Thursday, February 10, 2011

Dr. Conrad Murray's Death Drip: Explained - - Part 4

© Trials & Tribulations 2007-2011. All rights reserved, do not reproduce in whole or in part without the express written consent of Trials & Tribulations.

This is a GUEST ENTRY by KZ. KZ, a CRNA, is giving T&T readers her analysis of the events that apparently caused Michael Jackson's death, based on the evidence presented at the preliminary hearing. Sprocket

Conrad Murray's Death Drip: Explained
Part 1 - IV Technique: Tutorial on the Basics
Part 2- The Evidence: What we think we know from preliminary hearing testimony
Part 3 - The Lies: Conrad Murray's words and actions
Part 4 - Putting it all together: What I think really happened

Introduction/ Disclaimer:
My report of the evidence in this article, and my conclusions are the result of my own critical thinking and speculation. I did not sit in the courtroom listening to testimony, nor have I seen any actual evidence or photographs of evidence in this case, and I don't know a single person connected to this case. So, as a disclaimer, think of this article as a couple of us private citizens gathering at Sprocket's home for some great conversation, coffee, and dessert. (And I hear Sprocket is a generous and gracious host! All photos are mock-ups I created and are NOT evidence photos.)

Part 4 - Putting it all together: What I think really happened

Is THIS the Propofol Death Drip technique Conrad Murray used that killed Michael Jackson??

(Disclaimer: this is a photo mock up, and was cobbled together with medical items from the trash, just as Conrad Murray possibly did. This is NOT an evidence photo.)

Yup. I think this is it. And I'd bet a good cuppa fancy coffee (Hazelnut Latte, tall, please, with cinnamon) that I'm correct.

You see, I wrapped my brain around the "bottle in a bag" for days. My colleagues and I puzzled it out. The only thing we could initially come up with was that he was collecting his empties in an IV bag, which some anesthesia providers have been known to do in a crisis, to keep track of what was given. Or that he used the outer wrap of the IV bag to collect his empties. Maybe so he could carry them out of the mansion for disposal. Something like this:


Trash (empty bottle) in the outer wrapper of an IV bag

But then, I remembered that there were full, partially used, and used vials ALL over the room, from the testimony. The place was a pigsty of medical equipment. So, why would Conrad Murray (CM) suddenly become all neat and tidy, who had an obvious pattern of being messy and disorganized with medical equipment?


I even BRIEFLY entertained the horrifying thought that maybe CM was removing the neck bands and stoppers of the 100cc propofol vials and POURING the propofol into a slit open used NS bag to drip it. That would account for the liquid in the bottom of the NS bag, but why put the bottle inside? That gave me nightmares and cold sweats for days. Dear God, even CM couldn't be THAT stupid and reckless, could he?

Then I read a comment that the bottle was "attached" to something at the bottom of the inside of the IV bag.

I also remembered that the "bottle in a bag" was the FIRST thing CM turned his attention to removing/ hiding. (Never mind that annoying airway management thingy, or the CPR thingy, or the 911 thingy.) Why hide a bag being used for empty bottles? And why the sudden urge to tidy the place up, directing Alvarez to hold open a bag to accept a bunch of med bottles? Is that REALLY his first priority when his one and only patient is in a full cardiac arrest? And whew, I'm ever so glad CMs extensive medical education and Cardiology board certification helped him to diagnose the medical condition of full cardiac and respiratory arrest, and without any fancy machines or labs, even! He is one sharp doctor! If only an Intra Aortic Balloon Pump had been available right then and there, I'm sure CM would have known just what to do. But I digress.

So, the conclusion I came to reluctantly, and astoundingly, was that CM was indeed "free dripping" propofol. Without ANY electronic infusion pumps or volume control devices. And very likely using maxi drip IV tubing. And he piggybacked the whole "arts and crafts" project into the Y site nearest MJ's left leg (saphenous vein, below the knee) insertion site, which is why the Y-site had propofol (and lidocaine, from his syringe doses) in it, and the tubing upstream to the NS IV bag, did not. That there was LIDOCAINE in the Y site lends support to the possibility that it was not a drip ALONE that produced the respiratory arrest. He may, indeed, have bolused him from a syringe, on top of the drip, if he was not adding lidocaine to the 100cc vials. OR he could have been injecting some lidocaine into each bottle before spiking it.

Once I recovered from my own nausea while imagining the ramifications of that horrifying free drip/ maxi drip tubing "technique", I was determined to figure out how and WHY he was dripping propofol this way. (When there were SO MANY easier, less hazardous methods.....like a cheap IV pump, or a buretrol.) I was determined to figure out the "bottle in a bag" that was SO important for him to get rid of quickly-- before paramedics were called. Because there is absolutely no evidence that adds up that CM was NOT dripping the 100cc bottles of propofol, except HIS own words. And he is a liar.

KZ has a serious question about the evidence. Did anyone ever count how many punctures were in the rubber stoppers of any of the used vials? This would be VERY interesting to know. Especially for the 100cc vials. And were the punctures small, from needles, or a larger puncture, from the spike of IV tubing? There were a number of used and partially used vials at the scene. Gosh, I hope LE evidence techs counted the punctures! You see, that is HUGELY relevant to the technique CM was using. If he were puncturing the 100cc vials with 10cc syringes, which we know he had from the coroner's office report, he would have had to puncture each 100cc vial 10+ times to suck out 100cc of propofol. (Must allow a few cc per syringe for the lidocaine CM used, as well as vial overfill of up to 10cc, which usually accounts for tubing fill. 100cc vials are designed for dripping in ICU's and have a small band attached to the bottom for hanging. However, it is possible to open a 100cc vial and use smaller doses by withdrawing using a needle and syringe.)



Hanging band for IV pole (Generic propofol)


As I pondered the issues of free dripping propofol without an infusion pump, I was struck that he very likely only had one brand or style of IV tubing, the same tubing he was using for the Normal Saline mainline. And clearly Murray had 100cc propofol bottles-- a LOT of them. And remember, he clearly had a choice of what size vials to order, because he ordered 20cc and 100cc vials specifically in each order, in full carton amounts. He didn't get the bigger size, for instance, because the smaller vials weren't available or back ordered. Now, unless the 100cc empties at the scene had LOTS of needle punctures in the stoppers, there is only one way to get the propofol OUT of the bottle without making a sieve out of the stopper. I'm betting the empties had only ONE puncture, from the large spike of a set of maxi drip IV tubing.

To be fair, there IS another way to fill syringes using IV tubing. The bottle is spiked with tubing, and a 3-way stopcock is attached to the tubing. A syringe is hooked to the stopcock, the little lever is turned, and a syringe can be filled rapidly. We practice this technique with a medication for a very rare anesthetic complication called Malignant Hyperthermia. The medication, Dantrolene, is mixed up and rapidly drawn up this way. We practice this drill and teach RN's in the OR and PACU how to do this in the event of an emergency. But I think there is NO chance this is what CM was doing, and no one has reported anything that looks like a 3 way stopcock at the scene. And if CM was doing this, for sure he would have explained this by now, as a means to explain how he did NOT have a drip hanging every night.

But let's get back to propofol IV drip technique. Dripping something from a sealed glass bottle is not exactly easy. It's not as simple as spiking the bottle onto tubing, twirling open the pretty blue roller clamp, and letting it run in. In fact, to even "prime" (fill) the IV tubing with a thick liquid like propofol, you have to remove the cap from the end of the empty, new tubing to get the liquid to fill the tubing, keeping the end sterile and letting it run over a trash can. Refer back to Part 1 of this series, IV technique: A Tutorial.

To get something out of a sealed vial, you must put air inside to create positive pressure to allow you to suck the meds out, or gravity drip them out, in this case. Otherwise, a vacuum is created after only a small amount of liquid is removed. I'm going to show my age here, but imagine pouring ketchup out of a new glass bottle (the old fashioned kind, not the new plastic ones. Remember the Carly Simon "Anticipation" commercial?) If you turn the ketchup bottle completely upside down, to encourage faster flow, the thick ketchup plugs the neck and doesn't allow air inside. You had to vent the ketchup bottle with a knife or something to get the ketchup to flow, once the neck was occluded. The more skilled ketchup pourers were able to keep an air vent open by tilting the bottle carefully. (Anticipaaaattion is makin' me wait.....)

So how DO you vent a sealed glass bottle and IV tubing? Well, if you have access to it, you properly use VENTED tubing. It comes both in "simple" non- pump tubing, as well as specialized tubing for a specific brand of electronic pump. (And well, we KNOW there were no infusion pumps in that bedroom.)



The blue tab is the vent port of Mini-drip tubing left open.


This picture shows a vented mini-drip tubing drip chamber. The little blue "door" is the vent.


But in a pinch, if you don't have vented tubing, you can vent the bottle with a sterile needle and syringe. However, you have to re-vent the bottle again and again to keep the med flowing. And sometimes the stopper starts to leak from all the needle punctures. So, I have seen providers in a crisis situation take the syringe off the needle to let air in. And, of course, the needle hub leaks whatever is in the bottle. Plastic IV bags don't have this problem, and don't require vented tubing to flow. The plastic is flexible enough that it conforms to the remaining volume in the bag, and no vacuum is created by the flow.

Now, I like a good arts and crafts project as much as the next person. And Murray's technique is CREATIVE, I must say. Unbelievably stupid, completely nonstandard, and breathtakingly (no pun intended) reckless, too. But undeniably creative. (But sorry, CM, no bonus points for creativity when your patient is DEAD.) So let's look at it again: (And yes, I'm pretty well convinced this is what he was doing. We won't know if I'm right or wrong until the evidence photos are shown at trial, if the trial is televised.)




Bottle spiked inside bag.










In the bottom left of the image inside the saline bag, you can just barely see the needle vent placed in bottle.



Doctor, did you find that technique in a book or online somewhere, perhaps in a professional journal? Gosh, I can't find something like that anywhere, but I'm just a lowly advanced practice Nurse Anesthetist! Because it is pure science fiction or fantasy to suggest or imply that your "technique" is either SAFE or APPROPRIATE in any way. (And we have witnesses to the evidence photos that you did something JUST like this, in the care of your patient, MJ.)

You see, Conrad Murray had several little nagging problems to solve. And since he was being paid something to the tune of $150,000 A MONTH, (golly, that's $5,000/ a day, or $208 an HOUR!) well, perhaps he was encouraged to set aside just a few moments in between intimate romps, cell phone calls, texts with his girlfriends, and escalating pharmacy orders, to think about how to keep his one and only patient ALIVE. (....Nah...that didn't happen, obviously.)

You see, this technique unquestionably solves Murray's problems, but does very little to solve the problems of his PATIENT. (Like breathing-- that's sort of a big problem when you AREN'T.)

Okay, so I'll explain. (Pour a cup of your favorite beverage, hit the bathroom, then come back and settle in for a few minutes.)

The basics: If you stop breathing properly, then your heart stops beating properly, then you die. (I learned that even before my baccalaureate nursing program, BTW, Dr. Murray.)

So, that "if you stop breathing properly" thingy is sort of important. We can agree on that, right Doctor Murray?

A bunch of stuff can cause a person to stop breathing. Like massive trauma, head injuries, terminal cancer, paralyzing drugs (think execution by lethal injection), too many narcotics, bullet wounds, electrocution, manual suffocation, strangulation, distraction due to text messaging, cell phone calls, etc. None of these things took away MJ's breath. Oops, my mistake-- maybe the text messaging and cell phone calls had some influence on the "not breathing."

MJ was lying in a bed in an expensive rented mansion, with a house full of high priced staff, and a very high priced personal Cardiologist, who was supposed to be somewhere "sort of close by", right? MJ was 100% vulnerable at the point that Murray rendered him unconscious, and MJ could not advocate for himself. Once anesthetized by CM, MJ was the very definition of a "vulnerable adult." At that point, MJ had paid CM to advocate FOR him. And CM was a bit distracted. But MJ wasn't anesthetized, was he? Dr. Murray said he wasn't.

The combination of benzodiazepines and propofol took away MJ's breath, and roundabout 5 to 15 minutes after that, MJ's heart protested in vain for a while, and then he died. MJ had a healthy heart, so it attempted to kick out some random electrical "help me" pings for a period of time after it quit beating with organized purpose, but the window for resuscitation had passed. While his DOCTOR was on the phone with a girlfriend. And definitely NOT paying attention to his patient, who had stopped breathing due to the reckless cocktail of intravenous (and possibly oral, as well) medications MURRAY provided to his "patient."

Okay, I'll stop ranting and explain. Permit me to explain further by exercising some of my own creativity. I like creative writing, so I'll explain by telling a bedtime story of "Doctor and Patient, and Thumb."

Patient had been receiving daily intravenous benzodiazepines and IV propofol for significant amount of time. At least 8 weeks that we know of, and likely longer than that. Whether you believe or not that he was an "addict" (an emotionally laden word for his many fans, and I will address this at the end), his body was experiencing "tachyphylaxis." I believe MJ was chemically dependent, and had been for a very, very long time.

Cytochrome P450


Tachyphylaxis means that the small doses that CM may have started out giving to MJ weeks earlier, did not have the same psychological and physical effect anymore. Repeated exposure to (escalating doses of) propofol caused his body to become very efficient at metabolizing the substance/s. Plus the benzodiazepines--and what is a liver to do? Liver gets efficient! Go liver! Ramp up that CP450 enzyme system! Except that tachyphylaxis can be cruel-- it suppresses the "fun" aspects of some drugs (like euphoria and well-being), but allows the wicked parts of the drugs to continue to affect the patient (like respiratory depression.)


So....back to my bedtime story. "Doctor and Patient, and Thumb."

Patient is tired, and it is bedtime. Doctor tells Patient a nice story, rubs special lotion on his back, turns down the lights, and plays soft music. Doctor has been helping Patient try to sleep with a sleeping pill, and some other medications. But none of these things help Patient to sleep. Patient is upset and wants Milk at bedtime every night. Doctor knew about this for a long time, because Doctor made sure a lot of Milk was in the house from the very beginning. Doctor began to spend every night taking care of Patient, and giving Milk to Patient.

Doctor pushes a bit of Milk from a syringe with Thumb. Patient is semi-conscious a few minutes, then patient awakens. Patient is unhappy, and wants a good night's sleep, ie, to be unconscious for several hours. Patient is worried about his vitality and energy for his concert schedule, and complains. Doctor pushes a small amount of Milk and other medicines with Thumb again, Patient is unconscious a few minutes each time, then Patient awakens again. Patient is unhappy.

So Doctor begins to think about how to make Patient happy (asleep; unconscious), for a prolonged period of time. Doctor's Thumb is getting tired, Doctor's attention span is short because it is late and he is tired, Doctor often needs to stretch, pee, and text his girlfriends, and his girlfriends are calling! So, Doctor thinks about the situation. What to do? He is a smart Doctor. He will figure this problem out. After all, Doctor can't just sit there with Thumb all night, every night! What is Doctor supposed to do, watch Patient sleep and breathe? That is boring, constant work, and takes a lot of concentration. He has other things to do! There must be an easier way. He has to give more Milk more often, and more of the other meds to help Milk work longer. That's what he will do!

Well, time goes by. Doctor is happy that Patient is getting some unconscious/ sleep every night. Patient is happy that he is getting some unconscious/ sleep at night. But Doctor is frustrated and tired. He has to keep filling up the syringe and pushing little amounts of Milk in the IV tubing every few minutes, and he is also giving other meds in the IV-- often! And this is hard work that requires a LOT of Doctor's attention. If he doesn't pay very close attention to Patient, Patient wakes up. And sometimes Doctor even has to turn on the green tank thingy and give oxygen to Patient, if Patient isn't breathing well. And Patient is unhappy. Patient wants to sleep without waking up a lot.

Well, if Doctor can figure out how to give Milk more consistently, Patient won't wake up unhappy. Doctor's Thumb is happy to imagine this-- he will be able to rest, if Doctor can figure out this problem. So Doctor sits in the Thinking Chair. And Doctor looks up at Patient's bag of IV fluid that he also gets every night. And he holds the tubing in his hand, and THEN the solution comes to Doctor! Doctor has figured out what to do! Hooray for Doctor! He is so smart! Doctor runs to the closet to get some supplies.

Doctor puts a big bottle of "milk" on IV tubing, and hooks it up to the Y-site closest to Patient. For a bit, Doctor is happy. He can twirl the pretty blue roller clamp and control how much "milk" comes out of the bottle into Patient, and text with his other hand. Patient is blissfully unconscious. Patient is happy! Doctor is happy! Thumb is happy! Girlfriends are happy! Problem solved!

Doctor puts the pulse oximeter thingy on patient's finger to congratulate Himself with how safe he is. Doctor has a vague idea that he should give Patient oxygen from the tank if the finger thingy says a low number. Doctor turns on tank from time to time, and it runs dry at some point. Doctor has earned his $5000 salary for another day. (Even though he sometimes has to empty that icky jug full of patient pee.....just leave it behind this chair, and maybe someone will take care of it in the morning.)

But something curious is happening with the patient's milk bottle. After a little while, it won't "go" anymore. Doctor is sad. Doctor's Thumb has to work hard again, and Thumb is definitely needed for texting girlfriends. Thumb has to push the syringe again, a lot more often than he wants to. Doctor's Thumb is worried. And there is SO much texting to do! What is a Thumb to do?

Thumb whispers to Doctor.

