The day after Michael Jackson died I speculated about a very rare prosecution; that of a doctor for the death of a patient. I later explored two other risks that Dr. Conrad Murray faced, one for malpractice and one for his license (see: Michael Jackson: Malpractice or Manslaughter (Or Something Else?). Now Dr. Murray has been charged with involuntary manslaughter, clearly the most significant of the three risks.

With the concept of such rare criminal prosecutions firmly in mind, we re-visit the death of a patient 17 years ago at the hands of a New York doctor in this guest blog by Eric Rothstein. He was a young prosecutor in the office of the Queens District Attorney that charged Dr. David Benjamin with second degree murder.
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By Eric Rothstein

The news that the Los Angeles County District Attorney has charged Conrad Murray with Involuntary Manslaughter in connection with Michael Jackson's death has people debating whether his actions warrant a criminal prosecution, in addition to a potential wrongful death suit by Jackson's estate and possible revocation of his medical license. The decision to criminally charge Dr. Murray is rare, but not unprecedented.

In 1993, a grand jury in Queens County, New York, charged Dr. David Benjamin with Murder in the Second Degree after his 33 year old patient, Guadalupe Negron, died due to complications from a botched and illegal abortion that he performed in his storefront medical office. Dr. Benjamin was thought to be the first doctor charged with murder in New York State due to a patient's death during a medical procedure. At the time of Mrs. Negron's death, Dr. Benjamin's license to practice medicine was in the process of being revoked for "gross incompetence and negligence" in five previous cases in which the women he treated suffered life-threatening perforations to their uteruses -- the same injury that led to Mrs. Negron's death.

Mrs. Negron learned of Dr. Benjamin's clinic from a newspaper advertisement in a Spanish-language newspaper. She paid Dr. Benjamin $800 for the abortion because she needed to go to work to help support her four children, three of them living in Honduras.

The evidence at trial showed that Dr. Benjamin performed a second-trimester abortion; Mrs. Benjamin was likely between nineteen and twenty weeks pregnant at the time. The abortion procedure lasted between one hour and fifteen minutes and two hours. Because there are greater risks involved in performing an abortion on a woman who is between nineteen and twenty weeks pregnant than in one in the first trimester, heightened safety measures were required. However, Dr. Benjamin did not adjust his procedure to account for the increased risk. During the procedure, Dr. Benjamin caused a three-inch laceration, extending from Mrs. Negron's vagina through her cervix, which perforated her uterus. The perforation of the uterus caused massive bleeding.

Following the abortion, Dr. Benjamin had Mrs. Negron wheeled into the recovery room while he performed another abortion even though she complained of feeling ill. Following such an abortion procedure, appropriate medical practice requires that the patient be monitored by trained medical personnel every five minutes for at least an hour. Dr. Benjamin ignored Mrs. Negron for at least one hour and there were no other trained medical personnel, no equipment to monitor her vital signs and no established emergency procedures.

After approximately one hour and ten minutes, Dr. Benjamin reexamined Mrs. Negron, who was cold. Dr. Benjamin's receptionist called 911. In a panicked attempt to revive the victim, Dr. Benjamin inserted an air tube into her esophagus, rather than her trachea. When the paramedics arrived, Dr. Benjamin falsely informed them that the abortion was performed without complications. When Mrs. Negron was lifted off the examining table to be transported to the hospital, about a liter of her blood remained on the table. In the end, Dr. Benjamin compounded his botched abortion by misleading paramedics about what happened.

After being convicted by a jury, the Judge sentenced Dr. Benjamin to 25 years to life in jail. Having exhausted his appellate rights, he remains incarcerated in a New York State penitentiary.

As part of the District Attorney's investigation, the Office executed a search warrant at Dr. Benjamin's office. I was a young Assistant District Attorney at the time and was present when the warrant was served. While I do not remember everything, I do recall the blood stained couch where Mrs. Negron rested following the procedure and seeing what appeared to be dirty instruments strewn about in various places in Dr. Benjamin's facility. I definitely remember feeling sorry for the people who had no other options but to turn to this storefront abortion clinic.

