Criminalizing medicine will lead to fewer doctors

by WhiteCoat, MD | in Physician | 58 responses

I recently read about a case involving the next step down the slippery slope of criminal prosecution of physicians.

First Michael Jackson’s physician gets prosecuted when his physician gives him an unintentional overdose of an anesthetic medication when trying to help him sleep. According to a previous discussion on this topic, most people seemed to think that prosecutors were justified in those charges.

Now, Dr. Mathew Wallack is being criminally investigated for illegally prescribing excessive doses of narcotics.

Who should be responsible when a patient dies from an overdose of medication and a physician allegedly prescribes “too much” of that medication? And how do we define “too much”?

Who should be responsible for making sure that patients aren’t getting multiple prescriptions from multiple physicians – which could result in an overdose and death?

Who should be responsible if physicians don’t have access to that information – preventing them from determining whether their prescription, combined with the patient’s other prescriptions, may lead to overdose and death?

Who should be responsible if physicians prescribe a one-month supply of medications and the patients take them all within a week and die?

This is why I think criminal prosecution of physicians who make mistakes is a bad idea. We may be able to pick out the “outlier” cases that might warrant criminal prosecution, but should we subject those practicing medicine to criminal prosecution by using vague definitions?

Take their licenses away. File civil actions against them. Jail time shouldn’t be part of the paradigm.

The further we travel down the road of criminalizing medicine, the more difficult it will become to draw a line between what is and is not considered “criminal” behavior … and the fewer physicians that will want to practice medicine.

WhiteCoat is an emergency physician who blogs at WhiteCoat’s Call Room at Emergency Physicians Monthly.

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Comments

http://roguemedic.blogspot.com Rogue Medic
We should be encouraging doctors, nurses, PAs, paramedics, et cetera to be more open in reporting mistakes – at least if we want to improve outcomes.
Criminalizing patient care has the opposite effect.
If we are more interested in having scapegoats, than we are in having good patient care, we will have more scapegoats and less good patient care.
Perhaps we should lock up the people who make these bad decisions that end up endangering other people.
http://nostrums.blogspot.com Doc D
Did Michael Jackson’s doctor “intend” to harm? I doubt it. Was he criminally reckless? That’s very hard to discern; the courts have had a difficult time deciding when a medical error, lethal or not, rises to the level of being criminal.
This case has already been tried by public opinion. The actual trial result will be buried on page 52, once people have had the chance to unburden their feelings, and the media has made several million off the scandal. A tragedy from start to finish.
http://www.seefirstblog.com Evan Falchuk
Dear White Coat,
I appreciate the point, but you need to draw lines *someplace*. It’s what the law is all about.
The law does not allow for prosecution for mere “mistakes” – you need to have some kind of malicious intent. I don’t think it is a good idea at all to give doctors some special status as immune from prosecution.
Thanks for the provocative post,
Evan Falchuk
http://www.pacificpsych.com/ pacificpsych
I was just considering a job offer as an in home pediatric neurosurgeon for a very wealthy individual with a large family. It would be inconvenient for him to take his kids to the ER should they suffer some trauma, because of the press, you know. I feel that as a psychiatrist I am fully qualified – nay, more than qualified – for the task. But hey, if they start criminalizing doctors for just doing their job, I’ll turn down the offer. Too risky! Then this individual will have to suffer the agony of an ambulance trip to an ER where his kids will be seen by some lowly non-private doctor.
ninguem
Herodotus found out what happened when you criminalize medical practice.
The Code of Hammurabi had fairly draconian punishments for bad outcome in medical treatment.
So when Herodotus traveled Babylonia, this is what he found:
“…….They have no physicians, but when a man is ill, they lay him in the public square, and the passers-by come up to him, and if they have ever had his disease or have known anyone who has suffered from it, they give him advice, recommending him to do whatever they found good in their own case, or in the case known to them; and no one is allowed to pass the sick man in silence without asking him what his ailment is……”
skeptikus
“The further we travel down the road of criminalizing medicine, the more difficult it will become to draw a line between what is and is not considered “criminal” behavior … and the fewer physicians that will want to practice medicine.”
That’s not much of an argument. Who cares if we have marginally fewer doctors? As the Dartmouth Medical Atlas shows, more doctors in a given community often has a negative effect on overall health outcomes.
So all doctors should be exempt for the normal standards of accountability that everyone else is subject to in order to . . . ensure that we are all in worse health.
Brilliant !

http://roguemedic.blogspot.com/ Rogue Medic
skeptikus,
That’s not much of an argument. Who cares if we have marginally fewer doctors? As the Dartmouth Medical Atlas shows, more doctors in a given community often has a negative effect on overall health outcomes.
Why do you conclude that the result would be marginally fewer doctors?
Why do you conclude, that because of an unrelated study, a decrease in the number of doctors would disproportionately affect the worst doctors?
Perhaps those doctors most successful, most competent, and most capable of retiring would be the ones disproportionately leaving the physician workforce.
On what do you base your unrealistic assumptions?
So all doctors should be exempt for the normal standards of accountability that everyone else is subject to in order to . . . ensure that we are all in worse health.
What normal standards of accountability are you subject to when treating patients with medicine?
How do you come to the conclusion that we are in worse health, when our life expectancy is continually increasing?
How do you conclude that this imaginary worsening of health is due to doctors?
Why should someone, such as yourself – since you clearly have no understanding of medicine – be able to decide what is good medical practice, then based on that conclusion, decide that a crime has been committed?
Brilliant !
Considering the absence of understanding demonstrated in what you have written, you should avoid ever using the word Brilliant!

