"With no evil intent": The criminal prosecution of physicians for medical negligence

Journal of Legal Medicine

Volumn 22, Issue 4, 2001, Pages 467-499

  Filkins, James A ^a,b  

^a CITY OF CHICAGO   (United States)

^b City of Chicago ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CANCER PATIENT; CAUSE OF DEATH; COURT; CRIME; CYTOLOGY; DELIVERY; DRUG ABUSE; EUTHANASIA; GENERAL ANESTHESIA; HOMICIDE; MALPRACTICE; MEDICAL CARE; NEGLIGENCE; NURSING HOME; PAPANICOLAOU TEST; PATIENT CARE; REVIEW;

AMERICAN MEDICAL ASSOCIATION; HOMICIDE; HUMANS; MALPRACTICE; MEDICAL ERRORS; PHYSICIANS; UNITED STATES;

EID: 0035671193     PISSN: 01947648     EISSN: None     Source Type: Journal    
DOI: 10.1080/01947640152750937     Document Type: Review

References (303)

1. Commonwealth v. Franklin Pierce, 138 Mass. 165, 1884 WL 6544 at *1 (Mass. 1884) (Oliver Wendell Holmes, J.) (emphasis added).
2. Einaugler v. Supreme Court of the State of New York for the County of Kings, 918 F. Supp. 619, 621 (E.D.N.Y. 1996).
3. Id. End-stage renal disease is the late stage of the irreversible cessation of kidney function. KURT ISSELBACHER ET AL., HARRISON'S PRINCIPLES OF INTERNAL MEDICINE 1281 (13th ed. 1994).
4. Chemical peritonitis is an inflammation of the peritoneum (or tissue lining the abdomen) caused by a foreign irritant. HARRISON'S, supra note 3, at 1436.
5. Hemodialysis requires the surgical insertion of a catheter into an artery and another catheter into a vein. Blood from the artery enters the dialysis machine, where it is filtered and then returned to the body through the vein. Some form of vascular access is required. Often this is accomplished by an arteriovenous fistula, that is, the surgical union of an artery and a vein, which is accessible to a catheter. ALLEN R. NISSENSON ET AL., CLINICAL DIALYSIS 26-27 (2d ed. 1990).
6. HARRISON'S, supra note 3, at 1285. Dialysis requires approximately 9 to 12 hours per week equally divided into 3 or 4 sessions. Id. at 1283.
7. Id. at 1285.
8. Id.
9. Id.
10. Einaugler, 918 F. Supp. at 621.
11. HARRISON'S, supra note 3, at 1285.
12. Einaugler, 918 F. Supp. at 621. The particular brand of feeding solution used was Isocal. Id. at 625.
13. Id. at 621-22.
14. Id. at 622.
15. Id.
16. Two thousand cubic centimeters is the equivalent of two liters, or roughly one half gallon. THE WORLD ALMANAC AND BOOK OF FACTS 1999, at 610 (1998).
17. Einaugler, 918 F. Supp. at 622.
18. Id.
19. Id.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id. at 622-23.
25. Id. at 623.
26. Id.
27. Id.
28. Peritoneal lavage is a diagnostic technique in which the abdomen is rinsed with sterile saline or lactated Ringer's solution. The fluid is infused through a trocar over 15 to 20 minutes and then siphoned back for examination. JOHN BERNARD HENRY, CLINICAL DIAGNOSIS AND MANAGEMENT 485 (17th ed. 1984).
29. Antibiotics are administered in peritonitis to prevent infection and to decrease the incidence of abscess formation. Often surgical intervention is required as well. HARRISON'S, supra note 3, at 527.
30. Einaugler, 918 F. Supp. at 623.
31. Id. at 621.
32. Id. at 624. See N.Y. PENAL LAW § 120.20 (McKinney 1997); N.Y. PUB. HEALTH LAW § 12-b (McKinney 1990).
33. Pennsylvania Prosecutor Finds No Grounds for Charges Against Surgeon, AM. MED. NEWS, June 1, 1990, at 5.
34. Morton M. Kurtz, M.D., Criminalization of Medical Judgment, Resolution 223, Proceedings of the American Medical Association, Interim Meeting (Dec. 1993).
