Criminalization of Malpractice

CHAPTER 10 Criminalization of Malpractice

Judith A. Gic, R.N. (ret.), C.R.N.A. (ret.), J.D., F.C.L.M.

Criminal prosecutions for medical malpractice grab headlines, partly because they are so rare. Successful prosecutions resulting in conviction are rarer still. But a conviction is not necessary for the notoriety flung up by a prosecution to ruin a reputation and a practice. Worse, police may seek arrest warrants on probable cause at the instigation of prosecutors, and prosecutors possess a tremendous degree of discretion in deciding whether to seek an indictment against a person.

That discretion lies at the root of the policy debate on criminalizing malpractice.¹ Whether a bad outcome was the result of simple negligence (to be remedied through civil litigation) or was the result of some greater degree of negligence (to be punished through prosecution) may be a very difficult call to make, but still it remains entrusted to prosecutors and grand jurors (and ultimately to trial jurors) who are likely not to have any medical knowledge.² If an awful lot seems to ride on the battle of hired-gun expert witnesses in malpractice litigation, imagine staking your freedom on it in a criminal trial.³

At the outset, we want to emphasize that this chapter is about negligence-based prosecutions, not those heinous cases where a physician or other caregiver intentionally injures a patient. Of the negligence-based cases, we see two basic types: those that involve pain management and those that do not. Our reason for categorizing the cases in this fashion rests on a couple of factors. First, the pain management cases are sometimes surrounded (perhaps opportunistically by defendants seeking a public relations advantage) by policy debates that do not bedevil the other kind of cases. These debates go to whether doctors adequately treat chronic pain or are being unfairly targeted in the national effort to control drug abuse. Cases of the other kind are simply about spectacularly bad treatment decisions, about which the only possible policy debate is whether civil litigation should be the sole remedy.

CASE PRESENTATION

John Biskind, M.D., performed a late-term abortion on LouAnne Herron at his medical clinic. During the procedure, he tore a 2¾-inch gash in Herron’s uterus with a medical instrument. He did not realize this during the procedure and completed it as he normally would. Herron was moved to the recovery room. The recovery room was ordinarily staffed with an R.N., but not that day. The only staff (besides Dr. Biskind) included an undegreed medical assistant and the clinic administrator.

Approximately three hours later, Biskind knew that Herron was still in the recovery room, which was longer than usual. He also knew that she had some external bleeding through the vagina, but he thought that her bleeding was not more than usual. According to the medical assistant, Biskind came into the recovery room and checked the IV bag (which contained a clotting agent), and then told Herron that everything would be all right. But the assistant also testified that Herron appeared to her to be bleeding much more than any other patient she had seen in the recovery room.

With Herron still in the recovery room, Biskind left the clinic a little after 4 p.m. to run a personal errand. While he was gone, the clinic administrator phoned to tell him that Herron had no detectable pulse and was having difficulty breathing. Biskind did not return immediately from his errand. At 4:24 p.m., the clinic administrator called paramedics. Shortly after they arrived, Herron died of blood loss from the uterine puncture.

A jury convicted Biskind of manslaughter and he was sentenced to five years in prison.⁴ Arizona law defines manslaughter in part as “[r]ecklessly causing the death of another person,” and it defines “recklessly” as follows:

“Recklessly” means, with respect to a result or to a circumstance described by a statute defining an offense [such as the death of another person], that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

A jury also convicted the clinic administrator, but on the lesser charge of negligent homicide for her failure to schedule an R.N. for the recovery room on the day of Herron’s abortion and for failing to call paramedics sooner. Arizona law states that negligent homicide occurs “if with criminal negligence … [the defendant] causes the death of another person.” It defines “criminal negligence” as follows:

“Criminal negligence” means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

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