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Dr. Murray’s Preliminary Hearing Delayed: Res Ipsa Loquitur
Judge Michael Pastor said he “wanted to expedite” the case, but has delayed the preliminary hearing for Dr. Conrad Murray, charged in Michael Jackson’s death, until early next year. The prosecution claims they need more time for investigation and that some of their witnesses are not available until then. While nothing is as ever as simple as it seems, the case here seems pretty simple.
1. Use of propofol without proper monitoring in a medical facility for any FDA approved purpose, namely sedation and general anesthesia, is a deviation from the standard of care and constitutes negligence under civil law.
2. Use of propofol in someone’s home to facilitate sleep is arguably negligence per se, regardless of the monitors being used, if we were talking about medical malpractice. It is not however, illegal when done by a physician……unless….
3. The California penal code says you are guilty of involuntary manslaughter if someone is killed in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. That certainly applies here.
In medical negligence, which is civil law, there is a term which refers to negligence proven without the need for testimony from experts. “Res Ipsa Loquitur”, literally translated from the Latin as “The Thing Itself Speaks” (often altered to ‘the thing speaks for itself”) refers to a negligence case where the facts are such that there is no need to further discuss them, only to determine that the defendant was the cause of the harm claimed by the plaintiff. For example, if someone’s watch is left in the patient there is little else to be said, other than whose watch was it?
Res ipsa loquitur has been around as a legal concept since 1863 and the English case of Byrne v. Boadle, where an individual was killed by a barrel of flour that fell out of a warehouse window. Said the court:
The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them.
Of course there is no res ipsa loquitur in criminal law, but if there were, the death of Michael Jackson would be a prime example.
Murray is lucky he is not charged with second degree murder for acting with wanton disregard for a human life.
California Penal Code Sec 187-199 Ch. 1 Homicide
192. Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: (a) Voluntary–upon a sudden quarrel or heat of passion. (b) Involuntary–in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.
193. (a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years. (b) Involuntary manslaughter is punishable by imprisonment in the state prison for two, three, or four years.
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[...] recently talked about res ipsa loquitur in an offbeat and roundabout way. Now let’s take a real case from current court proceedings [...]
[...] search is on for jurors in the trial of Dr. Conrad Murray, charged with involuntary manslaughter in the homicide death of music icon Michael Jackson. As part of voir dire (preliminary examination [...]
[...] As we have said before, the fact that Jackson died from propofol intoxication, and the fact that the propofol was brought into his house by Conrad Murray for treatment of Jackson’s insomnia, is ALL of the information necessary to find Murray guilty. NO amount of additional testimony or facts can in any way change his guilt to innocence. No intervening acts or occurences can change this simple truth. [...]