ProfessionalRegulations and Criminal Liability
ProfessionalRegulations and Criminal Liability
Thefunctions of the health care professionals are regulated by laws setto ensure that they observe the highest levels of professionalism intheir practices. However, these laws vary from state to state, whichmeans that certain actions can lead to litigations in some states,but not in others. The physicians form part of the health careprofessional group that at a high risk of litigation given thesignificance of their functions in the health care industry. Thispaper will focus on regulations of physicians’ practices and theirpotential criminal liability in the state of Michigan.
Thecivil complaint process used by consumers in Michigan to file casesof suspected physician incompetence of misconduct
Theconsumers of the health care services have the right to raisecomplaints against physicians who do not demonstrate professionalismwhen delivering health care services to them. Complaints may includethe use of hateful or abusive language, uncooperative attitude, wrongmedication, incomplete medical information, and delayed diagnosis,failure to meet the treatment as well as assessment expectations,rudeness, and excessive pain during care delivery among other typesof complaints (Halperin, 2000).
Consumersof health care services are expected to raise these complaints withthe Michigan Board of Medicine (Michigan Board of Medicine, 2015).The consumer files a complaint with the board in writing. When theboard receives the complaints, its secretary, together with thesupervising officer conducts an investigation to gather informationregarding the allegations raised against the physician. The boardgives priority to allegations that might have a significant impact onthe well being of the consumer. The board closes the matter andissues a letter concerning its closure to the consumer who raised thecomplaint. The board can close the matter when it becomes convincedthat the matter was too insignificant or the lack of sufficientevidence to make charges against the physician. In case the boardfinds sufficient evidence, the case is assigned to the attorney, whoserves as the enforcement coordinator. The enforcement coordinatorfacilitates an in-depth investigation of the matter. The informationobtained from the in-depth investigation helps the board determine ifthe physician should be sued or the license suspected. The decisionof the board may then be submitted to the Health ProfessionalLicensing Division of Michigan that suspends the license of thephysician of it is convinced that the allegations and the findings ofthe Board of Medicine are satisfactory (Health Professional Division,2015).
Agenciesthat investigate allegations and apply appropriate actions againstphysicians
Physiciansworking in the state of Michigan are regulated by both the state andthe national agencies that are responsible for investigating theallegations raised by clients. At the state level, the Michigan Boardof Medicine is mandated to regulate the operations of all physiciansworking within the state. The board was formed under the Public Act237 that was enacted in the year 1899 (MBM, 2015). The act assignedthe board the roles of regulating, examining, licensing, andregistering physicians within the state of Michigan. The act alsoauthorized the Michigan Board of Medicine to discipline practitionerswho violate its provisions and other health care legislations.Therefore, the Michigan Board of Medicine is mandated to investigateallegations against physicians and discipline them accordingly.
TheHealth Professions licensing division of Michigan work together withthe licensing boards to regulate more than 400,000 health careproviders (including physicians) in the state of Michigan. Thedivision, together with respective licensing bodies is mandated toinvestigate and determine which licenses should be suspended andwhich ones should be cancelled depending on the level of offense doneby the health care provider (HPD, 2015).
Atthe national levels, the American Board of Medical Specialties,Agency for Health care Research and Quality, the NationalCertification Commission for Acupuncture and Oriental Medicine hasthe authority to investigate and discipline physicians for any caseof misconduct (Ginsburg & Moy, 2014). However, the nationalagencies handle cases that are beyond the scope of the state agenciesand make decisions in collaboration with the state agencies.
Allthese regulatory agencies can take more or less similar actionsagainst physicians for their misconduct. The common disciplinaryactions include suspension, reprimanding, revocation of the license,and probation. These agencies can also issue a summary or temporarysuspension pending thorough investigation.
Potentialcriminal liability for physicians
Physicians,similar to other health care providers operate in a field that isregulated by the law. Any misconduct or negligence can lead tolitigation against the physician. The most common types of criminalliability brought against physicians pertain to the falsification ofdocuments. For example, many physicians have been convicted ofdelivering false medical reports, especially those that pertain tothe HIV test results (Jung, Lurie & Wolf, 2006). Delayed deliveryof emergency service is another potential source of criminalliability in the U.S., including the state of Michigan. This occurswhen a professional physician fails to deliver health care servicesto a patient who requires those services urgently and an unexpectedoccurrence (such as death) occurs as a result of delayed service.Such a physician can be charged with murder.
Althoughthere are some drugs (such as cocaine) that physicians are allowed tohandle and administer in limited quantities and under specialconditions, the use and the distribution of these drugs increases therisk of criminal liability. For example, many physicians have beenconvicted for self use, felony of possession, furnishing hard drugs(such as cocaine) to addicts (Jung, Lurie & Wolf, 2006). In suchcases, physicians are considered to have exceeded their mandates andabused the privileges that they are provided with by the law.
