Doctors Seldom Face Prosecution

Alvin Chernov's sister, Debbie Knight, poses the question, "Do doctors ever get prosecuted for screwing up on the job?"

The answer is yes, but rarely. Physicians frequently are the targets of civil medical malpractice lawsuits and--less often--when they take sexual liberties with patients.

But it's the unusual case--probably not more than a dozen nationwide this decade, according to the American Medical Association--in which a doctor is prosecuted for a medical error, even an egregious one.

Remember the Florida case a few years ago when a doctor amputated a man's foot--the wrong one? Or the Dallas surgeon who removed a man's healthy right lung instead of the tumorous left one? And what about the case of Phoenix cosmetic surgeon Baruch Rosen ("Scarred for Life," June 5, 1991), whose slipshod treatment left at least two women physically and emotionally devastated?

None of the doctors in those cases faced criminal prosecution, though Rosen lost his license to practice medicine.

Other noteworthy Arizona cases that haven't been prosecuted include the doctor who wrote bogus prescriptions to Cindy McCain, the wife of Senator John McCain, for painkilling drugs to feed her addiction. Instead, Dr. John "Max" Johnson surrendered his medical license after Cindy McCain's actions were exposed by New Times ("Opiate for the Mrs.," September 8, 1994). Cindy McCain wasn't prosecuted, either, but was allowed to enter a federal diversion program.

In another case, a 68-year-old Phoenix psychiatrist wasn't charged criminally after he grabbed a male patient's genitals. His civil attorney argued in court that his client had used poor judgment, but merely was trying to shock his patient out of complacency and self-pity.

Even the handful of cases that does reach the criminal courts is too much for the AMA.

In 1995, the association adopted a policy opposing "the attempted criminalization of health-care decision-making," saying it "interfered with appropriate decision-making, and is a disservice to the American public."

The few criminal cases that have been filed against doctors often are difficult to prove. The burden of proof--"reasonable doubt"--in criminal cases is greater than the "preponderance of evidence" in civil malpractice and negligence cases.

Prosecutors in northern California learned that last month. On February 19, a judge acquitted a rural emergency-room doctor of second-degree murder, involuntary manslaughter and child endangerment in an 11-month-old baby's 1996 death. The judge said prosecutors failed to prove Dr. Wolfgang Schug acted criminally when he failed to recognize Cody Burrows' precarious medical condition and refused to treat him. Cody was pronounced dead on arrival at a second hospital an hour away, after his mother drove him there. A coroner said the baby's death was caused by dehydration and infection.

A civil lawsuit against Schug is pending.
Surprisingly, Pietr Hitzig--the controversial "father of fen-phen"--supports the idea of criminally prosecuting his colleagues when merited.

"Certainly," he says, "if it can be proven beyond a reasonable doubt that he or she was absolutely reckless, and someone got hurt. I have never been reckless in what I do, despite what the government or anyone else might say."

Law-enforcement authorities in Baltimore are investigating whether Hitzig prescribed fen-phen and other drugs "outside the ordinary course of accepted medical practice," a federal crime.

A New Times examination of U.S. appellate rulings on the "accepted medical practice" laws elicited pages of cases relevant, if not on point, to the Hitzig matter.

A starting point, according to an oft-cited 1992 case:
"There are no specific guidelines for determining whether a physician acted outside the usual course of his professional practice in dispensing controlled substances."

In other words, each case must be judged on its own merits.
Most courts have defined "accepted medical practice" to mean a doctor must physically examine a patient and be able to show specific reasons for prescribing any medications.

In a key 1973 case, for example, an undercover Denver cop complained to a doctor about a backache. The doctor didn't conduct a physical exam, but prescribed a drug--not a "controlled substance"--after taking a short history. The narc returned a few weeks later and asked for something stronger. This time, the doctor prescribed Percodan, a controlled drug.

"In the first place," the court wrote in upholding the doctor's conviction, "[he] made no physical examination, as such, before prescribing a controlled substance."

In cases where a doctor prescribes controlled drugs, the extent, if any, of a doctor's physical exam seems to be critical in how appellate courts rule.

In 1986, a court upheld the conviction of a Monroe, Louisiana, doctor who--much like Pietr Hitzig--had been dispensing "controlled" diet, anti-anxiety and sleeping pills. Dr. Frank Chin Jr. prescribed the drugs after the skimpiest of physical examinations and without a bona fide medical reason. Unlike the Hitzig case, however, these cops actually met with their target.

Chin claimed the undercover agents often were overweight, and he'd prescribed the drugs for a legitimate purpose. He argued that his wasn't "the usual 'fat' doctor case where a doctor sets up an obesity practice and prescribes an inordinate amount of diet pills in order to 'treat' these overweight patients."

The court concluded: "The government introduced unrebutted expert testimony by a physician to the effect that when a physician prescribes these controlled substances, significantly more elaborate medical examinations and precautions are needed than those provided by Dr. Chin."

Not even Alvin Chernov's family members are willing to say that Hitzig meant him harm in prescribing his claimed miracle-working pharmaceutical cocktail. But, if Hitzig were to be prosecuted in the Chernov case, the way in which the U.S. Supreme Court dealt with the issue of a doctor's motivation would appear to bode ill for him:

"Physician need not act with malicious motive or out of desire to make profit to be guilty of distributing controlled substances outside the scope of practice . . ."

In that 1975 case, the high court noted that Congress didn't want to impede "legitimate research and that physicians be allowed reasonable discretion in treating patients and testing new theories." But the court added a stern warning, based upon its interpretation of congressional intent.

". . . Physicians who go beyond approved practice remain subject to serious criminal penalties," it ruled.

--Paul Rubin


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