http://silvercensus.com Kristie Miller
“Who should be responsible if physicians don’t have access to that information – preventing them from determining whether their prescription, combined with the patient’s other prescriptions, may lead to overdose and death?”
Just a thought but isn’t that what a pharmacist is for? People need to be held accountable for doing their jobs. If someone OD’s by abusing something then that’s on them but if a Dr. knowingly puts a patient at risk then they need to be punished for that.
Matt
WhiteCoat is always a little hysterical whenever a physician’s actions are questioned, but it’s a little early for it this time. He’s been charged. That’s all.
At this point, we know very little, but evidently the prosecutor has seen enough to decide to charge the physician. That’s why we elect him/her, to make that call. Now the citizens there will determine if they indeed believe the acts rise to the level of criminal liability.
The ever present doctor threat of “if you don’t give us or stop doing (pick whatever you want) to us we’ll all quit,” besides being an empty threat, is premature at this point.
EA
A lot of the replies to this post seem to imply that White Coat doesn’t think that physicians should be punished for any of their actions. That couldn’t be more wrong. All he is saying is that doctors mistakes shouldn’t be CRIMINAL acts.
If you read the post carefully, you will note that he suggests alternate punishments for severe mistakes…he is only suggesting that jail time not be one of them, unless the physician truly committed a crime (ie. murder).

Matt
There are crimes other than murder. And this physicians is charged with one. Do his acts meet the elements? We’ll see.

http://roguemedic.blogspot.com/ Rogue Medic
Matt,
There are crimes other than murder.
EA wrote unless the physician truly committed a crime (ie. murder).
You are not in any way contradicting what EA wrote.
ie is an abbreviation indicating that what follows is just for the purposes of example – not limitation.
The question is why so many people seem to think that medical questions should be handled in a criminal court. This is not something that can be expected to improve patient care. This is purely for the purposes of scapegoating.
An example is the trial of nurses in Libya accused of infecting patients with AIDS. That was just a political prosecution. The prosecution was only for the purpose of creating scapegoats. The lack of medical grounds for the prosecution did not matter, since this was a legal proceeding.
And this physicians is charged with one. Do his acts meet the elements? We’ll see.
Lawyers do not provide good oversight for doctors, any more than doctors would provide good oversight for lawyers.
Criminalizing bad decisions will only lead to even worse decisions.

Matt
“The question is why so many people seem to think that medical questions should be handled in a criminal court. ”
Do that many? There are what, about 1million physicians in the country? How many have ever been charged with a crime arising from their treatment of a patient?
“This is not something that can be expected to improve patient care. This is purely for the purposes of scapegoating.”
How would you know? The case is still be investigated, so the facts aren’t really known. How can you draw any conclusions at this point about the effect on patient care if you don’t know exactly what he’s charged with doing?
“An example is the trial of nurses in Libya accused of infecting patients with AIDS. That was just a political prosecution?”
What does a Libyan prosecution have to do with anything?
“Lawyers do not provide good oversight for doctors.”
You’re right. That’s why the jury isn’t made up solely of lawyers. But again, this case is being INVESTIGATED at this point. Do you object to criminal investigations regardless? If the prosecutor, who is elected by the people to make these calls, decides to pursue it, then it will go to a jury. The jury will provide the oversight giving guidance as to that community’s standards. In short, you’re a little premature on your objections.

http://roguemedic.blogspot.com/ Rogue Medic
Matt,
“The question is why so many people seem to think that medical questions should be handled in a criminal court. ”
Do that many? There are what, about 1million physicians in the country? How many have ever been charged with a crime arising from their treatment of a patient?
A lot of people have stated that this case should be handled as a criminal prosecution. What do the views of a lot of people on this one case have to do with the number of cases of criminal prosecutions?
“This is not something that can be expected to improve patient care. This is purely for the purposes of scapegoating.”
How would you know? The case is still be investigated, so the facts aren’t really known. How can you draw any conclusions at this point about the effect on patient care if you don’t know exactly what he’s charged with doing?
Please provide some evidence that criminal prosecution of doctors improves patient care.
“An example is the trial of nurses in Libya accused of infecting patients with AIDS. That was just a political prosecution?”
What does a Libyan prosecution have to do with anything?
Both are criminal prosecution of medical care.
Both are wrong.
“Lawyers do not provide good oversight for doctors.”
You’re right. That’s why the jury isn’t made up solely of lawyers.
Solely? How many lawyers are usually on a jury?
What does a jury know about differentiating between criminal acts and medical care? What does a prosecutor know about it?
But again, this case is being INVESTIGATED at this point. Do you object to criminal investigations regardless?
This is a case of a patient being treated by a doctor. This is a medical matter, but some prosecutor has decided that he/she knows more about medical care than the doctors.
If the prosecutor, who is elected by the people to make these calls, decides to pursue it, then it will go to a jury. The jury will provide the oversight giving guidance as to that community’s standards. In short, you’re a little premature on your objections.
My objections are not premature. t
This is a prosecutor who should be doing something other than Monday morning quarterbacking patient care.
The state medical board should investigate the patient care. If the state medical board feels that there is anything criminal, they mat refer it to a prosecutor.
What is premature is the action of the prosecutor.
How is it within the capacity of the prosecutor to provide medical oversight?
Matt
“A lot of people have stated that this case should be handled as a criminal prosecution.”
I guess when we’re using terms like “a lot”, we can both be right. Since the investigation doesn’t appear to be complete, I’m not sure how anyone can.
“Please provide some evidence that criminal prosecution of doctors improves patient care.”
I wouldn’t argue it does. I’m not a big believer in that part of it, but many people will argue the deterrent effect of criminal prosecutions.
“Both are wrong.”
Says a guy who knows next to nothing about the facts, since IT IS STILL BEING INVESTIGATED!
“What does a jury know about differentiating between criminal acts and medical care? What does a prosecutor know about it?”
You’re trying to make a distinction that doesn’t exist. Are you arguing that we should never, ever prosecute physicians criminally? Unless they want us to of course?
“How is it within the capacity of the prosecutor to provide medical oversight?”
It’s in his capacity to prosecute acts as crime. You seem to be arguing that unless a prosecutor is trained in a particular field where an act occurred, he can never pursue a criminal action. If he’s not an accountant, how dare he bring criminal financial fraud cases. If he’s not an architect, how dare he hold someone criminally negligent for the faulty design of a building which kills hundreds.
Physicians’ endless quest for immunity never ceases to amaze.

