"WITH NO EVIL INTENT": THE CRIMINAL PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE

This article was downloaded by: [Northeastern University] On: 12 November 2014, At: 22:48 Publisher: Taylor & Francis Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Journal of Legal Medicine Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/ulgm20 "WITH NO EVIL INTENT": THE CRIMINAL PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE James A. Filkins a a * Assistant Corporation Counsel, City of Chicago. Published online: 10 Nov 2010. To cite this article: James A. Filkins (2001) "WITH NO EVIL INTENT": THE CRIMINAL PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE, Journal of Legal Medicine, 22:4, 467-499, DOI: 10.1080/01947640152750937 To link to this article: http://dx.doi.org/10.1080/01947640152750937 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. 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Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/ terms-and-conditions D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 http://www.tandfonline.com/page/terms-and-conditions http://www.tandfonline.com/page/terms-and-conditions The Journal of Legal Medicine, 22:467–499 Copyright C° 2001 Taylor & Francis 0194-7648/01 $12.00 + .00 “WITH NO EVIL INTENT” THE CRIMINAL PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE James A. Filkins, M.D., J.D., Ph.D.* If a person publicly practising as a physician, on being called upon to attend a sick woman, prescribes, with foolhardy presumption or gross recklessness, a course of treatment which causes her death, he may be found guilty of manslaughter, although he acted with her consent, and with no evil intent.1 INTRODUCTION On May 18, 1990, Alida Lamour entered the JHMCB Nursing Home in Brooklyn, New York.2 She had been transferred from Interfaith Hospital, just across the street, where she was being treated for end-stage renal disease.3 Six days later she died from chemical peritonitis.4 Up until a few weeks before her death, Ms. Lamour received hemodialysis to Ž lter the waste products from her blood that her kidneys could no longer process.5 At age 78, her weak heart and generally poor health made continued hemodialysis too dangerous. This * Assistant Corporation Counsel, City of Chicago. Former Cook County Deputy Medical Examiner. Address correspondence to Dr. Filkins at Department of Law, City of Chicago, Suite 900, 30 N. LaSalle St., Chicago, Illinois 60602, or via e-mail at [email protected] opinions expressed in this article are those of the author alone and do not necessarily re ect the opinions of the Department of Law of the City of Chicago or the OfŽ ce of the Medical Examiner of Cook County, Illinois. 1 Commonwealth v. Franklin Pierce, 138Mass. 165, 1884WL 6544 at *1 (Mass. 1884) (Oliver Wendell Holmes, J.) (emphasis added). 2 Einaugler v. Supreme Court of the State of New York for the County of Kings, 918 F. Supp. 619, 621 (E.D.N.Y. 1996). 3 Id. End-stage renal disease is the late stage of the irreversible cessation of kidney function. KURT ISSELBACHER ET AL., HARRISON’S PRINCIPLES OF INTERNAL MEDICINE 1281 (13th ed. 1994). 4 Chemical peritonitis is an in ammation of the peritoneum (or tissue lining the abdomen) caused by a foreign irritant. HARRISON’S, supra note 3, at 1436. 5 Hemodialysis requires the surgical insertion of a catheter into an artery and another catheter into a vein. Blood from the artery enters the dialysis machine, where it is Ž ltered and then returned to the body through the vein. Some form of vascular access is required. Often this is accomplished by an arteriovenous Ž stula, that is, the surgical union of an artery and a vein, which is accessible to a catheter. ALLEN R. NISSENSON ET AL., CLINICAL DIALYSIS 26-27 (2d ed. 1990). 467 D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 468 FILKINS prompted her physicians at Interfaith to switch her to peritoneal dialysis.6 Peritoneal dialysis requires the permanent insertion of a plastic tube called a Tenchkoff catheter into the peritoneum, that is, the membrane lining the abdominal cavity.7 A special  uid is then infused into the peritoneum through the catheter to absorb the waste products seeping out of the blood vessels within the peritoneum.8 The  uid, saturated with waste products from the blood, then drains out of the abdominal cavity.9 JHMCB had never cared for a patient undergoing peritoneal dialy- sis and had no protocols in place for the management of such a patient.10 Ms. Lamour’s physicians intended that she be brought back across the street to Interfaith for her periodic dialysis treatments.11 On May 18, 1990, Dr. Gerald Einaugler, one of the attending physicians at JHMCB, examined Ms. Lamour.12 He mistook the peritoneal dialysis catheter in her abdomen for a gastrointestinal feeding tube and ordered that she be given a feeding solution through the dialysis catheter.13 From the evening of Friday, May 18, 1990 to Sundaymorning,May 20, 1990,Ms. Lamour was fed at regular inter- vals through the dialysis catheter.14 On Sunday morning, a nurse noticed that Ms. Lamour was having trouble breathing, that her abdomen was distended, and that she had vomited.15 The nurse and her supervisor managed to drain about 2,000 cubic centimeters16 of feeding solution from Ms. Lamour’s ab- domen through the catheter by rocking her back and forth.17 At about 6:00 a.m. the nursing supervisor informed Dr. Einaugler of his mistake and of Ms. Lamour’s condition.18 At that time, Ms. Lamour’s vital signs were normal and she was resting quietly.19 What happened from that point on has become the subject of disagreement. Dr. Einaugler, ac- cording to his story, then called Dr. Dunn, the chief of nephrology at Inter- faith, and told him that he had mistakenly ordered a feeding solution to be given to Ms. Lamour through her dialysis catheter, but that she was stable.20 6 HARRISON’S, supra note 3, at 1285. Dialysis requires approximately 9 to 12 hours per week equally divided into 3 or 4 sessions. Id. at 1283. 7 Id. at 1285. 8 Id. 9 Id. 10 Einaugler, 918 F. Supp. at 621. 11 HARRISON’S, supra note 3, at 1285. 12 Einaugler, 918 F. Supp. at 621. The particular brand of feeding solution used was Isocal. Id. at 625. 13 Id. at 621-22. 14 Id. at 622. 15 Id. 16 Two thousand cubic centimeters is the equivalent of two liters, or roughly one half gallon. THE WORLD ALMANAC AND BOOK OF FACTS 1999, at 610 (1998). 17 Einaugler, 918 F. Supp. at 622. 18 Id. 19 Id. 20 Id. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 469 Dr. Einaugler then examined Ms. Lamour at the nursing home and called Dr. Dunn again to update him.21 Based on his conversations with Dr. Dunn, Dr. Einaugler stated that he decided to keep Ms. Lamour at JHMCB and to transfer her to Interfaith the following morning for her regular dialysis treatment.22 Dr. Einaugler instructed the nursing supervisor to make a note in the chart indicating that he had spoken to Dr. Dunn. He also instructed the supervisor to note that Dr. Dunn had advised him to keep Ms. Lamour at the nursing home on Sunday and to transfer her to Interfaith for her regular dialysis treatment on Monday.23 Dr. Dunn contradicted Dr. Einaugler’s version of events, stating instead that he told Dr. Einaugler to admit Ms. Lamour immediately to Interfaith and that Dr. Einaugler agreed he would.24 Later that Sunday, Dr. Einaugler, again according to his version, informed Dr. Kaski, the supervising physician at JHMCB, of the mistake and of Dr. Dunn’s recommendation to keep the patient at the nursing home until the next day.25 However, Dr. Kaski subse- quently stated that he urged Dr. Einaugler to admit Ms. Lamour to Interfaith that Sunday.26 By 4:30 p.m. Sunday afternoon, Ms. Lamour’s condition dete- riorated to the point that Dr. Einaugler ordered her admitted to Interfaith.27 Al- though she entered Interfaith by about 5:00 that same afternoon, Ms. Lamour did not receive peritoneal lavage28 or antibiotics29 until sometime on Monday afternoon.30 She died on Thursday, May 24, 1990.31 An investigation of the circumstances of Ms. Lamour’s death by a Kings County, New York, grand jury led to an indictment charging Dr. Einaugler with reckless endangerment in the second degree and willful patient neglect in violation of Public Health Law, section 12-b.32 In 1990, the American Medical Association (AMA), commenting upon the dismissal of criminal charges against a Pennsylvania surgeon for medical negligence, noted that the prosecution of physicians for clinical mistakes was 21 Id. 22 Id. 23 Id. 24 Id. at 622-23. 25 Id. at 623. 26 Id. 27 Id. 28 Peritoneal lavage is a diagnostic technique in which the abdomen is rinsed with sterile saline or lactated Ringer’s solution. The  uid is infused through a trocar over 15 to 20 minutes and then siphoned back for examination. JOHN BERNARD HENRY, CLINICAL DIAGNOSIS AND MANAGEMENT 485 (17th ed. 1984). 29 Antibiotics are administered in peritonitis to prevent infection and to decrease the incidence of abscess formation. Often surgical intervention is required as well. HARRISON’S, supra note 3, at 527. 30 Einaugler, 918 F. Supp. at 623. 31 Id. at 621. 32 Id. at 624. See N.Y. PENAL LAW § 120.20 (McKinney 1997); N.Y. PUB. HEALTH LAW § 12-b (McKinney 1990). D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 470 FILKINS “almost unknown.”33 Just three years later, the prosecution of Dr. Einaugler and other physicians for medical negligence led the AMA to adopt a resolu- tion at its interim meeting “to insure that medical decision-making exercised in good faith, does not become a violation of criminal law.”34 In 1995, the AMA adopted a sterner and more explicit resolution opposing the “attempted criminalization of health care decision-making, especially as represented by the current trend toward criminalization of malpractice . . . . ”35 At the time of the second resolution, the AMA estimated only about 10 physicians na- tionwide had been prosecuted for medical negligence,36 but the organization feared a trend was beginning to emerge that would lead to increasing numbers of physician prosecutions.37 The AMA’s fears may yet prove well founded. On November 29, 1999, the Institute of Medicine of the National Academy of Sciences issued a re- port, To Err Is Human, estimating that medical errors cause between 44,000 and 98,000 deaths each year.38 USA Today put the numbers in perspective by declaring in a front-page headline “Medical Mistakes 8th Top Killer.”39 The AMA cited the report with approval.40 On December 7, 1999, President Bill Clinton publicly embraced the report and instructed a task force to report to him within 60 days on plans to improve patient safety.41 That same day, Senator Edward Kennedy of Massachusetts announced he would introduce a bill in Congress to put the report’s recommendations into effect.42 AMA spokesperson Nancy Dickey, M.D., stated that “[t]he matter of accountability for negligent or incompetent actions is already established in 33 Pennsylvania Prosecutor Finds No Grounds for Charges Against Surgeon, AM. MED. NEWS, June 1, 1990, at 5. 34 Morton M. Kurtz, M.D., Criminalization of Medical Judgment, Resolution 223, Proceedings of the American Medical Association, Interim Meeting (Dec. 1993). 35 Criminalization of Health Care Decision-Making, Resolution 202, Proceedings of the American Med- ical Association (June 1995). 36 Criminal-NegligenceChargeRarelyFiled AgainstDoctors, SEATTLE TIMES, Jan. 15, 1998,at A14 (citing the AMA). 37 Jodie Snyder,When Doctors Bury Mistakes, Criminal ChargesMay Follow, ARIZ. REP., Dec. 15, 1998, at A1. 38 Robert Pear, Group Asking U.S. for New Vigilance in Patient Safety, N.Y. TIMES, Nov. 30, 1999, at A1. 39 Bob Davis & Julie Appleby,MedicalMistakes 8th Top Killer, USA TODAY, Nov. 30, 1999, at 1. Medical errors causing death are not limited to clinical mistakes. For example, a labeling error by the Regional Organ Bank of Illinois caused a heart to be sent to a patient awaiting a kidney transplant. The patient subsequently died. Scott Forner, Kidney-Heart Tragedy: Ice Ruined the Label, CHI. SUN-TIMES, June 15, 2000, at A1. 