In the Law there term burden of proof refers to the standard which must be met to prevail in the case. The Law has different burdens for different types of cases. For example, the burden of proof (“BOP”) for a civil case is that it must be proven that one party’s position is more likely true than not or more probably true than not true. In a case where a person’s professional license is being attacked by the Government then the burden is higher, or more difficult to attain, in that the proof of the Government must be by evidence which is clear and convincing. The next higher burden is in a criminal case where a person’s freedom is at stake and here the Government’s evidence must be beyond a reasonable doubt (N.B. not beyond a shadow of a doubt and not beyond any doubt but beyond a reasonable doubt. To instruct a jury as to either of the others is absolute reversible error). Finally, the highest burden that exists is where one party asks for the case to be decided by summary judgment without a trial on the merits and this burden requires that the evidence, taken in a light most favorable for the non-moving party, is so persuasive that when the totality of the evidence is looked at that no contrary finding could stand and that no reasonable person could conclude otherwise.
Medical malpractice and personal injury cases are civil suits and as such require the plaintiff to prove that a doctor or hospital, more likely than not, deviated from the applicable standard of care of a reasonably prudent physician in that locality. A medical expert witness is almost always required under all State and Federal Law to give this opinion for the plaintiff - injured party because it is only such an expert who would know what the standard of care is in the first place. Only in the very rare case where a physician’s or Hospital’s violation of the standard of care is so obvious that the common person (juror) would know this that an expert my not be required. One such situation where this may come up is when a doctor commits a crime, violates the ethical guidelines and harms a patient.
So, how does the Law handle a situation such as this? Let’s say a doctor prescribes opiates to a patient and the patient over doses and dies in the line of what happened to Michael Jackson and Prince? In such a situation there are three potential cases. There is the case of the doctor prescribing opiates to a patient who doesn’t need them, and there is the case of a doctor prescribing too may opiates even if the patient does need some. Both of these scenarios certainly violate the medical ethical code as well as the Law. Both scenarios are also civil wrongs to the patient because patients have a right to expect doctors to treat them within the guidelines of the ethics and the law. So, the patient can sue for medical malpractice (medical negligence) and the medical board can bring license charges and the State’s Attorney (Government) can bring criminal charges.
Now each party bring a case against the doctor has a different burden of proof as we discussed above. Moreover, when criminal charges are pending, the most serious charges, a doctor or anyone has the Constitutional right to plead the 5th Amendment and not testify against himself either in the criminal case alone or in all three of the matters. This prevents the Government from doing an end run and taking sworn testimony by the accused from another proceeding and then having it admitted at the criminal proceeding. This doesn’t actually mean that those proceedings must stop. No Judge or Hearing Officer in those proceedings may force the doctor to testify where a criminal matter is actually pending as well but what can happen, within the discretion of the Court, is that the Judge may inform the doctor that if he does not testify that the Court will rule against the doctor in that case. This is so because without the doctor denying the accusations then the plaintiff’s case stands solely on the plaintiff’s accusations being totally unrebutted. The Court also has the discretion to fashion other relief or even to suspend the proceedings until the criminal matter is over. Then the doctor must testify at that time.
Another approach is to simply just proceed with the criminal matter first and see what happens. If the State prevails in the criminal matter where the burden of proof is beyond a reasonable doubt then that Judgment can be used in the License and Malpractice cases because they require lesser burdens. In essence, if the doctor is found guilty of the crime then he must be guilty of everything below that. The converse is not true, that if the doctor is found civilly liable that he then must be guilty of the higher burden conduct, so it often makes most sense to proceed with the criminal trial first. Finally, on this point, since a criminal trial is more difficult for the State to win they usually avoid these unless the conduct is very serious indeed.
Finally, let’s discuss very quickly the above charges related to the opiate drug prescriptions. Let’s assume the doctors gave their patients an opiate drug that the patient didn’t need in the first place. Let’s say that the doctor prescribed the drug in a proper fashion of dosage if the patient had needed the drug. So, the doctor gives the patient the right dosage of an opiate drug that isn’t needed in the first place. Now let’s say that the patient takes the opiates as directed and dies. The doctor is clearly guilty of prescribing an unneeded opiate but is the doctor responsible for the death? If the doctor is responsible for the death is this murder, a crime, where the State can indict the doctor and seek to execute him or whatever or is this wrongful death, simply a civil wrong where the family can sue for money?
Let’s take now another fact pattern where the doctor is within his rights to prescribe the opiates, does this in the proper dosage and the patient dies taking them. Is this different and if so, how so.
In example 1 the analysis must include whether the doctor knew or should have known that opiates were not needed or if he truly made a mistake in reasonably thinking they were needed. If the doctor truly made an error then this would be a civil case as no crime was committed. Crimes always require a mental state to do wrong (evil intent) and there was no such state here. He gave the wrong drug but prescribed it in the correct manner. No crime but medical malpractice (i.e. wrongful death).
If the doctor intentionally gave the wrong drug but in the correct dosage then he committed a crime, but arguably not murder, perhaps negligent homicide, as well as medical malpractice (mis-prescribing and wrongful death again) but again one might make a case that this could be murder. Clearly, it would be easier to swallow murder here if the opiate was given in too high a dose but an initial argument could be made that but for the doctor prescribing the medications, with such intent, there could have been no death.
Finally, I conclude with this. What if the doctor gave the wrong drug, either civilly or criminally if you will and gives the right dosage or too low a dosage, but, the patient takes his month’s supply of the drug all at once and dies? Is this murder or wrongful death or neither? And compare that to if the doctor properly gives a patient heart pills and the patient takes all of them at once, is this murder? Is the analysis of this problem really any different than if opiates were used? Why or why not?