Iron Man 3: Surgery and Homicide

In this, our third post on Iron Man 3, we consider the question of whether Dr. Aldrich Killian could theoretically be criminally liable for the deaths of people injected with Extremis, or certain deaths caused by Extremis patients. The idea here is fairly straightforward. Deliberately doing something that one knows has a reasonable likelihood of killing someone else which actually does result in their deaths definitely constitutes some species of homicide offense in most jurisdictions. But surgeons do precisely that all the time, engaging in acts which, given only minute alterations, can be either life-saving or horrific. Every time someone goes under the knife, there is an at least minor chance that they will die on the operating table, and more serious conditions justify undergoing riskier procedures. Extremis has been shown to possess incredible restorative properties, including the regeneration of lost limbs, but it does carry with it certain risks. As such, which homicide offense, if any, would be the most appropriate to charge Killian with, and would he have any defenses?

Spoilers within, so be forewarned.

I. Homicide and Extremis

For starters, let’s figure out which homicide offense is most applicable here. We’re going to leave aside the question of felony murder with regards to Killian’s larger plan to, among other things, assassinate the President, because that’s too easy, and it hides the more interesting question of the use of Extremis independent of any larger nefarious plots. But we should start by looking at felony murder related to the use of Extremis as such. We can rule out assault as an underlying felony, because that isn’t allowed to serve as a basis for felony murder. That would make almost all killings felony murder. The question is whether conducting unauthorized, unethical medical experiments is a felony.

Turns out. . . it doesn’t seem to be. It’s certainly a violation of medical ethical standards and definitely of the regulations–mostly federal–set up around human subject experimentation. But I can find no statute, state or federal, which actually makes it a crime, let alone a felony, to conduct these sorts of experiments. There was a bill proposed in the Senate in 1997, the Human Research Subjects Protection Act of 1997 which would have made experimentation without informed consent a felony, but it never made it out of committee. So it doesn’t seem that these sorts of medical experiments would be illegal by virtue of their violation of federal regulations, but not federal statutes, and thus would not constitute felonies which might serve as the basis for a felony murder charge. We need to find some way of charging the homicides directly.

First-degree murder doesn’t seem to be a good fit. In the movie, there are actually very few, if any, uses of Extremis with the deliberate intent to kill. Killian injecting Pepper is arguably the main exception, but even there it doesn’t seem like he had any intent to kill her. Cause her significant pain, certainly, but it doesn’t seem that he expected her to die, at least not initially. She doesn’t die, and there’s no room for an attempt charge (no specific intent, so no murder, and you can’t attempt a reckless crime) so no murder charges there. As to his other uses, Killian’s goons voluntarily submitted to the procedure, impliedly because they had all suffered severe physical trauma for which there was no other cure. Now consent is no defense to any charge involving serious bodily injury, but the facts here suggest that Killian’s use of Extremis does not seem to expose him to a charge of deliberate, premeditated murder. He does not seem to have possessed any intent to kill most of the time, and the movie suggests that in certain dosages, the odds of death were pretty low.

But some lesser homicide charge does seem appropriate. This seems a good example of an offense variously called “involuntary manslaughter” or “reckless homicide” in various jurisdictions. The core of the offense is killing someone with a reckless or grossly negligent act. In Pennsylvania, this would be involuntary manslaughter under 18 Pa. Cons. Stat. § 2504. In Indiana it would be reckless homicide under Ind. Code § 35-42-1-5. Here we’ve got Killian et al injecting people with a serum that everyone knows poses a serious risk of killing the subject and quite possibly those around him. The consent of the patient is irrelevant, because again, one cannot consent to serious bodily injury or death. And clearly, other people who die as a result of the injection going badly could also serve as a basis for homicide charges. But that charge would be something like involuntary manslaughter or reckless homicide, because Killian’s mens rea is reckless, not deliberate or knowing. He’s doesn’t actually seem to want anyone to die, and he certainly doesn’t intend to kill most of the people he injects, but he is aware of and consciously disregarding a serious risk. That’s recklessness, so if death results, that’s involuntary manslaughter or reckless homicide, depending on the jurisdiction.

This would also likely be true for people killed by Extremis explosions. This is to be distinguished from people deliberately killed by Extremis patients. Unless ordered to do so by Killian, the intentional acts of Extremis patients would probably break the chain of causality and foreseeability between bystander deaths and Killian. Manufacturers aren’t generally liable for murders committed with their products under a common law theory of products liability, so an Extremis patient using his powers for evil, on his own initiative, wouldn’t be a problem for Killian. But because Killian was aware of the risk of people being injured or killed by Extremis patients blowing up, that would be just another known risk he was disregarding. Reckless homicide/involuntary manslaughter for those deaths too.

