AMA Defends Dr. Murray Against Criminal Acts

by John M. Curtis
(310) 204-8700

Copyright September 12, 2011
All Rights Reserved.                                         

           When Dr. Conrad Murray—the doctor accused of giving pop singer Michael Jackson a lethal dose of the anesthetic Propofol—was charged with involuntary manslaughter by the Los Angeles County District Attorney, it raised objections in the medical community.  Acts beneath the standard of care or gross negligence typically fall within the civil courts.  Criminal cases involving physicians have increased by about 33% between 1981 and 2011, prompting the American Medical Association to emphatically reject criminal prosecution.  “Attempted criminalization of health care decision-making especially as represented by the current trend toward the criminalization of malpractice,” interferes with medical decision-making, making the case that malpractice cases should stay only in the civil courts.  Most criminal cases brought against physicians involve prescription abuses.

            AMA officials don’t get that the vast majority of medical malpractice don’t wind up in the criminal courts.  Only those cases where the doctor’s misconduct crosses the line show up in criminal courts.  Many egregious malpractice cases, that either injure of maim patients, end up in arbitration, usually in the hands of skillful mediators.  Murray’s case involves a doctor that didn’t practice medicine but some kind of twisted experimentation without any medical precedent.  Murray concocted his own way of treating insomnia by anesthetizing Jackson with a fast acting operating room anesthetic.  AMA officials can’t possibly believe that anything goes in medicine.  When the world looked on in horror at Nazi medical experiments after WW II, no one defended the actions as medical practice.  They saw it for what it was pure sadism, controlled violence perpetrated on innocent victims.

            Malpractice actions of the last 41 years date back to the 1970 Controlled Substance Act, where over-prescribing sometimes results in the death of unsuspecting victims.  Judges and juries must be convinced the doctors knowingly prescribed medications outside the scope of professional practice.  Prosecutors must prove that that the doctor knowingly aid intentionally prescribed medications outside “the usual course of professional practice“ or not for some “legitimate medical purpose” to establish criminal conduct.  Murray’s lack of experience in anesthesia or treating insomnia falls closely in line with outside “the usual course of professional practice” and not for some “legitimate medical purpose” falls within the strict medical definitions of gross negligence.  Murray’s chief defense attorney Ed Chernoff knows his client faces an uphill battle to exoneration.

                 Given Murray’s malpractice coverage, it’s not likely to cover criminal acts for which the 59-year-old doctor is charged.  There’s very little precedent for Murray to take solace heading into his Sept. 27 trial.  Anna Nicole Smith’s doctor Sandeep Kapoor was acquitted of causing the death of Smith by prescribing her various medications on which she inadvertently overdosed.  While Murray’s case involves the controlled substance of Propofol, the prosecution’s case is about using an unsound method without proper training, experience or certification in anesthesia.  If convicted Murray faces a maximum of four years in state prison for causing Jackson’s death.  Prosecutors decided early on that they’d charge Murray with involuntary manslaughter, requiring not intent, only reckless negligence as defined by the California Penal Code.  AMA officials take the position that Murray’s case involved only malpractice

        Murray’s attorney plans to place medical experts from the AMA before the jury to argue that his client was guilty of non-criminal malpractice but not criminal involuntary manslaughter.  He agrees with the AMA that criminally prosecuting doctors adds to the burden of practicing medicine.  Even experts at the AMA or any other professional organization must confess that Murray’s Propofol drip breached every known rule of practicing medicine.  He concocted his own anesthesia machine for which he had no experience, training or expertise to treat an equally unfamiliar condition called insomnia.  While Murray’s defense will likely say that Jackson was a prescription drug addict and asked Murray for the Propfol treatment, that’s no excuse for a doctor to capitulate to patient’s demands.  Doctors must operate within a scope of practice based on experience, training and expertise.

            If there were ever a line crossed between medical malpractice and criminal negligence, Murray crossed it concocting his own insomnia machine giving Jackson an unmonitored Propofol drip.  There’s no legitimate precedent for treating insomnia with operating room anesthesia.  Surgeons know that most deaths from surgery occur because of anesthesia, not surgical procedures per se.  “Doctors are not supposed to be law enforcement agents.  They’re supposed to believe in their patients,” said University of Maryland law professor and legal health care expert Diane Hoffmann.  Hoffman doesn’t get that practicing medicine has strict parameters bound by medical precedent, training, experience, expertise and certification by physicians.  Doctors are not at liberty to make up outrageous treatments that wind up maiming or killing their patients.  Murray crossed the line and now stands accountable.

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com.and author of Dodging the Bullet and Operation Charisma.

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