Medicolegal Issues

Stuff of nightmares: Criminal prosecution for malpractice

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Knowing how the law distinguishes criminal acts committed in practice from civil malpractice should ease your fears about the rare (but terrifying) prosecution



The author reports no financial relationships relevant to this article.

This overview is not intended as advice on any legal matter. Consult a medicolegal expert for advice.

Happily, criminal prosecutions for malpractice are rare in the United States—far, far less common than civil suits for malpractice. Nevertheless, criminal prosecutions do occur and seem to be increasingly frequent in recent years. Consider that, between 1809 and 1981, approximately 15 criminal cases involved the prosecution of a physician for medical malfeasance1; by contrast, between 1985 and 2004, another 15 cases were heard in US courts—every one involving the death of one or more patients.2

The two cases that I present in this article, both involving ObGyns, illustrate the distinguishing features of criminal and civil malpractice in the eyes of the law. My goal? To answer a question you may be considering: Am I safe from criminal prosecution for harm that comes to a patient at my hands?


Dr. Milos Klvana. The qualifications of Klvana to practice OB weren’t reassuring. After he received his medical education in Czechoslovakia, he was dismissed from an ObGyn residency in New York for poor academic performance, then forced to resign from an anesthesiology residency in California when a hospital held him responsible for a patient’s death. The California Medical Board put Klvana on license probation after he was convicted on 26 counts of inappropriately prescribing controlled substances and misrepresenting himself as “board-eligible” in ObGyn when he sought admitting privileges.

Klvana nevertheless continued practicing OB at his outpatient clinic after his convictions. There, over an 11-year period, nine babies whom he delivered died after grossly deficient management of labor.

Could Klvana have been prosecuted for causing these deaths?

How does the law distinguish criminal culpability from its civil counterpart?
  • Depraved indifference to human life
  • Lack of timely response
  • Reckless endangerment
  • Risky therapies

What crimes can a physician commit?

Any action that violates the law—insurance fraud, illicit sexual contact, theft, illegal distribution of narcotics, and tax evasion, to name several—is a criminal offense, whether perpetrated in the course of medical practice or under other circumstances.3 But a physician, by the nature of his (her) work, is in a unique position in regard to the law: When a patient in his care suffers severe or lethal injury, he may face a charge of criminal negligence, manslaughter, or second-degree murder2 (see the glossary of death-related charges).

What do you call it? A glossary of criminal charges
  • First-degree murder Many states require evidence of premeditation and intent to press this charge
  • Second-degree murder Requires a reckless act and depraved indifference to human life
  • Manslaughter Killing without malice aforethought
  • Negligent homicide Killing because of carelessness, inattention, or indifference


Klvana was charged with second-degree murder—as well as with insurance fraud, perjury, grand theft, and practicing medicine without a license.1-6 Expert witnesses testified that his conduct fell egregiously below the standard of proper obstetrical care. For example, Klvana repeatedly:

  • failed to properly monitor oxytocin-stimulated labor
  • disregarded signs of fetal and neonatal distress, including the presence of meconium
  • was absent during delivery
  • disregarded obvious signs of danger in newborns, including difficulty breathing
  • failed to transfer high-risk patients to a hospital when labor became complicated.
Notably, Klvana continued these practices even after the Los Angeles County Department of Health Services issued a cease-and-desist order that prohibited him from performing outpatient deliveries.

A lengthy trial ensued. Klvana was convicted and sentenced to 53 years in prison.

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Bad outcomes

The practice of medicine is full of uncertainties. There is never a guarantee that the out-come of a medical procedure or treatment will be curative or without risk.

When an outcome is bad, nothing the physician could have done would, in most instances, have averted the catastrophe. On rare occasions, however, a bad outcome is the result of physician negligence; when the patient (or her survivors) believes that a bad outcome was caused by the physician’s actions, they may institute a civil suit for malpractice. Very, very rarely does a prosecutor decide that the facts of a case warrant a charge of criminal malpractice.


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