MEDICINE AND PUBLIC ISSUES The Death of Clarence Herbert: Withdrawing Care Is Not Murder

Two physicians were charged with murder for discontinuing mechanical ventilation and intravenous fluids for a comatose patient. Although these unprecedented criminal charges were dismissed, the ruling may give physicians little legal reassurance. The case shows the problems in judging prognosis, resolving disagreements with staff, and communicating with families. Indirectly the case suggests how decision making and the care of dying patients may be improved. Physicians will continue to have responsibility for making difficult decisions according to their best medical and ethical judgment, despite legal uncertainty. IN A U G U S T 1982, two California physicians were charged with murder for discontinuing mechanical venti-lation and intravenous fluids for a patient, Clarence Her-bert, who remained comatose after a cardiopulmonary arrest. The prosecution alleged that the physicians mur-dered the patient to cover up malpractice and to save money for a prepaid health plan. The physicians claimed that they were following the wishes of the family in a case of irreversible coma. This highly publicized case (1, 2) heightened physician fears about legal liability for discon-tinuing life-sustaining treatment and the intrusion of the legal system into clinical practice. Previous judicial cases, such as Quinlan, Dinnerstein, Fox, and Storar, have ad-dressed the difficult question of when it is appropriate to withhold life-sustaining treatment from an incompetent patient (3). However, the Herbert case was the first in which criminal charges of murder were raised. The case confirmed the beliefs of many physicians that court pro-ceedings are lengthy and bitter, polarizing physicians and families. The legal proceedings were long and complicated. Af-ter a preliminary pretrial hearing, a magistrate dismissed the charges in March 1983. A superior court reinstated the charges. In October 1983, the court of appeals dis-missed the charges, and the prosecution decided not to appeal. The final decision (4) , which followed the recom-mendations and reasoning of the President's Commissio