Bioethics Discussion Blog: Malpractice vs Involuntary Manslaughter: What is the Distinction?

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Thursday, October 13, 2011

Malpractice vs Involuntary Manslaughter: What is the Distinction?

The current legal case being tried in court regarding the death of Michael Jackson by the alleged acts of Dr. Conrad Murray as involuntary manslaughter in contrast to the death being an act of malpractice brings up the question: what is the difference in legal terms between medical malpractice and involuntary manslaughter. And, perhaps, what is the difference in ethical terms? If the physician is found guilty, the physician is punished financially in the first case but by prison time in the second. An excellent article written by Eisenberg and Berlin in the American Journal of Radiology in August 2002 gives case examples and may tend to answer to the question posed in the title of my thread. An excerpt from the article follows:

The circumstances under which a physician's error of medical judgment triggers criminal prosecution are not totally clear. An English court of appeals ruled that to justify a criminal conviction, it must be proven that a physician acted with “gross negligence,” which is characterized by any or all of the following elements: indifference to an obvious risk of injury to health; actual foresight of the risk coupled with the determination nevertheless to run it; an appreciation of the risk coupled with a high degree of negligence in the attempt to avoid it; and inattention or failure to avert a serious risk.

A person whose behavior is “grossly negligent” may be liable for involuntary manslaughter if his or her conduct results in the accidental death of another person. Most jurisdictions hold that something more than ordinary negligence must be proven before the defendant can be found guilty of involuntary manslaughter. This usually requires that there be a substantial danger not only of bodily harm, but also of “serious bodily harm or death.” The defendant must have acted “recklessly,” a term defined as a “gross deviation from the standard of conduct that a law-abiding person would observe” in the same situation The court must consider all the circumstances surrounding the incident, including the social utility of any objective the defendant is trying to fulfill.

What, in my opinion, seems to be missing in the accusation of a physician with a crime of involuntary manslaughter rather than a professional error of malpractice is whether the physician's intent in diagnosis and management was to ignore any attempt toward the professional goal of beneficence (doing a "good" ) to his or her patient. If one could prove that such was not the intent and goal, shouldn't that be the overriding criteria to define a death as professional malpractice and not a crime? On the other hand, I look forward toward what how others to my blog thread look at this distinction. ..Maurice.

2 Comments:

At Monday, October 17, 2011 11:29:00 AM, Anonymous Anonymous said...

Maurice, your definition is quite good and I tend to agree on a philosophical level. On a practical level, however, I think we need to be aware that we are in the era of "the patient is always right". People will disagree on that concept, but there's no denying that we're mired in it now. I have no wish to return to the paternalistic physician mode of 50 years ago, but I also tend to think we've taken a wrong turn in terms of patients' rights. "Patient Rights" has turned into "Patient is Right". And young physicians are coming up professionally in this environment. They care for their patients, of course, but also see patients' wishes as paramount. To me, it's the monetization of medicine. Patients have become customers...and the customer is always right. So, many physicians feel an obligation to appease...prescribe medication X that the patient desires, even though medication Y is a superior treatment in the physician's opinion. So, that beneficence could be fairly widely interpreted. Many in the medical (and political) community feel that it is doing "good" for patients to give them more control and say over their medical care and treatment.

That being said, doing something for solely financial reasons, and with no beneficent medical intent, drops a physician out of the protection of his professional position...and criminal charges are completely appropriate.

-Onion

 
At Monday, October 17, 2011 6:12:00 PM, Blogger Maurice Bernstein, M.D. said...

Onion, my concern particularly is with the VIP patient who not only could be classified by the public as a "very important person" but who personally assumes that characterization and may behave in ways that insist that others who attend to that person fully agree with that characterization. I think that physicians are human and they, as a profession, do want to provide services to the patient which are beneficial both from a physical but also an emotional standpoint. It, thus, becomes possible that to maintain emotional beneficence, the doctor, under VIP pressure and perhaps without financial implications, may miss maintaining physical beneficence. The results of such mistakes may well be tragic but may I suggest that the burden of the responsibility for these tragedies cannot always be applied to the physician but also to those who insist on personal VIP treatment. Will anyone agree with my view? ..Maurice.

 

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