Dr. Murray

I don't think I need to provide a link, but in case you haven't heard, Dr. Conrad Murray, physician to the late Michael Jackson, has been sentenced to four years in prison for involuntary manslaughter. I certainly agree that his actions were egregious, and that in principle, bad doctoring can constitute criminal behavior. But, it's always a tough call and it seems like a very slippery slope.

The essence of the problem is that physicians have a license to take actions that are ordinarily crimes. They can slice us open, remove body parts, and feed or inject us with powerful toxins that might just end up killing us. If we aren't conscious or competent, they don't even need our permission. Although you may have heard that it's a principle of medical ethics dating to Hippocrates to "First, do no harm," it is not. Just about anything substantial that doctors do carries a risk of harm -- all medical interventions represent a tradeoff of uncertain benefits, predictable harms, and serious risks. Not only that, but a medical degree does not confer superpowers -- doctors make mistakes, even the best of them, and those mistakes harm people.

I once made the acquaintance of Gilbert "Punky" Mudge, the cardiologist who treated Reggie Lewis, who told him it was okay to play basketball. It wasn't. Lewis had a cardiomyopathy that caused him to die of cardiac arrest when he took to the practice floor. Lewis's widow sued, but ultimately Dr. Mudge was found by a jury not to be responsible for Lewis's death. In a sense, of course, he was -- his advice was wrong. But that's the tough thing about being a physician. If most people make a mistake in their work, it's not a big deal, or it's correctable. But we can't start making physicians criminally responsible for their human frailties or, obviously, nobody will do the job. In Dr. Mudge's case, his judgment may have been affected by some personal history which I won't go into because that wouldn't be fair, but in any case, he wanted very much to save Reggie Lewis's career and give such a promising, talented, and likeable young man a chance to realize his dreams. After Reggie Lewis and his widow, I doubt anyone was more damaged by the matter than Dr. Mudge.

So what are the factors that ought to make bad doctoring criminal? Malicious intent is presumably one. For example, doctors who operate opioid prescription mills are intentionally working against their "patients'" interests out of purely venal motives. On the other hand, whether somebody legitimately ought to get a prescription for opioids is a matter of judgment and there have been prosecutions that seem inappropriate. Addicts are often very skilled at deceiving doctors, and not only that, but some of them are also genuinely in pain and maybe it's just as well for them to get the drugs.

Dr. Murray appears to have been trying to serve what he understood to be his patient's best interest. Jackson was a tormented soul who could not sleep, and evidently Murray kept resorting to stronger and stronger measures until he finally started anesthetizing his patient. That seems like very poor judgment already but doctors can legally prescribe off label and again, poor medical judgment is not a crime. He apparently left his patient unattended while he was in a propofol-induced coma. That is the sort of negligence that would support a malpractice suit but is not ordinarily prosecuted. (We had a surgeon in the Boston area who left a patient on the operating table so he could cash a check and buy drugs. He lost his license and got sued, but he was not prosecuted for that specific act.) Finally, Murray apparently did not immediately call for an ambulance when he discovered his patient in respiratory arrest, and that could be what pushes this over the line. I suppose if I were a juror it would be the fact upon which I would focus, although in fact it was probably too late anyway.

So what I'm saying is that I suspect most physicians, not out of self interest since few imagine themselves behaving so inappropriately, but out of a general interest in protecting professional judgment from unseemly second guessing, would prefer to see this situation handled in civil court. Murray would no longer be able to practice, he would be ruined professionally and financially, the world would be safe from his professional poor judgment, and either way, Michael Jackson is already dead. But it's a tough call.