40 NANCY W. DICKEY, M.D., AMA ON IMPROVING PATIENT SAFETY (AMA Statement, Nov. 11, 1999). 41 Moving Fast on Patient Safety, N.Y. TIMES, Dec. 8, 1999, at A30. 42 Id. The report and the high-levelpolitical reaction to it have spurred a  oodof commentary. Forexample, the Chicago Sun-Times devoted a three-part series to the problem. Jim Ritter, Medical Mistakes Kill ThousandsEach Year, CHI. SUN-TIMES, Jan. 23, 2000, at A1. The president of the College of American Pathologists has observed that the report also has stimulated a renewed interest in the autopsy as a means of quality control. Paul Bachner, Doing the Right Thing About Autopsies, CAP TODAY, June 2000, at 11. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 471 our health care and judicial systems. State and federal courts, state licensing boards, and accrediting bodies all maintain accountability and standards.”43 However, recent criminal prosecutions of physicians for medical negligence suggest that the “matter of accountability” is far from settled. Many commen- tators agree with the AMA that an increasing number of physicians are being prosecuted for clinical mistakes, but explain the trend by pointing to the med- ical profession’s failure to police itself by, for example, failing to revoke the licenses of incompetent physicians.44 Others blame managed care and the loss of more personal physician-patient relationships for the trend.45 Still others note that, along with the loss of public respect for physicians, there is also less reluctance to demand severe penalties when a bad outcome does occur.46 This article identiŽ es the factors that tend to bring about criminal prose- cutions for medical negligence which, in turn, result in convictions following trial. Although a bad outcome is always at the core of any criminal prosecution formedical negligence, even an unconscionably bad outcome is insufŽ cient to explain by itself the successful prosecution of some medically negligent acts. The criminal prosecution of a physician for medical negligence is a unique cause of action.47 The evidentiary burdens, the rules of evidence, and the rules of procedure remain those of the criminal court.Mens rea, that is, a defendant’s criminally culpable state of mind, becomes a signiŽ cant element of the case. The mens rea ordinarily at issue in the prosecution of physicians for medical negligence is criminal negligence or recklessness.48 However, one might also reasonably suppose that the elements of the tort of medical negligence, espe- cially standard of care and causation, should properly be established in much the same way as they would in any civil proceeding for medical malpractice. Logically, if there is no departure from the standard of care or if causation cannot be established, then there should be no prima facie criminal case that will satisfy the requirements of due process.49 Yet, this is not always so.50 The Ž rst section of this article reviews eight recent criminal prosecutions of physicians and one corporation for medical negligence. These nine cases were selected because each prosecution resulted in a conviction that, with one exception,was appealed. Therefore, eight of the cases have been the subject of appellate decisions analyzing the issues in the case, such as causation, standard 43 NANCY W. DICKEY, M.D., CREATING A CULTURE OF PATIENT SAFETY (AMA Statement, Jan. 26, 2000). 44 Thomas Maier,More Doctors Face Prosecution: Crimes Charged in Cases of Deadly Error, NEWSDAY, Apr. 18, 1995, at A35. 45 Malpractice or Homicide?, WASH. POST, Apr. 18, 1995, at A16. 46 Id. 47 Utah v. Warden, 813 P.2d 1146, 1154 (Utah 1991) (Stewart, J., dissenting). 48 See, e.g., id. at 1150 (discussing the applicable mens rea). 49 Id. at 1154.If there is competent con icting expert testimony that the defendant physician’s actionswere medically appropriate, then arguably there must be reasonable doubt. See, e.g., Kansas v. Naramore, 965 P.2d 211, 223-24 (Kan. App. 1998); infra notes 185-226 and accompanying text. 50 See, e.g., infra notes 58-75, 146-59 and accompanying text. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 472 FILKINS of care, and mens rea.51 Some of the convictions were upheld on appeal and some were overturned. The cases are grouped and discussed according to the patterns of conduct that led to the prosecutions and convictions. The analysis that follows extracts from these cases several common patterns of acts or omissions by defendant physicians that sometimes led triers of fact to skirt the issues of causation and standard of care by inferring a criminal act through conduct the triers of fact interpreted as blameworthy. I. RECENT CASES Although the prosecution of physicians for medical negligence is un- common, it is nothing new. The earliest case in the United States found in the course of research for this article is the 1809 case of Commonwealth of Massachusetts v. Thompson.52 There are only about 15 reported appellate cases between 1809 and 1981. Since 1981, there have been a handful of re- ported appellate cases and perhaps another two dozen cases, which have been discussed in newspapers or on television, but not reported in appellate court decisions.53 The deŽ nition of medical negligence for purposes of this article follows very closely the deŽ nition used in medical malpractice litigation. It is an act or omission by a physician rendered in the course of treating a patient, which is the cause in fact of harm to the patient and which fails to meet the appropriate standard of care, but which is rendered without any deliberate intent to injure the patient.54 51 There have been 15 or so other cases in the past 20 years in which physicians have been charged with criminal medical negligence, but these cases have not become the subjects of appellate court decisions because the charges were dismissed, the physician was acquitted, or the case has not yet reached an appellate court. See, e.g., Alexander McCall Smith, Criminal or Merely Human?: The Prosecution of Negligent Doctors, 12 J. CONTEMP. HEALTH L. & POL’Y 131 (Fall 1995) (discussing the evolution of criminal negligence); Paul R. Van Grunsven,MedicalMalpractice or CriminalMistake?—An Analysis of Past andCurrent Criminal Prosecutions for ClinicalMistakes and Fatal Errors, 2 DEPAUL J. HEALTH CARE L. 1 (Fall 1997) (discussing a variety of cases); Kara M. McCarthy, Doing Time for Clinical Crime: The Prosecution of Incompetent Physicians as an Additional Mechanism to Assure Quality Health Care, 28 SETON HALL L. REV. 569 (1997). 52 Commonwealth v. Thompson, 6 Mass. 134, 1809WL 1120 (Mass. 1809). 53 The author undertook this search in the Westlaw “allcases” database using the following Boolean searches: 203k74&physiciandoctor& criminal!; 203k74&physiciandoctor&negligence;“physician! doctor! surgeon! Cs “criminal conviction”; physician doctor surgeon dentist & “negligent homicide” “reckless endangerment.” This last search also was repeated in the Westlaw “allnews” database. This skews the research in favor of more recent cases. Westlaw contains virtually all reported state and federal appellate cases going back to the eighteenth century. However, Westlaw’s “allnews” database, while comprehensive, only goes back to about 1984. Cases before 1984 that were publicized, but for whatever reason did not become the subject of an appellate opinion,were not identiŽ ed. 54 See, e.g., WEBSTER’S NEW COLLEGIATE DICTIONARY 721 (9th ed. 1986) (deŽ ning malpractice). “[A] dereliction from a professional duty or a failure to exercise an adequate degree of care in rendering service.” Id. See also BLACK’S LAW DICTIONARY 959 (6th ed. 1990) (providing another deŽ nition of malpractice). “Failure of one renderingprofessional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services.” Id. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 473 The deŽ nition can perhapsbemade clearer by stating what kinds of cases are excluded from consideration in this article. Cases in which the physician acts with deliberate intent to harm or even kill the patient are excluded. This deŽ nition excludes euthanasia or assisted suicide cases.55 Also excluded is the rare case in which a physician uses medical treatment to camou age a deliberate injury of the patient for some personal gain.56 In addition, cases involving the prosecution of physicians under criminal abortion statutes prior to Roe v. Wade57 are excluded. The cases that remain are essentially medical malpractice cases plus some other factor or factors that elevated them to the level of criminal offenses. A. United States v. Billig In 1986, a general court-martial convicted Commander Donal Billig, U.S.N.R., of two speciŽ cations of involuntary manslaughter and one speciŽ - cation of the lesser included offense of negligent homicide arising out of three coronary artery bypass graft surgeries performed by him at Bethesda Naval Hospital (Bethesda) between June of 1983 and March of 1985.58 Dr. Billig was a board-certiŽ ed cardiothoracic surgeon and the head of the Cardiothoracic Surgery Department at Bethesda at the time of the incidents that led to his court-martial.59 A number of complications arose during each of the three surgeries for which Dr. Billig eventually was convicted of involun- tary manslaughter or negligent homicide.60 However, as the Court of Military Review noted in its opinion, prosecutors perhaps “lost sight of the fact that coronary artery bypass surgery is an inherently risky business, performed only within approximately the last 30 years, and that those patients who agree to this elective surgery are quite ill in the Ž rst place, many of them gravely so.”61 55 Cases in which physicians were prosecuted because the authorities believed they committed euthanasia are considered. See infra notes 185-226 and accompanying text. 56 A recent example of the latter is the case of Dr. Richard Schmidt, a physician in Lafayette, Louisiana, who injected his lover, Janice Trahan Allen, with blood contaminated with HIV and hepatitis under the pretext of giving her a B-12 vitamin injection. Ms. Trahan had been pressuring Dr. Schmidt to divorce his wife and marry her. She allegedly threatened to expose him if he did not agree to the divorce and remarriage. Ms. Trahan subsequently became HIV and hepatitis-C positive. On October 23, 1998, Dr. Schmidt was convicted of attempted murder and sentenced to the maximum of 50 years. Lawyers Appeal Doctor’s Conviction of InjectingGirl with AIDS Virus, LAKE CHARLES AM. PRESS, Feb. 24, 2000, at 3A. 57 410 U.S. 113 (1973). However, cases in which physicians have been prosecuted for negligently per- forming legal abortions are considered. See infra note 288. 58 United States v. Billig, 26 M.J. 744, 746-47 (1988). Dr. Billig also was convicted of 12 speciŽ cations of willful dereliction of duty, four speciŽ cations of negligent dereliction of duty, and two speciŽ cations of dereliction of duty through culpable inefŽ ciency. Id. 59 Id. 60 Id. at 750-57. 61 Id. at 760. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 474 FILKINS The negligent conduct alleged in the Ž rst surgery included the misiden- tiŽ cation of a vein as an artery, which added 30 minutes to the operation, the improper placement of a vent in the heart to drain blood, and “overma- nipulation” of the patient’s heart, which led to hemorrhage.62 In the second surgery, Dr. Billig was accused of negligently sewing saphenous vein grafts to the coronary arteries because the graft veins proved to be too large for the coronary arteries. The disparity in size between the native and graft vessels caused blood clotting, inadequate blood  ow to the heart, and death.63 In the third case, Dr. Billig was alleged to have improperly fashioned saphenous vein bypass conduits with lumens too small to allow adequate blood  ow to the heart leading, as in the second case, to inadequate blood  ow and death.64 As the review court noted, expert witnesses presented con icting evi- dence on virtually “every important factual issue.”65 The crux of the case and of the review court’s opinion was the manner in which the court-martial han- dled the issue of the standard of care. Numerous prosecution expert witnesses testiŽ ed Dr. Billig’s conduct fell below the standard of care expected of a board-certiŽ ed cardiothoracic surgeon.66 Predictably, several defense expert witnesses countered that Dr. Billig’s actions met the standard of care.67 Despite the inability of any expert witness to deŽ ne the standard of care, the military judge nevertheless instructed the members of the court-martial that “any deviation from it [the standard of care] constituted criminal negli- gence.”68 That instruction, the review court concluded, encouraged the mem- bers of the court-martial to look to the results of the surgeries to determine the standard of care, rather than to Dr. Billig’s actions during the surgeries.69 A bad outcome therefore equaled a breach of the standard of care, and under the military judge’s instruction, criminal negligence. The review court found that the members of the court-martial could consequently Ž nd Dr. Billig guilty of involuntary manslaughter and negligent homicide based upon a supposed de- parture from a standard of care that had no clear meaning, rather than upon spe- ciŽ c acts or omissions provided in the speciŽ cations.70 The case of Dr. Billig appeared to the Court ofMilitary Review to be more of a civil tort action than a criminal prosecution.71 Accordingly, the court reversed his convictions on all counts.72 62 Id. at 750-52. 63 Id. at 754. 64 Id. at 756. 65 Id. at 757 n.13. 66 Id. at 759. 67 Id. 68 Id. (emphasis added). 69 Id. 70 Id. at 760. 71 Id. 72 Id. at 761. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 475 The different procedural rules under which civilian courts of appeal and courts ofmilitary review operate distinguishBillig from the other cases that are discussed. UnderArticle 66 of the UniformCode ofMilitary Justice, a court of military review may “weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact.”73 Dr. Billig was fortunate that a military court of review had the discretion to determine that his “honest mistakes : : : fell far short of the gross, wanton, and deliberate misconduct, with an accompanyingmens rea, that truly deservespunishment.”74 The review court could independently weigh con icting expert testimony regarding the standard of care and conclude that the members of the court-martial decided wrongly—something that civilian appellate courts have far less discretion to do.75 B. Commonwealth of Pennsylvania v. Youngkin On July 23, 1976,Barbara Fedder choked to death after vomiting and as- pirating the contents of her stomach into her lungs.76 Her death was attributed to suppression of her gag re ex, which normally would have expelled the vomitus from her throat but for the presence in her system of the barbiturate Tuinal.77 Ms. Fedder’s physician, James Youngkin, had prescribed numerous drugs for her in the weeks before her death, including seven prescriptions for Tuinal.78 Dr. Youngkin was indicted and convicted of involuntary manslaugh- ter for issuing the Tuinal prescriptions.79 In afŽ rming Dr. Youngkin’s conviction, the Superior Court of Pennsylvania held: “The recklessness or criminal negligence required to sus- tain an involuntary manslaughter conviction may be found if the accused consciously disregarded or, in gross departure from a standard of reasonable care, failed to perceive a substantial and unjustiŽ able risk that his action might cause death or serious bodily harm.”80 The court speciŽ cally noted that the frequency with whichMs. Fedder requested Tuinal reŽ lls should have alerted Dr. Youngkin to her abuse of the drug.81 In particular, one concerned phar- macist had even telephoned Dr. Youngkin to report Ms. Fedder’s condition 73 Id. at 757 (citing 10 U.S.C. § 866). 74 Id. at 760-61. 75 See infranotes 102-45and 146-59and accompanying text (discussing theWarden andEinauglercases). 76 Pennsylvania v. Youngkin, 427 A.2d 1356, 1359 (Pa. Super. Ct. 1981). 77 Id. Barbiturates are a class of drugs that for many years were used as sedative-hypnotics. They act by depressing, or sedating, the central nervous system, including central nervous control of the respiratory system. Barbiturates largely have been replaced by benzodiazepines (for example, Valium), which are safer. GOODMAN & GILMAN’S THE PHARMACOLOGICAL BASIS OF THERAPEUTICS 373-77 (Joel G. Hardman & Lee E. Limbird eds., 9th ed. 1996). 78 Youngkin, 427 A.2d at 1359. 79 Id. at 1358. 80 Id. at 1360. 81 Id. at 1361. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 476 FILKINS when she arrived at his pharmacy in a stupor to request a reŽ ll of her Tuinal prescription. Dr. Youngkin authorized the reŽ ll by ordering the pharmacist to “Ž ll the damn thing!”82 Expert opinion established that the size of the pills, and the amounts and frequencies of the prescriptions constituted deviations from the standard of care.83 The appellate court held a criminal prosecution required a more direct causal connection than that offered by a theory of causation in tort.84 However, the court conceded that a defendant’s acts need not be the direct cause of the victim’s death or even the sole or immediate cause of death.85 It was sufŽ cient that a defendant’s conduct was “a direct and substantial factor in producing the death even though other factors combined with that conduct to achieve the result.”86 The court held a jury could Ž nd that Dr. Youngkin “consciously disregarded a substantial and unjustiŽ able risk, which : : : involved a gross de- viation from the standard of conduct” and which was “a direct and substantial factor in producing Ms. Fedder’s death.”87 C. Colorado v. Verbrugge In 1993,Dr. Joseph Verbrugge, an anesthesiologist, fell asleep during an operating room emergency that led to the death of his patient, an eight-year- old boy.88 The prosecution argued a clogged airway and overheating caused the child’s carbon dioxide level to rise to a fatal level. The defense argued that the child died from malignant hyperthermia, an uncommon complication of anesthesia in which the patient’s body temperature rises to a dangerous level.89 Although the onset of malignant hyperthermia is unpredictable, in most cases it can be successfully managed.90 The operation was a relatively uncomplicated surgery for the removal of skin tissue in the ear, but it was performed under general anesthesia.91 Dr. Verbrugge was charged with reckless manslaughter in the child’s death.92 During the Ž rst trial, witnesses testiŽ ed to four previous episodes 82 Id. 83 Id. 84 Id. at 1359. 85 Id. 86 Id. at 1359-60 (citing Pennsylvania v. Skufca, 321 A.2d 889, 894 (Pa. 1974)). 87 Id. at 1361. 88 Howard Pankratz, Doctor Faults Verbrugge in Death, DEN. POST, Sept. 16, 1995, at B3. 89 Id. 90 Id. The parties in the case disputed the cause of the child’s death. Dr. Verbrugge’s attorney, Gary Lozow, argued that the child died from malignant hyperthermia. Dr. Thomas Henry, Chief Medical Examiner for Denver, Colorado, agreed, as did two other medical experts. The prosecution argued that a clogged airway and overheating caused the child’s carbon dioxide level to rise to a fatal level. Id. 91 Howard Pankratz, Witness: Verbrugge Said He Corrected “Nodding Off,” DEN. POST, Oct. 5, 1996, at B3. 92 Sue Lindsay, Jurors Will Hear How Doctor Fell Asleep During Four Surgeries, ROCKY MT. NEWS, May 17, 1996, at 20A. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 477 in which Dr. Verbrugge had fallen asleep during surgery.93 Dr. Verbrugge’s attorney argued in a motion to suppress the testimony that the earlier episodes were distinguishable from the case at bar because the patients were not under general anesthesia.94 However, the trial judge denied the motion to suppress, ruling that the evidence of prior episodes had bearing on Dr. Verbrugge’s awareness of the risk and whether he consciously disregarded the risk.95 At his Ž rst trial, the jury convicted Dr. Verbrugge of the lesser nonin- cluded offense of criminal medical negligence, a misdemeanor, but failed to reach verdicts on the charged offense of reckless manslaughter or the lesser- included offense of criminally negligent homicide.96 Accordingly, the court granted a mistrial and Dr. Verbrugge was retried in September of 1997 on the two unresolved charges.97 At the retrial, the jury acquitted Dr. Verbrugge of reckless manslaughter and criminally negligent homicide.98 Dr. Verbrugge then moved to vacate the guilty verdict on the misdemeanor charge on the grounds the statute of limitations had expired when the charge was brought at the Ž rst trial.99 The appellate court granted themotionbecause, underColorado law, the statute of limitations in a criminal prosecution is a jurisdictional bar depriving a court of subject matter jurisdiction.100 Dr. Verbrugge’s Ž rst attor- ney’s request for the jury instruction on that charge did not constitute a waiver because subject matter jurisdiction cannot be waived.101 Thus, Dr. Verbrugge was convicted of a crime with which he would not have been charged had not his Ž rst attorney requested the charge; his conviction was reversed on procedural grounds unrelated to any medical negligence. D. State of Utah v. Warden State of Utah v. Warden102 illustrates the manner in which a trier of fact may apply the actions or omissions of a defendant physician to infer a culpable mental state and from that culpable mental state, a criminal act. The case is also instructive as an example of the selective use of facts by successive appellate courts to reach different results.103 DavidWarden was a licensed and board-certiŽ ed family physician who, at the time of the incidents at issue in the case, had delivered about 2,500 babies.104 Of the 2,500 deliveries, 300were 93 Pankrantz, supra note 91, at B3. 94 Lindsay, supra note 92, at 20A. 95 Id. 96 Colorado v. Verbrugge, No. 98CA0262, 1999WL 417965 at *1 (Colo. App. June 24, 1999). 97 Id. 98 Id. 99 Id. 100 Id. at *2. 101 Id. at *1. 102 813 P.2d 1146 (Utah 1991). 103 Cf. Utah v. Warden, 784 P.2d 1204 (Utah App. 1989). 104 Warden, 813 P.2d at 1148. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 478 FILKINS homedeliveries.105 In September of 1986,Dr.Warden examined JoanneYoung in his ofŽ ce because she wished to have a home delivery.106 According to the intermediate appellate court opinion, Ms. Young wished to have the baby at home because she was unmarried and embarrassed about the pregnancy, and because she wished to save money.107 Dr. Warden determined that Ms. Young was a suitable candidate for home delivery and calculated her due date to be in early December, although he did not perform an ultrasound to conŽ rm the date.108 A fact omitted in the later opinion of the Utah Supreme Court, but included in the intermediate appellate court opinion, was that Ms. Young’s mother, Ivy Young, would be present to help with the baby and that she had given birth to four of her seven children at home.109 On November 7, 1986, six weeks before her anticipated due date, Ms. Young experienced cramps and vaginal bleeding.110 Ivy Young called Dr. Warden, who told her to put Joanne to bed and to notify him if the bleed- ing or contractions worsened.111 Later that afternoon, Ivy called back to tell Dr. Warden that the bleeding had stopped and that the father of the child esti- mated that conception may have occurred four weeks earlier than previously believed.112 Dr. Warden told Ivy to report back as the labor progressed, which she did.113 At about 10:15 that night, Ivy told Dr. Warden that the Ž nal stage of labor had begun.He arrived at their home 15 minutes later.114 Shortly there- after, Joanne delivered a male infant in breech, who weighed only four to Ž ve pounds and was having some difŽ culty breathing.115 According to Dr. Warden, in the version recited by the intermediate ap- pellate court, he recommended to Ivy that the baby should be hospitalized, but that she was reluctant to put the baby in the hospital because Joanne lacked health insurance.116 The appellate court noted that Ivy denied she ever discussed hospitalization with Dr. Warden.117 The Utah Supreme Court noted only that “Warden told her that hospitalization was not indicated.”118 From this point, the versions of events recounted in the two reviewing court opinions differ markedly in tone, if not so much in substance. 