Barber v. Superior Court

ProfessorScott Caron

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Citation. 147 Cal. App. 3d 1006, 195 Cal. Rptr. 484, 1983 Cal. App.2256, 47 A.L.R.4th 1.

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Citation147 Cal. App. 3d 1006, 195 Cal. Rptr. 484, 1983 Cal. App.2256, 47 A.L.R.4th 1.

Brief Fact Summary. The Defendants, Robert Nejdl, M.D., and Neil Barber, M.D., were charged with murder after they removed a patient, Clarence Herbert, from life support. The patient’s family requested his removal, and the Defendants believed that Mr. Herbert would never recover.

Synopsis of Rule of Law. A physician has no duty to continue treatment once it has proved to be ineffective.

Points of Law - Legal Principles in this Case for Law Students.

The lack of generalized public awareness of the statutory scheme and the typically human characteristics of procrastination and reluctance to contemplate the need for such arrangements however makes this a tool which will all too often go unused by those who might desire it.

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Facts. The Defendants, two doctors, successfully completed an operation on Mr. Herbert. While in the recovery room, Mr. Herbert suffered a cardio-respiratory arrest. He was revived and immediately placed on life support equipment. Over the next few days, it was determined that Mr. Herbert was in a deeply comatose state and unlikely to recover. Several tests and examinations by specialists revealed that Mr. Herbert had suffered severe brain damage, leaving him in a vegetative state, which was likely to be permanent. His family decided to have him removed from all life-sustaining equipment, and the Defendants honored said request. Defendants were thereafter charged with murder.

Issue. Are the Defendants liable for murder for removing a patient from life-sustaining treatment when the patient is in an indefinite vegetative state?

Held. No.
“There is no criminal liability for failure to act unless there is a legal duty to act.” While a physician may have a duty to provide life-sustaining treatment in the immediate aftermath of cardio-respiratory arrest, a physician has not duty to continue treatment, once it proves to be ineffective.

Here, the patient suffered irreversible brain damage as a result of cardio-respiratory arrest. Specialists indicated that the patient would likely permanently remain in a vegetative state. Hence, removing the patient from all machines sustaining his life was not murder, as the doctors were simply ceasing ineffective treatment.

Discussion. A doctor does not commit murder for ceasing life-sustaining treatment for a patient who faces an indefinite vegetative state and there is no living will or other instrument indicating a contrary intent by the pat

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