It’s extremely rare for medical malpractice to become criminal. When physicians do face criminal charges, it’s typically in the event that they’re committing healthcare fraud or selling or over-prescribing medications–specifically narcotics.
Medical malpractice cases are addressed in civil court. But, if a malpractice case is deemed criminal, it moves outside of civil court. The physical victim is no longer the plaintiff; the State becomes the plaintiff (i.e. Indiana v. Physician).
Performing unnecessary procedures can be considered healthcare fraud. Physicians will perform unnecessary procedures in the event that insurance companies (including Medicaid and Medicare) pay out to cover the costs. Most often these procedures will be completely unrelated to the patients’ health problem.
Further, insurance companies have to continue to pay costs for the patients’ extended stay to recover. Additionally, patients may require ongoing treatment even after they’ve been released from the understanding that they need treatment that helps prevent complications after surgery.
Doctors or healthcare providers can be criminally charged for prescribing drugs that are not medically necessary. They can also be charged for over-prescribing medication.
Doctors’ will likely argue in court that the patient did in fact have a valid medical reason for the prescription. Whether or not they have medical notes and records to support this defense is something the State will evaluate.
Doctors aren’t the only ones at risk for drug-related criminal charges; pharmacists can also be tried in court for filling an invalid script.