35. Criminalization of Health Care Decision-Making, Resolution 202, Proceedings of the American Medical Association (June 1995).
36. Criminal-Negligence Charge Rarely Filed Against Doctors, SEATTLE TIMES, Jan. 15, 1998, at A14 (citing the AMA).
37. Jodie Snyder, When Doctors Bury Mistakes, Criminal Charges May Follow, ARIZ. REP., Dec. 15, 1998, at A1.
38. Robert Pear, Group Asking U.S. for New Vigilance in Patient Safety, N.Y. TIMES, Nov. 30, 1999, at A1.
39. Bob Davis & Julie Appleby, Medical Mistakes 8th Top Killer, USA TODAY, Nov. 30, 1999, at 1. Medical errors causing death are not limited to clinical mistakes. For example, a labeling error by the Regional Organ Bank of Illinois caused a heart to be sent to a patient awaiting a kidney transplant. The patient subsequently died.
40. Scott Forner, Kidney-Heart Tragedy: Ice Ruined the Label, CHI. SUN-TIMES, June 15, 2000, at A1.
41. NANCY W. DICKEY, M.D., AMA ON IMPROVING PATIENT SAFETY (AMA Statement, Nov. 11, 1999).
42. Moving Fast on Patient Safety, N.Y. TIMES, Dec. 8, 1999, at A30.
43. Id. The report and the high-level political reaction to it have spurred a flood of commentary. For example, the Chicago Sun-Times devoted a three-part series to the problem. Jim Ritter, Medical Mistakes Kill Thousands Each Year, CHI. SUN-TIMES, Jan. 23, 2000, at A1. The president of the College of American Pathologists has observed that the report also has stimulated a renewed interest in the autopsy as a means of quality control.
44. Paul Bachner, Doing the Right Thing About Autopsies, CAP TODAY, June 2000, at 11.
45. NANCY W. DICKEY, M. D., CREATING A CULTURE OF PATIENT SAFETY (AMA Statement, Jan. 26, 2000).
46. Thomas Maier, More Doctors Face Prosecution: Crimes Charged in Cases of Deadly Error, NEWSDAY, Apr. 18, 1995, at A35.
47. Malpractice or Homicide?, WASH. POST, Apr. 18, 1995, at A16.
48. Malpractice or Homicide?, WASH. POST, 1995, A16. Id.
49. Utah v. Warden, 813 P.2d 1146, 1154 (Utah 1991) (Stewart, J., dissenting).
50. See, e.g., id. at 1150 (discussing the applicable mens rea).
51. Id. at 1154. If there is competent conflicting expert testimony that the defendant physician's actions were medically appropriate, then arguably there must be reasonable doubt. See, e.g., Kansas v. Naramore, 965 P.2d 211, 223-24 (Kan. App. 1998); infra notes 185-226 and accompanying text.
52. See, e.g., infra notes 58-75, 146-59 and accompanying text.
53. There have been 15 or so other cases in the past 20 years in which physicians have been charged with criminal medical negligence, but these cases have not become the subjects of appellate court decisions because the charges were dismissed, the physician was acquitted, or the case has not yet reached an appellate court. See, e.g., Alexander McCall Smith, Criminal or Merely Human?: The Prosecution of Negligent Doctors, 12 J. CONTEMP. HEALTH L. & POL'Y 131 (Fall 1995) (discussing the evolution of criminal negligence);
54. Paul R. Van Grunsven, Medical Malpractice or Criminal Mistake? - An Analysis of Past and Current Criminal Prosecutions for Clinical Mistakes and Fatal Errors, 2 DEPAUL J. HEALTH CARE L. 1 (Fall 1997) (discussing a variety of cases);
55. Kara M. McCarthy, Doing Time for Clinical Crime: The Prosecution of Incompetent Physicians as an Additional Mechanism to Assure Quality Health Care, 28 SETON HALL L. REV. 569 (1997).
