State v. Weiner

• Decision Date: 21 October 1963
• Docket Number: No. A--122,A--122
• Citation: 194 A.2d 467,41 N.J. 21
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Albert L. WEINER, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 21

41 N.J. 21

194 A.2d 467

STATE of New Jersey, Plaintiff-Respondent, v. Albert L. WEINER, Defendant-Appellant.

No. A--122.

Supreme Court of New Jersey.

Argued April 23, 1963.

Reargued June 3, 1963.

Decided Oct. 21, 1963.

Charles A. Cohen, Camden, for appellant.

Norman Heine, Camden County Prosecutor, for respondent.

The opinion of the court was delivered by

WEINTRAUB, C.J.

Defendant, a licensed physician of this State, was indicted for the involuntary manslaughter of 15 of his patients. He was convicted on 12 counts and acquitted on the other three. He was sentenced to two to four years in the New Jersey State Prison and fined $1,000 on each conviction, the sentences to run concurrently. We certified his appeal before the Appellate Division considered it.

Defendant's specialty is neuropsychiatry. His treatments included intravenous injections of certain drugs and also the infusion intravenously of a saline solution and a surital solution. The State's thesis was that death was caused by serum hepatitis transmitted into the blood stream by these injections and infusions.

The case is unusual. It is unusual in that a physician is charged with crime in pursuing procedures he intended to aid the patient. It is unusual in that there was a common trial of 15 charges arising out of separate events, and the State's proof included as well evidence of the alleged infection of 25 additional patients who recovered. It is unusual in that the State was unable to prove what precise failure or misconduct transmitted the fatal disease. The issues on this appeal arise from these circumstances, and to see them in perspective, the nature of the disease and the state of medical knowledge must be understood.

Hepatitis is an inflammation of the liver. It may come from sundry causes. Three forms figure largely in this case. One, called 'toxic' hepatitis, is caused by certain drugs or chemicals and we gather is noncontagious. The other two, attributed to a virus, are called 'viral' hepatitis. One form of viral hepatitis is 'infectious' hepatitis and is communicated or transmitted by the fecal-oral route. The other form of viral hepatitis is 'serum' hepatitis, and this is transmitted directly into the blood stream by the injection of contaminated material. The State's case depended upon the thesis that the decedents died of serum hepatitis, transmitted into their veins by the injections and infusions which we have already mentioned and which we will shortly describe.

The important fact to be noted is that although infectious hepatitis and serum hepatitis are deemed to be viral, the offending virus or viruses, if there are more than one, have not been isolated and hence have never been cultured. Accordingly there is no way to detect the virus by examination of equipment or drug or solution. Indeed there are carriers of the disease who reveal no evidence of it and who cannot be uncovered by any test. Dr. Hans Popper, produced by the State as a leading authority on diseases of the liver, testified:

'I would like to state that we cannot culture the virus, that is the only way how we can obtain information about--definite information about the existence of virus, is by establishing in a human volunteer that the certain material is infectious. Obviously there are tremendous limitations in doing so. This is the reason for our limited knowledge of viral hepatitis. This is the reason why I am forced to answer many questions I don't know, I don't think so, it may be so.'

Dr. Alexander Duncan Langmuir, Chief Epidemiologist of the Communicable Disease Center of the United States Public Health Service, said:

'* * * The infectious hepatitis in the last four or five years has become one where we have become increasingly realizing how important the total problem is. In addition to the routine reports which are put out each week, we put out rather extensive surveillance reports to specialize persons.'

Further, even upon pathological examination of the liver tissue it apparently cannot be told whether the hepatitis is infectious or serum. Thus upon autopsy in any given case all that can be said is that the hepatitis is viral in nature. Whether the disease is the infectious type or the serum type can be only inferred from a survey of a much larger scene and by finding in that scene evidence of the known differences between the two viral hepatitises. One such difference is that the rate of fatality is distinctly higher in the case of serum hepatitis. Another is that the incubation period with respect to infectious hepatitis is two to six weeks, while the period in the case of serum hepatitis is six weeks to six months, or, according to some testimony, as much as one year.

