Criminalization of Physician Violence

Prepared for:

Michael Guth

Faculty Mentor

MICHAEL A. S. GUTH, Ph.D., J.D. Professor of Financial Economics and Law send e-mail (E-mail is quickest method of contact).   116 Oklahoma Ave.   Oak Ridge, TN   37830-8604   Phone: (865) 483-8309

Prepared By:

Peter H. Rast

White Collar Crime

CJ5009

Physician Violence - Who Is Involved?

Liederbach, et al, appear to define physician violence as violent crimes committed by physicians in the course of medical practice ⁽¹⁾. However, perhaps the group should be expanded beyond physicians to include most health care practitioners. For example, the National Practitioner Data Bank receives reports of judgements, complaints, and actions taken from state medial boards, DEA, FDA, and various federal medical organizations such as the Veterans Administration and the Bureau of Indian Affairs. This data bank lists twenty seven categories of health care practitioners for which it records data ⁽²⁾. Of the approximately 192,000 reports filed in 2002, 133,000 were for physicians - the next largest groups were dentists, chiropractors, and nurses. However, the data bank also includes such diverse categories as acupuncturists and social workers.

To be complete, a definition of physician violence should be expanded to cover health care professionals and include at least those professional categories listed in Table 1 of the National Practitioner Data Bank. It may be useful to re-label physician violence and call it violent medical crime. After all, dentists and nurses have been convicted of crimes committed in the course of medical practice or in a medical setting. And, it appears from the data that acupuncturists and social workers are also involved in medical care and generate reportable activity.

Health Care Professional Malpractice versus Violent Medical Crime

Malpractice is defined as:

An instance of negligence or incompetence on the part of a professional. To succeed, a malpractice claim must also prove proximate cause and damages ⁽³⁾.

Medical malpractice is defined as:

A doctor's failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under the same circumstances.

Negligence is defined as:

The failure to exercise the standard of care that a reasonably prudent person would exercise in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights.

Gross negligence is defined as:

A conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party.

Criminal negligence is defined as:

Gross negligence so extreme that it is punishable as a crime.

Criminal conduct can be said to be conduct proscribed by law. Such conduct includes many types of non-violent conduct such as billing and other financial frauds. However, violent criminal conduct by physicians is considered conduct that is harmful and meets the criteria, the corpus delicti, of criminal statutes as applied to the medical arena. The distinction, then, is largely when malpractice crosses the line to criminal conduct or when medical conduct is deliberately criminal. Negligence and gross negligence can tip the balance between malpractice and criminal negligence or conduct.

Physicians and other medical practitioners are at risk if prosecutors are able to prove intent to harm, reckless endangerment or willful neglect ⁽⁴⁾. Medical mistakes, in and of themselves, are not crimes. However, prosecutors second-guessing of physicians is such that physicians may not know what actions are criminal or when medical mistakes become criminal until charges are filed ⁽⁵⁾.

Most medical misadventure is malpractice and is dealt with by civil action as a tort. Doctors carry malpractice insurance to guard against malpractice claims. However, doctors are being charged criminally for actions and decisions that have historically been considered medical error. And, it is not always easy to tell the difference. Doctors have been criminally charged for over-prescribing medication and for under-prescribing medication ⁽⁶⁾.

What Are the Dimensions of Violent Medical Crime?

Discerning the difference between medical malpractice and violent medical criminal activity is very difficult and laborious. Current data bases are such that research requires each report or case be individually evaluated for criminal dimensions. To complicate research further, convictions may be overturned so that an instance that is treated initially as a medical crime may ultimately be resolved as malpractice. Defining and quantifying the problem of violent medical crime is not easy.

In addition to the National Practitioner Data Bank, complaint statistics are reported by fifty one medical boards and aggregated by the Federation of State Medical Boards of the United States, Inc. The Federation reports actions of state boards by state and type of action. In 2003, states took 5,230 enforcement actions ⁽⁷⁾. Already it is apparent that most of the reports filed with the National Practitioner Data Base did not result in state enforcement actions. Part of the difference in reporting results from the types of reports filed with each organization. The majority of reports filed with the National Practitioner Data Base are malpractice award filings although that data base includes state enforcement actions creating duplication.

Of more use in defining the problem may be the Questionable Doctors Disciplined by State and Federal Governments data base maintained by the Public Citizen Health Research Group ⁽⁸⁾. Unfortunately, this data base is no longer available to new subscribers and is no longer being updated. As a result, there is apparently no database that can be easily queried for criminal actions against medical practitioners. The most recently available information suggests criminal convictions are few.

