Physicians Who Break the Law

41 Pages Posted: 13 Dec 2009

See all articles by Diane E. Hoffmann

Diane E. Hoffmann

University of Maryland Francis King Carey School of Law

Date Written: December 1, 2009

Abstract

This paper takes as its starting point a recent article by Prof. Sandra Johnson, Regulating Physician Behavior: Taking Doctors “Bad Law” Claims Seriously. In the article, Johnson focuses on doctors who comply with the law despite their belief that the law is “bad”, i.e., causes them to behave in ways that are harmful to their patients. In Physicians Who Break the Law, I explore cases where physicians break the law claiming that it is “bad”. In this exploration, I focus on two areas of physicians’ lawbreaking: (1) violations of business-related laws, in particular, insurance fraud; and (2) violations of laws relating directly to patient care. The paper draws from the sociological literature on physician law-breaking and white collar crime including early studies of fraud by physicians against Medicaid in which researchers interviewed physicians convicted of Medicaid fraud. In reviewing this literature, I examine the validity of physician claims that these laws are “bad” and raise questions about potential overreaching on the part of law enforcement agents who prosecute physicians for actions that they may be taking to help their patients and the impact of those actions on patient care. The exploration of physicians who break laws governing clinical practice and patient treatment covers cases ranging from physicians who prescribe opioids for chronic pain patients or medical marijuana for cancer patients to physicians who help terminally ill patients end their life. In this part of the paper I look at whether these cases can be legitimately considered “civil disobedience” based on the work of James Childress who constructed a typology for moral analysis of illegal action. The paper concludes with a series of observations and recommendations that come out of this exploration. Among others, these observations and recommendations include a failure on the part of law enforcement personnel and agencies to engage in an evaluation of their actions in prosecuting physicians for alleged criminal violations. I argue that such an evaluation should be undertaken and should include an assessment of whether they are achieving their goals and at what costs, including the impact of their actions on patient care.

Keywords: physicians, law-breaking, patient care, insurance fraud, civil disobedience

Suggested Citation

Hoffmann, Diane E., Physicians Who Break the Law (December 1, 2009). St. Louis University Law Journal, Vol. 53, No. 4, pp. 1049-1088, 2009, U of Maryland Legal Studies Research Paper 2009-53, Available at SSRN: https://ssrn.com/abstract=1516349

Diane E. Hoffmann (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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