The trial of Conrad Murray: prosecuting physicians for criminally negligent over-prescription.

• Author: Kim, Christopher J.

1. INTRODUCTION

   On June 25, 2009, Michael Jackson died in his sleep from cardiac arrest, sending shockwaves throughout the public sphere. (1) Popular response to his untimely demise was staggering. (2) In the days following initial reports of his death, fans flooded the Internet with an unprecedented number of searches, comments, and messages. (3) Grieving admirers held memorial services across the globe, and even the President of the United States sent his condolences. (4) News about Jackson dominated the airwaves for weeks, erasing any doubt that the "King of Pop" had been one of the most entertaining and controversial cultural icons in modern history. (5)

   Over a legendary music career spanning four decades, Jackson treated audiences to electrifying stage performances and multi-platinum albums, including Thriller, the top-selling album of all time. (6) However, in later years he achieved equal infamy for his ever-changing physical appearance, ostentatious personal life, and eccentric habits. (7) One of Jackson's most notorious vices was an addiction to prescription medication. (8) The latter half of his career featured lurid accounts of his growing dependence on painkillers, antidepressants, and sleeping pills. (9) His tragic passing contributed to a recent and disturbing trend of celebrity deaths linked to prescription drug abuse. (10)

   As the public continued to mourn, California state authorities began to examine the peculiar circumstances surrounding Jackson's death. (11) The autopsy report confirmed that his cardiac arrest was the direct result of acute intoxication from prescription drugs, most notably the anesthetic propofol. (12) This information led the coroner to officially classify the death as a homicide. (13) Eventually, a joint Los Angeles Police Department and Drug Enforcement Agency investigation led to the indictment of Dr. Conrad Murray, Jackson's personal physician. (14)

   In the month leading up to Jackson's death, Murray had supplied his celebrity client with several powerful medications, including the dose of propofol which eventually claimed his life. (15) State prosecutors believed that Murray's over-prescription and administration of various drugs rose to the level of criminal medical negligence. (16)

   Murray's trial began on September 27, 2011 in Los Angeles County Superior Court. (17) From the very first day, People of the State of California v. Conrad Robert Murray was the subject of intense and relentless media scrutiny. (18)

   On November 11, 2011, the jury found Murray guilty of involuntary manslaughter, eliciting cheers from crowds gathered around the courthouse. (19) Murray was sentenced to four years in prison, the maximum penalty under the applicable statute. (20) His sensational trial and uncompromising conviction sent a strong message to the medical community--when a doctor over-prescribes medication, he exposes himself to the danger of criminal liability. (21)

   The criminalization of negligent over-prescription is a contentious legal issue among physicians, particularly because such prosecutions have been on the rise in recent years. (22) Medical professionals and their advocates have voiced concerns that the legal contours of this crime are ill-defined, drawing attention to an apparent lack of predictability relative to the serious consequences. (23) Much of the debate centers on the difficulty of establishing a theory of mens rea for involuntary manslaughter that comports with the unique doctor-patient relationship. (24) The nebulous quality of this element has been exacerbated by the scarcity of precedent prior to the last twenty years, especially when compared to the massive waves of civil medical malpractice litigation. (25) Some have openly questioned the fundamental logic of holding physicians criminally liable for good faith (albeit misguided or poorly-executed) attempts to improve patient health through unconventional prescriptions. (26)

   This Note will explore the various theories surrounding criminally negligent over-prescription, using the recent and highly-publicized outcome in the trial of Dr. Conrad Murray as a framing device. Through this discussion, it will argue that involuntary manslaughter prosecution is a necessary social mechanism to deter criminally negligent over-prescription, due to the absence of effective professional self-discipline by state medical boards. Part II will give a more detailed account of the circumstances leading to Michael Jackson's death and Murray's subsequent conviction. Part III will give a brief historical overview of the prosecution of physicians for involuntary manslaughter. Part IV will analyze the various legal bases for establishing criminal negligence in this type of situation. Finally, Part V will examine the policy questions which fuel the debate about imposing criminal liability for negligent over-prescription.