56. Commonwealth v. Thompson, 6 Mass. 134, 1809 WL 1120 (Mass. 1809).
57. The author undertook this search in the Westlaw "allcases" database using the following Boolean searches: 203 k74 & physician doctor & criminal!; 203 k74 & physician doctor & negligence; "physician! doctor! surgeon! +s "criminal conviction"; physician doctor surgeon dentist & "negligent homicide" "reckless endangerment." This last search also was repeated in the Westlaw "allnews" database. This skews the research in favor of more recent cases. Westlaw contains virtually all reported state and federal appellate cases going back to the eighteenth century. However, Westlaw's "allnews" database, while comprehensive, only goes back to about 1984. Cases before 1984 that were publicized, but for whatever reason did not become the subject of an appellate opinion, were not identified.
58. See, e.g., WEBSTER'S NEW COLLEGIATE DICTIONARY 721 (9th ed. 1986) (defining malpractice). "[A] dereliction from a professional duty or a failure to exercise an adequate degree of care in rendering service." Id.
59. See also BLACK'S LAW DICTIONARY 959 (6th ed. 1990) (providing another definition of malpractice). "Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services." Id.
60. Cases in which physicians were prosecuted because the authorities believed they committed euthanasia are considered. See infra notes 185-226 and accompanying text.
61. A recent example of the latter is the case of Dr. Richard Schmidt, a physician in Lafayette, Louisiana, who injected his lover, Janice Trahan Allen, with blood contaminated with HIV and hepatitis under the pretext of giving her a B-12 vitamin injection. Ms. Trahan had been pressuring Dr. Schmidt to divorce his wife and marry her. She allegedly threatened to expose him if he did not agree to the divorce and remarriage. Ms. Trahan subsequently became HIV and hepatitis-C positive. On October 23, 1998, Dr. Schmidt was convicted of attempted murder and sentenced to the maximum of 50 years. Lawyers Appeal Doctor's Conviction of Injecting Girl with AIDS Virus, LAKE CHARLES AM. PRESS, Feb. 24, 2000, at 3A.
62. 410 U.S. 113 (1973). However, cases in which physicians have been prosecuted for negligently performing legal abortions are considered. See infra note 288.
63. United States v. Billig, 26 M.J. 744, 746-47 (1988). Dr. Billig also was convicted of 12 specifications of willful dereliction of duty, four specifications of negligent dereliction of duty, and two specifications of dereliction of duty through culpable inefficiency. Id.
64. Id.
65. Id. at 750-57.
66. Id. at 760.
67. Id. at 750-52.
68. Id. at 754.
69. Id. at 756.
70. Id. at 757 n.13.
71. Id. at 759.
72. Id.
73. Id. (emphasis added).
74. Id.
75. Id. at 760.
76. Id.
77. Id. at 761.
78. Id. at 757 (citing 10 U.S.C. § 866).
79. Id. at 760-61.
80. See infra notes 102-45 and 146-59 and accompanying text (discussing the Warden and Einaugler cases).
81. Pennsylvania v. Youngkin, 427 A.2d 1356, 1359 (Pa. Super. Ct. 1981).
82. Id. Barbiturates are a class of drugs that for many years were used as sedative-hypnotics. They act by depressing, or sedating, the central nervous system, including central nervous control of the respiratory system. Barbiturates largely have been replaced by benzodiazepines (for example, Valium), which are safer. GOODMAN & GILMAN'S THE PHARMACOLOGICAL BASIS OF THERAPEUTICS 373-77 (Joel G. Hardman & Lee E. Limbird eds., 9th ed. 1996).
