A new era in liability means keeping criminal charges against docs at bay

Trend continuing, but aggressive education efforts may reduce risk

Not too many years ago, the worst thing a risk manager feared was a case of medical malpractice that could cost the health care provider millions of dollars. These days, the nightmare scenario involves the local prosecutor deciding that your doctor or nurse committed murder on the premises.

And oddly enough, exactly the same set of facts could lead to either scenario. The health care profession has been rocked in recent years by criminal charges against providers for situations that only recently might have been handled with a civil lawsuit or possibly an investigation by regulatory bodies. Some observers say the problem is overzealous local prosecutors who don’t understand the practice of medicine and are more interested in making a name for themselves, while others say the cases represent legitimate responses by law enforcement.

Either way, the risk is significant for risk managers, says Jane M. Orient, MD, executive director of the Association of American Physicians and Surgeons in Tucson, AZ. Her group has been monitoring and protesting criminal charges against health care providers, and she says the past several years have seen a trend in which prosecutors consider criminal charges for cases they previously would have left for the medical community and the civil courts to sort out. In almost all cases, she says, the criminal charges are not justified.

"Doctors are the new scapegoats," she says. "I haven’t seen any legitimacy to these cases except when the doctor clearly had the intent to hurt or murder people, and those cases are very rare. In most of these cases, you might argue that the doctor had a lapse in judgment or could have done better, but that’s a far cry from the crime of intentionally trying to hurt someone."

One of the most disturbing parts of the criminal charges trend is the fact that even good care can land a health care provider in the pokey. Orient points out that some of the criminal charges arise from cases in which the provider clearly committed a medical error, though rarely with such gross neglect that criminal charges would be appropriate. Others result from situations in which someone alleges a medical error but the facts are debatable, and still others stem from care that most medical professionals would agree was proper.

Your local prosecutor, however, is not a medical professional. And that’s where much of the problem comes from, Orient says. In some cases, the prosecutor hears of a death at a hospital because some particular allegation is unusual. Perhaps someone reports that the patient received a "large" dose of morphine shortly before death, or the death was "caused by a mistake." The prosecutor’s interest is piqued, and without an adequate understanding of medicine and the health care community, the allegations take on more significance than they may deserve.

This is where risk managers may have some ability to defuse the situation. By stepping in at the right time, you might be able to explain that the morphine dose was large because the patient had terminal cancer and that it had nothing to do with the death. Or that there was indeed a "mistake" prior to death but that it did not cause the death. 

Though criminal charges can devastate the individual health care providers, some risk managers may question how much they should be involved. After all, criminal charges are way beyond the control of a risk manager, right? Not really, says Grena Porto, RN, ARM, DFASHRM, senior director of clinical operations at VHA Inc. in Berwyn, PA, and past president of the American Society for Healthcare Risk Management. Porto has been disturbed by the recent trend toward criminal charges and she cautions that risk managers must get involved.

"If you have an employee engaged in criminal conduct, it creates a huge liability risk for the organization with D&O [directors & officers] exposure and other liabilities," she says. "And even when someone is only charged with a crime, you can’t underestimate the damage to your organization’s reputation. The media latch on to these stories — they just love them — and every time they report on it, they’ll be standing in front of your hospital with your big sign behind the reporter."

Nurses and physicians at risk of prosecution

Though most criminal cases seem to involve doctors, they aren’t the only medical professionals at risk. In a Colorado case that highlighted the risk to nurses, a Denver prosecutor went after three nurses responsible for a medication error that caused the death of an infant. Miguel Sanchez was a healthy baby, born on Oct. 15, 1996, at St. Anthony North Hospital in Denver. But because his mother had a history of syphilis, a neonatologist prescribed a long-acting form of penicillin to ward off the infection. A series of mistakes led to the baby’s death and the subsequent prosecution of three nurses on criminal charges, says Pat McCadden, RN, director of risk management at the hospital.

A pharmacist misread the prescription and filled it for 10 times the proper dose, which got the nurses’ attention when they prepared to administer the medication. Knowing the dosage was too high for the typical penicillin injection, one nurse consulted with a neonatal nurse practitioner. Together they surmised that the medicine was a newer generation of drugs that are administered differently. In reality, the baby’s medication was intended for injection in the thigh muscle.

