Tuesday, February 9, 2010


Should a patient's social status and notoriety be a factor in evaluating the guilt or liability of a treating physician's conduct?  The answer seems to be obvious, but society has chosen otherwise.
If the "King of Pop" had instead simply been the head of the local PTA, does anyone really think that Dr. Murray would be facing involuntary manslaughter charges?

What kind of precedent does this set for the administration of health care in America? 
Henceforth should all health care providers suspected of malpractice now be presented to a Grand Jury as well?

Every bad outcome does not constitute criminal activity.....accidents and poor judgment are often simply just that.

When a bus driver, without evidence of enhancement, accidentally crushes and kills a small child who runs in front of his vehicle it is tragic but vastly different than a reckless tow truck driver racing down a feeder road with cocaine metabolites on board who T-bones a car killing it's passengers.......the prosecutors need more than a bad outcome to a celebrity patient to prosecute a doctor who exercised poor judgment.


BigmacInPittsburgh said...

I think the charges against Dr.Murray are a little lean compared to what his involvement was.This Doctor knew from the door what conditions he was working under.The only way I see him getting out of doing jail time is to blow the whistle on his co-enablers of MJ's drug habits.

jigmeister said...

No he should not be treated differently. That said though, it appears that his conduct does arise to the level of criminal negligence. When a MD takes on the lone task of taking care of someone who is already vulnerable, he should know better than to administer seditives that are considered so dangerous and to never be given outside an operating room/hospital environment with the appropriate equipment to counter it. Further, it appears that he did that more than once that night and lied about it repeatedly. The evidence in the form of his phone records seems to show that he was not paying any attention to his patient when Jackson was in his death throws.

However, had it been Joe Blow, it may never have been investigated because it probably would never have happened. You and I could never afford to have a personal quack take care of us and give us any medicine we ask for.

BLACK INK said...

The test of any mens rea element is always based on an assessment of whether the accused had foresight of the prohibited consequences and desired to cause those consequences to occur.

To loosely define criminal negligence as a misfeasance or nonfeasance, where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest would, in my opinion, be too broad.
Such a policy would effectively couple every alleged act of medical malpractice with a presentation to the Grand Jury.

Dr. Murray was desperate, stupid, broke and obviously negligent on many levels.
However, simply being poor, stupid and negligent are not elements of criminality per se......at least not yet.

jigmeister said...

Sec. 192(b) of the California Penal Code seems to be what was charged: b) Involuntary--in the commission of an unlawful act, not
amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or WITHOUT DUE CAUTION AND CIRCUMSPECTION.
So it would be akin to Negligent homicide under Texas law, but is still a misdemeanor carrying a punishment of 1 year in the county jail or up to 4 years in the pen (I think-wading through California law is difficult). So intent to kill or desires the outcome isn't the test.

Aggie Pct Chair said...

Doctor Conrad is a pathetic doctor but is an example of what our healthcare will be if Obama gets his way.

point39 said...


You finally say something with which I can agree.

I agree with Jig's analysis. "Desire" is not an element of the crime. I think the Murray case is exceptional and, therefore, I don't believe it follows that all future incorrect administrations of medicine will be scrutinized by a grand jury.

Now, the increased criminalization of traffic accidents is something that certainly does alarm me.

BLACK INK said...

Now that is about as broad as a criminal statute can get.

This would expose any negligent party involved in an MVA in California who causes serious bodily injury or death to a 3rd party to now be subject to criminal as well as civil liability?
What if a California pharmacist dispenses the incorrect Rx or fails to recognize a patient's allergy to penicillin and the patient dies?
Alcatraz will be reopened for these hardened criminals before we know it.

I am doubtful this change in the California Penal Code will pass Constitutional muster...but then again, it's California and a New World order is on the horizon.

point39 said...

But isn't the analysis fairly simple here? Either Murray should have known (neg hom) or actually did know (manslaughter) that the result of mixing these particular narcotics could be fatal and was a gross deviation from what a reasonably prudent person would do? I don't think Murray is contending that he accidentally administered a drug for which he should not have. If that were the case, then I agree that he shouldn't be accused of any criminal culpability. However, that's not the story that I understand the evidence will support.

point39 said...

Wonder how Chernoff convinced Murray that Houston lawyers would be appropriate to handle this case in LA? Houston has some great lawyers, but I would think an LA jury would connect better with an LA lawyer. Wonder if an insurance policy is funding the defense?

BLACK INK said...

I guess where you and I disagree is with the issue of criminal intent.
The dynamics of gross negligence in the delivery of medical care and other activities such as driving a motor vehicle are quite different.
I am not privy to all the facts on which Murray's criminal complaint was predicated upon. I have, however, represented medical doctors who have prescribed a combination of drugs in an off label fashion outside the average reasonable man standard of their communities. Some patients benefited greatly from the unorthodox treatment protocol while others did not fare as well. Randomized drug studies and unsuccessful cutting edge chemotherapy protocols have yielded untold humanitarian benefit as well as many serious and fatal consequences.
I do not think that these medical innovators should be criminally sanctioned for pushing the envelope.
Dr. Murray's case is obviously worrisome; but neither of us know all the specific circumstances surrounding Michael Jackson's care such as whether or not Michael was self medicating or receiving medication from other care givers or friends unbeknown to Murray, etc.