83. Youngkin, 427 A.2d at 1359.
84. Id. at 1358.
85. Id. at 1360.
86. Id. at 1361.
87. Id.
88. Id.
89. Id. at 1359.
90. Id.
91. Id. at 1359-60 (citing Pennsylvania v. Skufca, 321 A.2d 889, 894 (Pa. 1974)).
92. Id. at 1361.
93. Howard Pankratz, Doctor Faults Verbrugge in Death, DEN. POST, Sept. 16, 1995, at B3.
94. Howard Pankratz, Doctor Faults Verbrugge in Death, DEN. POST, 1995, B3. Id.
95. Id. The parties in the case disputed the cause of the child's death. Dr. Verbrugge's attorney, Gary Lozow, argued that the child died from malignant hyperthermia. Dr. Thomas Henry, Chief Medical Examiner for Denver, Colorado, agreed, as did two other medical experts. The prosecution argued that a clogged airway and overheating caused the child's carbon dioxide level to rise to a fatal level. Id.
96. Howard Pankratz, Witness: Verbrugge Said He Corrected "Nodding Off," DEN. POST, Oct. 5, 1996, at B3.
97. Sue Lindsay, Jurors Will Hear How Doctor Fell Asleep During Four Surgeries, ROCKY MT. NEWS, May 17, 1996, at 20A.
98. Pankrantz, supra note 91, at B3.
99. Lindsay, supra note 92, at 20A.
100. Id.
101. Colorado v. Verbrugge, No. 98CA0262, 1999 WL 417965 at *1 (Colo. App. June 24, 1999).
102. Id.
103. Id.
104. Id.
105. Id. at *2.
106. Id. at *1.
107. 813 P.2d 1146 (Utah 1991).
108. Cf. Utah v. Warden, 784 P.2d 1204 (Utah App. 1989).
109. Warden, 813 P.2d at 1148.
110. Id.
111. Id.
112. Warden, 784 P.2d at 1205.
113. Warden, 813 P.2d at 1148.
114. Warden, 784 P.2d at 1205.
115. Id.
116. Id.
117. Id.
118. Id.
119. Id.
120. Id.
121. Id.
122. Id.
123. Warden, 813 P.2d at 1148.
124. Id. at 1148-49.
125. Id. at 1148.
126. Warden, 784 P.2d at 1205-06.
127. Id. at 1206.
128. Id.
129. Id.
130. Id.
131. Id.
132. Id.
133. Id.
134. Id.
135. Id.
136. Warden, 813 P.2d at 1149.
137. Warden, 784 P.2d at 1206. Hyaline membrane disease occurs most commonly in premature infants because of a deficiency of pulmonary surfactant. Surfactant is the chemical that decreases the surface tension within the alveoli, or individual respiratory units of the lung, to facilitate expansion of the lungs during breathing. J. THOMAS STOCKER & LOUIS P. DEHNER, 1 PEDIATRIC PATHOLOGY 533 (1992).
138. Warden, 784 P.2d at 1206.
139. Id. at 1209.
140. Id. (Greenwood, J., concurring and dissenting).
141. Warden, 813 P.2d at 1151.
142. Id.
143. Id.
144. Id.
145. Id.
146. Id. at 1152.
147. Id.
148. Id. at 1148.
149. Id. at 1152.
150. Id.
151. People v. Einaugler, 618 N.Y.S.2d 414 (N.Y. App. Div. 1994).
152. Id. at 415.
153. Einaugler, 918 F. Supp. at 625.
154. Id.
155. Linda Oberman, Defining Clinical Crime, AM. MED. NEWS, Sept. 6, 1993, at 2.
156. Einaugler, 918 F. Supp. at 627.
157. Id.
158. Id.
159. Id.
160. Id. (emphasis added).
161. Id. at 630.
162. Id. at 635.
163. Id.
164. Malpractice, supra note 45, at A16. New York Governor George Pataki eventually commuted Dr. Einaugler's sentence to 52 days of community service. Snyder, supra note 31, at A1.
