Additional news article at: https://kaiserpapers.org/pdfs/herbert-neil-barber-kaiser.pdf
The Removal of Mr. Herbert’s Feeding Tube
(BONNIE STEINBOCK is assistant professor of philosophy at the State University of New York at Albany. )
The Hastings Center Report, Vol. 13, No. 5. (Oct., 1983), pp. 13-16.
WAS IT MURDER, MALPRACTICE, OR HUMANE MEDICAL CARE?
The Removal of Mr. Herbert’s Feeding. Tube
In 1981, Robert Nejdl and Neil Barber, two Los Angeles physicians, were charged with murder for taking a severely brain- damaged comatose patient off a respirator and stopping intravenous feeding. On March 9, 1983, Municipal Court Judge Brian Crahan dismissed the charges at a preliminary hearing sought by the doctors’ attorneys, holding that there was no evidence of malicious intent, and hence no evidence to sustain murder charges. However, he warned that this dismissal did not rule out criminal charges in other cases. Judge Crahan’s dismissal suggested that a doctor acting under the reasonable belief that a patient is in a condition of irreversible coma may, with the consent of the patient’s family, remove the patient from all life-support systems without fear of criminal charges. However, the prosecution appealed, and on May 5 Superior Court Judge Robert A. Wenke reinstated the murder charges. Unless the defense is successful in its appeal (a three-judge panel heard the arguments on September 12), the case will now go to trial in Superior Court.
On August 24, 1981, Clarence Herbert, a fifty-five-year-old security guard, was admitted to Kaiser-Permanente Hospital. He was to undergo surgery characterized by the prosecution as “routine” and “elective” to remove a colostomy bag, which had been inserted a few months before to relieve a bowel obstruction problem.
On August 26, Dr. Nejdl performed the surgery, which was uneventful. However, during Mr. Herbert’s first hour in the recovery room, he suffered a massive loss of oxygen to his brain. He became comatose and was placed on a respirator.
On August 27, the hospital neurologist, Dr. Freedman, diagnosed severe brain damage due to lack of oxygen. The next morning, Dr. Barber, the attending internist, spoke with Mrs. Herbert, who consented to taking her husband off the respirator. (In fact, Mr. Herbert had specified on his admission form that his sister-in-law, not his wife, was to be contacted
under such circumstances.) Mrs. Herbert testified that she had been told her husband’s brain was dead: the brain was certainly not dead, since there was still lower brain function. On August 29, Dr. Barber removed Mr. Herbert from the respirator.
The removal from a respirator of a patient whose brain has totally ceased to function is explicitly sanctioned by California’s brain death law, Section 7180 of the Health and Safety Code. Nor is there much controversy about the removal of an irreversibly comatose patient from a respirator. Since Quinlan , doctors who remove from a respirator an irreversibly comatose patient in a chronic vegetative state, with consent of the family, and with no prior expression of desire by the patient that this not be done, have consistently been held to be protected from civil and criminal liability, should the patient die.
However, Mr. Herbert did not die when the respirator was disconnected, but unexpectedly began to breathe on his own. The next day, Mrs. Herbert and other family members signed a consent form, which she wrote out, saying that the family wanted “all machines taken off that are sustaining life.” At 8:00 A.M. on August 31, Dr. Barber ordered all intravenous feeding discontinued: shortly afterwards, Dr. Nejdl ordered the nasogastric tube removed. Mr. Herbert was transferred from intensive care to a private room, where he was turned to avoid bed sores, given alcohol rubs, and checked routinely. On September 6, he died from dehydration and pneumonia.
A nursing supervisor, Sandra Bardenilla, then went to the authorities. Mrs. Bardenilla had quarreled with Dr. Nejdl over his order to discontinue the air mist, after removing the respirator: she was concerned that, without it, Mr. Herbert would develop a mucous plug and die. Unable to locate Drs. Barber and Nejdl, she received permission from another doctor to reinstate the air mist. For this she was angrily reprimanded by Dr. Nejdl, who told her that patients are taken off respirators so that they will die. Mrs. Bardenilla said her initial reaction when Mr. Herbert died had been: “God, you mean if you don’t wake up in three days, this is what can happen to you?” (The New York Times, February 7, 1983, p. A10).
