Friday, January 24, 2014

CRIMINAL LAW - And the Physician


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Students new to the law are frequently confused by the difference between a civil case and a criminal case.

A civil case is typically used for dispute resolution.

Dispute resolution in a civil case means having a court resolve issues like a property boundary dispute between neighbors, a contract dispute, a dispute regarding liability for an automobile accident, a dispute over alleged medical malpractice and the like.  Property and money are usually at issue in a civil case, not crime and punishment.

A criminal case relates to crime and punishment. 

Punishment for criminal acts can range from as little as non-custodial probation or monetary fines going on up to jail, prison, and execution, depending on the severity of the crime and the criminal record of the defendant.

An administrative hearing

If a licensed professional like a physician is convicted of a crime, the conviction could lead to disciplinary action by his licensing board.  Before discipline is imposed, a board will likely hold an administrative hearing to determine the facts of the case.  An administrative hearing is not a criminal proceeding to determine guilt or innocence but, instead, a proceeding to determine the individual’s fitness to hold his license and practice his profession.  The administrative hearing conducted by the licensing board could lead to a reprimand, a financial penalty, suspension of license or revocation of license.  Discipline by a professional’s licensing board is particularly likely if the license holder is convicted of a crime of ‘moral turpitude’ such as Medicare fraud, embezzlement, or insurance fraud.

A criminal case is usually begun by the government’s lawyer, the District Attorney for the state.  He can charge a person directly or by means of a grand jury.
 If the criminal defendant has not already been arrested, he may be arrested at that point and required to appear before a judge to enter a plea to the charges brought against him.   Typically a defendant will enter a plea of ‘not guilty’ and ask for bail, a sum of money posted to guarantee his return to court if he is allowed to go free pending trial.

Physicians face criminal charges most often for:

1.  Using or over-prescribing controlled substances;
2.  Reckless conduct leading to the harm of a patient;
3.  Billing and coding fraud.
4.  Medicare fraud

Since the passage of Obamacare, some of these risks have increased significantly, but before addressing them in greater detail, more should be learned about the criminal justice system.
Most criminal cases never go to trial.  The prosecuting attorney will offer the defendant a deal in exchange for his changing his plea to ‘guilty’ and accepting an agreed upon punishment.  The ‘deal’ part of the arrangement usually involves a reduction of some of the criminal charges, or a reduction in the severity of the charges, or a reduction in the fine paid or time served in prison.  The state gains by avoiding the expense of a trial while still getting a conviction.  This is the notorious plea bargain system.
Plea bargains work well with guilty defendants and, in fact, most people charged with crimes are guilty of having committed them.  They know they are guilty and they know they will receive some punishment.  But plea bargains allow some room for the guilty to mitigate their punishment while allowing the state to save an enormous amount of time and expense by avoiding costly trials.

For people who truly believe they are innocent, the system is tragic.

Expecting to get a plea bargain, prosecutors may toss in as many criminal charges as they can manage, seeking the most severe penalties, so that they will have something to bargain away when it comes time to negotiate a guilty plea.  It is like asking much more than you are willing to accept for a house you are selling, knowing that if you are bargained down you will still end up with close to what you really expected for the property.

Innocent people confronted with a mountain of criminal accusations which they know are untrue react with shock and disgust.  Believing they are innocent, they are far more likely than the guilty to demand their day in court to seek justice and prove they have done nothing wrong.  If they take that chance and their defense falters for any reason, they risk being found guilty of the entire menu of crimes put against them and, therefore, risk being punished far more harshly than someone who is actually guilty of the crime and takes the plea bargain.

If it goes to trial, the state has the burden of proof and in a criminal case it is the highest and most exacting standard: proof beyond a reasonable doubt, or as it is sometimes described, ‘consistent with guilt and inconsistent with any reasonable hypothesis of innocence.’


Misdemeanors are lesser crimes.  Public intoxication, shoplifting small items, etc., are normally charged as misdemeanors.  Unless the defendant has a criminal record, a misdemeanor is not likely to result in jail time. Although the law often allows for jail time when appropriate, it also limits the maximum sentence for a misdemeanor to one year in jail.

Felonies are serious crimes.  Medicare and insurance fraud are typically charged as felonies, as are armed robbery, arson, murder, etc.  The penalty for a felony can be a fine, a lengthy prison term or, in the case of some murders, the death penalty.

A criminal act may be malum in se or malum prohibitum.

A criminal act that is malum in se is evil in itself.  Murder, mayhem, larceny, are examples of crimes that are malum in se.

