Barber v. Superior Court

COMPTON, J.

In these consolidated proceedings we consider petitions for writs of prohibition pursuant to Penal Code section 999a filed by two medical doctors who are charged in a complaint, now pending before a magistrate in the Los Angeles Judicial District, with the crimes of murder and conspiracy to commit murder -- both felonies.

At the close of a lengthy preliminary hearing the magistrate ordered the complaint dismissed. Onmotion of the People, pursuant to Penal Code section 871.5, the superior court ordered the magistrate to reinstate the complaint. These proceedings followed. We issued the alternative writ, calendared the matter and heard oral argument. We have concluded that the peremptory writ should issue.

Deceased Clarence Herbert underwent surgery for closure of an ileostomy. Petitioner Robert Nejdl, M.D., was Mr. Herbert's surgeon and petitioner Neil Barber, M.D., was his attending internist. Shortly after the successful completion of the surgery, and while in the recovery room, Mr. Herbert suffered a cardiorespiratory arrest. He was revived by a team of physicians and nurses and immediately placed on life support equipment.

Within the following three days, it was determined that Mr. Herbert was in a deeply comatose state from which he was not likely to recover. Tests and examinations performed by several physicians, including petitioners herein, each specializing in relevant fields of medicine indicated that Mr. Herbert had suffered severe brain damage, leaving him in a vegetative state, which was likely to be permanent.

At that time petitioners informed Mr. Herbert's family of their opinion as to his condition and chances for recovery. While there is some dispute as to the precise terminology used by the doctors, it is clear that they communicated to the family that the prognosis for recovery was extremely poor. At that point, the family convened and drafted a written request to the hospital personnel stating that they wanted "all machines taken off that are sustaining life" (sic). As a result, petitioners, either directly or as a result of orders given by them, caused the respirator and other life-sustaining equipment to be removed. Mr. Herbert continued to breathe without the equipment but showed no signs of improvement. The family remained at his bedside and requested of the nursing staff that Mr. Herbert not be disturbed. They even objected to certain routine procedures followed by hospital personnel in caring for comatose patients.

After two more days had elapsed, petitioners, after consulting with the family, ordered removal of the intravenous tubes which provided hydration and nourishment. From that point until his death, Mr. Herbert received nursing care which preserved his dignity and provided a clean and hygienic environment.

The precise issue for determination by this court is whether the evidence presented before the magistrate was sufficient to support his determination that petitioners should not be held to answer to the charges of murder ( Pen. Code, § 187) and conspiracy to commit murder ( Pen. Code, § 182).

As we will later discuss, this issue must be determined against a background of legal and moral considerations which are of fairly recent vintage and which as a result have not, in our opinion, been adequately addressed by the Legislature. . . .

Murder is the unlawful killing of a human being, . . . with malice aforethought." ( Pen. Code, § 187, italics added.) Malice may be express or implied. It is express when there is an intent unlawfully to take any life. It is implied when the circumstances show an abandoned and malignant heart. ( Pen. Code, § 188.) . . .

The term "malice" is an amorphous and ill-defined state of mind which the law considers sufficiently culpable to make an unlawful killing murder rather than some lesser form of criminal homicide such as manslaughter. While the law is settled that motive is irrelevant to a determination of whether a killing amounts to murder, the lack of precision in defining malice often makes it difficult to disentangle motive from a determination of what constitutes malice.

For the purposes of this decision, however, we accept the superior court judge's analysis that if petitioners unlawfully and intentionally killed Mr. Herbert, the malice could be presumed regardless of their motive.

The use of the term "unlawful" in defining a criminal homicide is generally to distinguish a criminal homicide from those homicides which society has determined to be "justifiable" or "excusable." Euthanasia, of course, is neither justifiable nor excusable in California. . . .

This gap between the statutory law and recent medical developments has resulted in the instant prosecution and its attendant legal dispute. That dispute in order to be resolved within the framework of existing criminal law must be narrowed to a determination of whether petitioners' conduct was unlawful. That determination, as indicated above, must be made on the basis of principles other than those limited ones set forth in Penal Code sections 195 and 197.

The California Legislature has dealt partially with some of the problems that have arisen as a result of modern developments.

Historically, death has been defined in terms of cessation of heart and respiratory function. . . . Health and Safety Code section 7180, subdivision (a)(2) now provides for an alternative definition in terms of irreversible cessation of all brain function.

This is a clear recognition of the fact that the real seat of "life" is brain function rather than mere metabolic processes which result from respiration and circulation.

