by Cina, Joshua A. Perper, Stephen J. ; Cina, Joshua A. Perper, Stephen J.
Dr. Veizaga-Mendez was penalized for allegedly committing a series of grievous mistakes leading to unnecessary surgeries and protracted pain. Unfortunately, Dr.
Veizaga-Mendez’s case is not isolated. Most of the 5,000 doctors who face disciplinary action in the United States have medical licenses in more than one state according to the Federation of State Medical Boards. Therefore, they have the option to jump from one state to another to continue to practice. Although communication between state medical boards has improved, some dysfunctional practitioners still slip through the cracks.
Medical errors are not limited to VA Hospitals or busy urban medical centers.
Both the poor and the rich and famous may suffer the consequences of medical misadventures. For example, the 2-week old twin babies of Dennis Quaid, a well-known actor, almost died after inadvertently receiving a massive dose of heparin (a blood thinner), 1,000 times more than was prescribed. This adverse event occurred in spite of the fact that the hospital had been previously warned by the FDA (Federal Drug Administration) of the potential mix-up between these two concentrations of heparin because of the similarities of the appearance and labeling of the bottles. In March 2006, the wife and four children of the late actor John Ritter, beloved leading man of the “Three’s Company” TV series, reached a settlement with the hospital and doctors they felt were responsible for his death. Ritter’s family alleged that physicians misdiagnosed a tear in his aorta as a heart attack leading to inadequate treatment and his untimely death. In another instance, comedian Dana Carvey sued his heart surgeon for operating on the wrong artery when he underwent a double bypass in 1998. The case was settled for an undisclosed amount which Carvey donated to charity. Clearly, this funny man has a big heart.
Carvey later said, “This lawsuit, from the beginning, was about accountability and doing everything I could to make sure that it wouldn’t happen to someone else.”
As a matter of fact some experts have pointed out that celebrities may receive a lesser quality of medical care than the average individual due to a number of factors including a reluctance by physicians to conduct some required tests that may be intrusive or very uncomfortable, performing an excessive number of tests (some which may result in serious side effects or generate confusing data), trying heroic therapies which are highly unlikely to succeed and result in more pain than relief, 176
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and disrupting “normal” treatment by introducing too many superspecialists. Some physicians, so-called “doctors to the stars,” are willing to prescribe medications such as pain killers and sedatives indiscriminately to famous clients rather than addressing their underlying physical, mental, or emotional needs. On the plus side for superstars, we bet celebrities don’t have to sit in waiting rooms for hours or haggle with insurance companies.
Murder Versus Malpractice
What penalty should be exacted from physicians who make grave or fatal mistakes?
In the vast majority of cases in which a physician or a medical institution may be reasonably held responsible for malpractice it is clear that that there was no intention or plan for the adverse event to occur. This being the case, these wrongful deaths result in civil suits rather than criminal charges. When malpractice is proven, there is usually financial compensation paid to the patient (if living) or their family.
Punishment for the doctor may also be imposed by the state’s Board of Medicine.
It is only when the doctor’s recklessness in diagnosis or medical care reaches a very high degree that prosecutorial actions for assault, manslaughter or murder are contemplated or carried out.
Despite what you have read in this book, doctors are rarely charged with manslaughter and almost never for murder. A killing is considered manslaughter when there is no specific intent to cause fatal harm or death. A crime is considered murder when a person is killed with “malice aforethought” or premeditation. Both murder and manslaughter are considered homicides, defined as the act of taking away the life of another person. Some physicians found guilty of overprescribing painkillers or potentially addicting medications or exercising highly reckless medical care have been charged and convicted of manslaughter. Serial killers, on the other hand, are tried for murder.
In the late 1980s, Dr. Ricardo Samitier, a Miami plastic surgeon who routinely performed silicone lip enhancement, decided to apply his experience to penis enlargement. He performed penis-widening operation in which he injected fat extracted from the abdomen or other parts of the body into the penile shaft. His lucrative practice was cut short in 1992 after one of his patients, a 47 year-old lounge singer who had been on heparin, died of bleeding following the surgery.
