Barber v. Superior Court

California Court of Appeal · 1983 · Criminal Law

147 Cal. App. 3d 1006 (1983)

Updated August 1, 2026

Criminal Lawomissionwithdrawal of caremurderconspiracyomission liabilitylegal duty to actlife support

Facts

After successful ileostomy surgery, Clarence Herbert suffered a cardiorespiratory arrest, was revived, and placed on life-support equipment. Within three days, several physicians, including petitioners, concluded that he had severe brain damage, was in a deeply comatose vegetative state, and was not likely to recover meaningful cognitive function. After discussing the prognosis with Herbert's family, the doctors removed the respirator and other life-sustaining equipment; two days later, after further consultation with the family, they also removed intravenous tubes providing hydration and nourishment. Herbert then received only nursing care until his death.

Issue

Whether evidence that the physicians intentionally withdrew respirator support and later intravenous hydration and nourishment from a comatose patient with virtually no chance of meaningful recovery was sufficient to hold them to answer for murder and conspiracy to commit murder. More specifically, the question was whether their conduct constituted an unlawful killing or instead a lawful omission because they had no legal duty to continue futile treatment.

Rule

There is no criminal liability for failure to act unless there is a legal duty to act. In the context of life-sustaining treatment, cessation of heroic measures is a withdrawal or omission of further treatment rather than an affirmative act, and a physician has no duty to continue such treatment once it has proved ineffective or futile in the opinion of qualified medical personnel. A patient has a recognized right to control medical treatment, and when the patient is incompetent, treatment may be withdrawn on the decision of an appropriate surrogate without prior judicial approval or formal guardianship, absent legislation requiring otherwise.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a hospital in Sacramento, Dr. Lena Ortiz treats Paul Mendez, who suffered severe oxygen deprivation during emergency surgery. After three days, Dr. Ortiz and two consulting neurologists conclude that Paul has virtually no chance of regaining meaningful cognitive function, and his husband agrees with their recommendation to stop the ventilator. Prosecutors charge Dr. Ortiz with murder after Paul dies hours later.

Which is the strongest argument that the murder charge should be dismissed?

Explanation. The majority treated withdrawal of life-sustaining treatment as an omission rather than an affirmative act of killing. Criminal liability for omission requires a legal duty to continue acting. Where qualified medical personnel conclude the treatment is futile, the physician has no duty to continue it, so the omission is not unlawful. The opinion did not rest on good motives alone, did not require brain death, and found it unnecessary to resolve proximate cause.