II. Defenses

But as mentioned above, surgeons engage in something which is arguably very similar every day, i.e., engaging in a procedure which carries with it a known and sometimes very serious risk of death or serious bodily injury. I don’t think many would seriously argue that a surgeon should be criminally liable for anything for performing a surgery to which the patient consents, even if there’s a bad outcome, so we’ll assume that and move on. The question is why something like Extremis wouldn’t fall into the same category. After all, it’s intended to both cure grievous wounds and even provides some measure of improvement to the human condition.

I think the courts would probably draw a distinction on the basis that most surgeries constitute bona fide medical procedures, whereas injecting someone with Extremis does not. This is where the complete disregard of existing medical regulations comes back into play. If Killian and A.I.M. had worked within the human research subject regulatory system, there wouldn’t be any real question that they were doing above-the-board research, and there would be significant liability shields for any resulting deaths or injuries. People do, in fact, die during legitimate, real-world medical trials, but a researcher who complies with all of the appropriate regulations and gets all of the appropriate permissions isn’t likely to even be criminally investigated. But a surgeon who simply makes up a new procedure and starts using it without telling anyone is going to get in serious trouble. Basic premise here: a researcher who complies with the rules of professional ethics and applicable medical regulations is going to be insulated from most criminal charges, but stepping outside of those rules and regulations will potentially expose him to criminal liability.

So no, the fact that Extremis had some potential medical benefits is not likely to work as a defense here. It seems very unlikely that a court would recognize injecting someone with Extremis to constitute the kind of bona fide medical procedure which could ground that kind of defense to criminal charges.

III. Conclusion

If all Killian had done was develop and inject Extremis, he would likely be vulnerable to charges for involuntary manslaughter/reckless homicide. He was acting in conscious disregard of a known risk of death or serious bodily injury, and death/serious bodily injury resulted. The fact that he was arguably performing some kind of medical experiment won’t help him, because he failed to comply with the regulations in place for medical experimentation. Further, because the experiments injured not only the patients, but people close to the patients, he would probably be liable for their deaths too.

18 responses to “Iron Man 3: Surgery and Homicide

  1. Would good samaritan laws (or at least the policy shield him from liability for at least some of the deaths?

    I have not really researched this or seen the movie (I’m going after finals), but you said that at least some of his goons had suffered trauma for which there was no other cure. It sounds like he was making his best efforts to save another person who was at risk of dying. Good samaritan laws in many states seem like they would shelter him from liability for that.

    Of course, Good Samaritan laws are generally meant to provide for protection from civil liability, but it seems the same policy concerns could motivate a judge or jury to find that the actions while extreme were not reckless under those circumstances. Of course, the actions still have to be reasonable and there has to be imminent peril. But if they have really suffered a physical trauma to the point that this radical treatment is their only hope of recovery, then it sounds like there was some form of imminent peril (blood loss and shock can be fatal after all) and if it was their only hope for recovery it sounds like there may be at least an argument that it was reasonable under those circumstances.

    By the description, it sounds like has plenty of other deaths to answer for, but could he avoid liability at least in the case of his goons?

    • Timothy, the patients were all soldiers who had been injured (amputations and presumably other injuries), but they were in no immediate danger of dying. Killian largely recruited disabled veterans for his program. Extremis was used as a form of rehabilitation/augmentation, not as a life-saver. I don’t think Good Samaritan laws come into effect if there isn’t immediate danger to the individual being rescued.

      • Thanks, that makes sense.

        I haven’t seen that movie yet and going from the description in the post I was envisioning him using Extremis on his goons immediately after a fight in which they got battered. Coming along and using it while they are in a fully stable condition long after the fact would definitely not be covered.

  2. Christopher L. Bennett

    I’m afraid you’re overlooking something rather huge. Those Extremis explosions were not accidents. We saw that Killian’s henchman, the one that Happy Hogan tailed to the Chinese Theater, gave another Extremis patient an injector that evidently triggered him to explode (probably by giving him an overdose of Extremis), a terrorist act that the Mandarin promptly took credit for. It’s safe to assume that all the other bombings the Mandarin took credit for — which, remember, involved no detectable explosive devices — were the result of deliberately triggering Extremis patients to explode. So Killian was knowingly using Extremis to kill people, both the “suicide bombers” themselves and the bystanders killed in the explosions. He may not have injected them with the terminal overdoses himself, but he pretty clearly ordered his henchman to do so.

    • I think that’s correct. Killian was using “failed” Extremis patients as human bombs, without their knowledge — in other words, they weren’t willing suicide bombers. Extremis seemed to create a physical dependency as well as possibly some psychological effects (see Philo, below).

