When is Medical Malpractice a Crime?

Historically, relatively few criminal prosecutions have been pursued against physicians and other medical care providers who commit malpractice. However, many believe that the number of criminal malpractice cases has trended upwards. Regardless, recent high profile cases - such as the prosecution for involuntary manslaughter of a physician treating Michael Jackson at the time of his death - have prompted many people to inquire into the difference between medical malpractice and criminal behavior.

In this article, we’ll discuss the definitions of criminal malpractice vs. civil malpractice.

Is Malpractice Criminal or Civil? The Differences Between a Medical Malpractice Action and a Criminal Prosecution

Procedural Differences

An action for medical malpractice is a civil action filed by an injured plaintiff against a medical care provider. The parties follow rules of civil procedure and a successful plaintiff recovers money damages from the defendant, or the defendant’s insurance company, as compensation for the plaintiff’s injuries. A plaintiff must prove his or her case by a preponderance of the evidence.

On the other hand, criminal prosecutions - including criminal malpractice cases - can only be pursued by the government. The District Attorney, not a private individual, determines whether to pursue an indictment. The court and parties use rules of criminal procedure. A defendant, if convicted, can face incarceration, probation, and fines. A victim may or may not receive restitution, but the goal of a criminal action is not to obtain damages for a victim. The government must prove its case beyond a reasonable doubt, which is more difficult to prove than the civil standard of proof.

Civil Negligence v. Criminal Intent

As we have discussed in some detail in previous blog postings, a plaintiff prevails in a medical malpractice action by proving, in part, that the medical care provider was negligent by breaching the applicable standard of care. More specifically, this means that the medical care provider did not use the same degree of care used by ordinarily careful providers in the same or similar circumstances.

All criminal cases, on the other hand, require an act plus a culpable mental state, often called “criminal intent.” Certainly, intentional actions, such as sexual assault of a patient, rise to the level of a criminal act. Such behavior is clearly criminal, and the person committing the assault should be held criminally responsible.

However, depending on the crime charged, and in which state the prosecution is taking place, recklessness or criminal negligence can also constitute criminal intent. Importantly, criminal intent always requires more than mere negligence. For example, criminal negligence is typically defined as gross negligence – that is, a gross deviation from the behavior of a reasonable person. Recklessness involves a conscious disregard of a substantial and unjustifiable risk.

An Example of a Criminal Malpractice Case

The California case of People v. Conrad Murray is an interesting example of medical malpractice rising to the level of criminal behavior. Dr. Murray was treating Michael Jackson at the time of his death. The State charged Dr. Murray with involuntary manslaughter. He was ultimately convicted and received a four-year prison sentence. In response to his appeal, the California Court of Appeals stated that the record contained overwhelming evidence of egregious behavior by the defendant, including the following: using drugs not intended to treat insomnia; using propofol in a non-hospital setting; an absence of proper equipment; an absence of appropriate personnel for monitoring the patient’s condition; inadequate preparation for an emergency; failure to call 911 in a timely manner; failure to maintain records; and withholding information from first responders and hospital personnel.

Insurance Involvement

Most medical care providers purchase insurance coverage for acts of medical malpractice. This insurance also provides the medical care provider with a lawyer throughout the course of the civil litigation. However, insurance policies often do not cover criminal acts. A careful review of the applicable policy would be required.

Talk to a Lawyer

At Nelson MacNeil Rayfield, we believe that in a fair society everyone must be held accountable for wrongdoing, including medical care professionals. If you think an act of medical malpractice has occurred, or possibly even criminal behavior, we invite you to consult with our established medical malpractice attorneys, who can help answer all of your questions. Call us for a free consultation.


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