Eric, how does the law look at the role and intent of a fully informed patient as a participant in the medical decisions which might lead to the patients unintentional or, as was the case of the conviction of Kevorkian for second degree murder, intentional death? Shouldn't such participation by the patient decriminalize the consequences to one of professional malpractice if professional standards were not followed? ..Maurice.

Eric, but will you agree that professional behavior leading to an unintended death is unfortunately a not extraordinary rare occurrence in medical/surgical practice? If criminality is established, in part, by "wanton disregard" for human life,should this professional misbehavior be characterized by the consequences toward one patient or toward many of the physician's patients. In other words, can this be an isolated event, neither anticipated by the physician or the patient or should "wanton disregard" be a matter of some ongoing philosophical or ethical misrepresentation of human life in which the physician is repeatedly "taking unprofessional chances" with his or her patient's life because of ignorances in standards of practice of which the physician is fully aware and has made no attempt to remediate or ongoing attention to his or her own self interest. If the physician's behavior is an isolated event, should not "wanton disregard" be rejected as a basis for establishing the act as a crime? I would suspect that most cases of a patient's death related to some action by a physician end up not as crimes but malpractice because the law looks at the physician's record of behavior and not the one case under review. However, as only a physician but one interested in medical ethics, this is solely the way I would look at "wanton disregard for human life" and obviously the way the law should look at this is beyond my skill. ,,Maurice.

An excellent response but just to extend what you wrote a bit further. Are you supporting my view that legal decision of whether or not there was "gross negligence" in the physician's act or acts really all center around the physician's motivation and intent in the development of the negligent act or acts? In the first example you gave, if the "failure to perform tests" leading to the patient's death was an error of judgment or simple "forgetting" then the intent could be that the physician wanted the best or only good for his or her patient (beneficence) and that the "forgetting" was just a human error and the act was not "wanton disregard for life". In the second example, what we are dealing with is an entirely different scenario: a physician acting with the motive or intent to get that fee despite " knowing prescription of a dangerous drug to a patient who clearly is not a candidate for it" and by that motivation or intent, the fatal consequence could legally support a conclusion that the physician had "wanton disregard for human life" and thus performed with "gross negligence".
Yes, there is "blurring of the line" since there are public references to physicians who, as examples, perform unnecessary surgery for money or fame (obviously with patient "informed consent") which occasionally leads to severe injury or death? Are they sent to prison or, as I suspect, do they simply lose their malpractice case and perhaps have the medical license taken away by their state medical board? I still go back to motivation and intent as a criteria.

I hate "blurred lines" (to me, moral or legal astigmatism)! ..Maurice.

Intent may play a large role in the decision, but it is not the only factor. Take the case of a surgeon who operates on a patient while drunk. His intent may be to help, but he is well aware of his self inflicted disability and the increased probability of harm to the patient; yet he performs the surgery anyway. Perhaps we should either substitute the word "knowledge" for "intent," or make this a two pronged test.

The threshold question in our inquiry should be whether the physician had the necessary knowledge or skill to appropriately treat a particular patient. If the answer is "no," and he treats anyway (absent an emergent situation), then if the patient dies as a result of what he did or neglected to do, he could be guilty of involuntary manslaughter regardless of his motives.

If the answer to the first question is "yes," we would move to the second question - intent (as in the example I used above). If the physician allows a motive other than the patient's well being to drive his actions, and a patient death results from those actions, he may, again, be guilty of involuntary manslaughter.

Please note that in this example, I am using the word, "intent" in its legal sense (i.e. the intent to perform an act regardless of the harm it may cause, not necessarily the intent for harm to occur). Killing a patient because a surgeon operates while intoxicated is little different from driving a car while drunk. Your intent may not have been to harm, but if you cause an accident and someone is killed, you are still guilty of manslaughter because you "intended" to become drunk and you "intended" to operate a motor vehicle while drunk. In like manner, a physician who "intends" to perform a particular act (like drinking) and allows that act to cause the death of a patient, could also be guilty of manslaughter.

