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.

However, in cases where the physician’s conduct has markedly deviated from the standard of care, doctors have been successfully prosecuted for their “criminal” conduct.

For example, in an English case, an anesthesiologist was convicted of manslaughter in the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes, leading to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.

The tragic death of pop star Michael Jackson in 2009 is another example. Dr. Conrad Murray, a cardiologist who was Jackson’s personal physician, had used the surgical anesthetic propofol to treat Jackson’s insomnia in a bedroom setting without monitoring or resuscitation equipment. Concurrent use of the sedative lorazepam exacerbated the effect of propofol. The prosecution characterized Dr. Murray’s conduct as “egregious, unethical, and unconscionable,” which violated medical standards and amounted to criminal negligence. He was found guilty of involuntary manslaughter, and the state sentenced him to a 4-year prison term.

A new trend appears to be developing toward prosecuting doctors whose overprescription of controlled substances results in patient deaths.

According to a recent news report, New York for the first time convicted a doctor of manslaughter in the overdose deaths of patients from oxycodone and Xanax.¹ Some of the patients were reportedly prescribed as many as 500-800 pills over a 5-6 week period. Dr. Stan Li, an anesthesiologist and pain management specialist, allegedly saw up to 90 patients a day in his Queens, N.Y., weekend storefront clinic, charging them on a per-prescription basis. In his defense, Dr. Li claimed that he was simply trying to help suffering people who misused medications and who misled him (“tough patients and good liars”).

Meanwhile, a similar scenario played out in Oklahoma.² There, Dr. William Valuck, a pain management doctor, pleaded guilty to eight counts of second-degree murder in connection with several drug overdose deaths. He entered into a plea bargain with Oklahoma prosecutors and will serve 8 years in prison. Dr. Valuck had reportedly prescribed more controlled drugs than any other physician in the state of Oklahoma, which included hydrocodone, oxycodone, alprazolam, Valium, and Soma, sometimes as many as 600 pills at a time. He allegedly accepted only cash payment for the office visits, and review of his patient files revealed inadequate assessment of patient complaints or physical findings to justify the prescriptions.

Most physicians are unlikely to ever face the specter of criminal prosecution based on their medical performance. Only in the most egregious of circumstances have physicians been successfully prosecuted for homicide.

As requests for physicians to withhold or withdraw life-sustaining treatments grow, physicians may find themselves questioning what acts or omissions they may legally perform. Unless the legal landscape changes, however, it appears that the forgoing of life-sustaining treatments in the typical clinical context will not subject physicians to criminal prosecution.

References

1. “NY doctor convicted of manslaughter in 2 overdoses,” July 18, 2014 (http://bigstory.ap.org/article/ny-doctor-convicted-2-patients-overdose-deaths).

2. “Ex-doctor pleads guilty in overdose deaths,” Aug. 13, 2014 (www.usatoday.com/story/news/nation/2014/08/13/ex-doctor-guilty-deaths/14022735).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

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.

However, in cases where the physician’s conduct has markedly deviated from the standard of care, doctors have been successfully prosecuted for their “criminal” conduct.

For example, in an English case, an anesthesiologist was convicted of manslaughter in the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes, leading to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.

The tragic death of pop star Michael Jackson in 2009 is another example. Dr. Conrad Murray, a cardiologist who was Jackson’s personal physician, had used the surgical anesthetic propofol to treat Jackson’s insomnia in a bedroom setting without monitoring or resuscitation equipment. Concurrent use of the sedative lorazepam exacerbated the effect of propofol. The prosecution characterized Dr. Murray’s conduct as “egregious, unethical, and unconscionable,” which violated medical standards and amounted to criminal negligence. He was found guilty of involuntary manslaughter, and the state sentenced him to a 4-year prison term.

A new trend appears to be developing toward prosecuting doctors whose overprescription of controlled substances results in patient deaths.

According to a recent news report, New York for the first time convicted a doctor of manslaughter in the overdose deaths of patients from oxycodone and Xanax.¹ Some of the patients were reportedly prescribed as many as 500-800 pills over a 5-6 week period. Dr. Stan Li, an anesthesiologist and pain management specialist, allegedly saw up to 90 patients a day in his Queens, N.Y., weekend storefront clinic, charging them on a per-prescription basis. In his defense, Dr. Li claimed that he was simply trying to help suffering people who misused medications and who misled him (“tough patients and good liars”).