Elizabeth
“ie is an abbreviation indicating that what follows is just for the purposes of example – not limitation.”
Actually, “ie” stands for “id est” – “that is,” and means a restatement, not an example, so Matt is correct at least on the grammatical point. The abbreviation you are thinking of is “eg” – “exempli gratia,” which means, “for example.”
Another example of a crime that can be committed by a doctor in a medical setting is assault and/or battery (definitions of which is which vary somewhat by state) – in general, doing surgery or certain other types of medical care without patient consent may be legally equivalent to sticking a knife in someone in a bar fight.

EA
Your comment is a perfect example of the slippery slope that White Coat refers to in criminalizing medical errors. Let’s take your surgery w/o consent=assault statement. Suppose a pt undergoes a surgery and has a bad outcome. What if the pt says, “well if I had known that my bad outcome was a risk of my surgery, I wouldn’t have had the surgery…the surgeon didn’t tell me about that bad outcome.” Now surgeon gets sued for “improper consent” in a he-said she-said case that may or may not end up going to trial (I have heard of such cases not getting thrown out, although you would think they all would as long as there was a consent on the chart).
If we go with your example that surgery without consent is basically assault, could the surgeon in my above example be tried as a criminal for “improperly” consenting the pt? It is indeed a slippery slope.
Matt
The slippery slope argument holds little water. Why prosecute anything? The defendant will have ample opportunity to argue where the lines should be drawn, and society, as represented by the lawmakers and then the jury, will draw the line.
You also seem to be mixing criminal and civil matters (“the surgeon will be sued”). There’s a major distinction that you need to acknowledge.
http://roguemedic.blogspot.com/ Rogue Medic
Elizabeth,
I was wrong. I was thinking of e.g.
My reading of the usage was that it was an example, rather than a limitation.

Jenga
If you all haven’t figured out by now it’s time to get out of medicine, when will you. I have 400 acres of Missouri bottomland, that’s my plan. What’s yours? Seems as good place as any to spend a 150,000 dollar degree.
http://supremacyclaus.blogspot.com Supremacy Claus
The judge should be asked to dismiss this case prior to even discovery, then to sanction the prosecutor with all legal costs from his personal assets. This is justified by the potential deterrent to treating pain patients.
If the judge fails to dismiss the case, then a counterattack on the enemies of clinical care should be mounted. It should begin with total e-discovery of the computers of the prosecutor, searching for an improper motive, and of the judge searching for anti-doctor bias. The doctor should never be alone in uncertainty. He should always be joined by the adversary.
If that measure fails, local pain patients and their families should visit the offices of the prosecutor and judge, and just bust up the place, as a warning. The prosecutor and judge should be followed, and loudly questioned about their judgment wherever they go, to a store, to church, to their doctor’s office. Their doctors should asked to join a boycott and to refuse to treat the enemies of clinical care.
http://www.pulseuniform.com Hospital Scrubs
Whew! The doctor of the late Michael Jackson never wanted to be sued nor persecuted or any other doctors in the globe. However there will always be consequences on every negligence and carelessness that doctors and even nurses take. Being a doctor is such a great responsibility eh.
surgical resident
@anon
Agree 100%.
http://roguemedic.blogspot.com/ Rogue Medic
Matt,
Says a guy who knows next to nothing about the facts, since IT IS STILL BEING INVESTIGATED!
You presume that the prosecutor is justified in investigating this as a crime.
Police and prosecutors telling doctors what is appropriate care is wrong.
Unless the state medical board is referring this to the prosecutor, the prosecutor should stay out.
LisaMarie
Leave the doctors alone. I’m a chronically ill patient in pain. I’m tired of having my interests balanced against the “interests” of junkies as though they’re somehow equivalent. Let addicts scamming pain meds be responsible for the consequences of their choices and the rest of us get the care we need.
surgical resident
Wow.
The MD was giving him propofol at home for sleep. No way is that legal. In addition, I think you could certainly argue that the doc was reckless with MJ’s life.
I don’t think anyone thinks you should criminalize medical mistakes, malpractice, bad outcomes, but this is different. He gave him a drug that I only use on pt’s with a tube in their throat.
anonymous
Did any of you bother doing a Google news search on Dr. Wollack? He is alleged to have committed more than just a little oopsie mistake; the allegations are that he was running an illegal pill mill for narcotics.
Presumably the court will sort out all the charges. With any luck there’ll be a plea bargain, or maybe the case will be dismissed.
This hysteria is just… inappropriate, and not warranted by the facts. It’s one thing to have a dispute over someone’s clinical judgment, and quite another to illegally prescribe and administer narcotics. Don’t expect me to trust you to police yourselves when this is the attitude you take.
Matt
“You presume that the prosecutor is justified in investigating this as a crime.”
That’s what they do. Investigate the acts of everyone if the police believe it’s warranted, and then make a decision whether to charge them with a crime and bring it to a jury. Why this is news to you I don’t know.

http://roguemedic.blogspot.com/ Rogue Medic
Matt,
Then let me put it this way.
You presume that the prosecutor is justified in investigating medicine as a crime.
That is not what they should be doing.
If we want to improve patient care, there is no reason to believe that having patient care investigated by a prosecutor will do anything to improve patient care.
Earlier, I asked you for any evidence that might suggest otherwise. – Please provide some evidence that criminal prosecution of doctors improves patient care. – I am still waiting.
What do you have to suggest that prosecuting doctors (not just in this case) will improve patient care?