Here the incidence of viral hepatitis among defendant's patients, when contrasted with the incidence of the disease in the locality, convincingly pointed to defendant's office as the place where the infection was transmitted; and that the hepatitis was serum, rather than infectious, was inferable from the rate of fatality, and also, at least in the view of an epidemiologist produced by the State, from the incubation pattern which he found in the dates of illnesses of the 40 patients to whom we have referred. And of course the circumstance that all of the victims received intravenous injections or infusions supplied the final fact without which the diagnosis of serum hepatitis could not have been made.

The record would well warrant a finding that serum hepatitis was transmitted in defendant's practice. We do not mean that there was no serious issue of fact as to the cause of death of the 15 patients. There was considerable conflict in expert evaluation of the post-mortem findings, and the jury probably acquitted the defendant of three of the charges because it was not convinced that the deaths therein involved were due to serum hepatitis.

I.

We of course must keep in mind that this is a criminal case. In a civil action for damages, the question is whether a loss shall remain where it fell or be shifted to him whose act brought it about. The test there is ordinary negligence--the failure to behave as would a reasonable man in such circumstances. The issue being only whether the victim or the actor shall bear the dollar impact, the law goes far in permitting the trier of the facts to 'infer' both fault and causal connection between the fault and the loss. Indeed, if the total circumstances bespeak a likelihood of fault upon the part of a defendant, the law, for civil purposes, permits a jury to infer negligence even though the precise respect in which there was fault cannot be identified. So here, if the suit were for damages, it could be urged (we of course have no occasion here to pass upon it) that the total picture breathes the probability that defendant was careless somewhere and that his unidentifiable carelessness brought about these deaths. And in that connection, we would not be troubled by the possibility that one of defendant's nurses may have been the careless actor, since for the purposes of civil liability, defendant, as the employer of a nurse, must answer for her fault even though he was personally blameless.

But a criminal case is another matter. The injury to be vindicated is not the personal wrong suffered by the victim but rather an outrage to the State. And the question is not whether a defendant should absorb the dollar loss of his victim but whether his conduct justifies stamping him a criminal and sending him to State Prison. In that inquiry, the test is not ordinary negligence--behavior of which men of the highest character are capable. Rather, as phrased in 1 Warren, Homicide (perm. ed. 1938), § 86, p. 424:

'Negligence, to be criminal, must be reckless and wanton and of such character as shows an utter disregard for the safety of others under circumstances likely to cause death.'

See State v. Williams, 29 N.J. 27, 40, 148 A.2d 22 (1959); State v. Blaine, 104 N.J.L. 325, 327--328, 140 A. 566 (E. & A. 1928). And whereas a doctor is chargeable in a private suit for the negligence of his nurse-employee, he is not chargeable criminally on the basis of Respondeat superior. 1 Burdick, Law of Crimes § 179, p. 231; see State v. Pinto, 129 N.J.L. 255, 257, 29 A.2d 180 (Sup.Ct.1942); State v. Waxman, 93 N.J.L. 27, 107 A. 150 (Sup.Ct.1919). 'For it is of the very essence of our deep-rooted notions of criminal liability that guilt be personal and individual * * *' Sayre, 'Criminal Responsibility for Acts of Another,' 43 Harv.L.Rev. 689, 717 (1930). Accordingly, if defendant is to be criminally liable with respect to an act or omission of his nurse, it could not be merely because he was her employer. He could be so liable only if he directed her conduct or assented to it or failed to act with respect to it in circumstances which indicate the same wantonness or recklessness to which we have referred. And finally, whereas in civil matters the plaintiff need prove his case only by a mere preponderance of the proof, yet in a prosecution for manslaughter based upon criminal negligence the State must prove guilt beyond a reasonable doubt, a test which, despite some theoretical devaluations of it, does serve to tell the trier of the facts that a criminal trial is no guessing game.

II.

The proof upon the issue of criminal fault revolved about defendant's procedures relating to injections and infusions. To anesthetize the patient, defendant injected either amobarbital or surital into the vein, using the familiar syringe and needle. The infusions were of two kinds. One was of saline solution, used immediately after an injection of a drug if the drug was found to irritate the vein. The other solution was a dilute mixture of surital and saline, used to maintain a state of anesthesia first achieved by injection of the drug.

The infusion procedure was the same in both cases. To the bottle containing the solution there was attached a plastic tube of some...