Page [ Cal. Keith, Oakland, George A. Sondheim, Head, Appellate Div.
Page [ Cal. Keith, Oakland, George A. Sondheim, Head, Appellate Div. Mikulicich, Page Hyatt E.
No appearance for respondent court. In these consolidated proceedings we consider petitions for writs of prohibition pursuant to Penal Code section a filed by two medical doctors who are charged in a complaint, now pending before a magistrate in the Los Angeles Judicial District, with the crimes of murder and conspiracy to commit murder--both felonies.
At the close of a lengthy preliminary hearing the magistrate ordered the complaint dismissed. On motion of the People, pursuant to Penal Code section We issued the alternative writ, calendared the matter and heard oral argument.
We have concluded that the peremptory writ should issue. Deceased Clarence Herbert underwent surgery for closure of an ileostomy. Petitioner Robert Nejdl, M.
Shortly after the successful completion of the surgery, and while in the recovery room, Mr. Herbert suffered a cardio-respiratory arrest. He was revived by a team of physicians and nurses and immediately placed on life support equipment.
Within the following three days, it was determined that Mr. Herbert was in a deeply comatose state from which he was not likely to recover.
Tests and examinations performed by several physicians, including petitioners herein, each specializing in relevant fields of medicine indicated that Mr. Herbert had suffered severe brain damage, leaving him in a vegetative state, which was likely to be permanent. At that time petitioners informed Mr.
While there is some dispute as to the precise terminology used by the doctors, it is clear that they communicated to the family that the prognosis for recovery was extremely poor. At that point, the family convened and drafted a written request to the hospital personnel stating that they wanted "all machines taken off that are sustaining life" sic.
As a result, petitioners, either directly or as a result of orders given by them, caused the respirator and other life-sustaining equipment to be removed. Herbert continued to breathe without the equipment but showed no signs of improvement.
The family remained at his bedside and requested of the nursing staff that Mr. Herbert not be disturbed. They even objected to certain routine procedures followed by hospital personnel in caring for comatose patients. From that point until his death, Mr. Herbert received nursing care which preserved his dignity and provided a clean and hygienic environment.
The precise issue for determination by this court is whether the evidence presented before the magistrate was sufficient to support his determination that petitioners should not be held to answer to the charges of murder Pen. As we will later discuss, this issue must be determined against a background of legal and moral considerations which are of fairly recent vintage and which as a result have not, in our opinion, been adequately addressed by the Legislature.
Murder is the unlawful killing of a human being, Malice may be express or implied. It is express Page when there is an intent unlawfully to take any life.
It is implied when the circumstances show an abandoned and malignant heart.Barber v. Superior Court. Facts: A man underwent surgery, during which he suffered from cardio-respiratory arrest.
He was revived, but was left in a vegetative state.
The family decided to take the patient off life support. This court deems the cessation of life support as an omission of further treatment as opposed to an affirmative act and there is no criminal liability for an omission where no legal duty is owed.
However the superior court set aside the order and reinstated the complaint. The physicians petitioned the court of appeals for review of the decision of the superior court to dismiss the complaint.
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Jun 24, · Barber v. Superior Court Procedural History: Doctors are charged with murder for removing life support, including nourishment from a patient in a vegetative state. Doctors appeal ruling that removing life support or nourishment is murder.
Facts. In this respect the North Carolina court was but following its own pronouncement in the first appeal in the separation proceeding, Barber v.
Barber, supra, N.C. , , 4 S.E.2d , and in numerous other decisions of that court.