Another Latin expression, mens rea, a ‘guilty mind’, is sometimes said to be a necessary component of an illegal act for a person to be found guilty of a crime.  One can see the idea behind this when one recognizes that someone committing rape or murder knows very well that what he is doing is wrong and makes the choice to do it all the same.  He has mens rea, or a 'guilty mind'.  On the other hand, someone who commits what would otherwise be a crime when he is mentally deranged to the point that he cannot know that what he is doing is wrong or is incapable of understanding the nature of his act clearly does not have mens rea and should not be held responsible for his acts in a criminal case.  That is the core of at least one insanity defense, the M’Naughten Rule, which basically holds that one is insane and cannot be criminally responsible for his acts if he is incapable of recognizing what he is doing is wrong or is incapable of understanding what he is doing.  A successful insanity defense results in a verdict of ‘not guilty’.  Insanity is a legal term, not a psychiatric diagnosis, but courts can rely on the testimony of mental health experts to reach a verdict of insanity.

A person found ‘not guilty’ by reason of insanity may be confined for the protection of the public, but should be released once it is shown that he has been cured of his mental infirmity and is no longer a danger to others.

By contrast, malum prohibitum is something that is not ‘evil in itself’ but is unlawful simply because law has made it a crime.  Exceeding the speed limit on a freeway when there is no risk of an accident is an unlawful act, malum prohibitum, but it is hardly an inherently evil act.
The practical effect in modern law is that malum prohibitum laws pose a greater risk to physicians than malum in se laws.

Most physicians are very unlikely to have the requisite mens rea or evil mind to commit notorious crimes such as rape and murder.  A conscience and a desire to do right make historic crimes of the malum in se nature easy to avoid.

On the other hand, there is no mental tripwire to warn a person that he is about to commit a serious crime of the malum prohibitum nature.  These types of crimes are embedded in an almost incomprehensible maze of government regulations that grows more complex and more confusing every day.  Even the government bureaucrats charged with administering regulations are sometimes confused by them and one takes their advice at one’s peril.

One example of a crime of this nature can be seen in the Dr. Natale case. [Discussed below]. He was prosecuted and convicted and fined $40,000 and sent to prison for 10 months because of a few errors in an operative report that was part of a Medicare claim.  It made no difference that the errors did not increase his payment for the procedure.  It made no difference that other errors actually reduced the payment he received from Medicare.  And it made no difference that a government sponsored report showed that the error rate approached 50% for all doctors practicing in the same field as Dr. Natale.

One knows not to steal, not to rob and not to murder, the crimes that are malum in se.  It is much harder to know whether one is violating some obscure regulation buried in a mountain of regulations that, even if known, is subject to varying interpretations.  Government bureaucrats have raised an Everest of malum prohibitum that may make lawful a particular act one day and forbid it the next.  Often the ‘perpetrator’ is not even aware that he has broken the law.

Can the Same Act Lead to Both a Criminal Trial and a Civil Trial?

Yes.  The football player, O.J. Simpson was prosecuted in a criminal trial for the murder of his wife and her friend.  He was acquitted (found not guilty) and released.  Subsequently, the families of the murder victims retained private counsel and sued Simpson for damages in a civil case.  Simpson lost that case and a judgment amounting to several million dollars was entered against him.  Simpson's acquittal in his criminal trial did not guarantee that he would win when he was subsequently sued in a civil case.
The police power is the power granted to a government to protect and preserve the safety, health, morals and welfare of the community.

In medicine and psychiatry the police power is used civilly to commit mentally ill individuals who may be a danger to others.  An example would be killers who have been found not guilty of murder by reason of insanity.   Similarly, the police power can be used to detain individuals with a communicable disease who may transmit the disease to others.  In each of these instances the criminal law is not involved despite the fact that the state’s police power is used to authorize the restraint on an individual’s freedom of movement.  Although civil commitment is a civil action, the usual civil preponderance of evidence standard is not used because loss of a person’s freedom is a remedy too extreme to be done on the lowest standard of proof.  On the other hand, it is not a criminal action so the beyond a reasonable doubt standard is also not used [except in the case of the civil commitment of sexual predators].  Instead, civil commitment under the police power is done under the clear and convincing standard which is more demanding than the preponderance of the evidence standard usual in civil cases but less exacting than the beyond a reasonable doubt standard in criminal cases.
The police power is also the authority used when governments protect citizens from criminal behavior. 

Two Governments

Americans live in two sovereign jurisdictions simultaneously.  First is the state in which they reside and the second is the United States. 