Doctor thinks about this, maybe even phones a friend. Air! THAT's it! Milk bottle needs AIR to flow faster! Milk bottle needs to breathe! Patient will get a lot of milk, Thumb will be happy, Patient will be happy, girlfriends will be happy. Doctor will be happy. Must help Milk bottle to breathe. So Doctor pokes a hole in Milk bottle's rubber stopper with a needle and syringe, and squirts in some air. Milk bottle is flowing again! Problem solved!

But soon Milk slows down, and Doctor has to keep squirting air into the bottle to help the Milk flow. What to do? Thumb is busy and unhappy again. Maybe Doctor even phones a friend again.

Doctor decides to take the syringe off the needle, but leaves the needle in the rubber stopper next to the spike to make sure that the Milk bottle can breathe and is happy. Milk bottle flows great!! Patient is unconscious/ asleep. Doctor is happy....but....




Propofol bottle spiked with macro drip tubing using a 27g needle to vent bottle for continuous infusion.




The needle hub leaks milk all over the place. Doctor is not happy. No bonus points for style, AND he is wasting milk all over the place. Maybe he even wraps a kleenex around the needle to catch the drips. And somewhere in the back of his mind he remembers that he is supposed to be "super duper clean" with this medicine so Patient doesn't get a bad blood infection or something. Good thing patient is on some oral antibiotics, Doctor thinks! Not much texting going on at this point. Thumb is sad. Will girlfriends forget about him?

How to solve this new problem?

Catch the drips! That's it! Must catch the drips! Then Thumb will be happy, Patient will be happy, Doctor will be happy, and Girlfriends will be happy!

So, Doctor wonders if maybe the drips from the needle vent could be caught up in something, to be neater. And Doctor thinks about an IV bag, an empty one. That would catch the drips really GOOD! And Doctor remembers that at one point in time, the IV bag was SUPER DUPER clean inside! (He also remembers again that the Patient is taking some antibiotics, which is a good insurance policy against infection.)

So Doctor decides to do a craft project. He likes arts and crafts! Doctor carefully cuts a slit in the top of a used up IV bag. With REALLY clean scissors. He is careful to cut so the bag will still hang on the IV pole from the loop. And he only cuts a slit in one side of the bag! Doctor likes to do craft projects!



Cutting through single layer of IV bag to create pouch for leaking propofol bottle.




And Doctor sees the spike from the IV tubing inside of the bag, and wonders if it is long enough to poke inside of a milk bottle. Because if it is, Thumb will be happy again! So Doctor tries to poke the milk bottle on top of the IV spike. Perhaps he finds the spike is not long enough, so he has to trim off a bit of the IV bag spike port on the outside to poke the spike through again to get enough "reach" for the spike to fit inside the milk bottle. (KZ note: Some IV bags have a different style plug, and no trimming would be required with those bags.)




Cutting off access port to shorten so that access spike can reach propofol bottle.








Propofol bottle spiked with macro drip tubing through access port inside 1 liter IV Bag. Scissors positioned just to show slit.



Ah....that's it! And with the little needle vent in place, the Milk bottle can breathe again! The poor old used up IV bag is happy to be really useful again! (Recycling!) IV bag catches the DRIPS from the open needle hub. Milk is flowing briskly again! Milk bottle can breathe! Patient and Doctor are happy! Girlfriends are happy! Oh, Thumb is so happy! He can rest or text!

Doctor is happy, because he has finally solved all of his problems. Every night Doctor carefully does another craft project with 1 or 2 Milk bottles. Patient is sleeping every night. Doctor is earning his $5000 a day. The pulse oximeter thingy makes sure Patient is safe, and Doctor has even learned from all those nights with Patient, that if you look at a person's tummy and chest, you can see if they are breathing! He remembers that nurses count respirations, and he gives it a try, too. All is well. Until June 25, 2009. This is the scary part. Maybe you should get your favorite blankie for this part.

Doctor has some phone calls and texts to make. Patient is just fine. Doctor steps away from the bedside for "a while". Maybe patient wakes up just enough to move his legs, and the IV speeds up. Maybe Doctor put the mainline bag lower than the Milk bottle, causing the Milk to speed up. Maybe Patient wakes up and opens up the roller clamp on the Milk. He could possibly reach the roller clamp without even sitting up. What is absolutely certain, is that things didn't happen the way Conrad Murray has said they did. The end result is the same. Patient stops breathing, either by central nervous system overdose, or by airway obstruction. Heart protests for a while, but, sadly, no one notices. Patient dies.

At some point, Doctor notices all this, bungles any semblance of a resuscitation (which is far too late by now, as Doctor knows), and Patient dies before paramedics arrive. Security Guard Alvarez arrives in the bedroom. Doctor tells Security Guard Alvarez to take down the bag with the bottle of milk inside and put it in a bag. Alvarez is not sure why Doctor is telling him to do this, but he is worried and scared, and he follows Doctor's directions.

Did I mention that Doctor waited a while before directing Security to call 911? Paramedics arrive, and witness some desperate final attempts by Heart to send out the last bits of electrical distress signals, but are unable to revive Heart or Patient. Doctor protests the death of Patient, so Patient is transported to the hospital, and Doctor goes along in the ambulance to text and talk to someone (but not the hospital doctors!) some more while paramedics continue resuscitation efforts. Patient undergoes close to an hour and a half more of resuscitation attempts at the hospital before everyone agrees that Patient is really, truly dead. Doctor doesn't ever mention to anyone that Patient was getting Milk. I wonder why? Maybe Doctor can explain this someday.

Doctor and Thumb are sad. Very, very sad. Doctor and Thumb feel bad, very bad. Doctor and thumb are worried. Doctor wishes Patient was still alive. Doctor takes Thumb and runs away for a while. Lots of people are sad. Lots of people are MAD! Lots of people agree Patient had WAY too many drugs in his body, that were given to him by Doctor.

The rest is history.

This is not a bedtime story; this is a nightmare. A nightmare MJ never woke up from.

And, to my knowledge, MJ's death is the FIRST propofol death due to a health care provider, a DOCTOR, being HIRED to give propofol in a private home. Not an accident. Not suicide. Not first degree premeditated murder. This was also NOT a result of reciprocal drug abuse. But, a Doctor was intentionally HIRED to give this medication in a private home, the planning & pharmacy orders occurred over a long period of time, and the victim the doctor was HIRED to give it to, is dead. I'll link this article one more time, because it is so clear about propofol abuse. It was submitted for publication in 2008, and published April 2009.

RIP, MJ. Addiction, dependence, and substance abuse is a disease. You were a very ill man. It was not your fault. Dr. Conrad Murray should have known better.

I don't believe this was any kind of conspiracy. I don't believe it was any kind of legitimate medical care. And I also don't believe that calling it what it is, chemical abuse and dependency, in ANY way diminishes the great talent that was Michael Jackson, the King of Pop. I am hopeful that the public discussion of MJ's very personal struggle will encourage people to talk about the VERY real, deadly problem, of chemical abuse and dependency. Because the problem takes a lot of very talented people from us all, far too early, and not just celebrities and musical artists.

The other, very public discussion we should all be having, in every state, is about the unlimited scope of practice that physicians have when giving care and performing procedures outside of legitimate hospitals and clinics. As I wrote earlier, there are numerous safeguards in place in legitimate hospitals and clinics to ensure that doctors (and other providers) who perform procedures are not just licensed, but are CREDENTIALED to perform them. Credentialing is a vetting process that looks at a provider's educational history, board certifications, internships, fellowships, need for certain privileges, insurance claims, etc. It is a process we providers love to hate, but we all know that it is necessary to validate our credentials and safeguard the public. There is NO credentialing or vetting process for physicians in their private offices, private clinics, or for those hired to provide "celebrity concierge care."

There is little to no regulation for "fee for service" procedures performed in offices, private clinics, and private homes of those able to pay for these "services". Often, the only time the public is aware that there is a problem is when something goes terribly wrong, such as the story of Nadia Suleman and her overzealous, unethical doctor, or the stories of patients maimed, injured, or killed by unqualified doctors performing cosmetic procedures in their offices, for example. The reality is that scope of practice, and a LICENSE, are two completely different conversations. A medical license in this country is largely unrestricted. It takes a heckuva lot of documented problems for a doctor to lose his license to practice medicine.

We all need to have a very public conversation about what kinds of regulation and oversight is enough to protect the public from doctors who choose to practice in offices, homes, and clinics far outside of their education and abilities. IMO, the risk to a patient grows exponentially when a doctor is providing any kind of service as a "retail" out-of-pocket service in an office environment. Once the process of hospital/ clinic credentialing, and insurance company approval is removed, as well as inspection by agencies such as JCAHO or the state, the transaction of what service a doctor will perform is only between the patient/ customer and doctor: what the doctor is willing to do, and how much money the patient can pay. All of the safeguards and gatekeepers are gone. The patient has few advocates at that point. Michael Jackson's situation is a perfect example of this.

And in my opinion, the public conversation needs to include oversight authority for access to scheduled medications (especially injectables) purchased at a commercial compounding retail pharmacy. Because simply placing a med on Schedule status on the CSA does not control access by nefarious or unqualified physicians. Even if propofol had been scheduled, CM had legal access to purchase it as a solo physician with his DEA number and license. He was not required to validate what he needed it for, and how it was being used. The pharmacy was allowed to ship it to the address he provided. He did not have to provide any records to anyone. THAT should not be legal, in my opinion. But wishing doesn't make it so.

There are a number of ways that regulation and oversight could occur to protect the public, but I'm doubtful it will ever happen. The AMA is a very powerful lobby when laws and regulations are proposed. The process of developing and implementing oversight is arduous, and would require the involvement of multiple agencies. Boards of Medicine do not have the authority or the means to conduct oversight of physician's day to day practice. And so, it is a difficult problem, and a difficult conversation-- how do we ensure public safety from reckless, incompetent, and unethical doctors BEFORE someone is maimed or killed? (Granted, there are NOT that many of them, but they do exist.) In my opinion, the best way to do this, at present, is to continuously educate the public about how to choose their medical providers, and warn of the risks of choosing "lone wolf" doctors on the fringes and edges of ethical, competent practice.

Conrad Murray was a reckless, incompetent, and unethical lone wolf for hire, with a DEA number and a license to practice medicine. He did things in that bedroom he knew full well he should not have been doing. He alone bears the responsibility for providing those drugs to MJ for "care" that was not legitimate. MJ is dead, and I fervently hope that Murray is sentenced to the maximum 4 years in prison. I only wish it could be many more years.

Thanks for reading! It's been a great conversation with all of you! Thanks very much to Sprocket and CaliGirl9 for the opportunity to write here.
~KZ

Regarding the ongoing debate about the addictive potential and properties of Propofol:

This may help to address the many questions posed by individuals who continue to insist that propofol is not addictive. The DEA and the Federal Government agree that propofol is addictive, and has demonstrated to be a drug of abuse with a high rate of mortality. The DEA has classified Propofol as a schedule IV drug, effective October 19, 2010.

(Notes: Schedule III was originally requested. The petition was filed just 432 days before MJ died. The CSA is "Controlled Substances Act".
*My bolding in article below.)
~KZ

The Federal Register is the official journal of the Federal Government of the United States that contains most routine publications and public notices of government agencies. It is a daily publication in the public domain, and not copyrighted.

Federal Register @ Wikipedia

The following is snipped from the Federal Register, with link to the full entry below:
On March 18, 2008, the Drug Enforcement Administration (DEA) received a petition requesting that 21 CFR 1308.13 be amended so that propofol be controlled as a schedule III substance under the CSA. The basis of the petition was the reports of increased incidences of propofol abuse during the past decade. The petitioner stated as the main argument in support of the request that:
"Propofol is the most common intravenous anesthetic in the United States today but over the course of the decade, documented cases of abuse have been steadily increasing over the past 10 years

* * * Unfortunately, there is also a very high mortality rate (greater than 33%) associated with this abuse.''
"Schedule IV sedative-hypnotics, such as methohexital and midazolam, are known to produce euphoric moods and have histories of abuse in the United States and other countries. There have been published case reports of individuals who became dependent on propofol. These reports indicated that the individuals expressed a ``craving'' for propofol, causing them to compulsively self-inject daily. They were abusing propofol for its relaxing and euphoric effects. In a survey of academic anesthesiology programs, 18 percent reported diversion or abuse of propofol. Twenty-eight percent of the reported abusers of propofol had died due to propofol overdose. The individuals who died were affiliated with health care facilities in which there were no pharmacy or security mechanisms to control access to propofol. In a published survey of certified registered nurse anesthetists, propofol was reported to be the fourth most preferred drug to misuse among this population. Propofol abuse is associated with significant adverse health effects, including death. The known major side effects include pancreatitis, pulmonary edema, cardiovascular depression, and respiratory depression. The cause of death with propofol toxicity is due to severe respiratory depression.
Withdrawal symptoms observed upon ceasing long-term administration of a substance are indicative of a substance's ability to produce physical dependence. There have been published reports of withdrawal symptoms upon an abrupt cessation of administration of propofol after a prolonged treatment. The symptoms include agitation, tremors, tachycardia, tachypnea, hyperpyrexia, confusion, and hallucinations. These symptoms are similar to the symptoms observed upon withdrawal from benzodiazepines. Withdrawal symptoms improve once administration of propofol is reinitiated. A delusional state lasting up to seven days may occur before full mental functioning returns. It should be noted that after a prolonged administration of propofol, the cessation of administration should be done cautiously and the patient should be monitored for any signs of a withdrawal syndrome."
Federal Register Source

131 comments:

Anonymous said...

KZ, you've described something truly shocking and, for the moment, I am speechless.

The Patient Advocate said...

As patients we want to believe our caregivers are bound by integrity. I never thought MJ was to blame for his addiction.

I am stunned by how on point this latest entry by KZ is.

Truly, like anonymous, I am speechless. I think the word "milk" will forever have new meaning in my mind.

Just like MJ named his child "Blanket" in his make belief half child/half man world I can picture him pleading for his milk.

It is pathetic that Murray beholden to his debts and multi-state practices was swayed by the almighty dollar to rig an IV cocktail so deadly.

Thanks for the images and article so well written.

Laurie said...

Thank-you to Sprocket and CaliGirl9 for all of the time and energy you put into the great coverage of the People v. Conrad Murray preliminary hearing and for welcoming KZ as a guest blogger. Thank-you to KZ for all of the sincere analysis that you have shared with us to understand the tragedy of the last night of MJ’s life. I was wondering your opinion about the time of death given the cell phone records. It seems likely that things were set in motion close to CM’s original timeline. CM set the gravity IV death drip going around 10:50 am, left the room shortly after 11:00 am so that his talking wouldn’t disturb MJ’s ‘sleep’, then within the next 60 minutes or so, Jackson stopped breathing, which CM discovered when he stepped back in to check on him. I would appreciate it if you would give some thought to the following question. I understand that most patients’ eyes are closed when under propofol. With the understanding that MJ had multiple drugs in his system, how and why do you think he opened his eyes and mouth and was it at a subconscious level of sedation? Thank-you.

10:29 am - 10:51 am 22 min incoming Acres Home and Cardiology, Texas
10:34 am - 10:42 am 8 1/2 min outgoing Ruggles
16 minutes (LIES - at ~10:50 am prepared 25 mg dose of propofol & lidocaine and administered over three to five minutes; looked at watch, Jackson fell asleep at 11:00 am; monitored Jackson for a while; went to bathroom)(KZ - possibly gave Jackson 25 mg dose of propofol, then set gravity IV drip of 100 ml propofol)
11:07 am 1 min incoming Ruggles
9 minutes (composing text to London?)
11:17 am text to London
11:18 am - 11:49 am 32 min incoming Global Cardiovascular, Las Vegas
11:26 am 7 sec incoming Morgan
11:49 am 3 min outgoing (Daliwal identified it as 11:49 am 3min) (actually Myers identified it as 11:51 am outgoing Robert Russell)
11:51 am - 12:03 pm 11 min outgoing Anding

Anonymous said...

Thank, KZ. Don't the facts in autopsy report mean anything? I think it said that Michael was 50 years old, healthy, and his organs showed no damage. I think that means that he was not "addicted" to anything.

Anonymous said...

Y'all need to understand that the medical professionals are the ones who call the propofol "milk." So, guys, please stop giving the misleading impression that MJ coined that term.

katfish said...

KZ, Thanks for taking so much of your time to illustrate and explain what may have/likely happened in MJ's death.

But this tale goes so far beyond the confines of Michael Jackson's mansion. It seems just because someone holds an MD he/she is not held to the standards of the law that the rest of us are held.For doctors, hubris seems to be an exemption from forming implied malice.

If a practice is not acceptable in a hospital setting it should be illegal to provide the service in a private home or clinic.....the law needs changed IMO!

KZ said...

Laurie at 5:18,
First, it is extremely common for patients to have partially open eyes while under general anesthesia. After a patient loses consciousness, we tape the eyelids shut to prevent corneal damage or scratches, as well as guard against excessive corneal drying. We gently remove the special tapes before a person regains consciousness. A slack jaw is expected under anesthesia, and during cardiac arrest (prior to rigor mortis, of course). So these reports describing MJ do not surprise me at all.

As to the propofol, there is a possibility CM was actually telling a partial truth in his interview with Detective Orlando Martinez. He may have held the line and did not give any propofol June 25th until late morning. He may indeed have given 25mg at 1040 or 1050. But he almost certainly followed it up with a drip, probably using the Death Drip Technique I outlined. What I would like to know is how much propofol was LEFT in the “bottle in a bag”. Based on his autopsy blood levels I outlined in earlier parts 2 and 3, I can estimate that MJ received at least 55cc of propofol (155mg), very close to time of arrest. That is equivalent to an induction dose for general anesthesia, which most certainly would produce a respiratory arrest/ apnea. (That is one of the intended effects in inducing a general anesthetic.) Or possibly even more than 55cc, since the blood range produced by a 2.5mg/ kg bolus dose is a wide range (1.6 to 6.8 ug/ ml), and I based my 55cc dose on an average of the extremes, 4 ug/ ml.