Of course it is conceded by all that at the time petitioners terminated further treatment, Mr. Herbert was not "dead" by either statutory or historical standards since there was still some minimal brain activity. If Mr. Herbert had in fact been "brain dead," this prosecution could not have been instituted because one cannot be charged with killing another person who is already dead.

We deal here with the physician's responsibility in a case of a patient who, though not "brain dead," faces an indefinite vegetative existence without any of the higher cognitive brain functions. As one court stated the issue: "Now, however, we are on the threshold of new terrain -- the penumbra where death begins but life, in some form, continues. We have been led to it by the medical miracles which now compel us to distinguish between 'death,' as we have known it, and death in which the body lives in some fashion but the brain (or a significant part of it) does not." . . .

Because of the current gap between technology and law, physicians and families of these unfortunate victims are called upon to make intensely painful and personal decisions regarding their care without clearly defined legal guidelines.

This case, arising as it does in the context of the criminal law, belies the belief expressed by many that such decisions would not likely be subjects of criminal prosecution. . . . To our knowledge, however, this case is the first instance in which the issue has been presented in the context of a criminal prosecution.

Of course, the only long-term solution to this problem is necessarily legislative in nature. It is that body which must address the moral, social, ethical, medical and legal issues raised by cases such as the one at bench. Manifestly, this court cannot attempt to rewrite the statutory definition of death or set forth guidelines covering all possible future cases. Due to legislative inaction in this area, however, we are forced to evaluate petitioners' conduct within the context of the woefully inadequate framework of the criminal law. . . .

As a predicate to our analysis of whether the petitioners' conduct amounted to an "unlawful killing," we conclude that the cessation of "heroic" life support measures is not an affirmative act but rather a withdrawal or omission of further treatment.

Even though these life support devices are, to a degree, "self-propelled," each pulsation of the respirator or each drop of fluid introduced into the patient's body by intravenous feeding devices is comparable to a manually administered injection or item of medication. Hence "disconnecting" of the mechanical devices is comparable to withholding the manually administered injection or medication.

Further, we view the use of an intravenous administration of nourishment and fluid, under the circumstances, as being the same as the use of the respirator or other form of life support equipment.

The prosecution would have us draw a distinction between the use of mechanical breathing devices such as respirators and mechanical feeding devices such as intravenous tubes. The distinction urged seems to be based more on the emotional symbolism of providing food and water to those incapable of providing for themselves rather than on any rational difference in cases such as the one at bench. . . .

The authority cited by the People for the holding that a murder charge may be supported by the failure to feed an infant is easily distinguishable. . . . People v. Burden. . . . The parent in that case had a clear duty to feed an otherwise healthy child. . . . As we will discuss, infra, the duty of a physician under the circumstances of the case at bench is markedly different.

In the final analysis, since we view petitioners' conduct as that of omission rather than affirmative action, the resolution of this case turns on whether petitioners had a duty to continue to provide life sustaining treatment.

There is no criminal liability for failure to act unless there is a legal duty to act. . . . Thus the critical issue becomes one of determining the duties owed by a physician to a patient who has been reliably diagnosed as in a comatose state from which any meaningful recovery of cognitive brain function is exceedingly unlikely.

"A physician, surgeon or dentist must exercise that degree of skill or care usual in the profession in the place in which he practices; i.e., the standard is set by doctors of good standing practicing in that locality. It follows that 'Mere error of judgment, in the absence of a want of reasonable care and skill in the application of his medical learning to the case presented, will not render a doctor responsible for untoward consequences in the treatment of his patient. . . .'

A physician has no duty to continue treatment, once it has proved to be ineffective. Although there may be a duty to provide life-sustaining machinery in the immediate aftermath of a cardio-respiratory arrest, there is no duty to continue its use once it has become futile in the opinion of qualified medical personnel. . . .

Of course, the difficult determinations that must be made under these principles is the point at which further treatment will be of no reasonable benefit to the patient, who should have the power to make that decision and who should have the authority to direct termination of treatment. No precise guidelines as to when or how these decisions should be made can be provided by this court since this determination is essentially a medical one to be made at a time and on the basis of facts which will be unique to each case. If specific procedural rules are to be adopted in this area in order to protect the public interest, they must necessarily come from that body most suited for the collection of data and the reaching of a consensus -- the Legislature. However, we would be derelict in our duties if we did not provide some general guidelines for future conduct in the absence of such legislation. . . .

