Mass. doctor prosecuted for patient’s death

Rare criminal case over patient care has physicians concerned

As state authorities bring what is believed to be the first-ever criminal prosecution in Massachusetts against a physician for negligence in the treatment of a patient, doctors have yet another source of stress.

Attorney Paul Cirel of Dwyer & Collora in Boston, who is defending the physician, says the indictment of his client, a Cape Cod obstetrician whose alleged negligence in an abortion procedure caused the death of a patient, signals a “dark day” for physicians in the Commonwealth.

“This is criminalizing professional medical conduct at some level, and that’s the ultimate sanction in the law,” he says. “To try to make fine distinctions beyond negligence and to criminalize bad outcomes – I think that can be a very scary process for doctors.”

However, many lawyers say that if the allegations in this case – including the doctor’s alleged failure to monitor the patient’s pulse and blood pressure while she was under anesthesia, delay in calling 911 for assistance and attempt to cover up his actions from the Board of Registration in Medicine – are true, most physicians should have little to worry about.

After all, this set of facts is unusually egregious, and criminal prosecutions for medical negligence are exceedingly rare.

Lawyers say a case of medical malpractice would only become criminal if it involved willful and wanton conduct on the part of the doctor.

“What would make this case criminal, and it may be a tough criminal case, is the extreme nature of the lack of patient safety mechanisms,” says David M. Gould, a malpractice-defense lawyer with Ficksman & Conley in Boston. “That’s a quantum leap from doing something negligently. [Before this], we’ve never seen a prosecution of a licensed physician performing a procedure in a licensed facility.”

Nonetheless, attorneys say the fact that such a prosecution is happening could still cause physicians here considerable angst. And it may even impact the way some of them practice.

“If a diagnosis is not timely made or an outcome from a surgical complication is adverse in the extreme, a physician now has to consider, ‘Am I going to be sued? Am I going to lose my license? Or am I going to be prosecuted for homicide?’” says Martin Foster, a med-mal defense lawyer at Foster & Eldridge in Cambridge. “Whether [prosecution] occurs with frequency or infrequency, providers will now be thinking about it on a day-to-day basis.”

Tragic result

The defendant in the case is Dr. Rapin Osathanondh, a board-certified obstetrician/gynecologist who was a solo practitioner at the Women’s Health Center in Hyannis.

On Sept. 13, 2007, Laura Hope Smith came to the defendant’s clinic for an abortion.

According to the Massachusetts Board of Registration in Medicine’s statement of allegations, the defendant sedated Smith without means of cardiac monitoring or blood-pressure monitoring and did not have oxygen available to administer to the patient.

The Board also alleged that an office worker with no training in CPR or other lifesaving measures was the only other staff member present.

The defendant, who was unable to awaken Smith after the procedure, allegedly delayed calling 911 for help. Smith was eventually transported to a hospital, where she was pronounced dead.

The Board further maintained that the defendant tried to cover up his negligence by telling Board staff that he had administered oxygen, he had monitored Smith’s pulse, and his assistant was certified in life-saving procedures when, in fact, she was not.

Additionally, the defendant allegedly made structural changes to an adjacent room. When Board staff investigated the incident, he allegedly misrepresented that the adjacent room – which contained an oxygen tank, resuscitative equipment and monitoring devices – was where he performed the procedure.

In February 2008, the Board initiated disciplinary proceedings against the defendant, describing his actions as “gross misconduct” calling into question “his competence to practice medicine.”

The defendant surrendered his medical license and was permanently barred from practicing medicine in Massachusetts.

Michael O’Keefe, district attorney for the Cape and Islands, subsequently commenced criminal proceedings against the defendant and secured an indictment for manslaughter in July.

The defendant pleaded not guilty in Barnstable County Superior Court and the case is currently proceeding toward trial.

O’Keefe could not be reached for comment.

Cause for concern?

Now that a doctor is being prosecuted for his treatment of a patient, the question arises: What would it take for future malpractice allegations to be criminalized?

Leonard A. Simon, a solo practitioner in Waltham who represents plaintiffs in med-mal cases, says the allegations in this case go far beyond a typical medical negligence case.

“If this is all true, it poses an awful danger to anybody else who walks into that office,” he says. “This person is doing something which could almost be considered intentionally harmful to another person. … This is a triple whammy.”

Peter Heppner, a malpractice defense lawyer with Lynch & Lynch in South Easton, agrees.

He likens this scenario to a nursing home doctor who was prosecuted for homicide in another state for negligently using a dialysis tube as a feeding tube and then covering it up.

“It wasn’t the initial error of judgment in the dialysis case but the cover-up afterward that caused the DA to prosecute,” he says.

Regardless of how rare such a prosecution might be, other sources believe it could still cause discomfort among Massachusetts doctors.

Bruce S. Auerbach, president of the Massachusetts Medical Society and chief of emergency and ambulatory services at Sturdy Memorial Hospital in Attleboro, says that since this is an ongoing matter and the specific details aren’t clear, he can’t comment on the case itself.

Hypothetically speaking, however, Auerbach says that criminally prosecuting a physician who is acting in what he believes to be the best interests of his patient “would not sit well with doctors.”

Foster suggests that the occurrence of even a single high-profile prosecution could impact the way physicians practice, especially in high-risk specialties.

Some of the best medical outcomes occur because physicians and patients are willing to take risks, he says. But a case like this could cause physicians to reconsider or even decline to offer a risky option.

Another worrisome issue is that a criminal prosecution wouldn’t be covered by malpractice insurance, Foster notes.

“In fact, carriers in Massachusetts are prohibited by statute from providing insurance coverage for such conduct,” he says.

Political motivation?

Cirel believes there were political motivations behind the decision to prosecute his client.

“[My client] is a man who has written textbooks on performing this procedure, a man who has literally performed thousands of such procedures safely and in the same manner as this one,” said Cirel. “Sometimes in medicine a bad outcome occurs. I think this one was criminalized because of the nature of the procedure, which is highly politicized.”

Attorney Lee J. Dunn of Boston says he doesn’t doubt Cirel’s contention that the Osathanondh prosecution might be politically motivated.

“Abortion is still a white-hot issue and it wouldn’t be the first time a DA has tried to pursue a case for his political benefit,” says Dunn, who represents plaintiffs and defendants in med-mal cases.

If that’s the case, it could create a disincentive for doctors to perform abortions, says Cirel.

But in general, the biggest threat to someone who performs abortions is not the county prosecutor, but “some clown on the front lawn with a hand grenade,” says Dunn.

Questions or comments should be directed to the
editor at: reni.gertner@mamedicallaw.com