It always seemed unlikely Dr. Conrad Murray would ever testify in his own defense. A cross examination of Dr. Murray would be blistering, as he was paid $150,000 a month by Jackson to give Jackson a dangerous surgically anesthetic to help the pop star sleep. On Tuesday, Dr. Murray made it official. He told the judge in his criminal trial he will not take the stand. Dr. Murray is accused of criminal medical negligence in connection with Michael Jackson's death, though the official charge is involuntary manslaughter. The prosecution and defense had a day off on Wednesday to prepare for closing arguments scheduled for Thursday. After closing arguments, the Judge will instruct the jury on the law. The case is then turned over to the jury to deliberate whether Dr. Murray should be found guilty or innocent. As a Chicago medical malpractice lawyer, I am eager to see how each side will present their closing arguments and, most importantly, how the jury will decide this fascinating case.
As with a civil medical malpractice case, the prosecution must generally prove Dr. Murray was negligent (albeit criminally) and that his negligence was caused Jackson's death. Unlike a civil case, the prosecution must prove their case beyond a reasonable doubt rather than a preponderance of the evidence. The defense does not have to prove anything. They need only demonstrate reasonable doubt on whether Dr. Murray was negligent or whether he caused Jackson's death. As predicted, the primary battle is over whether Dr. Murray caused Jackson's death. After all, none of Dr. Murray's experts seemed to offer credible testimony that it was within the standard of care for Dr. Murray to give Jackson propofol, an anesthesia drug, to help him sleep in his home. Dr. Murray's central defense is that Jackson caused his own death when he allegedly gave himself propofol while Dr. Murray briefly left the room for a bathroom break.
Causation is the relationship between conduct and result. In nearly all cases, causation requires a two-part part analysis. First, was the defendant's conduct the "factual cause" of harm? In other words, but for the defendant's conduct, would the harm have still occurred. If so, the second questions is whether the defendant's conduct was the "legal cause" of the harm? Legal causation generally turns on whether it was "reasonably foreseeable" that the defendant's conduct could cause the harm.
Applying the concept of causation in this case, the prosecution must first prove that but for Dr. Murray's conduct, Jackson would not have died that day. In arguing factual causation (referred to as actus reus in criminal law), the prosecution will likely argue Jackson would not have died but for Dr. Murray's conduct based on at least three separate deviations from the standard of care. First, Jackson would not have died but for Dr. Murray bringing propofol into Jackson's home. Second, Jackson would not have died but for Dr. Murray giving Jackson propofol in his home. Third, Jackson would not have died but Dr. Murray's failure to properly monitor Jackson with proper medical staff and equipment while Jackson was receiving propofol. But for one or more these alleged deviations from the standard of care, the prosecution can argue Jackson would not have died. Regarding legal causation, the prosecution will argue it was foreseeable that these deviations from the standard of care could cause Jackson's death given the dangerous nature of propofol.
Dr. Murray's defense will have to refute these causation arguments. Regarding the first, it will be very difficult to argue bringing propofol into Jackson's home was not a cause of Jackson's death. Indeed, it seems the whole reason Jackson hired Dr. Murray at $150,000 a month was because he was the only doctor that would give Jackson propofol. Dr. Murray's best defense on this topic is to deny it was foreseeable propofol, in small doses, would ever kill Jackson (ie., deny legal causation). Dr. Murray's attorneys will also argue it was unforeseeable Jackson would give himself propofol when Dr. Murray temporarily left the room. Indeed, these same arguments will likely also be used to attempt to deny legal causation on all other alleged deviations from the standard of care. The defense will also argue Jackson own conduct was unforeseeable and an intervening cause that resulted in Jackson's death. Dr. Murray may also argue Jackson dermatologist, Dr. Arnold Klien, contributed to Jackson's death by getting him addicted to Demerol (which can cause sleep difficulty during withdrawal). How the jury interprets these and other arguments on causation will likely determine whether they find Dr. Murray guilty.
Huffington Post Website, Conrad Murray Trial: Jackson's Doctor Declines To Tell His Story To Jury, November 2, 2011.