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.

A physician recently asked about the following case: a midwife committed serious, wrongful acts in the care of a patient in premature labor with twins. The patient was initially discouraged from going to the hospital; a naturopathic doctor at the midwife’s birthing center was not competent to treat the labor medically; an outside midwife recommended the patient be transferred to the hospital but the patient was again discouraged from doing so; there was no equipment to resuscitate one twin born at the birthing center; and CPR was applied incompetently. That twin later died.  The midwife also lied to paramedics about the mother’s care and tried to conceal that the mother was, in fact, still in the birthing center, was still laboring and was bleeding profusely. The midwife was charged with manslaughter for the death of the twin delivered at her facility.

The inquiring physician was concerned as to where the legal line is drawn between malpractice and criminal behavior. He asked specifically if physicians are at risk for being criminally charged in cases about the medical care they render.

To answer this question let’s look at how the predicates for a criminal charge against a medical practitioner stemming from medical care differ fundamentally from those that underpin a claim of civil liability stemming from medical care.

The case of the midwife provides that distinction: her conduct was not just medically substandard – it was substantively egregious because she actively stood in the way of proper care. Her actions did not constitute a lapse in medical judgment such that she fell below the Standard of Care – which is what medical negligence is – but rather a sustained disregard for the welfare of the mother and the twins.

In other words, it was not a malpractice event that was charged criminally but an essentially criminal event that took place in the setting of medical care.

That distinction is essential in understanding where professional negligence (understood as a private harm to be personally litigated and compensated by money to make the injured party “whole”) ends and criminal negligence (seen as a societal harm and responded to by public prosecution and incarceration) begins.

Ordinary professional negligence by a medical practitioner – what we call “medical malpractice”-  occurs when there is a departure from good and accepted medical practice, the Standard of Care that a reasonably prudent practitioner would follow under the circumstances, but without any intention to actually cause harm to the patient.

Criminal negligence in the medical setting likewise is not intentional.  However, it is a situation in which the law sees a reckless disregard for the safety of the patient, an indifference to an actual known risk that rises to a level of “implied intent” because the medical practitioner simply continues anyway despite the great likelihood of harm.

In the case of the midwife, the midwife’s intention was to deliver the babies safely, not to cause one twin to die and the mother to be endangered. But consider her conduct in doing all that she could to stand in the way of the mother getting care at a proper facility after the need for such and her own inability to give it were manifest.  Also consider she then tried to cover up in a way that further endangered both the twins and the mother. This was conduct that was completely divorced from the safety of those under her care and therefore so grossly reckless and carried out without concern for its results that it was legally comparable to intent to cause harm.

An analogous example is the case of Dr. Milos Klvana, who consistently misrepresented his lack of credentials or privileges to his obstetric patients. He routed them away from proper hospital care and qualified physicians to his inadequately appointed office where labors were improperly induced and fetuses were improperly monitored during labor. High risk pregnancies involving Rh incompatibility and diabetes were severely mishandled. He was convicted of nine counts of second degree murder for the deaths of infants he had delivered under those circumstances.

Cases like these are rare but physicians are still concerned that if they are caught in a particularly unstable or difficult situation that they could be criminally charged. They are concerned a prosecutor will come in later and parse the events to find a crime where there actually was none.

Their concern is at what point and under what standard a practitioner’s negligent conduct could change from civil malpractice into a crime.

Let’s go back to the case of the midwife to look at this:

Her original acts were not of a level to suggest a “depraved heart.”

It was not even civilly actionable for her to take on the care of an apparently healthy twin pregnancy, because in her state, midwives can legally deliver multiple pregnancies.

Suggesting a home remedy for early labor as she did when labor started was only potentially negligent.

Inadequate staffing, in the person of an ill-trained doctor and a lack of equipment were negligent but only as standard professional negligence.

However, once the situation was a full-on emergency and even her back-up midwife insisted that the fetuses were too premature for out-patient delivery, she still prevented the mother from going to the hospital. Then, the requisite element for criminality accrued because she demonstrated a wanton recklessness as to the safety of the mother and the twins.  Add to this the extremely egregious conduct of lying to the paramedics about necessary clinical history / trying to hide a hemorrhaging woman from them. The midwife had clearly crossed the line.

In other words, professional negligence is a mistake made while trying to help a patient. But criminal negligence is conduct that reveals that there was actually no consideration of the good of the patient at all in a setting that a reasonable practitioner would know was inherently dangerous.

That last point is essential.  In professional negligence the practitioner does not perceive the risk to the patient that their continued actions cause – in fact, they incorrectly believe them to be proper. In criminal negligence, however, the severe risk of continuing is known to the practitioner and yet the practitioner forges ahead in the medical malconduct.

A well-known case that illustrates the latter point is that of Dr. Conrad Murray, who was convicted of involuntary manslaughter in the death of Michael Jackson. Dr. Murray was aware that Propofol was normally administered only in formal healthcare settings, such as hospitals, where patients could be monitored. Those precautions were needed because of the dangers of the drug. Instead, he gave it to Jackson in Jackson’s home; and he was insufficiently trained to resuscitate Jackson in the suboptimal setting should something go wrong..

By contrast, a doctor who misdiagnosed a child twice as being merely dehydrated when the child was, in fact, severely septic had his indictment for second-degree murder struck down.  There was no evidence he knew how sick the child was.  It was therefore his poor medical judgment that actually exonerated him of the criminal charge. His care of the child was substandard but it was not reckless because he never appreciated the gravity of the situation.

Criminal cases against doctors are rare for all these reasons – they are not malpractice cases that get out of control because a prosecutor sticks his nose in – they are the grotesque examples of medical care that is barely medical and not actually care.

Of course, a doctor who is charged with criminal negligence will not be able to look to their malpractice insurer to be involved because the allegation is completely outside the professional negligence that the insurance is intended to cover.

In summary: Criminal negligence by a medical practitioner is fundamentally distinct from professional negligence. Although neither is based on an actual intent to harm the patient, in the criminal setting there is a wanton recklessness towards the patient’s safety that creates implied intent. Professional liability coverage is inapplicable to defense to a criminal negligence charge.

[Medical Justice notes: Not all cases alleging criminal action are clear-cut. One case involved a surgeon who was harvesting a heart for transplant. In 2008, Dr. Hootan C. Roozrokh, was charged with prescribing excessive and improper doses of drugs, apparently in an attempt to hasten Mr. Navarro’s death to retrieve his organs sooner.

“At the heart of the case is whether Dr. Roozrokh, was pursuing organs at any cost or had become entangled in a web of misunderstanding about a lesser-used harvesting technique known as “donation after cardiac death.” Dr. Roozrokh was acquitted.”

As noted in the NY Times:

But [the patient], 25, who had been brain-damaged and disabled by a neurological disorder, did not die immediately after his ventilator was removed, succumbing eight hours later. The Associated Press said the jury issued a statement with its verdict saying the case illustrated a “desperate need” for clear policy on cardiac death donations.

Among transplant groups, the verdict on Thursday was greeted with a mix of relief and concerns about the impact of the case on potential donors.

“I think we must acknowledge the sensitivities of the events on the ground,” said Dr. Goran B. Klintmalm, a former president of the American Society of Transplant Surgeons, “and extend our sympathies for the surgeon.”

Mr. Schwartzbach said, “Nobody can give him back the three years he’s lost, both personally and professionally.”]