§ 9.09 Medical "Omissions": A Definitional Problem

§ 9.09 Medical "Omissions": A Definitional Problem¹³⁴

Consider this problem. Patient, P, is in an irreversible coma, kept alive by use of a respirator. D, P's doctor, concludes that future medical treatment would be useless, so she turns off the respirator, aware that the effect will be to cause P's imminent death, which occurs.

[A] Act or Omission?

One way to analyze the scenario set out above is as follows: D committed a voluntary act by turning off the respirator; this conduct caused P's death, which is the social harm of murder; D caused P's death knowingly, the mens rea of murder; therefore, the elements of common law (and, doubtlessly, statutory) murder have been proven. As there is currently no recognized legal defense of euthanasia recognized in the United States, D is guilty of murder.

Is it self-evident, however, that D is performing an act, rather than omitting conduct, when she turns off a respirator on a comatose patient? Literally, of course, D's conduct does include the voluntary act of pulling the plug or turning off the switch on the respirator. But does this scenario differ significantly from one in which D fails to turn the respirator on in the first place, a clear-cut omission? From a semantic point of view, the act/omission distinction seems to fail us here. One can as reasonably describe what occurred here by saying "D failed to provide medical treatment to P" as by saying, "D voluntarily turned off the machine, causing P's death."

To some it seems morally obtuse for the line in such cases to be drawn on the basis of the fortuity of whether a doctor initially turned on a respirator (and, thus, must turn it off, a voluntary act) or simply refused to initiate medical treatment in the first place. What troubles us about D's behavior (if anything does) is that a doctor, trained to heal others, has chosen—initially or later—to deny future treatment to her patient. The voluntary act of turning off the machine is merely the means of omitting future medical care. Arguably (but far from inevitably), therefore, we ought to analyze D's behavior as an omission.

[B] Analysis as an Omission

Even if the act of turning off a respirator or discontinuing other medical treatment is analyzed as an omission, this does not necessarily resolve all the legal issues. A physician ordinarily has a duty to provide medical treatment for her patients; therefore, she could theoretically be held criminally responsible for an omission of her duty of care.

But what is...