The media is anything but trustworthy in factual reporting these days so it might be more prudent to see what the judicial system reveals before accessing blame.

point39 said...

point well taken regarding the veracity of the information disseminated through the media.

jigmeister said...

No doubt, Ink, the defense will try Jackson and raise the spector that others were doing exactly what Murray did. The problem is that what Murray did that night is what killed Jackson. The propanol killed him and the dose was lethal. I think the evidence is going to show that it would have killed anyone, regardless of his/her past were they not in a hospital and constantly monitored. I would hope even a reasonably crappy doctor would know that or take the time to research it before administering it. This isn't a case of a doctor trying an innovative treatment. It is the case of a lacky with a MD degree providing a drug he had no business providing or no reason other than to help Jackson sleep and enable a drug habit. At some point doctors that do that have to be stopped. If I were prosecuting this guy, the obvious counter to besmerching Jackson is that he paid for his mistakes with his life.

I agree that California has some weird laws (it is not a model penal code state like Texas and uses common law as Texas did before 1974 and its otherwise a weird place), but believe it or not the terms without due caution or circumspection are legally defined and there is a lot of case law on manslaughter.

I guess you could argue that the law should never criminalize conduct that is only gross negligence and there is no intent and leave it all to the civil lawyers. I think that would put you in the very small minority of public opinion, maybe just plaintiff lawyers. Frankly, Ink, think of it this way, Murray gave the medical profession a real black eye.

I would be curious to see how criminal defense attorneys would conduct Murray's defense and I agree with 39 that Texas lawyers would be at a real disadvantage, but then Murray doesn't strike me as having the smarts of a "brain surgeon".

Anonymous said...

APC, you need to listen to what you are saying. What occurred in California, occurred under the current health care system. A man with money is able to hire a doctor to stay with him and provide him with drugs. I can't do that. I even have health insurance but crap for health insurance. Do you know the names of the various health care systems that currently exist in the world? Can you do a comparison of the of those health care systems? Did you know we are the only industrialized county in the world without universal health care? Did you know that third world counties have the same health care system that we do? I am not talking about health care available to those who can afford it, I am talking about a health care system that provides for the population. In third world counties, people with great health insurance or a great deal of money can get great treatment in their home county or come to the US and seek treatment. Well, I live here but I can't get the same health care those folks can get. I know, it is probably my own fault because I am not making a million or two a year. Now go write on your hand a few notes so you can try to answer this comment.

Black Ink, there is a world of difference between going outside the box in treatment of an illness and and simply providing drugs to an individual.

BLACK INK said...

IF the media reports are remotely accurate:
1.It would seem that Dr. Murray's medical care was at least grossly negligent.
2. Legal exposure for this egregious behavior should include permanent revocation of his medical license, a very large fine and substantial civil liability.

My issue is with what constitutes criminal behavior for physicians in their "practice of medicine". Labeling care that is outside the community standard of the average reasonable man as criminal if a bad result occurs, has a chilling effect.

Michael Jackson's fatal overdose night was not his 1st rodeo with these drugs, this doctor or other doctors behaving in a similar fashion.
MJ no doubt had developed a high tolerance for these drugs as well, further complicating the issue.
This is not to condone, but rather rationalize the behavior to some degree.

I think a more appropriate angle might be that Murray acted outside of the practice of medicine all together and essentially reduced his behavior to that of a drug cartel front-man with the facade of a license.
In other words, show that Dr. Murray was bought and paid for and that instead of using his medical judgment to provide medical care, he was simply selling drugs hiding behind a medical license.
I have no problem with criminal consequences if that type of behavior is proven.

Aggie Pct Chair said...


Those liberals out in California think everyone is not guilty. You want to make a name for yourself, be a criminal lawyer in LALA Land. Dope smokin hippies out there interpret the constitution in a manner that is flat out wrong. A good Texas lawyer may have a problem communicating with those darn communist.

Anonymous said...

Murray behaved no differently that any drug dealer does. He was Jackson's connection for the dope he wanted and he got it for him. No doctor who was actually using his medical judgment would have administered that drug to Jackson under those circumstances, especially knowing that he had already taken several other drugs that day. That being said, if this case was brought in civil court, Jackson should be assigned more than 51% of the blame for his own death. Had Murray not supplied him with drugs, Jackson would have gotten someone else who would. Murray sold out his medical license, and he now has far more than he bargained for. Jackson appeared to be a walking death wish, and it finally came true. Bad business all the way around.

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