CM was panicked to hide that "bottle in a bag" because he knew instantaneously that it would be his undoing, and proof of his reckless incompetence.

So Laurie, I think we are VERY close to figuring out exactly what CM was doing in that bedroom. And 2 things are certain in my mind: CM’s version of the drugs he says he gave is a lie, and CM has a long history of lying.

KZ said...

Laurie at 5:18,
Wanted to break up my answer to avoid the deadly 4096 character limit!
Regarding time of cardiac arrest, I work backwards from the paramedics confirmation of asystole with some PEA, at about 1225 to 1227 (remember it takes a minute or so to park, haul equipment into the house, determine what was going on, and hook up the paddles or electrodes to determine rhythm). CM reports contact with MJ at 1040-1050. From reports, CM discovered the arrest around 1200. 911 was called about 1220, and paramedics arrived 4 min later. So by the time the asystole/ PEA was discovered, it was AT LEAST 30 min, and likely a bit longer.

First, we know that the arrest and PEA was fairly advanced, as there is no report of any kind of treatable rhythm being observed either at the scene, or in the ER. The ER docs sound like they reluctantly tried the IAPB (intraaortic balloon pump) to appease CM. It didn’t work, as everyone expected, and the agreement they made with CM was that if it didn’t “work”, that would be the “endpoint” for the resuscitative efforts, and they would pronounce MJ dead. NO ONE at the hospital thought it would work—make no mistake about that. The ER wanted to pronounce at the scene, and ONLY because CM insisted, did they agree to accept MJ as a transport. The ER staff extended an awful lot of “professional courtesy” to Conrad Murray—more than most ordinary patients would get.

In the hospital, we generally turn off the cardiac monitors once a patient is pronounced dead. I had the opportunity in the 80’s to observe a number of DNR (do not resuscitate) patients in the ICU who essentially “died on the monitor”. I remember watching little bits of random “help me” electrical pings of PEA that persisted sometimes 20 min or more after asystole, during which time we were contacting the on call doc to pronounce the patient dead, and could not turn off ventilators or monitors. I am forever indebted to those souls who provided me with the valuable experience of watching their poor, sick bodies die on the monitors. It was a gift that may be difficult for some people to comprehend, but what those souls gave me, thru their DNR orders, has honed my sense for when things are “heading south” in the ER, ICU, or OR. There are very few opportunities for health care providers to watch death occur on the monitors, without rushing to resuscitate. So I have no idea how long a healthy heart might continue to send out a few pings of non-pulsatile electricity. We need an expert beyond my knowledge to weigh in on how long a healthy heart can continue to send out pings after complete asystole.

The take home message is that the window for successful resuscitation had passed BEFORE CM determined that MJ was in cardiac arrest.

Hope this is helpful.
~KZ

Anonymous said...

Thank you Sprocket and thank you so much KZ for your contributions to the T & T blog. All the time and effort you've taken is much appreciated.

Sad and mad at the same time after reading the details in Part 4.

KZ, do you still suspect the reason for the high blood levels was because of the drip continuing after asystole? Or do you think it is more likely that an incident (e.g. movement) caused a much greater flow? Is it even possible to know one way or the other? I guess it's a moot point anyway. :(

Thanks again.
GB

KZ said...

Regarding the colloquial term "milk" for propofol, the comment by anonymous above is correct that the term was popularized by health care professionals. In order to understand the complete reference, you have to be "of a certain age"! Remember Phillips Milk of Magnesia commercials? Well, we anesthesia professionals took one look at propofol, and collectively dubbed it "Milk of Amnesia". So that is the origin of the term. That the drug resembles milk is secondary to the "Milk of Amnesia" colloquialism. There are a number of others: Versed is sometimes called "Vitamin V"; Ketamine referred to as "Special K", etc. It's a coping mechanism among health care professionals who face the seriousness of human sickness and frailties every day.

And no, MJ is not the original source for this term.

KZ said...

Anon at 6:37,
Abuse and chemical dependency certainly do not always manifest in organ damage at autopsy. Terminal alcohol abuse over decades, and other drugs (inhalants come to mind) will demonstrate evidence, but other drugs do not.

So, the lack of end organ damage at autopsy cannot logically or scientifically be used to argue that no dependence or addiction was present. Respectfully, your argument is flawed.

KZ said...

Katfish said,
“For doctors, hubris seems to be an exemption from forming implied malice.”

It is more insidious than that. If you or I had done the very same thing CM did, or even if I had been “supervised” by him to give propofol in that environment, WE would be going to prison for a whole lot longer than 4 years (including lies and obstruction charges that would be piled on). You see, WE should know that giving an IV anesthetic to a healthy 50 year old man in his home for insomnia is dangerous and reckless, and that WE are unskilled and incompetent to do this. But a DOCTOR gets to play it both ways. The doctor is allowed to give ANY medication, or perform ANY procedure he wants in a private home, and it is called “medical care” until and unless the recipient is maimed or injured and files suit, or dies, and the DA files criminal charges. Whew! THAT is a powerful lobby!

So, the DOCTOR is both smart enough to initiate the reckless procedure legally, then is “stupid” enough (involuntary manslaughter; no malice) if the patient dies to claim that he couldn’t have possibly known that death could be a possible outcome!! Wow, that is really playing both sides, IMO. What a great position for docs to be in, eh? And the public is apparently okay with this? Hmmm. Therein lies the rub!

EBONY said...

I honestly do not believe that MJ was "addicted" to propofol. Feel free to disagree with me , but here is my thinking on this one. MJ did not use propofol all of the time. He seemingly only used it during tours and preparation when he HAD to be well rested. Most addicts use their drug of choice on a constant basis.

There were many reports of him often sharing a bedroom with his kids. It's kinda hard to have daddy under anesthetics when the kids are in the room.
Here is where I stand on this issue.. Some idiot doctor turned him on to propofol and he used it when he needed it. Much like you or I will take tylenol when we have a headache.
It's not our "daily dose" but it's there when we need it.
This might also account for why someone who allegedly was drug addicted for decades had no physical signs of said addiction at autopsy.
In my medicine cabinet there is currently a bottle of advil,one a day,a muscle relaxer( that I don't take because it made me loopy) and a bottle of tylenol pm and midol.
Pretty mundane.
Mj's life was extreme. So his medicine cabinet would have xanax,restoril, valium, propofol.
He probably did not use them all of the time because they made him loopy.(MJ was a perfectionist & probably like most perfectionists like to remain in control.(coherent)

I think he was circumstantially dependent. Much like the person who takes a tylenol for every headache. If you ask that person why they just won't use an ice pack or try to sleep it off, they will probably tell you that they just want what is going to to the job NOW!
Sounds a lot like the philosophy that someone who spent their entire life being catered to would have.

Sprocket said...

A doctor doesn't buy that much propofol....and not use it.

Dr. Murray said himself that he was treating Jackson's insomnia with propofol for 8 weeks. I don't believe Jackson could be treated with this drug night after night and "not" get addicted to it.

I find it interesting that many Jackson fans apparently are having difficulty grasping the fact that Jackson was addicted to propofol compounded by the benzodiazepines.

It seems to me that everyone is also overlooking the large amount of benzodiazepines that Murray ordered.

I highly recommend reading the web links in KZ's article. There is little room for doubt that the drugs being given to Jackson are addicting with a high mortality rate. And there are serious withdrawal symptoms associated with them. Those are facts. You can't get around those facts. Unlike narcotics however, they just don't show the same long-term effects on the body. Not all addicting drugs do organ/system damage.

KZ, CaliGirl9 and I have all said that it doesn't diminish what Jackson's ability was or what he gave creatively to the world. It just makes him as human as the rest of us. Not super-human, just human.

Keep in mind, the hair will tell.... When the results of that analysis are presented at trial, that will leave no doubt and confirm what drugs Jackson had been given/taking over the last two months of his life.

EBONY said...

I don't have a problem believing MJ could be addicted to any drug. I just figure that it would be difficult to have an addiction that required Dr. monitoring.
If he was in fact addicted to propofol then he should have had a constant physician to administer this drug. Not just for the purposes of the tour.
Clearly MJ was familiar with the drug as he requested it. But he were truly addicted to it i would think the tales of his usage would not just surround tours.
As to the other drugs,very possible and even likely. But if he were, I think it would only be in times of extreme pain or stress. As i said a circumstantial dependency.

Anonymous said...

If what you're saying is that the meds that the doctor administered to his patient were addictive by their very nature, then that IS the issue. This simply means that the deadly situation was created by the doctor, and many believe that the doctor is competent enough to KNOW what to DO and what NOT to do to save/not save the patient's life!

Also, it seems that you keep muddying/confusing the issue by insisting on mentioning the patient's ALLEDGED YEARS of addiction/dependency because it's a crime to prescribe to an addict.

Anonymous said...

In plain terms, what we take from propofol use here is that Murray HAD to be giving propofol as a DRIP in order to keep his patient under as long as he wanted his patient to remain under (unconscious), and that as soon as the drip stopped, the patient would awaken (become conscious).

The other thing is that it takes CONSTANT (no bathroom breaks!) monitoring of the patient while the patient is under (unconscious). My God, does everyone understand precisely what's involved here? What a heck of a job this is for any ONE person to sit around and do this for as long as 8 hours at a stretch, night after night, week after week!

Also, Murray's girlfriend Anding says that she heard (on the phone) coughing and mumbling in the background, thereby suggesting that the patient was alive at that time. So, how does that piece of info play into the timeline here?

Murray setup this deadly situation from the getgo. There was NO way that his trusting patient was ever going to come out of this alive! This was NOT "involuntary." Why is this NOT MALICE?!

Anonymous said...

Thank you Sprocket and KZ. I always
felt that MJ had become dependent on propofol.Everytime he received it ,it took him further away from
being able to achieve natural sleep.His brain chemistry must have been all f.u.-The propofol in a plastic bag was a mystery, but your exlpanation sounds plausible.
Murrays "weaning" was also off the wall.Propofol concentration in stomach was 0.0018mg./ml, the 3.8 mg was for the total 70g content of stomach.You probably know this.

Anonymous said...

Sorry for mistake re Propofol stomach amount.The autopsy gives all other meds in micrograms,but
stomach amount 0.13mg.This is the total amount in 70g of liquid in stomach. Converted to micrograms per ml the value is 0.0018mg/ml. So no way did he drink it.
Thank you for all your work, this is the very best site.

KZ said...

Ebony, I'd like to comment on your term "circumstantially dependent."

Propofol is not an easy substance for laypeople to obtain, and much of the abuse of propofol has been confined to health care providers with access to the drug.Self administration of propofol often leads to death. Murray was hired as a source to obtain the med, as well as administer it. So the circumstances were arranged for the abuse to occur. When propofol, his drug of choice for sleep, wasn't available, MJ was using a lot of other benzodiazepines and other meds more easily obtained. It is difficult for me to understand why so many people are unwilling to see these circumstances as substance abuse. I

KZ said...

An issue with huge relevance in any discussion of substance abuse and dependency is polypharmacy. And while I didn't go into a lot of detail about MJs polypharmacy, it is evident that he was no stranger to the practice. Polypharmacy caused MJ's respiratory arrest. Very few individuals with chronic substance abuse and dependency use only one substance; polypharmacy (or polysubstance abuse) is the norm, particularly among those who die from overdoses. And it is a fallacy to think that someone suffering from substance abuse is under the influence ALL of the time.

As I planned the 4 parts in this series, I chose to focus only on the propofol abuse, and the circumstances surrounding the administration by CM. Of all of the meds provided to MJ by CM, it is the propofol that is so completely outside of any legitimate medical indication. However, toxicology from autopsy reveals 3 separate benzodiazepines in MJ's blood, as well as the active metabolite of diazepam, nordiazepam, which also acts like a benzo. He was prescribed (pills found at the bedside) diazepam, clonazepam, lorazepam, as well as trazodone and Flomax. Murray was purchasing one tray of injectable lorazepam and 2 trays of injectable diazepam (strength unknown) with each propofol order, according to Tim Lopez' testimony. The pattern of available forms of the drugs suggests that regular administration of a LOT of benzodiazepines was the norm for MJ. And CM even purchased a tray of flumazenil halfway thru his pharmacy orders. Flumazenil is a benzodiazepine antagonist (reversal agent). This suggests CM was also concerned about the number and volume of benzodiazepines as time went on-- interesting that he didn't purchase this from the very beginning. That suggests to me that the usage of benzos was escalating, and he was becoming concerned that he should have some reversal agent laying around just in case of overdose. Who knows-- he may have been using flumazenil regularly

Anonymous said...

So what you're saying is that organ condition at autopsy can't determine if someone had an addition or dependency problem during life.

It's been said that lack of REM sleep has the SAME effect as being under the influence of something.

So, if the doctor was putting his patient under (unconscious) night after night, week after week, basically depriving the patient of naturally needed sleep, how does this deprivation of REM sleep impact the patient physically, mentally and psychologically over time? How does this factor into your assessment of the situation?

KZ said...

Anon at 6:30,
You are absolutely correct that to administer anesthesia takes the undivided attention of a skilled professional. Every heartbeat, every breath, we are there. It requires specially educated vigilance, and not just anyone can do it. In essence, we administer a controlled dose of poisons.

I tell my students all the time that the most dangerous anesthetic is deep sedation or a "breathing general anesthetic". This takes a HIGH degree of skill to do well, as the person is not intubated or on a ventilator, as in the ICU, or during general endotracheal anesthesia. You are always dancing a line between too deep or not deep enough, which is why vigilance is so essential. I'm talking about hands on, attached to your patient with a precordial stethoscope vigilance. Monitors will only tell you AFTER the patient is hypoxic or apneic. Your own observational skills are the first monitor that you apply, and the last one you take off.

Conrad Murray didn't have the skills of a "first day in the OR" anesthesia student. He was a buffoon with a license and a lot of hubris. Don't forget that he would never have received sedation or anesthesia privileges in a legitimate hospital setting.

Respiratory arrest and obstruction is an everpresent hazard with deep sedation/ breathing generals. Vigilance and skill keep the patient alive.

Anonymous said...

KZ, what do you think about lack of REM sleep and how that affected MJ physically, mentally and psychologically for all those weeks when Murray was putting him under and depriving him of real sleep?

CaliGirl9 said...

It’s a known fact MJ went to rehab for drug abuse secondary to the Pepsi commercial scalp burns. He was hooked on pain pills—narcotics. That’s been well documented.
It’s also been documented that MJ’s sleeping habits a la chemical enhancement happened on prior musical tours and was about to happen again.
Just because a person completes rehab from drug abuse doesn’t mean he or she is cured. Watch any episode of A & E’s “Intervention.” It’s called “recovery” not “cure” for a good reason. You cannot cure an addict. The ability to become an addict to anything doesn’t just go away. Look at the drug and alcohol abuse history of guitarist Eric Clapton. He was rehabbed/detoxed from heroin, and went right to abusing alcohol in huge amounts (read Pattie Boyd’s autobiography or that of Clapton himself).
Staying clean is a daily struggle. MJ was as human as Clapton is, and no doubt struggled daily.
There are few people who really know the answer to my hypothetical question, but here goes anyway.
Is it possible that Jackson was required to stay away from narcotics from any kind while prepping for, and ultimately performing, his 40-date engagement? Is it possible that a person in recovery—like Jackson was—found the use and abuse of benzos more “acceptable” than using and possibly abusing narcotics?
And we know Jackson used narcotics at inappropriate times—receiving Demerol for some sort of skin procedure by Dr. Klein. Dr. Klein has not been charged with anything—so prescribing a drug with abuse potential to a known person in recovery is not illegal. On a daily basis, how many people in recovery have surgery or undergo a surgical procedure requiring sedation or pain relief afterwards? Does anyone seriously believe these people are kept awake for surgery or made to suffer in pain because they have a history of addiction? Yes, any reasonable doctor would closely monitor that patient and do his or her level best to get that person off the stuff asap, but they would not deny treatment.
I still firmly believe that MJ needed a multispecialty approach to his problems—a sleep specialist, a pain specialist, even an addiction specialist just to keep everyone grounded. Oh, and a urologist, too.
The postmortem hair harvest and toxicology tests will tell everything … Jackson was pickled in drugs with high abuse potential, he asked for those drugs, and for the last several months of his life, Conrad Murray delivered.

EBONY said...

Hi KZ. I don't want you all to believe that I an some crazy MJ fan, not connected to reality. But I have a hard time believing that even with benzos being far less damaging to the organs than narcotics.. That with the number of benzos that were found in his home and the frequencey that he would have to take them for the desired effect (sleep) coupled with the length of time that he was reportedly dependent on these meds (15+ years) that there would be no evidence of their usage on his organs.

In addition, there were reports that the pill bottles found in the room had dates from months back and were basically untouched. i have known many addicts in my life. i cannot say that I have ever known one to have a bottle of the drug of their choice available and close at hand and not use it.
So I am not saying that MJ could not have been addicted. I am simply saying that given the information available, it doesn't seem likely.
I must also state for the record that I believe if this was John Doe and not Michael Jackson the coroner's report would have quelled the questions of addiction.

Anonymous said...

Would KZ kindly give her opinion about the effects of lack of REM sleep on a human being over weeks, as asked previously?

