Barber v. Superior Court

California Court of Appeal, Second District, 1983.

147 Cal.App.3d 1006, 195 Cal.Rptr. 484.

Dressler, p. 124-128


Facts: The deceased went into a vegetative state.The family asked the doctors to take him off life support.They did.The state charged the doctors with murder.A magistrate dismissed the charges, but the Superior Court reinstated them.The doctors filed writs of prohibition which were considered by the Court of Appeal.


Issue: Can a doctor be tried for murder for taking a patient off life support with the familyís consent?


Rule: Life sustaining treatment must be continued when it is proportionate.In other words, the treatment must be continued so long as the benefits exceed the costs.


Analysis: The court says the main question is whether the omission (no longer providing life sustaining care) was lawful.The omission was lawful if there was no legal duty to act.There is no duty to act if the prescribed course of treatment has been shown to be ineffective. In this case, the treatment is ineffective because the patient will never recover substantial brain function.


Conclusion: The court found for the appellants and determined they must not be tried for murder.


Notes and Questions


1.     Leavens turns it around and says that treatment equals non-action, while non-treatment equals action.

2.     The court ruled that withholding an injection is an omission, therefore providing an injection would be an act and not an omission.On the other hand, failing to provide insulin would be an omission, but could well be a breach of a legal duty, and therefore the doctor could be liable for the death of the patient.The actions or omissions of the doctors in Barber were different than the others mentioned because the family approved of the doctorsí actions and gave written consent.

3.     I would think that the homeowner acted by closing the door.The door would have remained open if the homeowner had not acted to close it.In terms of morality, I think the answer doesnít matter, however, legally, it would be more likely the homeowner could be held liable for actively closing a door than passively not opening a door.We punish omissions far more rarely than actions, and the standard for punishing an omission is higher than that for punishing an action.In the case of John and Mary, common sense dictates that action and non-action are morally equivalent, and Aaron should in no way be held responsible for either.Claiming otherwise would implicit assert that Johnís life is worth more than Maryís or vice versa.

4.     Even though the presence or absence of a certain defense should not affect the courtís ruling on the law, it might have.I think the court didnít want the defendants to be tried.The court might have gone a different way on the law if the defendants had some other defense.The constitutional right to die is not decided here.


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