NEW YORK, Sept 12 (Reuters) - As Michael Jackson's doctor,
Conrad Murray, prepares for his involuntary manslaughter trial
to begin in late September, he joins the small but growing
ranks of healthcare providers facing criminal charges for their
Before the 1980s, the criminal prosecution of physicians
for their healthcare decisions was virtually unknown. Between
1809 and 1981, there were only 15 reported appellate cases
involving the criminal prosecution of doctors for malpractice,
according to research by James Filkins, a doctor and lawyer who
has written about the criminal prosecution of physicians.
Using the legal database Westlaw (a unit of Thomson
Reuters), Filkins uncovered around two dozen cases from 1981 to
2001. For the period 2001 to 2011, the same search yielded 37
cases -- three times the rate for the prior two decades.
Drug Enforcement Administration data suggest a similar rise
in prosecutions. For 2003, the agency reported 15 physician
arrests that resulted in conviction; by 2008, the most recent
year with comprehensive data, the number had grown to 43.
The growing numbers prompted the American Medical
Association to adopt a resolution in 1995 opposing the
"attempted criminalization of health care decision-making
especially as represented by the current trend toward the
criminalization of malpractice." The AMA said the trend
interfered with the practice of medicine.
In the past decade, the majority of criminal cases against
doctors have targeted the liberal prescription of painkillers
and other controlled substances. Many of the cases are brought
under the Controlled Substances Act, enacted in 1970, and
similar state laws. To establish guilt under the act, the
prosecution must prove that the physician knowingly and
intentionally prescribed the medication outside "the usual
course of professional practice" or not for a "legitimate
THE ANNA NICOLE SMITH CASE
The last much-publicized prosecution was of Anna Nicole Smith's physician, Sandeep Kapoor. He was charged with
illegally providing Smith with an array of prescription drugs
that led to the tabloid celebrity's overdose. That case,
brought under a controlled substances law, hinged on whether
Kapoor believed in good faith there was a medical purpose for
the prescriptions, according to his lawyer Ellyn Garofalo. The
jury acquitted Kapoor last year.
The difference in the Murray/Michael Jackson case is that
California prosecutors are not charging Murray with violating a
controlled substances law. That's because propofol, the
anesthetic Murray is accused of giving to Jackson, is not a
controlled substance. The drug, administered intravenously, is
used to induce anesthesia and has rarely been abused as a
narcotic. Prosecutors instead allege Murray breached the
medical 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 if convicted.
Murray is also facing a wrongful death lawsuit filed by
Jackson's father ten months after prosecutors pressed criminal
charges. The vast majority of medical malpractice cases are
civil lawsuits filed by the victim or victim's family in which
the penalty is monetary damages rather than prison time.
THE STANDARD DEVIATION?
The cost of defending a criminal case can be significant.
In civil suits, doctors' legal bills are usually covered by
their malpractice insurance plans, which don't extend to
criminal charges. The AMA has argued that the civil tort system
is sufficient for holding doctors accountable for negligent or
The legal standards in civil and criminal negligence cases
are similar. Both Jackson's family and prosecutors must prove
that Murray deviated from accepted medical practices, though
the standard for a criminal conviction is "much greater," than
the one for civil cases, said attorney Ed Chernoff, who
Chernoff declined to discuss the Murray case specifically,
but he is expected to argue that Michael 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 that Murray's conduct actually
caused Jackson's death.
The Murray case unfolds against a backdrop of an epidemic
in prescription-drug overdoses. From 1999 through 2006, the
number of fatal overdoses due to prescription painkillers more
than tripled nationally, from 4,000 to 13,800, according to
2009 data from the Centers for Disease Control and Prevention.
Florida, which has earned a reputation as the epicenter of
prescription drug abuse, has indicted dozens of doctors and
clinic operators for unnecessarily prescribing pills. The
governor and attorney general have launched a strike force to
address the problem, and under new legislation, Florida doctors
can no longer dispense pills at clinics, with certain
exceptions for cancer and hospice patients. "Our marching
orders are that we will not turn down a pill case coming into
this office," said statewide prosecutor Nick Cox.
Critics say the scorched earth assault glosses over tough
questions doctors face, especially physicians who treat chronic
pain patients. Because pain is subjective, doctors must rely on
the accounts of patients who are sometimes addicted and
drug-seeking. "Doctors are not supposed to be law enforcement
agents. They're supposed to believe their patients," said Diane
Hoffmann, a law professor at the University of Maryland School
of Law and an expert in health care law.
Murray's lawyer Chernoff said it is a mistake to criminally
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 their treatment plans out of fear of facing time
(Reporting by Terry Baynes)
(An earlier version misstated the name of the Drug