Though rare, prosecution of physicians is sometime appropriate. Dr. Benjamin's actions showed depraved indifference to human life and thus warranted the murder charge. It is probably safe to say that we have yet to learn all the facts in Dr. Murray's case. However, Dr. Murray allegedly gave Mr. Jackson propofol, a powerful sedative that is not supposed to be used outside of a hospital setting and needs careful monitoring, which a coroner determined caused Jackson's death with other drugs as contributing factors. Legally, Dr. Murray's alleged degree of culpability appears much less than Dr. Benjamin's. Hence, the lesser charge. Nevertheless, if Dr. Murray prescribed Mr. Jackson a powerful sedative that is not supposed to be used outside of a hospital and then failed to adequately monitor his condition, the prosecution appears warranted. If convicted, Dr. Murray faces a possible maximum four-year state prison term.

Labels: Guest Blog, Michael Jackson

In the news yesterday comes speculation that Michael Jackson's mother, Katherine Jackson, might bring a wrongful death action on behalf of Michael's children. An obvious target is Dr. Conrad Murray. But promoter AEG Live might be in this too, and that would add a whole other dimension to any potential suit. This came from the AP story (Jackson's mother considering wrongful death suit):

"The possibility of a wrongful death action has been floated," [Jackson attorney Burt] Levitch said. "In that regard, no decision has been finalized ... Dr. Murray's name has been floated because he is under investigation."

Authorities investigating Jackson's June 25 death have been focusing on Murray, who they believe administered a powerful anesthetic to the pop singer the day he died. Levitch wouldn't say whether concert promoter AEG might also be a defendant.

On the day after he died I analyzed the possibility of a malpractice suite (Michael Jackson: The Mother of All Malpractice Suits?) based on the little information that was available. I thought it unlikely if the only assets that the doctor had were a million dollar insurance policy.

When I followed up on this theme two weeks ago (Michael Jackson: Malpractice or Manslaughter (Or Something Else)?) I added that a suit might well go forward, not because of any immediate financial gain from the potentially limited pot of money, but to prevent Murray from profiting by selling his story. Knowing he would lose any book proceeds due to a judgment against him would be a pretty big disincentive to sit down and write, or to subject himself to interviews that could be otherwise profitable, if not painful to endure.

But....if Dr. Murray was employed by the promoter, and I don't know who signed his checks but that is one possibility, then the promoter could be on the hook for any judgment against Murray if he was acting within the scope of his employment with them. The concept of respondeat superior is well known to all who litigate, and the deep pocket of the employer is often sought when an employee hurts someone. I can easily foresee a fight here over whether Murray was an employee of AEG, or of Jackson, or was an independent contractor.

Now if the promoter was, in fact, the employer, I would guess that they bought a larger insurance policy on Jackson then the customary million, or demanded that Murray do so on his own. If they are found to be the employer, and therefore responsible for a judgment, we could be talking again about a whopper of a malpractice case.

But wait! There's more! For while the death of Jackson would seem on first blush to create one of the largest potential personal injury cases in the nation's history for any one individual, how does one calculate the loss? For in Jackson's untimely death the estate is reaping millions of dollars that would seem to offset a large part, or even all, of the award. Is Jackson a better earner dead then he would have been alive? Lawyer-blogger Hans Poppe addressed this issue a few weeks back.

This is, of course a helluva tough question to answer for any entertainer, let alone one of Jackson's stature. He did sell out 50 shows at The O2 Arena in London, but he also carried a huge amount of baggage due to issues regarding inappropriate contact with children. How much could he have made? And how much of that would he have consumed if he lived? He didn't exactly live a life of modesty.

So the potential for AEG to be found an employer of Dr. Conrad Murray opens up a can of legal issues, and a potential lawsuit, the likes of which no medical malpractice attorney has ever seen.

Assuming the investigation brings evidence of negligence by Dr. Murray, will this suit be brought? Or not?

