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15 Cumb. L. Rev. 225 (1984-1985)
Criminal Law - Homicide - Removal of Intravenous Feeding Line from Vegetative, Comatose Patient at Family's Request Is Not Murder

handle is hein.journals/cumlr15 and id is 227 raw text is: CRIMINAL LAW-HOMICIDE-REMOVAL OF INTRAVENOUS
FAMILY'S REQUEST IS NOT MURDER. Barber v. Superior Court,
147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983).
A writ of prohibition, was filed by two doctors who had been
charged in the Los Angeles Judicial District with murder2 and
conspiracy to commit murder.3 In a preliminary hearing before
a magistrate, the magistrate ordered the complaint dismissed.4
On motion of the people, the Superior Court ordered the magis-
trate to reinstate the complaint.5
The deceased, Clarence Herbert, underwent surgery for clo-
sure of an ileostomy6 and while in the recovery room he suffered
a cardio-respiratory arrest.7 He was revived by a team of physi-
cians and nurses and placed on life support equipment.8 Three
days later, a team of physicians, including the petitioners, deter-
mined that Herbert was in a deep comatose state from which
I Barber v. Superior Court, 147 Cal. App. 3d 1006, 1010, 195 Cal. Rptr. 484, 486
(1983). The writ of prohibition was based upon the assertion that the indictment lacked
reasonable and probable cause. Id See CAL. PENAL CODE § 999a (West 1970).
2 Barber, 147 Cal. App. 3d at 1010, 195 Cal. Rptr. at 486. Murder is the unlawful
killing of a human being, . . . without malice aforethought. CAL. PENAL CODE § 187
(West Supp. 1984). The court concluded that malice could be presumed if the petitioners
unlawfully and intentionally killed Mr. Herbert. Barber, 147 Cal. App. 3d at 1012, 195
Cal. Rptr. at 487.
3 Barber, 147 Cal. App. 3d at 1010, 195 Cal. Rptr. at 487. According to the California
Code, conspiracy results when two or more persons conspire to commit a crime. CAL.
PENAL CODE § 182 (West 1970).
4 Barber, 147 Cal. App. 3d at 1010, 195 Cal. Rptr. at 486. After hearing the evidence,
the magistrate concluded that: (1) the proximate cause of Herbert's death was diffuse
encephalomalcia, secondary to anoxia and thus the petitioners' conduct was not the proxi-
mate cause of the death, (2) under the circumstances, the petitioners' conduct being the
result of good faith, ethical and sound medical judgment, was not unlawful, and (3) the
petitioners lacked malice. Id. at 1011, 195 Cal. Rptr. at 487.
5 Id at 1010, 195 Cal. Rptr. at 487. The superior court judge opined that homicide is
the shortening of life and since the petitioners' conduct was not authorized by law, it
constituted murder. Id at 1011, 195 Cal. Rptr. at 487. Under California law, when an
action is dismissed by a magistrate, the prosecutor has 15 days to make a motion in supe-
rior court for an order compelling the magistrate to reinstate the complaint. CAL. PENAL
CODE § 871.5 (West Supp. 1984).
6 An ileostomy is a surgical procedure that creates a passage through the abdominal
wall into the ileum. TABER'S CYCLOPEDIC MEDICAL DICTIONARY 1-5 (12th ed. 1973).
7 Barber, 147 Cal. App. 3d at 1010, 195 Cal. Rptr. at 486.
8 Id Life support equipment includes the respirator, defibrillator, intravenous fluid
lines for infusion, cardiac monitors, nasogastric feeding tubes, and other adjunctive equip-
ment designed to continue life. V. COLLINS, PRINCIPLES OF ANESTHESIOLOGY 1322 (2d
ed. 1976).

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