Conrad Murray– A Smooth Criminal?

The trial of Dr. Conrad Murray, the physician involved in the death of pop sensation Michael Jackson, is well underway in a Los Angeles area courtroom.  Dr. Murray stands accused of involuntary manslaughter in Jackson’s death.  The accusation is that Dr. Murray used lethal doses of the anesthetic propofol and insufficient monitoring equipment to sedate Mr. Jackson (at his request), and that these actions caused the death of Mr. Jackson.

The real issue in this trial is not about doses of a medication or types of cardiac and respiratory monitors, however.  The over-riding and precedent setting issue of this trial is the charge against Dr. Murray and the type of trial being conducted.  Dr. Murray is accused of involuntary manslaughter, and is thus facing a criminal trial brought by the state.

When boiled down to its essence, however, Dr. Murray was hired for his medical services by Mr. Jackson.  In the performance of those medical services, Dr. Murray displayed incompetence in the dosing and usage of the medication propofol, and gross negligence in the monitoring of his patient.  This incompetence and gross negligence led to the death of his patient, Michael Jackson.  This is clearly an egregious case of medical malpractice, a civil charge brought by the family or other survivors.

The difference between these charges is extremely important.  Involuntary manslaughter, in this case, refers to “death during the commission of a lawful act which involves a high risk of death or great bodily harm is committed without due caution or circumspection”.  Medical malpractice, on the other hand, requires four components to be proven:

1) A duty of care was owed by the physician

2) The physician violated the standard of care

3) The person suffered a compensable injury

4) The injury was caused in fact and proximately caused by the substandard conduct.

Physicians deal daily with life and death decisions, and their actions, negligent or otherwise, can and do result in the death of those in their care.  This particular fact, combined with the fact that no other field is charged with such obligations, is the entire purpose behind the development of medical malpractice laws to begin with.  In a very real sense, medical malpractice laws exist to provide a rational exemption to physicians from charges such as assault, battery, and manslaughter.

I cannot and will not excuse or defend the actions of Dr. Murray, as they were by any standard incompetent and grossly negligent.  However, to try him for manslaughter when this is a clear example of malpractice is a distortion of the legal system which sets dangerous precedents.  Doctors are not immune to the law by any means, but during the act of practicing medicine, as the very practrice of medicine carries a high risk of death or great bodily harm, doctors are and should continue to be held to the standard of malpractice rather than criminal manslaughter.

The proper sanction against Dr. Murry would be revocation of his license to practice and malpractice proceedings along the most severe lines.  And in the case of almost any other plaintiff, this would have been the case.  This case, however, is different and to deny its differences would be false.  In my own medical community, a patient recently died when having an outpatient surgical procedure by a doctor who was not qualified to perform said procedure and gave the anesthesia himself (which he was also not qualified to do).  This incident made the local news, and may result in license revocation (probably with a stay if he takes certain useless “medical care” courses) and a fine.  But the fact is, this doctor has been busted for the same thing previously and no action had been taken to date.

But Michael Jackson? That’s a different story.  As a public figure and a relatively beloved one at that (we can go into the psychological scrubbing of ones images and selective memories of one’s actions after their death another time), the public outcry was likely irresistable.  A very public spectacle with very severe punishments (what, you mean he’s not even going to jail?) would be necessary for the appearance of justice to be done.

In the state of California, malpractice awards are capped.  One million dollar awards per occurrence, for a total of three million dollars a year.  Such awards would (rightfully) be viewed as a veritable joke to the Jackson family, and would in no way sate the hunger of the public for justice.  In contrast, the ensuing wrongful death suit after a manslaughter conviction will be uncapped, and substantial.

The fact is then, that just as different standards of care exist for the rich and the poor, so then do different standards of justice apparently exist for their doctors.  If we are to argue that health care standards should be equalized across the socioeconomic spectrum, which is no doubt a noble goal, we should also strive to equalize justice across the socioeconomic spectrum.  And the trial of Dr. Conrad Murray is in clear violation of that principle.

Allowing Dr. Murray to be convicted of manslaughter will set a precedent which will have far reaching ripple effects.  It will open up potential litigation against many doctors whose patients die during the deliverance of medical care, either careful or negligent (negligence need not be proven for charges to be brought, after all).  This will serve to render malpractice tort reform and capitation utterly useless.  Insurance premiums will rise and consequently availability of health care will drop.  Costs of health care will increase as defensive medicine is redoubled out of fear of criminal litigation.  In the end doctors and their patients will be harmed.

Dr. Murray should have known what he was getting into when he signed on as Mr. Jackson’s personal physician.  And if Michael Jackson had been any other Joe Somebody, he never would have allowed the deviances in care which he did with Mr. Jackson.  So perhaps it is poetic justice, if not real justice, that by treating his patient differently because he was rich Dr. Murray will now be exposed to a different standard of justice because of his patient’s wealth.