165. United States v. Wood, 207 F.3d 1222, 1226 (10th Cir. 2000).
166. Id.
167. Id.
168. Id.
169. Id. at 1226-27.
170. Id. at 1227.
171. Id.
172. Id.
173. Id.
174. Id.
175. Id.
176. Id.
177. Id. at 1234.
178. Id. at 1232.
179. Id.
180. Id.
181. Id.
182. Id.
183. Id. at 1233.
184. Id. at 1234.
185. Id. at 1237.
186. Id. at 1235-36.
187. Id. at 1236.
188. Id. "No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense used. Such ultimate issues are matters for the trier of fact." FED. R. EVID. 704(b).
189. Wood, 207 F.3d at 1237.
190. State v. Naramore, 965 P.2d 211, 212-13 (Kan. App. 1998).
191. Id. at 213.
192. Id.
193. Id.
194. Id. Morphine is a drug derived from opium that is especially effective in alleviating pain, although it produces sedation and respiratory depression among other side effects. GOODMAN & GILMAN, supra note 77, at 527-29.
195. Id.
196. Id.
197. Id. at 215. Versed is the trade name for midazolam, one of the benzodiazepines, or drugs used as anti-anxiety agents or sedative-hypnotics. GOODMAN & GILMAN, supra note 77, at 373. Fentanyl is a synthetic opioid 80 times more potent than morphine as a painkiller. Id. at 543.
198. Nammore, 965 P.2d at 215.
199. Id.
200. Id.
201. Id. Narcan is the trade name for naloxone, an opioid antagonist, that is, an antidote to drugs such as morphine and Fentanyl. GOODMAN & GILMAN, supra note 77, at 549.
202. Nammore, 965 P.2d at 215.
203. Id.
204. Id.
205. Id.
206. Id.
207. Id.
208. Id.
209. Id. at 216.
210. Id. Coumadin is the trade name for warfarin, an oral anti-coagulant that prevents bloodclotting by blocking Vitamin K. GOODMAN & GILMAN, supra note 77, at 1347-48.
211. Naramore, 965 P.2d at 216.
212. Id.
213. Id. Norcuron is the trade name for vecuronium, an intermediate acting neuromuscular blocking agent. GOODMAN & GILMAN, supra note 77, at 182.
214. Nammore, 965 P.2d at 216.
215. Id.
216. Id. at 217.
217. Id.
218. Id.
219. Id.
220. Id.
221. Id.
222. Id. at 219-20.
223. Id. at 220-21.
224. Id.
225. Id.
226. Id. at 223.
227. Id. at 218. The court noted that neither party requested such instructions. Id. Chief Judge Brazil, in his dissenting opinion, argued forcefully that such instructions should have been given, and for that reason, he would have reversed and remanded for a new trial. Id. at 227-28 (Brazil, C.J., dissenting). "There is a real possibility that had the jury been instructed on a doctor's responsibility to make decisions concerning his or her patients, the jury would have returned a different verdict." Id.
