Matter of J. N.

• Decision Date: 17 August 1979
• Docket Number: No. 12150.,No. 10737.,10737.,12150.
• Citation: 406 A.2d 1275
• Parties: In the Matter of J. N., Jr., Appellant. Leroy PARKER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

406 A.2d 1275

In the Matter of J. N., Jr., Appellant.

Leroy PARKER, Appellant, v. UNITED STATES, Appellee.

No. 10737.

No. 12150.

District of Columbia Court of Appeals.

Argued May 10, 1977.^*

Decided August 17, 1979.

Argued September 7, 1978.

Decided August 17, 1979.

Rehearings En Banc Granted and Opinion Vacated November 15, 1979.

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Robert W. Michels, Washington, D. C., appointed by this court for appellant in No. 10737.

James C. McKay, Jr., Asst. Corp. Counsel, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel, Washington, D. C., at the time the case was briefed and argued, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee in No. 10737.

Richard A. Rosen, Public Defender Service, Washington, D. C., for appellant in No. 12150. Silas Wasserstrom, Public Defender Service, Washington, D. C., entered an appearance for appellant in No. 12150.

William J. Cassidy, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., at the time the case was briefed and argued, John A. Terry and William J. Hardy, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee in No. 12150.

Before NEWMAN, Chief Judge, and KERN and NEBEKER, Associate Judges.

NEBEKER, Associate Judge:

Although these two cases arose from the same occurrence they were tried and were appealed separately. They are here consolidated for disposition. As each defendant raises different issues on appeal, we meet the concerns of each in sequence.

APPELLANT PARKER

Following a jury trial, the defendant was adjudged guilty of murder in the second degree under D.C.Code 1973, § 22-2401. He seeks a new trial on the ground that the trial judge failed to instruct the jury (1) that, if it concluded that a doctor's termination of the victim's life support system constituted willful or intentional malpractice or was an "abnormal" response to the victim's condition, it should find the defendant not guilty; and (2) that, if it found that the victim would have lived for more than a year and a day but for the termination of the life support system, it should find the defendant not guilty. We affirm.

I

On January 13, 1976, the appellant and three others attempted to snatch a purse from an 85-year-old woman. When the appellant latched onto the purse, the victim recoiled, whereupon she was struck from behind by one of the appellant's companions. The blow caused the victim to fall forward to the sidewalk. The band fled without the purse. A bystander found the injured woman conscious and able to talk. By the time the police arrived, she was unable to respond and an ambulance carried her to a hospital. There she was administered to by a resident and thereafter by a neurosurgeon. Upon arrival at the hospital the victim was able to talk. Her condition, however, quickly degenerated to where she could neither speak nor respond to verbal commands. After 24 hours in the hospital, she exhibited only primitive reflexes to stimuli. She failed to improve. Six days later, on January 19, on the basis of the patient's condition and her age, after consultation with other physicians involved in the case and upon agreement by the victim's son, the neurosurgeon discontinued all "heroic measures."¹ The woman died fifteen to twenty minutes later.

II

The trial judge properly refused to instruct the jury on the defense's theory that discontinuing the "heroic measures" may have constituted an "intervening cause" of death² so as to insulate the defendant from homicide liability. Although no specific instruction was requested,³ the defendant suggests in his brief that the court could have properly instructed the jury as follows:

If you find that the Government has proved beyond a reasonable doubt all the other elements of the offense and that the defendant caused [the victim's] death, it is your duty to find the defendant guilty of murder. If, on the other hand, you find that the Government has failed to prove beyond a reasonable doubt that the defendant caused [the victim's] death because the actions of [the physician] constituted intentional or willful malpractice or were an abnormal response to the situation caused by the defendant's acts, then you must find the defendant not guilty of murder. [Emphasis added.]

For such an instruction to have been proper, evidence must have been presented (1) to resolve the issue of what constitutes "intentional or willful malpractice" or an "abnormal response," and (2) to demonstrate that the actions of the attending physician breached that standard. E. g., Haven v. Randolph, 161 U.S.App.D.C. 150, 152, 494 F.2d 1069, 1070 (1974) (per curiam) (prima facie case established by evidence of standard and breach).⁴ In this case, there is no evidentiary basis for the kind of instruction now proposed.