Dr. Samitier was convicted of manslaughter and sentenced to 5 years in prison. In 1989 Dr. Milos Klvana, a California obstetrician, was convicted on nine counts of second-degree murder. The trial testimony substantiated highly incompetent and negligent medical care including failure to monitor the medical condition of women during delivery, reckless disregard of fetal stress or shortness of breath in newborns, repeated absences during deliveries, and failure to perform high-risk deliveries in the hospital when they were indicated.
In 2002 Dr. James F. Graves, a Florida pain management specialist, became the first doctor found guilty by a jury on four counts of manslaughter, one count of Murder Versus Malpractice
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racketeering and five counts of unlawful delivery of a controlled substance in connection with recklessly and indiscriminately over-prescribing OxyContin®. It was also alleged that he sold medications to known addicts and drug dealers. In May 2005 a Dallas County Grand Jury indicted Dr. Daniel Maynard, a Dallas physician, for operating a “pillmill” and allegedly over-prescribing narcotic medications to a number of patients who overdosed and died. Most recently, Dr. Sandeep Kapoor, a
“doctor to the stars”, and Dr. Khristine Eroshevich have been charged with conspiracy to provide vast amount of drugs to Anna Nicole Smith, a model who died of an overdose of prescription medications. Doctors who prescribe pills upon request can make a lot of money; they can also go to prison for a long time.
Complex medicolegal problems and the nuances of medical negligence may pose challenges to juries and to criminal courts. A rather famous case in point is that of Commander Donal M. Billig, the former chief heart surgeon at the Bethesda Naval Hospital. In 1986 he was convicted of involuntary manslaughter and negligent homicide in the deaths of three patients and sentenced to 4 years imprisonment.
After serving 25 months of his sentence, however, the Navy/Marine Corps Court of Military Review reversed the conviction stating that Billig was convicted in a highly publicized trial in which he had been the victim of “a smear campaign.”
Prosecutors sought to portray him “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.” This contention was based on 20/400 vision in his right eye, the result of a horrendous tennis accident. He had also been dismissed at one hospital and stripped of operating privileges at another prior to assuming his post in the Navy. Nonetheless, the Appeals Court stated that the prosecution’s tactics
“…should not have been permitted by the military judge” because it forced Dr. Billig to defend himself not only against the charges involving patients at Bethesda but
“to explain and account for virtually all of his mistakes, professional setbacks, or surgical misadventures during the previous 20 years.” The prosecution stressed that this pattern of practice over two decades was exactly the reason to put him in prison.
The Court didn’t buy this very logical argument. In setting aside the conviction, the Appeals Court concluded that it was not satisfied beyond a reasonable doubt that Dr. Billig was guilty of any of the derelictions for which he was convicted. The court essentially found that the surgical procedures and techniques for which Dr. Billig had been condemned were consistent with medically accepted standar
ds and that some of the adverse medical outcomes for which he had been blamed might have been due to other causes. In May 1988, the Navy announced that Dr. Billig would receive an honorable discharge and that it would not appeal the review panel’s decision.
In an interesting side note, allegations of juror bribery surfaced after the appeals court decision but the case had already been closed.
In some cases the legal pendulum seemed to have move excessively in the direction of prosecution of physicians who made only bona fide mistakes. Dr. Gerald Einaugler, a 49 year-old New York internist, was asked to assume the medical care of a 78 year-old woman transferred from a nearby hospital to a nursing home. The doctor erroneously believe that the catheter protruding from the patient’s abdominal wall was a gastrostomy tube (i.e. a tube placed through the skin and into the 178
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stomach) and ordered that liquid feedings be administered through it. Unfortunately, it was actually a port used for peritoneal dialysis, a treatment for kidney failure.