228. Id. at 223.
229. Id.
230. Id. at 223-24.
231. Id. at 224.
232. David Doege, Company Charged with Reckless Homicide, MILW. J. SENTINEL, Apr. 13, 1995, at 1A.
233. David Doege, Company Charged with Reckless Homicide, MILW. J. SENTINEL, 1995, 1A. Id.
234. David Doege, Company Charged with Reckless Homicide, MILW. J. SENTINEL, 1995, 1A. Id.
235. David Doege, Company Charged with Reckless Homicide, MILW. J. SENTINEL, 1995, 1A. Id.
236. David Doege, Company Charged with Reckless Homicide, MILW. J. SENTINEL, 1995, 1A. Id.
237. David Doege, Company Charged with Reckless Homicide, MILW. J. SENTINEL, 1995, 1A. Id.
238. David Doege, Company Charged with Reckless Homicide, MILW. J. SENTINEL, 1995, 1A. Id.
239. David Doege, Convicted Pap Smear Lab Files Another Appeal, MILW. J. SENTINEL, Dec. 27, 1995, at 3A.
240. David Doege, Convicted Pap Smear Lab Files Another Appeal, MILW. J. SENTINEL, 1995, 3A. Id.
241. David Doege, Laboratory to Pay $20,000 Fine, MILW. J. SENTINEL, Feb. 23, 1996, at 1A.
242. David Doege, Laboratory to Pay $20,000 Fine, MILW. J. SENTINEL, 1996, 1A. Id.
243. David Doege, Laboratory to Pay $20,000 Fine, MILW. J. SENTINEL, 1996, 1A. Id.
244. Chem-Bio Receives Maximum Penalty in Pap-Smear Case, WALL ST. J., Feb. 23, 1996, at B10.
245. Klvana v. State of California, 911 F. Supp. 1288, 1291 (C.D. Cal. 1995).
246. Id. at 1292.
247. People v. Klvana, 15 Cal. Rptr. 2d 512, 515 (Cal. App. 1992).
248. Id.
249. Id.
250. Id.
251. Id.
252. Id.
253. Id.
254. Id. at 516.
255. Id. at 516, n.7.
256. Id. at 516.
257. Klvana, 911 F. Supp. at 1292.
258. Id. at 1292-93.
259. Meconium is the infant's first stool and consists of gastrointestinal secretions produced while the infant is still in the uterus. If the amniotic fluid is meconium stained it indicates that the infant has eliminated the meconium in utero and may have aspirated it. This can cause respiratory distress and even death. See STOCKER & DEHNER, supra note 132, at 545.
260. Klvana, 911 F. Supp. at 1293.
261. Id.
262. Id.
263. Id.
264. Klvana, 15 Cal. Rptr. 2d at 527.
265. Id. at 526.
266. Klvana, 911 F. Supp. at 1299.
267. Franklin Pierce, 1884 WL 6544, at *9.
268. Id. at *10.
269. Sorting out the applicable mens rea in the context of a criminal prosecution for medical negligence can be confusing because of the overlap between terms such as recklessness and negligence. Criminal negligence requires a more serious departure from the reasonable standard of care than does civil negligence. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 113 (2d ed. 1995). "The concepts of 'depraved heart' and 'reckless and wanton, and a gross deviation from a reasonable standard of care' are functionally equivalent." Wood, 207 F.3d at 1228. However, the distinctionbetween criminal negligence and recklessness lies not in the degree of the defendant's deviation from the standard of care - it is a gross deviation in either case - but in the defendant's state of mind. DRESSLER, supra, at 116. Criminal negligence is the disregard of a substantial and unjustifiable risk of which the defendant should have been aware, but was not. Id. (emphasis added). Recklessness is the disregard of a substantial and unjustifiable risk of which the defendant was aware. Id. (emphasis added). Recklessness requires the defendant to be subjectively at fault. The defendant must have known that he or she was taking a substantial and unjustifiable risk, but ignored the risk and continued the dangerous conduct. Id. To the contrary, in criminal negligence, the defendant's risk-taking is inadvertent. Id.
270. Paul Monks, Frankly My Dear, I Don't Give a Damn, 36 MED., SCI. & LAW 185 (Oct. 1999). The criminal prosecution of physicians for medical negligence is not unique to the United States. See, e.g., Regina v. Adomako, 3 All E.R. 79 (H.L. 1994) (a notable case from Great Britain).
