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.
“Off-Label” is using propofol for insomnia. Using it without the availability of required life saving equipment is something else entirely. If you assume correctness of released statements by Dr. Murray, he was trying to wean Jackson off of propofol by giving him other drugs. Jackson may have used propofol for years in this way without consequence, but did he use this combination of drugs? To the extent Jackson made a request, it sounds like his request was for propofol and not some other combination of dangerous drugs about which he nor apparently Murray knew how to safely use in this situation. The logic used in this article fails.
i don’t think that this investigation would going on so long if nothing was there. we don’t know what they have,they have not shared much on it.
I am going to ASSUME that you are not a doctor (or at least a very good one, if you do hold the title) because doling out medications without justification and without proper preparations isn’t upholding the oath; and as a doctor, you would know this. It is plain and simple – love of money.
Was Mr. Jackson an insomniac seeking propofol? Perhaps – I was not bedside, therefore I cannot make that statement with any accuracy. Was Dr. Murray an anesthesiologist? No he was not. Did he have the proper medical equipment needed if a problem should arise? No he did not. Did Dr. Murray monitor his patient after administering multiple sedatives in attempts to help Mr. Jackson get rest? Once again, No, he did not. Did Dr. Murray immediately call for assistance when his patient was “discovered” in distress – no breathing? No, according to authorities, he placed at least 3 phone calls before finally placing a call to 911 on June 25th.
He performed CPR on the bed with only his word that he applied support under the body (Which is difficult to do, considered a last resort and with the hard surface of the floor at his disposal, highly unlikely.) His ethical behavior as well as his sound judgment to protect and preserve life are in serious question. Before you offer your opinion, I suggest that you search MULTIPLE sources as one is often not nearly enough. Your facts are clearly wrong and perhaps bias due to past allegations lobbed by the media with regards to Mr. Jackson.
Dr. Murray shouldn’t be charged with manslaughter, I will agree with you on that. He should be charged with 2nd Degree Murder and Interference with a Criminal Investigation as well as (potentially) Tampering with Evidence.
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According to what Murray reportedly admitted, is it safe to assume that he also warned Jackson, “oh yeah, I don’t have the proper equipment to revive you, and although this anesthetic could make you stop breathing at any time, I might pop out of the room for a minute or two…”
Would any credible doctor leave a patient at risk for immediate respiratory arrest unattended for even a second?!
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One cannot compare the use of drugs to treat cancer patients or the side effects of let’s say, diltiazam to the use of Propofol in a patient’s home without the equipment one would reasonably expect to have available whenever this drug is used.
One also cannot defend giving this drug to a patient and then leaving him – regardless of the reasons. One cannot defend giving a patient the dose – very obviously much greater than 50 mg – that was given to this patient.
I can see how an MD desperate for money would get himself in this situation.
It is clear to me that considering the condition that Dr. Conrad states his patient was in, the reasonable response would be to call an ambulance and his patient be brought to the hospital for more appropriate care that would not have killed him.
It is also my understanding that when a patient dies at the hands of an MD – it is clearly homicide. Is this not why we don’t allow patients to die in the O.R.? We rush them to ICU doing compressions all the way. We continue a small code there and a patient is declared dead in the ICU – not at the hands of the Surgeon in the O.R.?
I think we’ll see Mr. Veatch taking the stand for the defence one of these days.
Eilleen, ER/ICU/OR RN of 28 years.
Re: “It is not even clear to me that ‘homicide’ is the right term….”
Would perhaps “prostitution” be appropriate?
This is a very interesting thesis–and almost correct. It is true that our patients often demand high risk treatments. But the therapeutic alliance is a two way street and there is no compulsion for a physician to administer or prescribe irrational drugs. Propofil does not induce sleep. It is an anesthetic: it induces what amounts to mental stasis. I vividly recall a major operation I had a few years back with Propofil induction. When I awake 5 hours later I literally picked up a conversation I had with my wife and a friend just as they wheeled me into the OR. That, friends is not sleep.
Thus, the solution MJ was seeking was not the solution he needed. One could argue that endless nights of Propofil narcosis may itself have induced much of his odd, paranoid persona. Sleep and rest is a curiously active process in which our brain is for all intents as active or *more* active than when awake. So, was MJ an even greater victim of himself than we thought? And seeking opinions of specialists who were not specialists in the areas in he was ailing! Where is the ethic of the physician knowing his boundaries? For crying out loud, this is a cardiologist! Did he have no intensivist training?
So, Dr. Murray should never have gone there. Yet if he HAD to do this, why didn’t he install some life-saving equipment. For less than a third of his monthly salary he could have fitted the bedroom just like an operating room, with heart monitors, pulse oximeters (with ALARMS!) and a crash cart with reversal drugs aboard. If MJ had slipped to respiratory arrest the good doctor could easily have ventilated him with a mask (or intubated him!) until the Propofil wore off. Some aspiration risk, yes. But alive? Yes.