EBONY said...

I will try to sum up my thoughts neatly. I believe that the propofol use was not an addiction, but a regimine. Mj knew the propofol worked. it knocked him out for 8 hrs. So he hired Murray to do that everyday. Do not pass go do not collect 200 dollars go directly to propofol. He probably did not even want to attempt to sleep with out it. He did not have the time to play around with other methods that might not work (benzos). He had to be rested for work.
What I would like to know is if Murray showed up on nights when there were no scheduled rehearsals the following day. That for me would be indicative of an addiction to propofol.Requiring a drug beyond the time that the objective was acheived.

Anonymous said...

Thanks KZ for this informative piece. I thought there must be a drip invovled but I had no idea how bad it could be. It is truly scary what an unscrupulous doctor can legally do. I wish Michael had been able to get the help he needed.

Anonymous said...

Taking a slightly different tack here...I absolutely accept KZ's statement that CM would not have been allowed to administer the propofol in a hospital setting, and also that having an M.D. after his name, under the existing laws, allowed him to do so in the private setting. The question, then, is the only thing they can "get him" on just negligence? Four years is such a short time for such a serious result. Especially after reading the wonderfully detailed explanations from KZ, it seems so trivializing of the crime he committed to have a maximum of only 4 years and even if convicted, he probably would not serve even that.

Senior Moments

Tiya said...

Ebony, back up. Read everything that KZ has written. You are talking to a complete professional here - knowledgeable, trained, practicing, reflective. She has given to us the gift of her expertise, as have Sprocket and Cali.

If you want to convince yourself that MJ was a circumstantial addict, go right ahead, - cut it any which way you want - but also consider that you may be using the same equivocating, denial arguments many MJ fans use. I've seen this same type of 'reasoning' on MJ fan sites. Its's painful to read about how he died but he was human and frail.

The larger issue here, after reading Part 4 I can REALLY see it - is the issue that the T&T team and KZ have told us over and over - that this case is about abusive behavior towards a patient- a 'vulnerable adult' - under medical care, on the part of a physician. That's why I was shocked speechless upon reading Part 4...the implications and enormity of it all.

Sprocket said...

EBONY:

Benzos in pill form. Since very little of that was presented at the prelim, I can't say how significant those pills are/were.

However, Murray ordered a BOATLOAD of benzodiazepines from the pharmacy. They were in vial form; not pill form. They were used up just like the propofol was. From my understanding, (from what I'm remembering and not going back to re-read my notes) there were very few bottles of these benzos found in the mansion by the coroner's investigator. It's a pretty good assumption they were used up.

Like CaliGirl9 said, the hair toxicology will answer everything.

REM Sleep:
I believe KZ addressed the REM sleep issue in the comments section in Part 3.

Senior Moments:
The only way Murray could go to jail for a longer period of time....is to change the laws. The law has to be changed, first, then the DA's office can charge accordingly under the law.

Contrary to some, you can't over-charge a case and expect that over charging to change the law or create new law. It doesn't work that way, although there are many non-US fans who don't understand the distinction.

The DA's office has to follow the law. Change the law and they can either charge for a higher level crime, or change the law and increase the incarceration time for involuntary manslaughter.

People forget that, to get a successful conviction for second degree murder, the prosecution has to successfully prove that malice was implied by Dr. Murray, a man the victim hired to take care of him.

His actions were clearly reckless, but I still can't see how the DA's office would prove implied malice, the "malignant heart."

KZ said...

Hello everyone, and thank you for the great discussion. I'm here for just a bit, and will be back later. (Real world responsibilities get in the way of good e-conversations sometimes!)
Sprocket, in line with your above comments, can you please address why you think other charges were not brought? Is it that the lies of omission to paramedics and hospital staff were not yet crimes because CM had not yet been charged with a crime? And no obstruction charges for the same reason, that MJs death was not considered a crime on the day of his death, so CM was free to disappear for 2 days?I understand why no assault type charges were brought. I also know that the DA struggled with what to charge and took a lot of time determining the correct charges to bring.

Also, do you know if a civil negligence suit could be brought, and by whom, or is that moot with the criminal charges? Wrongful death suit by family members? CM likely has no money, so a negligence case would largely be symbolic.

I think a lot of commenters might be interested in why lesser charges weren't piled on.

Anonymous said...

Sadly, I agree with your well reasoned conclusion on the addiction aspects of propofol. So, even through prop was classed as cat IV controlled substance in October 2010, and the request to class as cat III was made in 2008, is it correct that if it had been classed as cat IV prior to Murray ordering and shipping across state lines, he would not have been able to do so? Or is that an incorrect assumption?
The American Board of Internal Medicine lists Murray's board certification as having expired end of 2008; he didn't renew it; and an article states that cardiology is only a subcategory of internal medicine. Who would knowingly treat with this "doctor"?
Thank you for these heart wrenching but eyeopening articles.

Sprocket said...

KZ:

I don't know that I have the answer to all those questions, but I think you are correct. At the time, I don't think the LAPD knew what type of situation they had. And the fact that Murray made himself available 2 days later. He didn't continually "evade" police. He spoke to them with his attorney present. All further contact was probably denied by his attorney.

And, he told police where to find the stuff he initially tried to hide. It would be hard to prove obstruction when the individual told you where to find the incriminating evidence, and he could easily say he was just putting those things in the same place he always stored his medical bag. See?

A defense cross question could go something like this: (HYPOTHETICAL BELOW)

Chernoff: And did Dr. Murray tell you the location as to where you could find his medical bag?

Martinez: Yes.

Chernoff: And did Dr. Murray tell you that location was where he normally stored his medical bag while at the mansion?

Martinez: Yes.

END HYPOTHETICAL

See?

When you have someone charged with a major crime, such as a felony, and their actions appear that they could have "covered up" their crime, you don't often see those additional charges added on. The felony charge is the big charge, and that's what you are mainly trying to convict on.

My opinion would be, when you see someone charged with a murder charge, you don't regularly see them add on "obstruction" charges to the same incident. What you usually see added on is a gun charge or a knife charge, or, abuse of a corpse, crimes that will significantly add onto the sentence.

Is it "proven" that Murray lied by omission or could he say in his defense that he "forgot" in the scary trauma of losing such a famous patient?

Remember, it wasn't until all the interviews are conducted (with the paramedics, with UCLA doctors, with the security staff, with the housekeepers, with the chef) that detectives possibly knew Murray withheld information from the medical personnel. It wasn't until the AUTOPSY was completed and the toxicology reports came back weeks and weeks later, how significant that omission was.

I would have to dig to find out what the sentence would be and there may be a wide latitude as to sentencing. (To me, this isn't really important; jmho.) So, why add on charges that don't really have severe consequences, other than a fine or days in jail added on if the penalty is not prison?

See?

Yes, Murray could be charged in a civil suit for wrongful death by his children, his estate, but Murray doesn't have a deep pocket.

What is the point of going after Murray in a civil case, if there's no money to be had? That's why the family is trying to go after AEG who supposedly hired Murray. That's where the deep pockets come into play in civil litigation.

EBONY said...

I appreciate and respect the professional opinions shared here. I think they are great and informative.
I don't want to appear combative.
And my sincerest apologies if that was the perception...
I just know that there is a huge difference between DEPENDENCE and ADDICTION. Most people who are perscribed anti depressants are dependent on them. Diabetics are ependent on insulin shots.

Addiction is usually established by many behavioral patterns. Which no one can really attest to but Michael's inner circle.
There is a very fine line, but in light of the fact that we know that almost everything said about MJ in the media is negatively biased,we should give the deceased man, who cannot speak for himself the benefit of the doubt and call him dependent.

Anonymous said...

Thanks, Sprocket, for your answer. I know that laws cannot be changed by over-charging, but my questions run more to the lines of what KZ asked above. I know that the DA's office charged the max on what CM did (didn't) do. I'm sure that there was no implied malice - why would CM want to kill the goose giving him a golden egg - especially before he'd even received one payment, as I understand it! It does seem like there are other lessers that could be included as KZ asked.

And KZ, I'm absolutely fascinated with the work you have put in to educate us "civilians" about your profession and how it clarifies many issues of this case. I'm especially appreciative of the photos to illustrate your points! You should be registered as an expert witness on these matters!

SeniorMoments

Anonymous said...

Sprocket, I was posting while your comment answers to KZ came up. This answers my questions as well. Thanks.

SeniorMoments

KZ said...

Regarding sleep and anesthesia, it is well known that anesthetics suppress REM sleep, and that REM sleep is essential to the functioning of humans and most mammals. That said, I think daily use of propofol in place of physiologic sleep definitely would cause physiologic stress. How do we measure the effects of that stress before the organism experiences something catastrophic, such as hallucinations or schizophrenic behavior? Or cardiac effects from the physiologic stress? It's difficult to say what exactly the effects of lack of REM sleep would have been in MJ-- none of us know him personally. We can't know to what extent his personality or thought processes were affected by the propofol, or other meds he took. We don't know if his creative processes were affected, or if his executive functioning was impaired (judgement, reasoning, organization, etc.) We don't have labs measuring cortisol levels in his body to indicate physiologic stress. We don't have trends of cardiac function, blood pressure, etc. What we DO know is that REM deprivation unquestionably affects the proper physiologic functioning of all mammals, and can lead to hallucinations, schizophrenic behavior, etc. if prolonged enough. Who knows what "enough" is for an individual? The group that has been studied most is ICU patients, who often experience "ICU psychosis" after prolonged stays in the environment.


That said, unusual dreaming is also associated with some anesthetics, including propofol. Individuals often report erotic dreams, and propofol in sub-anesthetic doses is known to produce disinhibitive effects. We generally ignore it, as most people would be horrified at the thought that they made an inappropriate comment.

http://www.anesthesia-analgesia.org/content/92/5/1232.full

Prolonged Sedation with Propofol in the Rat Does Not Result in Sleep Deprivation
This is a fascinating study looking at prolonged propofol sedation to understand the effects of prolonged propofol sedation in ICU patients. The study used rats sedated with propofol and analyzed their sleep patterns. However, carefully note that the rats were allowed to resume their normal sleep cycle upon cessation of the propofol sedation, and that the scientists then analyzed the rat's REM and non-REM sleep patterns.

An emerging link between general anesthesia and sleep
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2268120/

The rapid-acting sedative propofol has allowed physicians to continuously sedate patients for extended periods without significantly delaying emergence (6). Although this strategy has been advocated to promote sleep (7), data to support it are lacking. By altering the regulation of sleep and wakefulness, prolonged periods of sedation may interfere with the natural generation of sleep/wake cycles. As a result, continuous sedation may not promote, but instead adversely affect, the quality of concurrent sleep.

http://journals.lww.com/anesthesiology/Fulltext/2010/04000/Rapid_Eye_Movement_Sleep_and_General_Anesthesia.41.aspx

People who are under anesthesia or in a coma are often said to be asleep. However, people in these conditions cannot be awakened and do not produce the complex, active brain wave patterns seen in normal sleep. Instead, their brain waves are very slow and weak, sometimes all but undetectable.

http://www.ninds.nih.gov/disorders/brain_basics/understanding_sleep.htm#sleep_and_disease

We conclude that different anesthetics have distinct interfaces with sleep.

http://www.anesthesia-analgesia.org/content/110/5/1283.abstract

Note: Hyperlinks didn't come thru, but copy & paste should work.
~KZ

Sprocket said...

Hyperlinks for KZ's above post


An emerging link between general anesthesia and sleep


REM Sleep & General Anesthesia

Brain Basics, Understanding Sleep

Anesthesia Alalgesia.org Abstract

KZ said...

A little light reading for those interested in long term benzodiazepine use.

http://en.wikipedia.org/wiki/Long-term_effects_of_benzodiazepines#Effect_on_sleep

http://en.wikipedia.org/wiki/Withdrawal_from_benzodiazepines

http://en.wikipedia.org/wiki/Benzodiazepine_dependence

More on propofol abuse.

http://www.anesthesiologynews.com/ViewArticle.aspx?d_id=1&a_id=7579&ses=ogst
In his experience, Dr. Manejwala said, nearly every propofol addict started injecting to overcome persistent insomnia. That aspect of the medication fits neatly with the link both Drs. Manejwala and Earley have observed between propofol abuse and a history of trauma. “One of the hallmark symptoms of post-traumatic stress disorder [PTSD] is hyperarousal. Folks with PTSD want to block that out,” Dr. Manejwala said.

http://www.examiner.com/nutrition-in-sacramento/doctors-and-nurses-speak-out-about-their-addiction-to-propofol-for-brief-naps-at-work-home

Lots and lots of informative links in this article.

(Aren’t you glad you’re not one of my grad students? They hate my reading lists! But Wiki is easy and interesting-- not too heavy! And there are NO test questions on this content!)

Enjoy!
~KZ

Sprocket said...

KZ's reading list as hyperlinks:

Long Term Effects of Benzos on Sleep

Withdrawal from Benzos

Benzo Dependence

Anesthesiology News.com Article

Examiner.com Dr's & Nurses Speak Out About Their Addiction to Propofol for Brief Naps at Work/Home

Liz, R.N. said...

KZ
I could swear you went to the same nursing school I did and did your clinicals at the same hospital. Creativity prevailed.

I too had trouble wrapping my brain around the info about the propofol bottle in the saline bag, but my education in creativity gave me the answer. You are so correct in your descriptions.

I wish you were an expert witness for the prosecution.

I am so happy that CM didn't employ some vulnerable young new nurse to work with him, since I am sure the nurse would be taking the fall.

KZ, you are awesome!

Anonymous said...

Everyone needs to understand that when propofol is discussed in Murray's case, it is in the context of treating "insominia" (and not for performing surgery, for which the med was actually made).

What propofol does is to knock out the patient (unconscious) while surgery is being performed. However, in Murray's case, he used propofol to DEPRIVE his patient of sleep.

Effects of sleep deprivation:

http://en.wikipedia.org/wiki/Sleep_deprivation

There's NO way that the patient was coming out of the Murray's deathshop alive!

Anonymous said...

Without a doubt the best article I have read regarding Murray's criminal actions. You have taken a huge body of knowledge and analyzed, interpreted and synthesized it in such a brilliant way, I am quite convinced that your death drip theory is correct. Thank you from the bottom of my heart for doing such amazing work. It explains a lot.

However, I am still unclear on some of the points that Ebony mentioned and I think they are worth exploring. We know MJ was diagnosed as an addict in '93, I have no problem with that. But there are several things here that are NOT consistent with active drug abuse and ARE consistent with recovery. Why is evidence of propofol use ONLY associated with the History tour and the TII tour and occasional medical procedures if in fact it was something other than a very unorthodox sleep strategy for a highly unusual situation? If the benzos were being used recreationally, why weren't his oral benzo meds being used improperly? I couldn't even resist having all those pills around without wanting to take them, let alone an active drug abuser. Benzos are considered the best, most appropriate choice to treat those with addiction history for anxiety and insomnia. Recommended doses of medication is just that, recommended. It's just based on statistics. Some people require very high doses to get very little effect, one of the biological symptoms of an addiction diagnosis. Since we know benzos weren't putting him to sleep, what other choices were available? I don't know of any. I agree that CM purchased a large quantity of liquid propofol, but I can assure you there are plenty of ways to transport that medicine overseas with a large stage production that absolutely will not be detected. Stage hands hide all kinds of things in those crates, bicycles, toaster ovens, guns, pot, you name it, that's just the way it's done. Just let them know what you need and it'll be done, company mgmt need not know.

And one last point that I think you might be able to address that really bugs me. If in fact Murray didn't intend the overdose, and found that his breathing stopped, why in the heck didn't he slide him off the bed with the sheet, throw him on the floor and start jumping on his chest and yell for help? It's just beyond my imagination to think a cardiologist wouldn't have tried SOMETHING. Why do you think?

Anonymous said...

Agree that there is a HUGE difference between addiction and dependence in our society. For one, the former is very negative, associated with hard-core "street- drug" use, and you cannot dismiss the public's perceptions of that term which result in consequences to the accused user.

In this case, the cowardly, incessant accusations of addiction are inexcusable and need to stop as the accused is not here to defend himself.

Sprocket said...

Anon @ 10:03am:

Sleep deprivation is secondary (actually, it's more like fourth or fifth in the line of risk) to the more serious risk of...

AIRWAY CONSTRICTION.

With the current "death drip" set-up, Jackson had a much higher risk of dying from airway constriction....respiratory arrest than he did from lack of REM sleep.

Sprocket said...

Anon @10:27am:

I don't know about Jackson's prior tours or history of using this drug before. To me, those issues have no relevance to DR. Murray's actions in regards to what happened in that bedroom/treatment room.

If CaliGirl of KZ have some thoughts on that, I'm sure they will chime in.

My focus is the criminal proceeding and what testimony is presented to support or refute the charge.

As I see it, a patient wanted propofol and he found a health care provider to administer it. I don't believe that it was Dr. Murray who suggested propofol as a treatment for Jackson's insomnia.

I understand that there are others who think all this peripheral information that is being discused is important regarding Jackson himself, and whether he was or was not an addict, but imho, the only bearing it has is that it further shows that the doctor did not seek out the proper treatment the patient really needed:

A sleep specialist
A pain specialist
An addiction specialist

and possibly

A urologist.

KZ said...

Perhaps we could all agree to use the terms "chemically dependent" and "substance abuse" in place of addiction. Although the word addiction is used interchangeably with chemical dependence by those specialists who treat it, I understand many people have a mental picture of a grimy, homeless person in a back alley injecting heroin when the word "addiction" is used.