Matt
“You presume that the prosecutor is justified in investigating medicine as a crime.”
No, I presume that a prosecutor (or more accurately the police) are justified in investigating any person suspected of a crime. Note I didn’t say “medicine”, but the individual. That’s what the police do every day. I see no reason a medical degree should make one exempt.
“That is not what they should be doing.”
So the police should not be investigating crimes, and prosecutors should not be pursuing convictions? Why do we pay for them again?
“If we want to improve patient care, there is no reason to believe that having patient care investigated by a prosecutor will do anything to improve patient care.”
I think you missed my response. I’m not a big believer in the deterrent effect. However, the goal of society punishing people who violate the laws we enact is still a worthy goal, even for those of us who aren’t big believers in the deterrent effect. I believe only medical practitioners can improve themselves. They won’t be forced from the outside.
It seems you would not have police or prosecutors. And I guess we just have to agree to disagree on that.

http://roguemedic.blogspot.com/ Rogue Medic
Matt,
I see no reason a medical degree should make one exempt.
Nobody is suggesting that a medical degree makes one exempt to criminal investigation/prosecution. What should not be criminalized is the practice of medicine.
Being a doctor does not mean that everything that person does is the practice of medicine. Nobody has suggested that if a doctor shot someone, that should not be prosecuted as a crime.
That does not appear to be what White Coat was suggesting. I know it was not what I was suggesting, so why do you suggest it?
Not to get at the truth.
I think you missed my response. I’m not a big believer in the deterrent effect.
What does that have to do with improving patient care?
I asked if this would improve patient care. You come up with distractions.
However, the goal of society punishing people who violate the laws we enact is still a worthy goal, even for those of us who aren’t big believers in the deterrent effect.
Practicing medicine is different from other things that people do. Prosecutors should not decide what medical care may be prosecuted as a crime.
Determining whether something is good medical practice or bad medical practice is not something that should be decided by a prosecutor or a jury. They do not have the competence.
To keep up with the evolving knowledge in any one medical specialty requires a lot of time, more than many doctors seem to devote to it. Having a prosecutor pretend that this is something the prosecutor understands and can explain to a jury (possibly selected for their lack of medical background) is ridiculous.
I believe only medical practitioners can improve themselves. They won’t be forced from the outside.
I never would have thought of you as someone opposed to the current malpractice system, or do you claim that is medical practitioners improving medicine without being forced from the outside?
No contradiction in criminalizing medicine, then?
It seems you would not have police or prosecutors.
Where did I state that this has anything to do with eliminating police or prosecutors?
Why do you seem so intent on misrepresenting what I write?
Are you incapable of debate without misrepresentation?
Is this the kind of oversight that you would impose on the practice of medicine?

Matt
“What should not be criminalized is the practice of medicine.”
Then by all means, tell me where one draws the line? How do we know when it crosses over into a criminal act? What constitutes “practicing medicine” as opposed to say, supplying the wrong drugs for purposes they’re clearly not intended for? When you consider how few criminal prosecutions of physicians we read about, it would seem we do a pretty good job.
“I asked if this would improve patient care. You come up with distractions.”
You’re not thinking. I told you, repeatedly, that I don’t think a criminal action can improve patient care, because it’s not designed to. Only medicine can truly improve patient care. Other than if one believes that the deterrent effect will cause others to not do the same thing. Do you understand what I’m saying?
“Determining whether something is good medical practice or bad medical practice is not something that should be decided by a prosecutor or a jury. They do not have the competence.”
By that standard, then there should be no prosecution of anyone. What jury comes in knowing the ins and outs of DNA evidence? Ballistics? Fingerprint analysis?
“I never would have thought of you as someone opposed to the current malpractice system, ”
Again, the goal of a criminal prosecution or a malpractice case is not to improve the delivery of patient care – it’s to deal with one specific act. Your criticisms make no sense – you might as well criticize medicine for not designing better buildings.
“Where did I state that this has anything to do with eliminating police or prosecutors?”
You don’t want them to do their jobs if you determine things are too complex for they or the jury to understand. What do you think is appropriate for us simpletons to deal with? Not medicine, but civil engineering? How about accident reconstruction?