105 Id. 106 Id. 107 Warden, 784 P.2d at 1205. 108 Warden, 813 P.2d at 1148. 109 Warden, 784 P.2d at 1205. 110 Id. 111 Id. 112 Id. 113 Id. 114 Id. 115 Id. 116 Id. 117 Id. 118 Warden, 813 P.2d at 1148. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 479 According to the Utah Supreme Court, Dr. Warden stated the baby’s difŽ culty in breathing was normal for premature infants and that Ivy should watch the baby.119 Dr. Warden then positioned the baby in such a way as to “mask,” in the words of the Utah Supreme Court, the symptoms of respiratory distress.120 The intermediate appellate court opinion cast a different light on the events immediately following the baby’s birth. After allegedly discussing hospitalization of the baby, Dr. Warden instructed Ivy “how to position the infant to relieve some of the respiratory distress and showed [the mother] how to nurse the baby.”121 Dr. Warden also told Ivy to keep the baby warm and to check his temperature, color, and breathing, and to call him if there were any changes in the baby’s condition.122 During the night, the baby turned blue, but did not stop breathing until 8:00 a.m.123 Ivy performed resuscitation for about 20 minutes before the baby responded.124 She then called Dr. Warden’s ofŽ ce, but was told he was at home.125 When she called his home, Dr. Warden’s wife told her that he had left for the ofŽ ce and would be there by 9:30 a.m.126 As the Utah Court of Appeals noted, at no time did Ivy identify herself, leave a message, or advise anyone that there was an emergency.127 Neither did she call an ambulance or try to take the baby to the hospital.128 At about 9:30 a.m., Ivy called her clergyman, who came to the house with a pediatrician.129 By that time, the baby was near death. He was taken immediately to a hospital, but died shortly after admission.130 Again the Utah Supreme Court’s version puts a different emphasis on the events than that described in the appellate court opinion. According to the Utah Supreme Court: Warden’s housewas only Ž ve blocks and his ofŽ ce was only six to eight blocks from the Youngs’ home. He was up at 6:00 the followingmorning; nevertheless, he made no attempt to contact his patients until noon that day, when, for the Ž rst time, he phoned the Youngs and was informed of the infant’s death.131 An autopsy established that the baby was six to seven weeks premature and that he died from respiratory distress caused by prematurity of the lungs, 119 Id. at 1148-49. 120 Id. at 1148. 121 Warden, 784 P.2d at 1205-06. 122 Id. at 1206. 123 Id. 124 Id. 125 Id. 126 Id. 127 Id. 128 Id. 129 Id. 130 Id. 131 Warden, 813 P.2d at 1149. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 480 FILKINS hyaline membrane disease.132 In February of 1988, Dr. Warden was convicted of negligent homicide.133 On November 22, 1989, the Utah Court of Appeals reversed his conviction because it found the evidence was “sufŽ ciently incon- clusive to establish that there was a substantial and unjustiŽ able risk of death such that the defendant should have been aware of it.”134 A dissenting opinion foreshadowed many of the points the Utah Supreme Court would make in reversing the Utah Court of Appeals.135 In reversing the appellate court, the Utah Supreme Court explained neg- ligent homicide in Utah occurs when the actor “ought to be aware of a sub- stantial and unjustiŽ able risk that the circumstances exist or the result will occur [leading to death].”136 The risk must be so severe that the failure to perceive it “constitutes a gross deviation from the standard of care that the ordinary person would exercise in all the circumstances as viewed by the actor’s standpoint.”137 In a prosecution for medical negligence, the evidence must prove beyond a reasonable doubt that the physician’s treatment “created a substantial and unjustiŽ able risk that the patient would die, that the doctor should have but failed to perceive this risk, and that the risk is of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care.”138 The court held a jury could conclude expert testimony established Dr.Warden breached the standard of care.139 The court also held that there was substantial evidence for a jury to Ž nd Dr. Warden’s conduct created a substan- tial and unjustiŽ able risk that the infant would die, a risk of which he should have been aware.140 A jury could infer but for Dr. Warden’s reassurances at the time of the baby’s birth, that the Youngs would have sought additional medical attention.141 The court also noted that Dr. Warden did not check on the baby the following morning even though both his home and ofŽ ce were a few blocks away.142 The facts that the court found could sustain a charge of criminal negligence were not limited to those surrounding the delivery of Ms. Young’s baby.Dr.Warden did not carry malpractice insurance and lacked 132 Warden, 784 P.2d at 1206. Hyaline membrane disease occurs most commonly in premature infants because of a deŽ ciency of pulmonary surfactant. Surfactant is the chemical that decreases the surface tensionwithin the alveoli, or individual respiratory units of the lung, to facilitate expansion of the lungs during breathing. J. THOMAS STOCKER & LOUIS P. DEHNER, 1 PEDIATRIC PATHOLOGY 533 (1992). 133 Warden, 784 P.2d at 1206. 134 Id. at 1209. 135 Id. (Greenwood, J., concurring and dissenting). 136 Warden, 813 P.2d at 1151. 137 Id. 138 Id. 139 Id. 140 Id. 141 Id. at 1152. 142 Id. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 481 hospital privileges.143 Accordingly, he could only perform home deliveries and would have had to call on another physician to admit the baby.144 The court observed “the jury could have reasonably inferred that this could cause Dr.Warden embarrassment and that this embarrassment could have in uenced his decision not to admit the baby.”145 E. New York v. Einaugler On July 22, 1993,Dr. Gerald Einauglerwas convicted of reckless endan- germent in the second degree and willful violation of the health laws of New York.146 The New York appellate court found that the prosecution presented sufŽ cient evidence to permit the jury to conclude that Dr. Einaugler “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 con- duct constituted a gross deviation from the standard of conduct a reasonable person would observe in the situation.”147 The United States District Court for the Eastern District of New York, in hearing Dr. Einaugler’s petition for habeas corpus, reached the same conclusion.148 The linchpin of both counts is not the careless error that caused the patient to be fed Isocal through the dialysis catheter.This error, however horrifyingand incompetent, was a mistake from ignorance,not a mistakemade with any apparent criminal intent. Instead, the criminal conduct alleged in the indictment was petitioner’s failure to hospitalizethe patient after he became aware that it was necessary “to treat the effect of the introduction of the feeding solution to the peritoneum,” (Count One) and to “rectify the error” (Count Two).149 This is precisely what the prosecutors had argued—that Dr. Einaugler was tried not for the error, but for failing to act to remedy the error.150 The district court continued its discussion, noting a  aw in the role expert testimony played in the case. The court noted that none of the expertwitnesses called by the prosecution (much less the two called by the defense) “testiŽ ed directly that the delay [in transferringMs. Lamour to the hospital] created even a risk of death, much less a quantiŽ able risk of death . . . . ”151 Thus, the jury in a criminal case had to infer the existence of one of the elements of the crime 143 Id. at 1148. 144 Id. at 1152. 145 Id. 146 People v. Einaugler, 618 N.Y.S.2d 414 (N.Y. App. Div. 1994). 147 Id. at 415. 148 Einaugler, 918 F. Supp. at 625. 149 Id. 150 Linda Oberman, DeŽ ning Clinical Crime, AM. MED. NEWS, Sept. 6, 1993, at 2. 151 Einaugler, 918 F. Supp. at 627. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 482 FILKINS from circumstantial evidence.152 In a civil case involving medical negligence, the court continued, jurors cannot reliably evaluate the contentions of the parties without assistance from medical experts because of the complexities of medical care.153 This is especially true regarding the issue of causation in situations when a patient is already sick before the physician begins treatment because the possibility exists that the patient’s initial condition caused the injury rather than the physician’s negligence.154 “The causation question is made even more complicated when, although the patient suffers actual injury, liability is attached to conduct that allegedly ‘caused’ risk of injury, rather than actual injury.”155 Although the court conceded the case was a “close call” because of the problems in establishing causation, the court concluded there was sufŽ cient evidence for the jury to Ž nd Dr. Einaugler guilty.156 The court noted that the jury, as the arbiter of the credibility of the witnesses, could believe Dr. Dunn’s version of events instead of Dr. Einaugler’s.157 Accordingly, Dr. Einaugler’s petition for habeas corpus was denied.158 On March 25, 1995, Dr. Einaugler began serving the Ž rst of 52 consecutive weekends in jail.159 F. United States v. Wood OnFebruary 5, 1994,86-year-oldVirgil Dykes came to the Veterans Ad- ministration hospital in Muskogee, Oklahoma, complaining of severe abdom- inal pain.160 Dr. C. DouglasWood, a surgeon, operated on Mr. Dykes to repair a perforated duodenum, a complication of which was the peritonitis causing his abdominal pain.161 Over the eight days following the surgery, Dr. Wood continued to care for Mr. Dykes in the surgical intensive care unit.162 On the morning of February 13, Mr. Dykes had a low blood level of potassium.163 Dr. Rocky Morgan, a Ž fth-year resident, ordered that Mr. Dykes be given 40 milliequivalents of potassium chloride through his nasogastric tube, but this failed to raise Mr. Dykes’ potassium level because he was unable to ab- sorb the drug through his stomach.164 When Dr. Wood arrived at the hospital later that morning he orderedMr. Dykes to be given an intravenous solution of 152 Id. 153 Id. 154 Id. 155 Id. (emphasis added). 156 Id. at 630. 157 Id. at 635. 158 Id. 159 Malpractice, supra note 45, at A16. New York Governor George Pataki eventually commuted Dr. Einaugler’s sentence to 52 days of community service. Snyder, supra note 37, at A1. 160 United States v. Wood, 207 F.3d 1222, 1226 (10th Cir. 2000). 161 Id. 162 Id. 163 Id. 164 Id. at 1226-27. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 483 40 milliequivalents of potassium chloride in 100 cubic centimeters of saline, in addition to 40 milligrams of Lasix to reduce the accumulation of  uid in his lungs.165 Nurse Marla Kinsey told Dr. Wood that the fastest rate at which she could administer the intravenous solution of potassium chloride was over one hour.166 Dr. Wood then ordered Nurse Kinsey to prepare a syringe of 40 milliequivalents of potassium chloride in 30 to 50 cubic centimeters of saline, which he then administered to Mr. Dykes.167 Mr. Dykes suffered car- diopulmonary arrest and died a few minutes later despite Dr.Wood’s attempts at resuscitation.168 Four years later, the United States government indicted Dr. Wood for Ž rst-degreemurder in the death ofVirgil Dykes.169 At trial, the court instructed the jury on Ž rst-degree murder as well as the lesser-included offenses of second-degree murder and involuntary manslaughter.170 The jury convicted Dr.Woodof involuntarymanslaughter. The court sentenced him to Ž vemonths imprisonment, a $25,000 Ž ne, a $100 assessment, and 36 months supervised release.171 The United States Court of Appeals for the Tenth Circuit in reviewing the case held that Dr. Wood was entitled to a judgment of acquittal on the charges of Ž rst- and second-degree murder.172 The appellate court found that, although the conduct of Dr. Wood may have departed from the standard of care, it amounted to a good faith attempt to save Mr. Dykes’ life in what appeared to be an emergency.173 “Well-intentioned but inappropriate medical care, standing alone, does not raise an inference that a killing was deliberate, willful, and premeditated.”174 Nor did the court Ž nd that Dr. Wood acted with sufŽ cient malice aforethought to sustain a conviction for second-degree mur- der because the administration of potassium to Mr. Dykes in some form was medically necessary.175 As the court noted, in an emergency some choices may be more dangerous than others, but at the same time may be potentially more effective.176 “A physician cannot be convicted of murder simply for adopting, in an emergency setting, a risky course of action intended to prolong life that, when carried out, fails to forestall or even hastens death.”177 In contrasting Dr. Wood’s case with those of Dr. Einaugler and Dr. Milos Klvana (discussed 165 Id. at 1227. 