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My Doctor Should Be in Jail!

Laurence M. Deutsch and Steven E. North

Sometimes clients tell us that they think their doctor should be in jail! It is easy to understand why someone who has been damaged by negligence – or whose loved one has – would feel this way.

As a legal matter, though, criminal prosecution is almost never undertaken by the authorities. As a practical matter as well, an individual injured by malpractice, even reckless medical practice, will typically only be able to find remedy in a civil case. In fact, It can be counterproductive for a claimant in a civil case to add claims for "punitive" damages or allege criminal wrongdoing.

First, claims based on intentionality or criminal conduct would by definition be excluded from insurance coverage by every standard physician insurance contract. That is, if the prime objective of the injured patient or patient's family is to obtain some form of compensation for the wrong that has been done to them, alleging punitive or "criminal" conduct will not result in any further compensation.

Moreover, the inclusion of such claims will result in a disclaimer letter by the insurance company to the effect that any acts arising from alleged criminal or intentional conduct will not be covered by insurance. This can create complex litigation in which some claims may be uninsured and some claims insured if they are allowed to proceed by the court.

In addition, asserting "punitive" or "criminal" conduct on the part of a defendant will invariably slow down litigation, at times substantially. Such claims are vociferously fought not least of all because the physician is personally exposed for any consequences. Therefore, including such claims in a case will almost guarantee motion practice early on in the case and the potential for appeals to be resolved even before the case can proceed to a trial. This may add years of litigation to a case without any anticipated benefit for the client.

Nonetheless, there are certain rare cases in which the authorities will criminally prosecute a physician’s conduct if it truly rises to that level. This is, of course, a decision to be made by the public authorities though such actions may sometimes be initiated from private complaints. A recent case, People v. Stan Xu Hui Li (November 30, 2017, 1st Department) the Appellate Division, recently confirmed through criminal conviction of a pain management specialist. Dr. Li was convicted on many counts including criminally negligent homicide based on his running of a "pill-mill" in which he apparently sold powerful opiate pain killers to individuals on a cash basis, and apparently without regard to whether the patient needed the medications or whether it was safe for them to be taking these medications.

Predictably and unfortunately, the consequences were at least two fatal opiate overdoses, according to the court's opinion. Dr. Li argued that the statutes governing the illegal sale of controlled substances did not contemplate a manslaughter or criminally negligent homicide conviction.

Interestingly, the court found that in the case of a physician, the element of "reckless disregard" could be satisfied based on the physician’s expected level of knowledge of the dangers associated with these medications. In effect, New York Appellate Courts may have created a higher standard for doctors than for the average "drug dealer," if truly reckless and blatant drug pushing activities are involved. It appears that doctors’ superior knowledge of the danger of their actions may well expose them to a greater degree of criminal liability than the average drug pusher, should the facts fit that situation.

This recent case does not change our overall strategic recommendation that alleging "punitive" or "criminal conduct" is rarely if ever to the client's advantage in a civil case. Nonetheless, the Li case is a welcome sign that prosecuting authorities are taking the potential for criminally negligent homicide seriously even when and particularly if it is due to the truly reckless conduct of a physician.1

1The People of the State of New York v. Stan Xu Hui Li, 2017 Slop OP08438 (11/30/17, 1st Department)