It is imperative that health care professionals understand the differences between criminal law and civil law. As they move through their careers, most would never consider being indicted for criminal allegations or convictions because those things are for criminals, right? Not so fast. Anyone can be sued or charged. Health care professionals should understand what the thresholds and triggers of civil and criminal allegations are because these can give rise to further legal action. Although the burden of proof is on the one bringing the action, being accused is a real risk factor in the world in which we live.
Recently I interviewed Matthew Keris with Marshall Dennehey Warner Coleman & Goggin, P.C., one of the nation’s largest law firms devoted to civil defense litigation. Matt is a medical malpractice litigator who has been in the courtroom his entire career defending people like you and me who are regular, every day health care professionals — hospitals, doctors, nurses and clinics. His mother is a retired nurse, so he has a true passion for defending those in the health care field. Matt pointed out the layers of legal possibilities, complicated with navigating state and federal laws and statutes, which differ nationwide. According to Keris, under staffing, workarounds, fatigue and medication errors are some of the patient safety concerns over which he is called to defend health care professionals.
To explain civil vs. criminal differences, he went back to the beginnings of our judicial foundations. The civil law system was first derived from the “Corpus Juris Civilis” of Roman Emperor Justinian I. This relies on case law to resolve disputes vs. writing codes. By definition, civil law is defined as a “dispute between individuals, organizations wherein the wrongdoer compensates the one bringing the claim,” who is also known as plaintiff.” In a civil law dispute, the plaintiff is the one who generates a claim against another. Criminal law has different thresholds that have to be met to rise to the level of criminal consideration and prosecution. Criminal law is defined as the “body of law that is related to a crime. The conduct within a criminal case is perceived as harmful, threatening and endangering another or another’s property, health and safety. Criminal law is established by state statutes, which is enacted by a legislature.” Criminal law convictions generally follow the pathway of a hearing with decisions surrounding punishment. Not to complicate things further, but there are situations that could involve a settlement, and then proceed with criminal indictments, but these are rare. It boils down to criminal vs. negligence when sorting through what is defensible in a court of law.
Warning
There is no insurance coverage policy for intentional criminal acts. No insurance carrier would take on that sort of risk. Most insurance policies that do cover health care organizations and staff have exclusions in their policies that specifically state that any intentional, reckless or harmful act performed outside of the scope of employment and practice of staff is excluded from coverage. Basically, anything with mal-intent or criminal negligence would fall into this exclusion bucket. Understanding your organization’s insurance policy and how the language is applied is paramount and relational to what we do and the risk we encounter on a daily basis.
Many health care professionals question if they should buy their own policy to protect themselves further, should something happen or go wrong within their scope of employment as it relates to patient care. According to Keris, there are no clear cut answers and outlines some pros and cons to doing so.
Pros
- Having an independent policy may bring peace, allowing the caregiver to feel additional security should an untoward event occur.
- Having an independent policy may be beneficial and respond to an alleged act of negligence, if there is no duty to indemnify.
- Under most civil policies pertaining to investigations, there may be a duty to defend once the matter has been properly reported to an insurance carrier. This reporting may trigger coverage, which enables staff members to have defense counsel present during interviews for criminal or civil investigations.
Cons:
- An additional policy creates another pocket of money for a plaintiff to go after if there is an active claim or litigation proceeding.
- A separate policy does not always mean more coverage. There may be a pro-rata share provision, which enables carriers to argue which policy pays first. This could be a monumental barrier and delay resolution.
- Insurance carriers may determine that there is a duty to defend, but no duty to indemnify; or may defend based on a reservation rights provision.
Within health care, we practice under the comfort of the Quality Improvement Act, as well as the protection of Patient Safety Organizations, which are mechanisms for patient safety work product. Without these structures and entities in place, transparency surrounding incidents, medical errors and near misses would be aborted by all parties involved. The health care industry has striven for years to get to transparency and Just Culture. Negligence, litigation and criminalization have paralyzed our industry and have caused many of us to pause.
According to the American Hospital Association, “some incidents and events occurring from medical errors have the potential to be tragic. But even in the face of tragedy, most actions should not be criminalized. By doing so, health caregivers will not come forward with their mistakes.” If that happens, everyone loses. Patient safety systems are one of the most important tools to help us recognize and prevent errors. Since the pandemic, we have all suffered the effects of an already stressed health care system, which has created opportunities to stop… pause… and think. How can we do things better? How can we take care of our own? How can we make it to the other side without total collapse? How can we end patient harm?
