Jailing doctors for malpractice. Imagine the skyrocketing defensive tests and admissions that would take place if that were to happen.
Related posts:
- Medical malpractice verdicts
- The choice between malpractice and insurance fraud
- Will medical malpractice reform be included in the final health bill?
- "Fear of erratic jury decisions in medical malpractice cases has spawned a culture of fear"
- Not every medical error is malpractice
- Physician malpractice deposition observations
- Op-ed: Injured patients deserve medical malpractice reform
KevinMD.com on Facebook
{ 15 comments }
If you think medical care is expensive now, just imagine what this would cost to a fractious and litigious society like the USA. If you want to embrace this, first remember that Japan has a low rate of any kind of litigation and a general cultural bias against the kind of ultra-individualistic mindset that makes lawsuits against one’s neighbor or doctor so much more commonplace in the USA. I think this would be an unmitigated disaster. It figures that this kind of idea would spring from the knotty brow of an academic law professor. When are they ever expected to sweep up their mess?
Luckily, such a crazy idea would never happen in the US. Who went to jail for building the Ford Pinto?
Unless we want to make rules about who we can refuse to treat (no shirt, no shoes, no service) then we can’t be held to such riduculous standards.
Criminal court is for crimes – civil court is for other types of damage.
” Almost without exception, practitioners of medical malpractice are not called before a criminal court, are not sent to prison.”
Interestingly the author of this article admits that the system rarely ever functions as intended. Because the penalty is so great, the available due process is rarely used. The rare cases where a physician is called to answer in criminal court would be only for newsworthy or political purposes (think Mike Nifong); it would be far more arbitrary and caprecious than the present system.
Finally, who would be your treating physician. Would I stick around in medicine with the risk of jail time and family ruin when there’s millions to be made in the business world virtually free of any criminal risk.
The idea that criminal threats will somehow make my practice better is laughable anyway. When some lowbrow parent makes a threat of physical harm to me or my staff should the outcome be not to their liking I just call security and sign off on their care. Can’t find another anesthesiologist at 2a.m., well that’s just tough.
looks like someone ran out of Xanax over Christmas…
Too bad it is not the middle ages; that letter would’ve had a hell of a time making it to the newspaper from debtors prison.
It might work out much better in the USA than you think. The key is that the criteria for judgement are so different. For civil cases, like the current malpractice tort, the rule is “balance of evidence”. So if the jury thinks it is 51% possible that there was malpractice, they award judgement.
With criminal cases the rule is “beyond a reasonable doubt”. That is a vastly higher bar to cross. And, most crimes require “mens rea” or conscious intent. Proving beyond a reasonable doubt that there was conscious intent to commit malpractice is a much much harder job.
I think that the physicians would be in full agreement that those who can be shown to intend malpractice (beyond a reasonable doubt) do deserve criminal punishment.
I would agree to this if civil tort was then banned for medical malpractice and phycisians just had to answer in criminal court. Guess who would be totally against this?? ATLA…so this will never happen.
Nothing is preventing prosecutors from bringing criiminal charges against anyone, including doctors, as long as there is a case to be made for a crime.
The problem is that of recategorizing malpractice as a “crime” and using the state prosecution apparatus to prosecute them in criminal court. It says nothing about reducing the incidence of civil litigation, only encouraging more criminal prosecution.
The problem is one of definitions. “Malpractice” requires a relatively low standard for a jury finding of liability, “more likely than not”, or some similar threshhold. Using that standard–and there really are no others unless you want to use simple assault or manslaughter as a criminal equivalent–tries to slide a civil definition of a tort under the criminal bar, not raising the burden of finding for of civil malpractice so much as lowering the burden of criminal proof. Requirements of mens rea or not will not necessarily protect a defendant against unjust criminal convictions at the hands of an overzealous district attorney looking for publicity. There has been enough abuse in other cases from those kinds of prosecutors. Let the prosecutors sue the state boards of medicine if they think those authorities have not been diligent enough in disciplining bad doctors.
This idea seems not at all a search for justice, but a boondoggle for both district attorneys and even more so for criminal defense counsel. It is just a terrible idea, for which there no respectable parallel in any similarly-run legal systems.