166 Id. 167 Id. 168 Id. 169 Id. 170 Id. 171 Id. 172 Id. at 1234. 173 Id. at 1232. 174 Id. 175 Id. 176 Id. 177 Id. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 484 FILKINS below), the court noted that Dr. Wood gave an inappropriate dosage of a med- ically indicated drug, while the actions of Dr. Einaugler and Dr. Klvana had “no conceivable medical beneŽ t.”178 The court did hold that a jury could Ž nd beyond a reasonable doubt that Dr. Wood was guilty of involuntary manslaughter because his injection of Mr. Dykes “was reckless enough to constitute a lack of due caution and circumspection.”179 However, the court remanded the case for retrial on the chargeof involuntarymanslaughter because of prejudicial statements made by one of the prosecution’s expert witnesses, Dr. Michael Baden.180 Dr. Baden, a forensic pathologist, testiŽ ed that the manner of Mr. Dykes’ death was homicide because Dr. Wood’s actions in administering the potassium chloride intravenously were reckless.181 The court concluded that, if the jury believed Dr. Baden’s testimony, it would have to Ž nd “that Dr. Wood possessed the requisite mens rea for involuntary manslaughter.”182 The court continued that, under Rule 704(b) of the Federal Rules of Evidence, Dr. Baden’s testimony amounted to a prohibited opinion because the determination of mens rea was a decision for the jury alone, as the trier of fact.183 In addition, the court found Dr. Baden’s testimony that potassium chloride is a drug used in the execution of condemned prisoners, and in the euthanasia of animals, to be prejudicial. In the opinion of the court, Dr. Baden’s testimony suggested that potassium chloride “was purely an instrument of death and that Dr. Wood was acting as an executioner.”184 G. Kansas v. Naramore On July 15, 1994, the OfŽ ce of the Attorney General of Kansas charged Dr. Lloyd Stanley Naramore with the attempted murder of Ruth Leach and the Ž rst-degree murder of Chris Willt.185 Each charge arose out of the treatment that Mrs. Leach and Mr. Willt received from Dr. Naramore in August of 1992.186 In January of 1996, a jury convicted Dr. Naramore of the attempted murder of Mrs. Leach and of the lesser-included offense of second-degree murder in the death of Mr. Willt.187 178 Id. at 1233. 179 Id. at 1234. 180 Id. at 1237. 181 Id. at 1235-36. 182 Id. at 1236. 183 Id. “No expert witness testifyingwith respect to themental state or conditionof a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense used. Such ultimate issues are matters for the trier of fact.” FED. R. EVID. 704(b). 184 Wood, 207 F.3d at 1237. 185 State v. Naramore, 965 P.2d 211, 212-13 (Kan. App. 1998). 186 Id. at 213. 187 Id. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 485 Mrs. Leach was a 78-year-old cancer patient admitted to St. Francis Hospital in St. Francis, Kansas when Dr. Naramore attended her on August 2, 1992.188 Mrs. Leachusedmorphinepatches to controlher pain, but that evening the patches were not helping her and she told Dr. Naramore that she “felt terrible.”189 Dr. Naramore discussed Mrs. Leach’s condition with her family explaining that additional pain medication could slow her respiration and cause death.190 The family instructed Dr. Naramore to give Mrs. Leach more pain medication.191 Dr. Naramore gave Mrs. Leach a 4 milligram injection of Versed, a painkiller, and, Ž ve minutes later, a 100micromilligram injection of Fentanyl, an anesthetic.192 At that point, Mrs. Leach’s respiration slowed signiŽ cantly and her son, Jim, an emergency medical technician, thought she was near death.193 Dr. Naramore asked everyone to hold hands while he recited Robert Frost’s poem, Into the Woods.194 Jim Leach believed that Dr. Naramore had intentionally given his mother an overdose.195 Dr. Naramore told the family that Narcan could be given to reverse the effects of the pain medication.196 Jim Leach instructed Dr. Naramore not to give his mother any more pain medication, but then requested that she be given a slow drip ofminute amounts of morphine intravenously.197 The following morning Jim Leach transferred his mother to another hospital, where she died two days later from cancer.198 Mrs. Leach’s nurse, Cindy Bizer, testiŽ ed that Dr. Naramore told Jim Leach that he would not give Mrs. Leach any more pain medication and that the effects of the pain medication could be reversed with Narcan.199 Nurse Bizer collected the syringes used by Dr. Naramore, but the only one that tested positive for Narcan contained too small an amount to permit conŽ rmation.200 Although Dr. Naramore denied attempting to euthanize Mrs. Leach, he aroused the suspicions of the Kansas Bureau of Investigation when 188 Id. 189 Id. Morphine is a drug derived from opium that is especially effective in alleviating pain, although it produces sedation and respiratory depression among other side effects. GOODMAN & GILMAN, supra note 77, at 527-29. 190 Id. 191 Id. 192 Id. at 215. Versed is the trade name for midazolam, one of the benzodiazepines, or drugs used as anti-anxiety agents or sedative-hypnotics. GOODMAN & GILMAN, supra note 77, at 373. Fentanyl is a synthetic opioid 80 times more potent than morphine as a painkiller. Id. at 543. 193 Naramore, 965 P.2d at 215. 194 Id. 195 Id. 196 Id. Narcan is the trade name for naloxone, an opioid antagonist, that is, an antidote to drugs such as morphine and Fentanyl. GOODMAN & GILMAN, supra note 77, at 549. 197 Naramore, 965 P.2d at 215. 198 Id. 199 Id. 200 Id. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 486 FILKINS he contradicted himself in the two interviews he gave to them.201 In the Ž rst interview, he stated that he had prepared Narcan, but never used it.202 In the second interview, he said that Narcan was never around.203 Chris Willt was an 81-year-old, obese diabetic patient with heart disease.204 He also had a pacemaker and took the blood thinner, Coumadin, to prevent blood clots from forming.205 When he was found slumped over in a booth in a convenience store, he had not been taking Coumadin for several days.206 When Mr. Willt arrived at St. Francis Hospital, his heartbeat was ir- regular, he had difŽ culty breathing, and he could not speak.207 Dr. Naramore gave Mr. Willt an intravenous injection of Norcuron, a paralyzing agent, so that he could be intubated.208 For the next three hours, Mr. Willt received arti- Ž cial ventilation, monitoring of pulse and blood pressure, and cardioversion to stimulate his pacemaker to control his heartbeat.209 Dr. Naramore informed a hospital administrator that Mr. Willt had suffered a massive stroke and was probably “brain dead.”210 Dr. Naramore discussed Mr. Willt’s condition with RudyWillt, his brother, who advised him that Mr. Willt would not want to be kept on life support.211 At about 11:20 p.m., Mr. Willt began to move his arms and legs slightly, and then began to wiggle his Ž ngers and toes.212 The movements became stronger, but Dr. Naramore interpreted them as seizures and called for a neurologist to render a second opinion regarding brain death.213 Meanwhile, Dr. Naramore gave Mr. Willt a second injection of Norcuron.214 The neu- rologist concurred with Dr. Naramore’s assessment of brain death and, at 12:24 a.m., mechanical ventilation was stopped.215 Mr. Willt was pronounced dead eight minutes later.216 The prosecution and the defense each presented several expert physi- cian witnesses. The prosecution witnesses concluded that the administra- tion of pain medication to Mrs. Leach was done to hasten her death, and 201 Id. 202 Id. 203 Id. 204 Id. at 216. 205 Id. Coumadin is the trade name for warfarin, an oral anti-coagulant that prevents bloodclotting by blocking Vitamin K. GOODMAN & GILMAN, supra note 77, at 1347-48. 206 Naramore, 965 P.2d at 216. 207 Id. 208 Id. Norcuron is the trade name for vecuronium, an intermediate acting neuromuscular blocking agent. GOODMAN & GILMAN, supra note 77, at 182. 209 Naramore, 965 P.2d at 216. 210 Id. 211 Id. at 217. 212 Id. 213 Id. 214 Id. 215 Id. 216 Id. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 487 that Mr. Willt’s diabetes and low blood sugar mimicked the symptoms of a stroke.217 Among the defense witnesses were physicians who had cared for Mrs. Leach andMr.Willt while they were alive and who testiŽ ed to the sever- ity of each patient’s medical condition.218 The defense experts concluded the pain medication given to Mrs. Leach was appropriate given her suffering and the tolerance she had developed for the drugs over the course of her illness.219 The defense experts also opined Mr. Willt’s autopsy Ž ndings indicated that he could have suffered a heart attack that contributed to his death.220 They concluded that Dr. Naramore’s actions were medically appropriate.221 The appellate court noted that the jury received no instructions regard- ing palliative care and resuscitation, although such instructions would have been necessary if those matters were in issue.222 The court held the jury “was not free to disbelieve that there was substantial competent medical opinion in support of the proposition that Dr. Naramore’s actions were not only noncrim- inal, but were medically appropriate.”223 The court reasoned that the only way Dr. Naramore’s actions could be found to be criminal was through the testi- mony of medical experts, but the prosecution’s expert testimony was rebutted by equally powerful testimony from the defense.224 In the absence of direct ev- idence of criminal intent, the court concluded that the “battle of the experts” created reasonable doubt, which the jury could not ignore.225 Accordingly, the court reversed Dr. Naramore’s convictions on grounds of insufŽ ciency of evidence and ordered entry of a verdict of acquittal.226 H.Wisconsin v. Chem-Bio Corporation On April 12, 1995, Milwaukee County District Attorney E. Michael McCann Ž led two counts of reckless homicide against Chem-Bio Corpora- tion for misdiagnosing the Pap smears of Karin Smith and Dolores Geary in 1989.227 Each woman died of cervical cancer in 1993.228 McCann also en- tered into deferred prosecution agreements with the supervising physician 217 Id. at 219-20. 218 Id. at 220-21. 219 Id. 220 Id. 221 Id. at 223. 222 Id. at 218. The court noted that neither party requested such instructions. Id. Chief Judge Brazil, in his dissenting opinion,argued forcefully that such instructions should have been given, and for that reason, he would have reversed and remanded for a new trial. Id. at 227-28 (Brazil, C.J., dissenting). “There is a real possibility that had the jury been instructed on a doctor’s responsibility to make decisions concerning his or her patients, the jury would have returned a different verdict.” Id. 223 Id. at 223. 224 Id. 225 Id. at 223-24. 226 Id. at 224. 227 David Doege, Company Charged with Reckless Homicide, MILW. J. SENTINEL, Apr. 13, 1995, at 1A. 228 Id. