Barber v. Superior Court

• Decision Date: 12 October 1983
• Parties: , 47 A.L.R.4th 1 Neil Leonard BARBER, Petitioner, v. SUPERIOR COURT OF the STATE OF CALIFORNIA for the COUNTY OF LOS ANGELES, Respondent. PEOPLE of the State of California, Real Party in Interest. Robert Joseph NEJDL, Petitioner, v. SUPERIOR COURT OF the STATE OF CALIFORNIA for the COUNTY OF LOS ANGELES, Respondent. PEOPLE of the State of California, Real Party in Interest. Civ. 69350, Civ. 69351.
• Court: California Court of Appeals Court of Appeals

Page 484

195 Cal.Rptr. 484

147 Cal.App.3d 1006, 47 A.L.R.4th 1

Neil Leonard BARBER, Petitioner, v. SUPERIOR COURT OF the STATE OF CALIFORNIA for the COUNTY OF LOS ANGELES, Respondent.

PEOPLE of the State of California, Real Party in Interest.

Robert Joseph NEJDL, Petitioner, v. SUPERIOR COURT OF the STATE OF CALIFORNIA for the COUNTY OF LOS ANGELES, Respondent.

PEOPLE of the State of California, Real Party in Interest.

Civ. 69350, Civ. 69351.

Court of Appeal, Second District, Division 2, California.

Oct. 12, 1983.

Maxwell S. Keith, Oakland, George A. Oakes, Munns, Kofford, Hoffman, Hunt & Throckmorton, Pasadena, for petitioner Barber, M.D.

Harland W. Braun, William J. Gargaro, Jr., Los Angeles, for petitioner Nejdl, M.D.

Robert H. Philibosian, Dist. Atty. of Los Angeles, Harry B. Sondheim, Head, Appellate Div., Richard W. Gerry, Nikola M. Mikulicich Hyatt E. Seligman, Deputy Dist. Attys., for real party in interest.

No appearance for respondent court.

COMPTON, Associate Justice.

In these consolidated proceedings we consider petitions for writs of prohibition pursuant to Penal Code section 999a filed by two medical doctors who are charged in a complaint, now pending before a magistrate in the Los Angeles Judicial District, with the crimes of murder and conspiracy to commit murder--both felonies.

At the close of a lengthy preliminary hearing the magistrate ordered the complaint dismissed. On motion of the People, pursuant to Penal Code section 871.5, the superior court ordered the magistrate to reinstate the complaint. These proceedings followed. We issued the alternative writ, calendared the matter and heard oral argument. We have concluded that the peremptory writ should issue.

Deceased Clarence Herbert underwent surgery for closure of an ileostomy. Petitioner Robert Nejdl, M.D., was Mr. Herbert's surgeon and petitioner Neil Barber, M.D. was his attending internist. Shortly after the successful completion of the surgery, and while in the recovery room, Mr. Herbert suffered a cardio-respiratory arrest. He was revived by a team of physicians and nurses and immediately placed on life support equipment.

Within the following three days, it was determined that Mr. Herbert was in a deeply comatose state from which he was not likely to recover. Tests and examinations performed by several physicians, including petitioners herein, each specializing in relevant fields of medicine indicated that Mr. Herbert had suffered severe brain damage, leaving him in a vegetative state, which was likely to be permanent.

At that time petitioners informed Mr. Herbert's family of their opinion as to his condition and chances for recovery. While there is some dispute as to the precise terminology used by the doctors, it is clear that they communicated to the family that the prognosis for recovery was extremely poor. At that point, the family convened and drafted a written request to the hospital personnel stating that they wanted "all machines taken off that are sustaining life" (sic). As a result, petitioners, either directly or as a result of orders given by them, caused the respirator and other life-sustaining equipment to be removed. Mr. Herbert continued to breathe without the equipment but showed no signs of improvement. The family remained at his bedside and requested of the nursing staff that Mr. Herbert not be disturbed. They even objected to certain routine procedures followed by hospital personnel in caring for comatose patients.

After two more days had elapsed, petitioners, after consulting with the family, ordered removal of the intravenous tubes which provided hydration and nourishment. From that point until his death, Mr. Herbert received nursing care which preserved his dignity and provided a clean and hygienic environment.

The precise issue for determination by this court is whether the evidence presented before the magistrate was sufficient to support his determination that petitioners should not be held to answer to the charges of murder (Pen.Code, § 187), and conspiracy to commit murder (Pen.Code, § 182).

As we will later discuss, this issue must be determined against a background of legal and moral considerations which are of fairly recent vintage and which as a result have not, in our opinion, been adequately addressed by the Legislature.

In Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, at page 7, 116 Cal.Rptr. 575, Justice Fleming observed that "prosecution of a lawsuit is a poor way to design a motor vehicle." By analogy it appears to us that a murder prosecution is a poor way to design an ethical and moral code for doctors who are faced with decisions concerning the use of costly and extraordinary "life support" equipment.

Murder is the unlawful killing of a human being, ... with malice aforethought." (Pen.Code, § 187, emphasis added.) Malice may be express or implied. It is express when there is an intent unlawfully to take any life. It is implied when the circumstances show an abandoned and malignant heart. (Pen.Code, § 188.)

The magistrate who heard the evidence made written findings of fact and concluded that (1) petitioners did not "kill" the deceased since their conduct was not the proximate cause of death--the proximate cause (the principal cause listed on the death certificate) being diffuse encephalomalacia, secondary to anoxia, (2) the petitioners' conduct under the circumstances, being the result of good faith, ethical and sound medical judgment, was not unlawful, and (3) the petitioners' state of mind did not amount to "malice."

The superior court judge, as he was required to do under the statute before ordering reinstatement of the complaint, concluded as a matter of law that petitioners' conduct, however well motivated, and however ethical or sound in the eyes of the medical profession, was, under California law, "unlawful." This conclusion was reached despite his determination that the magistrate's findings were supported by substantial evidence.

The judge opined that, since everyone, sooner or later will die, homicide is simply the shortening of life by some measurable period of time and inasmuch as the petitioners' intentional conduct, which shortened Mr. Herbert's life, was not authorized by law, it constituted murder.

Of course the term homicide simply connotes the death of an individual at the hands of another. In any homicide the end result is the same--the death of a human being. Whether or not a homicide is punishable as a crime in the first instance, and the degree of punishment which is imposed in the case of a criminal homicide depends upon the mental culpability of the person causing the death.

The term "malice" is an amorphous and ill-defined state of mind which the law considers sufficiently culpable to make an unlawful killing murder rather than some lesser form of criminal homicide such as manslaughter. While the law is settled that motive is irrelevant to a determination of whether a killing amounts to murder, the lack of precision in defining malice often makes it difficult to disentangle motive from a determination of what constitutes malice.

For the purposes of this decision, however, we accept the superior court judge's analysis that if petitioners unlawfully and intentionally killed Mr. Herbert, the malice could be presumed regardless of their motive.

The use of the term "unlawful" in defining a criminal homicide is generally to distinguish a criminal homicide from those homicides which society has determined to be "justifiable" or "excusable." Euthanasia, of course, is neither justifiable nor excusable in California.

In California, homicide is excusable, inter alia, "when committed by accident and misfortune, ... in doing any ... lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent." (Pen.Code, § 195, emphasis added.) Since petitioners conduct, whether lawful or unlawful, was intentional, if it resulted in the shortening of Mr. Herbert's life, it was not a matter of accident and misfortune.

Since "justifiable" homicide, by a person other than a peace officer, in California is limited essentially to cases of self-defense and defense of others (Pen.Code, § 197), that concept has no application here.

Obviously the above mentioned concepts evolved and were codified at a time well prior to the development of the modern medical technology which is involved here, which technology has caused our society to rethink its concepts of what constitutes "life" and "death."

This gap between the statutory law and recent medical developments has resulted in the instant prosecution and its attendant legal dispute. That dispute in order to be resolved within the framework of existing criminal law must be narrowed to a determination of whether petitioners' conduct was unlawful. That determination, as indicated above, must be made on the basis of principles other than those limited ones set forth in Penal Code sections 195 and 197.

The California Legislature has dealt partially with some of the problems that have arisen as a result of modern developments.

Historically, death has been defined in terms of cessation of heart and respiratory function. (Matter of Quinlan (1976) 70 N.J. 10, 355 A.2d 647, 656; U.S. cert. den. 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289; Eichner v. Dillon (1980) 73 A.D.2d 431, 426 N.Y.S.2d 517, 531; State v. Johnson (1977) 60 Ohio App.2d 45, 395 N.E.2d 368, 371.) Health and Safety Code section 7180(a)(2) ¹ now provides for an alternative definition in terms of irreversible cessation of all brain function.

This is a clear recognition of the fact that the real seat of "life" is brain function rather than mere metabolic processes which result from respiration and circulation.

Of course it is conceded by all that at the time petitioners terminated further treatment, Mr. Herbert was not "dead" by either statutory or historical standards since there was still some minimal brain...