Manslaughter Versus Malpractice

Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with attorney licensed to practice in your state.

A handful of recent cases, including a non-medical case, have doctors concerned that a medical claim could develop into criminal liability. 

In New York, a doctor was charged with “depraved indifference” murder for prescribing huge amounts of opioids. Patients met the doctor in his makeshift office – a parking lot.  Five of these patients later died.  

In Tennessee, a nurse was charged with reckless homicide for incorrectly pulling a dangerous drug from a medication dispenser and then administering that drug to a patient. That patient then died. 

In Minnesota, a police officer was charged with second-degree manslaughter for firing her weapon believing that it was her taser, killing a suspect. 

All of these cases were charged as types of manslaughter, which is an unintentional killing. The charges were based on “reckless” conduct.  Of course, none of the defendants planned (intended) to kill – the doctor just wanted the money he was paid and expressed no animus against his buyers; the nurse wanted her patient to receive a needed medication; and the police officer wanted to restrain the suspect without deadly force.  However, they all engaged in “reckless” conduct that carried a risk of serious harm to another. So, their conduct rose to potential criminal liability. 

This can be distinguished from medical malpractice, though.  Medical malpractice is a negligent mistake made while trying to help a patient. Reckless endangerment in the medical setting does not occur unless consideration of the good of the patient is overridden. 

An act or omission will therefore generally be civil or it will be criminal – it will not change from one to the other because the two have fundamentally different predicates. The doctor and the nurse, therefore, did not commit professional negligence that was charged criminally. They engaged in intrinsically criminal acts that took place in the medical settings of prescribing and medication administration.  

The distinction is then between a private harm to be personally litigated and compensated by money and a societal harm to be publicly prosecuted and punished by incarceration. 

The doctor was actually acting as drug dealer so his case does not add much. But looking at the cases of the nurse and the police officer help make these points clear. For example, depending upon the background facts (more on that shortly), picking up the wrong syringe in a procedure room can become a criminal charge if the patient is harmed.  

The police officer mistaking her pistol for her taser is analogous to the wrong syringe situation. She was a professional charged with the safety of another (a suspect in custody) just as a medical practitioner is charged with the safety of a patient. There were safeguards such as wearing the taser on her non-dominant side, just as drug-filled syringes are laid out in a set order and/or are labeled and/or color-coded. However, it is foreseeable that errors may still occur, so the responsible individual must act with due care. 

This point is exemplified in the case of the nurse. She withdrew Vecuronium (a paralytic agent) rather than Versed from a medication dispensing unit after punching in “VE” as an override and then ignoring multiple pop-up and packaging warnings that she actually had a paralytic agent. This set of facts moved the needle (no pun intended) from negligence to recklessness; from civil liability to criminal liability.  

This does not imply there are no system-wide problems that make errors likely. For example, the officer was supplied with a taser that looked like a pistol instead of one that did not, thereby increasing the likelihood of confusion. Similarly, a hospital should have protocols in place to prevent two similarly labeled syringes (one much more likely to be lethal) from generating confusion. However, the end-user is ultimately the responsible party because even if there is pre-existing systemic negligence. The end-user has the “last clear chance” to avert harm. 

Criminal cases against doctors are rare because reckless acts caused by doctors are rare.  However, keep these cautionary tales in mind and follow the presidential advice to “trust…but verify.”  

Medical Justice Notes: [Criminal cases against doctors for delivering care are rare. Still, with the backdrop of the opioid crisis, some doctors have been ensnared criminally for excess prescribing even when their patients had specific medically-justified needs. Be careful with prescribing controlled substances. If your patients are not improving or being weaned from such medications, refer to practices with specific expertise in pain management and addiction medicine. While such physicians may have prescribed the same doses and frequency as you, because of their background, training, and experience, they are more likely to weather a storm if a patient experiences harm under their care.]

Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.

Learn how Medical Justice can protect you from medico-legal mayhem… 

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.