Confused by the dosage error, the nurses worried that such a large injection in the thigh would be especially painful for the infant. The appearance of the medication further confused the nurses because it was milky in appearance, and usually only clear liquids are administered in the veins. But some new opaque suspension drugs had recently been approved for intravenous use. The nurses checked two medical texts to see if the drug could be given intravenously, found no warnings against it, and decided to inject the penicillin into the baby’s arm. They did, and the infant died from a heart attack one hour later. Though McCadden says the nurses were experienced and qualified, she concedes that they were wrong to proceed without clarifying the order with the physician.

The Colorado Board of Nursing suspended the nurse practitioner and placed the nurse who administered the injection on probation. The board dismissed charges against a third nurse, who was the infant’s primary nurse.

The situation got even worse when the county district attorney decided the nurses should be charged with a crime. He submitted the case to a grand jury, which indicted all three nurses for criminally negligent homicide. Colorado state law defines criminal negligence as "a gross deviation from the standard of care that a reasonable person would exercise" and when that person "fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists."

After much strife, the two nurses who were censured by the state board accepted a plea arrangement that keeps their records clear of the negligent homicide charges if they stay out of legal trouble for two years. The other nurse refused the plea arrangement and went to trial, where a jury acquitted her after 90 minutes of deliberation.

Robert Grant, JD, the district attorney, wrote an open letter to the nursing community before the case went to trial, in which he offered what he apparently intended as reassurance. "Nurses do not need to fear being prosecuted for simple mistakes," he wrote. "However, if their care falls to the level of criminal negligence, such as when a doctor’s orders regarding the route of administration are knowingly changed without authorization, leading to deadly consequences, they cannot expect to be immune from responsibility."

McCadden was risk manager for the hospital at the time of the error and when the nurses were charged. She tells Hospital Risk Management that the experience opened her eyes to how capricious the law enforcement system can be, leaving her discouraged about what could have been done better.

"If an error is made and death results, there could be a criminal investigation. That’s the simple fact I learned," she says. "It just depends on the political atmosphere, your investigators, the district attorney, and their own hidden agendas. If they’re overzealous and trying to make a name for themselves, they may play this situation to the hilt."

McCadden notes that criminal charges often arise when, because of some quirk or coincidence, law enforcement authorities get wind of a medical situation that typically would just be handled within the medical community or civil courts. At her hospital, a nurse on duty the night of the baby’s death heard of the unusual incident and mentioned it to a relative in law enforcement. That person felt obligated to report the sketchy details to a superior, and pretty soon the ball was rolling.

Most risk managers will find themselves in a bewildering new world when criminal charges are filed, McCadden says. You must involve a criminal defense attorney as soon the local prosecutor shows any interest in investigating the case, she says. And your usual counsel may not be the right person if he or she does not have criminal defense experience. To some extent, you must hand the case over to more qualified hands once criminal charges are a possibility, but McCadden says the risk manager still will have a significant role to play.

"My involvement was in providing them the policies that applied and explaining to them how certain procedures worked, what safeguards we had in place," she explains. "I had to testify at the grand jury and in the criminal trial. We had three criminal attorneys, and it was my job to coordinate all of them. And of course we had the civil side of this going at the same time, so that was my job. And I also had to keep the administration and the board of trustees aware of everything."

In the Colorado case, McCadden’s hospital had to first decide whether to defend the three nurses against the criminal charges. Typically, criminal charges are not covered under any malpractice insurance, and the employer is not obligated to provide any legal assistance. But McCadden says the hospital administration studied the issue and decided that the nurses had made a medical error and were not guilty of a crime, so it decided to pay for their legal defense. She says the hospital would not necessarily pay for the legal defense of an employee if it seemed the criminal charges were justified.

The trial experience also opened McCadden’s eyes to a possibility she had never encountered with a civil malpractice case.

"One thing I learned that scared the hell out of me more than anything was that the quality peer review is not protected in a criminal case," she says. "So if you do a root-cause analysis or something like that, you would have to turn that over in a criminal case. In our case, they didn’t know about it, so they didn’t ask. They didn’t ask, and we didn’t tell."