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When Does Malpractice Become Manslaughter?

¹ Department of Radiology, Alameda County Medical Center, Oakland, CA, and University of California, San Francisco, CA 94602.
² Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and Rush Medical College, Chicago, IL 60612.

Received December 11, 2001; accepted after revision December 19, 2001.

 
Case summaries are based on actual events and lawsuits, although certain facts have been omitted or modified by the authors. All opinions expressed herein are those of the authors and do not necessarily reflect those of the American Journal of Roentgenology or the American Roentgen Ray Society.

Address correspondence to L. Berlin.

The Case

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A 40-year-old man complaining of severe right flank pain that had persisted for 1 hr was admitted to the emergency department of a community hospital. Urinalysis revealed microscopic hematuria. A conventional abdominal radiograph showed moderate adynamic ileus, but overlying bowel gas made it impossible to determine whether a ureteral calculus was present. The emergency physician consulted a urologist who recommended that an excretory urogram be obtained to confirm the presence of the ureteral stone, localize the point of urinary obstruction, and evaluate the degree of dilatation of the proximal ureter and renal collecting system. The emergency physician communicated the request for urography to the radiologist who was on call.

The radiologist immediately telephoned the consulting urologist and informed him that the general policy of the radiology department in this situation was to obtain an unenhanced CT scan of the abdomen and pelvis. The radiologist explained that performing CT was now the standard of care because CT would provide more clinical information than urography and would not subject the patient to the risk of reaction from IV iodinated contrast material. The urologist replied that he had been ordering excretory urograms on patients with suspected ureteral stones for "40 years with satisfactory results and was not going to stop that practice now." The urologist also pointedly reminded the radiologist that it was he, the urologist, and not the radiologist, who was going to treat the patient. Faced with what he perceived to be an intransigent attitude on the part of the urologist and fearing the loss of future referrals, the radiologist reluctantly agreed to perform urography. The radiologist made no written record of this conversation.

The patient was transported to the radiology suite where the radiologist administered IV 150 mL of nonionic contrast material. Within 5 min the patient went into anaphylactic shock. A code blue was called, and emergency treatment was instituted immediately. Despite all resuscitative measures that were carried out over the next half-hour, the patient died.

Four months later, the family of the deceased patient field a medical malpractice lawsuit naming as codefendants the radiologist, the urologist, the emergency physician, and the hospital. It was alleged in the lawsuit that the defendants had acted with "gross negligence" by performing excretory urography that required the use of contrast material, "known to be associated with a high incidence of serious reactions including death, rather than the superior, risk-free alternative diagnostic test known as helical CT scanning."

Medical—Legal Issues

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During discovery proceedings, the attorney for the plaintiff presented a radiology expert witness who testified that unenhanced CT had "completely replaced" excretory urography in assessing patients with suspected urinary tract stones because of "both its diagnostic superiority and the absence of risk of adverse reactions." The plaintiff's radiology expert explained that the use of radiographic contrast material is associated with a small but definite risk of serious bodily harm and death. Although the defendant radiologist had used nonionic contrast material, which decreases the adverse reaction rate, pointed out the plaintiff's expert, studies have shown that the risk of death remains similar to that with ionic contrast material. Contrast-enhanced urography allows the diagnosis of ureteral stones, but its use is contraindicated because unenhanced CT is a risk-free alternative, charged the expert.

The plaintiff's radiology expert also criticized the defendant radiologist for authorizing urography, even though the defendant had obviously been aware of the danger of using iodinated contrast material. The radiologist had, after all, informed the emergency physician and urologist that unenhanced CT was the departmental policy, pointed out the plaintiff's expert. In a concluding statement, the plaintiff's radiology expert lambasted the defendant radiologist:

The radiologist was a board-certified professional who was responsible for making independent judgments and was not a `mere technologist' doing what was ordered by somebody else.... The defendant radiologist was required to protect the health and welfare of the patient by providing what he knew to be the best possible medical care, even if it would result in the loss of good will and possible referrals from the urologist.

