The Special Stigma of Criminal Prosecution
Most medical care practitioners’ experience with litigation is limited to civil litigation. Although most medical care practitioners have not been personally sued for medical malpractice, all know someone who has been. Traumatic as this litigation can be for a medical care practitioner, criminal prosecution is much worse. The first shock is that medical care practitioners are not insured against criminal prosecution and must pay all defense costs and any bail from their own pockets. This can amount to tens to hundreds of thousands of dollars, much of which must be paid up front. Although a truly indigent defendant is entitled to a court- appointed attorney, few medical care practitioners fall into this category. Unfortunately, the chances of successfully defending a criminal case is closely related to how much money the defendant can put into the case. If the defendant is found not guilty, there is only an extremely limited right to reimbursement for the defense costs. As one criminal law professor aptly put it, “You can beat the rap, but you cannot beat the ride.”
The publicity can be devastating to a legitimate business or a professional, even if the jury finds them not guilty. For medical care practitioners and other providers, conviction of a crime related to a federal health program means that the defendant cannot participate in federal programs such as Medicare and cannot work for an entity that does participate. This will put a hospital out of business and can make it almost impossible for practitioners to find work, even if they do not lose their professional licenses as a result of the conviction. In the worst case scenario, the defendant can go to prison. The potential sanctions from criminal prosecution and conviction are so devastating that the Constitution provides several unique safeguards for criminal defendants.