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”….
There is no doubt that there is a war on doctors and pharmacists. More and more docs are facing prosecution for simply practicing medicine. That is why more and more of them are joining the members of Doctors Legal Defense Association.
Dr. Jeffery Parks apparently has no clue what happened to the case. He should not be making any comment about the pharmacist eric cropp...that "He was inattentive and lazy and careless, and now he faces the real possibility of serving jailtime as a consequence." Please mr.jeffery parks..next time study the case and understand the pharmacy profession and environment before making any unprofessional comments.
We are all missing the most important issue here. WHY ARE WE ALLOW A TECHNICIAN INSTEAD OF A PHARMACIST TO COMPOUND DRUG??!!!! IT SHOULD BE AGAINST THE LAW FOR ANY NON LICENSED PHARMACIST TO COMPOUND DRUG..ESPECIALLY IV..FOR PATIENTS. I am a 15 years licensed pharmacist working in the hospital. I always felt very angry whenever they rotate me to go work in the IV room instead of outpatient clinic. They hired one pharmacist and 3 technicians and that one pharmacist are responsible in checking the work of the technicians. How am I going to check??? The technicians can put 2 banana juice into the iv bag and I wouldn’t be able to check. I can only check the bag visually and rely on the technician being competent enough to inject the right thing and right amount…which he claimed…into the bag. IT IS SO SCARY!!!!! The technician is not responsible..only I am responsible because I supposed to be CHECKING..a licensed pharmacist. And I am as a pharmacist are not suppose to compound any drug because THERE IS NO TIME!!! IT IS SO BUSY IN THE PHARMACY…SIX HUNDRED ORDERS..AND NON STOP PHONE CALLS FROM THREE PHONES INQUIRING PHARMACIST FOR DRUG INFORMATIONS…THAT IS WHY THE HOSPITAL HIRED 3 TECHS TO HELP ME. I AM SUPPOSE TO CHECK THEIR WORK. I think the US government and management of the health care should be sued for running our healtcare system like this. They want to spend less money cutting cost on hiring staff. Replacing pharmacist with non licensed people called technicians. A licensed technician is not equal to a licensed pharmacist. This is what our government is doing.
The Ohio State Board of Pharmacy imposed the maximum fine allowed on a Toledo pharmacist in a medication error case involving the death of a cancer patient. In addition, Daniel M. Scott, a pharmacist at Riverside Mercy Home Pharmacy Services, was charged by a grand jury with one count of involuntary manslaughter in the death of 62-year-old Lyle Ganske on July 11, 2000. William T. Winsley, the executive director of the Ohio Board, explains, “Scott is used to dispensing medications involving no more than a 24-hour dose. He was not familiar with dispensing medications that are to be administered over a longer period of time. In the victim’s case, the intravenous treatment of Adriamycin® and vincristine was supposed to be administered on an out-patient basis over a four-day period. Instead, Scott dispensed four times the four-day dosage to Ganske, a chemotherapy patient.†Winsley says Scott was given the doctor’s prescription order, which clearly stated what medication was needed and how much. However, according to Winsley, Scott failed to look at the doctor’s order and instead read the nurse’s transcription that could have been interpreted two ways. The Board Minutes, dated August 6, 7, and 8, 2001, further explains that Scott dispensed the drug without having the correct directions for use indicated on the label affixed to the container and did not indicate the directions for use of the medication as was prescribed by the physician. The Board also found that Scott failed to perform prospective drug utilization review. Winsley stresses that this is “not just a medication error case.†He notes that, “All pharmacists need to know their limitations because the general public holds pharmacists responsible and accountable for their actions, including those seen and proven as errors. If pharmacists are put into a position and expected to perform a specific task, they must say no if they feel unsure or unfamiliar with the task. Pharmacists need to know what their capabilities are and how not to act outside them.†Just prior to this case, the pharmacy practice act regarding license restrictions changed. The Board now has the authority to restrict licenses of pharmacists, including those involved in error cases instead of suspending or revoking them. Based on the findings at the hearing, the Board concluded that Scott was “guilty of unprofessional conduct in the practice of pharmacy as provided in Division (A)(2) of Section 4729.16 of the Ohio Revised Code.†Scott was fined $1,500 by the Board. If convicted by the court, he could face one to five years in prison
You obviously do not know the facts of this case. The saline, a clear liquid was mixed by Katie Dudash. Despite having access to premixed solution and bags decided to mix it herself because she was "distracted by planning her wedding". When asked if it was the percentage requested Ms. Dudash said it was. Mr. Cropp took her at her word, he was not required to test the solution. This was the hospital policy. The hospital settled with the family and threw the Pharmacist under the bus. Mr. Cropp is a caring medical professional and has been for 15+ years. He is human and humans make mistakes. This case is wrong and the punishment does not fit the crime.