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The criminalization of medical negligenceby In the spring of 1992, a sheriff's deputy was shot in the line of duty. He was transported to a level-one trauma center where surgeons operated on him all night. Despite all attempts, the deputy died two days later. An unnamed informant complained to the sheriff's office that the care the deputy had received was substandard. The sheriff's office reported this complaint to the district attorney (DA) who started an investigation into the care provided by the surgeons and anesthesiologists. Although this may sound like the beginning of a mystery novel or a very bad nightmare, it actually happened to a well-respected thoracic surgeon.1 Unfortunately, the ordeal was neither over in 200 pages nor was it over in a night. In fact, it lasted five and one-half years. During this time, the surgeon was not allowed to practice and may never regain prior status in the field. A further look into the case shows how this kind of action sets an ugly precedent. High-profile case At the end of March 1992, Nelson Yamamoto, a Los Angeles County sheriff, was shot multiple times as he entered the backyard of a California residence where there had been a call about possible drug activity or domestic violence. Yamamoto was taken to the Drew University Medical Center, a level-one trauma center.2 He was in shock and was resuscitated, then taken to the operating room. Yamamoto's injuries required nine hours of surgery and he was taken to the intensive care unit (ICU) hypothermic, with a coagulopathy and severe hypoxia. Knowing the high-profile nature of the case, the Drew University department of surgery chair, who was out of town at the time, asked Dr. Rosalyn Scott, the vice-chair, to look in on the patient. Dr. Scott subsequently contributed to the care of the patient along with an ICU fellow and an emergency room resident rotating in the ICU. The patient continued to have respiratory and fluid problems. He was also tachycardic and his heart rate did not respond with fluid administration. After approximately 36 hours in the intensive care unit he died. In most surgical communities, this case would have been discussed among the providers and at a morbidity and mortality conference, and reported to the hospital risk manager.3 Any deviations in care would have been discussed with the team involved, and any actions would have been carried out by the hospital. The family of the officer also would have the right to file a malpractice claim. Because of the anonymous complaint to the sheriff's office, however, the matter was referred to the district attorney's office, which in turn investigated this case as if it were a homicide. This investigation was completed with the help of the state medical board, although it appears that the medical board allowed the district attorney's office to take the lead.1 The medical board's representative to the investigation asked fewer than 5 percent of the questions during the hearings. With the investigation in hand, the DA went to the grand jury, but the jury would not hand down the indictment. The DA therefore decided to recommend the licenses of four of the physicians involved (two surgeons, including Dr. Scott, and two anesthesiologists) be revoked. The joint investigation (with only one physician-representative involved) was taken by the medical board as a complete investigation. The four physicians were charged with gross negligence.1 Several organizations and internationally recognized experts in trauma and critical care reviewed the records of the Yamamoto case. They agreed that the charges brought by the medical board were unfounded, and wrote to the medical board with their findings. Dr. Scott had, in the interim, passed her recertification in thoracic surgery with a higher than average score and the other surgeon had passed the certifying exam in general surgery and the critical care examination. Even with this evidence, it took the medical board approximately two years to rescind the charges.1 Media scrutiny Recent newspaper reports focused on the cases of two physicians who were criminally charged with the deaths of patients in their care.4 One physician—a surgeon—was recently found guilty of involuntary manslaughter. It is clear from these cases and others like them that medicine, previously thought to be immune from criminal prosecution, is now becoming increasingly subject to scrutiny by district attorneys and to prosecution in criminal courts. This scrutiny is evidenced in the lay press. A case was reported in which an eight-year-old boy died during routine ear surgery, allegedly due to the error of the anesthesiologist.5 The article reported that the anesthesiologist was charged with manslaughter and criminally negligent homicide. He was found innocent but lost his license. People outside of medicine are asking whether medicine has enough safety checks and protocols to stop recurring errors. Others ask whether the current system is effective in policing the profession. There are many examples that would lead one to believe that the current self-policing practiced in medicine is not adequate. An example of this inadequacy is the case of a physician who was found guilty of second-degree murder.6 This physician performed a second trimester abortion on a patient who subsequently bled to death from a three and one-half inch tear in her cervix and vagina. At the time of this abortion, the physician's license had been revoked, but because the action was on appeal, he was allowed to continue to practice. Records revealed that he had been disciplined several years before over five other "bungled" medical procedures. Several consumer watchdog groups have become interested in what they perceive as inadequate self-policing of physicians. A study in New Jersey found that 3 to 10 percent of the 26,965 physicians licensed to practice medicine in that state were either incompetent or impaired; but just a handful, about .5 percent, are ever disciplined.4 According to an Illinois medical-consumer group, between 1990 and 1993, the number of quality-of-care complaints to the state professional licensing board grew from 622 to 801, but the citations dropped from 62 to eight during the same period.7 However, it