The Theory of Avoidability: Exposing Consumers to a KNOWN AVOIDABLE Mortality Risk Is The Threshold for Criminal Conduct in the Professions and Corporations.

The rock star Michael Jackson (right) died when his personal physician, Conrad Murray (left), administered a powerful sedative named, Propofol, to him at home. This action was a clear instance of medical malpractice. But why was Murray criminally prosecuted and convicted of involuntary manslaughter?

The pop singer, Michael Jackson, died on June 25, 2009.

The cause of his death was administration of the anesthetic agent, Propofol, by his personal physician, Conrad Murray.

Murray had administered Propofol to Jackson without the benefit of cardiac or respiratory monitoring — and, most importantly, without having his patient intubated to initiate ventilation when he went into respiratory arrest. This was a clear “breach of standard of care” — and it was a slam-dunk instance of medical malpractice.

Murray’s defense was that Michael Jackson had provided him with consent to administer the drug and had instructed him to do so.

But, consent or not, Murray had “breached standard of care” by not having Jackson monitored and intubated with Propofol onboard — he was guilty of malpractice by the standards of civil medical malpractice litigation.

But that was not the end of the story.

Jackson’s death was actually tried as a criminal case in CA. And Murray was convicted of involuntary manslaughter — not because he maliciously intended to kill Jackson, but because his professional negligence led to his patient’s premature or unnecessary death from a totally AVOIDABLE mortality hazard of which Murray was, or should have been, well aware.

Murray’s “consent” defense in attempting to defend himself held no water in criminal court — as it would not have, had he used it, in a standard civil malpractice litigation.

Michael Jackson had, indeed, requested and consented to administration of Propfol by Murray, because of its potent sedative effect, which he clearly enjoyed and probably needed to keep his demons at bay. But patient consent does not justify: a) breaching a standard of care or b) accepting a known and totally AVOIDABLE mortality risk to him.

Though breaching a standard of care in medicine is malpractice, it is not a crime.

But does knowingly exposing a consumer or patient to a specific AVOIDABLE mortality hazard, as Murray did, meet the threshold of criminal conduct?

The case of California v. Murray clearly shows that it does!

The argument I am building here is that what qualified Michael Jackson’s case as a criminal case was NOT the fact that Murray breached a standard of care to cause a death— though he clearly did. It was, rather, that Murray knowingly accepted a specific AVOIDABLE mortality risk to his patient and caused his death — that is, the respiratory depressant effect of Propofol, which without access to monitoring and mechanical ventilation could cause death.

So, even though, Jackson had consented, and even instructed, Murray to administer Propofol to him, it was the fact that this physician knowingly exposed him to a specific AVOIDABLE mortality risk that made the conduct criminal — not the fact that he had committed malpractice by breaching standard.

If Murray had not had Jackson’s consent and instruction to administer this sedative drug, his conduct though more egregious, would have been no more criminal. The criminality of the conduct was a direct function of knowingly exposing a consumer to a specific AVOIDABLE mortality risk and causing his death.

Of course, it is likely that what drove Murray to abandon his professional decorum and commit his crime of involuntary manslaughter was the hefty paycheck from his employer. Professional behavior like his, almost always has economics as the driver, not intentional malice. It is unlikely that Murray harbored malice towards Jackson.

I do not know what formal reasoning the court provided for convicting Murray of involuntary manslaughter. But I believe that the decision was justified and may be consistent with a legal theory, I am presumptuously articulating here.

I am a physician and a patient advocate who has been grappling with a deeply personal instance of professional negligence and, with what I believe is ultimately corporate and professional criminal conduct. However, I am no attorney!

So I do beg forgiveness of any attorneys or legal professionals who may be reading this essay — both for my technical legal ineptitude and if what I state here is “the obvious”.

The legal theory I am proposing here is that when a professional entity (individual, guild, or corporation) knowingly exposes consumers to a specific AVOIDABLE mortality risk and causes a death, with or without consent, at minimum, involuntary manslaughter is likely to be legally demonstrable in criminal court.

In this scenario, neither consumer consent, nor any potential “benefit trade-offs”, would justify the mortality risk exposure — because the fact of the hazard’s AVOIDBILITY, and that the professionals and corporations involved knew about it, is at the crux of the argument.

Moreover, as a corollary, even if an entire guild of professionals or a corporation (not just an individual) knowingly accept a specific “AVOIDABLE mortality risk” to their consumers, as part of a standardized practice or product, when death is caused by the hazard, a crime (a potentially large scale one) will have been committed.

Of course, when a professional guild knowingly “standardizes” a specific AVOIDABLE mortality risk to consumers into a specific practice or product, the standardization provides the danger with a powerful shield against prosecution in criminal court — specifically by anchoring it as belonging in the domain of civil litigation when complaints of harm emerge. This masking from criminal prosecution could be even more robust if the individual professional, the guild or the corporation delivers the products or services with the label of consumer “informed consent”.

After all, our social contract and professional licensure processes in western societies are based in a trust invested in licensed professionals — as well as in professionally standardized products and services. Therefore, the implicit assumption in western society is that no professional body would package specific known AVOIDABLE mortality hazards into their standardized products and services. Thus, the badge of a professional “standard” could easily mask “socio-pathic” practices and products from criminal litigation. To add to this problem, our criminal prosecutors’ themselves, tend to reject the notion that a “standard” practice/product, or a professional guild, might be “socio-pathically” dangerous — so the prosecutors’ threshold for considering criminal litigation of a professional product or service is extremely high.

But, if a standardized service or product, can be first demonstrated to be an “intrinsically negligent or defective one”, then when a guild of professionals or a corporation knowingly exposes consumers to the specific and AVOIDABLE mortality risk intrinsic to such a product or service, the threshold for criminal conduct will have been reached.

