On Friday, the Canadian Appeals in Alberta ruled that there is enough evidence that the Watchtower caused Bethany's death to warrent a trial. The WT is accused of giving underage minor Bethany misrepresentations that induced her to follow their medical advice. Specifically the misrepresentations the WT used were 1) the blood transfusions & chemotherapy were experimental treatment and that 2) arsenic could cure her. That sounds pretty f*cked up!
Right now, we only have a civil case. But, as this case moves forward, I think there could be a criminal investigation, given the right set of facts emerge from the civil case. A civil case means that the damages will be paid in cash. A criminal conviction means that the criminal goes to jail.
The Appeals court said that Bethany received alot of transfusions, but during this treatment the WT/doctors appealed to a court as both felt the transfusions were not working. Bethany was next moved to a different hospital where alternative treatment began and the blood transfusions stopped. The alternative treatment was arsenic and vitamin C. Bethany then dies a few months later.
Let's recap. While she gets blood transfusions, she's living. After she stops blood transfusions and is given arsenic regimin, she dies. Fishier than a large mouth bass to me.
What was the cause of Bethany's death? Arsenic and lack of blood? If it comes out that she died of arsenic, then I really do think there would be a criminal investigation. Doctors can be held criminally liable (at least in the US) for rendering grossly negligent medical advice.
What if it's lack of blood? That's less clear cut...but it is clear that blood transfusions and chemotherapy are not experimental treatments for leukemia. Is this statement rise to the level of gross negligence? This advice may not grossly negligent if Skeeter's grandmother said it........but it could be gross negligence if the Watchtower Society, who partly holds itself as an expert on bloodless treatment who produces award winning DVD's, gave it.
Criminally, the case would probably name both the treating physicians and the WT Society. I am not privy to what went on behind closed doors, but what do you bet the WT attorneys and WT liasion committee put alot of pressure on the doctors/hospital to stop blood transfusions and begin arsenic therapy?
Below is an article on Criminal Liability for bad medical advice. While this article is based on US law, I can see it apply anywhere. Again, I do not know Canadian law....
*******article below*******
Criminal Liability for Medical Judgment
An attorney, ignorant of significant changes in the law, gives erroneous advice to a client. The client relies on that advice and sustains a major financial loss.
An engineer, returning to work after having a few drinks at lunch, seriously miscalculates the load-bearing capacity of a structural support in drawing up design specifications. The structure built to those specifications fails, causing property damage, personal injury and death.
A physician, working in the emergency department of a 40-bed hospital in a small rural town fails to diagnose infection in an eleven month old child. Treatment is delayed and the child dies.
In each of these cases, the professional faces the prospect of a malpractice suit to recover money damages. Depending on the factual circumstances and the aggressiveness of their respective licensing authorities, they also might face disciplinary action. Only the physician, however, has to wonder if criminal prosecution might ensue.
As a result of events at the local and national levels, physicians are increasingly concerned about the prospect of criminal prosecution for errors in medical judgment. This article addresses some of those recent events and their implications for physicians.
State versus Wolfgang Schug, M.D.
Perhaps the most infamous prosecution of a physician is the case brought by the California Attorney General's office against Wolfgang Schug, M.D. Dr. Schug is a board-certified family physician who had been practicing as an emergency department physician at Redbud Community Hospital in Clearlake, California. In February of 1996, Dr. Schug saw an eleven-month old infant with what he diagnosed as an ear infection. After two follow-up visits to the emergency department and eight hours of treatment, Dr. Schug advised the infant's parents to take him to a larger hospital, 55 miles away, where he could be admitted to a pediatric unit. The infant did not survive. The coroner's report identified the cause of death as anoxic encephalopathy, due to sepsis following an ear infection.
The case was reviewed through the hospital's peer review process. At each of three levels of review, the panels determined that there was no basis for any action against Dr. Schug's privileges.
