Michael Jackson: Malpractice or Manslaughter (Or Something Else)?

The news that’s been leaking out of Los Angeles is that Michael Jackson was administered the anesthesia drug propofol by his doctor, Conrad Murray, the night before he died. And that a manslaughter investigation is under way. Other news is that his doctor may have prescribed drugs to Jackson under multiple names.

So it’s time to revisit the post I made the day after he died (Michael Jackson: The Mother of All Malpractice Suits?). At that time I wrote of three potential issues for a doctor that was seeing him if medication issues lead to his death, which I re-examine below:

1. Medical license issues;
2. Medical malpractice; and
3. Criminal prosecution.

I had a number of questions the day after he died, most of which remain unanswered since the autopsy results are not public nor are the toxicology reports. But I wrote this at the time regarding criminal liability:

A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don’t generally bring these kinds of actions, they also don’t usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

So, assuming that Murray gave the drug, and also assuming that Murray prescribed drugs to Jackson under multiple names (both of which are just rumors), how does this change the equation?

First, let’s be clear that the only reason this manslaughter investigation is going on is because the decedent was big-time famous. This type of investigation would not go on for the other 99.999% of the population.

Second, I’ll assume without bothering to look it up that giving out prescriptions under phony names violates a few laws.

That being said, if those two things are true, then I predict the following:

1. His license to practice medicine will be revoked. The alternative of suspension doesn’t really exist because of the big, bright media spotlight.

2. A malpractice case will be brought and the insurance company (if any) will try to settle quickly for the limits of the policy (in New York the usual primary policy is $1.3M). There are a few reasons for this, the first being it is rare to have government workers do your investigation for you in a malpractice case, but that is the case here. Discovery will all be done by the police and District Attorney. Add in that the insurance carrier won’t want to throw good money after bad in a case like this while the world is watching. So while a million bucks might not mean much in terms of Michael Jackson, it’s still a million bucks and better in the pockets of the kids then in the pockets of the insurance company.

The big wrench thrown in to this kind of quick settlement is that the lawyer that brings the case for the family will likely have intense pressure to get more than the insurance policy; they will want a whopper of a punitive damage judgment against Dr. Murray.

Why? While I’m guessing that this doctor probably won’t have much in the way of assets after he pays his criminal defense fees, he could still make a bucket of money writing a book or otherwise selling the rights to his story. A judgment against him allows him to be pursued for those fees, the same way that OJ Simpson has been pursued by the Goldman family after they collected a big civil judgment against him. The family will want this done so that Murray cannot profit from his conduct.

3. Criminal law. Dr. Murray will likely face fraud charges regarding the phony prescriptions. And I’m guessing he might face a Martha Stewart Charge (obstruction of justice) for lying to the police regarding his actions. That opinion is based on the doctor being interviewed by the police shortly after Jackson’s death, but that the room was apparently not treated as a crime scene until much later. A search warrant was issued three weeks after Jackson’s death. I therefore guess that Dr. Murray wasn’t particularly candid about the degree to which he had been medicating Jackson (if the rumours are true) and that will expose him to an obstruction charge.

But will he face a manslaughter charge based on reckless conduct? If it was my family or yours the answer would be an easy no because the investigation never would have happened. If it happens here, it is only because of the notoriety of the case. So my best guess is no, though the all-important toxicology results have not been made public. If I’m wrong about the charge I think it will be because of community or political pressure or publicity-seeking by the DA, or something truly remarkable in the toxicology results.

So here is my guess from the cheap seats:
1. Loss of license;

2. Malpractice case that nets the limits of any insurance policy, with continued pursuit for a judgment against Murray so that the doctor can’t profit by selling the story; and

3. Criminal charges regarding obstruction of justice and fraud regarding the prescriptions. If charged with manslaughter, he will be found not guilty based on what we know right now, but the toxicology results can change that in a New York second.

Update: See Michael Jackson’s Mom To Start Wrongful Death Action Against Concert Promoter? (8/18/09)