appears that over the last five years the tide is changing. The Federation of State Medical Boards has reported that disciplinary proceedings are on the rise.8 In 1994, the total number of disciplinary actions rose by 38 percent, while the number of physicians who had their licenses revoked or suspended increased by 11.8 percent, compared to 1983. The Federation of State Medical Boards also reports 4,432 disciplinary actions against 3,880 physicians in 1996.9 Of these, 36 percent resulted in the loss of licensure or loss of licensed privilege, 28 percent resulted in a restriction of license or licensed privilege, 21 percent resulted in other prejudicial action, and the remaining resulted in non-prejudicial or administrative actions. The American Medical Association, along with other medical societies, filed an amicus brief in one case in New York.10 In the brief, the societies argued that medical decisions are purely a matter of the physician's professional judgment. The medical societies agreed that physicians who recklessly and wantonly cause patient injury or death should be subject to the penal law, but that a case based on a disagreement about a physician's clinical judgment was not in violation of any criminal statutes. Mistakes and wrong decisions are made in medicine; however, these mistakes should continue to be addressed through the existing mechanisms of civil malpractice litigation and through professional licensing boards. Some legal commentators argue that the criminal statutes were never intended to prosecute mistakes in clinical judgment. Unfortunately, it appears that as long as the statutes exist and the prosecutors are allowed to use them against physicians (which often gains the prosecutors headlines), we will continue to see increases in the criminal charges against physicians.3 Conclusion Dr. Scott's five-year ordeal should send shivers down any surgeon's spine. Many surgeons have lost patients after a valiant effort. For ages, surgeons have participated in quality assurance activities by discussing deaths and complications in mortality and morbidity conferences. Murder is defined as "homicide with premeditated and malicious intent."11 Rarely, if ever, would this apply to the care a patient receives. The Yamamoto case could be argued to represent a breakdown of the normal system and may serve to illustrate how politics can influence the system, especially in a county- or state-owned institution. Surgeons need to be aware of the possibility of misguided attempts to place the blame on someone. Organized medicine will need to continue to stand behind physicians wrongly accused of criminal actions. Reports such as one that appeared recently in a daily national newspaper perpetuate the perception that doctors are unable to police themselves.4 The thrust of the newspaper article, however, was to show how some physicians are attempting to apply to medicine the established principles for safety checks and protocols in the aviation industry. Even the Veterans Health Administration (VHA) has tried to move away from the "someone's to blame" mode to looking at system problems as the root cause of mistakes. The VHA has established a sentinel events reporting system that financially rewards employees for reporting a mistake and a solution to prevent it from happening again.5 However, until these programs are more widespread and physicians who are repeat offenders are more appropriately dealt with (adequate disciplinary action, loss of license), prosecutors will continue to argue that criminal proceedings are necessary. Medical professionals are the most qualified to provide oversight and direction to their own. With the ongoing advances in medicine and the threat of civil litigation, certainly physicians do not need the added burden of possible criminal prosecution to complicate the care of their patients. Negligent medical care needs to be identified and dealt with appropriately, as it causes serious harm and/or death to patients. However, an inappropriately filed criminal charge risks serious harm to the health care provider. Physicians and organized medicine need to take steps to encourage local and federal legislation to clarify the extent to which physicians who acted in good faith can be prosecuted under criminal statutes. __________ Dr. Neumayer is chief of surgery, Salt lake City VAMC, and associate professor of surgery, University of Utah, Salt Lake City, UT Mr. Van Grunsven is in the private practice of law in Milwaukee, WI. __________ This article on professional liability was generated through the efforts of the Committee on Professional Liability of the ACS Board of Regents. Members of the committee believe that this and other articles published in the Bulletin should stimulate thought and possible action on a wider spectrum of issues related to professional liability. __________ References 1. Goth G: Prudence, politics, or persecution. LA CMA Physician, Sept 1997, 29-34 . 2. O'Bannon L: In the line of duty or in the line of fire? Natl Med Assn N, Spring 1997, 1,4. 3. Nora P (ed): Professional Liability Risk Management: A Manual for Surgeons. Chicago, IL: American College of Surgeons, 1997, 172. 4. Medical malpractice or criminal mistake? An analysis of past and current criminal prosecutions for clinical mistakes and fatal errors. Depaul J Hlth Care Law, 2:1, 1-54. 5. USA Today, Oct. 19, 1998, Section D, 1-2. 6. NY Times, Sept. 13, 1995, Section B, 3. 7. Bush B: Critics: Regulation of Illinois doctors needs closer look. State J Reg, Jan 14, 1996, 4. 8. Bensel FP, Goldberg BD: Prosecutions and punitives for malpractice rise slowly. NLJ, Jan 22, 1996, B4. 9. McMurry K: Discipline against physicians by state medical boards increased in 1996. Trial, June 1997, 80-82. 10. Brief of Amici Curiae, People v. Einaugler, 618 N.Y.S.2d 414, 208 A.D.2d 946 (N.Y. App. Div. 1994)(No. 93-04865). (Note: on behalf of the Medical Society of the State of New York, The New York State Society of Internal Medicine, the Medical Society of the County of Kings, and the American Medical Association.) 11. Babcock Gore P: Webster's Third New International Dictionary. Springfield, MA: G&C Merriam Co., 1976, 1, 488.
Bulletin of the American College of Surgeons
by the American College of Surgeons, Chicago, IL 60611-3211 |