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Running head: PROFESSIONAL REGULATION AND CRIMINAL LIABILITY

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

PROFESSIONAL REGULATION AND CRIMINAL LIABILITY


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.

PROFESSIONAL REGULATION AND CRIMINAL LIABILITY

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


PROFESSIONAL REGULATION AND CRIMINAL LIABILITY
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

PROFESSIONAL REGULATION AND CRIMINAL LIABILITY

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.
PROFESSIONAL REGULATION AND CRIMINAL LIABILITY
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-isthere-anything-i-can-do-to-stop-it

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