Most criminal laws are state laws, and each state has its own criminal laws and its own courts and its own law enforcement officers.   What is lawful in one state may be unlawful in other states.  Prostitution is legal in some parts of Nevada but illegal in Massachusetts (where, some say, everything is illegal).

The United States also has a distinct set of criminal laws and a separate, federal, court system.  Federal criminal laws apply equally in all states. 

A robbery of a liquor store will be prosecuted in state court because ordinary robbery is a state crime.  Robbery of a bank can be prosecuted in federal courts because it is a federal crime (because banks are federally insured).  Medicare fraud is a federal crime and will be prosecuted in federal court.  It is possible to be prosecuted in both state and federal courts for the same act if that act violates both state and federal criminal laws.

Criminal penalties are generally more severe in federal court than in state court.
Criminal cases are prosecuted in court by attorneys who work for the government.  At the federal level that attorney is the United States Attorney for the judicial district to which he has been appointed, usually acting through Assistant United States Attorneys (AUSAs) employed by him.   At the state level the office is held by an official with the title of District Attorney (the DA) or Prosecuting Attorney, etc., together with Assistant DA,s, etc.

It need hardly be said that a person working as a prosecuting attorney at the state or federal level has enormous power in his hands.  What is generally less well known is how little it is held in check.  For the most part, much depends on the honor and integrity of those holding these offices and for the most part they are honorable and ethical.  However, there have been lapses.

One of the most notorious recent cases involved prosecutor Mike Nifong of Durham, NC and his abusive prosecution of three students at Duke University for a rape they clearly had not committed.  The students' ordeal and legal battle has been described in Until Proven Innocent, by Stuart Taylor and K.C. Johnson, one of the books posted on the Amazon link on this site. 
After a heroic effort by their team of defense lawyers, the students were finally declared innocent.  Mr. Nifong, on the other hand, lost his position as prosecutor, was disbarred as an attorney and was sued.  Unfortunately, an unjust prosecution like this normally can be fought successfully only with a competent dedicated, and usually expensive, criminal defense team.  That type of defense is not readily available to those with lesser means.

While Mr. Nifong’s misconduct was clearly outrageous, some prosecutorial abuse is more subtle.  One technique that has been described as abusive is overcharging.  The prosecutor may heap multiple counts of criminal conduct onto the defendant and then offer to dismiss most or all of those charges in exchange for the defendant’s pleading guilty to one or two of the charges in a plea bargain that avoids both the expense of a trial and the risk that the defendant will be found innocent.  The pressure on an innocent person to accept the plea bargain and admit to the commission of a crime he did not commit is enormous and it is not uncommon for an innocent person to plead guilty to a crime he did not commit to avoid the greater dangers he otherwise faces.   If he goes ahead with the trial, he risks being found guilty of more, and usually more serious, crimes and also risks facing more serious penalties.  To some commentators, this system is little more than a form of legal blackmail.

Another danger in overcharging occurs when the jury receives the case.  If it is a complicated and confusing case and the jury has doubts whether the case has been proven, the jury may be tempted to ‘split the difference’ by acquitting on many charges but also giving the prosecutor something by finding the defendant guilty on one or two other charges.  A verdict of this type is not much of a consolation to a defendant who knows he is completely innocent.

Another apparently abusive tactic involves the sequestration of the defendant’s financial assets so he will not be able to pay for counsel.  Normally this will be done only in federal court when the defendant has the funds to afford top rank defense lawyers. The intention appears to be to cripple the defense.   An example can be found in Conrad Black’s book, A Matter of Principle, listed on the Amazon link on this site.  


Reckless conduct by a physician leading to the injury or death of a patient usually would be a state crime, charged and prosecuted under state law and in state courts.
When someone recklessly injures another person it is not usually the case that he actually intended to hurt that person.  The reckless element that raises his acts to the level of a serious crime is sometimes described as 'depraved indifference' to the potentially harmful consequences of his act.  Driving 65 mph in a 55 mph speed zone might be 'negligent' but it is not reckless.  Driving 80 mph in a 55 mph speed zone while drunk is certainly reckless.

Title 15, Chapt. 5, Art. 4 of the Georgia criminal code defines reckless behavior in this way:  "b) A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor."

Notice that under this law the behavior itself is a misdemeanor crime.  If the reckless behavior actually leads to the death of another, the miscreant will be standing trial for a felony.

Sometimes a physician's failures may seem to be more severe than the type of ordinary negligence that can lead to a civil lawsuit.  If his behavior is considered to be reckless he may also be charged with a crime.