Gullible, misled and even irresponsible juries have put factually innocent citizens on death row for crimes they were led to believe by prosecutors and police investigators were committed by the convicted. Now we are supposed to believe it will be an advancement of justice to ask similar juries to wade into the very murky area of medical malpractice and decide not liability but guilt or innocence.
This idea is just an abortion. It is beyond terrible, and would have absolutely disastrous consequences if implemented.
Dear RJH 12:57, et. al,;
In order for a “Crininal” standard to be applied in a ‘Japanese – like’ system we would have to have the legislature [ of each state ] define all of the elements of any particular crime associated with the potential 10,000 types of malpractice that could conceiveably arise.
Your comments, although well intended, about differences in criminal and civil standards, call forth a reminder.
That reminder is – that even with events that are now prosecuted criminally [ such as potential opioid overprescribing ] the government tries to employ civil standards to gain criminal convictions – and they often get away with it !!!
The “Criminal standard” for a doctor would be:
1- Direct testimony from a patient that the doctor knowingly gave the prescription in the bona fide absence of a painful condition.
2- Proving that the doctor didn’t examine the patient before issuing the prescription.
3- Proving that the doctor believed his patient was drug dependent [ an addict. ]
Some doctors have been successfully prosecuted because they were INTENTIONALLY prescribing to dependent patients without legitimate pain conditions.
However; there have been successful prosecutions [ and persecutions ] where the government got away with convincing a jury that the doctor was ‘guilty’ without having established a case base on criminal standards. { Bill Hurwitz case . ]
What makes anyone think that there will be less prosecutorial arbitrariness if we establish the ‘Japanese’ system?
Unfettered prosecutorial discretion based on political exigencies will continue to plague ANY system.
That’s just the way it is – and always has been – ever since we played COPS and ROBBERS, back in the day when we were kids.
Some of us just never grew up.
“Unless we want to make rules about who we can refuse to treat (no shirt, no shoes, no service) then we can’t be held to such riduculous standards.”
Absolutely do not agree with criminalization idea, but in regards to the above comment…it was my understanding that doctors can, in fact, end or refuse relationships with patients for no reason at all EXCEPT in emergent care. If such is the case, then no “rules” are needed…you already have the law’s permission to turn away anyone you wish.
to Anon 243, while you are, in theory correct, the practice of refusal of care can, at times be complicated (he may not LOOK emergent, but if he drops dead in the next week, expect a call from a lawyer) and the practice of terminating existing relationship is a HUGE hassle. It isn’t a matter of simply telling the patient to take a hike. You’re more or less obligated to arrange for their continued care. If the patient is so bad you want to ditch them, who on earth is going to take them?
With regard to criminality, the US legal system used criminal law for medical wrong doing at one time: we once viewed informed consent cases (especially wrong site surgeries) as battery. The ship sailed a long time ago on criminalizing most malpractice.
So you don’t want to be criminally responsible, and you don’t want to be civilly responsible.
When do you want to be held responsible?
Even from one that refuses to buy the excuses that are sold for “bad outcomes” and “physician first” medical and legal policy, the idea of criminalizing malpractice as a whole is the wrong road to follow. There are, however, a certain class of cases that do deserve referral for criminal prosecution. These cases, involving gross negligence, should be prosecuted criminally. A good example is a certain jackass anesthesiologist from the Seattle area (also licensed in Arizona with his medical training from LSU I believe). He had a problem with “sampling” one too many of his “healing potions” and it took the death of a patient to finally bring a stop to this monster’s actions. Getting doped up and going into the operating room? IMHO, that is a bit beyond the usual run of the mill malpractice.
The name “Jane Marshall” (writer of this controversial letter) is familiar to anyone who tracks medical liability news and opinion – she’s been writing to newspapers all over the country attacking the medical profession on all fronts for years.
Her letters never offer any factual data and almost always suggest that doctors are the worst thing that ever happened to health care….I’ve long suspected that she works closely with ATLA or one of the fake “consumer” groups, as her letters most often appear at critical legislative times and often parrot whatever the ATLA propaganda of the day is at the time…
Comments on this entry are closed.