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 488 FILKINS and the cytotechnologist who evaluated the Pap smears.229 During the inquest, McCann asserted that working on a piece-rate basis encouraged the cytotech- nologist to read 30,000 to 40,000 Pap smears per year.230 The recommended annual maximum is 12,000 Pap smears.231 “This is not a case of negligence,” McCann stated, “the issue here is recklessness.”232 OnJuly 26,1995, theWisconsin CourtofAppeals ruled that corporations could be charged with criminal offenses.233 However, Chem-Bio pleaded nolo contendere to both counts in December of 1995 to avoid the costs of an anticipated one-month long trial.234 The Milwaukee County Circuit Court judge, David Hansher, stayed the conviction to permit Chem-Bio to make an interlocutory appeal to the Wisconsin Court of Appeals on the matter of his pretrial rulings.235 The court rejected Chem-Bio’s appeal on February 13, 1996.236 On February 22, 1996, Judge David Hansher ordered Chem-Bio to pay a $20,000 Ž ne ($10,000 per count), the maximum allowed by Wisconsin law.237 In pleading nolo contendere, Chem-Bio waived any right to appeal and therefore no appellate opinion exists analyzing the issues. Based on District Attorney McCann’s comments, Chem-Bio’s greed in performing thousands more Pap smears than could adequately be evaluated Ž gured signiŽ cantly in the decision to prosecute. Corporate greed would have been the theme of the state’s case at trial had Chem-Bio not pleaded. If Judge Hansher’s comments during the imposition of the Ž nes were any indication, then the theme of corporate greed would have played well. Judge Hansher found that Chem-Bio’s “Family Health Plan became Family Death Plan.”238 He declared Chem-Bio’s penalty “absolutely inadequate” and called upon the Wisconsin Legislature to set higher sanctions in such cases.239 I. California v. Klvana On December 18, 1989, a California jury convicted Milos Klvana, a li- censed physician, of nine countsof second-degreemurder.240 Dr. Klvana’s con- victions arose from nine deliveries he performed between 1982 and 1986, in 229 Id. 230 Id. 231 Id. 232 Id. 233 Id. 234 David Doege, Convicted Pap Smear Lab Files Another Appeal, MILW. J. SENTINEL, Dec. 27, 1995, at 3A. 235 Id. 236 David Doege, Laboratory to Pay $20,000 Fine, MILW. J. SENTINEL, Feb. 23, 1996, at 1A. 237 Id. 238 Id. 239 Chem-Bio Receives Maximum Penalty in Pap-Smear Case, WALL ST. J., Feb. 23, 1996, at B10. 240 Klvana v. State of California, 911 F. Supp. 1288, 1291 (C.D. Cal. 1995). D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 489 which the infants were either stillborn or died soon after birth.241 Dr. Klvana’s background was relevant to the issues in the case. Dr. Klvana graduated from medical school in Eastern Europe in 1967.242 He began a four-year residency in obstetrics and gynecology in New York in 1972, but was asked to leave before completing the program.243 Low scores on his residency examinations and deŽ cient judgment regarding patient care were the reasons cited for his forced departure.244 The State of California granted Dr. Klvana a medical license in 1975 and the following January he began a two-year residency in anesthesiology at Loma Linda University Hospital.245 By the end of 1976, Dr. Klvana was asked to resign from the anesthesiology residency program because of “indifference to patient safety,” which led to the death of one patient.246 He applied for and was granted privileges at Granada Hills Hospital on the basis, in part, of misrepresentations on his application.247 Although his privileges were renewed twice, by 1983, Dr. Klvana’s manage- ment of patients caused the hospital to require that he obtain a second opinion on all elective cases and to have all cases proctored by another physician. Dr. Klvana resigned from Granada Hills Hospital before further action could be taken.248 From 1977 to 1982, Dr. Klvana applied for privileges at different hos- pitals, but lied about his qualiŽ cations on the applications.249 In March of 1980, the California Board of Medical Quality Assurance put Dr. Klvana’s medical license on probation for Ž ve years after he was convicted of 26 mis- demeanor counts of prescribing controlled substances without performing an examination of the patient.250 In December of 1980, Dr. Klvana purchased the “Diet-Rite Medical Clinic,” at which he delivered several of the babies for whose deaths he would later be charged and convicted, although deliveries were not permitted at the clinic under the terms of its license.251 At trial, there was no dispute that Dr. Klvana’s conduct fell substantially below the standard of care.252 Medical experts testiŽ ed that Dr. Klvana failed to monitor the conditions of the mothers during their pregnancies, evenwhen the pregnancies were high-risk or when he administered the labor-inducing drug 241 Id. at 1292. 242 People v. Klvana, 15 Cal. Rptr. 2d 512, 515 (Cal. App. 1992). 243 Id. 244 Id. 245 Id. 246 Id. 247 Id. 248 Id. 249 Id. at 516. 250 Id. at 516, n.7. 251 Id. at 516. 252 Klvana, 911 F. Supp. at 1292. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 490 FILKINS Pitocin.253 He also ignored signs of infant stress, such as meconium staining254 or difŽ culty breathing, frequently was absent during deliveries, and failed to perform high-risk deliveries in a hospital.255 Expert testimony also established that, from his own training, the materials and charts in his ofŽ ce, and common medical knowledge, Dr. Klvana knew his actions or omissions would create a serious risk to life.256 Most disturbing of all, Dr. Klvana attempted to conceal his negligent conduct bymaking inaccurate entries in the medical records of his patients, by telling several mothers not to inform the authorities or anyoneelse of the death of their babies and by disposing of the remains of several dead infants.257 The prosecution argued that Dr. Klvana’s efforts to conceal his negligent conduct coupled with his history of forced resignations from training programs and hospitals indicated that he had subjective knowledge that his actions were endangering the lives of his patients.258 In contrast to several of the preceding cases, Dr. Klvanawas convicted of second-degree murder rather than involuntary manslaughter or some offense similar to reckless endangerment. A conviction for second-degree murder in California requires that the defendant subjectively realize his conduct creates a risk to human life, but that he disregards the risk.259 In upholdingDr.Klvana’s convictions, the California Court of Appeals held: “After reviewing the evi- dence presented at trial, we conclude sufŽ cient evidence was presented from which the jury could reasonably infer that Klvana was subjectively aware his methods of home and ofŽ ce delivery were life-endangering, but consciously and deliberately disregarded these risks.”260 The United States District Court for the Central District of California denied Dr. Klvana’s petition for habeas corpus.261 II. ANALYSIS The problem confronting the trier of fact in a criminal prosecution for medical negligence is how to recognize criminal medical negligence when it has occurred. As Oliver Wendell Holmes noted: “If a physician is not less liable for reckless conduct than other people, it is clear : : : that the recklessness 253 Id. at 1292-93. 254 Meconium is the infant’s Ž rst stool and consists of gastrointestinal secretions produced while the infant is still in the uterus. If the amniotic  uid is meconium stained it indicates that the infant has eliminated the meconium in utero and may have aspirated it. This can cause respiratory distress and even death. See STOCKER & DEHNER, supra note 132, at 545. 255 Klvana, 911 F. Supp. at 1293. 256 Id. 257 Id. 258 Id. 259 Klvana, 15 Cal. Rptr. 2d at 527. 260 Id. at 526. 261 Klvana, 911 F. Supp. at 1299. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 491 of the criminal no less than that of the civil law must be tested by what we call an external standard.”262 Thus, a defendant physician’s failure to foresee consequencescontrary to those which the physician intended is “immaterial, if under the circumstances known to [the physician], the court or jury, as the case might be, thought them obvious.”263 Justice Holmes’ observation suggests that the trier of fact in judging guilt or innocence will apply an objective standard and look to what it believes a reasonable physician would have done under the same circumstances. This is true, but only partly, true because establishing what the standard of care is in a given situation can be difŽ cult when complex medical issues are involved. The accused’s state of mind, mens rea—rather than causation or the nature of any deviation from the standard of care— often substitutes to become the touchstone against which the trier of fact will evaluate any acts or omissions in deciding whether the defendant physician’s conduct rises to the level of a criminal offense.264 The trier of fact also will inevitably apply an internal or subjective standard by attempting to look into the mind of the defendant physician, as evidenced by conduct, to discern the necessary criminal intent. Although the evaluation of complex issues of causation and standard of care may be more relevant to the defendant’s guilt or innocence, causation and standard of care are more difŽ cult for the lay trier of fact to comprehend, particularly when disputed by opposing experts. It is often simpler for the trier of fact in a criminal prosecution for medical negligence to conclude that the negligence in question actually amounted to a criminal act when the trier of fact has Ž rst decided that the defendant physician possessed a guilty state of mind. Rather than wrestle with causation and standard of care, the trier of fact simply may adopt the expedient, noted by oneBritish commentator, of asking, in effect: “Did the accused Give a Damn?”265 If the defendant physician’s 262 Franklin Pierce, 1884WL 6544, at *9. 263 Id. at *10. 264 Sorting out the applicable mens rea in the context of a criminal prosecution for medical negligence can be confusing because of the overlap between terms such as recklessness and negligence. Criminal negligence requires a more serious departure from the reasonable standard of care than does civil negligence. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 113 (2d ed. 1995). “The concepts of ‘depraved heart’ and ‘reckless andwanton, and a gross deviation from a reasonable standard of care’ are functionally equivalent.”Wood, 207F.3d at 1228.However, the distinctionbetween criminal negligence and recklessness lies not in the degree of the defendant’s deviation from the standard of care—it is a gross deviation in either case—but in the defendant’s state of mind. DRESSLER, supra, at 116. Criminal negligence is the disregard of a substantial and unjustiŽ able risk of which the defendant should have been aware, but was not. Id. (emphasis added). Recklessness is the disregard of a substantial and unjustiŽ able risk of which the defendant was aware. Id. (emphasis added). Recklessness requires the defendant to be subjectively at fault. The defendant must have known that he or she was taking a substantial and unjustiŽ able risk, but ignored the risk and continued the dangerous conduct. Id. To the contrary, in criminal negligence, the defendant’s risk-taking is inadvertent. Id. 265 Paul Monks, Frankly My Dear, I Don’t Give a Damn, 36 MED., SCI. & LAW 185 (Oct. 1999). The criminal prosecution of physicians for medical negligence is not unique to the United States. See, e.g., Regina v. Adomako, 3 All E.R. 79 (H.L. 1994) (a notable case from Great Britain). D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 492 FILKINS conduct suggests to the trier of fact that the physician really did not “Give a Damn,” but was irresponsible or indifferent, then the defendant physician may be found guilty even if the prosecution fails to establish causation or the standard of care. Additionally, the acts or omissions that led the trier of fact to infer that the defendant did not “Give a Damn”may be distinct in time or place from the acts or