Apparently, the cessation of intravenous feeding spurred the decision to prosecute. This decision was seen as significantly different from the mere removal of a permanently comatose patient from a respirator. The suggestion was also made that Mr. Herbert was not, or was not known to be, permanently comatose when the IV tubes were removed and that he might have recovered had the tubes not been removed. Finally the prosecution alleged that even the removal from the respirator, presumably legal in other contexts, should be treated as murder in this case, because it was part of a conspiracy to kill Mr. Herbert to hide malpractice. Mr. Mikulicich, the prosecutor, said: “Suppose you had someone on the respirator and you hated him. You wanted to kill him, so you pulled the plug and he died. That’s not a physician’s professional judgment, that’s murder” (The National Law Journal, February 21, 1983, p. 5).
No Malpractice Cover-up
Judge Crahan ruled that there was no evidence of a conspiracy to cover up malpractice. First there was no evidence of any malpractice on the part of the surgeon, Dr. Nejdl, or the anesthesiologist: nothing they did, or failed to do, caused the respiratory collapse.
Defense witness Dr. Ronald Katz, chairman of the department of anesthesiology for UCLA Medical Center, testified that the cause of the arrest in the recovery room, which precipitated the coma, was a heart attack. Mr. Herbert had had cardiac problems in mid-June 1981 and a probable infarction within the prior year. The prosecution dismissed the suggestion that the patient’s coma could be attributed to cardiac problems, saying that the defendants themselves did not consider his heart history serious. The prosecution alleged that if they were wrong in this opinion, Mr. Herbert’s doctors were clearly negligent in allowing him to undergo elective surgery, and in failing to take extra precautions to monitor the problem. Prosecution witness Dr. Benjamin Schwachman testified that, while there was nothing improper, per se, in the introduction of the anesthesia by the nurse anesthetist during the surgery, the manner of administering the anesthesia (in drip form) might have “set the stage” for Mr. Herbert’s respiratory arrest.
More important, the prosecution alleged that, due to understaffing and insufficient monitoring of the recovery room, Mr. Herbert’s difficulties in breathing went unnoticed until he was found cyanotic in the recovery room. According to the District Attorney’s Memorandum in support of its motion to reinstate the complaint, “If basic medical standards of care had been followed in the recovery room, the injury to Mr. Herbert’s brain was preventable.”
This, then, was the prosecution’s claim that there had been malpractice, and hence that there was a motive to cover up malpractice. Judge Crahan dismissed this as a motive, noting that neither Dr. Nejdl nor Dr. Barber was responsible for any negligence in the recovery room, and finding: “This theory by the people has more foundation in speculation than in fact.” As the prosecution argued in support of its motion to reinstate the complaint, Judge Crahan did not find that there was no negligence: he merely said that negligence, if any, couldn’t be attributed to the defendants, and so they had no motive to “cover up.” A jury, the prosecution noted, might very well conclude otherwise.
The defense lawyers pointed out that far from attempting to cover up the alleged negligence, Dr. Nejdl ordered and received a written report of the events in the recovery room. At the preliminary hearing, defense lawyers feistily challenged the prosecutors to make their charges (of a bad faith motive to cover up malpractice) in the hallway so that they could be tested before a jury in a slander suit. The challenge was not accepted.
Assuming that there was no “cover up” in this case, we may ask the intriguing question: would removal of an irreversibly comatose patient from a ventilator be murder, if done in order to hide malpractice? The answer is far from clear. California law defines murder as the unlawful killing of a human being with malice aforethought, malice being defined as a deliberate intention unlawfully to take life. One might argue that, if it is lawful to remove an irreversibly comatose patient from a respirator, then its having been done for a malicious and unlawful purpose does not affect the legality of the act. However, discovery that the patient had been taken off life-support apparatus in order to cover up malpractice would make us skeptical of the physician’s claim that the patient was indeed irreversibly comatose, incapable of benefiting from further treatment.
Although New York law defines murder slightly differently (causing the death of a person, with intent to cause death) the same reasoning holds. For while our hypothetical doctor intends to cause death, Quinlan holds that the removal of an irreversibly comatose patient from a respirator is not the cause of death; the death is from existing natural causes. Would perception of the cause of death change merely because the purpose of the physician in disconnecting the respirator was immoral and illegal? This does not seem plausible. If a benevolent motive does not change the causal relation between the physician’s orders and the ensuing death (mercy-killing is still murder), why should a malevolent motive make any difference? If removal of an irreversibly comatose patient from a respirator is not causing death, then doing so is not murder, whatever the intent, for an essential element of the actus reus of murder is lacking. At most, a charge of attempted murder might be brought, as well as charges (civil and or criminal) based on the original supposed malpractice and conspiracy to cover up malpractice.
