WhiteCoat

Criminalizing Society

Attribution: http://www.everystockphoto.com/photographer.php?photographer_id=14097

The criminalization of society continues.

Regular readers know that I strongly disagree with state efforts to criminalize the practice of medicine. See previous posts here, here, and here for a few. Two days ago I posted an article about a doctor who was criminally charged with providing excessive pain medications to patients who died (as I expressed concern about back in 2009). Now federal agents are arresting physicians for providing fraudulent or “unnecessary” care.

This isn’t concerning to anyone?

I have no problem with taking professional action against any medical practitioner who is a danger to the public. Well, I have a little problem. Some of the assertions of “dangerous” activities I have seen made by state licensing boards make me wonder whether the board members should be charged with a crime for incompetency. In one instance, a board was prepared to file a letter of reprimand against a physician because he didn’t order a CT scan on a patient with a headache. The reason? “This patient came to the hospital by AMBULANCE and you didn’t do enough.”  Action taken against license because a patient dialed 911.

I also don’t have a problem filing criminal charges against medical practitioners that break laws. Intentionally engage in fraud? You deserve what’s coming to you. Steal from patients? Go to jail.

However, throwing someone in jail for doing their job – even if they do their jobs poorly – just sends the wrong message and will lead to unintended consequences.

I’m not going to go on a long rant about this, but I wanted to illustrate how more and more professions are coming under a government attack because they allegedly don’t do their jobs appropriately.

Tarl commented about the case of the Italian scientists who were charged with manslaughter and sentenced to six years in jail because they failed to predict an earthquake that killed more than 300 Italian citizens. Prosecutors argued that the scientists offered “incomplete, imprecise and contradictory information” to the Italian citizens. As Tarl noted, scientists from around the world denounced the trial, noting that predicting earthquakes is impossible.
Think about the implications for Italian scientists in the future. Doing everything in their power to avoid a six year prison term in the future, the seismologists will now be encouraged to report to the media that an earthquake may occur and that things may not be safe every time that a truck without a muffler drives past the seismologists’ offices and shakes their equipment. Chicken Little, baby. If someone drops a cup of coffee, the sky must be falling. Run for the hills. In a few years, the population will be so sick of the false alarms that when the real earthquake does hit, they will have ignored the warning anyway.
But by criminalizing an inexact science, the buffoon Italian prosecutors have made Italy a safer place, right?

Then consider the case of attorneys for GlaxoSmithKline who were indicted for making false statements to the FDA when Glaxo was being investigated for promoting Wellbutrin for an off-label use. The in-house counsel hired a national law firm to help Glaxo respond to the FDA’s allegations. A year later, the government came after the attorney for obstruction of justice … for representing her client … alleging that the attorney had assisted Glaxo in furthering a cover-up or a crime. Even documents that are protected from discovery by the attorney-client privilege were forced to be turned over to the government.
How will the threat of criminal charges affect an attorney’s practice of criminal law? Go to jail if you defend your client too zealously? Be concerned about this, people. With the threat of criminal charges looming over attorneys who defend criminal clients, will clients really get the zealous representation to which they are entitled?

Finally, although not about employment, there is this Wall Street Journal story about how the North Carolina legislature has now made it a Class 2 misdemeanor (.pdf file) for a student to, “with the intent to intimidate or torment a school employee,” do such things as encourage others to post private, personal, or sexual information pertaining to the school employee; post an image of the school employee on the internet; repeatedly engage in e-mail or other transmissions to the school employee; or sign the school employee up for electronic mailing lists.
Take a picture of the teacher in public who is fondling a sixth-grader’s breasts? Even though the teacher is breaking the law and has no expectation of privacy, students may go to jail if they post the picture online or if they encourage others to do so. If the paparazzi hounds the same teacher for doing the same thing … that’s OK … I think.

Anyone every wonder why criminalization isn’t applied to the government officials when they allegedly don’t do their jobs appropriately? I was going to write someone in the North Carolina legislature an e-mail asking them about it, but I didn’t want to be breaking some other inane law they created.

What is happening to this country?

11 Responses to “Criminalizing Society”

  1. Art Fougner MD says:

    When all they have is a hammer, everything looks like a nail.

  2. ThorMD says:

    A lot of these fraud cases look pretty egregious to me. When docs and nurses go that far off the reservation, I don’t have problem with a crackdown. I’m a little embarrassed that our government hasn’t done more in the past to catch some of these ridiculous claims

    As for the State medical boards – I’m too afraid to publicly slam them lest they find out my true identity and decide to crack down on me for no good reason like they have done to so many others.

