For instance, physicians are legally prohibited from refusing to treat patients because the patients are seropositive for the human immunodeficiency virus (HIV). Similarly, hospitals, HMO's and nursing facilities have physician employment contracts creating a legal obligation to treat all patients admitted to the facility. Prosecutors who cannot rely on statute or contract can still prevail if a health care provider's indifference to the risk of harm amounts to either criminal negligence or recklessness. If it could be shown that a physician's negligence rose to the level of gross inattention, gross lack of competency, or criminal indifference to the patient's well-being, criminal negligence could attach. In legal parlance, for recklessness to apply, an actor must be aware of a substantial or unjustified risk inherent in the conduct, but proceeds in the face of such risk. Despite this explanation, what medical acts transform tort negligence into criminal negligence remains anybody's guess. Courts and common law have not been helpful in clarifying how criminal negligence applies to the practice of medicine. However, current definitions do seem to contemplate that criminal negligence is more than a mistake in judgment.That notion can be found in the following definitions: “That degree of negligence or carelessness which is denominated as gross, and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man…as to furnish evidence of that indifference to consequences which in some offenses takes the place of criminal intent.” or “Negligence, to be criminal, must be reckless and wanton.” In the end, what will tip the criminal vs. civil balance might be whether justice would be better served if a medical act or omission requires the defendant to pay the victim for the loss or whether the defendant should pay society for the loss.
Criminal Prosecutions Overseas
Criminal prosecution of health care providers for medical errors is not novel to American jurisprudence. Courts in Japan, New Zealand, Saudi Arabia, and India also see their health care providers on trial as criminal defendants for medical acts. Although no single answer adequately explains what drives criminal prosecution for medical mistakes in other countries, culture and lack of alternative forms of redress probably have a hand on the wheel.
For instance, Japan relies heavily on criminal prosecution to carry out the social function of public accountability for medical mistakes. American entities such as Medicare Quality Improvement Organizations, state licensure and discipline boards, and quasi-public accrediting organizations such as the Joint Commission for Accreditation of Healthcare Organizations (JCAHO) and the National Committee for Quality Assurance (NCQA) are without effective overseas counterparts. One reason for this is that hospitals in Japan need not be accredited by a JCAHO-like organization to obtain payment for services rendered. When the Japan Council for Quality Health Care (JCQHC), JCAHO's overseas brethren, does offer accreditation, it focuses on structure and process, not on patient safety related-outcomes.
Criminal Prosecution in the United States
To describe the criminal prosecution of health care providers in the United States as a trend might be asking too much from the term when you compare the flurry of criminal cases to the blizzard of civil litigation providers face when they are accused of medical malpractice. None-the-less criminal prosecution for medical acts is on the rise.29Between the time of the first such criminal case in 1809, Commonwealth of Massachusetts v. Thompson, and 1981, appellate courts heard approximately 15 similar cases. Over the next twenty years, approximately two dozen cases found their way into the lower courts. The overwhelming predominance of civil liability cases makes head-to-head comparison difficult. However, enough criminal cases have surfaced over the last twenty years to make some observations possible. For instance, two distinct layers of behavior settle out of the emulsion of criminal cases arising from medical acts. One layer contains cases which so closely resonate with the mens rea or guilty mind embodied in criminal statutes that no controversy can legitimately exist. These include attempts to defraud the Medicare program and illegally prescribing medication. The other layer involves purely medical acts and is more difficult to rationalize.
The following case is used to exemplify the difference between these layers. People v. Milos Klvana On December 18, 1989, Milos Klvana was convicted on nine counts of second degree murder.34 Klvana obtained his medical degree in 1967 in Czechoslovakia. After failing, due to poor performance, to complete a residency in obstetrics and gynecology in New York, and after being forced to resign a residency in anesthesiology at Loma Linda University upon the discovery that he was responsible for a patient's death, Klvana embarked on a private practice in the Los Angeles area.
While on probationary status with the California Medical Board for misdemeanor convictions of 26 counts of prescribing controlled substances without a good faith examination, Klvana applied for staff privileges at various hospitals, often failing to disclose his probationary status and misrepresenting himself as “board eligible” in obstetrics and gynecology. During his six-month trial, experts revealed the way Klvana's conduct fell egregiously below the standard of care.This testimony included his failure to monitor the conditions of the mothers during delivery, his disregard of signs of infant stress, including the presence of meconium, his absence during delivery, and his disregard of infants' exhibitions of obvious danger signs, including difficulty breathing, as well as his failure to perform high-risk deliveries in the hospital. Through the lens of Dr. Klvana's conviction, it becomes easier to distinguish his level of culpability from the culpability of a nurse who failed to notify a physician with a change in a patient's condition in a timely manner, or a physician who confused sepsis with dehydration in an eleven month old child. - See more at:
http://www.ispub.com/journal/the-internet-jou....PAbp5lWT.dpuf[/left]
(عدل بواسطة Adrob abubakr on 03-07-2013, 03:27 PM)
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