When is a "Breach of the Standard of Care" medical liability and when is it criminal liability?  To my mind, that is the central question lying within the case of Dr. Conrad Murray and the death of Michael Jackson.
Lawyers who defend health care professionals every day are comfortable with the fluid nature of the concept of the "Standard of Care" for the administration of any treatment, or for that matter any drug or drugs.  There are few hard and fast rules in medicine for good reason; creativity and flexibility are often at the heart of effective treatment regimens.  Off label uses of drugs--sometimes entirely unaddressed by the FDA or the medical literature--can occasionally be magic bullet treatments.  Sometimes only a physicians' knowledge of how drugs work and interact in relation to a cluster of symptoms, and her willingness to try an untested or little tested protocol, will ease a patient's suffering or reverse the course of a disease.  But, too often, if the outcome of a well intentioned effort to use a drug in a novel way is poor or unanticipated someone will claim that a deviation from well accepted and documented treatment methods is a breach of The Standard of Care."  These become the Medical Liability cases we defend often and fully understand.  And, no one suggests seriously that the practice of medicine become so hidebound that each healthcare provider's choices be limited by the FDA or a manufacturer or a certain body of literature to practice and prescribe in certain ways.  Most knowledgeable observers agree than many commonly accepted practices in medicine are not evidence based and need review.  But, Dr. Murray's case might be outside the range of even the most creatively acceptable medical judgment.  Here, we see the unique use of Protocol--a powerful and fast acting Hypnotic frequently used in 'monitored anesthesia' (MAC) outpatient surgical procedures--as a sleep agent in combination with other drugs.  There is no suggestion that electronic monitors were being used or that supplemental oxygen was being provided. There is also no suggestion that a trained anesthetist was present. More...


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