[T]he determination as to whether the burdens of treatment are worth enduring for any individual patient depends on facts unique to each case, namely, how long the treatment is likely to extend life and under what conditions. "[So] long as a mere biological existence is not considered the only value, patients may want to take the nature of that additional life into account as well." . . .

Of course the patient's interests and desires are the key ingredients of the decision-making process. When dealing with patients for whom the possibility of full recovery is virtually nonexistent, and who are incapable of expressing their desires, there is also something of a consensus on the standard to be applied.

The evidence presented at the preliminary hearing supports the conclusion that petitioners reasonably concluded that Mr. Herbert had virtually no chance of recovering his cognitive or motor functions. The most optimistic prognosis provided by any of the testifying experts was that the patient had an excellent chance of "recovery." However, recovery was defined in terms of a spectrum running from a persistent vegetative state to full recovery. A persistent vegetative state was described as that state in which the patient would have no contact with the environment but parts of the brain would continue to live. The doctor who was of course approaching the case after the fact and from a hindsight view, was unable to predict where on this continuum Mr. Herbert was likely to end up. Several studies on which the expert relied, however, indicated that the chances for unimpaired or full recovery were miniscule. The results of these studies coincided with the diagnoses of the physicians who had actually examined and dealt with the patient before his demise.

Given the general standards for determining when there is a duty to provide medical treatment of debatable value, the question still remains as to who should make these vital decisions. Clearly, the medical diagnoses and prognoses must be determined by the treating and consulting physicians under the generally accepted standards of medical practice in the community and, whenever possible, the patient himself should then be the ultimate decision maker.

When the patient, however, is incapable of deciding for himself, because of his medical condition or for other reasons, there is no clear authority on the issue of who and under what procedure is to make the final decision.

It seems clear, in the instant case, that if the family had insisted on continued treatment, petitioners would have acceded to that request. The family's decision to the contrary was, as noted, ignored by the superior court as being a legal nullity.

In support of that conclusion the People argue that only duly appointed legal guardians have the authority to act on behalf of another. While guardianship proceedings might be used in this context, we are not aware of any authority requiring such procedure. In the case at bench, petitioners consulted with and relied on the decisions of the immediate family, which included the patient's wife and several of his children. No formal guardianship proceedings were instituted.

In the absence of legislation requiring such legal proceedings, we cannot say that failure to institute such proceedings made petitioners' conduct unlawful. Whether such proceedings are to be required in the future is again a question for the Legislature to decide.

The authorities are in agreement that any surrogate, court appointed or otherwise, ought to be guided in his or her decisions first by his knowledge of the patient's own desires and feelings, to the extent that they were expressed before the patient became incompetent. . . .

If it is not possible to ascertain the choice the patient would have made, the surrogate ought to be guided in his decision by the patient's best interests. Under this standard, such factors as the relief of suffering, the preservation or restoration of functioning and the quality as well as the extent of life sustained may be considered. Finally, since most people are concerned about the well-being of their loved ones, the surrogate may take into account the impact of the decision on those people closest to the patient. . . .

There was evidence that Mr. Herbert had, prior to his incapacitation, expressed to his wife his feeling that he would not want to be kept alive by machines or "become another Karen Ann Quinlan." The family made its decision together (the directive to the hospital was signed by the wife and eight of his children) after consultation with the doctors.

Under the circumstances of this case, the wife was the proper person to act as a surrogate for the patient with the authority to decide issues regarding further treatment, and would have so qualified had judicial approval been sought. There is no evidence that there was any disagreement among the wife and children. Nor was there any evidence that they were motivated in their decision by anything other than love and concern for the dignity of their husband and father.

Furthermore, in the absence of legislative guidance, we find no legal requirement that prior judicial approval is necessary before any decision to withdraw treatment can be made.

Although there is not complete agreement among the courts that have addressed the issue in the civil context, we agree with those which have held that requiring judicial intervention in all cases is unnecessary and may be unwise. . . .

In summary we conclude 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. In view of our decision on that issue, it becomes unnecessary to deal with the further issue of whether petitioners' conduct was in fact the proximate cause of Mr. Herbert's ultimate death.

The evidence amply supports the magistrate's conclusion. The superior court erred in determining that as a matter of law the evidence required the magistrate to hold petitioners to answer.

Let a peremptory writ of prohibition issue to restrain the Superior Court of Los Angeles County from taking any further action in this matter other than to vacate its order reinstating the complaint and enter a new and different order denying the People's motion under Penal Code section 871.5.