Alas, I fear there is no good defense here. He apparently failed to exercise due diligence in addition to demonstrating his poor judgement. The treatment was so outrageously out of phase with any rational decision-making that it borders on the absurd. BAd medicine done badly for bad reasons.
If this defense flies, I suppose we medics will have to comply with every crazy request that comes our way. In that case, why bother knowing anything. Just open the pharmacies and have at it!
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“So, Dr. Murray should never have gone there. Yet if he HAD to do this, why didn’t he install some life-saving equipment. For less than a third of his monthly salary he could have fitted the bedroom just like an operating room, with heart monitors, pulse oximeters (with ALARMS!) and a crash cart with reversal drugs aboard.”
I think IdahoMD hit right on the head the damning reality that Dr. Veatch and our tabloid “media” seem to ignore:
…that the cardiologist, despite the $5K/night fees suggestive of the oldest profession, appears to have undertaken propofol anesthesia either WITHOUT INTUBATION equipment or without the skills or judgment to use it, or to monitor for its need.
That’s the elephant in the room.
Yes, could you imagine an operating room being vacated of all personnel for ‘a few minutes’ while the patient was under?! Yet supposedly Murray says he left the room. Unthinkable.
I would first like to state that I am a registered nurse who works in an intensive care unit. I am very familiar with administering propofol and other intravenous sedatives. I am also very familiar with the ethics involved with such.
Your case seems to be based around an assumption that Dr. Murray explained the risks of administering these drugs to Michael. I do not believe that after the first doses of benzodiazepines were administered that Michael would have been able to make a rational, informed decision as to whether or not going on with administering additional drugs would be appropriate. With the amount of drugs that he had been given prior to the administration of propofol, his judgment would have been severely impaired.
I am a believer in putting patients more in control of their medical outcomes. Yet there is a point where the doctor (or nurse) does need to say, I am the trained healthcare provider, and this is not in your best interest, especially in the case of a person who is a possible addict. You can’t compare this case with the case of a person who has terminal cancer. At some point, Dr. Murray should have said, this is not in your best interests, and I cannot take part in enabling this to go on any further.
Nothing will ever excuse the choices that Dr. Murray made. He is ultimately responsible, because his patient was impaired at that point and could not make an informed choice about propofol administration. Let us also not forget that Dr. Murray chose to administer this drug without proper monitoring equipment, outside of a hospital setting.
I don’t think propofol’s off label use is really at debate anywhere here. I think Dr. Murray’s severe lack of judgment and disregard for ethics is up for debate. I’m unsure how someone with your credentials could really miss the true facts in the debate and actually come to his defense.
Veatch you can’t be serious! I’m not a medical professional and even I know what Murray did was utterly negligent.
First, as a cardiologist, Murray wouldn’t have had much need to administer propofol in his office, so the assumption can be made that he didn’t know what he was doing. But as a doctor, he knew he didn’t know what he was doing. Second, he admitted to leaving the room, something no anesthesiologist would ever do once the administration of a drug is started and no thinking person could possibly believe and accept that he didn’t know this. Third, in Murray’s original affidavit to the LAPD he stated that he left the room to ‘make some phone calls’. If it turns out that this is the case, he should be charge with 2nd degree murder! If you were to undergo a medical procedure requiring anesthesia wouldn’t you expect the anesthesiologist to attend you during the entire procedure or would it be OK for him to take a break and get a sandwich while you’re not breathing on your own? If Murray put Michael ‘to sleep’ using propofol, that was no different than doing medical procedure under anesthesia.
And sorry, don’t give me the argument that patients are now ’empowered’ to control their treatment. That is hogwash to use a printable description! A doctor should never let a person who is clearly dealing with an addiction make decisions about something as serious as using an anesthetic for a sleep aid.
What about the obvious assumption that the Dr. must have known that MJ was drug seeking? You’d have to be pretty negligent not to know that.
Excuse me, Let’s not assume, let’s just stick with the facts. A Doctors responsibility is to EVALUATE, DIAGNOSE and PRESCRIBE the APPROPRIATE medication for the diagnosed aliment. This is where Dr. Murray failed his patient which he treated as a CLIENT.
Dr. Murray did NOT EVALUATE his patient, he
allowed his patient to DIAGNOSE what he was suffering from (insomnia)
Dr. Murray allowed his patient to determine the medication to be used for his aliment (propofol)
Dr. Murray administers the INAPPROPRIATE medication, for an ailment he did not DIAGNOSE his patient as having because he did not do an EVALUATION on his patient.
