## Facts

- Clarence Herbert underwent surgery to close an ileostomy performed by Dr. Robert Joseph Nejdl, with Dr. Neil Leonard Barber as attending internist.
- Shortly after surgery, Herbert suffered cardiorespiratory arrest, was resuscitated, and was placed on life-support equipment.
- Multiple physicians concluded Herbert had severe brain damage and was in a deeply comatose, vegetative state with an extremely poor prognosis and little chance of recovery.
- After the prognosis was communicated, Herbert’s family requested withdrawal of life-sustaining measures.
- The physicians discontinued respiratory and other life-support equipment; Herbert continued to breathe spontaneously but remained comatose.
- After further consultation with the family, the physicians discontinued intravenous nutrition and hydration; Herbert subsequently died.
- Prosecutors filed a criminal complaint charging the physicians with murder and conspiracy to commit murder.
- After a preliminary hearing, the magistrate dismissed the complaint; the superior court ordered reinstatement on the People’s motion.
- The physicians sought writs of prohibition to prevent further prosecution.

## Issues

1. Whether physicians who discontinue life-sustaining treatment for a permanently vegetative, comatose patient at the family’s request may be criminally liable for murder under California law.
2. Whether such discontinuation constitutes an affirmative act of killing or a noncriminal omission to continue treatment.
3. Whether, on the preliminary hearing record, there was a legally cognizable duty requiring continued medically ineffective life-sustaining treatment sufficient to support murder or conspiracy charges.

## Decision

- The Court of Appeal issued a peremptory writ of prohibition barring further proceedings on the reinstated complaint.
- The court held the physicians’ conduct was an omission to continue medical treatment, not an affirmative homicidal act.
- The court concluded there was no unlawful failure to perform a legal duty, and thus no probable cause to support murder or conspiracy charges on this record.
- The superior court erred in ordering reinstatement after the magistrate dismissed the complaint.

## Legal Principles

- Criminal liability for an omission requires a legal duty to act; absent a legal duty, an omission is not punishable as homicide.
- A physician’s duty is to provide appropriate medical care; it does not require indefinite continuation of medically ineffective or nonbeneficial life-sustaining measures when there is no reasonable hope of recovery.
- Withdrawal of life-sustaining treatment, even when death is a foreseeable result, is treated as allowing death to occur from the underlying condition when the legal duty to continue the specific treatment is lacking.
- Withholding or withdrawing treatment differs from administering a lethal agent; the former is treated as an omission in this context, not as an affirmative act of killing.

## Conclusion

The court held that, on undisputed preliminary hearing facts, physicians who withdrew futile life-sustaining treatment from a permanently comatose patient at the family’s request could not be prosecuted for murder or conspiracy because the withdrawal was an omission without an unlawful breach of a legal duty to continue treatment.


Barber v. Superior Court, 147 Cal. App. 3d 1006 (Ct. App. 1983)