The Criminalization of Medical Malpractice

Reuters reports between 1999 and 2006, fatal overdoses of prescription painkillers have more than tripled in the U.S. The abuse of prescription painkillers is particularly prevalent in states like Florida which has a reputation for being an epicenter of prescription abuse. As a result, in addition to charging the patients who are actually using the drugs, prosecutors are now bringing criminal charges against doctors who wrongly prescribe medications. In fact, a growing number of US doctors are facing criminal charges for over prescribing or failing to monitor prescription drugs. A good example of this trend involves Conrad Murray's trial in the death of Michael Jackson. The case has raised public awareness about this growing problem. Murray is accused of such severe medical negligence that he is being charged with involuntary manslaughter and prosecutors argue he should face prison time.

Unfortunately, the American Medical Association (AMA) has over reacted to this trend. According to the AMA criminalizing medical malpractice interferes with the practice of medicine. The AMA also claims that civil cases are enough to hold doctors accountable for their actions. In reality, the AMA is talking out of both sides of their mouth. On the one hand the AMA claims that there is no reason to charge doctors criminally because the civil courts will hold them accountable for money damages in medical malpractice lawsuits. On the other hand, the AMA is one of the biggest proponents of the kind of tort reform that will make it so unprofitable for medical malpractice attorneys to pursue medical malpractice lawsuits that they will never be brought. It sounds like the AMA is really trying to make sure that doctors are never held accountable for their actions.

Furthermore, the alleged trend of prosecuting doctors is really not that significant when you realize how few convictions there really are. The U.S. Drug Enforcement Administration reported 15 doctors were convicted of criminal malpractice in 2003. Five years later that number had almost tripled to 43 in 2008. In that same year there were approximately 954,000 doctors practicing medicine. 43 out of 954,000 does not seem like an awful lot to me.

It is true that in the overwhelming majority of cases doctors should not be charged with a crime when they commit medical malpractice. However, doctors are not above the law. On those rare occasions when a doctor’s conduct rises to the level of a crime, they should be prosecuted. If this means that some good, well meaning, hard working, doctors over react to the possibility of being charged with a crime then so be it. For example, in Florida doctors face intense scrutiny regarding their prescriptions. But the scrutiny is very justified. Some unscrupulous doctors are running pill mills. They are giving out prescriptions for pain medication in large quantities with multiple refills to people that it appears are not really in pain. The motive seems to be purely to make money. Many of the patients are drug addicts just looking for a legalized way to get high. Some have died of overdoses. The fact that many good doctors no longer dispense painkillers at clinics and some practices simply no longer prescribe them at all should not stop the prosecution of pill mill doctors. Otherwise, pill mills will flourish and many more Floridians will become drug addicts.