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The Recently Emerging Trend of Criminalizing Medical Malpractice may change how Doctors Practice Medicine

Normally, when a patient, or a patient’s family, believes that the treating physician may have been negligent in some case, the remedy is the pursuit of a civil medical malpractice case with the aid of a medical malpractice attorney. However, according to Reuters U.S. News, there has been an emerging trend over the past few years of punishing medical malpractice with criminal charges and convictions, instead of, or in conjunction with civil proceedings and civil remedies.

This trend of criminalizing medical malpractice has come as the result of the increase in fatal overdoses on prescription medications seen throughout the nation. Prosecutors in states such and Georgia and Florida believe that in order to quell this trend, it is more effective to prosecute the doctors, who grant access to the medications, rather than the patients.

The increased attention prosecutors have been giving this phenomenon recently may be warranted. Between the years 1999 and 2006, fatal overdoses on prescription painkillers more than tripled to 13,800 in the United States, according to the Centers for Disease Control and Prevention. In response to this disturbing trend, law enforcement agencies thought out the U.S. have stepped up their efforts to seek out and punish doctors who over prescribe prescription medications. According to information from the U.S. Drug Enforcement Administration (DEA), in 2003, the DEA reported 15 physician arrests that resulted in convictions. However, by 2008, the most recent year with comprehensive data, the number had increased to 43.

Some of the cases brought against physicians are brought through the controlled Substance Act, or other similar state statues. To establish guilt under this act, which was passed in 1970, a prosecutor must prove that the physician knowingly and intentionally prescribed the medication outside “the usual course of professional practice” or not for a “legitimate medical purpose.” In the alternative, in cases that prosecutors feel are extreme and deserving of harsher penalties, a prosecutor may seek to bring involuntary manslaughter charges against an offending physician.

Regardless of whether the criminal prosecutions of those doctors who negligently or wrongfully provide access to prescription medications is warranted, this practice may have a chilling effect on physicians as a whole. In 1995, the American Medical Association (AMA) adopted a resolution opposing the “attempted criminalization of health care decision-making especially as represented by the current trend toward the criminalization of malpractice.” The AMA opposes this current trend of criminalizing medical malpractice, because according to the organization, it may change the way physicians practice medicine. According to the AMA, civil suits for monetary damages were sufficient to hold negligent doctors accountable.

Critics of the criminalization of medical malpractice argue that physicians who treat patients with chronic pain should not be criminally punished for attempting to provide those patients with some measure of relief. Because pain is subjective, doctors must rely on the accounts of patients who are sometimes addicted and seeking drugs. In so doing, some doctors may open themselves up to possible criminal prosecution, for simply attempting to treat their patients. According to one critic of this emerging trend, Diane Hoffmann, a law professor at the University of Maryland School of Law, “Doctors are not supposed to be law enforcement agents. They’re supposed to believe their patients.”
According to physicians as well as others who oppose the criminalization of medical malpractice, the criminal prosecution of doctors for medical malpractice, may have a chilling effect on the medical profession because doctors may change treatment plans out of fear of facing time in prison.

Regardless of this trend toward the criminalization of medical malpractice, it is important that patients are still able to seek compensation if they are the victim of negligence, and the only way to do this is to seek justice through the civil system. Patients who feel that they have been the victim of medical malpractice should immediately seek the guidance and advice of an experienced medical malpractice attorney in order to insure that they receive the compensation they deserve.