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When does medical malpractice become criminal?

Steven E. North, Esq. and Laurence M. Deutsch, Esq.

Our clients sometimes remark that a doctor’s actions were “criminal.”

This is sometimes, though very rarely, the case. While negligent care is never excusable, the law requires actual intent to harm, or a degree of recklessness that goes beyond negligence to become a criminal matter. This level of conduct is seldom reached even for cases that fit the definition of medical malpractice.

In a recent case reported in The New York Times, a jury convicted the head pharmacist running a pharmaceutical facility on 50 counts of fraud and racketeering for disseminating contaminated drugs which led to 732 people developing fungal meningitis after being injected with the tainted compound.

The claims against the defendant were that the laboratory where the drugs were produced had dirty vials, improperly sterilized materials, and debris floating in vials of medicine. The critical issue in cases such as this is the concept of mens rea, whether the defendant actually knew that the vials he was dispensing were contaminated and had the potential to cause injury.

Presumably the jury determined that the defendant had sloppy practices, but the conduct did not amount to the “reckless disregard for human life” that might have led to the murder conviction sought by the prosecutor.

There have been cases in New York for which physicians have been convicted for criminal conduct in connection with their medical practices, though such convictions are rare. It has been reported that an egomaniacal obstetrician routinely carved his initials into the skin of his patients when performing surgery. Such impermissible license is indeed a civil battery and a criminal assault.

Then there was a physician who knowingly administered an ineffective and bizarre cancer treatment therapy preying on “last resort patients” who would try anything in the hope of a therapeutic benefit. The doctor had devised a concoction of coffee grounds and other materials which he administered to his patients. At least one died.

And, just last month, a surgeon in Texas was convicted of intentionally, knowingly and recklessly harming 15 of his patients on the theory that he was incompetent to perform the spinal fusions in which he left behind hardware and severed nerve roots, and placed multiple screw holes on the wrong side of the spine.

While many clients are justifiably angry at malpractice-caused injuries, seeking to claim “intentional” acts in a lawsuit, or requesting “punitive” damages is usually not a good legal course.

From a civil perspective, claims of intentional torts such as assault or battery are not covered under the physician’s liability insurance policy. Consequently, if the civil litigator makes such a formal claim in the pleadings, he or she runs the risk that even a favorable verdict will not be covered by insurance, which will hurt the injured client.

The same is true if an attorney seeks punitive damages. The courts themselves are reluctant to allow such damages, even for “egregious” conduct. Even if successfully claimed, “punitive” damages,” as intentional damages, are normally excluded from insurance coverage.

So, we do look for evidence of bad character, or “recklessness” by a physician, which we can often incorporate into our presentation of the case to the jury. This can help overcome some jurors’ bias in favor of doctors and convince the jury not to cut the doctor a break by ignoring the evidence. But we will generally avoid making a formal claim of intentional harm or a claim of punitive damages, which as a practical matter, may leave our client without a financial recovery.

The New York Times, March 23, 2017, page A10

ABA Journal, February 2017