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When is medical negligence a crime?

Medicine is not an exact science. A wealth of factors determine the quality of care provided to patients, which strictly depend on level of experience of the health professional, the speciality in which he/she operates, the uniqueness of each case and the condition that patient is suffering from. There is no patient equal to another. Forming a diagnosis of complex pathologies is a multifactorial process that allows the doctor to develop a suitable care relative to the patient’s general health and age.
Now, we all believe that doctors provide care in good faith with no intent to hurt and certainly not to kill the patient. However, inevitably human errors occur. Furthermore, not all patients respond equally to therapy with unexpected complications occatsionally arising, that may potentially lead to patient injury or even death.
If the responsibility of a failed patient outcome lies within the care provided, when does medical malpractice become a criminal act? Some define a criminal act when negligence is so gross that it deserves conviction and punishment.

US Neurosurgeon Dr Christopher Duntsch 

In the United States, there has been a rare case of life sentence for which a neurosurgeon, Dr Christopher Duntsch from Dallas, Texas, has been convicted last February 2017.

The trial involved a patient who sued Dr Duntsch for a failed spinal fusion surgery to repair a degenerated disk that left the elderly woman with severe pain from the hardware due to its misplacement in the muscle tissue. During surgery, various nerve roots were severed and screws were misplaced on the incorrect side of her spine. Since the surgery, the patient requires prolonged use of a wheel chair.
To charge Dr Duntsch, the prosecution needed to prove that his surgical treatment was beyond the accepted general standard of care and that he was aware of the potential harm he could have caused, but carried the procedure nonetheless. The single case at the basis of this trial was corroborated by a series of cases operated by Dr Duntsch. They include dozens of patients, of which there were over 20 with chronic pain, 10 requiring revision surgery, four with spinal cord injuries leading to paraplegia or partial paralysis, and two deaths. A patient died from massive blood loss after surgery, another following an artery injury causing a fatal stroke, others remained with paraplegia, one had rupture of the oesophagus, all of which occurred in only a two year period of practice.

The Texas Medical Board temporarily suspended his license in June 2013 and then revoked it in December. Dr Duntsch has been jailed in July 2015 on five counts of aggravated assault causing serious bodily injury and one count of causing injury to an elderly person.
Dr Duntsch received his MD and PhD at the University of Tennessee Health Science Center where he also led a laboratory of stem cell research with multimillion patents and research funding. His career presents dubious elements along with several detrimental patient outcomes, all of which contributed to form a sentence by the jury within only 4 hours of meeting. He also had a history of substance abuse and arrests.

Why did this all happen despite repetitive surgical failures? Should the institutions in which Dr Duntsch was practicing be made accountable for the damage caused to his patients? How can it be explained that during his time of surgical residency and subsequently neurosurgical practice, Dr Duntsch could operate freely despite the significant number of cases of surgical failure, indicative of poor neurosurgical skills? Dr Carlos Bagley, the neurosurgeon who acted as expert witness, argued that “This was a complete and utter failure of the entire system of checks and balances for patient safety.” However, this argument was not sufficient for the prosecutor to liberate Dr Duntsch from his culpability. To the jury, the prosecutor stated that the failures arising from these surgeries should not be considered a medical error. In fact, the awareness of Dr Duntsch of the high risk to harm his patients during his practice, including his lack of intervention to alleviate pain after the surgery made him accountable for the detrimental outcomes. 

Australian Cases

In Australia, in over 157 years only two doctors have been convicted of manslaughter since the case of Dr Valentine, responsible of the death of a school teacher, Mr Swifte for mistakenly mixing the wrong medication to treat constipation. Dr Valentine remains the first doctor to be ever charged for manslaughter in 1842.

In Queensland the case of Dr Patel, a surgeon working in Bundaberg Hospital, has provided a prominent, public example on the controversies surrounding the cases of medical negligence with potential implications of manslaughter. In Australia manslaughter is acted upon differently in our States and Territories. Specific to QLD the criminal code states that: “A person that unlawfully kills another under such circumstances as not to constitute murder is guilty of man slaughter”. The code also states that “every person who undertakes to administer surgical or medical treatment to any other person, or to do another lawful act which is or may be dangerous to human life and health, to have reasonable skill and to use reasonable care in doing such act”.
Patel’s surgeries lead to the death of three patients and warranted a conviction in 2010 for three counts of manslaughter and one count of grievous bodily harm for which he has been sentenced to seven years of jail. Subsequently in 2012, all convictions were withdrawn by the High Court of Australia. A retrial for one of the manslaughter counts resulted in acquittal. Dr Patel pleaded guilty to fraud and the outstanding charges were dropped. In 2015, Dr Patel was barred from practising in Australia.
The Patel case has become so prominent to destabilise the medical profession. The media divulgating the legal process has put enormous pressure to push for punishment of Dr Patel for the wellbeing of the patient community. The case also raised a huge concern by practicing doctors for the risk of being convicted to manslaughter in case of accidental failure of care.

Lex Medicus Services - Potential Medical Negligence

Lex Medicus can assist with Medical Negligence cases. These cases are complex and require a thorough study of Clients’ file(s) and reports, a meticulous documentation of the facts and the acknowledgement of the present standard of care. In most cases an international literature research is required in support of the case findings. 

With 30 years of experience as an orthopaedic surgeon and having completed his Masters in Health and Medical Law, Lex Medicus Director Mr Thomas Kossmann has a strong understanding of both medicine and law. Mr Kossmann leads a world-class team of health professionals at Lex Medicus, experienced in providing thorough research, review and opinion on cases involving possible medical negligence. Our Client Relationship Representative, Amy Wilson works with our clients to provide the appropriate medical specialist for the individual needs of each case. 

For further information, please contact Lex Medicus reception on: (03) 9827 8093 or
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