Chemical dependence and substance abuse are the same whether we are speaking of illicit street drugs, or high priced legitimate pharmaceuticals that are diverted for misuse/ abuse/ recreational use. The wealthy substance abuser abusing prescription drugs is abusing a substance the same as a homeless poor person who uses street drugs. The rich person simply has better product quality control, and the ability to construct a "cover story" to legitimize the abuse.

There can be no rational argument that the "use" of propofol in this setting for this ridiculous justification (insomnia-- CM wasn't even smart enough to be imaginative!) is anything other than "substance abuse."

Past history of substance abuse is relevant for the coroner and LE to investigate when a victim dies from substance abuse. It is entirely relevant to MJs situation, because as Sprocket has pointed out, CM did not troll the streets looking for someone to kill with propofol. He is a DOCTOR who was HIRED to be the dealer and administrator of the substance/s that were abused. No matter how much people want to separate CM's actions from MJs history of substance abuse and seeking behaviors, it isn't logical to do this. MJ found CM and persuaded AEG that this was the one and only doctor for him. Heck-- even CM's own words in the preliminary hearing transcript of Orlando Martinez talk about his reluctance to give propofol! He describes being "bullied" into giving it by MJ himself, who begged him for it!

None of us will ever know what was discussed between MJ and CM, but one thing is certain: CM had NO business providing propofol to MJ. If MJ needed propofol, CM should have sent him to a hospital to see specialists. It was a COLOSSAL error in judgement (hubris) that allowed CM to think he could "handle" the propofol situation himself. He allowed his medical license and DEA number to be used to supply a drug he knew full well should not be given in a private home for insomnia. And just look how well that turned out-- the victim is dead.


Please read the A & A article linked above:
http://www.anesthesia-analgesia.org/content/108/4/1182.full.pdf+html

You will see that the first propofol death was not a self administration accident, or suicide, but was determined to be a murder from the circumstances, ie, the woman was found only with a needle puncture mark, high propofol levels, and NO medical paraphernalia near her-- it was all balled up in the trash can. She could not have dosed herself, disposed of the equipment, and made it back to the bed where she was found dead-- the drug acts too fast for that to happen. So it was impossible for her to have OD'd by self administration.

MJ had an IV in place that CM started, so it IS possible MJ somehow opened up the IV and bolused himself to death. However, CM is STILL the one who bought the propofol, started the IV, and gave it to MJ. That makes him guilty, in my opinion. The DA says this is involuntary manslaughter because CM did not enter the situation with malice in his heart, just hubris and stupidity.
~KZ

Sprocket said...

Hyperlink of KZ's posted link

A & A Article

Anonymous said...

Somehow I'm not convinced that Michael Jackson bolused himself - I think the defense is grabbing at whatever it can to establish 'reasonable doubt'. - but then you never know, do you?

Certainly the defense didn't say much during the pre-trial about CM's experience treating MJ, his knowledge of MJ's history, current state of mind, etc. The defense gave hints, which made it appear that they were trying to throw out anything to see what could stick.

I just don't know how they're going to get around the fact that CM did all this stuff to his patient, regardless of what the patient wanted or did to himself. It makes me wonder if all the defense wants is to get a reduced sentence and to have CM keep his license to practice. The idea that CM is 'innocent', as he describes himself, is hard to imagine.

katfish said...

MJ had a definite awareness of propofal before Dr. Murray came on the scene....remember the PA (can't think of her name but she had treated the kids and addressed dietary considerations, IIRC)was the first to speak up about propofal in the media as MJ had asked her to get his "milk" and she not only refused she showed him in writing about the risks of using it. I'm pretty sure MJ had also used an anethesiologist for another tour. I remember seeing the media trying to interview him after MJ died, he conceded he toured with MJ but wouldn't address the care he provided.

KZ said...

A point of clarification about the discussion of airway constriction by Sprocket. Propofol does not cause airway edema (swelling). Propofol can cause respiratory problems 2 ways: airway obstruction, and depression of central nervous system respiratory drive.

Obstruction is caused by relaxation of soft tissue structures such as the throat, palate, and tongue, in addition to depression of cough and gag reflexes. Obstruction is relieved by a vigilant practitioner repositioning the head and jaw, or inserting an oral airway, nasal airway, LMA, administering supplemental O2, and positive pressure support from an ambu bag and mask as needed. Sometimes, particularly in obese people, intubation of the trachea is necessary, as the pressure of the tissue obstruction cannot be overcome by the above devices.

Central nervous system depression of respiratory drive is treated with positive pressure support (ambu bag and mask) and O2, with oral and nasal airways as needed, until the airway can be secured with an endotracheal tube or combi-tube. Positive pressure ventilation with an ambu bag or mechanical ventilator is necessary until the central nervous system depression is relieved with reversal agents (like narcan for narcotics, or flumazenil for benzos). Propofol has NO reversal agents other than TIME. That is why it is so deadly when abused-- the therapeutic window is very narrow.

The above 2 situations illustrate why a vigilant, skilled specialist in airway management MUST be within half an arm's reach at ALL times for patients receiving propofol who are not intubated and on a ventilator in an ICU. This is the danger of a deep sedation/ breathing general anesthetic I spoke about above-- airway obstruction or apnea can occur in one or 2 breaths. This is why MJ is dead-- CM created a respiratory arrest that he failed to recognize and treat. The respiratory arrest went on so long MJ's heart arrested, and by the time anyone noticed, there was no electricity left in the heart muscle to restart it with resuscitation efforts.

Sprocket said...

Thank you KZ, for your added clarifications and the correct risks related to propofol administration.

My understanding (from all your patient lessons here), loss of REM sleep is a risk of prolonged propofol infusion, but it's not the first in line risk for death.

KZ said...

Anon at 1:16,
I don't know if MJ bolused himself or not. Quite frankly, CM should ADMIT he had a drip hanging if he wants to use the defense that MJ dosed himself! It would be a much more plausible story than MJ drank it or self injected it from a syringe! However, the defense CAN'T admit to the drip, because CM hung it up in such a completely non-standard manner. The defense may be worried that if CM admits to the drip, it could be charged as 2nd degree murder. The non-standard drip set up (bottle in a bag)could be described as a "murder weapon", and evidence of MALICE, rather than just stupidity and a badly performed arts and crafts project. In my opinion, THAT is why CM rushed to hide the bottle in a bag. He knew it was so completely nonstandard that if MJ couldn't be resuscitated, they could charge him with murder. I think he knew that in a lightning flash moment once he confirmed MJ in cardiac arrest, and THAT is why he had to get rid of it so fast.

Anonymous said...

KZ - Thank you for your last comment about the deadly drip setup. That "bottle in the bag" thingy is the HUGE red flag -- aka, death by lethal injection! IMO, the DA needs to go for or add the 2nd degree murder charge, at least!

Tiya said...

KZ, I second anonymous (2:36) in thanking you for your clarification in the last comment. When I read part 4, I was struck dumb by the awareness that CM basically gerry-rigged the drip - the care was so sub-standard that I wondered about the manslaughter charge as too light. Now you've explained why, possibly, he can't say that's what he did - it really could be construed as beyond reckless.

But from the preliminary testimony, it doesn't sound as if the DA is going to pursue this argument, if you're correct - more that the DA thought that CM wanted to go back to the house to ditch the evidence which he was trying to hide before the EMS crew appeared.

Anything comments from you, Sprocket? I know you wrote extensively on why the charge came down as it idid.

Tiya said...

There's something that's been bothering me and maybe I've just overlooked something.

CM's initial story was that he left the room for 2 minutes and when he returned, MJ wasn't breathing.

The cell calls and text messages revealed that he had been 'busy' for nearly an hour, but where was it written that CM was out of the room for that long? If I recall, when pictures of MJ's bedroom were shown, it was pointed out (by someone) that there was a couch that the doctor sat on while MJ slept. Was this in the room or out of the room? Could he have been in the room making calls and sending messages, and just not watching/aware of his patient, or somehow thinking his patient was OK, then maybe he stepped out, still talking on the cell, and noticed when he returned?

Speculation, of course, but I can't locate the spot in Sprocket's written transcript where it clearly says that CM was out of the bedroom for an hour.

KZ, does a cardiac arrest in a situation like this, with a deeply sedated patient, happen silently, so that the patient's breathing would not have been heard as he lay dying, if you weren't looking at him or her?

Thanks.

KZ said...

Anon at 2:36,
Sprocket explained a while ago that she doesn't think that would be likely to happen, at this point. As I understand it, new charges cannot be added on to the old ones. What would happen under CA procedure is that the involuntary manslaughter would have to be dropped by the DA. Then new charges would have to be brought. I'm not sure, but maybe a grand jury would have to be convened prior to bringing new charges. Then a new preliminary hearing would have to happen.

Her comments were along the line that the sticky point for a 2nd degree murder charge would be proving the implied malice, and that the DA felt that involuntary manslaughter was more supported by the evidence and the circumstances. It's a tricky case, legally. Anyway, if I have any of this wrong, I hope Sprocket will correct me!

Anonymous said...

If this is not a slow torture to death perpetrated upon a human being, with weeks of sleep deprivation topped off with the deadly drip, tell me what is.

Sprocket said...

I still don't think you can prove "malice" with the arts and craft project Dr. Murray did.

Granted, the set-up is outside what is recommended for the standard of care in a hospital, but....Jackson was not in a hospital.

I can see how it could still be argued that Dr. Murray's main concern was getting Jackson the sleep he desperately needed, and this was the fastest way to do it, with the materials at hand.

There is also the fact that there was oxygen on hand, until the tank(s) ran out.

We will never know for sure, when those tanks ran out, because it's not likely Dr. Murray will ever tell. And if he does talk about when the tanks ran out, how would we ever know he was telling the truth?

Sprocket said...

Tiya,

I don't recall any testimony about Dr. Murray using a sofa inside the bedrom/ treatment room.

I never got to see the photos used at the prelim since I was in the overflow room. I do not know if a sofa was shown in any of those photos, but I'm almost 100% certain there was not a single sentence of testimony, stating Dr. Murray rested on a sofa or utilized a sofa in the room where Jackson died.

For the DA to up the charges, the current charges would have to be dismissed and a "new charging document" drafted.

The DA would then have two paths under the new charging document.

Grand Jury and/or preliminary hearing.

I believe the DA's office charged Dr. Murray with the strongest charge they could, under the current California laws.

To charge 2nd degree, you have to prove malice.

I would be willing to listen to some hypothetical arguments that our readers "think" would prove implied malice; bring them on.

Write as if you were giving the closing argument to prove the 2nd degree charge.

HOWEVER, each and every time, my rebuttal argument will be, what Murray did was patient care. Mind you, different patient care than what you would find in a hospital, but patient care none the less. Not all patient care in the home will adhere to the strict standards found inside a hospital.

Anonymous said...

It is only a question of semantics
whether.
Michael was dependent or addicted to propofol.I don´t think he has used it on a continuos basis in the past, but did have sporadic expierience of it.It might have helped him on tour with a performance or a few.-Michael did not have a medical background and might have thought it great for his upcoming ordeal with the 50 performances.A little knowledge can be a dangerous thing.It is the good doctors duty to inform and educate his/her patient.Sure Michael was not an "easy patient",
but he was not suicidal. 4 other doctors had declined before Murray appeared.I don´t think murray had malice in his heart ,but coldness and 150.000/month.-During MJ`s time in Ireland his dr there;" never saw signs of drugabuse.He enjoyed his time there though even so , there was a sadness about him". Murray cemented the dependence or addiction to propofol and the started the most inane type of "weaning", cutting 50% off, thereby inducing withdrawal symptoms on top.I will not go into the benzo´s here.Michael probably did not take them daytime and that´s why tablets were left. He got most of them iv nightime.Even they need to be withdrawn gradually as sudden discontinuetion can have adverse effects. Murray was far, far out of his depth.It is equally important to know what you do not know as what you do know. KZ pointed this out in many ways.

Anonymous said...

Thank you, KZ, for your enlightening comments.

Whether all this transpired inside or outside a hospital, the "bottle in a bag" contraption was simply death waiting to happen. It was not a matter of IF, but WHEN! That's clearly 2nd degree murder at least and the current law should be challenged.

Anonymous said...

There should be manufacturer literature somewhere about the proper use of propofol. Did this doctor follow the manufacturer's guidelines for proper usage?

Sprocket said...

Anon @ 5:33pm:

You can't "challenge" a law by over charging a defendant.

You have to change the law through the democratic process and legislation. That's part of the founding principles of the US.

At this point, it's an opinion that the bottle in the bag was death waiting to happen; it's not a solid argument for 2nd degree.

Sprocket said...

Yes, I believe there is manufacturer literature on how to use propofol...but keep in mind, there are many, many drugs that are used outside the manufacturer's guidelines, and those uses are not prosecuted.

Anonymous said...

Why can't the DA add that charge and let the jury decide?

Perhaps you can help by explaining how case law is made.

Laurie said...

References on some recent comments by Katfish, KZ, Sprocket and others:

1) Sanjay Gupta, M.D. attempting to interview Neil Ratner, M.D., anesthesiologist, regarding assisting Michael Jackson to sleep on the History Tour, 1996-1997:
http://edition.cnn.com/2009/SHOWBIZ/Music/07/03/jackson.wrap/index.html# (scroll down to link for video)

2) Cherilyn Lee, ARNP claims that she advised Jackson not to drink caffeinated sodas, and he gave them up in March - three part interview on Fox
http://video.foxnews.com/v/3935035/michael-jacksons-nurse-pt-1
http://video.foxnews.com/v/3935041/michael-jacksons-nurse-pt-2
http://video.foxnews.com/v/3935032/michael-jacksons-nurse-pt-3


3) Chamberlin, NL et al. This Is No Humbug: Anesthetic Agent-Induced Unconsciousness and Sleep Are Visibly Different. Anesthesiology (2010); 113(5): 1007-9.
http://journals.lww.com/anesthesiology/Fulltext/2010/11000/This_Is_No_Humbug__Anesthetic_Agent_induced.7.aspx

4) Brown EN et al. General Anesthesia, Sleep, and Coma. NEJM (2009); 363(27): 2638-50. (most large libraries carry the New England Journal of Medicine, and nearly all medical libraries carry it) This article has, among other information, a table listing the characteristics of the emergence phases from general anesthesia, and a fabulous figure illustrating the centers and pathways in the brain involved with propofol and opioids, which are quite different.

5) According to the search warrant, I believe, the 20 ml bottles were manufactured by Teva, the 100 ml bottles by Hospira:
http://www.tevausa.com/assets/base/products/msds/Propofol_MSDS.pdf
http://www.hospira.com/Files/PI_Propofol_standard.pdf

Laurie said...

For those, who may not have access to the NEJM, Brown et al. 2009, the emergence phases from general anesthesia are as follows:

General anesthesia: stable administration of anesthetic drugs; arousal not possible, unresponsive; eyes closed, with reactive pupils; analgesia, akinesia; drug-controlled blood pressure and heart rate; mechanically controlled ventilation; EEG patterns ranging from delta and alpha activity to burst suppression

Emergence, phase 1: cessation of anesthetic drugs; reversal of peripheral-muscle relaxation (akinesis); transition from apnea to irregular breathing to regular breathing; increased alpha and beta activity on EEG

Emergence, phase 2: increased heart rate and blood pressure; return of autonomic responsiveness; responsiveness to painful stimulation; salivation; tearing; grimacing; swallowing, gagging, coughing; return of muscle tone; defensive posturing; further increase in alpha and beta activity on EEG; extubation possible

Emergence, phase 3: eye opening; responses to some oral commands; awake patterns on EEG; extubation possible

There was no evidence presented regarding where Murray was throughout the morning, other than he told Martinez that after administering 25 mg of propofol and watching MJ for a while, he went to the bathroom for two minutes. If they are reliable, there are photographs at The Sun, which is a UK tabloid? They can be found using the keywords: sun inside jackson mansion. Do you, members of the jury, believe that CM would talk on the telephone in the room with MJ, who was having such a difficult time sleeping? Is it not more likely, that once his victim was soundly under, he stepped out (closet chair, Dr.’s bedroom, whichever was safer and closer) for those phone calls? If indeed he calmly left the following message with Russell at 11:51 am, which isn’t in evidence yet, then he probably didn’t sound normal within seconds because as he started the next call on the same phone at 11:51 am, he thought that he would check on the victim?

“This is Dr. Murray, Bob. Hi, how are you? Sorry I missed you. Just wanted to talk to you about your results of the EECP. You did quite well on the study. We would love to continue to see you as a patient even though I may have to be absent from my practice for, uh, because of an overseas sabbatical.”

Laurie said...

Anonymous at 5:45 pm:

Case law is usually made, when appellate courts (e.g. Courts of Appeal and, a level higher, Supreme Courts) review the decision of trial courts. It could be either on errors of law or rarely on errors of fact. On a given case, the appellate court determines if the issues within the case are worthy of publishing, e.g. new issue of law was decided. A published case can then be cited as authority within that jurisdiction, in this case, California State criminal court within the county of Los Angeles. Decisions of the appellate courts of California and a U.S. Supreme Court decision on California law are legal authority used in briefing the trial court. Unpublished decisions of those courts are not considered authority.

I understand that Sprocket explained that charges cannot be added to the case after it has been designated for trial. In this case, if the DA discovered more evidence and decided to go for second-degree murder (incorporating the lesser charge of involuntary manslaughter), they would have to stop this proceeding, then refile charges and go through either the grand jury or preliminary hearing avenues again for a determination that there is enough evidence to go to trial on the second-degree murder charge.