The “Cause” of Death
Motivation aside, one might argue that, unlike disconnecting a respirator, removing intravenous feeding tubes must be seen as a cause of death. It is difficult to regard the withholding of food and water as merely allowing death to occur, or as allowing existing natural causes to operate. In other contexts, such as the treatment of defective newborns or noncomatose terminally ill patients, the suggestion that one “allowed” death to occur by not feeding the patient could not be seriously entertained. All living things need water and nutrients to live. From this perspective, a doctor who orders a feeding tube removed from a comatose patient who dies of dehydration knowingly (perhaps even intentionally) causes death. In the words of the District Attorney, “The patient did not die ‘naturally’ of a ‘terminal’ illness; he was dehydrated to death intentionally with death being as certain a consequence as if he was shot at point blank range.”
The prosecution contended that Mr. Herbert was not in irreversible coma, implying that it is murder to withdraw life-support apparatus from a patient with a chance of recovery. However, in places the prosecution’s papers suggest that with-holding food and water would never be permissible, even if it were undisputed that the patient’s condition was irreversible coma. The prosecution posed the question: “Can it ever be said that the giving of food and water is medical treatment?”
To maintain that food and water must never be withheld, even from patients in irreversible coma, has grave implications. It would mean, in the words of Sidney Gross, professor of neurology at UCLA Medical Center, who testified for the defense. perpetuating “a whole generation of Karen Quinlans.” Is this what we, as a society, wish to do? One way to avoid this dilemma is to argue that current legal and medical standards of death should be changed. Someone in irreversible coma cannot think or feel or be aware of anything, and never will. The biological organism remains, but what is minimally necessary to personhood (awareness, feeling, and consciousness) is forever gone. Why not say that the person is dead?
Admittedly, this would stretch our concept of death. Such patients may grimace, cry out, and move. Medical professionals call these “stereotyped movements” and maintain that they are unconnected to any feeling or awareness. Nevertheless, most of us would be reluctant to bury someone who is still moving. We could regard permanently comatose patients as not yet ready for burial, although dead, but this too is odd. Nevertheless, if such patients can be regarded as dead, there is no problem about removing all life-support systems, and the desirability of doing so may justify expanding the concept of brain death and tolerating the oddness.
We can obtain the same result by considering what kinds of treatment must be given what kinds of patients, and what kinds may permissibly be withheld. Sometimes this is approached via the ordinary extraordinary care distinction. But this distinction suggests that treatment which is ordinarily provided is therefore obligatory. If patients in deep comas are routinely put on IV drips, then this is ordinary care and must be given. However, our question is precisely what should be (not what is) the care of those in irreversible comas. We can avoid begging the question by giving criteria of extraordinary treatment, which provide reasons why treatment may be withheld. According to the Rev. John Paris, a Jesuit priest and ethicist testifying for the defense, the relevant criterion in this type of case is lack of benefit to the patient. The intravenous feeding of an irreversibly comatose patient may be seen as extraordinary treatment, for the same reason that a respirator is: it neither cures nor ameliorates the patient’s condition, nor maintains comfort. It merely prolongs biological existence. What is the point of dripping nourishing liquids through a permanently nonfunctioning body?
This consideration led Judge Crahan to maintain that the removal of the feeding tubes, while clearly a causal condition of Mr. Herbert’s death, was not the “proximate cause.” Volumes have been written on the meaning of “proximate cause,” but it is probably best understood as refining to that causal condition of an outcome on which legal responsibility is most plausibly based. Withholding food, with the result that the patient dies, is the proximate cause of death when the party who withholds food can and should provide food. However. if maintaining intravenous feeding is extraordinary treatment, of no benefit to the patient, which a physician has no duty to provide, then the withdrawal of such treatment is not the proximate cause of death. Judge Crahan held that anoxia (lack of oxygen) was the proximate cause of death, which set up “an irreversible chain of events” leading to Mr. Herbert’s death.
The decision to reinstate charges was apparently based neither on acceptance of the prosecution’s “cover up” theory, nor on acceptance of any important legal difference between disconnecting a respirator and the removal of intravenous feeding tubes. Rather, Judge Wenke ruled that California law does not allow anyone to shorten another’s life unless the latter’s condition is irreversible, and that Judge Crahan failed to find that Mr. Herbert’s condition was irreversible when he was removed from the respirator and had the IV tubes withdrawn.
The claim that removal of the intravenous feeding tubes was extraordinary care, and so not the proximate cause of death, is predicated on the assumption that Mr. Herbert’s coma was permanent. If he had a chance of recovery, then prolonging biological existence might have benefited him. How good a chance of recovery requires maintenance of life-support apparatus? How extensive a recovery? And how certain must physicians be that there is no reasonable chance of significant recovery to be justified in turning off life-support machinery? Judge Crahan dubbed such
questions “of philosophic determination,” rather than questions of law. The standards of recovery and certainty are presumably standards of good medical practice, and not to be imposed by courts.