The attorney for the defendant radiologist retained as an expert an older semiretired radiologist. This expert stated that he had used excretory urography "for years in similar situations without any complications." The defense expert was, however, unable to refute the argument that urography was no longer the generally accepted standard of care in the assessment of urinary tract stones and that the use of unenhanced CT had "essentially replaced" excretory urography for this purpose in most centers. Nevertheless, emphasized the expert, obtaining a urogram was not a violation of the standard of care for this assessment. The defense radiology expert argued that because the defendant radiologist had been "ordered"—in fact, had been "coerced"—to administer contrast material by the referring urologist, the urologist should bear ultimate responsibility for the patient's death.

The defendant emergency physician testified that he had "very limited" knowledge of the various imaging modalities used for the diagnosis of urinary tract calculi. Even though he admitted that he was aware that the general policy of the hospital's radiology department was to use CT rather than urography to evaluate renal stones, the physician claimed that he "would always defer to the superior knowledge of the radiologist in specific cases."

The defendant urologist stated in his deposition that although he had requested the radiologist to obtain a urogram, he nonetheless "would have gone along with the radiologist's recommendations for CT had the radiologist explained why it was important to do so."

The attorney for the plaintiff was unable to provide testimony that supported the charges of negligence against the emergency physician or the hospital but did call a urology expert to testify. The urology expert was critical of the defendant urologist, but the expert acknowledged that the "final say" in determining which imaging modality should be used was "clearly" in the province of the radiologist. Defense experts testifying on behalf of the emergency physician and urologist also claimed that the responsibility of the decision as to which imaging modality was to be used lay solely with the radiologist.

Faced with the likelihood that the plaintiff would almost certainly prevail at trial, the attorneys for the defendants, along with representatives of the respective professional liability insurance companies, and the attorney for the plaintiff entered into settlement discussions. The case was eventually settled for $1 million, 90% of which was borne by the radiologist's insurance company. The remaining 10% liability was attributed to the defendant urologist. No payment was made on behalf of the emergency physician or the hospital. In accordance with state law, the malpractice settlement was reported to the state's medical licensing board, which initiated its own independent investigation. Rather than face a formal hearing that could have resulted in loss or suspension of his medical license, the radiologist, on the advice of his lawyer, agreed to accept an administrative "reprimand."

The radiologist thought that his troubles were finally over, but such was not to be the case. The bereaved relatives of the deceased patient filed a complaint with the local state's attorney, urging that the radiologist be prosecuted for criminal acts related to the patient's death. The state's attorney appointed an investigator to review all the facts of the case and interview all persons who were involved with, or had knowledge of, the incident. The state's attorney subsequently proceeded to a grand jury to seek indictment for involuntary manslaughter. After hearing the evidence presented, however, the grand jury voted not to indict the radiologist. The radiologist never discovered precisely why the jury did not indict him. However, his criminal defense attorney believed that the state's attorney deliberately chose not to aggressively pursue the indictment.

Discussion

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Criminal prosecution of physicians has historically been uncommon. The few criminal charges that have been filed against physicians have generally involved allegations of insurance (including Medicare and Medicaid) fraud, sexual abuse of patients, or illegal use of prescription or controlled substances [1]. However, in recent years there has been a marked increase of criminal prosecutions of physicians centering on a charge previously seen only rarely: reckless endangerment of patients [2]. These prosecutions have included at least three obstetricians convicted of manslaughter or second-degree murder in connection with the deaths of women for whom they performed abortions [3,4,5]; a Colorado anesthesiologist convicted of reckless manslaughter for allegedly falling asleep during a routine ear operation on a child [6]; an Army anesthesiology resident charged with involuntary manslaughter for allegedly improperly administering an antibiotic to the teenage daughter of a Marine colonel [7]; a Florida surgeon who was fined and suspended from practicing medicine for amputating the wrong foot of a diabetic patient and cutting off the toe of another patient without consent [8]; an Oklahoma surgeon who was convicted of involuntary manslaughter for IV administering an excess dosage of potassium chloride [9]; officials of a medical laboratory in Wisconsin charged with reckless homicide for misinterpreting Pap smears of two women who later died of cervical cancer [10]; and a New York internist convicted of causing the death of a woman [11].