A proxy for criminal convictions might be punitive damages awarded in malpractice cases. Punitive damages are awarded in less than 1 percent of medical malpractice cases ⁽⁹⁾. If all of the 192,000 reports to the National Practitioner Data Base are malpractice awards, at most 2,000 punitive damage verdicts might have been entered in 2002. If all these punitive damage awards also resulted in criminal convictions, about 2000 cases of violent medical crime might be a reasonable upper bound. The actual number is probably lower, but at present no method which is not excruciatingly difficult exists to refine this number.

Societal Effects of Criminalization of Medical Malpractice

Reproduced here in its entirety is a letter to the editor commenting on a criminal prosecution of a doctor for mis-prescribing pain medication:

Letters to the Editor - April 15, 2002

Physician's conviction will deter proper prescribing of pain medication

Regarding "Florida physician guilty of manslaughter" (AMNews, March 11):

As an emergency physician in the state of New York, I do not own a controlled substance pad (formerly, triplicate prescriptions). Now I know why.

James F. Graves, MD, of Pace, Fla., presumably wished to provide his patient with continuous pain relief and, realizing that failure to do so might alienate his patient, ended up facing charges of manslaughter for prescribing pain medication.

In my own practice I tend to be liberal in the use of analgesics in the emergency department -- I prefer to be duped by a drug seeker than to leave a person who is genuinely in pain. However, at discharge, I do not prescribe medications that require a controlled-substance form.

I am quite certain that the verdict in Dr. Graves' case will deter physicians from the judicious use of analgesics, and as a result many patients with painful conditions will suffer.

Physicians have both the burden and the privilege of regulating certain analgesic substances. I believe that our prescribing practices should be subject to peer review and, if necessary, sanction by the professional licensing bodies, but criminal prosecution for prescribing analgesics to a patient who is believed to be in pain is unfathomable. Who will care for patients with painful conditions if we as physicians are frightened to use our prescription pads?

--David Lobel, MD Brooklyn, N.Y.

http://www.weitzelcharts.com/ama_news.htm

The second to the last paragraph suggests the effect of criminal prosecution on doctors. Defensive medicine is a generic term suggesting extreme caution in the practice of medicine. It has been applied to overuse of diagnostic tools and to medicine practiced to avoid malpractice suits. However, it could also be true that extra caution benefits the patient, even as it increases costs.

Although the number of criminal prosecutions of medical practitioners is small, doctors know about them and react accordingly. From the practitioner's point of view, the issue becomes one of risk management as well as the practice of medicine. This argument also applies to medical malpractice of which criminal medical violence could be considered a subset.

Criminal Sanctions Applicable to Violent Medical Crime

California does not appear to provide specific criminal statutes for violent medical crime, however, assault and battery, manslaughter, and murder statutes are applicable and have been applied. Although medical procedures are performed with informed consent, medical misadventures will normally be outside such consent and would constitute battery at minimum. For example, removing the wrong lung is not within the given consent. This would be malpractice and battery at least. If the doctor performing the surgery is intoxicated, over medicated, tired, unskilled, or otherwise impaired or unqualified to perform the procedure, the act might rise to the level of negligence, gross negligence, or criminal negligence. The degree of negligence might then tip the scales to criminal responsibility and result in criminal prosecution.

Acts of medical professionals that are deliberate and intended to harm are criminal by virtue of the definition of criminal acts. Certain other acts such as mercy killings or assisted suicide are intentional, intended to achieve a higher and/or altruistic purpose, but are nevertheless criminal by statute. Examples of California Penal Code statutes which might apply to medical violent crime follow ⁽¹⁰⁾.

PC § 220. Assault with Intent to Commit a Felony

Every person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288 or 289 is punishable by imprisonment in the state prison for two, four, or six years.

PC § 203. Mayhem

Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.

A surgeon who purposefully or negligently amputates or removes the wrong body part may have committed mayhem. Or, one who administers anesthetic and commits a sexual offense may also have committed this crime. (Rape by incapacitation is implied by reference.) In this case, intent to harm and in a specific manner must be shown. The perpetrator must also meet the definition in PC § 240.

PC § 240. Definition of Assault

An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

PC § 245. Assault with a Deadly Weapon or Force Likely to Produce Great Bodily Injury

(a) (1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

Aggravated assault involves the likelihood of great bodily harm. Intent to harm is not an element, but the perpetrator must have the present ability, such as a scalpel in his hand.

More likely to be successfully prosecuted are the battery statutes. Assaults are often thought of as incomplete batteries and physical harm doesn't result. When harm from physical contact results, the violation would be battery, mayhem, manslaughter, murder, or some crime involving actual harm.

PC § 242. Definition of Battery

A battery is any willful and unlawful use of force or violence upon the person of another.

