As unfair as that is for physicians, the implications are more ominous for patients. Malpractice litigation already encourages extra tests and procedures, driving up health care costs and posing unnecessary risks to patients. The threat of prosecution compounds the tendency to make decisions based on legal concerns instead of sound medicine. How can a patient rely on a doctor who's worried that his best advice could land him in prison?
Unwarranted prosecutions may encourage doctors to be dangerously aggressive or dangerously cautious. If monitoring a patient rather than hospitalizing her is criminal neglect, what doctor wouldn't call for the ambulance at the first sign of trouble? Given the risks that transfers pose to the frail elderly, such incentives could easily do more harm than good. Prudent physicians may even shun difficult cases, making it more difficult for the very sick to receive treatment.
The problem goes beyond the elderly. It's not uncommon for an obstetrician to tell a patient in the early stages of labor to wait at home for a few hours before going to the hospital. Like any human being, he could be wrong. If the patient or her child is injured, he might be sued or hauled before a professional board. That's part of the uncertainty of medicine. But what happens if his good-faith decision is prosecuted as criminal neglect? Once obstetricians realize their risk, pregnant women may be hospitalized at the first sign of labor, whether or not it's clinically indicated.
Or consider appendicitis, which is often difficult to diagnose. Since surgery and anesthesia always carry risks, we don't want doctors to start cutting up everyone with a bellyache. It's not unusual for doctors to take a "wait and watch" approach, and sometimes they wait too long. If the appendix bursts, the patient could get peritonitis, which is potentially fatal. In such a case, a patient or his family might sue for malpractice. They'll get an award only if they can prove that the physician's actions deviated from the accepted standard of care. But with the added threat of criminal charges, physicians might be more inclined to perform exploratory surgery rather than wait.
Breast cancer raises similar issues. When women have lumps, physical exams and mammograms are often equivocal. Based on the patient's history and his own clinical experience, a physician might say, "I think it's a cyst, not a tumor. Come back for another exam and mammogram in six months." Physicians already know they can be sued if a patient decides that her breast cancer should have been diagnosed sooner. But what would happen if prosecutors began charging such doctors with criminal neglect? More biopsies would be performed, causing needless fear, pain, and disfigurement.
As these scenarios suggest, the option that is least likely to attract a prosecutor's attention is not necessarily the one that's best for the patient. And while cases such as Einaugler's are still unusual, that fact makes them even harder to predict. Physicians can't know what conduct is illegal until the mug shots are taken.
Medicine is often as much art as science, and competent physicians disagree all the time. But prosecutors paint cases as black and white. If there's an unhappy result, a jury is asked to punish the bad guy. No doctor should be immune from paying for mistakes. But the distinction between honest errors and crimes must be based on a standard higher than a prosecutor's lust for publicity. Physicians should be allowed to practice without the threat of criminal liability lurking behind every decision.
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