omissions that directly caused the injury to the patient. The trier of fact will sometimes take a broad view of any other acts or omissions relevant to the defendant physician’s medical practice to establish a pattern of conduct from which a culpable state of mind may be inferred. SpeciŽ c examples of patterns of conduct from the cases reviewed il- lustrate the point that it is the defendant physician’s state of mind—mens rea—rather than causation or standard of care, upon which the decision to prosecute and, Ž nally, the outcome of the case may turn. In United States v. Billig, the prosecution “[i]n an attempt to establish the necessary element of culpable negligence in the involuntary manslaughter speciŽ cations” intro- duced “evidence . . . which amounted to a smear campaign to portray Dr. Billig as a bungling, one-eyed surgeon who should have known better than even to enter an operating room because of his past mistakes and poor eyesight.”266 Dr.Billig “was forced not only to defendagainst the charges, but also to explain and account for virtually all of his mistakes, professional setbacks, or surgical misadventures during the previous 20 years.”267 The prosecution attempted to prove that Dr. Billig was aware of his limitations as a surgeon and there- fore should not have operated.268 “This ‘bad surgeon’ theory permeated the trial proceedings and undoubtedly in uenced the courtmembers’ decisions— especially in light of the absence of a properly tailored limiting instruction by the military judge.”269 Dr. Billig’s convictions were overturned,270 but his case illustrates how evidence of past conduct can be introduced to establish crim- inal negligence and how powerfully that evidence can in uence the trier of fact, particularly when complex medical procedures are at issue. The review- ing court observed that the standard of care governing Dr. Billig’s surgeries as presented at his court-martial remained “elusive” and “nebulous.”271 In contrast to the wide-ranging exploration of Dr. Billig’s past actions as a physician, the court in Pennsylvania v. Youngkin focused on Dr. Youngkin’s history of prescribing Tuinal and other medications to Barbara Fedder.272 The appellate court held “there was a direct and logical connection between the appellant’s [Dr. Youngkin] prior actions with respect to Ms. Fedder [mul- 266 Billig, 26 M.J. at 758. 267 Id. 268 Id. 269 Id. 270 Id. at 761. 271 Id. 272 Youngkin, 427 A.2d at 1367. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 493 tiple Tuinal prescriptions] and the crime charged, for the prior actions re- vealed a prescription practice that was decidedly reckless and dangerous, and led ultimately to Ms. Fedder’s demise.”273 Dr. Youngkin “consciously disre- garded a substantial and unjustiŽ able risk, which . . . involved a gross deviation from the standard of conduct” because Ms. Fedder’s repeated requests for Tu- inal prescriptions and her condition as reported by the pharmacist should have alerted him to her abuse of the drug.274 Another difference between Billig and Youngkin is that, in Youngkin, the standard of care was never an issue, but causation was. The court held that Dr. Youngkin’s actions were a direct and substantial factor in causing Ms. Fedder’s death, even though his actions were not the immediate cause of her death.275 Colorado v. Verbrugge is an outlier because of the procedural issues that led to the reversal of Dr. Verbrugge’s conviction. However, the case is instructive because it provides another example illustrating, along with Billig and Youngkin, the manner in which past conduct can be used as evidence of a culpable state of mind. The trial judge permitted evidence that Dr. Verbrugge had fallen asleep during four previous surgeries because the evidence “bears on his [Dr. Verbrugge’s] awareness of the risk and whether there was any conscious disregard of it.”276 As with Youngkin, causation also was an issue before the trier of fact. An expert witness for the prosecution testiŽ ed that the patient died from complications of a clogged airway that Dr. Verbrugge could have treated had he not fallen asleep.277 Defense experts countered that the patient died from malignant hyperthermia, an unpredictable complication of anesthesia, which would have been difŽ cult to treat even if Dr. Verbrugge had not fallen asleep.278 Billig,Youngkin, andVerbrugge are examplesof failures by thedefendant physicians to heed warnings based on prior experience regarding the care of their patients. Each case involved multiple episodes of negligent conduct, although the permutations varied. The episodes involved different problems and different patients (Dr. Billig), the same problem repeated with the same patient (Dr. Youngkin), and the same problem repeated with different patients (Dr. Verbrugge). In each of the cases, the trier of fact found a culpable state of mind existed and convicted the defendant physician because he had ignored repetitions of the same problem with the same or different patients.279 The trier of fact was able to avoid the complexities of causation or standard of care by concluding that the defendant physician had sufŽ cient knowledge based 273 Id. 274 Id. at 1361. 275 Id. at 1359-60. 276 Lindsay, supra note 92, at 20A. 277 Pankrantz, supra note 88, at B3. 278 Id. 279 See, e.g., Youngkin, 427 A.2d at 1361; Pankrantz, supra note 88, at B3. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 494 FILKINS on his previous experience of the problem to have known the problem would cause danger, but he ignored the danger. TheWarden and Einaugler cases illustrate that a culpable state of mind may be found even when a problem occurs for the Ž rst time with a new patient. Here, the trier of fact can avoid the complexities of causation and standard of care by concluding the defendant physician possessed a guilty state of mind because he had sufŽ cient facts to know that the patient was in danger, but did nothing to mitigate the danger. In the case of Dr. Warden, no negligence was alleged in the actual delivery of the baby. The negligence alleged was Dr. Warden’s failure to hospitalize Ms. Young once she began labor prematurely or, failing that, to hospitalize the baby once delivered.280 Dr.Warden’s own testimony acknowledged that he knew the baby was having difŽ culty breathing, but he took no afŽ rmative steps to hospitalize the baby or to follow-up on the baby’s condition early the next morning.281 In contrast, Dr. Einauglerdid commit a negligent act in orderinga feeding solution to be introduced through Ms. Lamour’s dialysis catheter.282 As with Dr.Warden,Dr.Einaugler’s failure to hospitalize his patient in a timely fashion proved to be the culpable conduct.283 Likewise, Dr. Einaugler admitted in his testimony that he was aware of the risk to Ms. Lamour.284 In each case, the trier of fact concluded the defendant physician possessed a culpable state of mind and convicted him because he failed to act in a timely fashion to limit the danger to his patient. The permutations varied in whether the precipitating act was negligent. However, the failure to act, not the precipitating event, was the decisive issue. Finally, any corrupt motive in the defendant physician’s conduct will enable the trier of fact more readily to Ž nd a culpable mental state. The corrupt motive may be so obvious as to provide the theme of the case as was corporate greed in Wisconsin v. Chem-Bio or the attempts to conceal negligent conduct in California v. Klvana. The corrupt motive may be the product of the prosecution’s mischaracterization of the evidence. In United States v. Wood, the government argued that the rapid administration of potas- sium, followed by inadequate attempts at resuscitation, amounted tomurder.285 280 Warden, 813 P.2d at 1149. 281 Id. at 1152. 282 Einaugler, 918 F. Supp. at 625. 283 Id. at 631. 284 Id. 285 Wood, 207 F.3d at 1231.As noted earlier, potassium in some form and dosewas medically indicated. Id. The pauses in Dr. Wood’s resuscitative efforts that the government found so “nefarious”were necessary to permit the electrocardiogram to give an accurate reading. Id. Continuingwith the theme of a corrupt motive, a Palm Beach County, Florida grand jury recently indictedDr. Denis Deonarine with one count of Ž rst degree murder in the prescription drug overdose death of a patient, Michael Labzda, and 78 counts of defrauding Medicare to pay for OxyContin. Bob Markey, Doctor Charged with Murder: No Bail in OxyContin Case, JUPITER COURIER, Aug. 1, 2001, at A1. OxyContin is the trade name for D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 495 In Kansas v. Naramore, the state argued that Dr. Naramore had attempted to perform what amounted to a “medical euthanasia” on Mrs. Leach and had succeeded with Mr. Willt.286 The corrupt motive may be subtle. For example, the prosecution suggested that Dr. Warden might have been reluctant to hos- pitalize the baby because he was “embarrassed” at the prospect of obtaining another physician to admit the infant.287 Three basic patterns emerge from these cases: disregarding past ex- perience in failing to avoid a dangerous situation; disregarding the facts of the patient’s condition to limit harm in a timely fashion; and corrupt motive. These three patterns are typical factual predicates that may provokea criminal prosecution for medical negligence and allow a trier of fact to convict by in- ferring that a defendant physician did not “Give a Damn.” Evidence of any of these three patterns of conduct can be especially powerful because it may tempt the trier of fact to avoid the more difŽ cult and more aggressively dis- puted issues of causation and standard of care by allowing the trier of fact to equate a culpable state of mind with criminal medical negligence. Settings in which the available medical resources are inadequate to meet reasonably foreseeable emergencies impose a further handicap on the physi- cian who appears to the trier of fact not to “Give a Damn.” As more physi- cians perform surgeries or other invasive procedures away from hospitals— ostensibly as ameans of reducing health care costs and providingmedical care to underserved areas—criminal prosecutions for medical negligence may in- crease. The physician whose ofŽ ce or clinic lacks the equipment to handle cardiopulmonary arrest, acute bleeding, or other complications that can pre- cipitously arise during an invasive procedure risks becoming a defendant in a criminal prosecution if something goes wrong. The inadequacy of the re- sources makes the occurrence of a negligent act more likely, while exposing the physician to blame for having failed to anticipate the problem in the Ž rst place. Outpatient abortions288 or the delivery of infants at home or in a oxycodone, a controlled release synthetic opiate, used to treat pain in cancer patients. Labzda died after crushing and snorting OxyContin pills that Dr. Deonarine had prescribed for him. Prosecutors brought the Ž rst degree murder charge alleging Labzda died during the commission of a felony, drug trafŽ cking. Prosecutors also noted that four other patients of Dr. Deonarine had died of OxyContin overdoses and that Dr. Deonarine sometimes failed to perform adequate examinations before prescribing the drug. Id. 286 Naramore, 965 P.2d at 215, 217. 287 Warden, 813 P.2d at 1149. 