Running head: PROFESSIONAL REGULATION AND CRIMINAL LIABILITY

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Professional Regulation and Criminal Liability

Carrie "Shellie" Cobbs

Legal Issues in Health Care: Regulation and Compliance

HCS 430

John Weiss

May 11, 2014

Professional Regulation and Criminal Liability

Errors are made in every profession. However, only a handful of professions are liable for the health, wellbeing, and life of another person. Health care professionals are strictly regulated on the State and Federal levels. There are also specialty specific regulation boards and associations that establish rules and guidelines for health care professionals. Civil and criminal charges can results from a health care professionals error.

State statutes that regulate health care professionals

Colorado, like every other state, has laws to regulate health care professional. Colorados Department of Regulatory Agencies (DORA) contains the regulations that health care providers need to be in compliance to practice. DORA lists out specific regulations and policies from the state legislation. Listed on DORA are regulations for physicians, health care organizations, and

other health care workers. Licensure, medical board rules, and anti-compete rules are a few rules listed out for physicians. Also listed on DORA are policies and protocols for disciplinary, licensing, administrative, and other miscellaneous policies. The medical board is responsible and obligated to protect consumers of health care by ensuring that all physicians in your state are properly licensed and comply with various laws and regulations pertaining to the practice of medicine ("Medical Board," 2013, p. 1).

Criminal liability

Physicians are in a precarious position of power with the patients they treat and come in physical contact with. Physicians are trusted to write prescriptions in a responsible and legal manner. Physicians are also trusted to touch people in very private areas of their bodies. Physicians with criminal intent are given privileges that that make some criminal activity easier to participate in. When a physician commits a crime using their licensing they are subject to the same legal process as any other criminal and in addition physicians are also subject to review by the medical board. The medical board can suspend or permanently remove a license from a physician. Depending on the severity of the crime a physician can spend time in prison and not ever be able to practice medicine again. Also, criminal charges and the punishment that the physician received is public information and can be found by searching online. DORA has a running list of the past ten years of physicians that have been suspended from practicing or who have lost their license.

Professional misconduct

Medical misconduct, as defined by Examiner.com, is behavior that deviates from duty by a healthcare professional ("Misconduct," 2012, p. 1). Physicians make errors that sometimes cost patients their lives, some body functions, and cause addictions to medications. These

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physicians may be dropped by insurance companies, paid large malpractice settlements, and have been barred from hospitals and other medical facilities. Somehow some of these physicians do not get reprimanded or disciplined by the state medical board and are to continue practicing medicine.

The U.S. Department of Human Services maintains the National Practitioner Data Base (NPDB) was established in 1986 with the creation of the Health Care Quality Improvement Act. The intent of the Health Care Quality Improvement Act was to improve the quality of health care by encouraging State Licensing Boards, professional societies, hospitals, and other health care entities to restrict the ability of incompetent physicians, dentists, and other health care practitioners to move from state to state without disclosure or discovery of previous medical malpractice payment and adverse action history ("Data Bank," n.d., p. 1). The NPDB is governed by three laws; Title IV of Public Law 99-660, Section 1921 of the Social Security Act, and Section 1128E of the Social Security Act. The combination of these three laws affects physicians from licensure, federal health care programs, criminal convictions, civil judgments, and to help combat fraud and abuse if the practitioner commits any criminal or professional misconduct.

Civil complaint process

In the state of Colorado, patients can file a complaint against a health care provider through the DORA website. When a complaint is filed the complaint is reviewed and a determination is made if a violation has occurred. After a complaint has been reviewed or investigated for further information it may be dismissed, a Letter of Admonition issued to the practitioner, forwarded to the Office of Investigation for in-depth investigation, or The Attorney General is involved because legal action is required against the practitioner.