ninguem
Here’s a paper from the 1990′s.
http://www.painandthelaw.org/aslme_content/26-4c/alpers.pdf
There have been some fairly spectacular miscarriages of justice in criminal prosecution of good-faith efforts to treat pain.
Not to mention the more recent Anna Pou case in New Orleans during Katrina.
Michael Jackson’s doc, using propofol for sleep. Another spectacular case, as in spectacularly stupid. Unless there’s some subtlety of propofol as a hypnotic I’m not aware of. I suspect not. Nevertheless, he does not deserve criminal prosecution, he deserves license revocation.
paul
there are many reasons why i intend to decrease and hopefully eventually eliminate all together my clinical hours. this is not one of them. i agree with whitecoat’s basic premise (where do we draw the line) but i really just don’t see being jailed as a realistic threat that pertains to me. and with the whole micheal jackson thing i’ve definitely stopped considering giving propofol to people in their private homes, so that specific scenario is no longer an issue for me.
EA
@Matt June 9, 2010 at 3:54 pm
“The slippery slope argument holds little water.”
Um…OK. Gee I’m glad that I know that I have an expert on slippery slope arguments in our midst. The slippery slope has happened before (ie or eg (whichever you prefer) income tax–when initiated was paid by only top 1% of earners, or govt taking away rights–look to Patriot Act, health insurance mandate, etc, etc). So, I think the slippery slope is a valid concern. It’s ok to disagree with it, but don’t just tell me that it isn’t there.
“Why prosecute anything?”
I don’t think anybody is saying this. Nobody is trying to make an MD exempt from a criminal suit for forcing pts to have sex or giving pts too much morphine with the intent to kill (except perhaps for OR, WA, MT in certain circumstances), or running a narcotics drug ring out of their clinic. If MJ’s doc was running an illegal drug ring, then he should be prosecuted…maybe the prosecutor has such info. What I’m trying to say is that criminalizing medical mistakes or bad outcomes (“improper consent”=assault, pt ODs on 1 month Rx of pain meds b/c he took them all in one night=doc prescribing too many pain meds and therefore criminal) is a slippery slope.
“The defendant will have ample opportunity to argue where the lines should be drawn, and society, as represented by the lawmakers and then the jury, will draw the line.”
Hmmmm…why would docs be afraid of a jury of their “peers” and lawmakers deciding where the line should be?
You also seem to be mixing criminal and civil matters (”the surgeon will be sued”). There’s a major distinction that you need to acknowledge.”
You’re correct, I did mistakenly say “sued” instead of “prosecuted.” So sue me…or prosecute me…

Matt
” It’s ok to disagree with it, but don’t just tell me that it isn’t there.”
Your tax example makes little sense. It’s an example of the creep of government, sure, but not a slippery slope argument.
“What I’m trying to say is that criminalizing medical mistakes or bad outcomes (”improper consent”=assault, pt ODs on 1 month Rx of pain meds b/c he took them all in one night=doc prescribing too many pain meds and therefore criminal) is a slippery slope.”
You’re missing a very big point. Nothing has been filed at this point. And this guy is not being investigated with having caused a medical mistake or a bad outcome. That’s not necessary for a criminal prosecution. Which is why I think the failure to understand the difference between criminal and civil prosecutions is a major flaw in your position. Without knowing what he might be charged with, and what must be proven, I’m not sure how you can argue it’s inappropriate.
“why would docs be afraid of a jury of their “peers” and lawmakers deciding where the line should be?”
I don’t know. Perhaps they have an overinflated sense of self worth, and believe they are just too smart or good for anyone else to dare render judgment upon them. But that’s just a guess.

EA
“Your tax example makes little sense. It’s an example of the creep of government, sure, but not a slippery slope argument. ”
The creep of govt IS the slippery slope!
“You’re missing a very big point. Nothing has been filed at this point. And this guy is not being investigated with having caused a medical mistake or a bad outcome.”
Now maybe this is me just not being a lawyer again, but from what I’ve read, it sounds like MJ’s doc has been charged with manslaughter on the basis that he prescribed and administered propofol (practice of medicine) and it resulted in a bad outcome (death). He has not been prosecuted yet, but if he is for the above listed charge, the case, in my mind, revolves around prosecuting a doc for practicing medicine and having a bad outcome (enter slippery slope). If the prosecutor is arguing that MJ’s doc administered the propofol with the intent to kill, then that is a different story as that would be a crime that is already well defined.
We can all agree that this doc was acting outside the standard of care and unethically, but is that a crime? Or does he just need his license revoked in civil court? Per slippery slope argument, what happens when a 4 year old kid dies while under peds sedation in the ER so the doc can do a procedure (practice medicine)? Maybe I don’t understand how these legal work and you will probably correct me, but it sounds to me like the doc has already been charged with a crime for what I consider practicing medicine, and that is what prompted White Coat’s post.

hexanchus
“If the prosecutor is arguing that MJ’s doc administered the propofol with the intent to kill, then that is a different story as that would be a crime that is already well defined.”
As is involuntary manslaughter, also commonly called criminally negligent homicide.
Involuntary manslaughter is the unlawful killing of a human being without malice aforethought. It is distinguished from voluntary manslaughter by the absence of intention.
No intent is required – negligence that causes a death is sufficient in most jurisdictions. In many jurisdictions such as California, malice may be found if gross negligence amounts to willful or depraved indifference to human life. In such a case, the wrongdoer may be guilty of second degree murder.

EA
This is a good clarification. My point was to illustrate White Coat’s idea of the slippery slope. If he is charged with involuntary manslaughter for a bad outcome in this circumstance, then where will it go from there? When will any death during a surgery or during a hospital stay be classified as involuntary manslaughter?
Matt
When circumstances dictate in the opinion of the police and prosecutor and they bring the charges and there is a conviction at trial. If you’re not arguing for a blanket immunity for physicians, that’s where we end up at every time.