Sprocket, if you are interested, I would appreciate getting an analysis or impression from you on the facts of an unpublished case from a California appellate court. People v. Ochoa involves a mother, who was found guilty of second-degree murder. http://www.fearnotlaw.com/articles/article30101.html. Also, I think that it would be helpful to have a clearer definition of what exactly implied malice is in California, as I am not persuaded a malignant heart is on point. Wouldn't the jury instructions be the guide?

Laurie said...

I believe the following to be jury instructions for the State criminal trial court in California:

 CALJIC 8.10 MURDER--DEFINED (previous instruction; alternatives relating to felony murder and killing of fetus have been omitted for clarity of presentation)
  [Defendant is accused [in Count[s] _______] of having committed the crime of murder, a violation of Penal Code section 187.]
  Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder in violation of section 187 of the Penal Code.
  A killing is unlawful, if it is neither justifiable nor excusable.
  In order to prove this crime, each of the following elements must be proved: 
 
1. A human being was killed; 
 
2. The killing was unlawful; and 
 
3. The killing was done with malice aforethought.

CALJIC 8.11 "MALICE AFORETHOUGHT"--DEFINED
  "Malice" may be either express or implied.
[Malice is express when there is manifested an intention unlawfully to kill a human being.] 
[Malice is implied when: 
 
1. The killing resulted from an intentional act, 
 
2. The natural consequences of the act are dangerous to human life, and 
 
3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.]
  [When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.]
  The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.
  The word "aforethought" does not imply deliberation or the lapse of considerable time.  It only means that the required mental state must precede rather than follow the act.

CALCRIM 520. Murder With Malice Aforethought (new instruction)
The defendant is charged [in Count __] with murder.
To prove that the defendant is guilty of this crime, the People must prove that:
1.    The defendant committed an act that caused the death of (another person/ [or] a fetus);
[AND]
2.    When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)

[AND
3.    (He/She) killed without lawful excuse or justification.]
There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
The defendant acted with express malice if (he/she) unlawfully intended to kill.
The defendant acted with implied malice if:
1.    (He/She) intentionally committed an act;
2.    The natural consequences of the act were dangerous to human life;
3.    At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life;

    AND

4.    (He/She) deliberately acted with conscious disregard for (human/ [or] fetal) life.
Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

Sprocket said...

The DA can't just add whatever charge they like. That would be prosecutorial misconduct! They have to present evidence to support a charge. If they went to court with a prelim charge of 2nd degree, and the evidence didn't support it in the Judge's eyes, the case could have been thrown out.

At this point, the prosecution has not presented evidence to support a 2nd degree murder charge.

The evidence presented has to support the charge. There was evidence to support involuntary, but not 2nd degree.

Like I said, give me evidence and a closing argument that supports the charge of 2nd degree. I'm sure it was this exact same dilemma the DA's office was faced with when they spent literally months trying to decide what charge to bring against Murray.

Case law is a totally different animal than changing the California law.

Changing the current definition of what constitutes 2nd degree murder takes legislation by the CA state senate and legislature to rewrite the California Penal Code.

Here is the definiton of Case Law:

QUOTE:
"Case Law is the decisions, interpretations made by judges while deciding on the legal issues before them which are considered as the common law or as an aid for interpretation of a law in subsequent cases with similar conditions. Case laws are used by advocates to support their views to favor their clients and also it influence the decision of the judges."

Case law is established through the appellate process. Through the appeals process, Judges affirm or reverse lower court judge decisions on how the "rules of evidence" laws are applied.

So let's say, a defendant files an appeal to get a verdict overturned. Their appeal argument is, that certain evidence the trial judge allowed into testimony, should not have been allowed in. They make their arguments that the lower court judge made a judicial error in allowing this evidence in.

From my understanding, case law is made when the appellate judges publish their decision on the merits of that appeal. They "affirm" or "deny" the appeal and they detail their ruling in writing explaining why they ruled the way they did.

Here is an example from the Spector case.

The prosecution wanted to enter into evidence around 12 or 14 encounters that various witnesses had with Spector, where Spector displayed or pointed a gun at them.

In California, these witnesses are called PBA's "prior bad act" witnesses, or "1101(b)" witnesses, after the specific evidence code law allowing them to testify. (It's lengthy; it's detailed. Go try reading the California Evidence Code.)

The prosecution cited previous case law to support the admission of all these witnesses testifying to every event at trial.

The defense on the other hand, writes a motion argument (citing case law also) to support not allowing any of these witnesses to testify.

How does the Judge rule?

The Judge allows five witnesses to testify, and a sixth witness to testify about a statement Spector made in their presence, where Spector allegedly said, something to the effect of, 'All women are "C"'s and deserve a bullet in the head."

Judge Fidler ruled that only those witnesses could testify, where:

1. The situation was as similar or as close to the situation involving Lana Clarkson.

2. The witness and Spector were alone.

3. The witness wanted to leave but was prevented from leaving.

4. Spector pointed a gun at the witness, trying to prevent the witness from leaving.

Spector was convicted of 2nd degree murder. When you pull a gun out and wave it or point it at someone, in California that is implied malice because we ALL KNOW death can come at any moment from a firearm.

Spector, after being convicted of second degree murder, filed an appeal. One of the many issues cited in the appeal, was the trial judge's decision to allow these PBA's to testify.

Sprocket said...

As far as photographs go, I don't know that those can be reliable at this point as being the ones presented in the exhibits at the prelim.

I do remember a reporter asking the PIO about getting copies of the exhibits. Pat Kelly, PIO officer stated it would be up to the judge to agree to release the exhibits presented at the prelim to the media.

Remember, these exhibits are NOT evidence photos yet. They were submitted "for reference only." They were not submitted "as evidence."

Laurie, CALCRIM was rewritten recently and one of the lawyer's involved in that is Spector's appellate attorney, Dennis Roirdan. He is a highly respected appellate attorney. Considered to have a brilliant, almost photographic memory of appellate case law.

Although the wording sounds familiar, I'd need a date attached to that language to know if it's the current CALCRIM or not.

If you would like me to look at something for an opinion, please E-mail me the link.

Please understand I am just a layman; I'm not an attorney nor do I play one on the net. :D

Sprocket said...

When you're under anesthesia, you're out.

Doctor's and nurses communicate all the time in the OR, and some doctors play music. I don't think they whisper while operating.

I don't see where Murray would "have to" step outside Jackson's room to place or receive a phone call.

Sprocket said...

Laurie,

I briefly read through the case you linked.

What is it you wanted to ask?

What type of opinion were you looking for?

??????

Laurie said...

Sorry, I have been unable to find a free version online of CalCrim520 dated 2011, and do not see a date on the version I posted, although there is a note on that one reading (new instruction). http://www.languageandlaw.org/JURYINST/COMPARE.HTM. Since you said that you do not see the facts as KZ presented in People v. Conrad Murray fitting the requirements of second-degree murder, I was wondering if you can comment on how the jury may have seen a fit in the brief factual account set forth in People v. Ochoa. Just looking for elucidation on the issue of implied malice.

Laurie said...

Sorry, I have been unable to find a free version online of CalCrim520 dated 2011, and do not see a date on the version I posted, although there is a note on that one reading (new instruction). http://www.languageandlaw.org/JURYINST/COMPARE.HTM. Since you said that you do not see the facts as KZ presented in People v. Conrad Murray fitting the requirements of second-degree murder, I was wondering if you can comment on how the jury may have seen a fit in the brief factual account set forth in People v. Ochoa. Just looking for elucidation on the issue of implied malice.

KZ said...

Wow! Lots of great comments and discussion today!
Sprocket, thank you for continuing to try to explain the "malice" component of a 2nd degree murder charge to all of us. Laurie, thank you as well for those law passages you posted. I understand the hypothetical situation where someone pulls out a gun and waves it around being "implied malice" because any competent adult holding a gun should know the gun could go off and kill someone.

I am thoroughly fascinated with the conundrum that Murray's MD license created for the DA's office. You see, if a nurse or a layperson had been doing the same things as Murray, I think a strong argument for "implied malice" could be made. You see, even as a Nurse Anesthetist, the argument can be made that, of course, I would understand that a possible outcome of giving propofol for insomnia in a private home in the manner Murray did could be immediately life threatening, much like waving a loaded gun around. I could not expect to be able to rescue from any and all complications. And of course I should know that I should not be doing this, even with a physician to "supervise" me. So I think that if I had done what Murray did, I would be charged in CA with 2nd degree murder. The malice implied would be my knowledge that I was participating in a reckless, potentially deadly activity, and my knowledge that this participation was not authorized under the Nurse Practice Act statutes that authorize my practice. The propofol (drip or syringe doses) in that environment, for that expressed purpose, was as potentially deadly as a loaded weapon.

However, where it REALLY gets interesting is when you put a hired MD in that same position. (Not just any MD-- but a hired one. The hiring establishes the doctor-patient relationship.) The laws allow any doc with a license and DEA number to obtain propofol legally without accounting for how, when, where, or why the propofol will be used. The laws that govern MD's allow them to practice "medicine" in private homes, without any oversight or credentialing . Those same laws say that ANY procedures or medications administered by a hired MD, that is defined by THAT MD as medical care, "is" medical care. (Remember my comment that "wherever I am is a clinic"?) The hired DOCTOR gets to decide if the activity is, or is not, medical care, not anyone else. And "medical care", by its very nature, can never be classified as a loaded gun, because a doctor never has any implied malice when he or she enters into a treatment relationship with a patient! That very point, I think, is what the DA's office must have struggled with-- can there EVER be implied malice by the overwhelming incompetence of a doctor in the course of his or her duties that produce the death of a patient? Wow! Wrap your head around THAT! The answer that the DA came to was "no", not under the current laws, hence the involuntary manslaughter charge.

If there is never any implied malice because any meds or procedures can be considered medical care, that is a legal and statutory acknowledgment that doctors are SO smart and capable, that death could NEVER be anticipated as a possible outcome from stupidity or incompetence! Meaning, any doctor can rescue from any complication, or fix any problem that comes up in the course of his or her treatment, even if that treatment is not legitimate, or conducted in an incompetent manner. Death is never a possibility. If that doesn't further the "MD = medical deity" argument, I can't think of a better example! I'd love to discuss THAT with California legislators and voters!

So, I say again, that the biggest gift CM ever has received in his life is an involuntary manslaughter charge. Because if he hadn't gone to medical school, and did the same thing, I think the charge would have been 2nd degree murder. His MD degree and license is the ultimate golden parachute!

KZ said...

I also wanted to add that when CM was so panicked and driven to remove the "bottle in a bag" before calling 911, I don't think he thought thru the "malice" component. I think he simply KNEW that what he was doing was VERY wrong, and that if anyone knowledgable about IVs, medical care, and propofol saw it, he knew he was in a mountain of serious legal trouble because of the cardiac arrest of his patient. He didn't worry about Alvarez seeing it because he knew Alvarez didn't know the first thing about IVs, propofol, or medical care.

Sprocket said...

KZ,

I think this is exactly the conundrum the DA's office was faced with.

He was the doctor. He was providing medical care. How do you argue the medical care was sub-standard, "malice" (expressed or implied) when there are no standards governing what he did in that setting?

This is why it is so exasperating to me when people start accusing me of being secretly part of the DA's office (that's so funny when you think about it; they don't need me for P.R. LOL!) or in AEG's pocket....because I won't get on the band wagon to petition the DA's office to increase the charges or believe there is a big conspiracy behind the scenes with puppet masters controlling everything.

From what I have seen of Steve Cooley's office and the excellent DDA's in the Major Crimes unit, if they thought they could successfully prosecute a 2nd degree charge (in other words, get it past a preliminary hearing in front of a judge so it would go to trial) they would have. I firmly believe that.

But I think they saw that there was a strong possibility the charge would not be approved by a Judge to go to trial and/or it would be easily reversed on appeal.

Laurie,
I briefly read the appellate decision. I skimmed over it; I didn't read it fully.

To me, the mother's actions are implied malice. She "knew" her son "could be" behind the door. She "knew" that was a possibility. She admitted she knew.

(This is the "knowledge beforehand" aspect of a convicted drunk driver getting behind the wheel a second time and killing someone and being charged with 2nd degree.)

Yet, she violently opened the door anyway, injuring her son. We know that she opened the door in a violent manner because her son died from his injuries. (Argument.)

Another action that appears to be implied malice to me, is her inaction after the fact not to get her son the needed medical care. She clearly saw him hold his head after the incident.

Her excuse for not taking him to seek medical attention was, she thought he didn't want her to touch him. Well, she's the parent. She should have made a parental decision to take him to the emergency room regardless if the child didn't want to be touched.

CaliGirl9 said...

Tiya, I see no one answered your question regarding whether or not Murray could have heard anything as Jackson lay dying.
The answer is yes; MJ’s automatic responses would have been deep, sonorous breaths due to airway constriction, or his brain receiving a signal that the amount of oxygen in his bloodstream was low. In a word, there probably was some irregular snoring for a short period of time.
Most RNs who have done time in med/surg, ICU/CCU or post-anesthesia recovery have heard those respiratory efforts plenty of times, and they will initiate treatment, by opening the airway by a head tilt, or insertion of an oral airway, or intubating the patient (some nurses can intubate, but the usual procedure is to call a physician in to do it).

EBONY said...

Chemically dependent is an acceptable term.

It is not just semantics. Professionals do sometimes use the terms addiction & chemically dependent interchangeably, but that is often wrong.
I have had the good fortune in my lifetime to work in a place that offered substance abuse counseling. The responsible counselors there were always up in arms about the non-chalant use of the terms..

Anyone who is on a medication regime for the treatment of a chronic illness is chemically dependent. They are dependent on these chemicals to maintain a normal lifestyle. Grandma's insulin, Dad's viagra, Mom's metroprolol. Most of the American population over 50. If the terms can be used interchangeably then that means almost everyone is an addict.
Now here's the fun part folks...
All of this is important, not because I love Michael Jackson. It is important from a LEGAL stand point. We have from the preliminary hearing already seen the direction the defense is heading in . They wish to say that Michael either drank or self injected the propofol that killed him.
Here's where "semantics" come in..
A person who is chemically dependent on propofol and needs it to "sleep" That wakes up might simply call for the Dr. in the next room to come and assist them because they need to go back to sleep. A person who is addicted to propofol that wakes up may self- inject or even drink the stuff because addicts are well known for doing any and everything to get that drug into their system, because they are not in control. The addiction is.
The defense would love to use these terms interchangeably to muddy the water.
They know that most of what people know about Michael Jackson was read in a tabloid and that most of it paint's him in a most unflattering light. If the defense can paint him as an addict it would match with the tabloid persona. If they can get just 1 juror to believe that freaky Michael Jackson the child molesting druggie might have drank the propofol or self injected.. Then Murray walks, because the charge is based on the coroner's findings of homicide. If Michael did it himself it's not homicide. And all of Sprocket's, Cali Girl's and KZ's time and effort means nothing.
This case will not be fought by the defense on medical or ethical grounds because they know they know have nothing.. It will hinge on semantics.

Michael Jackson by his own words sought help for a "dependency" on pain killers. Drugs which are not actually even a factor here. The drugs in question here are benzos & propofol.

But the very fact of bringing that up serves my point.

Anonymous said...

Conrad Murrays mind and heart is a
zigsaw puzzle of shrewdness,outright
stupidity and pseudo-imbellicity (when need be)He is good at improvisign arts and crafts as KZ explained.There is a proceedural reason for refusing to pronounce death at the residence. Doing that
would have led to immediate cordoning off that place ,accident v. natural death.He was not that stupid as to think that rescusitation would still be possible.He held high hopes of being able to return to the residence , after death was pronounced at hospital.I think he asked security to give him a lift.As someone with at least some expierience in cardiology he knew
very well that the window for successful rescusitation had passed.
There are aereas of medical practice where off-label meds are in relative common use.Under those conditions you have to rely on medical literature,precedence, your senior collegues and teachers
and practice great caution.I will not go into this unless somebody absolutely wants to know.It bears no relatioship to this case in question.It is then called: Medically indicated.
What is most striking re Murray is his extremely poor medical judgement.I understand the frustration many feel for the "minimal charge".Basically this is something the medical
community needs to address.He should never be able to practice medicine again.

KZ said...

Anon at 7:08,
I did address off label use of a drug in Part 3, Lies.

To begin at the very beginning, propofol has absolutely no indication, on-label or OFF label, or in published or anecdotal literature, for use in the outpatient or home setting, for the reasons Murray said he was using it-- treatment of insomnia.

Questions for Conrad Murray: Who did you consult about your concerns about MJ's propofol use? Who advised you to continue to give him propofol? Did you consult any specialists with specialized knowledge about propofol addiction, or daily propofol abuse? Or did you make the decision to give MJ propofol on your own? What sources or references can you show us that support the use of IV propofol for the treatment of insomnia in the home setting? Who are other peers, doctors, or Cardiologists, who are using IV propofol in a home setting for the treatment of insomnia? Who have you talked to about using propofol in this manner? Have you published any anecdotal reports in peer reviewed journals about the emerging indications for IV propofol as a home care treatment for severe insomnia? Are you conducting investigational studies about using IV propofol as a home care treatment for insomnia? Please show us any notes or records you have about using IV propofol at home as a treatment for insomnia.

There is not a shred of evidence that CM was properly investigating off label uses for propofol as a therapy for insomnia. CM wasn't smart enough to come up with a cover lie like that, IMO.