Matt’s Top 10 Key Takeaways of Civil vs. Criminal
- Consider that traditional civil privileges may not apply.
- Engage an attorney to lead an investigation to enable the ability to assert attorney-client privilege, which may be stronger than an asserted peer review privilege, in some cases.
- Collaborating between civil and criminal defense counsels is necessary for optimum outcome.
- Assert against self-incrimination using the Fifth Amendment may be necessary in a criminal investigation. However, this could have a negative consequence if there is a subsequent civil case (i.e., adverse inference jury charge).
- Considering second victims is a must. Addressing staff needs is pivotal when it comes to mental health wellness.
- Remember not all negligence cases will be investigated criminally; ASHRM data indicates only some death cases draw scrutiny and potential criminal inquiry from law enforcement.
- Consult public relations professionals when dealing with negative publicity. Note: there may be legal implications if the public relations firm is not under the attorney-client privilege for protected work product.
- Identify and eliminate workarounds. Key is to inform staff when changes in the system have been made, along with maintaining patient safety.
- Avoid displaying look-alike names next to one another in computer drop-down lists and consider differentiating look- and sound-alike drugs by including their purpose (e.g., hydroxyzine [antihistamine] and hydralazine [vasodilator]).
- Eliminate alerts in the system that are clinically irrelevant to prevent alert fatigue, as well as configuring all medication dispensers in a pharmacy-like profile mode to help mitigate safety issues.
It was a pleasure to interview Matt. He was able to shed light criminal vs. civil law and how things can get very complicated when we find ourselves in a courtroom or facing a criminal investigation.
REFERENCES
American Hospital Association. (2022, May 13) “AHA issues statement on Tennessee judge’s sentencing of former nurse.” Retrieved May 2022 from https://www.aha.org/news/headline/2022-05-13-aha-issues-statement-tennessee-judges-sentencing-former-nurse
Cornell Law School, Legal Information Institute. US Constitution Fifth Amendment. Retrieved May 2022 from https://www.law.cornell.edu/constitution/fifth_amendment
The Free Dictionary by Farlax. “Civil Law.” Retrieved May 2022 from https://legal-dictionary.thefreedictionary.com/Civil+law
The Free Dictionary by Farlax. “Criminal Law.” Retrieved May 2022 from https://legal-dictionary.thefreedictionary.com/Criminal+Law
Keris, Mathew P., Esquire. (2020, June 23) “Warning Fatigue” Now a Matter of Criminal Liability: The RaDonda Vaught Story.”Retrieved May 2022 from https://www.youtube.com/watch?v=JJlJfCd62ag
Yahoo search. “What’s the difference between civil law vs criminal law?” Retrieved May 2022 from https://search.yahoo.com/yhs/search?hspart=iba&hsimp=yhs-3&type=dkff_9318_FFW_ZZ&vm=r&grd=1&p=what+is+civil+law+definition
Yahoo search. “What is criminal law sometimes referred to as?” Retrieved May 2022 from https://search.yahoo.com/yhs/search;_ylt=AwrCwHVH2X5iIwsAYAEPxQt.;_ylc=X1MDMjExNDcwMDU1OQRfcgMyBGZyA3locy1pYmEtMwRmcjIDc2EtZ3Atc2VhcmNoBGdwcmlkA3BKc0x6Rkk2VGJ1U1poOWFxTVRsVEEEbl9yc2x0AzAEbl9zdWdnAzIEb3JpZ2luA3NlYXJjaC55YWhvby5jb20EcG9zAzEEcHFzdHIDd2hhdCBpcyBjcmltaW5hbCBsYXcgZGVmaW5pdGlvbgRwcXN0cmwDMzEEcXN0cmwDMzEEcXVlcnkDd2hhdCUyMGlzJTIwY3JpbWluYWwlMjBsYXclMjBkZWZpbml0aW9uBHRfc3RtcAMxNjUyNDgwNDM4BHVzZV9jYXNlAw–?p=what+is+criminal+law+definition&fr2=sa-gp-search&hspart=iba&hsimp=yhs-3&vm=r&type=dkff_9318_FFW_ZZ
AUTHOR
Leigh Ann Yates, AIC, MBA, CPHRM, DFASHRM, has more than 25 years in health care risk, legal and insurance program management. In her practice, she consults nationwide for large health care and academic systems. She continues to practice and share with colleagues what she has learned throughout her career journey.
