When Does a Medical Error Become a Criminal Act?

    September 08, 2023, 09:00 AM

    Healthcare providers carry heavy liability risks in the event of a medical malpractice allegation or professional standards violation, which can be costly and lead to licensing ramifications and reputational damage. While the consequences involved in civil and administrative cases are already high, healthcare systems would be wise to also pay attention to the possibility of criminal investigation and prosecution of providers for matters commonly thought to be reserved for civil courts or licensure proceedings.  Where allegations of medical errors or patient complaints were previously viewed with an eye only towards civil exposure, providers should also be advised of the possibility of a criminal investigation even when the evidence does not appear to show intentional wrongdoing.

    In recent years, there appears to be an alarming uptick in nurses and doctors charged criminally for related to question of quality of care. In response, the American Medical Association (AMA) has been vocal in its opposition of the criminalization of medical malpractice and healthcare decision-making. Healthcare providers at all levels, from physicians to nurses to technicians, carry heavy responsibility as they influence the medical outcomes of their patients. For better or worse, providers’ heightened risk – of civil or criminal liability as a result of their actions and choices – reflect the heightening responsibilities of the profession.

    As an example, the North Carolina Supreme Court recently overturned a ninety-year-old precedent that absolved nurses of liability from incidents arising in the exercise of their duties if the nurses acted under the order of a supervising physician. The Court emphasized the advancement of nurses’ roles in the field of medicine with “expanding authority, recognition, and independence of nurses” and reflected that “with these heightened powers and autonomy recognized by law come heightened responsibilities recognized by law.” Connette v. Charlotte-Mecklenburg Hosp. Auth., 876 S.E.2d 420, 431 (N.C. 2022) (overturning Byrd v. Marion General Hospital, 202 N.C. 337, 162 S.E. 738 (1932) “in light of the increased, influential roles which nurses occupy in medical diagnosis and treatment.”) Although the Court’s decision specifically addresses the civil liability of North Carolina nurses in a medical malpractice context, rising levels of responsibility in the healthcare field may underscore the recent trend of healthcare providers facing criminal charges for questions about the quality of care.

    When Does a Medical Error Become a Crime?

    It is well known that healthcare providers can face criminal charges for violating federal and state fraud and abuse laws. Press releases from the Department of Justice serve as frequent reminders that healthcare fraud is routinely investigated and prosecuted (Examples here, here, and here). In contrast is a seemingly growing trend of doctors and nurses facing criminal charges for conduct outside of the scope of fraud and abuse violations. Anecdotal evidence provides examples where criminal charges have been pursued against providers in situations where honest mistakes occurred absent any level of intentionality.

    A recent and prominent example involves a criminal conviction of a Tennessee nurse in 2022. In that case, the nurse was charged for what amounted to medical error that tragically resulted in a patient’s death. At trial, the State presented evidence that the nurse violated the expected standard of care, exposing a series of systematic issues at the healthcare facility that also arguably contributed to the unfortunate patient death. Testimony suggested that nurses commonly overrode system safeguards and the hospital lacked the resources required to follow expected standards of care. Although the nurse was acquitted of reckless homicide, she was convicted of negligent homicide and gross neglect of an impaired adult. Ultimately, she received a probationary sentence, although a conviction on the lesser charge carried the possibility of prison time.

    Other examples include instances of unintentional but improper medication, resulting in patient death, resulting in criminal prosecution of the nurse for “gross breach of medical protocol.” Additionally, failure to properly supervise or care for patients can result in criminal charges face criminal charges for practitioners. In 2019, a California nurse was charged with involuntary manslaughter after failing to check a patient’s vital signs after witnessing the patient collapse. The patient had been in jail and allegedly suffering from drug withdrawal without withdrawal protocols in place before losing consciousness and ultimately dying. Nurses are not the only healthcare providers facing criminal charges from preventable errors.  A former Ohio pharmacist received six months in prison, six months of house arrest, and 400 hours of community service after pleading no contest to an involuntary manslaughter charge stemming from improper prescription causing a patient death. 

    Generally, criminal charges can arise in situations that are intentional or unintentional, which is best exemplified by the statutory difference between voluntary and involuntary manslaughter. Applied to medical professionals, the line where a medical error versus a criminal act occurred can be difficult to identify and, in situations where an aggressive law enforcement agency or prosecutor’s office has the discretion to make a charging decision, the risks can be high.

    Healthcare facilities should keep in mind that abiding by common or even best practices may not automatically absolve a provider from criminal wrongdoing should a medical error occur. For example, although the court in the Tennessee nursing case noted that it was standard practice for healthcare providers to override the system to access medication at that health center, it did not prevent a finding of criminal negligence. If their facility does not provide necessary resources or support, providers should be mindful to document the issue and vocally advocate for improvements to protect themselves from both civil and criminal liability.

    Criminalization of Medical Mistakes – Impact Going Forward

    While instances of medical malpractice can be tragic for patience, it unnecessarily compounds the tragedy to allow doctors and nurses to face criminal prosecution for otherwise unintentional mistakes or oversights when a more appropriate remedy lies with civil courts and disciplinary boards. In recent years, criminal charges have been brought against healthcare providers for negligent homicide, involuntary manslaughter, vulnerable adult abuse, and neglect of an impaired adult. There is also legitimate concern that over-criminalization of medical errors risks chilling reports of adverse events and the retention of healthcare workers. While adhering to existing standards and duty of care, providers are forced to be increasingly cautious in how they provide treatment to patients. While prioritizing the elimination of medical errors and ensuring patient protections, healthcare systems can also routinely review and update policies, review expectations with providers, ensure adherence to consent procedures, document consistently, and ensure effective with both patients and the rest of the care team.

    Unfortunately, healthcare systems can no longer have confidence that alleged malpractice or patient compliant events will remain within the sphere of civil liability or professional discipline. Where there is concern of either an investigation by law enforcement or charges against a provider, experienced counsel sought be consulted to help navigate issues associated with criminal exposure.  Although liability risks are concerning and should be taken seriously, the provider’s focus should remain on providing for the patient’s medical needs and complying with applicable standards of care.