Law & Medicine

Charging doctors with homicide



Question: Charges of homicide have been successfully brought against doctors in the following situations except:

A. Withholding life-sustaining treatment.

B. Euthanasia.

C. Negligent treatment of a patient.

D. Overprescription of controlled substances.

Answer: A. Homicideis any act that causes the death of a human being with criminal intent and without legal justification. It comprises several crimes of varying severity, with murder being the most serious (requiring “malice aforethought”). Depending on the intent of the perpetrator and/or the presence of mitigating/aggravating circumstances, jurisdictions have subdivided homicide into categories such as first- and second-degree murder, voluntary and involuntary manslaughter, negligent homicide, and others.

Discontinuing futile medical treatment that ends with patient demise raises the specter of criminal prosecution for homicide. However, prosecution of doctors under such circumstances has failed. The seminal case is Barber v. Superior Court (147 Cal. App. 3d 1006 (1983)), in which the state of California brought murder charges against two doctors for discontinuing intravenous fluids and nutrition in a comatose patient.

The patient, a 55-year-old security guard, sustained a cardiopulmonary arrest following surgery for intestinal obstruction. Irreversible brain damage resulted, leaving him in a vegetative state. His family allegedly requested that life support measures and intravenous fluids be discontinued, to which the doctors complied, and the patient died 6 days later.

After a preliminary pretrial hearing, the magistrate dismissed the charges; but a trial court reinstated them. The court of appeals, however, viewed the defendant’s conduct in discontinuing intravenous fluids as an omission rather than an affirmative action, and found that a physician has no duty to continue treatment once it is proven to be ineffective.

The appeals court recognized that “a physician is authorized under the standards of medical practice to discontinue a form of therapy which in his medical judgment is useless. … If the treating physicians have determined that continued use of a respirator is useless, then they may decide to discontinue it without fear of civil or criminal liability.”

In rejecting the distinction between ordinary and extraordinary care, the court dismissed the prosecutor’s contention that unlike the respirator, fluids and nutrition represented ordinary care and therefore should never be withheld.

It concluded that “the petitioners’ omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty.” And because no criminal liability attaches for failure to act (i.e., an omission) unless there is a legal duty to act affirmatively, it issued a writ of prohibition restraining the lower court from taking any further action on the matter.

The U.S. Supreme Court has since validated the distinction between “letting die” and an affirmative action taken with the intention to cause death, such as the administration of a lethal injection. The former is ethical and legal, conforming to medical norms, while the latter amounts to murder (Vacco v. Quill (117 S. Ct. 2293 (1997)).

With these developments, physicians therefore need not worry about criminal prosecution for carrying out Barber-like noneuthanasia, end-of-life actions that result in the death of their patients.

On the other hand, those who act directly to end the life of a patient, even one who freely requests death, may face criminal prosecution.

The most notorious example is that of retired Michigan pathologist Dr. Jack Kevorkian, who was found guilty of the second-degree murder of Thomas Youk, a 52-year-old race-car driver with terminal Lou Gehrig’s disease. Dr. Kevorkian injected a lethal mixture of Seconal, Anectine, and potassium chloride to end the patient’s life.

At trial, Dr. Kevorkian dismissed his lawyer and served ineffectively in his own defense, never taking the witness stand. Found guilty by a jury and sentenced to 10-25 years in prison, he served just more than 8 years until 2007, when he was released for good behavior. Previous charges by the state of Michigan against Dr. Kevorkian for assisting in the suicide of some 130 patients had proven unsuccessful.

This case spawned a nationwide debate on physician-directed deaths, with a few states now legalizing physician-assisted suicide, although euthanasia remains illegal throughout the nation.

In general, the remedy sought in a medical wrongful death case lies in a malpractice civil lawsuit against the negligent doctor. Sometimes, the plaintiff may assert that there was gross negligence where the conduct was particularly blameworthy, and if proven, the jury may award punitive damages.

Rarely, however, does the level of misconduct rise to that of criminal negligence. Here, the burden of proof for a conviction requires evidence beyond reasonable doubt, rather than the lower “more probable than not” evidentiary standard required in a civil lawsuit.


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