Meanwhile, a similar scenario played out in Oklahoma.² There, Dr. William Valuck, a pain management doctor, pleaded guilty to eight counts of second-degree murder in connection with several drug overdose deaths. He entered into a plea bargain with Oklahoma prosecutors and will serve 8 years in prison. Dr. Valuck had reportedly prescribed more controlled drugs than any other physician in the state of Oklahoma, which included hydrocodone, oxycodone, alprazolam, Valium, and Soma, sometimes as many as 600 pills at a time. He allegedly accepted only cash payment for the office visits, and review of his patient files revealed inadequate assessment of patient complaints or physical findings to justify the prescriptions.

Most physicians are unlikely to ever face the specter of criminal prosecution based on their medical performance. Only in the most egregious of circumstances have physicians been successfully prosecuted for homicide.

As requests for physicians to withhold or withdraw life-sustaining treatments grow, physicians may find themselves questioning what acts or omissions they may legally perform. Unless the legal landscape changes, however, it appears that the forgoing of life-sustaining treatments in the typical clinical context will not subject physicians to criminal prosecution.

References

1. “NY doctor convicted of manslaughter in 2 overdoses,” July 18, 2014 (http://bigstory.ap.org/article/ny-doctor-convicted-2-patients-overdose-deaths).

2. “Ex-doctor pleads guilty in overdose deaths,” Aug. 13, 2014 (www.usatoday.com/story/news/nation/2014/08/13/ex-doctor-guilty-deaths/14022735).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

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.

However, in cases where the physician’s conduct has markedly deviated from the standard of care, doctors have been successfully prosecuted for their “criminal” conduct.

For example, in an English case, an anesthesiologist was convicted of manslaughter in the death of a patient undergoing surgery for a detached retina. During surgery, the patient’s ventilation was interrupted because of accidental disconnection of the endotracheal tube for 4 minutes, leading to a cardiac arrest. An alarm had apparently sounded but was not noticed. The injury would not have occurred had the doctor attended to the patient instead of being away from the operating room.

The tragic death of pop star Michael Jackson in 2009 is another example. Dr. Conrad Murray, a cardiologist who was Jackson’s personal physician, had used the surgical anesthetic propofol to treat Jackson’s insomnia in a bedroom setting without monitoring or resuscitation equipment. Concurrent use of the sedative lorazepam exacerbated the effect of propofol. The prosecution characterized Dr. Murray’s conduct as “egregious, unethical, and unconscionable,” which violated medical standards and amounted to criminal negligence. He was found guilty of involuntary manslaughter, and the state sentenced him to a 4-year prison term.

A new trend appears to be developing toward prosecuting doctors whose overprescription of controlled substances results in patient deaths.

According to a recent news report, New York for the first time convicted a doctor of manslaughter in the overdose deaths of patients from oxycodone and Xanax.¹ Some of the patients were reportedly prescribed as many as 500-800 pills over a 5-6 week period. Dr. Stan Li, an anesthesiologist and pain management specialist, allegedly saw up to 90 patients a day in his Queens, N.Y., weekend storefront clinic, charging them on a per-prescription basis. In his defense, Dr. Li claimed that he was simply trying to help suffering people who misused medications and who misled him (“tough patients and good liars”).

Meanwhile, a similar scenario played out in Oklahoma.² There, Dr. William Valuck, a pain management doctor, pleaded guilty to eight counts of second-degree murder in connection with several drug overdose deaths. He entered into a plea bargain with Oklahoma prosecutors and will serve 8 years in prison. Dr. Valuck had reportedly prescribed more controlled drugs than any other physician in the state of Oklahoma, which included hydrocodone, oxycodone, alprazolam, Valium, and Soma, sometimes as many as 600 pills at a time. He allegedly accepted only cash payment for the office visits, and review of his patient files revealed inadequate assessment of patient complaints or physical findings to justify the prescriptions.

Most physicians are unlikely to ever face the specter of criminal prosecution based on their medical performance. Only in the most egregious of circumstances have physicians been successfully prosecuted for homicide.

As requests for physicians to withhold or withdraw life-sustaining treatments grow, physicians may find themselves questioning what acts or omissions they may legally perform. Unless the legal landscape changes, however, it appears that the forgoing of life-sustaining treatments in the typical clinical context will not subject physicians to criminal prosecution.

References

1. “NY doctor convicted of manslaughter in 2 overdoses,” July 18, 2014 (http://bigstory.ap.org/article/ny-doctor-convicted-2-patients-overdose-deaths).

2. “Ex-doctor pleads guilty in overdose deaths,” Aug. 13, 2014 (www.usatoday.com/story/news/nation/2014/08/13/ex-doctor-guilty-deaths/14022735).

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].