Torchwood: Miracle Day Episode 2

There was a lot less legal content in this episode, but there are still a few things worth talking about. The biggest is probably whether it’s even remotely plausible to cook up an arsenic-related chelation therapy with chemicals available on your standard commercial airliner. The answer is “We haven’t the foggiest.” We’re lawyers, not chemists. But if the show treats chemistry the way it’s treated the law so far, we’re doubtful.  More serious spoilers follow.

I. The Danes “Campaign”

So Oswald Danes is out of jail and actually making television appearances. Last time we suggested that there’s no way in hell Danes was ever going to see the light of day, and even if he did, he’d spend the time until his case is resolved in jail, not on the streets.

What there wouldn’t be is a “campaign” against him, and it wouldn’t need to raise funds. Danes might, because defense attorneys are expensive, but the case is unusual enough that he’d likely be able to find a high-powered civil rights group to take the case for free. Heck, some of the big law firms might actually want a shot at this one. But the state would be represented by its Attorney General, who gets paid a salary. No one’s going to need to donate funds to the “Send Danes Back to Jail” fund. Or, rather, everyone will be contributing, because the lawsuit would be financed by tax dollars. We don’t need to fundraise to prosecute criminals, after all; this is just another aspect of that.

II. Framing the Operatives

By this point, it’s apparent that US federal agents are working at cross purposes. Rex and Esther are being set up by… someone. Specifically, funds have been wired into their accounts, and their desks are being cleaned out. Esther barely makes it out of the building without being detained, and might not have if she hadn’t flirted with the garage guy. Hey, whatever works, right? The question becomes, is this kind of thing possible?

Well it’s completely illegal, but that doesn’t seem to be the point. If a federal intelligence agency wants to set up someone as a traitor, they almost certainly have the resources to do it. Intelligence operatives in particular don’t have much privacy from their employers, who are likely to know their financial account information. And because wiring money to someone isn’t nearly as hard as wiring money from someone, yes, it’s entirely plausible that they could have directed the deposits in question. Again, all of this is illegal, but it’s plausibly illegal.

III. Revamping Hospital Protocols

Another issue is the changing of hospital protocols on the fly. Health care protocols are actually a Really Big Deal because if the protocol doesn’t meet the standard of care then the doctors and hospitals can be on the hook for some serious malpractice claims. So deciding, on a moment’s notice, that instead of treating the most serious patients that hospitals are going to start with the least serious…isn’t going to get approved overnight.

But that doesn’t mean that it wouldn’t happen eventually. Dr. Juarez is right: if no one’s going to die, the priority probably does need to be freeing up as many beds as possible as quickly as possible. And when faced with a truly unique medical emergency—or really any emergency at all—physicians can and sometimes do go outside protocol if, in their judgment, it’s the right thing to do. This may subject them to a malpractice lawsuit after the fact, but here’s the thing: a physician is liable for malpractice only if he deviates from the applicable standard of care. If no one has had to deal with this situation, that standard is going to be either non-existent or really, really easy to meet. And damages for malpractice are supposed to be related to the difference between a good outcome and the actual outcome. If the situation does not permit a good outcome, damages are going to be pretty minimal. So yes, deciding at the drop of a hat to completely rethink the department’s approach is problematic and potentially risky later on, but the situation is dire enough that this probably okay, legally speaking.

Though she may be wrong about one thing: just because no one’s going to die doesn’t mean that treating the serious patients right away stops being important. It’s been established that people continue to age, and this new-found immortality does not seem to have come with a healing factor. Injuries which were permanent before are even more permanent now. So getting to those really sick people right away may be even more important than it was before, because they aren’t going to die, so saving as much function as possible becomes critical. But this is more a medical question, so 1) the only legal implication has to do with the standard of care issue discussed above, which may be moot under the circumstances, and 1) we’re going to leave a more detailed analysis to qualified experts. We aren’t doctors any more than we’re chemists.

III. Conclusion

Really, that’s about it for this time around. The writers seem to have missed the fact that the case against Danes will probably be prosecuted by the state Attorney General’s office, the way the operatives are being framed is plausible enough, and we’re starting to wade a little into medical malpractice. The last one in particular should get more interesting as the show progresses.

See you next week!

23 responses to “Torchwood: Miracle Day Episode 2

  1. Was I hallucinating? Wasn’t that Patrick Dempsey of Gray’s Anatamy making a cameo appearance in the ER scene?

      • I understand he is not credited, that’s what a “cameo appearance” is all about. I could have been wrong.

      • No, “cameo” does not mean “uncredited”. It means, “brief appearance” but is usually limited to brief appearances by renowned actors or actors linked with the series. (Historically, a “cameo” appearance meant that the actor or person was appearing as themselves and not in character but that distinction has been dropped in modern usage.)