In August of 1997, detectives from the California Department of Justice and the Sheriff's Department arrested Dr. Schug in the hospital emergency department. After waiting an hour and a half for the arrival of a physician who was called to cover for Dr. Schug, the detectives handcuffed Dr. Schug and took him to the County jail. An indictment charged Dr. Schug with second degree murder, involuntary manslaughter. If convicted, he faced a prison term of 15 years to life.
The trial was held six months later. At the close of the prosecution's case, before the defense presented any evidence, the trial judge dismissed the charges. A multi-million dollar civil malpractice action is still pending.
Civil and Criminal Liability: Arizona Law
In Arizona, when a civil suit charges that a physician's negligence caused a patient's death, a jury must decide whether the physician "exercise[d] that degree of care, skill and learning that would be expected under similar circumstances of a reasonably prudent [health care provider] ...." If the jury finds that the physician failed to comply with that standard, and finds that the failure was a cause of the death, the jury will award compensatory damages. In cases where the physician is alleged to have engaged in egregious conduct, the plaintiff may recover punitive damages on a showing that the physician "consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others." The plaintiff has the burden of proving that the elements of the claim for compensatory damages are "more probably true than not true." The entitlement to punitive damages must be shown by "clear and convincing evidence."
On the criminal side, a homicide prosecution may include counts based on negligent homicide, manslaughter, second degree murder or first degree murder; prosecution of a physician for patient care decisions probably would involve a charge of negligent homicide, manslaughter or second degree murder. The required state of mind for these crimes, and the potential penalties, vary considerably.
A person commits negligent homicide if that person "with criminal negligence" causes the death of another person. Criminal negligence means the failure "to perceive a substantial and unjustifiable risk" of death. The risk "must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." This standard is not significantly different from the standard applied in civil cases (compare "gross deviation" from the standard of care with "failure to comply" with the standard of care). The standard for a finding of criminal negligence may be less rigorous than that required for an award of punitive damages in a civil action. Negligent homicide is a Class 4 felony and is punishable by up to 3.75 years in prison and a fine of up to $150,000.
A person commits manslaughter by "recklessly causing the death of another person ...." In this context, recklessness means "that a person is aware of and consciously disregards a substantial and unjustifiable risk" of death. As is the case in negligent homicide, "the risk must be of such a nature and degree that disregard ... constitutes a gross deviation from the standard of conduct that a reasonable person would observe...." Manslaughter, a Class 2 felony, is punishable by up to 12.5 years in prison and a $150,000 fine.
A person commits second degree murder if, without premeditation, the person "under circumstances manifesting extreme indifference to human life ... recklessly engages in conduct which creates a grave risk of death and thereby causes the death of another person." Second degree murder is a Class 1 felony and is punishable by up to twenty years in prison.
Physicians and other health care providers involved in the care and treatment of the elderly also face potential criminal liability under Arizona's Vulnerable Adult statute. This law, which is viewed as one of the toughest in the nation, provides for criminal and civil penalties for certain individuals who cause or permit injury to a "vulnerable adult," which is defined as any individual, 18 years of age or older, "who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment." As is the case with the homicide statutes, liability can result from intentional, knowing, reckless or criminally negligent conduct.
Civil and Criminal Liability: Similarities and Differences
In each case, the prosecution would have to establish that the defendant had the requisite state of mind. Presumably, this could only be established through expert testimony, as is the case in civil malpractice actions. Also, since the prosecution must prove that the defendant's conduct caused the death, causation would have to be established, again presumably through expert testimony.
Beyond that, however, the differences far outweigh the similarities. The most obvious difference is that criminal prosecution poses the risk of imprisonment. Also, conviction carries an increased likelihood, if not certainty, of license revocation, debarment from Medicare and AHCCCS participation and other collateral damage.
