2/21/2012

By Erica Trachtman, J.D. Candidate

On Saturday, February 18, 2012, a crowd gathered at the New Hope Baptist Church in Newark, New Jersey, to mourn the untimely loss of music legend Whitney Houston. Although the results of a toxicology test are still weeks away, preliminary reports cite a deadly mixture of alcohol and prescription drugs as the cause of Houston’s death. Multiple prescription drugs were found in the Beverly Hills hotel room where Houston died, including Xanax. It is no secret that the singer had struggled with substance abuse problems for years, but to what extent should her doctor be held accountable for her death? The physicians of the rich and famous regularly face the temptation to ignore ethical obligations and acquiesce to the unreasonable demands of their patients. Although most medical negligence cases are handled in civil court, the recent conviction of Michael Jackson’s doctor for involuntary manslaughter reflects the growing belief that a stronger deterrent is needed, and in some cases, doctors should be held criminally liable when their patients abuse and overdose on prescription drugs.

According to the Centers for Disease Control and Prevention, fatal overdoses from prescription drugs more than tripled to 13,800 in the United States in 1999 through 2006. Physicians typically face civil liability for the death of a patient, with the victim’s family suing for monetary damages. Physicians, however, can also be convicted for the death of a patient by prescription drug overdose under the Controlled Substances Act, a parallel state version of the Act, or a state homicide statute. Despite opposition from the American Medical Association that the tort system is sufficient for holding doctors accountable for negligently prescribing medication, the Drug Enforcement Administration reports a steady rise in successful criminal prosecutions of physicians, from just 15 convictions in 2003 to 43 in 2008.  Perhaps the most infamous prosecution of a physician occurred just last year.

Back in June 2009, the world was stunned and devastated by the sudden death of Michael Jackson. As the investigation surrounding his death unfolded, millions of the King of Pop’s fans quickly learned a name they would not soon forget: Dr. Conrad Murray. Dr. Murray was a cardiologist who became Jackson’s personal physician in early 2009, a position that earned him a cushy six-figure monthly salary. Dr. Murray left his medical practice in Las Vegas and was planning to accompany Jackson on his international tour later that summer. Jackson reportedly struggled with chronic insomnia, and Dr. Murray was willing to provide the cure: propofol, an intravenous anesthesia used during surgical procedures. Just a few hours before his death, Dr. Murray gave Jackson a 25 mg injection of propofol (in addition to several other previously administered drugs); Jackson allegedly had pleaded for the drug incessantly for several hours. When Dr. Murray later discovered that Jackson was not breathing, he attempted CPR and administered another drug which can serve as an antidote for certain overdoses. But just two hours later, Jackson was pronounced dead.

The Los Angeles County Coroner eventually classified Jackson’s death as a homicide. Specifically, the coroner concluded that Jackson’s death was caused by “acute propofol intoxication.” Jackson allegedly had sought propofol from three other medical professionals; however, all had refused because the drug is intended for sedation during surgical procedures and is not approved for at-home insomnia treatment. The Food and Drug Administration requires that propofol be administered only by physicians trained in general anesthesia.

Dr. Murray was convicted in the Los Angeles County Superior Court of involuntary manslaughter for what the presiding judge described as a “horrific violation of trust.” He is sentenced to four years imprisonment, the maximum sentence allowed under the law. Central to the government’s case was Murray’s willingness to administer the anesthesia in an unmonitored setting, his failure to resuscitate Jackson properly, and the lack of records he kept for Jackson’s treatment. The Jackson family issued a statement which was read to the court during sentencing proceedings; they requested a sentence that “reminds physicians that they cannot sell their services to the highest bidder and cast aside their Hippocratic oath to do no harm.”

Although Dr. Murray probably will never practice medicine again and will have to endure the stigma of the conviction for the rest of his life, he may yet profit from this troubling chapter of his life. The Jackson family instructed prosecutors to withdraw a request for Murray to pay over $100 million in restitution. Wrongful death suits also are pending against AEG Live, the company that promoted Jackson's planned concerts, not Dr. Murray. As a result, he probably will keep any money he earns from movie or book deals, notwithstanding the fact that he chose money over his moral obligations as a doctor. So, is criminal prosecution really the answer?

Enacted in 1970, the Controlled Substances Act (CSA), 28 U.S.C. § 801, regulates the manufacture and distribution of drugs. In order to prescribe controlled substances, physicians must register with the Drug Enforcement Administration. In addition, the CSA requires physicians to adhere to specific prescription guidelines. Prescriptions must be dated and include the name and address of both the patient and the prescribing doctor. To establish guilt, the prosecution must prove that the physician knowingly and intentionally prescribed the medication outside "the usual course of professional practice" or not for a "legitimate medical purpose." Violations of any part of the CSA can result in fines and/or imprisonment. 

Anna Nicole Smith’s physician, Sandeep Kapoor, was charged, but ultimately acquitted of violating the California controlled substances law. The case came down to whether Kapoor believed in good faith that there was a medical purpose for providing Smith with an array of prescription drugs that led to her overdose and death in 2007. Interestingly, while Kapoor walked away a free man, successful prosecutions were brought against Smith’s boyfriend and psychiatrist for using false names on her prescriptions.

Typically, in response to violations of the CSA or an equivalent state statute, state medical boards will temporarily suspend medical licenses or place doctors on probation. If a physician is convicted under a state homicide statute, however, his license is permanently revoked.[1] Thus, in particularly egregious or highly publicized cases, pursuing a homicide charge becomes the more enticing option. Physicians in these cases are usually tried under a charge of involuntary manslaughter, which does not require a showing of malice.

While there have not been a substantial number of criminal malpractice cases, the American Medical Association worries that the trend has interfered with the practice of medicine. In 1995, the group adopted a resolutionopposing the "attempted criminalization of health care decision-making especially as represented by the current trend toward the criminalization of malpractice."

Undoubtedly such prosecutions have a chilling effect on the willingness of doctors to prescribe some necessary medication for the legitimate pain of patients. But in 2009, for the first time in U.S. history, more people died from narcotic drugs than in car crashes. Abuse of prescription drugs was largely to blame. The role of the prescribing physician(s) in Whitney Houston’s case remains to be seen, but already several doctor’s offices and pharmacies have been subpoenaed for their records. As long as there are patients willing to pay, physicians will be tempted to become their personal black market pharmacists. Thus, the imposition of criminal liability on top of civil liability may be the best deterrent to preventing physicians from taking advantage of their role as trusted caregivers and prescribing unnecessary drugs.