And a lie like that wouldn't have been persuasive for LE and the DA. "Here, I'm going to inject this deadly medicine for no rational indication using completely substandard measures, and see if it can cure your insomnia. We'll call it off label use if anyone asks. It could be the first anecdotal report if it works! Try to keep breathing, ok? I'm a doctor, everything will be fine because nothing bad can happen if a doctor does something ike this in a private home. I have an MD license that protects me."

The DA would still have come to the involuntary manslaughter decision using the same arguments.

KZ said...

Sprocket, I think I'm beginning to have a glimmer of understanding about the involuntary manslaughter vs 2nd degree murder and malice discussion.

Incompetence and recklessness by a medical doctor in the course of his or her treatment duties can never be legally defined as malice. If CM had not been employed, maybe 2nd degree could have been considered. But the employment status of the doctor, along with the MD license, protects him or her.

If the DA had charged 2nd degree, that would open the door to ANY employed physician who practices incompetently or recklessly, and a patient dies, to be charged with 2nd degree murder, regardless of the setting (home, hospital, etc.)

If CM were tried and convicted successfully for 2nd degree murder, that was NOT reversed on appeal, then precedent would be established. That would encourage prosecution of negligence and malpractice into the criminal court system, out of the civil system. That is a slippery slope no one wants to go down.

IMO, that is a similar strategy emerging to try to "fix" the broken social services/ Child Protective Services system. There have been CPS individuals given criminal charges when a child dies or is murdered that CPS has had responsibility to follow, and dropped the ball. Social workers don't have much money or lobby power, so a few cases have gone forward prosecuting individuals.

KZ said...

Ebony at 6:20,
I think I understand now what you're getting at. If I understand your above comment correctly, you think the very issue of any mention of the past chemical dependency history of MJ is prejudicial by the prosecution OR the defense. "Prior bad acts", or something like that. In essence, the charges against CM should be presented as an isolated incident that led to the death of the victim.

That would be an interesting legal discussion. Would it be MORE likely or LESS likely that CM would be convicted if the jury knew nothing of the past history of either CM or MJ?

Speaking only for myself, the circumstances of what went on in that bedroom could never be successfully presented to me as legitimate medical care, so I would arrive at the same conclusion that CM is guilty of involuntary manslaughter as charged. But I would never be on a jury for a case like that because of my background. So the question really is, how would 12 average citizens see it? I believe in my fellow citizens, and the ability of the prosecutor to present his case, and my sense is that the verdict would still be guilty at the end of the day. But we will see!

I'm wondering if the jury will be educated about the issue of malice, as we all have been doing. They may have the same questions we all have about murder vs manslaughter, and what the difference is. I actually hope very much that somewhere in the trial process, that point, the malice discussion, is splashed all over the media reports. It's a good point to begin a public conversation about changing laws. (A girl can hope, anyway!)

KZ said...

Tiya, I'm sorry I didn't respond sooner to your question about the respiratory arrest, and if it is audible or not. I agree with CaliGirl's answer about obstruction in moderately to deeply sedated patients. Snoring type respirations are indicative of partial, or evolving obstruction, but if the obstruction is complete, you would not hear anything unless you were plugged into your patient with a precordial stethoscope. Then you can hear squeaks that signal attempts at respiratory effort, but those in the room couldn't hear that. You can also see and feel the obstructed respiratory efforts, if you are looking for it (which CM clearly wasn't). I tell my students all the time that in anesthesia, as in other parts of life, failure is not an option, and "hope" is not a plan!

I will add that a centrally mediated respiratory arrest would not be audible. Deadly silent, in essence. It happens one of 2 ways: either prgressively shorter, shallower respirations that end with apnea (no respiratory effort), or it can happen very suddenly, in 2-4 breaths time from a big dose of meds. When I induce for general anesthesia with fentanyl, versed, and propofol, followed by a neuromuscular blocker, my GOAL is apnea as soon as possible, because if the induction dose is "too light", laryngospasm can occur (among other things.)From the time I push that dose to complete apnea is usually less than 30 seconds. It happens quickly and silently. We do a heckuva lot of other stuff before, during, and after that planned, induced respiratory arrest, which I won't go into, because that is another discussion entirely! But rest assured, we know what we're doing, and we keep you safe. Every breath, every heartbeat, we are watching and THERE to help you stay alive. Not in another room on our cell phones.

Hope this is helpful!
~KZ

Anonymous said...

KZ,

What about the most critical part of this: He doesn't even have the necessary means to save his patient's life! He didn't even immediately call 911 to try and save his patient's life!

Sprocket said...

KZ asked:

"I'm wondering if the jury will be educated about the issue of malice, as we all have been doing. They may have the same questions we all have about murder vs manslaughter, and what the difference is."

Anything's possible, but I suspect most likely not. The 2nd degree charge and malice is not before them. I don't see the Judge allowing descriptions of other charges to be put before the jury.

Sprocket said...

For those of you who are still screaming that this is 2nd degree, I still haven't been presented with an argument that would get around the doctor-patient-care relationship so the DA's office could prove implied malice.

I believe the best legal minds in the DA's office worked on this issue, searching the legal data bases for published case law until their eyes bled.

I don't think they worked on it for a mere five minutes like we are here. They worked on it for months and months. But if someone out there, really thinks they have an argument (and the evidence) to support implied malice, then have at it. Write out that argument. Show the DA's office how you get around the doctor-patient-care relationship. Give it a go.

Anonymous said...

@Ebony:
Your description of semantics here is
exactly right. And I think the very
issues you mention are what causes so
much consternation in the minds of
MJ fans, and the inability to accept
the term 'addict'. It is very clear
what the defense stategy will be and
what the media will do...another
opportunity to bash MJ. Alot of people
are bone weary of that and I imagine feel helpless to stop it.
Personally, I think Jackson used
propofol when he 'had' to sleep,ie//
on tour and for these rehearsals. He
knew the consequences of missing
rehearsals and add to it the creative
process he was engaged in and as
Kenny Ortega said, 'he couldn't shut
it off'. Jackson was also given
propofol for medical procedures at
various times but apparently in the
correct manner. I can't speak to the
issue of prescribed pain meds or
sedatives or how much, when, where MJ
may or may not have abused them. The
hair sample testing will reveal that
information and I believe results of that testing can go back 90 days or so. I expect to see Demerol, most likely from Klein. What I do not know is if hair sampling allows for
estimation of amounts given or just
simply it's presence.
To me the issue of prior use/abuse by the victim here is a diversion tactic.
When Murray rigged his med delivery
set up and when he walked out of the room, essentially abandoning his patient, he became responsible for
Jackson's death. It's not that hard to say no to someone who manipulates for meds..I've done it countless times but I wasn't pulling a $150,000
paycheck to say yes.
Lauren

Anonymous said...

Many already feel that the DA has enough evidence to support the 2nd degree murder charge.

What's happening here is that someone's interpretation/opinion is being given more weight than another's are being the "right" one. It's all about interpretation. That's why so many are really questioning the action of the DA's office and wondering if the DA is really continuing its investigations to find every more evidence.

Again, there are many, who are of the opinion and of the interpretation of the already available "evidence," that the DA should go forth with the 2nd degree charge and let the jury decide, or do what can be done to add the higher charge.

Anonymous said...

I wanted to add that I left the criminal charge question alone quite some time ago, right about the time
that Tom Mesereau explained the reasoning behind the DA's decision.
If the charge was higher it might have
soothed some feelings but if malice
could not be proven and Murray got off, boy oh boy, the fallout would have been something.
Lauren

CaliGirl9 said...

Ebony, your last post was excellent. I've been saying all along that if MJ NEEDED something for pain—and he no doubt had some with visible facet disease on post-mortem x-rays—then big deal if the poor guy needed a Vicodin or Percocet every 4 to 6 hours? As long as he wasn't crossing into abuse (e.g. mixing with alcohol or other meds to get "high" or just feel stupid numb), he should have been allowed those meds. Their use is perfectly legal! But the stigma of "evil narcotics" is something most people simply cannot get around, especially in someone who had drug abuse problems in the past. Yes, had MJ been given medication for pain, he may well have become chemically dependent. But he was functioning, doing his thing dancing and singing! We have no evidence he wanted to feel woozy or high or stupid. We have evidence of a man desperate for sleep. Why couldn't he sleep? That's the kind of doctor or team of doctors he needed—and was this whole thing totally avoidable had MJ been directed to a multi-specialist team of doctors who would have addressed all of the whys.

Anonymous said...

No doubt, Mesereau's input is valuable and he's obviously speaking in general terms to the amount of evidence the DA had collected to that point specifically to support the lesser charge, which is subjective to the DA.

Also, to be fair, we all know in life that it's not what is said, but what is NOT said. What Mesereau did NOT speak to is whether the DA is conducting additional investigations to come up more evidence to support a higher charge. That's the issue.

Anonymous said...

How to get around the doctor-patient relationship? Bring the case to the jury, let the jury apply everyday common sense and decide based on the unique facts and circumstances of the case, and thereby bring about a new interpretion of the current law = new case law.

Sprocket said...

Anon @2:46:

Your post makes it clear you do not understand what "case law" is in the US.

I suggest rereading the above explanations to what "case law" is and how "new case law" is made.

Anonymous said...

Isn't it true that the books are filled with more exceptions to the law than not?

Isn't it true that if a case challenges a current law and wins, that's the beginning of new case law?

Isn't it true that it has to start with a challenge?

Sprocket said...

No. You still don't understand what is "case law."

Case law defines judicial decisions at the trial level regarding the admissibility of evidence (and rarely) factual evidence at trial.

It does not "create" new law.

You create new law through the wonderful US process of legislation; VOTING it into law.

Now, lets say, you have a criminal who gets arrested, gets jail or prison time and then is released. And then he re-offends. He is convicted again. He gets jail or prison time and is released again. Then he re-offends again.

He's a repeat offender.

But lets say, there are limits as to how much jail time he can get, because there are limits set by law as to how long you can hold this re-offender for the crimes he's committed.

The general public gets outraged and some bright individual drafts a bill to put on the ballot that the people get to vote on in the next cycled election.

The bright individual writes a ballot measure to change the California Penal Code,(i.e.="LAW") so that, after being arrested and convicted for your 3rd felony, no matter WHAT that felony is you are now in prison FOR LIFE.

It's a real situation that has happened in several states in US History. It's called the "THREE STRIKES" law.

A court case did not "create" this law. You don't add new laws or modify laws through court cases.

The people get to vote on creating or changing laws. It's one of the freedoms we as US citizens enjoy.

"Case Law" in the simplest terms, is "judicial review rulings" on the decisions the trial judge made as to the admissibility of evidence at trial. It happens through the appeal process.

Anonymous said...

So what you're saying is that "case law" specifically relates to "admissibility of evidence" and not to "interpretation" of the trial court of current law as it applies to any particular case?

If yes, then what term would you use to describe the "interpretation" issue as it relates to current law?

EBONY said...

I'm glad everyone can now see that I am not crazy! LOL! @ KZ : You are right. Many of us posting on this blog would not qualify to serve on that jury because of profession, now or prior. The jury selection will be process will be hell! The victim in this case was arguably the biggest star in the world. Most everyone has an opinion of him good or bad. The jury pool is gonna get paper thin on this one.
That being said most adults of normal intelligence will see this from the start as cut and dry, that is until the defense starts trotting in all of these expert witnesses to confuse things.
I just keep thinking about the OJ Simpson trial.. Most people are still convinced he was guilty. He even wrote a book called "If I Did It" after the fact. But OJ got off in my opinion on a shrunken leather glove & a snappy saying. Wasn't that an LA jury? So I wonder??

I do however have a question if anyone knows enough to answer.. Where does medical malpractice fall in here? What made this a homicide case vs a malpractice matter?
Doctors often make mistakes that result in the death of a patient.
They are not all tried for homicide.

It is more than evident that doctors have way too much freedom regarding the way they practice medicine. It can clearly be a license to kill..

On a much smaller scale how many of us have walked into a doctors's office and walked out with an RX for an antibiotic because your throat was red or inflamed. No culture taken or anything.
If this teaches anybody anything we should all learn that patients really need to educate themselves to possibly save their own life.

Sprocket said...

Anon @5:07:

What do you mean by

"interpretation" of the trial court of current law"

Sorry, but that doesn't make any sense to me at all.

You first have CALIFORNIA PENAL CODE. (Criminal laws.) Murray was charged with committing a crime under the penal code.

You then have the CALIFORNIA EVIDENCE CODE. This governs what can and cannot be presented at a preliminary hearing and at trial.

Note that at the prelim, there were various questions that the defense (and prosecution) tried to ask that the other side objected to and the Judge sustained the objection. Many of these same questions will be asked at trial and will be answered once the proper foundation for the question has been laid.

(Remember, to be able use an issue for appeal, it must FIRST be objected to by either side during the trial. If your attorney doesn't object to a line of questioning, a piece of evidence, a ruling by the judge, blah, blah, blah, etc., you can not claim judicial error on that issue in your appeal. More on that later, if I have time.)

Then you have CALCRIM, also known as "jury instructions." The specific instructions that will be read to the jury are agreed to by all parties. (Either side can object to a judge's ruling on a particular jury instruction for the trial record.) The jury has to follow the instructions to convict the defendant on specific charges.

I don't know if that helps you understand California law or not.

Sprocket said...

EBONY,

I believe medical malpractice is a civil charge/case. It's not a criminal charge.

A patient charges a doctor with malpractice, suing for whatever they've lost under the doctor's care.

Anonymous said...

Reportedly, the insurance company has refused to pay for Murray's defense because they do not cover criminal acts.

Anonymous said...

Haven't you heard of cases where a specific law is interpreted one way due to the unique facts and circumstances of the case, and then interpreted another way in another case due to the unique facts and circumstances of that case?

Anonymous said...

Ebony, you make a great point. Something needs to be done about that "license to kill." Murray's case would be a great place to start.

Sprocket said...

Anon @6:16 pm:

No, I've not "heard" of that. What do you mean by "interpreted?"

To convict Murray of second degree murder, you must FIRST charge him with second degree murder.

Murray was not charged with 2nd degree murder.

You can't charge him with involuntary and then after all the evidence has been presented, try to add another charge, a HIGHER charge, and convict him of 2nd degree. That. Just. Does. Not. Happen. That would violate the defendant's rights. That I know for certain.

The initial "charging document" sets the bar for what violation you can convict the defendant of.

KZ said...

Ebony, Generally the difference is state of mind. Civil negligence/ malpractice has 4 elements: duty, breach, causation, and damages. The BREACH must CAUSE the DAMAGE. A breach alone is not sufficient. Judgements are money, but subsequent to the money damages can come loss of licensure, inability to get insurance in the future, listing on the National Practitioner Database, reputation problems, future reimbursement problems if companies won't contract to pay a doc with a history of malpractice, etc. etc. Lots of consequences that can interfere with a provider continuing to practice.

I'm a little more familiar with civil cases than crimninal, and have worked with attorneys on civil cases. You can pile on all the breaches you want in a civil case, but the key breach must directly cause the damage the plaintiff brings suit over. The plaintiff in a civil negligence case is the victim or heirs. The plaintiff in a criminal case is the People of the State.

As I understand it, the contributing elements for criminal charges are state of mind and circumstances. For murder, an element of malice must be there. For manslaughter, the intentional actions of the individual directly caused the death, but there was no malice intended. This is very different from an accident, where the outcome of death could not be anticipated as the defendant was moving through the situation.

So, for manslaughter, the intentional actions of the defendant produced a death. I think manslaughter could be boiled down to "you should have known better than to do THAT." ie, give propofol in a completly nonstandard manner for a reason (insomnia) that is not valid or supported by medical literature and prescribing information. That there are no indications for this drug to ever be given in a home environment in this manner means that the incompetence and recklessness of the doctor rises to a criminal level, subsequent to the death of the victim.

As we've discussed above at length, the issue for CM is that there is no standard of care for what he was doing, and what he was doing in a private home was dangerously reckless and directly produced a death, but not done with the intent to kill. As Sprocket wrote, the DA took his time bringing charges, and thoroughly investigated the situation, as well as possible charges and case law. As I wrote above, the golden parachute was CM's MD license and his employed status. That provided some insulation from a murder charge.

I think the setting is important, too. If a patient died while receiving propofol in a hospital under the exact same circumstances as MJ in his home-- nonstandard administration, no indication, abandonment by the medical provider who was found to be elsewhere on his cell phone, etc-- I think an identical manslaughter charge could be filed, in addition to negligence.

That was a long answer-- hope it makes some sense!

Anonymous said...

Sprocket,

Didn't you say somewhere previously that the DA can "up" the charges and refile during the trial if they come up with more evidence to prove 2nd degree murder?

Anonymous said...

Interpreted meaning how the law is applied to the specific unique facts and circumstances of a case.

Anonymous said...

It seems what some are saying is to let the jury do their job and decide this case with the evidence already on hand. Not the DA, but the jury.

EBONY said...

Thanks Sprocket & KZ. And yes. Your answer does make sense. i was think along those lines, but I just did not have the intimate knowledge of malpractice to solidify my thought process.

It honestly scares me how much nuance and how many gray areas there are in our laws.

What Murray did was reckless & wrong. And he knew that it was. The guy who washes my car would never take a job to fix the engine. It's not his station. It should be that simple, but yet in our justice system it isn't.

Sprocket said...

Anon @6:39 pm:

For the DA to "up the charges" the current charge would have to be dismissed and a new charge and prelim brought.

I do not believe that will ever happen. I believe the DA's office decided to go forward with the current charge. I think they got all their ducks in a row first, THEN went to prelim. I think they are completely ready for trial and that if there are any delays, it will be due to the defense asking for a delay in the proceedings.

