Criminal Charge Rare In Medicine; Malpractice Lawyer Explains: High Level Of Negligence Is Unusual

Charlotte Observer (NC)
(c) Copyright 2001, The Charlotte Observer. All Rights Reserved.
Friday, August 24, 2001
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CRIMINAL CHARGE RARE IN MEDICINE; MALPRACTICE LAWYER EXPLAINS: HIGH LEVEL OF NEGLIGENCE IS UNUSUAL; HEATHER HOWARD, STAFF WRITER - STAFF WRITER LISA HAMMERSLY MUNN CONTRIBUTED TO THIS ARTICLE.

THE CHARLOTTE OBSERVER

MONROE -- One of the state's top medical malpractice attorneys says criminal charges almost never result when a patient dies unexpectedly in the care of medical workers.

On Wednesday, Union County District Attorney Kenneth Honeycutt said he  would not prosecute health-care workers who attended a 3-week-old who died in February at Union Regional Medical Center. Samuel Acosta's mother took him in for treatment of fever and diarrhea, but the baby died after a nurse administered an IV. His autopsy showed he died from air being pumped into his vascular system.

Wade Byrd, a Fayetteville lawyer who handles medical malpractice cases  throughout the Carolinas and in several other states, said he can't remember a case in which criminal charges were brought in a medical case.

Byrd said he has heard of isolated, extreme cases in which medical  workers face charges for acts such as euthanizing a patient.

"But that's in the realm of the bizarre," Byrd said.

Honeycutt said in a statement on his decision that the only charge that could have been considered was involuntary manslaughter because the investigation revealed no criminal intent.

Still, involuntary manslaughter charges mean prosecutors must prove  that actions were not merely careless but criminally negligent. That means showing recklessness or carelessness at a level that would amount  to a "heedless indifference to the safety and rights of others," Honeycutt said.

Byrd said that would be extremely rare.

"You might run across that if it was determined that a physician was drunk or on drugs, but it would be way out of the ordinary," he said. "It would have to really just stand up and slap you real hard."

Samuel's mother, Erika, said Thursday she trusts Honeycutt's decision.

Hospital officials say the hospital accepts responsibility and reached an out-of-court settlement with the family.

Both sides are barred from talking about it.

At the time of Samuel's death, Acosta told police that when the IV was administered, she noticed no liquid was coming through the tube and a nurse was "squeezing the bag to get the fluid started." Acosta told police she saw Samuel changing colors just before he died.

Honeycutt said he did not pursue charges because he could not rule out the possibility that the IV pump malfunctioned. Investigators couldn't identify the pump because it was placed with others soon after Samuel's
death.

Although the hospital tested all its pumps - about 100 hospital wide - and found no problems, Honeycutt said his office would have had to perform its own, independent tests.

"It could have been mechanical failure, and I can't eliminate that without testing the machine," Honeycutt said Wednesday. "Common sense tells you that you eliminate all other possibilities before you hang a  charge that serious on an individual."

The fact that Samuel's death resulted in a criminal inquiry is, itself, unusual.

When the baby died, Union County medical examiner Dr. B.W. Springs was at the hospital on another case.

Springs said he heard Samuel's mother say, "They murdered my child."

That's when Springs told hospital workers to call police - a step that wouldn't ordinarily happen.

"Generally, one's reaction is not to call the police," Byrd said.

Either way, criminal charges don't usually follow, no matter how tragic the circumstances.

"I have seen some terrible things," Byrd said, "and have never seen a prosecution."

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