The situation is analogous to a tort claim for medical malpractice. With one exception, a jury is permitted to find a physician liable in tort for malpractice only when the standard of care has been established by expert testimony. E. g., Harris v. Cafritz Memorial Hospital, D.C.App., 364 A.2d 135 (1976); Robbins v. Footer, 179 U.S.App.D.C. 389, 392-93, 553 F.2d 123, 126-27 (1977). The exception to the rule is:

Where laymen can say, as a matter of common knowledge and observation, that the type of harm would not ordinarily occur in the absence of negligence, the jury is allowed to infer negligence without expert testimony being presented. Haven v. Randolph, 161 U.S.App.D.C. 150, 151, 494 F.2d 1069, 1070 (1974); Prosser, The Law of Torts . . . 227. [Harris v. Cafritz Memorial Hospital, supra at 137 (emphasis added) (footnote omitted).]

See People v. Love, 45 Ill.App.3d 259, 3 Ill.Dec. 874, 876, 359 N.E.2d 733 (1977) ("where the evidence of causation is beyond the understanding of laymen, expert testimony must establish . . . the [cause of] death"), rev'd, 71 Ill.2d 74, 15 Ill.Dec. 628, 373 N.E.2d 1312 (1978) (evidence of causation sufficient without further expert medical testimony); State v. Brandt, 467 S.W.2d 948 (Mo.1971) (expert unnecessary where, from evidence, reasonable persons "of average intelligence would know from [their] own experience or knowledge that the wound was mortal in character," but expert testimony is necessary "where the cause of death is obscure and an average layman could have no well grounded opinion as to cause"); see also D. C. v. Barriteau, D.C.App., 399 A.2d 563 (1979) (expert testimony regarding economic loss). We will examine first the facts as they apply to the exception and then as they apply to the rule.

The medical conduct here involved does not, "as a matter of common knowledge and observation," constitute the requisite malpractice. The exception applies only where "a physician has committed a blunder so egregious that a layman is capable of comprehending its enormity. An example is the case of a surgeon who leaves a sponge in an incision after the removal of a kidney." Haven v. Randolph, supra 161 U.S.App.D.C. at 152, 494 F.2d at 1070, citing Rodgers v. Lawson, 83 U.S.App.D.C. 281, 284-85, 170 F.2d 157, 160-61 (1948). On facts quite similar to those here, however, an Illinois intermediate appellate court recently ruled that a physician's discontinuance of heroic measures was "reasonable" medical care.

Defendant's contention that the evidence failed to prove beyond a reasonable doubt that the victim died of the wounds from the gunshot is without merit. When the victim was brought to the hospital, his pulse was minimal. The neurosurgeon who examined him testified that the bullet had damaged a major portion of his brain and that he then exhibited many signs of death. The doctor's decision to withdraw life support measures was reasonable. [People v. Olson, 60 Ill.App.3d 535, 538, 18 Ill.Dec. 218, 222, 377 N.E.2d 371, 374-75 (1978).]

We need not hold that the doctor's actions were reasonable because that issue is not before us. It appears clear, however, that they were not so unreasonable, as a matter of common knowledge, as to be grossly negligent or worse.

The legal and medical authorities, cited in the briefs, confirm the conclusion that the facts here do not fall within the exception to the requirement of expert testimony. The government, on one hand, cites authorities to support the proposition that the neurosurgeon's action was reasonable as a matter of law. The defense, on the other hand, quotes from authorities holding the position that it is per se unreasonable for doctors, after consulting with a patient's family, to discontinue artificial life support measures. The lack of consensus among the cited authorities undermines the conclusion that the physician's actions here constituted gross malpractice as a matter of common knowledge.

Consideration of a series of articles in the New England Journal of Medicine also leads to this conclusion. In one article, the Critical Care Committee of the Massachusetts General Hospital reported on the "Optimum Care for Hopelessly Ill Patients." 295 New Eng.J.Med. 362 (1976). The Committee recommended to the hospital the use of a system by which critically ill patients are placed in one of four classes as follows:

1. Whenever appropriate, critically ill patients should be classified according to the following system.

Class A Maximal therapeutic effort without reservation.

Class B Maximal therapeutic effort without reservation but with daily evaluation because probability of survival is questionable.

Class C Selective limitation of therapeutic measures. The criterion which determines every aspect of the therapeutic regimen continues to be the overall welfare of the patient. At this time certain procedures may cease to be justifiable and become contraindicated. Particular attention must be given to resuscitation measures of all kinds. The therapeutic plan must be clearly detailed to the...