the past."
"They are questioning the motivation of physicians and arguing that they should be held criminally accountable for conduct that, in the past, would not have been considered fraudulent," says Clark.
As a federal prosecutor, Clark prosecuted a physician for prescribing an inordinate amount of methamphetamine hydrochloride. An expert witness testified that the inherent dangers of addiction were such that, when considered in connection with other less dangerous drugs, the prescribing of the drug was far outside the ordinary course of accepted medical practice. "The defense claimed the doctor had prescribed it for refractory depression and for weight control," says Clark. "The jury convicted the doctor."
Scrutiny invited
Physicians operate in such a heavily regulated environment, says Clark, "that not only is the threat of malpractice actions something to worry about, but perhaps more so are the exacting rules and regulations of federal and state reimbursement programs."
Even if one of the practice’s vendors, not the practice itself, is being investigated for fraud, the practice likely will be asked to produce thousands of pages of documents, notes Silberman. "It can invite additional scrutiny, both from the government and from malpractice attorneys," he says. "Whom you choose to work with today, more than ever, is important,"
There is increasingly aggressive enforcement of fraud and abuse laws by regulators, prosecutors, and financially motivated whistleblowers, says Clark.
This is also true for quality-of-care issues involving the physician’s exercise of medical judgment, recordkeeping, and scope of practice, reports Silberman. He is seeing prosecution of physicians for discretionary decisions involving medical judgment, or, in the context of long-term care, the failure to coordinate care. "I’ve even seen one case in which criminal neglect was alleged for inaction," he says. "Obviously, the success of these prosecutions varies." (See related story, p. 124, on criminal prosecutions for inappropriate opioid prescribing.)
Prosecutors are increasingly seeking to convert allegations of abuse and neglect into criminal matters, adds Silberman. "The days where presuming an error was an honest mistake seem, to some degree, to have been replaced with a presumption of wrongdoing," he says.
Pending charges inadmissible?
If a physician is facing criminal charges, a malpractice attorney could use this situation to draw more attention to the case and raise public outrage over what’s happened, says Silberman.
While a physician’s conviction is admissible, most judges won’t allow a pending charge to be introduced as evidence. For this reason, says Silberman, "most malpractice attorneys aren’t going to go forward until a pending criminal case is resolved. But they can use it as leverage to obtain a settlement."
It’s generally improper for attorneys to threaten the criminal process in order to settle civil actions, explains Clark. However, he says, "lawyers understand that convincing a prosecutor to move forward with criminal investigations or charges can up the stakes’ for a defendant, to such a level that resolving the civil case becomes far more attractive."
Standard of care deviation
While most prosecutions of physicians who have committed acts constituting malpractice involve egregious circumstances, there are exceptions.
"This depends on factors such as the sophistication of the prosecutor’s office involved," says Clark.
In some circumstances, there is such a gross deviation from the standard of care that the physician’s underlying conduct fits the definition of criminal intent which results in significant harm to a person, says Clark.
"The involuntary manslaughter prosecution of Michael Jackson’s personal physician, Dr. Conrad Murray, is a widely known example," says Clark.
In that case, the jury found that Murray’s conduct in prescribing and delivering propofol, a powerful anesthetic, resulted in Jackson’s death.
"In that regard, no doubt the jury was in part persuaded by one of the state’s witnesses," says Clark. An anesthesiologist outlined 17 deviations from the standard of care, including some that he deemed "unconscionable" and "morally dubious."1
Indifference equals homicide?
Carelessness or indifference might suffice as the basis for negligent homicide in some jurisdictions. (For more information on the burden of proof, see related story, below.)
Ben A. Rich, JD, PhD, professor in the Department of Anesthesiology and Pain Medicine at the University of California — Davis Health System’s School of Medicine, says, "[I]t is highly unlikely that a prosecutor would initiate such a prosecution, unless there was a demonstrable pattern of indifference that had resulted in the deaths of multiple patients."
The reason? Generally speaking, juries are favorably disposed toward physicians, says Rich. Multiple studies have shown that juries in malpractice cases are more likely to find for the defendant physician, even in cases in which independent reviewers found a departure from the standard of care.2,3
"If that is true in the garden variety malpractice case, it is even more likely to be true when a prosecutor seeks to impose criminal sanctions," says Rich.
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Lovett I. Prosecution rests in the manslaughter trial of Michael Jackson’s physician. NY Times, Oct. 24, 2011, p. 21. Accessed at http://nyti.ms/1gusxbf.
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Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Eng J Med 2006; 354:2024-2033.
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Peters PG. Doctors and juries. Michigan Law Review 2007; 105:1453-1495.
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Michael E. Clark, JD, LLM, Special Counsel, Duane Morris, Houston, TX. Phone: (713) 402-3905. Fax: (713) 583-9182. Email: [email protected].
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Ben A. Rich, JD, PhD, Professor, School of Medicine, University of California — Davis. Phone: (916) 734-6010. Fax: (916) 734-1531. Email: [email protected].
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Mark J. Silberman, JD, Partner, Duane Morris, Chicago. Phone: (312) 499-6713. Fax: (312) 277-6957. Email: [email protected].