(Photo from from Extra, Rio de Janeiro)
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Related:

• Dr. Conrad Murray speaks via Youtube (Popsquire, via ATL)

• Michael Jackson: Wrongful Death Lawsuit Possible (Popsquire)

• Michael Jackson's 'very unusual problems' surprised his new doctor, lawyer says (Anderson Cooper 360)

• Of Death and Profit (Eduardo Porter in NYT Editorial Notebook, 8/19/09):

  The reported $100 million that Michael Jackson's estate made in the first seven weeks after he died easily surpassed the $52 million generated last year by the estate of Elvis Presley, formerly the highest-grossing dead celebrity, according to Forbes magazine. It is way ahead of Marilyn Monroe's $6.5 million last year, James Dean's $5 million and John Lennon's $9 million.
  
  Death has long been a savvy financial move in the visual arts: it guarantees that the supply of new works has come to an end, conferring scarcity value upon the existing oeuvre.

Labels: Medical Malpractice, Michael Jackson

The news that's been leaking out of Los Angeles is that Michael Jackson was administered the anesthesia drug propofol by his doctor, Conrad Murray, the night before he died. And that a manslaughter investigation is under way. Other news is that his doctor may have prescribed drugs to Jackson under multiple names.

So it's time to revisit the post I made the day after he died (Michael Jackson: The Mother of All Malpractice Suits?). At that time I wrote of three potential issues for a doctor that was seeing him if medication issues lead to his death, which I re-examine below:

1. Medical license issues;
2. Medical malpractice; and
3. Criminal prosecution.

I had a number of questions the day after he died, most of which remain unanswered since the autopsy results are not public nor are the toxicology reports. But I wrote this at the time regarding criminal liability:

A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don't generally bring these kinds of actions, they also don't usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

So, assuming that Murray gave the drug, and also assuming that Murray prescribed drugs to Jackson under multiple names (both of which are just rumors), how does this change the equation?

First, let's be clear that the only reason this manslaughter investigation is going on is because the decedent was big-time famous. This type of investigation would not go on for the other 99.999% of the population.

Second, I'll assume without bothering to look it up that giving out prescriptions under phony names violates a few laws.

That being said, if those two things are true, then I predict the following:

1. His license to practice medicine will be revoked. The alternative of suspension doesn't really exist because of the big, bright media spotlight.

2. A malpractice case will be brought and the insurance company (if any) will try to settle quickly for the limits of the policy (in New York the usual primary policy is $1.3M). There are a few reasons for this, the first being it is rare to have government workers do your investigation for you in a malpractice case, but that is the case here. Discovery will all be done by the police and District Attorney. Add in that the insurance carrier won't want to throw good money after bad in a case like this while the world is watching. So while a million bucks might not mean much in terms of Michael Jackson, it's still a million bucks and better in the pockets of the kids then in the pockets of the insurance company.

The big wrench thrown in to this kind of quick settlement is that the lawyer that brings the case for the family will likely have intense pressure to get more than the insurance policy; they will want a whopper of a punitive damage judgment against Dr. Murray.

Why? While I'm guessing that this doctor probably won't have much in the way of assets after he pays his criminal defense fees, he could still make a bucket of money writing a book or otherwise selling the rights to his story. A judgment against him allows him to be pursued for those fees, the same way that OJ Simpson has been pursued by the Goldman family after they collected a big civil judgment against him. The family will want this done so that Murray cannot profit from his conduct.

3. Criminal law. Dr. Murray will likely face fraud charges regarding the phony prescriptions. And I'm guessing he might face a Martha Stewart Charge (obstruction of justice) for lying to the police regarding his actions. That opinion is based on the doctor being interviewed by the police shortly after Jackson's death, but that the room was apparently not treated as a crime scene until much later. A search warrant was issued three weeks after Jackson's death. I therefore guess that Dr. Murray wasn't particularly candid about the degree to which he had been medicating Jackson (if the rumours are true) and that will expose him to an obstruction charge.

But will he face a manslaughter charge based on reckless conduct? If it was my family or yours the answer would be an easy no because the investigation never would have happened. If it happens here, it is only because of the notoriety of the case. So my best guess is no, though the all-important toxicology results have not been made public. If I'm wrong about the charge I think it will be because of community or political pressure or publicity-seeking by the DA, or something truly remarkable in the toxicology results.