hexanchus
“We can all agree that this doc was acting outside the standard of care and unethically, but is that a crime?”
If it is determined that his actions were negligent, then by rule of law, yes it is. The element of intent is not required to convict for involuntary manslaughter (commonly called criminally negligent homicide).
In many jurisdictions such as California, malice may be found if gross negligence amounts to willful or depraved indifference to human life. In such a case, the wrongdoer may be guilty of second degree murder.
Matt
“it sounds like MJ’s doc has been charged with manslaughter on the basis that he prescribed and administered propofol (practice of medicine) and it resulted in a bad outcome (death).”
What I’m saying is that for a criminal action you don’t need the bad outcome. Think about a conspiracy to distribute marijuana for example – the cops don’t have to have the actual delivery.
” Or does he just need his license revoked in civil court? ”
Civil court can’t revoke his license.
“If the prosecutor is arguing that MJ’s doc administered the propofol with the intent to kill”
He doesn’t even have to have intent to kill. He can simply be reckless or criminally negligent. Although I believe the charge says he “unlawfully, but without malice” caused Jackson’s death.
” Per slippery slope argument, what happens when a 4 year old kid dies while under peds sedation in the ER so the doc can do a procedure (practice medicine)?”
I think that’s the point, and what many doctors, and laypeople for that matter, don’t understand. There is no way to craft laws for every possible permutation of human action. So what we do is empower first our elected officials to draft the laws, then another one to review conduct and make a determination if the acts rise to the violation of those laws, and then we put it to society to make the call. Where WC has a problem, and again many of us for that matter, is the fact that our opinions are not the final word on these things.
But we make the distinctions like you mention above all the time. The difference between what does and does not constitute criminal action. That’s why we have the trial, after all. This physician at a minimum got close to the line, and there’s consequences for that. Among them is that someone might decide that the criminal liability line was crossed. Yet WC, and maybe you, want to say “Well, it’s medicine, and because I (who haven’t done any investigation myself) say so.” That’s not how the world works.
As to the rest of WC’s post, the ubiquitous “There won’t be any more docs if you do this” cry, well that’s standard Chicken Little for him, and many physicians.

ninguem
http://www.weitzelcharts.com/
Link near the top, you can see the “60 minutes” clip where the prosecuting attorney told Ed Bradley that old people don’t feel pain like younger people. Therefore if a doc like Weitzel used opiates to treat elderly institutionalized patients, he could only be doing it because he was trying to play Jack Kevorkian.
surgical resident
@EA
“Now maybe this is me just not being a lawyer again, but from what I’ve read, it sounds like MJ’s doc has been charged with manslaughter on the basis that he prescribed and administered propofol (practice of medicine) and it resulted in a bad outcome (death”
Can’t believe I’m defending matt since I bet we disagree on many thinks, but he’s right here. Administering propofol at home isn’t medicine, heck, it’s almost assisted suicide which is also illegal.

EA
“Administering propofol at home isn’t medicine,”
It isn’t what the vast majority of docs would consider within his bounds as a medical doctor. As for its actual legality, I would bet that there isn’t a law on the books saying that one may not administer propofol at home. Honestly, I don’t know that for sure, and if there is a such a law, then I stand corrected and this doc should be prosecuted. But I doubt that such a law exists.
“heck, it’s almost assisted suicide which is also illegal.”
Something being almost assisted suicide isn’t a crime. This doc shouldn’t be allowed to practice. Nobody is arguing that. But until there is a well defined law on the books that he actually broke, then he shouldn’t be prosecuted as a criminal in my view.

Matt
How would you have it defined to your satisfaction? Do you know how many laws there would be if we had to literally define every possible course of action a human might take that society would want to punish?

Matt
If you want to know a little more about the facts of the case, here’s a link:
http://www.wdam.com/Global/story.asp?S=12338806
http://www.wlox.com/Global/story.asp?S=12250568
http://blog.gulflive.com/mississippi-press-news/2010/04/overdose_leads_to_string_of_drug_arrestes.html
Now, understand, most of that is the police’s side of the story. Before getting hysterical either way, we should wait until the defense gets their say.
Either way, we should let the process work, and not just grant blanket immunity because the guy has a license to practice medicine and it’s not crystal clear to WC what exactly happened.
EA
I’ll make one more comment and then I’m done. You guys bring up good points and I think I understand the legal side of things a little bit better, albeit still poorly. Hopefully, you can understand where docs are coming from too. And we all know that we’re not going to change each others’ minds.
My last point is that “criminalizing” medicine isn’t without precedent, which I think is partly what scares docs. Fortunately, so far it is rare in the US as you have pointed out.
However, currently in Saudi Arabia, there is a movement to allow patients to file charges in a criminal court against docs who make mistakes. Lastly, a well-known case in the 80s (Libby Zion) involved the Manhattan DA allowing the intern and resident caring for Ms. Zion to be investigated by a grand jury. The grand jury did not indict for murder (although were given that option by the DA) but did charge them with 38 counts of gross negligence for improper prescription of medications and failure to order diagnostic tests. This resulted in the current work-hour restrictions that many docs work under. Interestingly, work hour restrictions haven’t decreased medical errors; instead of fatigue causing errors, now team hand-offs cause them. Additionally, residencies have been lengthened in order to provide enough training. Despite this, many docs have told me that the younger generation of docs aren’t getting the training they need to be confident, competent physicians and surgeons.
To me that is the perfect example of why docs are afraid of criminalization of medicine. The above intern and resident were doing their jobs and made a mistake and had a bad outcome. Then they were charged as criminals. The results of that case have arguably affected patient care by arguably decreasing the number of truly well trained docs coming out of residency.
Anyway, I always love a good debate. It’s been a pleasure. Have a good day.
EA
http://www.epmonthly.com/whitecoat WhiteCoat
Been away for a few days and this post has generated as much buzz on Kevin’s blog as it did on mine.
I think that the debate on this topic shows how important the issue of criminalizing medicine has become.
Despite Matt’s mischaracterizations, I don’t think there’s a question that if a person has criminal intent, then criminal charges should be brought. That isn’t the issue I’m raising.
Given the above discussion, probably the most succinct way to put the issue I have is this: How do we differentiate between medical negligence and criminal negligence?
Read about criminal negligence. http://en.wikipedia.org/wiki/Criminal_negligence
How often do medical treatments expose patients to “a significant risk of injury”? Surgery. Chemotherapy. Pain medications. Anesthesia. The list goes on and on.
If a patient dies because of some good faith but negligent medical treatment, how do we decide whether or not the doctor rendering that treatment is charged with criminal negligence or not?
Matt would have us enrich the legal profession and have a trial of every case on its merits. Rrrright. Like the US hasn’t cornered the world market on lawyers already.
Just as lawsuits have created voids of obstetrical and neurosurgical care in many communities
Matt’s battle cry is always that “we don’t know all the facts” (except when he’s trying to prove a point, but that’s another story). In the Dr. Wallack’s case as an example, but the discussion can take place using a hypothetical.
If a physician prescribes a larger than usual dose of medications and a patient dies from the medications, should the physician be criminally prosecuted?
Want to charge Dr. Wallack with a crime for running a narcotic drug mill? If there is proof that he intended to illegally distribute drugs, I’m all for criminal prosecution of illegal drug distribution. Bright line rule. No problem.
However, if we now criminalize prescribing too much medication or too high a dose of medications when patients die from an alleged overdose, how are we going to determine what is “too much” medicine or “too high” a dose so that physicians in the future know what not to do? We can’t create reliability in a medical system or a judicial system if every criminal act has to be decided on a case-by-case basis. And no doctor is going to want to go through a criminal prosecution with a chance at going to jail every time a patient suffers a bad outcome. Look at the comments to this post. Doctors are getting fed up with medicine and leaving.
If the speed limit was changed every day on the highway and you could go to jail for a year for speeding, how fast would you drive on the highway? Would you even use the highway at all?
Go ahead, Matt. Enlighten me.
Aaaahhhhh. I know. Not only can we sue our way to better health care in civil courts but we should also prosecute our way to better health care in criminal courts. Why didn’t I think of that sooner?
By the way, anyone ever notice the lack of discussions about criminally prosecuting negligent decisions made by attorneys? Oh yeah, that’s right, prosecutors are attorneys.