288 A San Francisco physician, Bruce Saul Steir, was charged with second degree murder after a botched second trimester abortion led to the death of his patient, Sharon Hamptlon. Raymond Smith, Doctors on Trial, PRESS-ENTERPRISE (Riverside, Cal.), Feb. 1, 1998, at A1. Steir performed the abortion on Ms. Hamptlon, who was Ž ve months pregnant, at an abortion clinic in Moreno Valley in Riverside County,California. After Dr. Steir completed the procedure, he left the clinic to return to San Francisco. Ms. Hamptlon’s mother took her home that afternoon, but by the time they arrived homeMs. Hamptlon had become unconscious. She died before her mother could reach a hospital. An autopsy disclosed that Ms. Hamptlon bled to death from a perforation of her uterus that occurred during the abortion. Prosecutors claimed, based on the testimony of a nurse in attendance at the abortion, that Dr. Steir D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 496 FILKINS clinic289 may place the patient at a signiŽ cant risk of harm if something goes wrong, although the risk may not be apparent until the problem arises. Out- patient cosmetic surgery is another example.290 knew he had perforated the uterus, but sent Ms. Hamptlon home rather than to a hospital. Jaxon Van Derbeken, Guilty Plea Entered in Fatal Abortion Trial, S.F. CHRON., Apr. 7, 2000, at A7. Dr. Steir was on probation with the California Medical Board because of a series of problems that had arisen in other abortions that he had performed. Although the terms of Dr. Steir’s probation required him to have a mentor physician in attendance while performing abortions, he did not have one present during the abortion he performed on Ms. Hamptlon. Smith, supra, at A1. On April 5, 2000, Dr. Steir pled guilty to involuntary manslaughter and was sentenced to one year in jail. Jeanette Steele, Jailed Doctor to Be Freed Soon: Regrets Death, Not Years of Doing Abortions, PRESS-ENTERPRISE (Riverside, Cal.), Sept. 15, 2000, at A1. Dr. Steir was released in September of 2000 after the court suspended six months of his sentence in exchange for community service and credited him with a few additional weeks for good behavior. Dr. Steir and his attorneys contended that the California Medical Board and antiabortion advocates encouraged his prosecution for political reasons.All ThingsConsidered:Murder orMalpractice (NPR radio broadcast, Jan. 6, 1999). A studyundertakenby theAmerican Civil Liberties Union concluded that Dr. Steir had been treated more harshly than physicians in other specialties who had performed negligent acts and that theCaliforniaMedical Board had spurred antiabortionproponents to seek Dr. Steir’s prosecution. Raymond Smith, Abortion Doctor Victim of Bias, PRESS-ENTERPRISE (Riverside, Cal.), May 25, 2000, at B1. In New York, a jury convictedDr. David Benjamin (a.k.a. Elyas Bonrouhi) of second degree murder following the death of his patient, Guadalupe Negron. Negron v. New York,638N.Y.S.2d 977,979 (N.Y. App.Div. 1996).Ms. Negron,whowas 20weeks pregnant, bled to death from a perforated uterus following an abortion performed by Dr. Benjamin. Id. Dr. Benjamin caused a four by one inch laceration in Ms. Negron’s uterus because he had failed to dilate her cervix sufŽ ciently to allow passage of the fetus. New York v. Benjamin, 705 N.Y.S.2d 386, 386 (N.Y. App. Div. 2000). Ms. Negron bled extensively in the recovery room, but Dr. Benjamin failed to monitor her. Id. The court sentencedDr. Benjamin to 25 years to life. Negron, 638N.Y.S.2d at 979.Dr. Benjamin had a long history of medical misconduct and, at the time of Ms. Negron’s abortion, his license to practice medicine had been revoked, although the revocation had been stayed pending a hearing. Id. at 978-79. See also Schram v. Herkimer Mem. Hosp., 496 N.Y.S.2d 577 (N.Y. App. Div. 1985) (an earlier, civil negligence case involvingDr. Benjamin, then known as Elyas Bonrouhi). Subsequently,Dr. Benjamin’s license was revoked. Negron, 638 N.Y.S.2d at 979. In a very brief opinion, the appellate court upheld Dr. Benjamin’s conviction and sentence concluding that Dr. Benjamin “consciously disregarded a grave and very substantial risk of death under circumstances evincing a depraved indifference to human life.” Benjamin, 705 N.Y.S.2d at 386-87. 289 See supra notes 102-45, 240-61 and accompanying text. 290 Dr. Patrick Chavis, a Los Angeles, California area obstetrician/gynecologist, had his license revoked as the result of his negligent care of three liposuction patients, one of whom died. Julie Marquis, Doctor’s License Is Suspended, L.A. TIMES, June 20, 1997, at B1. Tammaria Cotton bled to death in Dr. Chavis’ ofŽ ce following liposuction while Dr. Chavis returned to his home to check on another liposuctionpatient who was recovering there alone. Id. The Chavis case, alongwith the death of another liposuction patient who died after 11 hours of liposuction surgery performed by Dr. W. Earle Matory, prompted the California Medical Board to investigate the practice of cosmetic surgery in California. Julie Marquis, Medical Board Forms Panel to Probe Cosmetic Surgery, L.A. TIMES, July 31, 1997, at A12. The entry of many nonspecialists, such as Chavis, into cosmetic surgery caused serious concern. Id. Dr. Chavis, for example, “learned” how to perform liposuction in a four-day course. Julie Marquis, Doctor Becomes Symbol in AfŽ rmative Action Debate, L.A. TIMES, Sept. 2, 1997, at A1. Although no criminal prosecution followed the actions of Dr. Chavis or Dr. Matory, Dr. Anthony Pignataro was not so fortunate. In 1998, Dr. Pignataro, a Buffalo, New York, plastic surgeon, pled guilty to criminally negligent homicide in causing the death of his patient, Sarah Smith. Dave Condren, Ex-Doctor Gets 6 Months forDeath, BUFF. NEWS, Aug. 7, 1998, at C1.Mrs. Smith, 26, suffered a fatal heart attack while undergoingbreast enlargement surgery in Dr. Pignataro’s ofŽ ce. Id. The court sentenced Dr. Pignataro to six months in jail, a $5,000 Ž ne, 250 hours of community service, and Ž ve years probation. Id. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 497 CONCLUSION The physician who wishes to avoid becoming a defendant in a criminal prosecution for medical negligence should Ž rst do no harm. That may not be enough, just as it may not be enough to prevent a malpractice suit, but it lowers the odds. More particularly, physicians should be aware that certain patterns or practices are more likely to trigger criminal prosecutions than others. Obviously, a physician should scrupulously complywith any restrictions that have been imposed on his or her license to practice medicine. The failure to do so Ž gured signiŽ cantly in the prosecutions in the Klvana, Benjamin, and Steir cases.291 As Kennis Clark, the Deputy District Attorney who prosecuted Dr. Steir commented, Dr. Steir’s “troubled record as a physician could have been used to make the case for second-degree murder, since his [Steir’s] history suggested that he knew of the dangers of his conduct.”292 Even if a physician has no license restrictions, or complies with any restrictions that have been imposed, the physician must be careful not to exceed his or her expertise. A physician qualiŽ ed to practice in one area of medicine may not be qualiŽ ed to perform procedures in other areas of medicine. A physician qualiŽ ed to practice in a specialty may not be qualiŽ ed to treat every patient whose presenting complaint falls within that specialty or to perform every procedure that other physicians certiŽ ed in that specialty might perform. Any tendency to practice outside of the area of specialty or to treat problemsbeyond one’s expertise should be discouraged, particularly if the work is undertaken more for Ž nancial gain than patient welfare.293 The factor that appears to Ž gure most prominently in the decision to bring a criminal prosecution for medical negligence is the failure to follow-up appropriately on one’s patients. This factor contributed to the decision to pros- ecute in the Einaugler, Youngkin,Warden, Klvana, Steir, and Benjamin cases and nearly led to a prosecution in the Chavis case.294 A physician accused of criminal medical negligencemay not always be judged by a purely external or objective standard of what the reasonable physician in similar circumstances would have done. Inevitably, the trier of fact will seek to understand what the physician was thinking or intending when the act that harmed the patient occurred. To this purpose, the defendant physician’s actions or inaction will Ž gure signiŽ cantly in the trier of fact’s deliberations. Although the defendant physician may not have acted with “evil intent,” the physician’s actions may nevertheless result in a prosecution and conviction if those actions appear to be those of a physician who was careless, irresponsible, or indifferent to the 291 See supra notes 240-61 and accompanying text, and note 288. 292 Van Derbeken, supra note 288, at A7. 293 See supra notes 102-45, 240-61 and accompanying text, and note 290. 294 See supra notes 102-59, 240-61 and accompanying text, and notes 288, 290. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 498 FILKINS patient’s well-being, regardless of any issues of causation or standard of care. The physician who fails to follow-up conscientiously on his or her patients risks being viewed as a careless, irresponsible, or indifferent physician who should be punished. The criminal prosecution of a physician for medical negligence is a unique and complicated cause of action. Such an action should require that causation and a breach of the standard of care Ž rst be established with as much care as in any civil proceeding for medical malpractice. If the physi- cian’s actions did not cause the harm to the patient or if the actions did not breach the standard of care, then the physician cannot havecommitted medical negligence, let alone criminal medical negligence. Unfortunately, both prosecutors and triers of fact often misunderstand or discount these elements because causation and standard of care are complex issues and often disputed by con icting expert opinion.As several of the cases examined have shown, causation and standard of care are not always clearly established. When causation or standard of care are not clearly established, it becomes much more tempting and easier to look at the defendant physician’s conduct, to ask did the physician “Give a Damn,” and to assume—if the conduct suggests that the physician did not—that the physician committed a criminal act. Arguably however, if there is competent, con icting expert testimony regardingcausation or standard of care, then reasonable doubtexists and the prosecution has failed to meet its burden.295 None of this is meant to suggest that the criminal prosecution of physi- cians for medical negligence is never warranted. It is meant to suggest that much greater attention needs to be given by all concerned—prosecutors, de- fense attorneys, judges, and triers of fact—to the fundamental issues of causa- tion and standard of care. These are the components of the external standard to which Justice Holmes referred.296 To better establish the external stan- dard, screening panels composed of physicians or other health care providers could be empanelled to determine causation and standard of care much as they would in civil medical negligence cases.297 Additionally, juries should be instructed on the recognized standard of care applicable to the physician’s responsibilities and medical treatment at issue in the case. If the defendant physician’s actions are shown to be the cause of the patient’s harm, and if the physician’s actions in causing that harm breached the standard of care then the trier of fact may consider whether those actions were criminal. At that point, the defendant physician’s mens rea or state of mind becomes an element of the criminal offense charged and may properly be considered. A defendant physician’s state of mind should be weighed only 295 Naramore, 965 P.2d at 223. 296 Franklin Pierce, 1884WL 6544 at ¤9. 297 Id. at 225 (Brazil, C.J., dissenting). This would require a legislative act in most jurisdictions. Id. D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14 PROSECUTION OF PHYSICIANS FOR MEDICAL NEGLIGENCE 499 after the issues of causation and standard of care have been resolved and all the facts considered. To do otherwise exposes physicians “to potential criminal liability for their actions related purely to their exercise of professional clinical judgment.”298 State of mind should never become a shortcut to the determina- tion of guilt nor excuse the establishment of causation and breach of standard of care. 298 Id. at 224 (Brazil, C.J., dissenting). D ow nl oa de d by [ N or th ea st er n U ni ve rs ity ] at 2 2: 48 1 2 N ov em be r 20 14