271. Billig, 26 M.J. at 758.
272. Id.
273. Id.
274. Id.
275. Id. at 761.
276. Id.
277. Youngkin, 427 A.2d at 1367.
278. Id.
279. Id. at 1361.
280. Id. at 1359-60.
281. Lindsay, supra note 92, at 20A.
282. Pankrantz, supra note 88, at B3.
283. Id.
284. See, e.g., Youngkin, 427 A.2d at 1361; Pankrantz, supra note 88, at B3.
285. Warden, 813 P.2d at 1149.
286. Id. at 1152.
287. Einaugler, 918 F. Supp. at 625.
288. Id. at 631.
289. Id.
290. Wood, 207 F.3d at 1231. As noted earlier, potassium in some form and dose was medically indicated. Id. The pauses in Dr. Wood's resuscitative efforts that the government found so "nefarious" were necessary to permit the electrocardiogram to give an accurate reading. Id. Continuing with the theme of a corrupt motive, a Palm Beach County, Florida grand jury recently indicted Dr. Denis Deonarine with one count of first degree murder in the prescription drug overdose death of a patient, Michael Labzda, and 78 counts of defrauding Medicare to pay for OxyContin. Bob Markey, Doctor Charged with Murder: No Bail in OxyContin Case, JUPITER COURIER, Aug. 1, 2001, at Al. OxyContin is the trade name for oxycodone, a controlled release synthetic opiate, used to treat pain in cancer patients. Labzda died after crushing and snorting Oxy Contin pills that Dr. Deonarine had prescribed for him. Prosecutors brought the first degree murder charge alleging Labzda died during the commission of a felony, drug trafficking. Prosecutors also noted that four other patients of Dr. Deonarine had died of OxyContin overdoses and that Dr. Deonarine sometimes failed to perform adequate examinations before prescribing the drug. Id.
291. Naramore, 965 P.2d at 215, 217.
292. Warden, 813 P.2d at 1149.
293. A San Francisco physician, Bruce Saul Steir, was charged with second degree murder after a botched second trimester abortion led to the death of his patient, Sharon Hamptlon. Raymond Smith, Doctors on Trial, PRESS-ENTERPRISE (Riverside, Cal.), Feb. 1, 1998, at Al. Steir performed the abortion on Ms. Hamptlon, who was five months pregnant, at an abortion clinic in Moreno Valley in Riverside County, California. After Dr. Steir completed the procedure, he left the clinic to return to San Francisco. Ms. Hamptlon's mother took her home that afternoon, but by the time they arrived home Ms. Hamptlon had become unconscious. She died before her mother could reach a hospital. An autopsy disclosed that Ms. Hamptlon bled to death from a perforation of her uterus that occurred during the abortion. Prosecutors claimed, based on the testimony of a nurse in attendance at the abortion, that Dr. Steir knew he had perforated the uterus, but sent Ms. Hamptlon home rather than to a hospital. Jaxon Van Derbeken, Guilty Plea Entered in Fatal Abortion Trial, S.F. CHRON., Apr. 7, 2000, at A7. Dr. Steir was on probation with the California Medical Board because of a series of problems that had arisen in other abortions that he had performed. Although the terms of Dr. Steir's probation required him to have a mentor physician in attendance while performing abortions, he did not have one present during the abortionhe performed on Ms. Hamptlon. Smith, supra, at Al. On April 5, 2000, Dr. Steir pled guilty to involuntary manslaughter and was sentenced to one year in jail. Jeanette Steele, Jailed Doctor to Be Freed Soon: Regrets Death, Not Years of Doing Abortions, PRESS-ENTERPRISE (Riverside, Cal.), Sept. 15, 2000, at Al. Dr. Steir was released in September of 2000 after the court suspended six months of his sentence in exchange for community service and credited him with a few additional weeks for good behavior. Dr. Steir and his attorneys contended that the California Medical Board and antiabortion advocates encouraged his prosecutionfor political reasons. All Things Considered: Murder or Malpractice (NPR radio broadcast, Jan. 6, 1999). A study undertaken by the American Civil Liberties Union concluded that Dr. Steir had been treated more harshly than physicians in other specialties