I don't believe they will learn anything new at trial that would cause them to up the charges. If I had a nest egg, I would bet it all that there will NOT be a 2nd Degree murder charge brought about via evidence at trial.

Anon @ 6:44pm:
You still don't understand US Law. As of this point, it's not my job to educate you or spend any more time trying to.

Anon @ 6:59pm:
How would that be accomplished? A jury hasn't even been CHOSEN yet. The DA still has to present the case to them. And then the defense gets to present their interpretation of the facts. Then the prosecution gets to present a rebuttal case. Then there are closing arguments. After closing arguments, jury instructions are read. Then the jury gets the case.

There will be only a single charge before them to decide: Involuntary Manslaughter.

Laurie said...

Anonymous at 5:07 pm and 6:13 pm, a couple of the sentences in Sprocket’s earlier entry were a bit confusing, so for facility she has removed them. To answer part of your question, there is California case law that specifically relates to, but not solely to, admissibility of evidence, and it stems from interpretation of California law (statutes, regulations, rules, etc). Case law - interpretation - is broad and covers most areas of law or is used to inform interpretation of new law. Interpret does not mean “how the law is applied,” but actually what the law means, including what Congress or the legislature intended, when they wrote the law. Here Judge Pastor applies it to the unique facts and circumstances of the Murray case.

As an example, I am attaching a link to a case that I understand was cited (as case law) in court papers (motions) and discussed at argument on a given issue that has come before Judge Michael Pastor. Gray v. Superior Court of California - caselaw.lp.findlaw.com/data2/californiastatecases/a107367.pdf. The appellate court in Gray ruled on various issues on appeal in that case, then decided it was important enough to publish. The points of law therein are now binding on the trial courts of California. For example, if the Attorney General had moved in Pastor’s court to suspend Murray’s medical license as a condition of bail without due process - adequate notice to the Murray, Pastor would likely have cited Gray in denying the motion on the grounds of a violation of Murray’s due process.

A point I believe Sprocket is trying to make is that new California criminal law is made in the State legislature. One issue, however, is that often new statutes and regulations often have an effective date that is not retroactive. It may or may not apply to crimes committed, or convictions made, prior to the date of the law’s effective date. Sprocket said that CalCrim520 was recently revised and whatever that version is, which may be the one copied above, will apply to People v. Murray.

Anonymous said...

Laurie, Thank you for your explanation!

So it is understood that rulings in past cases are used to support subsequent cases (is this tantamount to "case law"?).

So, if precedent is set in Murray's case, that can be used to support subsequent cases, which is a great reason to do something significant with this case.

Based on the comments here, the main issue in this case seems to surround the "doctor-patient" relationship. Some feel that the situation in this case is so egregious that it would trump that relationship argument and thus that the case should go to the jury and let them (not the DA) decide how to interpret how the law should apply in this situation.

Sprocket said...

Anon @ 5:54am:

It's evident you still don't understand case law.

The doctor-patient relationship issue is my opinion as to why the DA's office did not charge 2nd degree. It's not "fact" as to why the DA's office went with involuntary manslaughter.

According to Tom Mesereau, in his interview with Matt Lauer of TODAY, he indicated there were lengthy discussions in the DA's office as to what "charge" to go forward with.

(This tells us the DA's office spent considerable time going over what would be the defense arguments for each charge. In other words, what type of "defense" could Murray's legal team mount, to the charge of 2nd degree. My thoughts are, my opinion, the doctor-patient-care relationship issue was discussed.)

Evidently, there were some in the DA's office who felt there was enough in the evidence to charge 2nd degree, malice murder. However, involuntary manslaughter won out.

We can never know for certain, "why" the DA's office decided to go forward with involuntary manslaughter, but that's the charge they decided on. They decided to go forward with the single, lesser charge.

Sometimes, at the end of the trial, the defense, or the prosecution will argue in motions to the Judge, to include for the jury to consider a lesser charge than the initial charging document. This is what happened in Spector 2. Spector was charged with 2nd degree. At the end of the case, the prosecution presented a compelling enough argument to the Judge, for the Judge to add for the jury to consider, Involuntary manslaughter. (The prosecution cited "case law" in their motion, where in a previous case, the appellate court indicated that involuntary manslaughter should have been added for the jury to consider. That prior case was reversed on appeal on that issue. I believe the prosecution's argument, from what I remember was' Judicial responsibility" to add the charge of involuntary manslaughter.)

The defense argued against it. Their defense position of the case always was that Lana Clarkson killed herself, so the charge of Involuntary manslaughter should not be put to the jury.

The Judge, citing the case law presented by the prosecution, added the involuntary charge for the jury to consider.

Spector was still convicted on 2nd degree.

But note the difference between Spector and Murray. Prosecution went forward from the beginning with 2nd degree. IF THE EVIDENCE WARRANTS IT, and case law is cited in the motion by a particular side, the Judge can rule to have the jury consider lesser charges under the initial charging document; never greater. That would violate the defendant's rights.

In this case, in Murray, the prosecution went forward with the lesser charge. They are not going to go back at a later date, dismiss the current charge and bring a newer, higher charge. Not on such a "high profile" case. That will never happen.

The time to petition the DA's office to charge 2nd degree is long past. It's done.

Anonymous said...

Mesereau had stated on tv something to the effect juries are reluctant to convict a doctor. But due to the egregious nature and unique facts and circumstances of this case, as delineated by KZ, there seens ti be a high probability that the jury would convict on murder charges in this case.

Sprocket said...

Mesereau ALSO SAID, back in February, TWO THOUSAND TEN, 2010 on an episode of Jane Velez-Mitchell's show:

QUOTE:
TOM MESEREAU, MICHAEL JACKSON`S ATTORNEY: I understand it completely from an emotional standpoint; the family and the fans want to see a murder charge. But you got to be careful with that from a practical standpoint. If the prosecutors bring murder charge and they can`t prove it, the jury may discredit everything they say and acquit him of both murder and involuntary manslaughter. I`d rather see them bring involuntary manslaughter if they know they can prove it and get a conviction that sticks.
END QUOTE

How is what I'm saying about the DA's office, any different than what Mesereau said OVER A YEAR AGO? Last I checked, Mesereau is not in the DA's office pocket. Far from it.

Everyone wants to see the prosecution bring a 2nd degree murder charge, but they are not thinking the process through to completion. There is always the possibility the jury will not convict the doctor on anything.

Going the conservative route means it is more likely the prosecution will secure a conviction.

Anonymous said...

Thanks for providing Mesereau's quote:

"I`d rather see them bring involuntary manslaughter if they know they can prove it and get a conviction that sticks."

The key part is: "IF THEY KNOW THEY CAN PROVE IT."

He's right -- everything depends on the DA.

The key question is:
How deep did the DA office dig or are willing to dig to find the evidence for the MURDER charge?

Anonymous said...

Thank you so much for your hard work on this project... I knew it I knew it..... You are brilliant.. this Dr.. is in deep dooo dooo ... WOW... you are good... Thanks again..
I hope the prosecution reads your report....

Anonymous said...

The Inglewood case of Dr. Roberto Bonilla is amazingly similiar to Murray's. Here is one article from the Daily Breeze. The DA actually did increase the charges from involuntary manslaughter to
2nd degree murder based on the evidence presented at the preliminary hearing, however, in December another judge dismissed the murder charge, but let the manslaughter charge move forward.

The article:

A second-degree murder charge was added last week to the case against an Inglewood doctor accused of killing a patient during surgery in a converted residence.

Prosecutors cited evidence that surfaced during a four-day preliminary hearing to support the new charge against Dr. Robert Bonilla, who already was charged with involuntary manslaughter.

The case against Bonilla highlights the risks underinsured or uninsured patients take in seeking medical care at subpar facilities, authorities say.
But Bonilla's attorney said his client is providing a service to a segment of the community that not many others are willing to do.

Deputy District Attorney John Lonergan said he added the murder charge after hearing testimony that he believes shows Bonilla committed a series of acts he knew would be dangerous to his patient's life.

"It was an extreme deviation from the normal standard of care," Lonergan said.

Bonilla is accused of causing the death of a 30-year-old gallbladder and hernia patient on May 27, 2008
The man, an illegal immigrant, paid at least $3,000 cash for the surgery in a house-turned-medical office on East Arbor Vitae Street.

After Bonilla administered a local anesthesia, the man became unconscious. Bonilla and his staff tried to resuscitate him, according to the evidence, but they were not successful.

In emotional testimony, two of the man's relatives said they arrived at the clinic and were asked to authorize a mortuary to remove the dead man. One of them called 911.

Initially, a coroner's report opined that the death was accidental. However, following further investigation, the coroner determined that he died from an overdose of the local anesthesia.
Lonergan said medical experts testified that such surgery is considered major, and should be performed under general anesthesia - with an anesthesiologist present - in a hospital or surgical center.

"When doing such risky procedures, something will ultimately go wrong," Lonergan said.

That Bonilla did not summon help shows his motive was to make money and protect himself, Lonergan said.

http://www.dailybreeze.com/ci_15542228?IADID

KZ said...

Anon at 3:47,
Thank you for your kind words and confidence in my writing. However, I'm quite sure the prosecutors and DA do not need to read anything I have to say. They don't need to read the blogs to formulate their arguments. They have the ACTUAL evidence and photographs-- much more information and evidence than we have been allowed to hear, so far. They have experts who, I'm sure, are much smarter than I am...or at least have much more important letters after their names! The prosecution does not need to concern themselves with reading blogs to formulate their arguments-- and I would be very worried if they did.

My only goal in writing this series was to see if I could figure out exactly what was going on in that bedroom where Conrad Murray was pretending to play solo anesthesiologist. I was (am!) especially annoyed and angry that his actions have impacted my profession, and caused some patients to fear us giving them a drug that is safe in the proper hands, and proper environment. We still get patients who walk in the door saying "don't give me the drug that killed MJ." We always have to start these cases with a discussion reassuring them that the drug alone did not kill MJ-- the inappropriate use of the drug in the wrong setting, for the wrong indication, by an unskilled and recklessly incompetent provider, is what killed the victim. The drug did not explode out of the vial and kill the victim.

The series was for US to read and discuss. I'm glad we all had great conversation! Sprocket and CaliGirl9 rolled out the welcome mat for me, and hosted a great coffee and dessert party! I thank them both very much for the invitation and hospitality!
~KZ

Sprocket said...

Hyperlink for above article:

Daily Breeze.com

Just from the information in the above article, I can tell what sets Murray's case apart from the Inglewood case.

In the Inglewood case, prosecutors learned something at the prelim they did not know before hand.

I don't believe that was the case with Murray. I believe the prosecution knew exactly what each witness would testify to at Murray's prelim. They had all their ducks in a row, knew everything there was to know before they went ahead with the prelim.

So, even though the Inglewood prosecutor thought he had enough to go with 2nd degree, a judge rejected the charge. The exact same thing could have happened with Murray. In a high profile case, that's something you DON'T want happening.

Before you start ranting "The DA's office needs to investigate to increase the charges!!!" it's a good idea to at least learn a little bit more about the legal system of the country your ranting about.

Maybe the Inglewood victim's family should be shouting from the rooftops to have "more investigation" to "dig deeper" to "find the evidence" to charge 2nd degree in that case. Oh wait, the LA County DA's office did just that and look what happened? A judge threw out the charge.

Funny, it seems to me that just a few days ago, I mentioned the possibility of this EXACT SAME SCENARIO for Murray. And what do you know, a very kind Anonymous poster gives us this article in the Daily Breeze of an Inglewood case (still LA County jurisdiction) where the DDA brings a 2nd degree charge, but the Judge rejects it.

Man, you'd think with my opinions, I was psychic or something, or maybe, just maybe, I know what I'm talking about.

Maybe it could be that I've followed a lot of criminal cases over the years and I have a bit of understanding on how things work here in the US.

Sprocket said...

QUOTE:
Mesereau had stated on tv something to the effect juries are reluctant to convict a doctor. But due to the egregious nature and unique facts and circumstances of this case, as delineated by KZ, there seens ti be a high probability that the jury would convict on murder charges in this case.
END QUOTE

One of the things a good attorney will tell you, is that you can never "predict" what a jury will do.

KZ said...

The tragic example of the Bonilla case demonstrates yet again WHY we need to have a public discussion about what physicians are allowed to do in their private offices, private clinics, and homes.

IMO, these are deplorable situations that put very rich, or very vulnerable people directly into the hands of those least qualified to care for them. Doctors who are willing to do anything for cash payments. There are a number of ways to structure regulation of these kinds of practice issues, to protect the public, and still allow physicians to apply for exceptions when needed. At least that would provide SOME oversight and a safety layer, which is currently lacking. Laws and Boards of Medicine, Nursing, etc. are charged to do just that. The Board of Nursing is not in existence to protect me; professional licensure boards exist to protect the public.

The sad thing is that each time something like this happens, the Murray case, or the Bonilla case, it is presented in the media as if it is only one wacky occurrence. Boards of Medicine, in my experience are far more interested in advancing and promoting legislation that limits and restricts the practice of other health care professionals, when they should be focusing more of their efforts on policing their own profession. Make no mistake, their arguments have little to do with patient safety, and a lot to do with money and turf battles. Physicians are extremely reluctant to discuss any restrictions on their practice, because of the historical basis for their practice. IMO, those times are long past, and physicians should be subject to the kinds of laws and regulations that every other health care provider is subject to. If they want to do surgery in a private office, they should have to be licensed to do that, and demonstrate competence and compliance with standards of care.

I once turned down a dentist who wanted me to set up a practice to give essentially general anesthesia in his office. After thoroughly evaluating what was needed, I produced a list of equipment and drugs he needed to buy to be in compliance with standards. He said he didn't think it was necessary to buy monitors, ACLS drugs, a crash cart, etc, and that if something ever happened, they would just call 911. I had a discussion about the risks to patients, etc, and let him know politely that I wasn't willing to practice in that environment, which I thought was cutting corners and substandard. He laughed, and said he'd find an anesthesiologist to do it under the table, so he wouldn't have to spend the money. How awful is that? By the way, the contract the dentist offered me was for nearly $300K a year, and yes, I walked away. He was willing to pay for anesthesia, but not purchase the equipment to give it safely. He didn't want his patients to feel like they were getting medical care, he said.

KZ said...

Forgot to mention that the $300K I was offered by the cosmetic dentist above was for working only 2-3 days per week giving anesthesia. So that's another example of how you can do something legally, cut corners, and put patients at risk to pocket a lot of money. In my state, CRNA's can legally work with medical doctors, dentists, and podiatrists. Dentists and podiatrists are not medical doctors, and do not attend medical school; their degree is DDS or DPM. Many people don't know this, and assume dentists and podiatrists are also medical doctors. Dentists who have completed a certification course in sedation are allowed to give certain kinds of anesthesia. However, with deep sedation/ general anesthesia, it is far safer to have a qualified provider giving anesthesia and monitoring the patient who is not also conducting the dental procedure. IMO, this qualified provider should be someone who is able to perform advanced airway management/ rescue procedures, and various forms of intubation, should the airway be compromised. A dental technician should not be giving deep sedation or general anestheisa, IMO.

KZ said...

Forgot to mention that the $300K I was offered by the cosmetic dentist above was for working only 2-3 days per week giving anesthesia. So that's another example of how you can do something legally, cut corners, and put patients at risk to pocket a lot of money. In my state, CRNA's can legally work with medical doctors, dentists, and podiatrists. Dentists and podiatrists are not medical doctors, and do not attend medical school; their degree is DDS or DPM. Many people don't know this, and assume dentists and podiatrists are also medical doctors. Dentists who have completed a certification course in sedation are allowed to give certain kinds of anesthesia. However, with deep sedation/ general anesthesia, it is far safer to have a qualified provider giving anesthesia and monitoring the patient who is not also conducting the dental procedure. IMO, this qualified provider should be someone who is able to perform advanced airway management/ rescue procedures, and various forms of intubation, should the airway be compromised. A dental technician should not be giving deep sedation or general anestheisa, IMO.

Laurie said...

Integrity, KZ. Thank-you. Another doctor, who just calls 911 if there is a problem: http://www.oregonlive.com/lake-oswego/index.ssf/2010/12/oregon_medical_board_orders_emergency_suspension_of_portland_doctor_after_patient_dies.html.
I applaud the Oregon Medical Board for acting so quickly on this one; death on December 19, emergency order of suspension on December 22. There has been no word if there is any interest in pursuing criminal charges in this one. One note about another legal concept called collateral estoppel, which apparently affects the moves made by the California Medical Board, when a member is involved in a criminal proceeding, but they want to move to suspend his/her license. One may read more about that in the Gray v Superior Court case cited above. I kept wondering why the California Medical Board was moving before the superior court rather than making an emergency suspension. I understand the suspension coming from the California superior court rather than Board itself has affected the non-movement of the Nevada and Texas Boards. Amazing. One may find it quite shocking to read about the cases that are not investigated, or the hand-slaps given, by the Nevada Medical Board. I get the sense that you too, KZ, think that doctors, perhaps nurses and others, are really poor at patrolling themselves.

Anonymous said...

@Sprocket

I tried to post this at your latest blog post but comments was closed - can you address this at that post please.

MSM also reported that both sides gave witness lists consisted around 100 people for each side. Will those lists become public knowledge? thanks.

Sprocket said...

I've answered this question before.

The prosecution witness list will be made pubic at some time, but I don't know if the defense is "required" to release theirs to anyone other than the prosecution and the court.