This contention was roundly rejected by the prosecution, which maintained that since Judge Crahan did not dispute the prosecution’s factual evidence of Mr. Herbert’s condition and chances of recovery, he was bound not to dismiss the charges:
. . . there can be no question the doctors were under a legal duty to treat their patient and to provide him with basic medication, hydration and nutrition, i.e. to promote his “well-being. ” Their failure to do so is not a philosophic question beyond the competence of the courts. The failure of the magistrate to hold the doctors to their legal-duty is an error of law, and nothing more.
However. while it seems indisputable that doctors have a moral and legal obligation to treat patients who have a chance of recovery, Mr. Herbert’s doctors did not think he had such a chance, an opinion supported by several defense witnesses.
Dr. Gross testified that the medical records established that the anoxia suffered by Mr. Herbert in the recovery room resulted in “de cerebration” after twenty-four hours of coma. According to Dr. Gross, “When you are dealing with a patient who has suffered an anoxic insult due to cardiac arrest and lasting as long as this, there is no chance of ever recovering cerebral function.” Victor J. Rosen, a pathologist at Brotman Memorial Hospital, agreed that Mr. Herbert would have been incapable of coordination, memory, intellectual function, or conscious motor function. Only vegetative functions, such as heart and respiration and perhaps some eye movement, would have remained.
John Gilroy, a neurologist from Wayne State University, who testified as an expert witness for the prosecution, disagreed, saying that he personally does not believe in removing any supportive systems inasmuch as there is always a chance of better recovery when the brain is in a state of actual dynamics. In this case, he believed that Mr. Herbert had a “good chance” of recovery, somewhere in the spectrum between full conscious recovery and a vegetative state. He could not give a prognosis on where Mr. Herbert might lie on this spectrum.
One wonders how one can “recover” from a coma and yet remain in a vegetative state. Surely more than a chronic, vegetative existence is required to speak of “recovery,” and of benefit to the patient. According to statistics supplied by the prosecution, patients with Mr. Herbert’s type of brain dysfunction have an 8 percent to 12 percent chance of “guarded recovery. ” We have, then, a range of expert opinion, from a “good chance” of recovery, possibly even a full recovery, to “no chance” of ever recovering cerebral function. Whether taking Mr. Herbert off life-support machines was objectively right depends on which expert (if any) was right about his condition. Whether his doctors should be blamed or punished depends on whether they acted in accordance with responsible medical opinion. Surely no higher standard of certainty can reasonably be required.
The prosecution denied that Drs. Barber and Nejdl acted in accordance with responsible medical opinion. It discounted the opinion of Dr. Gross as contrary to “the key authorities” in this area, Drs. Plum and Posner, who advised in their text that one must wait for at least two weeks after a person has entered a persistent vegetative state before one can determine with reasonable medical certainty that the patient’s condition is hopeless. The removal of Mr. Herbert from the respirator only three days after he became comatose. and the removal of feeding tubes only two days after he began spontaneously to breathe on his own, does seem premature. However, it is one thing to fault doctors for their medical judgment, quite another to convict them of murder. A murder conviction would require the State to prove that Drs. Barber and Nejdl knew, or were indifferent as to whether, the coma was not irreversible, and took Mr. Herbert off life-support apparatus anyway, aware that this would certainly cause his death.
Whatever the outcome of this case, it seems that guidelines for future cases should include a waiting period before a patient in deep coma is taken off cardiopulmonary life-support systems, and a further waiting period after disconnection of such systems, if death does not occur, before the IV and nasogastric tubes can be removed. Such a waiting period should prevent suspicion that doctors were acting in undue haste to bring about death for venal motives. At the opposite extreme, it would be equally appalling if a patient beyond any reasonable hope of recovery was kept on life-support machines by relatives suing for malpractice, aware that damages would be substantially higher if the victim was kept alive. Although the risk of either possibility is probably not substantial, the existence of explicit guidelines would reduce the likelihood of such decisions being made on other than medical and ethical grounds.
The Question of Cost
The prosecution mentioned another possible motive-cost-for the decision of the defendants to withdraw life-support apparatus. There was some evidence to show that Kaiser was in difficult financial straits. In many health maintenance organizations, like Kaiser, the doctors are partners and at the end of the year receive bonuses based upon the profitability of the operation:
There was no evidence of any shortage of money to treat the patient or any additional burden to his family if he was given a reasonable time to recover from his debilitated condition; in fact the only additional costs for treatment were those to be borne by the hospital, and indirectly, the doctors that were treating him.
