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.
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!