Malpractice or criminal?

Dr. Jeffery Parks is a board certified general surgeon working in Cleveland who writes regulary at Buckeye Surgeon.

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The Cleveland Plain Dealer reports on the story of Eric Cropp, a local ex-pharmacist, who recently plead no contest to involuntary manslaughter in the tragic death of a 2 year old girl under his care. The child, Emily Jerry, was being treated for cancer at Cleveland’s Rainbow Babies and Children’s Hospital. A pharmacy technician had mistakenly prepared Emily’s chemotherapy medicine in a hypertonic solution of saline. Eric Cropp, the supervising pharmacist on duty that day, had signed off on the preparation. Emily Jerry slipped into a coma and subsequently died (Also read MedCity News’ A 2-year-old. A death. A pharmacist facing jail. What will spur lasting change?).

As a result of the incident, the Ohio legislature passed what is now known as “Emily’s Law”, which provided quality control guidelines for pharmacy technicians. Prior to the law, people could obtain employment in a pharmacy lab with barely a high school diploma. Reassuring, no? The pharmacy technician in this case, Katie Dudash, was granted immunity in return for testifying against her boss, Eric Cropp. Mr. Cropp now faces sentencing (maximum 5 years in prison) on July 17th.

A case like this is obviously tragic and unnecessary. This Cropp character was undeniably negligent and unprofessional to the extent that he was the one ultimately responsible for making sure that that little girl got the correct medicine. But I have to admit, I was initially taken aback when I read that he was being prosecuted as a criminal. He wasn’t drunk or impaired. He wasn’t even the one who prepared the mixture. He was inattentive and lazy and careless, and now he faces the real possibility of serving jailtime as a consequence. He’s a pharmacist, not a doctor, but the implication and precedent is clear– health care professionals are not immune to the prospect of a criminal trial .

Generally, medical malpractice is litigated as a civil tort. In civil cases, as opposed to criminal suits, the alleged victim brings the lawsuit for the purpose of remedying perceived damages sustained via monetary compensation. In criminal cases, the State is the plaintiff. The core elements of a successful medical malpractice suit include: an owed duty (physician/patient relationship), breach of duty (the act of malpractice), injury sustained (the negligence leads to a complication), and damages suffered. The plaintiff must prove all four elements in order to win the case. For example, let’s say your surgeon nicks your bile duct during a routine lap chole, but is able to successfully identify and repair it at the same operation. That’s a lawsuit you won’t win because you’ve only really proven 1 of the 4 elements (injury sustained). The sole purpose of medical malpractice (as trial lawyers will gladly tell you) is to reimburse an injured patient for negligence and to encourage health care professionals (via the negative feedback mechanism of a million dollar lawsuit) to better govern themselves, i.e physicians who have been successfully sued multiple times for medical malpractice presumably will then show up on the radar of the state licensing boards and face loss of practice privileges.

Doctors face potential criminal charges more commonly for procedural violations such as medicare fraud and selling narcotics prescriptions. Criminal prosecution for medical malpractice, on the other hand, is extremely rare in the United States, but maybe that’s starting to change; more than half of the criminal cases since 1809 have been filed since 1984. When we talk about criminal conduct, there are two main components: actus reus (guilty act) and mens rea (guilty mind). Mens rea deals with the perpetrator’s state of mind, specifically his intent. Criminal prosecution of medical malpractice includes mens rea as the fifth component that must be proven.

In California in 1996, Wolfgang Schug MD saw an 11 month old child in the ER, diagnosed an advanced inner ear infection and recommended that the parents drive the kid to a larger hospital 55 miles away. The child ended up dying of overwhelming sepsis. Five months later Dr Schug was handcuffed in his ER by detectives and brought to the County jail. He was charged with second degree murder. At trial, the judge listened to the prosecutor’s presentation and threw out the case before Dr. Schug’s attorneys could present any counter-evidence.

The frightening thing is that the decision to make a medical malpractice event a criminal case is entirely up to the discretion of the prosecutor. Vague, non-specific terms like “wanton disregard of patient well-being” and “willful recklessness” are used to guide the decision making process but ultimately it becomes an arbitrary judgment call. We can all imagine scenarios where a doctor could be justifiably criminally prosecuted. The recalcitrant drunk surgeon who skips out of town before formal disciplinary measures can be implemented and finally really hurts someone while impaired at some rural, unsuspecting hospital in another state. The depraved OB/Gyn who repeatedly refuses to follow standard of care guidelines such as fetal monitoring because he “knows what’s best”. The quack who forges a medical degree after losing his license in one state and ends up clear across the country in a doc-in-the-box where he kills someone by writing the wrong prescription. But rarely is the real world so incontrovertible. We will always have bad outcomes secondary to questionable decision making in medicine. We have safeguards in place (hospital QA committees, state licensing boards, national malpractice databases) to help ensure that “bad physicians” are identified and either reformed or removed from practice. But is it enough? Eric Cropp lost his license after a professional inquiry. He hasn’t been able to find work since. He disgraced himself as a pharmacist. But now he will also go through the rest of his life stigmatized as a convicted felon who has done time in the clink. He’s basically ruined. The tragic death of a toddler notwithstanding, I find such a predicament rather harsh.

Something is off in a case like this. Criminal prosecution of doctors will never be common, number one, because who the hell would ever go to medical school if there was a possibility you could not only get sued, but have to go to jail for an unintentional error (and btw defending a criminal lawsuit is NOT covered by malpractice insurance), and number two, the trial lawyers would never allow it (remember, in a criminal suit the State is the plaintiff and the purpose is punishment rather than compensation of the victim/trial lawyer). But a case like this one sets an ominous precedent for future emotionally charged situations where there are bad outcomes (like when a child dies). Can you imagine losing your child because some idiot technician mixed up the wrong medicine and the lazy-ass pharmacist didn’t bother to properly inspect it? You’d want justice right? And exactly how does a $12 million or whatever malpractice judgment in your favor propitiate your rage when you’ve just buried your kid? You’d want those responsible punished somehow, beyond financial decimation, beyond professional disbarment, but truly, irrevocably punished. You’d give all that settlement money just to see them led off to jail in handcuffs. I understand that kind of pain. But let’s make sure the full force of the law is reserved for those rare cases of “wanton negligence” and “willful neglect”….