Civil and Criminal Liability of A Professional Doctor

Yi-Chun Han

What is civil liability?

Civil liability is potential responsibility for payment of damages or other courtenforcement in a lawsuit The professional faces the prospect of a malpractice suit to recover money damages.

Civil ability
The large majority of these civil cases are based on negligence by a patient regarding treatment by a doctor. However, there are other grounds for a lawsuit against a doctor. For example, a lawsuit may be filed by an interested third-party for failure to respect privileged communication between patient and doctor. A typical third party is a parent of a child under a doctors care.

What is criminal liability?

Criminal liability is the guilt for acts which harm society, and which are prosecuted by the government.

Criminal liability
Physicians illegally sell drugs, defraud insurance companies, undergo illegal abortion, or cause serious injury or even death to a patient.

Criminal liability
At the local and national levels, physicians are increasingly concerned about the prospect of criminal prosecution for errors in medical judgment. 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.

Case-Wolfgang Schug, M.D.

Wolfgang Schug, M.D. Dr. Schug is a board-certified family physician who had been practicing as an emergency department physician. 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.

Case-Wolfgang Schug, M.D.

In August of 1997, detectives arrested Dr. Schug in the hospital emergency department. An indictment charged Dr. Schug with second degree murder. 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 multimillion dollar civil malpractice action is still pending.

Arizona's Vulnerable Adult statute

Physicians and other health care providers involved in the care and treatment of the elderly also face potential criminal liability. This law 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.

To be decided if
Gross ignorance or reckless negligence. Whether a physician is civilly liable or criminally liable depends on his or her intent. However, in cases of gross ignorance or reckless negligence, the physicians explanation of intent is not a defense against criminal accusations. For, says Taylor, if the ignorance or neglect is gross, then the criminal intent will be implied.

To be decided if
Physician exercised that degree of care, skill and learning that would be expected under similar circumstances of a reasonably prudent health care provider.

conclusion
Doctor-patient relationship Autonomy of patient. Requisite state of mind. In criminal liability, this could only be established through expert testimony, as is the case in civil malpractice actions. Medical standard should be determined by the medical professionals, not by politicians or by the jury