http://roguemedic.blogspot.com/ Rogue Medic
Pottawattamie v. McGhee.

http://www.epmonthly.com/whitecoat WhiteCoat
According to the Supreme Court Wiki, Pottawattamie v. McGhee involved a question of whether prosecutors could be held liable for civil damages and had nothing to do with criminal charges.
http://www.scotuswiki.com/index.php?title=Pottawattamie_County_et_al._v._McGhee_et_al.

Alice
By the way, anyone ever notice the lack of discussions about criminally prosecuting negligent decisions made by attorneys? Oh yeah, that’s right, prosecutors are attorneys [end quote]
And so it is with Supreme Court justices. I am a bit lost on this thread, but I thought some government doctors were just given a type of immunity from the Supreme Court. Sounds a bit like the peer review process if you ask me. Maybe a jury of our peers isn’t always serving us fairly? Is it the law or the peers that are the problem?

ninguem
WhiteCoat, have you seen the Alpers paper on the subject?
http://www.painandthelaw.org/aslme_content/26-4c/alpers.pdf
I’ve had some sharp arguments with medical speakers at CME conferences when they say physicians prescribing opiates in good faith for dying patients face NO RISK of prosecution.
One meeting, I had happened to read the TV listings in the local paper that morning. Speaker said there was no risk, I stood up and told him to watch the story of the Naramore case on American Justice.
Speaker then goes on to babble about good recordkeeping.
Usually after these disasters, and there have been many, the relevant state legislature tries to create some guidelines to get medical board guidance before rolling ahead with a criminal prosecution unless there’s strong evidence of intent to kill, recklessness.
Because yes, medicine IS different. They do their work around life and death, there are double effect treatments, and, frankly, many less-than-ethical prosecutors. No the doctors won’t disappear, they will just avoid high-risk work. Wasn’t that long ago that physicians said they avoided giving sedatives and opiates to terminal patients because they were afraid of prosecution. Medicine works to disabuse doctors of that worry, and these cases pop up to prove the doctors right in the first place.
http://roguemedic.blogspot.com/ Rogue Medic
Matt,
“What should not be criminalized is the practice of medicine.”
Then by all means, tell me where one draws the line?
Prosecutors should not be the ones to draw the line. Prosecutors do not have the competence.
As you have demonstrated in you many comment, you do not begin to understand medicine.
How do we know when it crosses over into a criminal act?
How about when a state medical board states that it is a criminal act? At least that is a group of doctors making the decision of whether this is a crime.
When you consider how few criminal prosecutions of physicians we read about, it would seem we do a pretty good job.
When you consider how few massive oil spills we read about, it is clear the oil drilling companies do a pretty good job.
When you consider how few banking collapses we read about, it is clear that banks do a pretty good job.
Your example assumes that there is some relevance to your statement. There is none.Your statement is just as supportive of a conclusion that it is clear that doctors do an excellent job of policing themselves.
You continue to suggest that there will not be harm to the practice of medicine from doctors having to worry about what prosecutors will be prosecuting as crimes.
Then you admit that you do not think that there will be any benefit to patients from criminalizing medical practice.
I told you, repeatedly, that I don’t think a criminal action can improve patient care, because it’s not designed to.
You are advocating something that even you claim will not help, but you have not made a case that your prosecution is in anyway not harmful to patients.
You act as if criminal prosecutions will not affect patient care, or you assume that criminal prosecutions will not affect patient care.
Alice
Aren’t babysitters and daycare workers prosecuted when something terrible happens?
Alice
I found this thread highly interesting…….but found myself wondering…….the lines in the debate don’t seem to really be what’s criminal on a doctor’s part. The line seems to be what are a doctor’s real duties. What do doctors sign up for when they take this road? It seems the very few doctors being charged criminally weren’t practicing good will towards the patient, nor emergency procedures to save a life, or even helping one maintain a better quality of one. Imagine removing these limits from one segment of society (diplomats receive it other countries, and we have seen diplomats receive immunity here that was a travesty)
I don’t think the average doctor has anything to worry about, but they can’t give doctors a type of carte blanche. I think most parents would like a carte blanche in parenting, but we face criminal charges if we mess up…..even with our own children who we love more than life itself. There are good parents in prison right now because they neglected to help their child in a timely fashion. There are teachers being prosecuted for child molesting (some may be innocent, but at this point I haven’t heard teachers quitting their jobs in hoards. The law and prosecutions do what they are intended to do……….scare the average citizen into behaving in a moral and civil manner that serves them and society well). Policemen face criminal charges for split-second decisions.
