BY JAY JOSHI
We are witnessing a late trend in which healthcare issues that were once considered civil are in nature becoming crimes. We see it for almost every polarizing health issue, from abortion to drugs. And it affects the most vulnerable patients.
We have two separate systems, civil and criminal, because we have different standards of behavior. Civil law determines whether one party causes undue harm to the other. Criminal law determines whether someone commits a crime. The threshold is markedly different. If someone is caught driving over the speed limit by ten miles, that person is violating a civil traffic law. But if someone is caught speeding, say thirty or forty miles, while recklessly driving, that person has committed a crime. The extent of the violation determines the applicable law. That’s why traffic laws have clear civil and criminal laws.
The same logic applies to healthcare. We have civil penalties for excessive harm or negligence, and we have criminal penalties for crimes that occur in a clinical setting. The difference between the two, for something that goes from civil to criminal, is maleor a request of criminal intent.
Criminal intent means that some offense was committed intentionally – literally an offense. Common civil offenses, such as malpractice claims, provide doctors with protection against liability. That protection does not apply to criminal offenses. And that’s the key point. It explains why it’s so dangerous for regulators, prosecutors’ offices, and federal agents to suddenly push into criminal investigations into civil matters.
Abortion is as hotly contested as it is in America. You will be hard pressed to find someone with a neutral opinion. Those with opinions keep it strong. Regulators that oppose abortion do not consider it a medical problem. They see abortionists as doctors. As a result, you now see criminal penalties applied to doctors in some states. Otherwise, this will lead to civil actions that will fall into negligence and turn it into a crime. But the way that it happens is the most concerning part. In most situations, prosecutors will look at what we would normally consider a civil violation and apply criminal intent to the conduct.
This has a chilling effect on clinical behavior. It makes doctors less likely to provide certain care because of the higher risk of criminal consequences. Who can blame them? Doctors are at high enough risk of malpractice claims. Few dare risk the greater consequences that come with criminal liability.
Countless physicians prescribing medically necessary opioids have been deemed criminal by the DEA. In almost every case, some form of surveillance, whether it’s documented practice, lax regulation of urine drug screening, or some other civil matter, is considered a crime. offense. Those targeted have had their clinical activities canceled, their licenses lost or, in some cases, lost their freedom.
As a result, prescription opioids are at an all-time low. And drug overdoses are at an all-time high. This is not random. When you impose heavier penalties on doctors, by turning civil violations into criminal acts, you adversely affect patient behavior.
The nature of medicine requires risk. Even basic drugs come with side effects. It’s just a fun way to talk about risk. Think about vaccines. Every shot comes with some degree of risk, but we recommend getting the vaccine regardless – because the benefits outweigh the risks.
But when we impose heavier penalties by threatening to turn civil matters into crimes, we take the risk too seriously. Soon, the risks outweigh the benefits, and doctors respond by not providing access to care. But criminalizing clinical behavior does not prevent that from happening. It simply makes that behavior more risky. The risk tends to shift to the patient. Abortion will still be performed and opium will still be consumed. Only this time, it will be out of the control of medicine, making it much more dangerous for the patient.
Healthcare is inherently risky. That doesn’t mean we consider every mistake an offense. We should clearly distinguish what is criminal and what is civil. Defend against any political ideology that attempts to blur the distinction between the two. Because when we protect doctors from unnecessary risks, we help patients first.
Dr. Jay K Joshi is a primary care physician practicing in NW Indiana. In 2018, he was targeted by the DEA and unlawfully convicted of prescribing low-dose opioids outside of his scope of practice. He has since regained his medical license and is now advocating patient-centered health policies. He is the author of the upcoming book, The Burden of Pain.