A Denver anesthesiologist,  Dr. Verbrugge, was accused of sleeping during surgery on an 8-year-old boy who subsequently died.  He was subsequently charged with reckless manslaughter, a felony.  His conviction was subsequently set aside by a court of appeals because of errors in the trial.

An AP news article on the Verbrugge case can be seen HERE

Dr. Murray, the personal physician of performer Michael Jackson, was convicted of a felony for his alleged recklessness leading to the death of Mr. Jackson.

Insurance generally has been regulated under state law and insurance fraud would probably be charged as state crimes in state court.  On the other hand, Medicare is a federal program so Medicare fraud could be charged under federal law and prosecuted in federal court.

None of us would be troubled by the prosecution of a physician who [with mens rea] deliberately falsifies medical billings to collect more money than he has earned.  Fraud, including Medicare fraud, is malum in se and we instinctively know it is a crime.

Medicare 'Fraud' and Prosecutorial Abuse - Going to Prison for Clerical Errors

Unfortunately, governments -- and the federal government in particular -- have a habit of criminalizing violations of their tens of thousands of administrative regulations that are in the form of mere malum prohibitum.  To be charged with a serious Medicare felony it is not necessary for one to act with mens rea or an evil intent.  It is sufficient simply to be confused or mistaken and get tangled in the web of regulations.

That is what happened to Dr. John Natale, a prominent cardiothoracic and vascular surgeon.  He made an error in an operative report and coded for a more complex procedure than was actually performed.  Significantly, the error did not increase the amount for which he could bill and there was no evidence of mens rea or intent to make a false statement.  He was prosecuted in federal court and although the jury acquitted him on fraud charges [his error did not increase his bill] he was convicted of making false statements.  He was sentenced to federal prison.

The judge decided to send this prominent physician to prison to 'send a message' to other physicians warning them of the importance of accurate reporting of billing codes.  One can assume that physicians received the 'message', but probably not in the way the judge intended.  Yet these people seem baffled why physicians are backing away from accepting more Medicare patients.

For more, see Surgeon Reports to Prison and Doctors Say Misstatment in Operative Report Should Not Be a Crime also see Government Healthcare: Codes That Kill

Expect more of this if regulations continue to grow in volume and complexity and doctors are sent to prison for coding errors:  Cash only doctors abandon the insurance system 
 and Concierge Care


If a physician is abusing drugs himself or is knowingly prescribing them without medical justification to make money serving addicts, most of us would have no difficulty in recognizing this conduct as malum in se, criminal conduct impelled by an evil intent or mens rea.

Unfortunately, in the War on Drugs the eagerness to prosecute can lead to injustice.

Dr. William Hurwitz was sentenced to 57 months in prison for prescribing opiods.  This sentence has been described as a 'victory' because the federal prosecutor wanted to send the doctor to prison for 25 years.

The charges against Dr. Hurwitz came about because some of his patients were--apparently without his knowledge--reselling their medicine to third parties who were addicts.  All of the lying patients and their drug addicted customers got milder sentences than Dr. Hurwitz because they accepted plea bargains.  Dr. Hurwitz believed he was innocent and thought he would be acquitted when the truth came out at trial.  In fact, it does not always work that way, and those who try to prove their innocence by demanding a trial face more severe sentences if they lose.

Dr. Hurwitz is not the only doctor who has gone to prison for charges like this; that is, being held accountable for what their patients subsequently do with their prescribed pain medication.

This prosecutorial policy puts some physicians in a difficult situation.  On the one hand they have an legal duty to treat pain adequately and they can be sued if they fail to do so.  On the other hand, if they do treat pain aggressively they could find themselves in court and facing prison for a felony.

An article on the Dr. Hurwiz case can be seen  HERE.

The aggressive prosecutorial pursuit of doctors who 'over-prescribe' controlled substances puts physicians in a bind because there are risks of being sued if a doctor fails to treat pain adequately as can be seen it this article: The Legal Liability of Under-Treatment of Pain.  

Another approach taken is for politicians to restrict the amount of painkillers a physician can prescribe even it if means more suffering for patients.  See when politicians take over medicine.

Treat pain inadequately and you can be sued. 

Treat pain adequately with a bit too much medicine (in the opinion of others) and you can go to prison.

In a related item there is THIS  at the Volokh Conspiracy, a blog run primarily by law professors that has recently been picked up by the Washington Post.

Concern about the problem of prosecutor misconduct is not limited to defense lawyers.  The New York Times has weighed in with Rampant Prosecutorial Misconduct and the Washington Post has posted Exposing Corrupt Prosecutors..  A warning more telling than the opinion of reporters and editors comes from the Court of Appeals (9th Cir), the largest Court of Appeals in the country.  The chief judge, Hon. Alex Kozinski, cite an Epidemic of Prosecutor Misconduct.

