Editor's Perspective: It's Criminal, Revisited

March 28, 2008
Surgical Rounds®, Web Exclusives, Volume 0, Issue 0

1990

A recent article in the American Medical Association News reported that a surgeon in Pennsylvania may be prosecuted for involuntary manslaughter in the death of a young child shortly after operation. Although I do not know the surgeon involved or the details of the case itself, I still consider this situation extraordinarily disturbing. Although there have been several instances of criminal prosecution of morally corrupt, impaired, and dishonest physicians, rarely before have ethical, sober, and drug-free surgeons been indicted for the results of their clinical activities. If this case is pursued in Pennsylvania, it would pose a threat to our practices far more disastrous than malpractice litigation: the possibility of going to jail for a bad surgical result. When I read about this situation, I frankly found it virtually unthinkable. After examining some of the laws, I was even more bothered. Since it is clear that the laws provide significant flexibility and judgment in what constitutes involuntary manslaughter, I thought it might be worthwhile (if also painful) to alert our readers as to the implications of this new potential threat.

In the broadest terms, punishable homicides are divided into murder, which implies premeditation, and manslaughter, in which there is no evil motive. Manslaughter is, in turn, categorized as voluntary, such as killing in the heat of passion, and involuntary, in which the defendant certainly had no intention of causing death. Finally, involuntary manslaughter is further subdivided into unlawful act manslaughter, in which death results from an illegal act not serious enough to be a felony, and criminal negligence manslaughter, the designation of direct concern to surgeons. There are three components to the determination of whether an act resulting in death constitutes involuntary manslaughter.

(1) More than simple or tort negligence must be involved. The actions by the physician must deviate so widely from the accepted standard of care that they represent gross negligence.

(2) The act must be the proximate cause of death. This implies that a causal relationship between the act and the result must be unequivocally established and that based on the actions taken by the physician, the bad result must have been predictable.

(3) The conduct of the physician must provoke a very high and unreasonable risk of causing death or at least very serious bodily harm to a patient, and the risks incurred in the actions must be indefensible.

All three of these conditions must be met for an action to represent involuntary manslaughter. However, each provides incredible leeway for a district attorney or lay jury. Unfortunately, none of these criteria can ever be absolutely clear-cut. They are all based on clinical judgments made by a medical professional and, thus, are subject to individual interpretation. While these vagaries are accepted (although not happily) in malpractice tort negligence adjudication, the stakes are so much higher in criminal matters that the absence of rigid and nonjudgmental standards is frightening. Surgeons have widely discrepant views on indications for operation. For example, there are some who believe there are no indications for surgery for weight reduction. Can a death following a gastric bypass procedure conceivably provoke criminal charges? Everything surgeons do can cause death. Are we to be even remotely at risk of prosecution every time we enter the operating room? Can nonphysicians really determine what constitutes gross negligence, or is a surgeon's freedom from imprisonment to be based on the courtroom battle between hired "experts" taking opposite stands in testimony?

Of even greater concern than the difficulty in interpreting the three universally agreed to criteria is that there are two fundamental issues about which there is no general agreement.

• In addition to acts of commission, it's possible that acts of omission can also represent involuntary manslaughter. If a physician fails to perform a lifesaving procedure on a patient for whom he/she is responsible, he/she might run the risk of being charged with involuntary manslaughter. While the vital question regarding acts of omission has not yet been specifically resolved, there are ample precedents to the imposition of criminal charges for such lack of action. For example, the recent conviction of two parents whose religious beliefs precluded their taking a mortally ill child to a physician for care. If this interpretation is also applied to medicine, a clinician could be accused of involuntary manslaughter for not taking a lifesaving action, such as resuscitation.

• Second, the most vexing of all the questions is whether the surgeon has to know the consequences of his actions in order to be guilty of involuntary manslaughter. Again, there is no unanimous answer to this question, and the laws vary among the states. The issue raises the fundamental concept in law, the mens rea, or state of mind. If a physician was unaware of the consequences of an action he/she took and that action resulted in a patient's death, the action is interpreted as negligent. In contrast, if the surgeon did recognize the potential results of an action, persisted nonetheless, and death resulted, the action is deemed to be reckless. While it seems shocking that recklessness is not a prerequisite for involuntary manslaughter, this is the case in most states. It's also paradoxical that a surgeon who knows the possible consequences of his actions should be at greater risk for criminal prosecution than his less well-informed colleague who did not. As a profession, we would certainly not advocate exonerating the uninformed and punishing the highly educated. Finally, complicity or consent by the patient, which might be construed as contributory negligence, does not in any way relieve the surgeon of his/her responsibility nor does it mitigate against criminal charges.

Because of these potential ambiguities, I am afraid that an ambitious district attorney might attempt to launch a career by prosecuting a surgeon for the death of a patient. A number of my attorney friends have told me that it is relatively easy for a prosecutor to obtain an indictment with the understanding that the jury will make the final decisions as to its correctness. But for the physician, a clinically related indictment would summarily end a career, even if he or she were ultimately cleared of all charges. I also wish I felt more comfortable with the grand jury. Look what this panel did in Manhattan in response to the death of Libby Zion (in which, for the record, they absolved all physicians from criminal charges); despite the absence of medical backgrounds, these individuals felt it was well within their right to demand fundamental and far-reaching changes in the traditional scheme for training residents.

Can anything be done about this potential threat? Whereas I'm not certain about the response to this question, there are some relatively obvious solutions. Significant protection should be afforded if medical involuntary manslaughter were designated as a distinct category, such as has been done for vehicular manslaughter. Under these circumstances, the questions of omission/commission and negligence/recklessness could be resolved and standardized across the states. Finally, since the crime has both medical and legal elements, the best of both professions should be involved in a decision to prosecute a physician for a patient's death. Only if a panel of several distinguished surgeons agree that an action causing death was unjustifiably dangerous, that the indications were medically indefensible, and that the practice deviated widely enough from the nationally accepted standard of care to constitute gross negligence, should the legal community be involved to determine whether or not it's criminal.

2008

In the 16½ years since the publication of "It's criminal,"* physicians have become progressively more vulnerable, and a number of physicians have been prosecuted. I even know one serving time in a penitentiary. This is quite disturbing, but not surprising. In the current world of the blame game, someone always has to pay, deserved or not.

One of the most disturbing of all the charges of criminal activity is the accusation that a head and neck surgeon and two nurse colleagues committed murder in a flooded hospital in New Orleans just after Katrina. The Attorney General of Louisiana, Charles Foti, claims to be convinced that several deaths in the aftermath of Katrina were homicides in the form of euthanasia.

The response to the arrests was extremely gratifying. Medical professionals and lay people alike unanimously condemned the accusation and strongly supported the surgeon and nurses. Shortly after it was reported in the press, the case began to fall apart. A discrepancy in the sedative administered became apparent and impugned the process. Thereafter the coroner classified these deaths as indeterminate rather than homicides, leaving an even greater uncertainty in the viability of the case.

Although the doctor and two nurse colleagues no longer face the possibility of life in prison, they are still battling civil lawsuits brought by the families of those who died. The current feeling in New Orleans is that all three were heroes, not assassins, and it's not criminal.

*Surgical Rounds.1990;13(11):11-15.

Editor's Note: To read more about the Louisiana case, see Dr. Jaffe's editorial "A case of death" (October 2006).