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Murray Defense Abandons Claim Jackson "Swallowed" Propofol Himself

October 18, 2011

From the beginning of this trial, the defense has been claiming Michael Jackson caused his own death when he gave himself propofol. Thus, the defense has argued that Dr. Conrad Murray is not guilty because he did not cause Jackson's death--Jackson did. Last week, Dr. Murray's defense team officially dropped the defense Jackson "swallowed" propofol himself. As a Chicago medical malpractice lawyer, I am amazed the defense ever made such an allegation because, even if true, swallowing propofol would almost certainly not cause death.

Dr. Murray's defense team gave up on Jackson swallowing propofol after medical studies showed propofol has no major effects on a person when swallowed. This is, no doubt, a major set back for the defense. That said, the defense's mistake is not necessarily fatal. After all, Dr. Murray can still make the general claim Jackson gave himself propofol when Dr. Murray left the room for two minutes. They just can no longer argue Jackson swallowed propofol. Instead, they will likely argue Jackson injected himself with propofol. No doubt, a self-injection of propofol, depending upon the circumstances, could result in death.

Last week, the prosecution put a number of witnesses on the stand. One such witness was cardiologist, Dr. Alon Steinberg, who reviewed Dr. Murray's treatment for the California medical board. At trial, Dr. Steinberg delivered a very important opinion against Dr. Murray. Specifically, Dr. Steinberg testified that even if Jackson gave himself propofol (including through injection), Dr. Murray would still be responsible for Jackson's death. After all, it was Dr. Murray who brought propofol into Jackson's home. Dr. Steinberg likened Dr. Murray's use of propofol to help Jackson sleep to "leaving a baby that's sleeping on your kitchen table. You look at it and it's probably going to be OK and you're just going to grab some diapers or go to the bathroom but you would never do it."

Dr. Steinberg laid out several deviations from the standard of care committed by Dr. Murray. A deviation from the standard of care is a classic medical malpractice term. A deviation from the standard of care is a behavior that no reasonable physician would do under the same or similar circumstances. Here, Dr. Steinberg testified that Dr. Murray committed six "extreme" deviations from the standard of care: 1) administering propofol for sleep when it was meant for anesthesia; 2) giving propofol at home instead of a medical facility; 3) failing to be prepared for an emergency with sufficient staff and equipment on hand; 4) failing to take proper measures to revive Jackson when the singer stopped breathing; 5) failing to immediately call for an ambulance; and 6) failing to keep proper records.

In a traditional medical malpractice case, the plaintiff would need to establish how each one of these deviations caused or contributed to Jackson's death. Otherwise, it would be generally irrelevant and, therefore, inadmissible. For example, if calling for an ambulance sooner would not have made a difference, it may not be relevant. However, the first three deviations seem strong--both in terms of negligence and in terms of proving how any one of them caused Jackon's death. In reality, the prosecution only needs to prove one of these deviations caused Jackson's death. If found guilty of involuntary manslaughter, Dr. Murray faces up to four years in prison.

Sources Used:

Reuters Website, Defense Drops Claim Jackson Swallowed Propofol Himself, October 13, 2011

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