Finally, please note that in each example above, I've used the conditional, "could" rather than would to infer guilt. There may well be mitigating circumstances that would remove both the act and the outcome from our discussion. One defense against such guilt would be "necessity." In other words (and I know this is a strange example but it illustrates the point), if a surgeon were drunk, but he was the only surgeon within a hundred miles, the necessity for the surgery was unanticipated, and failure to perform the surgery would inevitably result in the patient's death, then the "necessity" for the intoxicated surgeon to perform the surgery would outweigh the other factors and manslaughter would not be an issue.

You got it!

I would add one thing to your explanation though. If you deviate from the standard of care, make sure you document why you are doing it, how it is expected to benefit the patient, and that the patient was made aware of the deviation and agrees (in addition to getting the consent signed). As for the good lawyer, I can be reached at the number in my profile. ;-)

Maurice,
Since our legal system is defined as an adversarial system, the definition of a "good lawyer" is simple. A good lawyer is one who zealously represents his or her client while maintaining their own integrity and candor toward the tribunal, their client, and opposing counsel; and one who wins.

Maurice,
There is a much more fundamental difference between the practices of Medicine and Law. There is no adversary in Medicine but disease. We are all on the side of the patient. Winning, unlike in Law, is never defined as a zero sum game. A physician "wins" when he or she fulfill their goals for their patients. Most times, that goal is a cure, but sometimes it is merely palliative, and ultimately, it is to give comfort where we can at the end of life, when we have little else to offer.

We, as physicians, should perhaps paraphrase the Serenity prayer as; "grant us the strength to stand by our patients when there is no longer anything else we can do, the courage to treat, even when we must cause pain to ease suffering and cure disease, and the wisdom to know the difference."

Maurice,
The situation in Law is much simpler. The code of professional conduct, or what is referred to as "Professional Responsibility" (the standards) is codified both as a model code, and within each jurisdiction. In fact, when we apply for admission to the Bar to practice Law, it isn't enough that we have passed the Bar exam and meet the other varied standards set by a particular jurisdiction, we have to take a course in Professional Responsibility in law school, and then must pass a separate examination called the MPRE (Multistate Professional Responsibility Examination) before being allowed to practice. Moreover, a breech of the code can bring sanctions ranging from simple censure to disbarment.

These standards are set by committees within the profession, usually appointed by the Supreme Court of a particular jurisdiction, and are reviewed (more or less) annually to make sure they remain needed and relevant. While this seems like a cumbersome system, no attorney can ever claim not to be aware of what the standard of care is for a licensed attorney in whatever jurisdiction they are in, or claim not to have understood what is meant.

We have a slightly different problem in Medicine, because we always deal with two sets of standards. The first is professional standards, much like attorneys have. In other words, we answer the question, "what is the "right" thing to do;" circumstances not withstanding (i.e. it is never OK to intentionally injure a patient)?

The second set of standards is more problematic.It involves how to treat a particular patient under specific circumstances. Because no area of Medicine is an exact science yet, there is frequently more than one legitimate opinion as to the right way to treat a patient's problems. In Law, we refer to this as the "Two Schools of Thought" doctrine, but that only begs the question since lawyers don't have to make the actual treatment decisions. Essentially, the standard of care usually consists of the may most physicians agree that something should be treated, along with the way any other significant minority feel it should be treated. This is usually only available in consensus articles and the like, and is open to some debate.

The last part of the standard of care we normally use is the one that allows novel approaches to be used, even when both the benefits and the risks are unclear, as long as the patient knows and understands those benefits and risks, and decides to accept them (and signs a detailed informed consent). That doesn't make the particular treatment the standard of care, but makes its use acceptable.

The fact is that not only is there no medical group of which I am aware that advocates using propofol in the manner which Murray used it. Moreover, there is no evidence of informed consent. Beyond this, however, Murray was grossly negligent in the "manner" in which he used it, making the remainder of the discussion irrelevant.

Finally, I offer one last thought. There is nothing particularly below the standard of care in using placebos that do not put the patient at risk. There is a great line from the old "Dr. Kildare" movies (the REALLY old ones with Frederick March, etc.), that says, "[i]f a patient has pain, we treat his pain. If he only thinks he has a pain, we treat the pain he things he has."

I would hope so.