    • Melanie Koleini

      Even if the Extremis explosions were unintentional, Killian created the Mandarin to take credit for the carnage. If Killian knew explosions due to Extremis were inevitable, and conspired to create the Mandarin to take credit for the accidental explosions, wouldn’t he still be guilty of terrorism?

      Could Extremis (or a person using Extremis) be classified as a weapon of mass destruction? After all, if Killian had built a bunch of bombs and handed them out, he’d be guilty of quite a few crimes.

    • Ryan Davidson

      I’m not overlooking that, I’m setting it to the side, because it’s not a very interesting issue. Obviously, if Killian is using Extremis to create human bombs, willing or unwilling, he’d be liable for that. But whether and if so how he’d be liable solely for the use of Extremis is an interesting question all of its own, and that’s what I’m looking at here.

      • Melanie Koleini

        But could using Extremis (even if you aren’t trying to blow up anything) count as creating a weapon?

      • James Pollock

        Creating an explosive device is illegal whether or not it is detonated.

    • They were explicitly NOT deliberate explosions. Every single one of them was in fact an accident, because they could not predict who would blow up and who wouldn’t, which was part of the problem with the serum- it reacted differently with each individual. Although Killian eventually did figure out that these sort of things were inevitable and decided to capitalize on it. The Mann Chinese Theatre was an accident- you can see the henchman is surprised and worried when the man starts to blow up, plus he hung around to fight Happy Hogan when he should have high-tailed it out of there (even if he does have superhuman healing powers, he is not invincible nor would he have wanted to be seen walking away from an explosion unharmed). The worse you can say is that the meeting was arranged to be at the Theatre because in the event the man DID blow up, it would have a lot more impact compared to, say, if he blew up in his house. In other words Killian was probably deliberately having these meetings take place in “useful” locations.

  3. Philo Pharynx

    Another issue that might complicate some of the murders committed by extremis patients – does Extremis have any psychological effects? If so, how would this affect the case?

    Most of the Extremis patients we saw were criminally violent. It appears that they were mostly injured veterans. While people serving in the military often have aggressive personalities, they tend to have a lower rate of criminal offenses than civilians. Even Pepper was uncharacteristically violent after receiving Extremis. (Admittedly, she was provoked)

  4. James Pollock

    “The consent of the patient is irrelevant, because again, one cannot consent to serious bodily injury or death.”
    Isn’t consent the defense to causing serious injury or death in the sporting context? (Boxing, notably, but other sports as well).

    • Yes, but significantly there you are not consenting to serious injury or death. You are consenting to a participate in a sport which contains a relatively low chance of bodily injury or death along with certain fairly specific torts (assault and battery in boxing) within the context of that sport.

      That consent and its protections evaporate for a participant if they intentionally do things outside the standards of the sport (which has resulted in some cases about what exactly is within or outside of the normal participation of some sports like football).

      • Philo Pharynx

        For example, if a baseball outfielder throws a ball to a baseman and hits a runner, they wouldn’t be liable for the injuries because getting struck by a thrown ball is something that a reasonable person would expect to happen once in a while. If the baseman tackles the runner, this is outside of the normal practice of the sport and they would be liable for any injuries they caused. (though Tackle Baseball would be an interesting sport.

      • James Pollock

        There is a case of baseball player being killed by a thrown ball. Throwing a solid object at a person’s head or torso is assault everywhere but on the baseball diamond. Plunking a batter has a long, proud history in baseball. It’s against the rules, but it’s a risk every player except AL pitchers take.
        In boxing, the entire goal of the sport is to deliver a blow to the opponent sufficient to cause a brain trauma big enough to cause unconsciousness, which sometimes results in serious injury or death.
        In football, legal blows can result in serious injury, even death. The rules and equipment are being adjusted to lower the risk, but everyone playing football knows that every play could be their last.

  5. Are you sure the mere violation of FDA testing procedures wouldn’t violate any laws? Violations just removing liability shielding seems like it’d be a recipe for people to break FDA regs so long as their treatment actually worked, which in practice would mean everybody who thinks they have a “sure thing” would be ignoring the regs. Or is FDA sanction just needed for actually selling medications/treatments?

    • Melanie Koleini

      In practice, companies care about FDA regulations because they want to sell their product in the US. A lot of drug researchers already conduct trails in other countries because of costs. But if the FDA won’t accept the research results, the product can’t be sold in the US so FDA rules get followed even if the drug is being tested in Xanadu.

  6. Pingback: The Iron Man and the Yellow Face (spoilers for Iron Man III. You’ve been warned) | Fraser Sherman's Blog

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