More recent cases involve a Michigan surgeon charged with second-degree adult abuse for care he provided at two Detroit nursing homes, a California internist convicted of elder abuse for undertreating a patient's pain, a Florida family physician charged with murder for improperly prescribing a painkiller that contributed to a 21-year-old man's death, and a Utah psychiatrist charged with overmedication of five elderly patients that resulted in their deaths [12]. However, the case of the New York internist has received the most national publicity and engendered the most concern in the medical community. Reviewing the facts of that case will shed light on how prosecutors and the courts view the blurry relationship between medical malpractice and criminal acts.

The New York internist was a 49-year-old board-certified physician who was asked to assume the medical care of a 78-year-old woman who had been transferred from a nearby hospital to a nursing home. There, the internist mistook the patient's peritoneal dialysis catheter for a gastrostomy tube and ordered that liquid feedings be administered through it. A nurse later discovered the mistake and notified the internist by telephone. The internist consulted a nephrologist who advised him to return the patient to the hospital for immediate care. The internist, however, after reexamining the patient and finding her to be in what he thought was stable condition, delayed the transfer for 10 hr. At that point the patient was transferred to the hospital under the care of the nephrologist, but she died 4 days later.

A New York State prosecutor initially attempted to seek manslaughter charges against the internist, but a grand jury did not agree on the homicide charge. The jury did, however, indict the internist for reckless endangerment of a patient and willful violation of New York's health laws. At a subsequent jury trial, the prosecutor characterized the internist's delaying of the patient's transfer from the nursing home to the hospital as an attempt to cover up his original negligence, and he further argued that this delay represented a conscious disregard for the patient's safety [1]. The defense admitted that the internist had made an error in medical judgment, but vehemently denied willful misconduct. At the conclusion of the trial, the jury found the internist guilty as charged, and the judge sentenced the doctor to 52 weekends in prison [13].

The internist appealed his conviction to a New York State appellate court. The appeals court upheld the jury verdict, stating [14]:

The evidence established that the defendant was aware of, and consciously disregarded, a substantial risk of serious physical injury to the patient by delaying her transfer to the hospital and that his conduct constituted a gross deviation from the standard of conduct a reasonable person would observe in the situation.... The defendant was also convicted of a misdemeanor of willful violation of health laws which prohibit a commission of "an act of neglect." The term "neglect" is defined as "Failure to provide timely, consistent, safe, adequate and appropriate services, treatment and/or care to a patient or resident of a health care facility...."

The New York appellate court concluded its decision with the following observation [14]:

The requisite mental state necessary for a conviction for violating public health laws requires a showing of more than simple negligence in the exercise of a clinical medical judgment, but rather requires proof of a "willful" failure to provide timely, consistent, safe, adequate, and appropriate treatment and/or care. Therefore, contrary to the arguments raised by the defendant [and by other supporters such as the American Medical Association], this case does not support the proposition that medical professionals need fear the prospect of unwarranted criminal prosecutions for honest errors of medical judgment.

The internist appealed his conviction to a district federal court, but was unsuccessful in effecting a reversal of his conviction [15]. Finally, after spending 6 weekends in a New York prison, the internist's sentence was commuted by New York Governor George Pataki [16].

The New York case raises several basic and important questions: When and under what circumstances would a charge of medical malpractice be escalated to a charge of criminal conduct? The circumstances under which a physician's error of medical judgment triggers criminal prosecution are not totally clear. An English court of appeals ruled that to justify a criminal conviction, it must be proven that a physician acted with "gross negligence," which is characterized by any or all of the following elements: indifference to an obvious risk of injury to health; actual foresight of the risk coupled with the determination nevertheless to run it; an appreciation of the risk coupled with a high degree of negligence in the attempt to avoid it; and inattention or failure to avert a serious risk [17].