who had performed negligent acts and that the CaliforniaMedical Board had spurred antiabortion proponents to seek Dr. Steir's prosecution. Raymond Smith, Abortion Doctor Victim of Bias, PRESS-ENTERPRISE (Riverside, Cal.), May 25, 2000, at B1. In New York, a jury convicted Dr. David Benjamin (a.k.a. Ely as Bonrouhi) of second degree murder following the death of his patient, Guadalupe Negron. Negron v. New York, 638 N.Y.S.2d 977, 979 (N.Y App. Div. 1996). Ms. Negron, who was 20 weeks pregnant, bled to death from a perforated uterus following an abortion performed by Dr. Benjamin. Id. Dr. Benjamin caused a four by one inch laceration in Ms. Negron's uterus because he had failed to dilate her cervix sufficiently to allow passage of the fetus. New York v. Benjamin, 705 N.Y.S.2d 386, 386 (N.Y. App. Div. 2000). Ms. Negron bled extensively in the recovery room, but Dr. Benjamin failed to monitor her. Id. The court sentenced Dr. Benjamin to 25 years to life. Negron, 638 N.Y.S.2d at 979. Dr. Benjamin had a long history of medical misconduct and, at the time of Ms. Negron's abortion, his license to practice medicine had been revoked, although the revocation had been stayed pending a hearing. Id. at 978-79. See also Schram v. Herkimer Mem. Hosp., 496 N.Y.S.2d 577 (N.Y. App. Div. 1985) (an earlier, civil negligence case involving Dr. Benjamin, then known as Elyas Bonrouhi). Subsequently, Dr. Benjamin's license was revoked. Negron, 638 N.Y.S.2d at 979. In a very brief opinion, the appellate court upheld Dr. Benjamin's conviction and sentence concluding that Dr. Benjamin "consciously disregarded a grave and very substantial risk of death under circumstances evincing a depraved indifference to human life." Benjamin, 705 N.Y.S.2d at 386-87.
294. See supra notes 102-45, 240-61 and accompanying text.
295. Dr. Patrick Chavis, a Los Angeles, California area obstetrician/gynecologist, had his license revoked as the result of his negligent care of three liposuction patients, one of whom died. Julie Marquis, Doctor's License Is Suspended, L.A. TIMES, June 20, 1997, at B1. Tammaria Cotton bled to death in Dr. Chavis' office following liposuction while Dr. Chavis returned to his home to check on another liposuctionpatient who was recovering there alone. Id. The Chavis case, along with the death of another liposuction patient who died after 11 hours of liposuction surgery performed by Dr. W. Earle Matory, prompted the California Medical Board to investigate the practice of cosmetic surgery in California. Julie Marquis, Medical Board Forms Panel to Probe Cosmetic Surgery, L.A. TIMES, July 31, 1997, at A12. The entry of many nonspecialists, such as Chavis, into cosmetic surgery caused serious concern. Id. Dr. Chavis, for example, "learned" how to perform liposuction in a four-day course. Julie Marquis, Doctor Becomes Symbol in Affirmative Action Debate, L.A. TIMES, Sept. 2, 1997, at A1. Although no criminal prosecution followed the actions of Dr. Chavis or Dr. Matory, Dr. Anthony Pignataro was not so fortunate. In 1998, Dr. Pignataro, a Buffalo, New York, plastic surgeon, pled guilty to criminally negligent homicide in causing the death of his patient, Sarah Smith. Dave Condren, Ex-Doctor Gets 6 Months for Death, BUFF. NEWS, Aug. 7, 1998, at Cl. Mrs. Smith, 26, suffered a fatal heart attack while undergoing breast enlargement surgery in Dr. Pignataro's office. Id. The court sentenced Dr. Pignataro to six months in jail, a $5,000 fine, 250 hours of community service, and five years probation. Id.
296. See supra notes 240-61 and accompanying text, and note 288.
297. Van Derbeken, supra note 288, at A7.
298. See supra notes 102-45, 240-61 and accompanying text, and note 290.
299. See supra notes 102-59, 240-61 and accompanying text, and notes 288, 290.
300. Naramore, 965 P.2d at 223.
301. Franklin Pierce, 1884 WL 6544 at *9.
302. Id. at 225 (Brazil, C.J., dissenting). This would require a legislative act in most jurisdictions. Id.
303. Id. at 224 (Brazil, C.J., dissenting).