  3. Matt says:

    WC, you have a point – to an extent. But your standard seems to be that you don’t want criminal charges, you don’t want civil cases, you don’t want customer satisfaction surveys, etc.

    You want to hold doctors to one standard – the “does WC think it’s wrong” standard based solely on what HE knows about the case. You don’t seem to believe any other group can get it right.

    Your problem may be less with the systems we have designed to handle this than recognizing you may be wrong sometimes or may not know all the facts.

    • Tarl says:

      The point Whitecoat is making is that we are responding to the vagaries of reality (sometimes even the most competent person using his training and knowledge in the prescribed way can have a bad result) with criminal penalties.

      Whitecoat works in a field where every treatment has the potential of someone dying, and doesn’t like the fact that his best possible work may still land him in jail for manslaughter (or skid row for malpractice). We generally like to believe that criminal and civil penalties only attach for doing something wrong.

      In the case from Italy that I highlighted, reaction from the scientific world has been dumfounded disbelief. More specific details on what went down:
      http://www.nature.com/news/shock-and-law-1.11643

      Whitecoat likes to bemoan what’s happening to our country, but it’s not really local to the U.S. – it’s generalizing to western society worldwide.

      In the case of Italy, if they ever ask me a question in my professional capacity (which isn’t medical), I’m going to tell them to piss off, I refuse to reply on grounds that doing my job might get me thrown in jail.

      We expect such behavior from barbarian dictatorships (remember the Bulgarian nurses in Libya?), but we’re surprised when ostensibly civilized countries pull this kind of stunt.

      • Matt says:

        I get the claim he’s trying to make. The problem is that by the time you eliminate all the people that physicians don’t want to be able to hold them accountable, you’re left with policing by the individual who supposedly did the act or omission.

        The chance that the “best possible work” will land him in jail or on skid row is so infinitesimal as to be nonexistent.

    • WhiteCoat says:

      Same old untrue rhetoric.

      You know and I know that I never said that I don’t want civil cases. That’s a huge misrepresentation. I want a fair civil system. The current system is not fair.
      I’ve advocated a “loser pays” civil system. You just make up excuses why the US can’t follow the lead of the rest of civilized society in implementing it.

      I also never said that I don’t want customer satisfaction surveys. I only assert that the statistical methods used to compare the surveys need to be sound. Currently, they are nowhere close to being sound.

      And if you want to allow criminalization of every profession on its judgment calls, go for it. Costs and bureaucracy will skyrocket because few will be willing to leave decisions to judgment lest they lose their freedom. Society would be so well served, wouldn’t it?
      Let’s add prosecutors and judges to the list while we’re at it.

      This isn’t an issue of accountability and you know it. When we don’t scrutinize egregious acts of those holding us “accountable” we encourage those in power to continue acting egregiously.

      Your problems are that you lack both foresight and insight, that you are prone to confabulation, and that you obviously have little knowledge about some of the issues upon which you opine.

      • Matt says:

        Look, it’s not worth getting into, and I understand it’s hard to see it in yourself. You just did it again in your first paragraph with your use of “fair”.

        Love the last paragraph though.

      • DensityDuck says:

        You can tell when they know they haven’t got an argument, because out comes the thesarus.

  4. Shelby says:

    Anyone who believes that healthcare in the US is getting better is drinking koolaid that I wish I could drink before going to work.

    We have to jump through more hoops to get paid, are expected to run around like crazy to treat patients, many of whom aren’t really emergency patients. We get assaulted & at least in my hospital, aren’t allowed to press charges. And we get sued or charged with criminal charges. It just keeps getting worse.

    Is this healthcare reform?

  5. Jeff says:

    I could not agree with you more. I have been saying for years (at first 100% joking) that slowly, every day, Russia gets more like the USA and the USA gets more like [the old] Russia. It’s no longer a joke, it’s true and very scary. More and more I am seeing people who make total, 100% mistakes that in years past might result in a lawsuit now resulting in criminal charges. An amusment ride worker by total accident does something that severly injures a rider and he is charged with a felony. An off duty police officer by total accident has the gun he is 100% legally carrying slip from his pocket and discharge – no one, thankfully, is hurt but he is charged and convicted. Another police officer drives through a red light with lights and siren activated, hits another car, and stands trial – thank God, the sain jurey found her not guilty. It just goes on and on. I am very, very scared for this country in so many ways and it just gets worse and worse and worse. People are charged with crimes for posting words or a photo on Facebook. What has happened to our country? I’m starting to feel like one of those anti-government nuts I used to laugh at. I’m no longer laughing.

  6. DdR says:

    Things are definitely getting out of hand. Things have gotten to the point that my husband and I have begun talking about retiring elsewhere.

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