So here is my guess from the cheap seats:
1. Loss of license;

2. Malpractice case that nets the limits of any insurance policy, with continued pursuit for a judgment against Murray so that the doctor can't profit by selling the story; and

3. Criminal charges regarding obstruction of justice and fraud regarding the prescriptions. If charged with manslaughter, he will be found not guilty based on what we know right now, but the toxicology results can change that in a New York second.

Update: See Michael Jackson's Mom To Start Wrongful Death Action Against Concert Promoter? (8/18/09)

Labels: Interesting Cases in the News, Michael Jackson

With Michael Jackson's sudden death yesterday at 50 have come swirls of rumors about prescription medications he was taking for dancing related injuries. And if toxicology tests show over-medication being a substantial cause of death, that leads to the inevitable questions regarding potential medical malpractice as well as potential criminal liability.

So these are the issues and questions that would/should float about if those rumors prove accurate:

1. Were the medications all provided by a single doctor? If the self-proclaimed King of Pop was getting all the medication from one place, then the prescribing doctor ought to have a good lawyer due to issues of criminal prosecution (possible but unlikely), action against the medical license (much higher probability) and civil suit (discussed below).

2. If there was more than one doctor, did they know about each other and what the other was prescribing?

3. Did all the drugs all come from one pharmacy? Did that pharmacy have an internal system to tickle the pharmacist if there is an inordinate amount of medication going to one person or that some of the drugs are contraindicated given the other meds? If so, did that pharmacist make a call to the doctor(s) issuing the prescriptions?

4. Where were the prescriptions written and filled? This would be a jurisdictional issue that could be particularly important for a pharmacist, who may have immunity if s/he simply followed the doctor's orders. There is no way to know at the moment if the drugs were prescribed, or even filled, in the U.S. given that Jackson spent a substantial amount of time overseas.

5. Who has standing to bring such a suit? That is a two-part question, as his personal property may be governed by an executor or administrator. But he also has three kids that are all minors and need a legal guardian. Will the mother of two of them, who reportedly gave up legal rights to the kids, be seeking that position in a fight with family members? (This also assumes proper paternity.)

6. From the point of a medical malpractice suit, does it even matter? Jackson was allegedly in debt to the tune of over $300 million, though I suspect a forensic accounting may take some time. But if this was the case of one or two doctors/pharmacists, then there would likely not be much more than a million dollar (or two) insurance policy. When you are that steeply in hock, a malpractice suit may be too insignificant to matter (assuming a limited insurance policy). The estate's executor and creditors may be unlikely to have an interest, concentrating on the big picture.

7. You can toss out #6 above if the investigating authorities make a slam-dunk decision on liability. That makes a lawsuit easy, and no one would give up an easy million if it were there.

8. In a wrongful death suit, by contrast, the losses suffered by the children would likely go directly to them, bypassing the estate. And if the estate itself is bankrupt, then the kids might actually need the money depending on how Jackson managed his affairs and the nature of any trusts he did (or did not) set up for his children. You'd like to think he was a savvy music mogul, but if he also saw himself as a forever young child, then estate planning could well be something he put off for the future. No one really likes to make decisions about their death, least of all someone with a child's view of the world.

Best guess from my perch in the cheap seats:


A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don't generally bring these kinds of actions, they also don't usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

B. Civil liability in a medical malpractice suit on behalf of the estate is not likely to garner much of a return relative to the debt. It only comes if authorities find an easy case against someone.

C. The kids will pursue a wrongful death case (via their guardian, whoever it may be) only if: Jackson failed to provide for them; there is little left in the estate after the creditors tear it to pieces; and the case is an easy one.

Update:

• Did Demerol Cause Michael Jackson's cardiac arrest and death? (Kevin, M.D.)

• LAPD 'searching for Michael Jackson doctor' (TimesOnline)

(Top photo courtesy of Rolling Stone, with more here. Headline from Extra, Rio de Janeiro)

Labels: Interesting Cases in the News, Medical Malpractice, Michael Jackson