Observers have recently noticed that there has been a slight uptick in the number of doctors and other medical professionals who have faced criminal liability for their egregious medical malpractice. One of the more high-profile recent examples is that of the former doctor to Michael Jackson, Dr. Conrad Murray, who was found guilty last Novembers of involuntary manslaughter. In the aftermath of that guilty verdict some questioned whether the motivation behind the criminal charges was unfair. As Murray’s defense attorney asked, “If it were anybody else but Michael Jackson, would this doctor be here today?” Instead, the defense attorney suggested that the matter should have been heard by a state medical board-not a jury in a criminal case.
To be sure there is some prosecutorial discretion in all criminal cases-not just those related to medical malpractice. The criminal law system is very different from the civil system, with one of the main distinctions being that criminal cases are only brought forward when a prosecutorial team in the area decides to file charges. There is always potential to quibble with decisions made to prosecute or not to prosecute.
Each Chicago medical malpractice attorney at our firm often explains how, even when criminal charges are filed in these cases, the state (represented by the prosecutors) have an increased burden of proof-beyond a reasonable doubt. In addition, most criminal charges in these cases are some version of involuntary manslaughter or other form of misconduct where a heighted culpability element must be proven-often recklessness. In a civil medical malpractice lawsuit, plaintiffs must prove negligence. Negligence is essentially conduct that was done (or not done) which would have been done by a reasonable doctor. For criminal cases, however, the prosecutors must prove that the conduct was even worse than ordinary negligence-usually classified as recklessness or “criminal negligence.”
The increased culpability elements in the criminal charge and the higher burden of proof in criminal cases make them rare in the medical malpractice context. But they still do occur. For example, last week, the KHON News reported on a multiple year prison sentence for a Hawaiian doctor who recklessly prescribed prescription medication. The charges claimed that the doctor did not even see some patients for months but kept prescribing dangerous, controlled substances, like methadone. The reckless conduct put patients at risk and padded the doctors own pockets-often at the expense of public taxpayers. He was sentenced this week to over twelve years in jail for this conduct.
Our Illinois medical malpractice attorneys appreciate that while there may be a slight increase in use of the criminal justice system to hold these wrongdoers accountable, criminal charges clearly remain the very rare exception. At the end of the day, it falls upon those hurt by malpractice themselves and their families to come forward in the civil system to demand justice. Unlike criminal cases, there is no prosecutorial decision-making deciding whether a certain wrong should be pursued in the courts. Instead, the civil system is open to all community members-regardless of their situation-to seek justice against those whose carelessness cause them harm.
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