Doctors are finding themselves in the sights of prosecutors as states like Florida and Georgia confront the growth in abuse of prescription drugs. The prosecution of doctors is seen as more effective than bringing cases against their patients.
There were just over two dozen reported criminal cases against doctors for malpractice in the two decades from 1981 to 2001, according to Westlaw research by James Filkins, a doctor and lawyer who has written about the criminal prosecution of physicians.
Replicating Filkins' research, Reuters tallied around 37 reported criminal cases in the decade from 2001 to 2011, with most recent cases against doctors for over-prescribing painkillers and other controlled substances.
U.S. Drug Enforcement Administration information suggests a similar trend. For 2003, the agency reported 15 physician arrests that resulted in convictions. By 2008, the most recent year with comprehensive data, the number had grown to 43.
While the number of criminal malpractice cases is not large, the American Medical Association has cautioned that the trend has interfered with the practice of medicine. Civil prosecutions for monetary damages were sufficient to hold doctors accountable, the organization said.
In 1995, the group adopted a resolution opposing the "attempted criminalization of health care decision-making especially as represented by the current trend toward the criminalization of malpractice."
The trend is, in part, due to an expansion in white-collar criminal law and drug control laws to include unintentional violations by doctors, said Diane Hoffmann, a law professor at the University of Maryland.
Many recent cases have been brought under the Controlled Substances Act, enacted in 1970, and similar state laws. To establish guilt under the act, the prosecution must prove the physician knowingly and intentionally prescribed the medication outside "the usual course of professional practice" or not for a "legitimate medical purpose."
Prosecutors faced this question in the much-publicized case against Anna Nicole Smith's physician, Sandeep Kapoor, on charges of violating the controlled substances law.
The case hinged on whether Kapoor believed in good faith there was a medical purpose for providing the celebrity with an array of prescription drugs that led to her overdose and death in 2007, according to his lawyer Ellyn Garofalo.
The jury acquitted Kapoor last year.
In the Michael Jackson case, California prosecutors are not charging Jackson's physician, Conrad Murray, with violating a controlled substances law. Propofol, the anesthetic Murray is accused of giving to Jackson, is not a controlled substance.
Prosecutors instead allege Murray breached the standard of care when he administered the anesthetic to Jackson at home and that his gross negligence caused the singer's death at age 50. Murray faces up to four years in prison for involuntary manslaughter if convicted.
Murray also faces a wrongful death lawsuit filed by Jackson's father.
The legal standards in civil and criminal negligence cases are similar. Jackson's family and prosecutors must prove Murray deviated from accepted medical practices, although the standard for a criminal conviction is "much greater" than for civil cases, said attorney Ed Chernoff, who represents Murray.
Chernoff declined to discuss the Murray case specifically.
Observers said one tactic he might take is to argue Jackson was addicted to sedatives and painkillers and could have given himself the fatal dose of propofol when Murray was out of the room. Prosecutors will have to prove Murray's conduct actually caused Jackson's death.
Florida, which has a reputation as the "epicenter" of prescription drug abuse according to state Attorney General Pam Bondi, has indicted dozens of doctors and clinic operators for unnecessarily prescribing pills.
The Drug Enforcement Administration says 28 of its 226 successful convictions of doctors—around 12%—were in Florida.
Bondi and the state's governor have launched a strike force to address the problem and, under a new law, Florida doctors generally can no longer dispense pills at clinics.
"Our marching orders are that we will not turn down a pill case coming into this office," said state prosecutor Nick Cox.
It is more efficient to pursue the source of the pills—the prescribing doctors—than patients abusing the drugs, he said.
Critics say the scorched earth assault glosses over tough questions doctors face, especially physicians who treat patients with chronic pain. Because pain is subjective, doctors must rely on the accounts of patients who are sometimes addicted and seeking drugs.
"Doctors are not supposed to be law enforcement agents. They're supposed to believe their patients," said Hoffmann, the law professor.
Murray's lawyer Chernoff said it is a mistake to prosecute doctors who are not running pill mills but legitimately trying to help their patients. He blames the trend for having a "chilling effect" on the medical profession as doctors change treatment plans out of fear of facing time in prison.
Terry Baynes • Reuters Health Information © 2011