I am not suggesting that intentional malice is the driving force behind professional standardization of a product or service that entails a specific AVOIDABLE mortality risk. The driving force is rather efficiency and economics. It appears that when it comes to efficiency and economics the utilitarian tendency of our contemporary western society comfortably trades-off specific AVOIDABLE mortality hazards with other real or perceived benefit gains. This is a clear case of cognitive dissonance driving professionals to “compare apples to oranges” in creating the justification to accept a specific AVOIDABLE mortality hazard into a standard product or service. Unfortunately, as in other arenas of human action where cognitive dissonance has driven serious judgment errors, the cause is always ethically-blinded utilitarian designs — be they in social or technological constructs.

But I digress.

To mitigate against specific AVOIDABLE dangers entering the marketplace of professional products and services, it is critical for individual professionals, professional guilds and corporations to NOT accept any such risks into their services or products — and to avoid justifying such products and services using the “consumer consent” justification, or using trade-off equations with benefit gains relative to multi-factorial and otherwise non-specific/unavoidable mortality risks.

Sounds simplistic — and easier said than done!

Of course, one critique of this corporate mitigation approach against what could eventually become criminal professional conduct (i.e., when consumer are killed or irreversibly harmed), is that one can simply AVOID ALL hazards (and all crime) by AVOIDING ALL things — an approach that would, perhaps, be favored by traditional Amish and ultra-orthodox religious societies. But this critique is a comical and rhetorical smoke screen — because the point of discourse here, relates to specific AVOIDABLE mortality hazards to which a professional, a professional guild, or a corporation knowingly expose their consumers.

I believe that Michael Jackson’s case is instructive because an individual professional knowingly exposed a consumer to a specific avoidable mortality risk and caused his death. Of course, the case was brought to the attention of the criminal court, because it entailed the death of a high-profile rock star — but to consider that Murray’s conviction was simply a function of a rock-star being the victim is cynical of the the way in which our court system functions. I do not believe this cynical view. Though, admittedly, Jackson’s fame was likely to be a factor in getting the prosecutors’ attention in initiating the litigation.

What escalated the gravity of the Michael Jackson case into criminal court, and kept it there, was also NOT that Murray committed medical malpractice, nor that he was professionally negligent — that would have kept the case a matter for the civil courts to adjudicate. Rather, it was that Murray knowingly exposed his client to a specific AVOIDABLE mortality hazard — and the professional standardization shield was not there to protect him.

Imagine, if Murray had admitted Jackson to a hospital, put him on a monitor and stood at the ready to intubate him if he stopped breathing. For starters, the rockstar may not have died as he did. But even if he had died, in that scenario Murray would have been administering the medication in a standard way — his “off-label” used of Propofol to fulfill his patient’s demand or need would not have escalated to the level of a crime.

In the Michael Jackson case, Murray’s “breach of standard” left him exposed to what the THEORY of AVOIDABILITY addresses: that the professional knowingly exposed the consumer to an AVOIDABLE mortality risk and caused his death. This, was a crime unmasked, when the rhetorical “standard practice” label is stripped away — in Murray’s case by his breach of the standard. What was the instrument of Murray’s crime? a specialized medical product to which only professionals have access — in Michael Jackson’s case, Propofol.

More broadly, therefore, when a specific AVOIDABLE mortality hazard causes death but is packaged into a standardized practice or product by a professional guild or corporation, the first deconstructive step may be to determine whether the standard itself is negligent and breaches “reasonable professional conduct”, or that the product harbors a deadly “defect”.

Once the cloak of “standard and reasonable” practice/product has been removed from the target (in Murray’s case by his own “breach”), and the notion that “patient consent” would justify the risk exposure has been debunked, the court is left with adjudicating the conduct of individual professionals, a professional guild or a corporation, who knowingly exposed their consumers to a specific AVOIDABLE mortality risk. According to the Theory of AVOIDABILITY, satisfaction of these conditions makes for a crime committed by a professional, a professional guild or a corporation - when death or irrecoverable harm is done to a person or persons. The question of intentional harm then adjudicates the degree of the crime. In the case of Murray’s crime, the fact that he did not intend to kill Jackson adjudicated it to be involuntary manslaughter.

When a professional product or service causes deaths or irrecoverable harm, AVOIDABILITY of a known risk tips the balance of the scale into the realm of criminal conduct by the professional or corporate entity that exposed consumers to that hazard— especially when the professional knowingly exposed the harmed or dead consumer to and AVOIDABLE risk or product defect. In such a case, criminal litigation will be justified and necessary if the shield of “standardization” is neutralized either because the standard is breached or is demonstrated to be unreasonable.

From a risk management perspective, it stands to reason, that no professional guild or corporation ought to accept, incorporate or sustain specific known AVOIDABLE mortality hazards into their products or services. To do so is a fundamental violation of the social contract based in the tenet governing the western markets and society: trust. When violation of professional trust causes death or irreparable harm, a crime will have almost certainly been committed.

The Theory of Avoidability proposes that “Standardization” of and “disclosure and consent” by the consumer to the use of dangerous but AVOIDABLE products and services, are mere rhetorical shields that can be neutralized by reasonable professionals and citizens. When this neutralization occurs the AVOIDABLE nature of the deadly hazard, exposes the criminal nature of professional or corporate conduct to litigation.

So long as the courts themselves can be trusted as objective arbiters of justice, the Theory of Avoidability is likely to pass the court’s tests in the future.

Hooman Noorchashm MD, PhD is a physician-scientist. He is an advocate for ethics, patient safety and women’s health. He and his 6 children live in Pennsylvania.