Legal News

Making Malpractice a Criminal Matter

By Dan Slater

The first chapters of torts casebooks are filled with fascinating cases about intentional torts in medicine, and the distinction between battery and lack of informed consent. But it’s rare that even the most egregious instances of medical malpractice qualify as crimes.

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 (pictured, left), 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. Here’s the report from the Boston Globe.

Osathanondh allegedly failed to monitor Smith while she was under anesthesia during the procedure. Prosecutors allege he delayed trying to resuscitate Smith after she stopped breathing and then, after the state began investigating, lied about his actions and the equipment he had available. Osathanondh allegedly placed Smith under sedation without any means to monitor her heart rate, blood pressure, or the oxygen level of her blood. The only other person in the room, according to a medical board report, was an office worker who had no CPR or other training in lifesaving procedures. The board added that Osathanondh “failed to timely initiate a call to 911,” “failed to maintain an adequate airway,” and “failed to adhere to basic cardiac life support protocol.”

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.”

David Frank, a former prosecutor, said it’s “definitely unusual” for such a case to result in an indictment.

Paul Cirel, a Boston lawyer representing Osathanondh, said his client will plead not guilty. “He has been practicing medicine in this field for over 40 years and has performed thousands of similar procedures without any significant incidents,” said Cirel. “This is a tragedy that sometimes happens in medicine, but it happens; patients die inexplicably in the course of even routine procedures. . . . This is not a matter that belongs in the criminal courts.”

Full post as published by Law Blog - WSJ.com on July 17, 2008 (boomark / email).