Surgery is lawful if performed with informed consent. However, operating on the wrong limb or when one is not fully trained or functioning does not come under the scope of informed consent. Who would agree to be operated on by a medical device salesman or a drunk physician? The use of force or violence against a patient in a willful and unlawful manner must be shown.

PC § 243.25. Battery On Elder of Dependent Adult

When a battery is committed against the person of an elder or a dependent adult as defined in Section 368, with knowledge that he or she is an elder or a dependent adult, the offense shall be punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

This section makes battery on a specific class of individual a separate crime. It is necessary to show the person is the person defined by statute and that the batterer knows it. It is possible that this statute will see increased application as the baby boom generation retires.

PC § 243.4. Definition of Sexual Battery

(a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).

(b) Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).

c) Any person who touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).

(d) Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person's will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).

Section c of this code section is interesting, although the other sections also apply to medical settings. Section c specifies that deception for sexual purposes by medical professionals is unlawful. The sections are lengthy, so suffice it to say violations of the sections require the acts be for the sexual gratification or arousal of the perpetrator. Section c) is often applied to sexual violations of mentally ill, mentally handicapped, or drugged patients. Perpetrators include doctors, dentists, orderlies, and other institutional staff.

PC § 192. Manslaughter

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds (note: only kinds are listed here):

(b) Involuntary-in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

c) Vehicular-

(1) Except as provided in Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

Involuntary manslaughter would apply to a medical procedure if the act is committed without due caution and circumspection or with criminal negligence ⁽¹¹⁾. Would vehicular manslaughter be considered medical violence if committed by an ambulance driver? This requires some thought. There is another section of the Penal Code which defines gross vehicular manslaughter while intoxicated.

PC § 187. Murder

(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

Deliberate acts committed with the intent to cause death or great bodily harm that results in death would qualify as murder. It is also possible to commit murder if death results and the act is committed with an awareness of high risk of death or gross criminal negligence. The distinction would be in the degree of murder prosecuted.

Administrative Sanctions Applicable to Violent Medical Crime

Business and Professions Code §§ 480-490 ⁽¹²⁾

A criminal conviction, guilty plea, and, in most cases, a plea of nolo contendere, can be grounds for denial, suspension, or revocation of a license.

Business and Professions Code § 493

The California Medical Board can investigate a plea or verdict in a criminal case to determine if the crime is substantially related to the practice of medicine. Other boards can do the same for their respective professions. Most licensing laws require that the conviction be substantially related to professional responsibilities. However, in some circumstances the law specifies the crime must be the one of moral turpitude.

Welfare and Institutions Code § 14123

A criminal conviction for a doctor may result in automatic license suspension if the conviction involves fraud or abuse of a medical program or a suspension from the Federal Medical Care Program.

An Interesting Subsidiary Issue Relating to Societal Impacts

An interesting related issue is that of adherence to established medical guidelines as a malpractice and criminal defense. Appendix A reproduces in its entirety a recently received email article that bears directly on the issue of medical guidelines as a defense in criminal prosecutions. It appears that accepted medical guidelines may be considered inadequate, if not negligent, in the practice of medicine, even when they have been professionally prepared and receive official sanction. Since these guidelines would be questioned by elected representatives of the public - district attorneys - it could be said the public is no longer willing to accept professional opinion unchallenged ⁽¹³⁾.

Conclusion

What is unfortunately clear is that defining the dimensions of the violent medical crime problem is exceedingly difficult and, at present, results in only rough and very debatable approximations.

The first problem is one of definition. Who should be included? It is reasonable to consider expanding the definition of violent medical crime to include at least doctors, chiropractors, dentists, and nurses. It can be argued that the definition should include those professions listed by the National Practitioner Data Base.

The second problem is that of data accumulation. At present, no easy way to quantify the problem of violent medical crime appears to exist. Data is not recorded in a convenient manner and is not centralized. The best, but still inadequate, data base, is no longer available. To get a handle on the problem requires laborious searches of multiple databases, as many as fifty one, and possibly hand searches of identified disciplinary files. This is a monumental task and is unlikely to be undertaken until the problem of violent medical crime becomes much larger.

Complicating the issue is that criminal sanction for violent medical crime involves statutes that are not specific to the crime. Ordinary criminal statutes are generally applied to violent medical crime and are usually applied at the county level. This may require that any comprehensive research in the area be conducted at least in part at the county level. There are fifty three counties in California and over three hundred in Texas. The potential difficulty is evident.

Appendix A

LIFE AND DEATH IN THE QUALITY ERA ⁽¹⁴⁾

One of the first great obsessions of the twenty-first century is quality. In business, quality used to be an intangible attribute of a company, like "integrity" or "commitment". That changed in the late eighties with the arrival of ISO 9000, a system for measuring the operational quality of corporations by checking whether they complied with standardized procedures.

