147 Cal.App.3d 1006, 195 Cal.Rptr. 484
Clarence Herbert underwent surgery for closure of an ileostomy performed by petitioner Robert Nejdl, M.D., with petitioner Neil Barber, M.D., serving as his attending internist.1 Shortly after the successful completion of the surgery and while in the recovery room, Mr. Herbert suffered a cardiorespiratory arrest. He was revived by a team of physicians and nurses and immediately placed on life support equipment.2
Within the following three days, several physicians determined that Mr. Herbert was in a deeply comatose state from which he was not likely to recover. Tests and examinations indicated that he had suffered severe brain damage, leaving him in a vegetative state that was likely to be permanent.3 Petitioners informed Mr. Herbert’s family of their opinion as to his condition and chances for recovery.4
The family convened and drafted a written request to the hospital personnel stating that they wanted all machines taken off that are sustaining life.5 As a result, petitioners 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.6
After two more days had elapsed, petitioners, after consulting with the family, ordered removal of the intravenous tubes which provided hydration and nourishment.7 From that point until his death, Mr. Herbert received nursing care which preserved his dignity and provided a clean and hygienic environment.8
Petitioners were charged in a complaint with the crimes of murder and conspiracy to commit murder.9 At the close of a lengthy preliminary hearing the magistrate ordered the complaint dismissed.10 On motion of the People the superior court ordered the magistrate to reinstate the complaint.11 Petitioners filed petitions for writs of prohibition in the Court of Appeal, which issued an alternative writ and calendared the matter for oral argument.12
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 and conspiracy to commit murder?13
Murder requires an unlawful killing with malice, but a physician owes no duty to continue futile life-sustaining treatment once it has proved ineffective in the opinion of qualified medical personnel, and withdrawal of such treatment constitutes an omission rather than an affirmative act for which there is no criminal liability absent a duty.14
Yes. The magistrate's determination was supported by substantial evidence because petitioners' conduct was an omission of futile treatment rather than an unlawful killing with malice.15 The evidence established that Mr. Herbert was in a permanent vegetative state with virtually no chance of recovering cognitive or motor functions, as confirmed by multiple physicians and tests.16 The family, acting as surrogate decisionmakers after being informed of the prognosis, executed a written request to discontinue life support, and petitioners complied in good faith by first removing the respirator and later the intravenous tubes while providing only dignified nursing care.17
Under the rule, once treatment becomes futile there is no duty to continue it, the withdrawal is not an affirmative act, and the family surrogates' decision based on the patient's prior expressed wishes and best interests renders the conduct lawful.18 The superior court therefore erred in concluding as a matter of law that the conduct was unlawful.19
The evidence was sufficient to support the magistrate's determination that petitioners should not be held to answer, and the peremptory writ of prohibition should issue to prevent reinstatement of the complaint.20