Burden of Pain

BY JAY JOSHI

We’re seeing a trend of late, where matters in healthcare once deemed to be civil in nature are turning criminal. We see it for nearly every polarizing health issue, from abortion to opioids. And it’s affecting vulnerable patients the most.

We have two separate systems in place, civil and criminal, because we have different standards of behavior. Civil laws determine whether undue harm was caused by one party to another. Criminal laws determine whether someone committed a crime. The threshold is distinctly different. If someone is caught driving ten miles over the designated speed limit, that person committed a civil infraction of traffic laws. But if someone is caught speeding well in excess, say thirty or forty miles over the speed limit, while driving recklessly, that person committed a crime. The extent of the violation determines the applicable law. That’s why traffic laws have distinct civil and criminal laws.

The same logic applies to healthcare. We have civil penalties for undue harm or malpractice and we have criminal penalties for crimes that transpire in the clinical context. The difference between the two, for something to go from civil to criminal, is mens rea, or a requirement of criminal intent.

Criminal intent implies certain violations were committed deliberately – literally as an act of crime. Normal civil violations, such as malpractice claims, offer physicians protection against liability. That protection doesn’t apply for criminal violations. And that’s the point. It explains why the sudden push by regulators, prosecutor offices, and federal agents to investigate otherwise civil matters as criminal is so pernicious.

Abortion is as hotly contested an issue as there is in America. You’ll hardly find anyone who has a neutral stance. Those who have an opinion hold it strongly. Regulators opposed to abortion don’t see it as a medical issue. They see those who practice abortions as anything but physicians. As a result, you now see criminal penalties imposed on physicians in certain states. This takes otherwise civil actions that would fall under the umbrella of malpractice and turn it into a crime. But the manner in which it happens is the most concerning part. In most situations, prosecutors will take what we would normally consider a civil infraction and apply criminal intent to it.

This has a chilling effect on clinical behavior. It makes physicians less likely to provide certain care because of the greater risk of criminal consequences. Who can blame them? Physicians are at high enough risk of a malpractice claim as it is. Few would dare risk even greater consequences that come with criminal liability.

Countless physicians prescribing medically necessary opioids have been targeted by the DEA as criminals. In nearly every case, some form of oversight, whether it was documentation practices, lax mandates on urine drug screens, or some other civil matter, were perceived to be criminal. Those targeted have had their clinical practices decimated, lost their license, 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 no coincidence. When you impose a greater punishment on physicians, by turning civil violations into criminal acts, you adversely affect patient behavior.

Medicine by nature requires risk. Even basic medications come with side effects. That’s just a fancy way of saying risk. Think about vaccines. Every injection carries some degree of risk, but we recommend vaccines regardless – because the benefits outweigh the risks.

But when we impose greater penalties by threatening to turn civil matters into criminal acts, we overemphasize the risk. Soon the risk outweighs the benefits and physicians respond by not providing access to care. But criminalizing clinical behavior doesn’t prevent it from happening. It simply makes that behavior more risky. Risk that is tend transferred onto patients. Abortions will still be performed and opioids will still be consumed. Only this time, it’ll be outside the purview of medicine, making it far more dangerous to patients.

Healthcare is inherently risky. That doesn’t mean we target every mistake as an act of crime. We should clearly delineate what is criminal and what is civil. Safeguard against any political ideology that tries to blur the distinction between the two. For when we protect physicians against undue risk, we help patients first and foremost.

Dr. Jay K Joshi is a practicing primary care physician in NW Indiana. In 2018, he was targeted by the DEA and unlawfully convicted of prescribing low-dose opioids outside the scope of practice. He has since regained his medical license and now advocates for patient-centric health policies. He is the author of the upcoming book, Burden of Pain.

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