The defendants’ lawyers responded that while it would be “totally reprehensible” to disconnect a comatose patient merely to save money, there was no evidence that Drs. Nejdl or Barber ever considered cost in the medical treatment of Clarence Herbert. They went on to ask:
But what if there had been evidence of a cost-containment motive? In a world of finite resources is it moral and ethical to sustain the somatic life of a hopelessly comatose patient if such treatment kills others through the deprivation of medically essential treatment? Every ethicist who has considered the matter has concluded that cost plays some limited role in these decisions. The President’s Commission has decried the waste of medical resources or mindless treatment of hopeless comatose patients.
Since the prosecutor raises the issue of cost, it is his burden to determine what role cost should play. . . .
The question of the role cost should play is one of a set of questions concerning what the guidelines should be for terminating treatment. Others are: if irreversibly comatose patients can be removed from respirators, can they be taken off IV feeding tubes as well? How long should doctors wait before it is reasonable to believe that the patient’s condition is irreversible?
The Difficult Cases
A distinct, though related, set of questions has to do with the specifics of the particular case. Even where guidelines are clear, their application in a real case may be extremely difficult, as we attempt to determine whether this patient’s condition is hopeless, or whether he or she has a chance (and how good a chance) for recovery (and how extensive a recovery). In the present case, there was considerable disagreement about the guidelines to be followed. There was even greater discrepancy in the portrayal of the characters and motives of the defendants. According to their lawyers, the defendants acted with compassionate concern for their patient and his family, in accordance with responsible medical opinion. The prosecution portrayed them as arrogant and calculating, claiming they killed Mr. Herbert in order to save themselves professional and financial embarrassment. A jury will have to decide which portrayal is more accurate.
A substantial body of legal opinion views the disconnection of all life-support apparatus, including intravenous and nasogastric feeding tubes, from irreversibly comatose patients as morally and legally permissible. Opponents fear a slippery slope whereby the lives of all terminally ill and handicapped people are endangered. If it is permissible to remove a feeding tube from a permanently comatose patient, why not from a barely conscious, senile, and terminally ill patient? Why not from a baby with Down syndrome who cannot be fed by mouth? Are we not headed toward full-scale euthanasia and infanticide? These fears must be taken seriously.
However, it would be absurd to prevent doctors from doing what is sensible and humane because it could conceivably lead to what would not be. We must distinguish between withholding food from a sentient, conscious, terminally ill patient, and removing an intravenous feeding tube from a nonsentient brain stem. The difficulty is with patients who fall in between, such as Claire Conroy, an eighty-four-year-old mentally incompetent, terminally ill patient, whose nasogastric feeding tube was ordered removed by a New Jersey court. The order was not carried out because opponents obtained a stay and Miss Conroy died of natural causes thirteen days later. The decision was reversed on appeal.
Unlike patients in deep coma, Miss Conroy could experience pain. Considerations of comfort provide a reason to continue artificial feeding which is not present in the case of irreversibly comatose patients. At the same time, as she had no cognitive abilities and no hope of recovering them, life was presumably no more a benefit to her than to a patient in irreversible coma. Furthermore, in addition to whatever suffering her illness caused, a nasogastric tube is itself uncomfortable. Judge Reginald Stanton, who issued the order, wrote, “If the patient’s life has become impossibly and permanently burdensome, then we are simply not helping the patient by prolonging her life, and active treatment designed to prolong life becomes utterly pointless and probably cruel” (The New York Times,May 15, 1983, p. 27).
Opponents worry that this encourages doctors to make judgments about their patients’ “quality of life” and to kill or allow to die those whose lives are deemed not worth living. Whatever the force of this objection in other contexts, it has none in the case of irreversibly comatose patients. Whether or not we wish to extend the argument to patients in Miss Conroy’ condition, it seems clear that removal of life-support apparatus, including feeding tubes, from irreversibly comatose patients is not morally, and should not be construed legally as, murder.
The Hastings Center Report, October 1983
(1)This position is taken in the “Guidelines for Discontinuance of Cardiopulmonary Life-Support Systems under specified ~ developed by the Joint Ad Hoc Committee on Biomedical Ethics of the Los Angeles County Medical Association and the Los Angeles County Bar Association. I wish to thank Leslie Steven Rothenberg, co-chairman of the Comminee, for sending me the Guidelines, and discussing them with me. I also wish to thank William J. Gargaro, Jr., for kindly sending me copies of various briefs.