        For the author, did you intend to have two 1) points in the penultimate paragraph?

      • Turns out it was an actor named David O’Donnell who bears a close resemblance to Patrick Dempsey

  2. I’d be interested in hearing how insurance companies are dealing with the situation. Life insurance companies must be worried: sure, they don’t have to pay out any claims but if nobody ever dies then there’s no need to buy life insurance. And if your car insurance includes personal injury then your insurance company will be particularly worried because no matter how bad the injuries are nobody is going to die. That means that instead of having to pay a one time settlement to the victim’s family insurance companies are going to have to pay medical bills and make up for lost wages, so it’s a much more expensive outcome. Of course if people maimed in car accidents are sent home because there’s no chance of them dying then insurance companies are going to benefit, so maybe hospitals would be under pressure from insurance companies to do what they did.

    • The life insurance thing really is a problem. They’d probably either wind up going out of business entirely or just transitioning into disability companies. Though even disability companies would have a problem, as there’d be no limit to the amount they’d have to pay out.

      But the liability insurance thing isn’t that big of a deal. Many if not most wrongful death claims are pretty likely to hit policy limits under the existing situation, so the fact that damages are for lost wages for ongoing disability instead of lost wages for death isn’t material. Whether or not the situation is ongoing, insurance companies almost always reach a one-time, time-discounted settlement value.

      Insurance needs can and do serve as an important extra-legal source of regulation, but this takes years, so it’s highly unlikely that insurance companies would be exerting much in the way of influence in the 72 hour time frame we’re looking at so far.

      Of course, even assuming that this problem does eventually get fixed, insurance companies and courts are going to be dealing with the events of these few days for years to come.

  3. Perhaps I just wasn’t paying attention, but my impression was that the fundraising campaign against him was basically lobbying the legislature for a law to say people who survive execution must be kept in jail, or possibly an “it’s illegal to be Oswald Danes” law (which is completely unconstitutional, but at least it’s a -different- problem)

  4. Melanie Koleini

    I haven’t seen Torchwood yet, but if the inability to die does not include healing, how did Dane come back from the dead? If someone is dead then comes back to life, then isn’t that healing almost by definition? If Dane never actually died, then how did he justify getting out of jail?

    Also, if a person has ‘no extra healing ability’ (whatever that means when someone can’t die), then sooner or later the person will lose all cognitive function (the ability to think). The person will ether get brain damage due to oxygen deprivation due to a heart attack or stroke or get progressive dementia (Alzheimer’s disease). Once NOTHING but the brainstem is functional (I’m assuming the brainstem must remain functional because that keeps the heart going), the person is in permeate, irreversible persistent vegetative state. At this point, I’d consider the person dead; the body just didn’t get the message.

    • Ryan Davidson

      That’s just the thing: it’s not at all clear that he did come back from the dead. Which makes the entire argument completely ridiculous.

      How the brain keeps on working in the absence of oxygen is not entirely clear. It’s been demonstrated that a severed head was still alive and not going to die, though it’s not clear what value of “alive” we’re talking about here. Progressive and/or catastrophic brain damage and vegetative states haven’t been addressed yet.

  5. Here’s something I’ve never understood about shows that mangle legal matters. Don’t they all have well staffed legal departments? Would it really be so impossible to actually ask a lawyer? Admittedly these lawyers aren’t likely to have much experience in criminal justice but even in CJU 101 we covered more law than what we see on TV.

    • No, most of them probably don’t have legal departments. Or rather they do, but they’re part of the production company’s greater corporate structure and little to no involvement with the creative process. More’s the pity. Because no, they don’t seem to be consulted with anything like regularity.

      But the other thing is that a lot of TV show scripts are written pretty quickly. A huge amount of work goes into selling the original pitch to the network, and pilots can take several weeks or even months to produce. But individual episodes of network shows are frequently written, shot, and edited in as little as two weeks, especially in ongoing series. So if the writing or production sometimes seems a little hurried, that’s because it is. A show like Torchwood may have a little more time, as it’s basically a one-off miniseries, and shows on premium cable in general tend to have more time and resources, but even then, we’re talking way less time than goes into the production of a feature film.

      Still, we at Law and the Multiverse do maintain that better attention to legal details can and does make for better plots, so we wish it’s something more writers would get right.

    • Chakat Firepaw

      Given the number of times I’ve seen comments from scientific/military advisers that boil down to: “I told them everything they were getting wrong, but they ignored it/didn’t bother bringing me on until it was too late to do anything,” I wouldn’t assume that asking a lawyer would do any good.

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  7. I thought the change to the triage protocol was completely misguided. If they let people with severe wounds sit around for hours while they patch up bumps and bruises, they’re going to bleed out and wind up with permanent brain damage. The golden hour is still golden.