After 2 days of these feedings, the patient’s belly began to swell and she became short of breath. A nurse discovered the mistake and notified Dr. Einaugler by telephone. He consulted a kidney specialist who advised him to admit the patient to a hospital for immediate care but he allegedly chose not to follow this advice. After examining the patient and finding her to be in what he thought was stable condition, he delayed the transfer for about 10 hours. The patient was then brought to the emergency room but died 4 days later.
Dr. Einaugler was eventually convicted of manslaughter and in 1997 sentenced to 52 years of prison. He served only six weekends prior to being pardoned by Governor George Pataki. The New York Medical Society saw this criminal prosecution as an unjustified attack on practicing physicians as a group and strongly argued that it “is a terrible policy to criminalize mistakes in professional judgment; it is just as inappropriate to criminalize a doctor’s clinical judgment as it would be to criminalize a lawyer’s tactical judgment.” It would seem that criminal charges were improper in the Einaugler case; these lapses in medical judgment, however, lay the foundations for a solid case of negligence in civil court. Indeed a New York Medical Society leader implicitly agreed and stated, “Mistakes of judgment should not be liable to criminal prosecution. Traditionally errors in judgment are handled through peer review and malpractice (suits).”
Clearly serious mistakes in medical care should be subject to civil litigation and, very rarely, criminal proceedings. We all want our doctors practicing the highest standard of care possible. But also consider that the increase in the number of civil and criminal suits against physicians can and has resulted in a number of adverse outcomes for patients. Many physicians concerned with their legal liability related to prescribing narcotic medications for pain or other medications with abuse potential may prescribe medications in less than appropriate dosages to patients in real pain that clearly need them. Other physicians practicing today adhere to the doctrine of “self protective medicine.” They order excessive or outlandish tests that not only significantly increase the cost of medical care but also can result in physical harm to some patients. While this practice philosophy may ensure that no diagnosis is missed, it also opens up the doctor to charges of Medicare fraud. Too few tests can lead to lawsuits – too many to Medicare audits. Either way, the doctor loses. So does the patient.
The pervasive fear of lawsuits and the associated astronomical malpractice insurance premiums has driven doctors out of several specialties, such as obstetrics, and left areas of the country badly underserved by qualified physicians. Over the next several decades, there will be a severe shortage of doctors in many parts of the Western world. Rather than facing economic devastation, humiliation, and imprisonment some of the best and brightest students are avoiding medicine and seeking out safer pastures. Most will find jobs where they are allowed to make mistakes once in a while.
Chapter 18
It’s All Natural!
The market for alternative medicine is vast and growing …
This trend must be guided by scientific inquiry, clinical judgment, regulatory authority and shared decision-making.
– David Eisenburg
There are a number of healing practices that belong to the general group of alternative or complementary medicine. A 1990 survey published in the New England Journal of Medicine indicated that that there were 425 million visits to alternative or complementary medical practitioners compared to 388 million visits to traditional primary care doctors. Americans spent about $13.7 billion in 1 year alone on alternative medicine, only $3.4 billion of which was covered by insurance. Clearly, non-traditional medicine is big business and patients are willing to pay for these services out of their own pockets. Although some practitioners of unconventional medicine are trained physicians, many are not. Nonetheless, their patients treat them as doctors and, as we have seen, doctors are capable of killing.