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10 Comments

  1. David

     /  October 5, 2011

    Isn’t the loss of the family meal ticket subject to a cap of expected earnings for the lifetime of the victim/patient? I was under the impression that MJ’s expected earnings had risen substantially with the promise of a comeback. If someone has never earned more that say 50k per year then the cap on the remuneration would be substantially lower. The object is not to achieve a great windfall but for the family to be made whole in some way.

    Reply
  2. Isn’t the loss of the family meal ticket subject to a cap of expected earnings for the lifetime of the victim/patient? I was under the impression that MJ’s expected earnings had risen substantially with the promise of a comeback. If someone has never earned more that say 50k per year then the cap on the remuneration would be substantially lower. The object is not to achieve a great windfall but for the family to be made whole in some way.

    Reply
  3. Ben P

     /  October 5, 2011

    Is this really you Aamer? I love the eloquence.
    I thought of blogging too, but then it would be about what I know, and that is pretty little and focused.
    As far as this particular blog, I guess all I have to say is that as long as the punishment fits the crime, I don’t care what it is called. But the punishment should be commensurate with the misdeed. And by that I mean intent is key. I hope physicians don’t try to hurt patients on purpose with malice.

    Reply
  4. Shk. Husain Jamali

     /  October 5, 2011

    You Say,
    ” So perhaps it is poetic justice, if not real justice, that by treating his patient differently because he was rich Dr. Murray will now be exposed to a different standard of justice because of his patient’s wealth.”
    But I say,
    ” what about the bad precedent that is being set by trying Dr. Murray for involuntary Manslaughter, for all other Doctors in California and elsewhere? ” Now, in addition to Malpractice insurance all the Doctors will have to get some kind of insurance to cover for “involuntary manslaughter or some such thing.”???

    Reply
  5. One act can at the same time be tortious and criminal, and the existence of civil proceedings does not mean that criminal proceedings will be foregone, or vice versa. Your point is that this will set a precedent for criminal charges (specifically involuntary manslaughter) to be brought for a death that is the proximate result of medical malpractice. However, this will not be true in all cases.

    Usually, involuntary manslaughter requires an accidental killing that occurs through CRIMINALLY negligent conduct. This is a much higher standard than ordinary negligence which is required for a showing of medical malpractice in a civil case.

    One could argue that some cases of malpractice are mere negligence on the part of the physician, but where a doctor grossly deviates from what a normal doctor would do under the circumstances, and where they create a high degree of risk and are AWARE of that risk, this is the textbook definition of an involuntary manslaughter. You don’t even have to get into a discussion of whether Dr. Murray’s acts were malum in se or malum prohibitum.

    Because the standards for this kind of charge are so high, it is unlikely that a conviction in this case will lead to a rush of prosecutions against ordinarily negligent medical doctors. In fact, in the past 10 years, there have only been 37 criminal prosecutions against doctors for some for of criminal malpractice.

    While much of this case may have something to do with the high profile nature of Dr. Murray and his patient, it is not the sole factor in the filing of criminal charges against him. There are certainly enough facts to make an argument that his actions went beyond ordinary negligence, and the mere fact that an argument can be made is enough of a reason for it to go before a jury.

    Reply
    • Negligence
      o failure to act with the prudence that a reasonable person would exercise under the same circumstances

      Gross Negligence
      o A negligent act committed with a conscious indifference to the consequences thereof willfully or wantonly.

      Criminal Negligence
      o recklessly acting without reasonable caution and putting another person at risk of injury or death (or failing to do something with the same consequences)

      It seems that the difference between gross negligence and criminal negligence is the act of putting the victim at risk of injury or death. My whole point is that since that is an accepted part of the practice of medicine, it is an unfair standard to which to hold doctors who commit negligent acts within the confines of their therapeutic relationship with their patient.

      Reply
    • azizhp

       /  October 7, 2011

      this is a pretty convincing rebuttal.

      Reply
  6. The difference between the two is not the act of putting the victim at risk of injury or death. The difference is the degree of deviation from what an ordinary, prudent doctor in his situation would do. Additionally, criminal negligence requires a specific mental state. Not only must it be a GROSS deviation, it must create very high degree of risk AND the person being charged must have been aware of that risk. Ordinary negligence could be as simple leaving tools in a surgery patient on accident (deviation and a degree of risk). Criminal negligence would require a doctor doing something that almost no competent doctor would do in the circumstances they are presented with, and knowledge that what they are doing will likely result in a specific harm.

    A doctor can’t be charged criminally for ordinary malpractice, simply because the elements required to prove criminal conduct are not met.

    If I’m understanding correctly, you’re saying that at times, medical professionals are required to put people at risk of injury or death, simply because it is an inherent part of medicine (particularly in emergency situations). Sometimes it save the patient, sometimes it results in death. The point is how many doctors would have done the same thing? Doctors can still perform risky procedures that result in death (you can give me an example here), and even so, if those procedures are generally accepted by even a portion of the medical community, then they aren’t a gross deviation.

    A physician isn’t at risk for a criminal prosecution, simply because he performs a risky procedure and fails.

    Reply
  1. the curious case of Conrad Murray
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