In the nineties the ISO system caught on big, with the field of quality management emerging as a business panacea, promising to streamline operations and increase profits. And it worked. Standardized operating procedures helped company managers monitor and continuously improve performance. It worked so well, in fact, that the idea of quality management began making its way into fields other than business. For example, medicine.

In 1991, a Harvard medical study showed that preventable mistakes in healthcare were killing as many people yearly as would die if a jumbo jet crashed every day. Searching for ways to reduce these errors, medical professionals took a lesson from business: they began standardizing medical treatment.

The so-called "clinical practice guidelines" for doctors were a major component of the new quality initiatives. Medical associations like the National Kidney Foundation and the American Cancer Society deployed panels of experts to review information on various diseases, identify the most effective treatments, and create guidelines for physicians to use.

What was supposed to help improve the quality of healthcare soon became a thorn in the side of groups like the Association of American Physicians and Surgeons (AAPS). Their rationale: you can't apply rigid business principles where human lives are concerned. Standardized procedures, said the Association, don't leave room for the physician to apply his own judgment.

Proponents of quality management like Dr. David Sackett, one of the system's pioneers, object that the guidelines only recommend procedures, but still allow doctors to make the final call. But in a recent issue of the Healthcare Ethics Committee Forum, doctor Edward Spencer and economist Ann Mills reported that many medical guideline initiatives want to eat their pills and have them, too.

Groups like the Institute of Medicine, say the researchers, name "meeting individual patient needs" as a top priority in healthcare, but then rate the quality of same by doctors' compliance with guidelines. The message to physicians: you're free to do what you want, but we'll make you look really bad.

And looking bad can be costly for a doctor. Experts say that clinicians may start prescribing guideline treatments simply as a shield against being sued, and not because the procedures are in their patients' best interests. Bill Clinton said that if doctors follow guidelines it should be presumed that "they didn't do anything wrong." The states of Maine, Minnesota, Florida, and Washington have all experimented with putting this reasoning into law by allowing doctors to use adherence to guidelines as a defense in malpractice cases.

Court, however, was where medical quality management recently took one of its biggest hits. Last year, a southern U.S. court heard the case of a 53-year-old man who died of prostate cancer after his doctor failed to send him for testing that might have detected the condition. The accused physician, Daniel Merenstein, stated in his defense that he had discussed pros and cons of the testing with the patient, just as guidelines from several major medical groups prescribed, and the two of them had opted to forego the procedure.

During the trial, the prosecutor attacked the whole notion of guideline-based medicine, calling it a cost-saving measure that ended up costing lives. Four other doctors testified for the prosecution that they would order prostate cancer tests without discussion for any male patients over fifty, despite the fact that this flies in the face of recommendations.

In the end, the jury agreed that the guidelines were negligent, one member saying it was hard to believe that "ignorance of [test] results was preferable to knowledge." They acquitted Merenstein himself, but found the facility where he'd been working liable for $1 million.

At least the guidelines in Merenstein's situation were attempting to help patients. The New York Press reported this month that some practice recommendations may result from less altruistic motives. The news service found that nine of ten professionals who write guidelines published in medical journals have financial ties to the drug industry, suggesting that medications may be recommended solely for profit. Until such conflicts of interest are addressed, medical quality guidelines will be fraught with uncertainty, hindering them in delivering the improvements that proponents of the quality era promise.

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COMMENTS FROM THE PROFESSOR:

Peter, Excellent work.

I am interested in posting this to the Internet along with your other two assignments. There is an area of medical malpractice / sexual battery that is prevalent, but you did not touch upon it. From time to time, I get inquiries or comments from usually young males who say things like a doctor tried to get them erect during a sports physical for high school.

There have been a dozen or more articles that say "good looking" patients get more time with doctors than "average or below average looking" patients during office visits. In the case of young college and high school athletes, some doctors are so relieved from seeing flabby 50 and 60 year olds, that they decide to have a "little bit of fun" with the young patient during the exam. This involves giving patients unnecessary prostate checks, when they are only 17.

It also involves doctors waiting until genitals are being examined, and then ask the patient "Do you have a girlfriend?" 9 times out of 10 these sexual assaults occur because the patient is getting his first exam and does not know what is normal and what is abnormal. One doctor had a patient do jumping jacks in the nude while the doctor watched. There was no reason jumping jacks could not be done with underwear or shorts on. Basically, we have some pervert doctors out there.

I have been wondering whether I need to write an article on this subject and how I could do it without appealling to the porn literature but at the same time doing it in a format that members of the public would find. Maybe I should write an article and post it on the web.

Mike Guth