These steps are FUNDAMENTAL AND BASIC protocols for a Doctor with his patient. It’s actually the LAW that a Doctor take these steps for PRESCRIBING medication.
It is UNACCEPTABLE for a Doctor to put himself in a position where he has to warn a patient of the dangers of a drug which the patient SHOULD NOT HAVE. A WARNING IS NOT WHAT WAS NEEDED HOWEVER, WHAT WAS NEEDED WAS AN ALL OUT, FLAT OUT, STRAIGHTFORWARD, NO NONSENSE, NO STUTTERING, AN ETHICAL AND UNEQUIVOCAL ATTITUDE OF ABSOLUTELY NOT, UNDER ANY CIRCUMSTANCE WOULD I DO SUCH A THING.
Michael Jackson’s MONEY, DEMANDS or DESIRES had ABSOLUTELY NOTHING to do with Dr. Murrary’s decisions. When a Doctor puts himself in a situation where he can be INFLUENCED by a patient and that influence results in the Doctor compromising his ETHICS the Doctor, at that point no longer qualifies to be a Doctor.
Dr. Murrays’ unethical decisions ultimately killed Michael Jackson.
Oh, by-the-way, it wasn’t Michael Jackson who needed to be warned about the dangers of propofol it was Dr. Murray who should have been warned.
Dr murrays actions after he noticed a`weak´PULSE OR MAYBE NONE he did not aid his pt during trhose critical moments, immediately calling 911 etc.He acted strangely and if anything was in the way of the paramedics. He refused to sign death certificate, which got signed hours after Mr jackson was already dead.
He played for time and confused the situation the best he could.Alsi he was out of his depht
and should have refused the position. The least he could have done is consult with more
qulified collegues. He was not board certified in anything and was deep in debt- all this makes one think money was his foremost motivating factor.
Sorry for mistake above.–What I have read is that Mr Jackson was greatly agitated throughout that night,expressed paranoid ideation and desperately needed rest and sleep.
Such people are best to referredyon emergency basis to a psych.ER.There are better and safer meds to treat extreme agitation.+ it was said he listened to first to classical music then to gypsy music(not what he usually liked) If all this is true he should have been taken for proper ER care before he died. Extreme stress and prolonged sleeplessness can lead to what is described above.With proper treatment he could have been in reasonably stable within acouple of days+ then ofcourse follow up.But DR murray maybe did not take the risk of loosing favor with his celebrity patient.
Good comments by K.H.Labbrec and Paula.–.Now
Mr jackson was under extreme stress,had longstanding insomnia that worsened, had had various meds before and during that fatal night&morning. From descriptions of his mental state before given the deadly injection (if the descriptions are right)appears to be a degree of delirium.Certainly he was not at that moment in a clear state of mind able to make any rational decisions.If so it is the doctors duty to take charge,not to add further
inappropriate and life threatening substances.
No way do I believe Mr Jackson wanted to commit suicide,he just needed to escape from a temporary unbearable situation,i think.Those kind of situations are encountered daily in most ER´s and treated appropriately..
Fascinating perspective however erroneous. Health care professionals (doctors and nurses in this instance) are bound to do no harm. There is simply no case to be made for allowing a desperate patient, particularly one that you have just sedated, to direct any form of dangerous intervention. However if you were cavalier enough to do so then the least you can do is recognize that the intervention needs to be accompanied by the capacity to initiate an emergency action plan. Was the patient fully monitored with a complete equipment and labour based back up system? We all know the answer to that. Michael trusted his doctor. Thats what he always did – go to doctors and trust them. Its ridiculous to state that the doctor meant no harm because he was getting $150K per month. Thats not even the issue. What sort of ethicist are you?
Certainly dr murray did not intend michael to die, but as a´cardiologist he should have known his pharmacology better.-The timelapse between the actual death (autopsy results re accuracy of time of death are significant) the timelapse before the 911 call and dr murrays “strange´´behaviour when paramedics arrived are also of considerable interest.This post mortem behaviour was intended as was dr murrays willingness to use propofol on a continuos basis in a frivolous manner. He should have reffered MJJ to a SLEEPDISORDERS CENTER.A doctor takes a history and performs a physical exam on a new pt,dr murray should hve known from that, that he was over his head with a complicated case.
all I have to say is that if THAT dr. wouldn’t have given him the drugs…. some other one would. Its not a matter of the Dr. its what MICHAEL wanted. If you have enough money, it can buy you ANYTHING! I’m not saying it was right, but, you can’t blame the dr.
dr murray should be shamed of his self michael jackson was a nice man and he killed him that docter shouldent gave him the drug thanks alot docter you have killed a nice man stuped docter im going to hate u for the rest of my life love u michael u will allways be in my heart love u xxxxxxxxxxxxxxxxxxxnever forget u xxxxxxxxxxxxx