When is a "Breach of the Standard of Care" medical liability and when is it criminal liability? To my mind, that is the central question lying within the case of Dr. Conrad Murray and the death of Michael Jackson.
Lawyers who defend health care professionals every day are comfortable with the fluid nature of the concept of the "Standard of Care" for the administration of any treatment, or for that matter any drug or drugs. There are few hard and fast rules in medicine for good reason; creativity and flexibility are often at the heart of effective treatment regimens. Off label uses of drugs--sometimes entirely unaddressed by the FDA or the medical literature--can occasionally be magic bullet treatments. Sometimes only a physicians' knowledge of how drugs work and interact in relation to a cluster of symptoms, and her willingness to try an untested or little tested protocol, will ease a patient's suffering or reverse the course of a disease. But, too often, if the outcome of a well intentioned effort to use a drug in a novel way is poor or unanticipated someone will claim that a deviation from well accepted and documented treatment methods is a breach of The Standard of Care." These become the Medical Liability cases we defend often and fully understand. And, no one suggests seriously that the practice of medicine become so hidebound that each healthcare provider's choices be limited by the FDA or a manufacturer or a certain body of literature to practice and prescribe in certain ways. Most knowledgeable observers agree than many commonly accepted practices in medicine are not evidence based and need review. But, Dr. Murray's case might be outside the range of even the most creatively acceptable medical judgment. Here, we see the unique use of Protocol--a powerful and fast acting Hypnotic frequently used in 'monitored anesthesia' (MAC) outpatient surgical procedures--as a sleep agent in combination with other drugs. There is no suggestion that electronic monitors were being used or that supplemental oxygen was being provided. There is also no suggestion that a trained anesthetist was present.
Although Propofol is typically administered only in a monitored surgical setting with supplemental oxygen and with an Anesthesiologist or CRNA in attendance, must it always be used only under those conditions? That is the essential medical question in the case and here is the real tension in the case: If we assume that Dr. Murray is guilty of a well intentioned but unusual administration of Propofol to his patient, and we assume that his acts are well outside the accepted "Standard of Care," was he criminally negligent for straying far from the standard or is he merely negligent? And further, was he simply a very negligent physician or criminally negligent for failing to administer Propofol to Mr. Jackson without oxygen or monitoring? Or, candidly, was he just stupid and careless.
I am troubled by the fact that a criminal charge is now lodged against Dr. Murray before medical disciplinary proceedings and impartial medical experts have been consulted and heard by both the medical community and the public. We have institutions in place to answer the preliminary question: When is a breach of the "Standard of Care" medical liability, or within the class of misguided and negligent medical misadventures we sometimes see, and when does it sink down to a flagrant disregard of fundamental common medical sense? In this case, these might not be hard questions for well trained physicians to quickly resolve before Dr. Murray's freedom is further restricted. With all due respect to the medical experts retained by the prosecution and to the coroner, that really should be done here.
Judges and Juries (and may god save them!) often struggle with an endemic inability to discern the slim gap between acceptable care and negligent care when at issue in our civil courts. As advocates in civil cases we know we that cannot possibly teach triers of fact enough about medicine and how the process of medicine works in the time allowed for a trial to guarantee that a fair outcome mostly occurs. This is an unfortunate result of the way our advocacy system works today (Jury trials are essential but change is needed) and it sometimes results in unfounded damage awards and unwarranted injury to a physician's reputation. Nevertheless, I do take some comfort despite my reservations. In Dr. Murray's case, his liberty should hang on a jury deciding, after extensive and complex medical evidence is presented, that any breach of the "Standard of Care" and the death of his patient were caused by very poor judgment and lack of medical knowledge combined with unacceptable gross hubris and incaution; but the truth is the jury will really only decide if Dr. Murray was stupid and careless with the precious life of a beloved icon. So I admit, on the surface, the prosecutors seem to have a good case.