A person whose behavior is "grossly negligent" may be liable for involuntary manslaughter if his or her conduct results in the accidental death of another person [18]. Most jurisdictions hold that something more than ordinary negligence must be proven before the defendant can be found guilty of involuntary manslaughter. This usually requires that there be a substantial danger not only of bodily harm, but also of "serious bodily harm or death." The defendant must have acted "recklessly," a term defined as a "gross deviation from the standard of conduct that a law-abiding person would observe" in the same situation [18]. The court must consider all the circumstances surrounding the incident, including the social utility of any objective the defendant is trying to fulfill. For example, take the case of a defendant who kills a pedestrian while driving 60 miles per hour (96 km per hour) in a residential area where the speed limit is 35 miles per hour (56 km per hour). The defendant's conduct may be held to be criminally negligent if he was simply out for an afternoon drive, whereas it might not be so deemed if he was racing his critically ill son to the hospital.

A California appeals court has explained the differences between the varying degrees of murder and manslaughter [19]:

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. Malice may be expressed or implied, and implied malice is present when no considerable provocation appears, or when the circumstances appending the killing show an abandoned and malignant heart. First degree murder is murder committed by specified lethal means or by any other kind of willful, deliberate and premediated killing, or a killing which is committed in the perpetration of enumerated felonies; all other kinds of murder are of the second degree.

Second-degree murder based on applied malice is committed when the defendant does not intend to kill but engages in conduct that endangers the life of another and acts deliberately with conscious disregard for life. An essential distinction between second-degree murder based on applied malice and involuntary manslaughter based on criminal negligence is that in the former, the defendant subjectively realized the risk to human life created by his conduct, whereas in the latter the defendant's conduct objectively endangered life, but he did not subjectively realize the risk. [In any event], the defendant [must be found] guilty beyond a reasonable doubt.

Whether the prosecutor would have been successful in persuading a jury to find the defendant radiologist guilty of involuntary manslaughter in the case presented here, if a trial had ensued, is problematic. Most prosecutors would be reluctant to bring a radiologist or other physician to trial unless the physician was perceived to have committed one or more acts of such egregiousness that a jury would more likely than not consider the physician reckless and conducting himself or herself with conscious disregard for the patient's welfare. In the case presented here, it is entirely possible that the necessary degree of egregiousness may not have been met. Let us examine why.

It is the clear consensus of recent reviews [20,21,22,23] of the use of helical CT in evaluating patients with urinary tract stones that CT has "become the imaging modality of choice in the diagnosis and management of patients with flank pain and suspected ureteral obstruction" and "has essentially replaced all other imaging modalities for this purpose in most centers" [24]. The term "most centers," however, does not mean that all centers in the United States have adopted CT as the imaging method of choice to screen for urinary tract stones. In fact, excretory urography as the initial imaging test of choice in the workup of painless hematuria remains the recommendation of both the American Urological Association and the American College of Radiology (Gupta KB et al., presented at the Radiological Society of North America meeting, November 2001). Thus, any prosecutor might have had difficultly in obtaining a conviction against a radiologist who had opted for urography rather than CT such as in the case presented here.

Moreover, anaphylactic reactions sustained by a patient, even those that are fatal, are unpredictable. Deaths arising from the injection of contrast medium are rare. Although the exact rate of deaths related to the use of IV contrast medium is not known, estimates range from as high as one death per 11,000 studies to as low as one death per 200,000 studies (the incidence of fatal reactions appears to be the same for both ionic and nonionic contrast media) [25]. Furthermore, in the case discussed here, the investigator for the state's attorney had apparently been unable to find evidence that the patient's reaction had been treated inappropriately. Thus, the prosecutor's ambivalence about whether sufficient evidence existed to convict the radiologist led to the grand jury's failure to indict, because as a general rule prosecutors who aggressively push for grand jury indictments rarely fail to receive them.