The following has been copied from an earlier post.


Dr. John Natale of Arlington, Illinois, a highly respected surgeon, was sent to prison for errors in two operative reports.

This case is particularly shocking because the errors did not increase his bill to Medicare and were financially neutral.  That did not prevent the United States government from also charging him with Medicare fraud in addition to the two charges for making false statements.  The jury acquitted him on the Medicare charges but convicted him for the false statements.

Professional medical associations find the charges and convictions startling and frightening:

"“The message doctors will receive,” stated Dr. Jane Orient, executive director of the Association of American Physicians and Surgeons, “is that the government has declared war on doctors. Making a mistake in two of 2,400 operative reports is apparently now a federal crime, even though the doctor’s total charges were much less than he could have lawfully billed.”Surgeon Reports to Prison

Plus this

Misstatement in operative report

Doctors and Prison

Dr. Natale appealed his conviction citing errors in the trial court's rulings.  In June of 2013 the Court of Appeals for the Seventh Ruled against him and his conviction stands.

The opinion published by the Court of Appeals is as shocking as the original trial.  Dr. Orient addressed it in an article written for the Association of American Physicians and Surgeons:

"The mens rea or criminal intent requirement is virtually gone. The prosecutor does not need to prove that a doctor “knowingly and willfully” lied in order to pad his fee, only to show that an incorrect AMA code was used and the doctor intended to get paid for his work.

The implications of the case are profound, the judge noted: Any error in any medical record related to a health program could be a federal crime.

But if the rules change about defense attorneys’ waiving their client’s rights by being insufficiently assertive, the floodgates for appeals might be opened.

Let us hope that justice is done for Dr. Natale. But to this observer who attended the appellate proceeding, it looks as though the laws are increasingly designed to deter expensive care of the elderly, and that the judicial system focuses more on procedural rules than on substantive justice.

Doctors need to know that anything in the medical record can be used against them—as can errors by their own million-dollar attorney.
"   Emphasis mine.

Doctors Ask: Is a Charting Error a Federal Crime?

It is hard to disagree with Dr. Orient's analysis when reading the opinion of the Court of Appeals.

First, one should know that the coding guides for Medicare do not describe every conceivable procedure.  When a procedure not given in the codes is performed, Medicare rules instruct the physician to use the code for the most approximate procedure for which there is a code.  Of course, that means that a fair number of reports are not going to be precisely coded because codes for the procedures performed do not exist.  Dr. Natale said that that was the case for at least one of the 'false statements' for which he was criminally charged.

Next, coding for Medicare billing can be extremely complicated, so innocent errors are common.  Dr. Natale tried to introduce a government (Department of Health and Human Services) study into evidence that showed that as high as 46% of the claims submitted by vascular surgeons to Medicare are erroneous.  Dr. Natale's error rate was lower than that, so he appears to have been doing very well in keeping his errors well below the government-recognized error rate for other surgeons in his profession.  The prosecution was concerned that the jury might come to the same conclusion and so moved to block the jury from learning of the report.  The judge agreed, and excluded the evidence since it might 'prejudice' the jury.  The Court of Appeals agreed with the trial judge, the report could prejudice the jury, so the jury never learned that Dr. Natale's error rate was below the norm for his field of surgery.

Twisting the pretzel further, the court addressed the nature of Dr. Natale's errors.  While it was true that the errors did not increase the amount he billed, and it was also true that some of his errors reduced the amount he was entitled to bill, the jury could find that the errors were done knowingly and willfully even though there was no intent to deceive.   The appellate court essentially declared that a knowing error on the report can be a crime even if the error was made without any intent to profit or to deceive.

When we remember that Medicare procedures require that a doctor make a knowingly erroneous coding by selecting the next most approximate procedure for which a code is available, and then look to the court's determination that a knowing error made even without the intent to deceive is a crime, one must wonder why anyone would risk practicing medicine in a minefield of criminal liability that Medicare and related federal health care programs have become.

On another note, the Court of Appeals did say that the original trial court that found Dr. Natale guilty had made several legal errors but it decided that those errors were harmless.  If the same 'harmless error' rule that landed Dr. Natale in prison were applied to the trial judge, perhaps the trial judge would profit from a year or so in prison as well.  Perhaps he could have the cell next to Dr. Natale's.  But judge's are allowed to make errors; doctors billing Medicare, not so much.

Here is a link to a FACEBOOK  page addressing the issue.

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