Althoughthe stakeholders in the health care sector acknowledge the fact thaterrors are common, there are some errors that can lead to criminalliability against a physician. For example, the administration ofwrong drugs that injures the patient or leads to death can beconsidered to be an act of negligence if the physician had some meansto discover that the drug administered was wrong and failed tocorrect that error (Jung, Lurie & Wolf, 2006). A physician whodoes medical errors leading to death can be charged with negligenthomicide, second degree murder, or manslaughter.
Riskmanagement strategies and quality assurance programs that can reducethe risk of negligence and liability
Therisk management strategies should target individual risk factors forcriminal liability. For example, strategies that facilitate effectivecommunication between the physician, client, and other medicalprofessionals dealing with a given patient can reduce medical errorssignificantly (Mayo Clinic, 2015). For an instant, the nurse spendsmore time with the patient compared to the physician, which impliedthat the nurse understands the client’s condition better.Therefore, an effective communication between a physician and thenurse will enable physicians to administer the correct medication andreduce errors.
Aninformed consent is a critical tool that protects physicians frombeing held liable to complete treatment and diagnostic procedures.The physician should make it a habit to get an informed consent fromclients whenever a procedure involves some risks (Kreimer, 2013).This is accomplished by informing the client all the risks involvedin that procedure before it is undertaken.
Stayingup-to-date on physician standards and laws is an effective strategythat can help physicians in understanding and applying the relevantpractices. Many medical liabilities are based on the question ofwhether the sued physician adhered to the current standards ofpractice when an alleged offense occurred (Kreimer, 2013). Therefore,regular training and extensive reading can help physicians understandthe recently published research, technological innovations, andpractice standards that are useful in limiting potential criminal andmalpractice liabilities.
Adequatefollow-up of specialist referrals and diagnostic tests can reducemedication errors and the risk of being sued for homicide. Accordingto Kreimer (2013) many test results (such as X-ray and lab tests) arenot received by the ordering physician, at times the patient fails tofollow through the test as directed, and some results are misplacedin busy facilities. All these factors can culminate in errors thatcan injure the patient and suit for physician’s negligence.However, adequate follow-up can protect physicians.
Theprocess followed in an event of criminal charge filed for a describedcriminal behavior
Thecriminal justice process differs from one state to another, but therethree common stages. The first stage is the investigation, whichinvolves the collection of evidence by law enforcers. The lawenforcers begin their investigation by obtaining a search warrant,which gives them the legal authority that they need to collectinformation pertaining to an alleged crime. During the process ofinvestigation, witnesses may be interviewed with the objective ofhelping the law enforcers acquire an accurate and clear understandingof the entire story.
Thesecond stage involves the arresting of the culprit, but this can onlybe done if the law enforcers managed to collect substantial evidenceconfirming that that suspected committed the crime. In addition, thelaw enforcers should obtain a warrant of arrest before taking thesuspect into custody.
Thelast step is an either a preliminary hearing or an indictment issuedby the grand jury. An arrangement is made for the formal presentationof charges. The court may give the suspect a bail or refuse the baildepending on the nature of crime and characteristics of the suspect(Mayo Clinic, 2015). At times plea bargaining may take place, whichallows the defendant to plead guilty to some lesser charges. In theabsence of a plea bargaining, the trial proceeds until the jury makesthe verdict. However, the defendant may make an appeal if unpleasedby the outcome of the trial.
Inconclusion, the state of Michigan has a well defined process that theconsumers of the health care services can use to raise complaintsagainst physicians. However, the law also protects physicians thatrequire that the proof of negligence or misconduct should be beyondreasonable doubt. In addition, laws and regulations are formulatedand implemented by a professional body that enhances fairness andcredibility in the field of health care.
Ginsburg,B. & Moy, E. (2014). Physicianlicensure and the quality of care: The role of new informationtechnology.College Park, MD: University of Maryland.
Halperin,C. (2000). Grievances against physicians. WestJournal of Medicine,173 (4), 235-238.
HealthProfessional Division (2015). Welcome to the Health ProfessionsLicensing Division. LARA.Retrieved June 28, 2015, fromhttp://www.michigan.gov/lara/0,4601,7-154-63294_63303—,00.html
Jung,P., Lurie, P. & Wolf, M. (2006). Articlein health matrix: U.S. physicians disciplined for criminal activity.Washington, DC: Public Citizen.
Kreimer,S. (2013, December 10). Six ways physicians can prevent patientinjury and avoid lawsuits. MedicalEconomics.Retrieved June 28, 2015, fromhttp://medicaleconomics.modernmedicine.com/medical-economics/content/tags/injury/six-ways-physicians-can-prevent-patient-injury-and-avoid-lawsu?page=full
MayoClinic (2015). Medication errors: Cut your risk with these tips. MayoClinic.Retrieved June 28, 2015, fromhttp://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/medication-errors/art-20048035
MichiganBoard of Medicine (2015). Michigan Board of Medicine: Department ofLicensing and regulatory affairs. LARA.Retrieved June 28, 2015, fromhttp://www.michigan.gov/lara/0,4601,7-154-63294_27529_27541-58914–,00.html