2. MICHAEL JACKSON'S DEATH AND PEOPLE V. MURRAY

   Murray first entered Jackson's service in May 2009 as part of an arrangement brokered by AEG Live, the promoter for Jackson's most recent (and, unbeknownst to them, final) tour. (27) Jackson remembered that Murray had successfully treated one of his children in the past, and insisted on hiring Murray as a personal physician to provide specialized day-to-day care at his home. (28) In exchange for his undivided medical attention, Murray received a handsome six-figure monthly salary. (29) For six weeks, Murray treated Jackson with a variety of prescription drugs, mainly to assuage the artist's famously intractable insomnia. (30)

   Jackson's favorite sleep medication was propofol, a powerful anesthetic typically applied during surgical procedures in a hospital environment. (31) Propofol is not commonly recommended for treating insomnia, and government regulations advise that it should only be used by trained anesthetists equipped with the appropriate monitoring tools. (32) Its exceptional strength makes it ill-suited for regular household administration. (33) Nonetheless, Jackson preferred propofol overall other sleep treatments, affectionately referring to the drug as his "milk." (34) Prior to hiring Murray, he reportedly consulted three other doctors in search of a propofol prescription, all of whom refused on safety-related grounds. (35)

   At first, Murray was willing to provide Jackson with an intravenous solution of propofol on demand. (36) He was at Jackson's bedside in this capacity almost every night. (37) However, as time passed, Murray began to fear that Jackson was developing a serious addiction to the drug. (38) Murray then attempted to wean his patient off of propofol by administering combinations of other pharmaceuticals, which appeared to be equally effective in putting Jackson to sleep. (39)

   During the night of June 24, Jackson experienced a particularly acute case of insomnia after practicing dance choreography for an upcoming concert. (40) All through the night and into the morning of June 25, Murray gave Jackson three different drugs--valium, lorazepam, and midazolam--in an attempt to induce sleep without resorting to propofol. (41) None of them succeeded in putting Jackson to sleep. (42) Throughout the failed treatments, Jackson complained that he could not function without sleep, and intimated that he would have to cancel concerts if he could not get his rest. (43) Jackson pleaded with Murray for hours, trying to convince him to switch to the propofol. (44)

   Finally, at approximately 10:40 AM, Murray gave in to Jackson's repeated requests and administered a propofol injection. (45) Jackson quickly fell asleep, and Murray left the bedroom. (46) But when Murray returned some time later, he discovered that Jackson had stopped breathing. (47) Murray first attempted to resuscitate Jackson by performing CPR and injecting flumazenil, a drug intended to reverse the effects of an overdose. (48) When these efforts failed, he summoned an ambulance to take Jackson to the UCLA Medical Center. (49) There, the King of Pop was pronounced dead at 2:26 PM. (50)

   After a full autopsy, the coroner reported that Jackson had experienced a fatal cardiac arrest caused by "acute propofol intoxication." (51) Experts observed that while Murray had injected a relatively small dose of propofol, there was a high likelihood that it would react negatively to the other drugs already present in Jackson's system. (52) Contrary to the directions of the Food and Drug Administration, Murray did not keep any of the recommended equipment for patient monitoring, precision dosing, and resuscitation at Jackson's home. (53)

   During Murray's trial in Los Angeles County Superior Court, the prosecution endeavored to portray Jackson as the innocent victim of Murray's negligent conduct. (54) In their opening statement, prosecutors told the jury that "misplaced trust in the hands of [Murray] cost Michael Jackson his life," claiming that Murray had abandoned "all principles of medical care" throughout the course of treatment. (55) The defense countered with the theory that Jackson had actually administered the fatal dose of propofol to himself after Murray left the room. (56) However, the prosecution won a major victory when Judge Michael Pastor instructed the jury, over the defense's objection, that they could convict Murray of involuntary manslaughter even if they believed the defense's alternative account. (57) According to Judge Pastor, Murray could still be found guilty if he "should have foreseen the possibility of harm that could result from his act." (58)

   Judge Pastor further instructed the jury on the legal standard: in order to find Murray guilty, they had to determine either that he had committed a lawful act with criminal negligence or that he had failed to perform a legal duty due to criminal negligence. (59) After hearing testimony from forty-nine witnesses and examining a wide body of evidence--including a tape of Jackson speaking in a severely drug-addled state--the jury...