Robert Veatch is Professor of Medical Ethics at the Kennedy Institute of Ethics, Georgetown University. He received the career distinguished achievement award from Georgetown University in 2005 and has received honorary doctorates from Creighton and Union College. His new book, Patient, Heal Thyself: How the “New Medicine” Puts the Patient in Charge, he sheds light on a fundamental change sweeping through the American health care system, a change that puts the patient in charge of treatment to an unprecedented extent. In the original article below, Veatch looks at how the empowerment effected Michael Jackson’s medical decisions and the responsibility of his doctor.
Dr. Conrad Murray is the doctor who apparently administered a fatal dose of the anesthetic, propofol, to Michael Jackson in a desperate attempt to respond to his cries for help in getting some sleep. He has received rough treatment from the media. Jackson’s death has been ruled a homicide and the media are reporting that he will be charged with manslaughter. I think that judgment is too quick and want to come to the doctor’s defense.
The case is, of course, being tried in the press before we have all the details, but the likely scenario is emerging. Making some plausible assumptions, I think a case can be made for the doctor’s decisions. Let me assume, for purposes of discussion, that the doctor did not intend to kill Michael (He was reportedly being paid $150,000 a month to be Michael’s full time physician. Even if he had completely abandoned his duty to serve the patient, he would be a fool to intend the death.) Let me assume that the lethal effects were foreseeable, but not inevitable side effects of a very potent drug. Let me also assume that Michael had been informed by Dr. Murray how dangerous the drug was and how unusual it was to use it for this purpose. Possibly, he had even told Michael that the drug’s labeling did not include the use of propofol outside of a hospital and that almost all physicians would refuse to use it this way.
With these assumptions, a prosecutor will have a difficult time accusing the doctor of a crime. It is not even clear to me that “homicide” is the right term for the death. First, it is important to realize that “off-label” uses of drugs by doctors is not illegal. It is done all the time when a physician becomes convinced that it in the patient’s interest. Second, it is critical to understand that medical choices about what is in a patient’s interest are directly dependent on the patient’s goals and values. They cannot simply be read out of a textbook as if medical science can prove what is in a particular patient’s interest. (Think about whether aggressive chemotherapy is in a terminal cancer patient’s interest or whether an abortion is in the interest of a pregnant woman.) The patient’s interest is necessarily a subjective matter about which only the patient can have direct knowledge.
It seems clear that Michael was in the advanced stages of insomnia and was in excruciating agony from persistent lack of sleep. That is an awful situation about which patients often have to make desperate choices. None of us can know what was in Michael’s head that caused the insomnia or led him to plea for pharmacological intervention. We do know that other drugs had been used even that fateful night (benzodiazepines that are often used to reduce anxiety and induce sleep). These other drugs had failed to solve the problem and made the use of the propofol even more dangerous, something Dr. Murray surely knew and presumably had told Michael.
Now the question for Dr. Murray and for Michael Jackson is, given his desperate situation, is the only drug that will give him some sleep worth the very great risk of side effects, even death? Surely, for most of us the answer would be negative, but that doesn’t mean it was Michael’s answer. Given that he had apparently received the drug many previous times without side effects, I don’t see how we can claim that Michael would be wrong to decide that the risk would be worth it in his case. Deciding whether the drug is “worth it” is a value judgment, not a scientific fact that the doctor can look up in a book. Even if almost everyone else would have decided not to try the desperate off-label use, I don’t know how we can say Michael’s gamble was wrong for him.
But, you might say, even if Michael’s judgment was understandable, surely Dr. Murray was wrong to go along with his patient’s demand. Surely, other physicians would not have agreed. A physician is supposed to be a responsible professional who has the right not to go along with a patient’s very unusual and risky demand. Most physicians would have refused to provide the propofol (at least outside of a hospital) and that is understandable, but this does not prove that Michael’s value judgment about the risk was wrong or that Dr. Murray was wrong to comply. Some medical issues are appropriately judged by what is called a “standard of care.” The correctness of the physician’s behavior is judged by what his colleagues similarly situated would have done. This, however, is not a decision that should be judged by that standard. If it is possible that Michael had made a rationally defensible decision that the risk was worth it for him, then a physician is within his rights to decide to cooperate in a legal behavior if he so chooses. He surely would have had the right not to provide the dangerous drug for off-label use, but he also has the right to decide it is a tolerable risk. If he does so after the patient is adequately informed, I don’t see how we can fault him assuming that the lethal effect was not intended.
This turns out to be crucial for the rest of us if we are to get high-quality, rational medical care. We have for many years recognized that most powerful, valuable drugs have anticipated side effects. If we choose to take the risk and the side effect occurs, we don’t say that the choice was a mistake. If the side effect is death, we don’t say it was a homicide. Provided the intended beneficial effects are good enough, we say that the side effect is tolerable even if it is foreseen. That, in fact, is precisely the justification for doctors’ use of narcotics to control severe pain in cancer patients even though they know that the side effect can be respiratory depression and even death. Most ethical systems have long acknowledged that such “unintended, but foreseen” deaths are tolerable. Normally, such a death is not deemed a “homicide.” Just may be, if we put ourselves in Michael’s shoes and plug in the value judgments he made, we can understand why Dr. Murray, apparently with great reluctance, was willing to go along. I can’t fault him if that was what he did.
The Case for Michael Jackson?s Doctor : OUPblog