I share this because it just seems like there is a larger issue here. The way things work at this point is the state has a vested interest in the protection of their citizens (and as long as doctors are human, they can potentially mess up. Their life saving skills do not make them saints, or above the laws the rest of us deal with). As another poster asked where would the legal lines be drawn? Doctors receive a type of doctoral immunity from prosecution? Then teachers use that precedent, policemen, parents, daycare workers, etc.
Doctors who use threats to quit medicine really should consider following through and leaving medicine (it just seems so juvenile……the toddler saying they will take their toys and play elsewhere…….or not at all. And I feel certain those empty threats bother good doctors too. It mucks up their own images). Which brings me back to the original question of what do doctors really sign up for? If that is taken seriously, I don’t think they have to worry about criminal charges. I wrote to my doctor and he read this board and wrote me back that malpractice rarely crosses his mind. He is thorough, and treats everyone with dignity. He prints your test results off and goes line-by-line over them with you so no errors are made. He’s not infallible, but his intent is to prevent mistakes, and help his patients. I seriously doubt he will ever be sued, or arrested. I really think doctors who are practicing in a manner to help mankind will this issue almost a non-issue.
Baraboo Doc
I have been working on a narcotics contact that can be copied and pasted into the EMR to address common problems and educate the patient on the issues and expected behavior.
Hope this helps protect the doc as well as get the best treatment for the patient. My hope is to use it for all controlled prescriptions, to avoid the perception the contract was used only once suspicion that the patient was already a drug seeking addict.
I would appreciate feed back on the form, tone, legality-will it be useful in your practice. Would you be willing to sign it after your next surgery before getting your pain control?
Thanks-
HERE IT IS:
Treatment Plan for use of Narcotics
To my Patient:
Certain medications have been designated by the DEA as “controlled substances” these include medications which may cause dependency and are at risk for misuse, diversion, or theft.
These medications can often be helpful in treating certain psychiatric conditions such as ADHD or anxiety disorder. Your doctor has a special license to dispense this type of medication and must follow certain rules to maintain this privilege and prevent harm. Your doctor must be vigilant to maintain this license to prescribe this type of medication
These prescriptions are monitored by the clinic, the pharmacy and the DEA and any variance can trigger a report or investigation. These medications must be written on special paper, cannot be refilled by phone or fax and must be written monthly.
In order to receive this type of medication we ask that patients follow certain rules to prevent misuse, dependency or overdose. Please review these rules and if you agree to abide by them sign below. If you have any question please discuss them with your doctor.
Following these rules will protect you and allow your doctor to continue to prescribe this type of medication to you.
Medication Contract for Controlled Substances:
I will only take the medication as prescribed. I will not increase the dose without discussing with my doctor first.
I will not share my medication – this is a crime. I will contact the police and report stolen medication to prevent misuse and diversion. I will keep a record of the police report number.
Lost or stolen medication will not be replaced. I will be careful to keep this prescription and medication secure.
I may be asked to submit a urine or blood sample for drug screen to monitor compliance and prevent abuse.
These types of medications should be avoided in patients with a history of alcohol or chemical dependency as they may present a risk of relapse. If this is the case I will be honest with my doctor and discuss my use/sobriety so as to achieve the best treatment outcome.
Prescriptions must be individually written, cannot be faxed or called in. Refills can not be provided on weekends, holidays or by on call personnel. I will plan ahead and request my refill before it is needed.
I will fill all controlled substances at one pharmacy: ______________________________________________and only by one provider or associate: __________________________________________________
This contract will be available to my pharmacy and my other providers.
Any violation of the above rules may result in no further controlled substance prescriptions and in serious cases legal action.
I understand and agree to comply with the Treatment Plan outlined.
_____________________________________________ NAME DATE
Anonymous
There are “scrupulous physicians” out there. How many deaths have to occur before something is done against these kinds of physicians. . This has grown to epidemic proportions in the United States. The combination of medications prescribed act together in a lethal and deadly manner and the practice by the Dr. of providing the medication resulted in the untimely and premature death without justification
If Drs. Are legally allowed to have total disregard for patient’s health, well being and safety prescribing in combination prescription medication that can/and/or has killed their patients then it’s time for a change. The allegations against Dr. Wallack include the prescription of too many dangerous drugs when taken together constitute a “Lethal Cocktail” of medications. This is dangerous and reckless.The allegations against Dr. Wallack include the prescription of too many dangerous drugs when taken together constitute a “Lethal Cocktail” of medications. This is dangerous and reckless.

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