Takeaway
In short, this case holds that doctors do not commit murder by withdrawing medically futile life support, including intravenous nutrition and hydration, when no legal duty requires its continuation and appropriate family surrogates make the decision for an incapacitated patient.
Clarence Herbert suffered a cardiorespiratory arrest shortly after surgery and was revived, but he sustained severe oxygen-related brain damage. Over the next three days, treating and consulting physicians concluded that he was deeply comatose, likely permanently vegetative, and had virtually no prospect of meaningful cognitive recovery. His surgeon, Dr. Robert Nejdl, and attending internist, Dr. Neil Barber, explained the extremely poor prognosis to Herbert’s family.
Herbert’s wife and children asked the hospital to remove the machines sustaining his life. The physicians withdrew the respirator and other life-support equipment. Herbert continued breathing on his own, but his condition did not improve. Two days later, after further consultation with the family, the doctors ordered the withdrawal of intravenous hydration and nutrition. Herbert later died.
The doctors were charged with murder and conspiracy to commit murder. After a lengthy preliminary hearing, the magistrate dismissed the complaint, finding that the doctors had not proximately caused Herbert’s death, had acted in good-faith and medically sound judgment, and lacked malice. On the People’s motion under Penal Code section 871.5, the superior court ordered the complaint reinstated, reasoning that intentionally shortening life without express legal authorization was unlawful. The doctors sought writs of prohibition.
Issue #1
Whether the Natural Death Act or a finding of brain death supplied the exclusive legal basis for withdrawing life-sustaining treatment.
Holding
No. A patient need not have executed a Natural Death Act directive, and the patient need not be brain dead, before life-sustaining treatment may lawfully be withdrawn.
Reasoning
California already recognized a competent adult’s fundamental right to control medical treatment before enactment of the Natural Death Act. The familiar informed-consent rule—that nonconsensual treatment may constitute battery—necessarily includes a patient’s right to refuse treatment.
The Natural Death Act did not displace other lawful means of withholding or withdrawing life-sustaining procedures. Its own cumulative-provisions clause preserved preexisting legal rights and responsibilities. Treating the statute as exclusive would also make patients’ rights depend on a narrow and procedurally burdensome advance-directive scheme.
The statutory definition of brain death likewise did not establish a prerequisite for ending treatment. Herbert was alive under both traditional and statutory definitions of death, but the case concerned whether treatment had to continue for a patient facing an indefinite vegetative existence with no realistic prospect of cognitive recovery.
Issue #2
Whether disconnecting a respirator and withdrawing intravenous nutrition and hydration are affirmative acts of killing rather than omissions of further medical treatment.
Holding
No. Under these circumstances, withdrawing those measures is an omission or cessation of treatment, not an affirmative act of homicide.
Reasoning
Life-support machinery and intravenous feeding are forms of ongoing medical treatment. Each mechanical breath or intravenous infusion is comparable to a separately administered medication or injection; disconnecting the device is therefore comparable to withholding further medication rather than committing an independent affirmative act.
The court rejected the People’s proposed distinction between respiratory support and medically administered nutrition and hydration. Intravenous nutrition and hydration are medical procedures whose benefits and burdens should be evaluated like other treatment, not treated as ordinary feeding merely because food and water carry powerful emotional symbolism.
Because the doctors’ conduct was an omission, criminal liability could arise only if they had a legal duty to continue the treatment. The case therefore turned on the scope of the physicians’ duty to a patient whose treatment no longer offered meaningful benefit.
Issue #3
Whether physicians have a legal duty to continue life-sustaining treatment after qualified medical judgment determines that it is futile.
Holding
No. Physicians have no duty to continue life-sustaining treatment that has become medically futile and offers no reasonable prospect of improving the patient’s prognosis.
Reasoning
A physician must exercise the degree of care and skill accepted in the medical profession, but that standard does not require treatment that has proved useless. Life support may be appropriate immediately after a cardiorespiratory arrest while physicians assess the patient and seek to treat the underlying condition; it need not continue after qualified medical personnel reasonably conclude that it cannot improve the prospect of recovery.
The court rejected rigid labels such as “ordinary” and “extraordinary” treatment. The more useful inquiry is whether treatment is proportionate: whether, from the patient’s perspective, it has a reasonable chance of producing benefits that outweigh its burdens. Even minimally invasive treatment can be disproportionate when it only prolongs a hopeless vegetative condition.
The evidence supported the magistrate’s conclusion that the doctors reasonably found Herbert’s prognosis virtually hopeless. Although one expert described a spectrum of possible “recovery,” the evidence showed that meaningful cognitive or motor recovery was exceedingly unlikely, while continued intervention would preserve only biological functioning.
Issue #4
Whether the doctors could rely on Herbert’s wife and children as surrogate decisionmakers without a formal guardianship proceeding or prior court approval.
Holding
Yes. In the absence of legislation requiring guardianship or judicial approval, the doctors’ reliance on Herbert’s wife and children did not make the withdrawal of treatment unlawful.
Reasoning
When a patient cannot decide, a surrogate should first seek to follow the patient’s previously expressed wishes. If those wishes are unknown, the surrogate should decide according to the patient’s best interests, considering such matters as suffering, functioning, the quality and extent of life sustained, and the impact on close family members.
Herbert had told his wife that he would not want to be kept alive by machines or become another Karen Ann Quinlan. His wife and eight children jointly requested withdrawal after consultation with the physicians, and there was no evidence of disagreement, improper motive, or disregard for his welfare.
Herbert’s wife was the most appropriate surrogate because she and the children were best positioned to know his values and were closely involved in his care. The court agreed with authorities recognizing that routine court involvement would improperly intrude into medical decisionmaking and would be impractically cumbersome, though courts remain available when an actual controversy exists.
Issue #5
Whether the evidence required the doctors to be held to answer for murder and conspiracy to commit murder.
Holding
No. Because the doctors had no legal duty to continue futile treatment, their intentional omission was not unlawful and could not support the charged offenses.
Reasoning
Murder requires an unlawful killing with malice aforethought. The court accepted, for purposes of analysis, that an intentional unlawful killing could permit an inference of malice despite benevolent motives. But that premise did not apply because the doctors’ decision to discontinue futile treatment was not an unlawful failure to perform a legal duty.
Without an unlawful killing, the superior court erred by treating the shortening of biological life, standing alone, as murder. Criminal law could not be used to impose a duty to continue treatment that medical judgment had reasonably found futile and that the patient’s proper surrogates had requested be withdrawn.
Having resolved the case on the absence of an unlawful duty, the court found it unnecessary to decide proximate causation. It nevertheless noted that the evidence amply supported the magistrate’s finding that Herbert’s underlying diffuse brain damage, rather than the doctors’ conduct, was the principal cause of death. The court ordered a peremptory writ barring further action except vacatur of the reinstatement order and denial of the People’s motion.