Jesting Pilate

What is Truth? said jesting Pilate; and would not stay for an answer.

—Francis Bacon, Of Truth

I have two goals this month. First, to examine a case that's in the news. Second, to counsel skepticism in reading news accounts of cases.

Recently, I was talking with an admirable scholar. He said that transplant surgeons sometimes kill potential donors to obtain their organs efficiently. He added, "This isn't just an urban legend—there's a real case in California."

A little research turned up California v. Roozrokh. A little Googling found stories from several reputable news sources. Their headlines indeed intimated that a transplant surgeon had tried to kill a patient to get transplantable organs. CNN.com: "Doctor accused of hastening death for patient's organs." Time: "Organ Donation[:] Did a Doctor Speed a Patient's Death?" The New York Times: "Surgeon Accused of Speeding a Death to Get Organs." These headlines (and the stories) implied, I thought, that a prosecutor had charged a surgeon with doing something intended to kill a patient and that the patient had consequently died.

I then discovered (with less journalistic help) that there had been a preliminary hearing, a ruling, and a judicial opinion.¹ The opinion revealed that the surgeon had actually been charged with three felonies:

1. 1. "[D]ependent adult abuse . . . by willfully causing and permitting Ruben Navarro [the patient] to be placed in a situation in which his health was endangered by the prescription of excessive amounts of morphine and Ativan, and/or by the introduction of Betadine into his stomach."

2. 2. Violating a law that prohibits "willfully mingl[ing] any poison or harmful substance with any food, drink, medicine, or pharmaceutical product or . . . willfully plac[ing] any poison or harmful substance in any spring, well reservoir, or public water supply, where the person knows or should have known that the same would be taken by any human being to his or her injury."

3. 3. Violating a statute which said that a "prescription for a controlled substance shall only be issued for a legitimate medical purpose."

These were not the homicide charges I had expected. The headlines spoke of "hastening" or "speeding" a death. But "speeding" a death is murder. It does not matter that the victim is dying anyway or that the victim would not have died had he been healthier. Hastening a death means being the proximate cause of the death, and that's murder. So if the surgeon had administered drugs to cause the patient to die, why no murder charge? Because the drugs did not actually kill the patient? Perhaps. But if the surgeon intended that they should kill, then the charge would presumably have been attempted murder.

Reading the opinion brought more surprises. The judge dismissed the second (mingling poison) charge. The statute did "not apply where, as here, the allegedly harmful substance is introduced into a patient as part of a medical procedure, instead of being 'taken by any human being' by voluntarily (and typically unknowingly) ingesting it along with food, drink, or medicine." (In addition, the statute's legislative history "indicate[d] that this law was passed in response to incidents involving the poisoning of innocent victims who unknowingly consumed contaminated water supplies, tainted Halloween treats, or poisoned Tylenol products.")

The judge also dismissed the third (legitimate medical purpose) charge. A "plain reading of the statute" showed that it was inapplicable, since it said, "An order for controlled substances for use by a patient in a . . . licensed hospital shall be exempt from all requirements of this article." (In addition, the legislative history suggested that "the statute was designed to target 'prescription mills' and practitioners operating outside of the hospital setting.")

The court did permit the first (dependent adult abuse) count to go to trial. That count was markedly less serious than the homicide charge that the press reports had implied. To get a conviction, the prosecutor did not even have to show that the defendant had intended to harm the patient, only that he was "criminally negligent" (that his conduct was "such a departure from what would be the conduct of an ordinarily prudent or careful...