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Regulatory agencies

The Colorado State Board of Medical Examiners was created a part of the Medical Practice Act for regulating and controlling the practice of healing arts, which include establishing and enforcing the licensing standards for Medical Doctors (M.D.s), Doctors of Osteopathy (D.O.s), Physician Assistants (P.A.s), and Anesthesiology Assistants (A.A.s) ("Colorado Medical Board," 2014, p. 1). Licensure is mandatory in Colorado to practice medicine and treat patients. The boards mission is to protect the public and to ensure that licensed practitioners are treating patients as outlined in the Medical Practice Act.

The American Medical Association (AMA) is a private regulator. The AMA focuses on health outcomes, medical education, and advancement of the physician-patient relationship. The AMA is a membership supported association that works with state medical boards and legislators to offer resources, education, and advocacy to physicians. The AMA works with the Colorado Medical Society to help make health care better for physicians and patients. The AMA can also refuse or terminate your membership if criminal or professional misconduct happens and membership is no longer appropriate for the physician.

Criminal liabilities for the health care professional

Prosecution of medical professional negligence has not always been the normal result. Prosecution was an uncommon occurrence in medical history, but medical negligence cases are growing with greater frequency. Providers face a very real reality of not doing enough or doing too much for their patients can have them facing criminal prosecution, loss of their license, large financial loss, and possible prison time. Prosecution is not just aimed at physicians. Currently, there are nurses and nurses assistants that are facing criminal charges across the nation.

Risk management strategies and quality assurance programs

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Risk management is the process of using strategies to reduce and minimize adverse outcomes. Good risk management should improve patient care and, therefore, reducing adverse outcomes possibly resulting in a medical malpractice claim. High standards of care set the foundation for risk management. When providers give high levels of care and use good communication with their patients good fundamental medicine can be given and a strong relationship can be built. When patients are comfortable communicating the most information they can to their physicians they help create an environment of complete care between themselves and the physician.

Quality assurance requires consistent monitoring and oversight. Continual defining of clinical standards that are used and studying the outcomes helps management understand the changes that may need to be made. Analyzing data that is collected and being able to correct problems that have the possibility to cause risk.

Process to follow in the event that criminal charges are filed

Once the charge has been filed a long legal process and professional review begins. The criminal justice system brings criminal cases through the legal and court systems. Several agencies like the Drug Enforcement Administration (DEA), medical boards, Federal Bureau of Investigations (FBI), and individual state bureaus of investigation can be involved in bringing the charges against the health care professional or witnesses to the crime committed by the health care professional.

After the arrest has been made the charges are brought before a prosecutor and the decision is made to pursue or drop the charges. If a judge does not find probable cause then the case is dismissed but if probable cause is found or the accused waives his or her rights then the case is put before a grand jury. After the grand jury makes their decision an indictment is issued

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apprehension and arrest of the suspect or suspects will happen. The indictment is filed with the trial court, arraignment occurs where the accused is informed of the charges brought against them and a plea to the charges is given by the accused. A trial date is then set.

At trial, the evidence is given to the judge and or jury by the prosecution and the defense tries to install reasonable doubt against the evidence. If the health care professional is convicted after the trial then sentencing occurs. Sentencing can range from probation to the death penalty depending on the severity of the crime. The conviction is public knowledge and is discoverable when doing future background checks.

Conclusion

Health care professionals are always at risk of criminal charges being filed against them. If they error in providing care to a patient they can lose their license and face criminal or civil charges depending on the severity of the error. Great care must be taken when providing patient care by the health care professional for the sake of their livelihood and freedom. Unfortunately, we live in a society that sees dollar signs around errors made and some will seek legal retribution against the health care professional.

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References

About Us. (n.d.). Retrieved from http://www.npdb-hipdb.com/topNavigation/aboutUs.jsp Colorado Medical Board. (2014). Retrieved from http://cdn.colorado.gov/cs/Satellite?

c=Page&childpagename=DORA-Reg/DORALayout&cid=1251632226143&pagename=CBONWrapper

What is a State Medical Board? (2013). Retrieved from http://www.fsmb.org/what_is_a_smb.html

What is medical misconduct? Is there anything we can do to help stop it? (2012). Retrieved from http://www.examiner.com/article/what-is-medical-misconduct-is-there-anything-i-can-do-to-stop-it