    • Scratch Martin

      Normally I’d agree, but at a certain point isn’t just about every kind of death a result of oxygen deprivation? Whether your vitals stop because of beheading or drowning or burning alive, eventually death results from your body no longer processing oxygen. But in this reality people keep living despite any regular cause of death. This suggests that they have a seemingly endless supply of internal oxygen, or at least some alternative means of powering their biological functions after regular oxygen-processing methods have failed. Perhaps this also renders them immune to brain damage from lack of oxygen?

      • Melanie Koleini

        Good point—Oxygen deprivation causes cell death. If the cells can’t die, then no brain damage. On the other hand, normal aging is, in part, caused by cell death. And apparently, people are still aging.

        Also, cancer is partially caused by cells not dying when they should. If there is no individual cell death, then cancers and other health issues should start showing up in a few weeks or months. All of these confusions could be addressed if the mechanism of the immortality is explained. Maybe some individual cells in a person can still die. Of course, if that’s the case then it may be possible to figure out how to kill a whole person.

        I wonder if it would be legal to try to kill a condemned prisoner if you weren’t sure what would happen. What are the legalities of experimenting with execution methods? Could the state of Texas pass a law saying a felon condemned to death could be killed by any method available?

      • Ryan Davidson

        I’m pretty comfortable saying that the “no one dying” bit makes absolutely no sense at all, biologically speaking. Given that, there are still some fun legal implications to play with.

      • Experimenting with execution methods would probably (and a law saying a felon condemned to death could be killed by any method available would DEFINITELY) run afoul of cruel and unusual.

        Besides, given that even beheading is apparently survivable, I think about the only method left that has even a possibility to work is full cremation, or being completely dissolved in acid… Something that doesn’t leave any cellular remains, thus nothing to stay alive. I’m not sure you could get away with either of those past cruel and unusual either, especially without certainty it would actually work. Maybe with enough experts claiming effectiveness, and a boatload of sedation? Maybe?

        Kinda reminds me: did we ever discuss the legality of cutting off the “suicide”-bomber’s head in ep 1?

      • Death isn’t caused just by oxygen deprivation. I don’t recall the specific legal definition of ‘dead’ in the U.S (though I think that it may have been posted by these two lawyers before) but if your body has been so damaged (such as with decapitation) that it cannot sustain existence long enough for medical attention to arrive it’s generally considered ‘dead’.

        As for cremation or acid that runs into two problems. The first is that such a manner of execution definitely would qualify as ‘cruel and unusual’. Even if they were sedated I don’t think many people could handle the thought of being burned alive. The second is that fire and acids might not be enough. Even with efforts by different individuals and/or groups* DNA evidence can still sometimes be recovered which, by the strange logic of immortality in the show, could mean that they would be able to survive the incineration/acid-base reaction and suffer over and over again before finally (if ever) dying.

  8. It’s really unimportant to mention this point at all, especially since there’s a brand new post today. But, Gyre, I was referring to the biological cause of death, not the legal definition. I went out on a limb and quoted from a biology professor I had rather than law professors. Let’s all take a step back and realize there are other subjects besides law out there. Biologically, cellular respiration continues with the introduction of oxygen, and the ultimate cause of all death is when –through whatever means– the body stops processing oxygen. Bio professors like to teach obscure truths like that, and like how the human body internally is still designed as though for an aquatic environment.

  9. Martin Phipps

    Okay, does “not dying” refer to all living things or just human beings? A cancer cell would still be a human cell but what about viral or bacterial infections? There’d be no way to kill the germs. Oh but as the germs spread by killing healthy cells I guess there would be no way for the germs to spread anyway. Nevermind.

    Wait. If you can’t die (or grow old because that would require cells in your body to wither and die) can you even grow up? I mean will a child forever be a child?

    My question is a biological one and not a legal one. How do we grow? Basically what happens is that cells divide and form new cells. (This is also how bacteria reproduce.) But that requires a cell to split in half. If cells don’t die then I don’t see them reproducing either.

    Anyway, this would be good news if you are worried about cancer because the cancer wouldn’t spread even if you wouldn’t be able to kill the cancer cells.

    It seems to me that if people are truly immortal then acid and fire wouldn’t destroy human cells. People should not only be immortal and ageless but also invulnerable to harm.

    • Only humans are immortal. Everything else dies as normal.

      It’s already addressed that bacteria -are- continuing to reproduce (and that this is a Bad Thing) and that humans are continuing to age as normal (and that this is a Bad Thing too)

      As for invulnerability… Well. Allow me to address that with a link. Note that the… Stuff…. On the table is a living human. Warning: potentially disturbing image:

      Long story short, we’ve pretty clearly got some space voodoo going on here. Leave your biology lessons at the door.

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