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Prosecuting medical personnel for criminal negligence is gaining favor in the United States. This is partly due to the fact that medical errors are the third leading cause of death in the US. It is also because the high monetary sums that doctors bill should serve to guarantee some form of accountability and a basic level of care. Yet, the question of where medical negligence becomes criminal is a hard one to answer.

Many feel that criminal negligence can come into play when the doctors act with a reckless disregard for their patients and take a gross deviation away from acceptable practices. In this regard, the culpability rises beyond negligence into something just below recklessness. The doctor did not just make a medical error through oversight but had acted with such gross negligence that he was essentially gambling with the basic health of the patient. This is often due to time-management problems or competency regarding a novel issue in a growing practice.

When is Criminal Medical Negligence Prosecuted?

These cases are most often prosecuted when a patient dies in what should have been a routine procedure due to gross medical errors. Doctors have also been prosecuted for crimes in cases where they overprescribed opioids like fentanyl and killed numerous patients. In most cases, doctors will be able to excuse any sort of negligence by couching their defense under “professional judgment.” If there is a range of acceptable techniques and treatments for any type of illness, surgery, or other practice, a doctor can usually avail themselves of criminal and civil liability.

In any regard, medical personnel can minimize the potential for criminal liability by accepting that they made errors of medical negligence that would amount to malpractice. This may placate victims who have lost a loved one or experienced extreme suffering as a result of a doctor’s negligence.

If a doctor can cite the length of a lab report or some confusion over a notation in the medical records, this would present some good faith arguments that vindicate the doctor for only being human. Anyone can drift off when they are reading or get distracted and overlook something. Doctors can also be confronted with novel issues in the middle of a surgery that make the proper technique or method a judgment call.

In any case, the overall record of a healthcare provider can minimize any mistakes by demonstrating that the doctor was competent in advanced medical procedures and performed those duties without fail. In this manner, it would not be the ethical integrity of the doctor in question but rather a situational event where things deviated from the norm for some reason beyond his control.

Because medical opinions regarding the appropriate standard of care can be esoteric and highly debatable when it comes to accountability for most errors, it is difficult for criminal medical negligence to stick unless prosecutors have an evident pattern of untimely deaths or a single case of gross deviations that involve questions of common sense.

For example, if you know that a patient in your care is being treated for cancer and you abruptly stop that treatment, for no logical reason, while providing physical therapy, it would be hard to compel a jury that overriding another doctor’s medical treatment arbitrarily is some sort of judgment call.

If the prosecutor argues that you ceased the treatment because your practice was not competent to administer it and that you should have referred the patient elsewhere but were greedy, this would be an issue that jurors would have a hard time forgiving. In most cases, medical defendants should avoid putting their faith in medical jargon to couch anything as a medical judgment call. These weak excuses won’t hold up because jurors don’t want condescending boilerplate excuses; they want details and adversarial testing of even well-reasoned excuses.

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