By S. Van McCrary, Health Law & Policy Institute
The Los Angeles Times reports that a California physician is being tried for second-degree murder by a state prosecutor in connection with the death of an 11-month old child. A central issue in the case is the point at which medical negligence may rise to the level of homicide.
The setting is a small community hospital, without specialized pediatric care, in an isolated mountainous region. Facts surrounding the diagnosis of the child's condition are in serious dispute, with the prosecution claiming that death was due to preventable dehydration and the defense countering with experts expected to testify that the infant suffered from kidney failure which would have probably resulted in his death regardless of the location where he was treated. The actual extent of dehydration of the patient at the time of death is also in dispute.
The patient, Cody Burrows, was brought to the emergency room three times within a three-day period with symptoms including fever, vomiting, and diarrhea. The physician on trial, Dr. Wolfgang Schug, initially diagnosed Cody with an ear infection and prescribed an antibiotic. The next day, Cody's condition improved but he later became sicker, prompting his parents to take him back to the emergency room, where another physician diagnosed a common gastrointestinal illness and recommended an electrolyte solution to prevent dehydration. A few hours later, when Dr. Schug was again on duty, the family rushed Cody back to the emergency room after serious deterioration in his condition. Cody spent approximately eight hours in the emergency room, during which time Dr. Schug was unable to determine precisely what was causing his symptoms. After consulting with a pediatrician at another hospital, Dr. Schug recommended that Cody be transferred to that facility, which was 55 miles away, by private car due to recent delays in the emergency transport system. Cody died during the transfer. Facts surrounding diagnosis and treatment during Cody's last visit to the emergency room are also in significant dispute regarding issues including: (1) accuracy of lab results; (2) physician interpretation of lab results; and (3) delays in treatment due to the large volume of patients in the ER. After his shift ended, Dr. Schug prepared a four-page addendum to the medical record providing additional details about the patient's condition; Dr. Schug said he prepared such addenda routinely after his shifts.
The prosecution in the Burrows case is charging second-degree murder on basis of the theory known generally as "depraved heart murder," a theory in which the requisite state of malice for homicide is implied rather than explicit. The California criminal statutes provide for malice to be implied by circumstances that show "an abandoned and malignant heart" (California Penal Code § 188). Commentators have remarked that in order to constitute implied malice, the conduct must demonstrate exposure of the victim to a very high degree of risk, interpreted as more than unreasonable risk and more than simply high risk. The Model Penal Code approach allows designation of reckless conduct as murder only if the act in question was done "under circumstances manifesting extreme indifference to the value of human life." However, a significant minority of modern criminal codes do not recognize this type of murder at all. Typical circumstances in which prosecution for depraved heart murder is successful include: shooting a firearm into a dwelling or moving automobile and driving a motor vehicle through crowded streets at high speed. Other circumstances viewed as likely to qualify for this type of prosecution include dropping heavy objects from tall buildings and piloting a speedboat through a group of swimmers.
Cases involving reckless behavior and the deaths of children include: (1) shaking an infant so long and vigorously that it cannot breathe; and (2) knowingly confining a child without food and water for five days. Preliminary research indicated that there were at least 262 reported cases nationwide in which implied malice was an issue. A brief search indicated that none of these cases involved a physician as defendant. The purported conduct of Dr. Schug in this case appears to be clearly distinguishable from any of the examples noted above. In the instant case, the prosecutor is emphasizing the preparation of the addendum as evidence of both an attempt to "cover up" the doctor's actions and implied malice.
Although there is a clear public policy interest in protecting the health of children and ensuring they receive proper health care, it is unclear whether such a prosecution serves these policy goals. Because physicians are under both legal and ethical duties to promote the best interests of their patients it appears unlikely their actions could meet the criteria necessary to establish implied malice except in extreme cases, where explicit intent would also be apparent. Both the American and California Medical Associations have recognized that in the event prosecutions of this sort were to become common, they would have a significant chilling effect on the willingness of physicians to practice medicine.
Prosecutors should consider the likely unintended consequences of their actions, i.e., long term deterrence of physicians from practicing in remote and underserved areas due to the lack of support services. It would be contrary to good public policy if criminal prosecutions, which were intended to promote the best interests of children but proved misguided in practice, actually had the effect of reducing the medical care available to children and thus potentially increasing unnecessary suffering and deaths. The trial is expected to continue for several weeks.
See further discussion of case at Judge Dismisses Criminal Case Against California Physician.