Alternative and Complementary Medicine
Alternative medicine healers exclusively advocate for methods other than conventional medicine to treat illnesses while complementary medicine specialists provide treatments that work in conjunction with traditional medicine. Alternative medicine is not taught in most medical schools but some patients swear by it and are completely devoted to their “doctors” who practice it. In many cases, these treatments do relieve pain and suffering and improve quality of life. It is unclear, however, if the benefits are “real” (i.e. based on sound scientific principles of physiology and anatomy) or a placebo effect. There are more than 32 flavors of alternative and complementary medicine that may be used separately or in tandem. The most common include:
– Acupuncture and acupressure techniques, integral to traditional Chinese medicine, this art has been practiced for thousands of years. Acupuncture involves the J.A. Perper and S.J. Cina, When Doctors Kill: Who, Why, and How, 179
DOI 10.1007/978-1-4419-1369-2_18, © Springer Science+Business Media, LLC 2010
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insertion of fine, thin metal needles in predetermined skin areas called meridians that impact on sensory, motor or emotional functions. Acupressure involves the application of pressure to the same areas. This technique has provided relief to patients for millennia, however, as with any technique that involves piercing the skin there are risks for bleeding and infection
– Ayurveda is a 5,000 year-old form of Indian traditional medicine that represents the ancestry of several variants of the Chinese healing arts. It combines massage, aromatherapy, diet, meditation, and the use of herbs to restore balance to the body. Some of these techniques also fall under the heading of Herbalism.
Though these medications have been used for hundreds of years and may be helpful to some people, seizures may develop in others as a reaction to rosemary, sage, fennel, hyssop, and other natural healing agents. This century, Dr. Deepak Chopra has been a leader in this field
– Aroma therapy is a form of therapy in which the scent of essential oils from flowers, herbs, and trees is inhaled to promote health and well-being. It is commonly used as an adjunct to massage at many high-end spas. Though it can be very relaxing, certain patients may be allergic to some of the compounds used, such as eucalyptus, and develop severe, life-threatening reactions
– Chelation therapy assumes that many diseases are due to poisoning by various heavy metals (such as lead, mercury, etc.) that have to be purged from the body by “detoxifying” medicines. This technique includes shooting a molecule, EDTA, into the blood to catch the wandering atoms. Though chelation does remove several heavy metals from the blood and may be useful when little kids have eaten lead paint, it is not without significant risks. EDTA can cause seizures, kidney failure, and other problems. On another down note it may make your lungs stop working
– Chiropractic involves manipulation of the spine to correct ubiquitous “sublux-ations” that may cause back pain, stress, or a variety of sympt
oms throughout the body. Chiropractors are divided into two groups, the conservative chiropractors or “straights” that use only traditional spine manipulations and “mixers”
that also use many other modalities of alternative therapy. One of the authors has been manipulated by a chiropractor (as well as many other people resulting in severe “trust issues”) and found temporary relief from back pain. We are also aware that manipulation of the neck by chiropractors has resulted in tears of the arteries supplying the base of the brain with resultant sudden death
– Colonics entails the instillation of a variety of oils, liquids, herbs and other natural substances into the rectum and beyond. The idea is to purge the body of all toxins and remove materials that have been spackled onto the bowel wall for years. This procedure is not without risks. People with colon tumors and diverticulosis may be prone to colonic rupture if fluid or gas is forced up the rectum whether recreationally or for medicinal purposes. And, for the record, the authors have collectively performed close to 20,000 autopsies and have yet to find 10 pounds of undigested red meat or chewing gum trapped in someone’s colon
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– Dianetics is a curative method created and popularized by L. Ron Hubbard, the science fiction writer who founded the Church of Scientology. Subscribers to this philosophical form of healing are taught that both physical and mental diseases are the result of forgotten “engrams” (traumatic life events) rather than viruses, bacteria, and malignant cells. Some cures can be achieved by taking “mind trips”
back to the time of birth and in-utero enabling the engrams to be “cleared” by moving them from the “reactive (unconscious) mind” into the “memory bank” of the conscious mind. As we would one day like to meet Tom Cruise and John Travolta we will not elaborate further on the efficacy of this treatment plan
– Faith Healing is practiced by many religious groups. Studies have shown that while prayer can speed healing and improve a patient’s outlook on life, medicine is also a good thing. Faith healing in and of itself doesn’t kill anyone. People die, however, by relying on faith alone and not seeking proper medical care