The WSJ Law Blog reports that there’s a new problem on the horizon for doctors who have bad results.  No longer can they limit their whining to the trauma of facing a potential medical malpractice suit.  Now they have something even worse to worry about.

Michael O’Keefe, the D.A. for Cape Cod, is apparently pushing the criminal envelope in this area that’s typically left to tort law. O’Keefe has filed an indictment charging Dr. Rapin Osathanondh, a research associate at the Harvard School of Public Health, with manslaughter charge after an abortion he performed last year ended in the death of Laura Hope Smith, a 22-year-old woman.

It raises a very interesting question.  When does the level of professional neglect reach the point of criminal conduct?  As crimes have expanded well beyond intentional acts to reach conduct that is reckless, sometimes even negligent, why should this be limited to some people and not others, such as physicians?

O’Keefe, the D.A., told the Globe that the indictment came after an investigation by local and state police, and the Massachusetts Board of Registration in Medicine found Osathanondh’s conduct to be “willful, wanton, and reckless.” Osathanondh, 65, resigned his medical license in February.

“Suffice it to say, there was an inattention to the kinds of procedures of a lifesaving nature that one would expect in a place where an operation with anesthesia is being performed,” O’Keefe said. “There was nobody monitoring her, long enough to result in her death. There were a number of other shortcomings that make up the willful, wanton, and reckless conduct.”

Other than characterizing the neglect with particularly harsh words, there’s nothing particularly notable about what happened here that couldn’t be said about many other instance of medical malpractice, perhaps even all such instances.  After all, nobody would remove the wrong leg, or leave a clamp in someone’s chest, if they were paying the level of attention we expect and demand from doctors. 

So where is the line between criminal neglect and civil neglect?  Simply repeating the words “willful, wanton and reckless” means nothing.  This wasn’t an intentional act.  It was a screw-up that resulted in death.  Isn’t the same true of a drunk driver who ends up causing a fatal accident? 

I’m certainly not advocating that physicians should bear criminal liability for negligence in the operating room, but I am having a relatively hard time understanding why a drunk’s negligence should conceptually differ from a physician’s negligence.  If anything, the physician appreciates, whereas a drunk lacks the ability to do so, that his actions could easily result in the death or maiming of a human being should he not perform his function in a meticulous fashion.  If the physician fails to do so, having every opportunity to appreciate the consequences of his failure, and harm to a person results, is it less criminal than the negligence of a non-physician?

While one can distinguish the physician’s purpose for engaging in the conduct, to treat a patient, from the drunk’s purpose, to have a good time, is having far greater social utility, the doc’s purpose would seem to go hand in hand with a higher level of care as well. 

This trend could wreak havoc in the medical world should it gain traction, and then we could really be in trouble.  But if we are to have an equal application of law, and our criminal laws have been expanded to cover negligence by regular folk who mean no harm but end up doing it anyway, then it remains a strong possibility that doctors will face criminal consequences for their bad outcomes should they shortcut in the operating room, something that happens far more regularly than anyone wants to admit.

Maybe this will give legislators pause to rethink expanding the criminalization of negligent conduct because of bad outcomes?  Of course, in order to rethink, one must have thought in the first place.