There is a difference between a doctor committing medical malpractice, or being medically negligent, and being a criminal. But that doesn’t mean that a doctor cannot commit a crime in the act of caring for patients. In essence, if a doctor acts negligently in the practice of medicine he has committed a civil wrong like any other civil wrong such as hitting someone with his car by accident. In medicine, as in anywhere else, a civil wrong means that one person harmed another by accident which means there never was any evil intent or plan to cause harm. This is the vast majority of acts where a doctor is sued for medical malpractice. Medical malpractice or medical negligence is an accident that occurs to the patient which occurs in the course of a doctor treating Human disease. An example of this class of charge is where a doctor gives the wrong dose of a medication or fails to timely diagnose a condition of ill being or does a surgery wrong.

It is so rare that it is almost unheard of that a doctor is charged with criminally harming a patient while treating the patient. But this does occur. The most sensational of these types of crimes are sexual attacks of some sort while under medical care and situations where pain clinics improperly prescribe Opioids as a profit mill. Sometimes we hear about a doctor ending the life of a terminally ill patient with medications. There was a well documented prosecution of a Pharmacist diluting medications ordered for patients by physicians and then selling them as being fully and properly formulated. One can readily see the difference between negligent care or medical malpractice and criminal medical care and that is that the former does not have the evil intent to hurt another involved in it and is therefore an accident while the latter is indeed based on evil from the get go.

What about a doctor who is a serial offender and makes money by hurting numerous patients by being negligent in what he does? Or what about the doctor who does something risky without need or grossly wrong given a lack of training and experience? Usually, these people still avoid the criminal justice system and get sued civilly as well as get charged by the Professional Medical Board for State Licensure. This means that there is yet another level to deal with doctors who are incompetent or greedy but still not criminal in the real sense of the word. These doctors can have their medical Licenses acted upon and thus be restricted or barred from practice on top of being sued for damages. An example of conduct falling into this category might be excessive prescribing of Opioids many times where there may be a very tenuous medical argument for so doing or where the doctor may be so incompetent that he is beyond just negligent but not yet criminal. Here, the law might look for gross negligence or behavior that is willful and wanton which the doctor knew or should have known would cause a bad result.

It is progressively more difficult to convict a doctor on the above scale. Under the law it is the patient’s burden to prove a doctor guilty of medical malpractice by a preponderance of the evidence or that it is more probably true than not that he did wrong. It is the State’s duty to show that a doctor was grossly negligent or acted improperly with some sort of intent by clear and convincing evidence. Finally, it is the State’s duty to prove a doctor committed a crime by evidence that is beyond a reasonable doubt. The doctor also gets all of the rights that any other defendant in a criminal matter gets such as the 5th Amendment section where he cannot be force to testify against himself. Our U.S. Constitution protects criminally charged doctors as it protects anyone else as taking a person’s freedom away is the ultimate power entrusted to Government. Notice that the patient has the right to sue for civil charges but only the State can bring charges beyond this level.

It is important to remember that if a doctor is convicted in court of criminal conduct with respect to a patient that since this requires a greater burden of proof then anything beneath it, i.e. lesser included behavior, it is automatically established that conviction of a crime also proves the doctor guilty of medical malpractice then and there. One way to look at this would be to say that it is negligent for a doctor to commit a crime in caring for a patient’s disease. So, a two for one is created under this scenario. Finally, it is very important to remember that medical malpractice insurance exists only to cover a doctor for negligence or, obviously, medical malpractice. If, out of a desire to really slam back at the doctor, or have the State do the work and spend the money on conviction, an injured plaintiff seeks to have the doctor prosecuted every which way but loose the patient may shoot himself in the foot. This is because the medical malpractice insurer may have a way to deny coverage for the injury if it is the result of a crime. Insurance companies, as everyone knows, do not cover for crimes but they do cover for accidents so please be careful and please consult with your lawyer. Your decision might end up being, do you want the money or do you want the doctor in prison?