Even if not convicted, physicians against whom criminal charges are levied suffer devastating consequences. An emergency department physician in Northern California who had been indicted and placed on trial for allegedly misjudging the gravity of the illness of an 11-month-old infant who later died was acquitted of the charges; nonetheless, the physician spent more than $100,000 of his money plus more from a fund established by his colleagues to defend himself [26]. The New York internist whose sentence was commuted by the governor stated that his life had been "destroyed." The internist went on to state that physicians charged criminally are in a "no-win" situation. Even those who are ultimately exonerated will be well in debt by that point and will have had their reputations smeared, he lamented. "You will be tainted, and life will never be the same" [26].

Summary and Risk Management

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One medical—legal commentator has written [1]:

Responsible physicians have nothing to fear from the criminal law...for a physician will not be held criminally liable for the death of a patient if that death is the result of a good-faith error of judgment or an inadvertent mistake.

"However," the commentator continued, "when physicians intentionally or recklessly disregard their patients' safety, they properly face criminal prosecution."

On the other hand, the General Council of the Medical Society of the State of New York contended the following [27]:

The Medical Society strongly believes that it is a terrible policy to criminalize mistakes in professional judgment; it is just as inappropriate to criminalize a doctor's clinical judgment as it would be to criminalize a lawyer's tactical judgment.

Added the Executive Vice President of the American Medical Association [28]:

Our concern is that mistakes of judgment should not be liable to criminal prosecution. Traditonally errors in judgment are handled through peer review and malpractice. Society has been poorly served by [the action lodged against the New York internist].

The following pointers will assist radiologists in dealing with the ever increasing number of criminal prosecutions lodged against physicians—and potentially against radiologists—for medical errors.

• Although from a practical point of view the radiologist should attempt to accommodate any reasonable request of a referring physician to perform a particular imaging examination, nonetheless the radiologist has an independent duty to comply with the standard of care of radiologists. If this standard calls for conduct contrary to the wishes of a referring physician, the radiologist should patiently but firmly explain the reasons why the radiologist cannot comply with the request of the referring physician.
  
• Radiologists should document in writing any discussion held with referring physicians that in the radiologist's judgment is contentious. A medicolegal truism states, "If it wasn't documented, it wasn't done." A radiologist who, several years after an incident, says to a jury "I explained to the referring physician why the radiologic examination was not indicated but have no documentation that I did" loses credibility, particularly if the referring physician has a different recollection of the content of the conversation. In a medical malpractice lawsuit or criminal proceeding, the veracity of the defendant radiologist assumes great importance. Nothing is worse than having two physicians pointing fingers at each other, giving conflicting versions of the same discussion. Documentation made at the time the event takes place and preserved in a log in the radiology department or in the radiologist's personal file is credible evidence in a court of law.
  
• Radiologists who receive any official or indirect information that a criminal investigation concerning his or her professional activities has been undertaken should retain an attorney knowledgeable in criminal defense to attempt to ascertain the reasons for the investigation. Often an early response or even a personal appearance of the radiologist, if allowed, may satisfy an investigator or prosecutor and preempt full-fledged and costly proceedings.
  
• Radiologists subjected to criminal prosecution for reasons they believe to be unjustified should vigorously attempt to enlist the assistance of their state medical society, branch of the American College of Radiology, or any other professional organization that has the capability to provide legal or financial resources or both.
  

References

Top The Case Medical—Legal Issues Discussion Summary and Risk Management References

 

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This Article Full Text (PDF) Alert me when this article is cited Alert me if a correction is posted Citation Map Services Email this article to a friend Similar articles in this journal Similar articles in PubMed Alert me to new issues of the journal Download to citation manager Citing Articles Citing Articles via HighWire Citing Articles via Google Scholar Google Scholar Articles by Eisenberg, R. L. Articles by Berlin, L. Search for Related Content PubMed PubMed Citation Articles by Eisenberg, R. L. Articles by Berlin, L. Social Bookmarking                      What's this? Hotlight (NEW!) What's Hotlight?