In addition, since most malpractice insurance policies exclude coverage for "occurrences involving ... criminal acts or omissions," legal fees and any fine would have to be paid out of the physician's pocket. In Dr. Schug's case, this meant paying a $100,000 legal bill out of his own funds. Although some professional liability insurance companies are offering at least defense coverage for investigations and proceedings based on allegations of fraud and abuse, coverage is not currently available in this setting.
Another difference between civil and criminal prosecutions is that in civil cases, it is fairly well established that peer review proceedings are protected from discovery. That is not the case in criminal proceedings, at least in California. In Dr. Schug's case, the Court held that the state statute protecting peer review materials from discovery did not apply in criminal cases. On its face, the Arizona peer review statute would appear to preclude discovery of peer review materials even in a criminal case. The issue has not been tested in the Arizona courts, however.
Isolated Events or A Developing Trend?
According to the AMA, in the past decade about 10 physicians have faced murder charges based on medical treatment, and two of those physicians have been convicted. A number of physicians currently face murder charges in California, however, and reports of prosecutions in other states appear to be on an upswing. Recent events make it clear that Arizona physicians may be prosecuted for medical treatment decisions, at least in certain circumstances.
Although it is far too soon to reach any conclusions as to whether politics or publicity may be playing a role in charging decisions, prosecutions may be slightly more common in politically charged areas (abortions and elder abuse) and procedures that prosecutors may view as non-essential (liposuction and other cosmetic surgeries).
Selective Prosecution?
Some physicians have expressed concerns that there is a trend, and that it is fueled by politics and media publicity. There clearly is some support for these concerns. For example, the flood of publicity about "greedy doctors ripping off Medicare" and the political benefits of taking a strong stand on this issue appear to play a role in the current fixation on fraud and abuse enforcement.
Since attorneys, engineers and other professionals are rarely if ever prosecuted for negligent or even reckless errors, physicians are concerned that the current political environment is responsible for this selective prosecution. Of course, an alternative explanation for this situation may be the fact that, unlike other professionals, physicians are charged with protecting the life and health of their patients. By contrast, when an attorney's error injures a client, the damage typically is limited to a monetary loss, which can be recovered through a civil lawsuit. This distinction may be somewhat disingenuous, however, as the criminal code provides penalties for conduct that results in financial and property losses, as well as injury and death.
Organized Medicine's Response
Organized medicine is sufficiently alarmed about these developments that representatives of the AMA and state medical associations have lobbied for new legislation or standards regarding prosecution of physicians. The AMA has offered model legislation that would decriminalize virtually any conduct short of intentional wrongdoing. The California Medical Association is working with the California Attorney General's office to develop guidelines on criminal prosecution of physicians. At the local level, physicians and representatives of the Maricopa County Medical Society and the Arizona Medical Association have expressed their concerns on this issue to the county attorney.
In response to this pressure, some prosecutors contend that physicians are seeking special treatment. They point out that specific intent has never been a necessary element of a homicide prosecution, often comparing prosecution of physicians to prosecution of drunk drivers who knowingly subject others to a significant risk of serious injury or death.
CONCLUSION
Although one case does not a trend make, this issue warrants careful attention by physicians and their representatives. The local level is probably the most appropriate focus for scrutiny, since prosecutors may be tempted to act based on political pressures, and since they have tremendous discretion in deciding whether to initiate prosecution. For example, the Los Angeles Deputy Attorney's Office has prosecuted five physicians and two dentists since 1984, while other offices have not initiated any such prosecutions.
At the individual level, the same risk management initiatives that help reduce the risk of civil liability should help further reduce the already slight risk of criminal prosecution. In addition, and consistent with the law school clichi that "bad facts make bad law," prosecutions are more likely where there are particularly egregious facts, such as attempts to alter medical records or otherwise conceal evidence of responsibility. Consequently, advice against altering medical records or other conduct that might be viewed as an attempt to conceal culpability should carry even greater weight with physicians concerned about the prospect of criminal prosecution.
Bob Milligan is a shareholder at Gallagher & Kennedy, P.A.
