Marvel’s Agents of S.H.I.E.L.D.

For most of the first season of Agents of S.H.I.E.L.D. I wondered what on earth I could write about.  Comparatively little of the series raised any interesting legal questions, at least ones that could be answered in any kind of concrete way based on the information presented in the series and the Marvel Cinematic Universe.  For example, S.H.I.E.L.D.’s jurisdiction is still kind of an open question, with the agency operating freely in some countries but not others.  This suggests some kind of treaty, but there just aren’t enough details to do more than speculate.

And then, finally, near the end of the season I received an email from a reader asking some great questions.  Massive spoilers for Agents of S.H.I.E.L.D. below, so if you haven’t seen season one and don’t want to be spoiled, stop reading now.

I’m going to quote at length from Megan’s email, since she did a good job of summarizing the back story leading into her questions:

In the movie Avengers, Agent Coulson is killed by Loki. In the scene where Director Fury finds him bleeding out on the floor, this conversation ensues:

Coulson: “Sorry boss, the god rabbited.”
Fury: “Just stay awake. Eyes on me.”
Coulson: “No, I’m clocking out here.”
Fury: “Not an option.”
Coulson: “It’s okay, boss. This was never gonna work if they didn’t have something to…” *dies*

In the course of the show Agents of SHIELD, we learn that Coulson is still alive and the mystery of how he survived has been a big plot arc. At the beginning, it’s implied that he was only dead for somewhere between 8-40 seconds before he was revived, and that Fury lied to the Avengers about his death in order to motivate them to fight. As the show progresses, however, we learn that Coulson has no memory of his recovery in a hospital – just being on Tahiti with a physical therapist until he was recovered enough to assume active duty again. Then we learn that Coulson was dead for several days before he was revived/resurrected – at which point we see a scene of a rather sinister looking robot doing something to his brain, and Coulson begging for them to just let him die, but his wishes being ignored. From there, we learn that Coulson’s memory was tampered with because it was believed that being brought back to life had left him nearly suicidal, and they were trying to give him a pleasant memory of his recovery to counter any suicidal tendencies.

In recent episodes, we’ve learned that they used an experimental drug (apparently harvested from a Kree) which caused complete cellular regeneration and thus brought Coulson to life. Last night’s episode found us discovering that Coulson knew about this project pre-Avengers and was directly in charge of it. It was designed to save the life of a mortally wounded Avenger, but that while the injuries were repaired, the drugs caused mental degradation and instability, so Coulson recommended that the project be scrapped and never used again. In regards to stopping the mental degradation, he stated that “the only course of action that showed any promise of stemming these side effects was memory replacement – erasing completely the awareness of what they’d been through.” He went so far as to tender his resignation to Fury (whether as the director of this project, or completely from SHIELD is rather vague).

The first question I have is related to the “resurrecting superheroes” posts you’ve done in the past. Coulson was – as far as we’ve been told – an ordinary citizen working for a government agency. Did his speech to Fury in Avengers essentially amount to a DNR request, and what rights did Fury violate by resurrecting Coulson – apparently against his will? I understand life-saving attempts wouldn’t apply in this case, since we do see a medical response team try to bring Coulson back, but given that it was several days after Coulson was declared dead, did Fury have the right to order this procedure done?

Second: If Coulson was brought back and regained enough awareness that he was essentially asking the doctors to “let me die” would they have been obligated to stop the process and allow Coulson to die, or would he have been considered mentally compromised enough to not realize what was happening?

We later learn that Fury considered Coulson an Avenger, at least for purposes of deciding whether to administer the drug.  Ultimately, Coulson seems mollified by Fury’s explanation.  But the questions remain: was it legal to begin the process in the first place and was it legal to continue the process once Coulson was conscious enough to ask for it to stop?

I. Advance Directives and Do Not Resuscitate Orders

In the question Megan refers to a “DNR request”, which is to say a Do Not Resuscitate request, more properly called a Do Not Resuscitate order or directive.  There is a lot of confusion and popular misinformation about DNR orders.  A DNR order is a medical order issued by a physician, typically in a case involving a terminally-ill patient.  The law governing DNR orders varies from state to state, but in general a properly executed DNR is legally binding.

DNR orders must be contrasted against advance directives and living wills, which are non-binding documents that basically amount to suggestions regarding how a person would like to be cared for if they are not competent to make their own health care decisions.  Advance directives can be written or oral, and they will often be respected, but they aren’t legally binding.

So in this case Coulson’s objection to the program would not qualify as a DNR order.  At best it could be considered an advance directive that he did not agree with its use and so certainly would not want it to be used on him.  But once he was unconscious he was no longer competent.  Since his advance directive wasn’t legally binding, whoever held the power of attorney to make healthcare decisions for him (Directory Fury, apparently) was free to ignore it and request use of the drug.  The physicians caring for him were likewise free to exercise medical judgment and decide that using the drug was, in fact, medically appropriate despite Coulson’s objections.

As far as Coulson being declared dead goes, death is generally legally defined thus:

An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.

Since the drug worked and the cessation of those functions was clearly not irreversible, Coulson wasn’t legally dead, though he may have been medically dead from the perspective of any doctor who didn’t know about the secret wonder drug.

II. Competency and the Right to Terminate Treatment

Now we get to an even stickier issue.  For some reason it was necessary for Coulson to be conscious during part of the procedure.  Coulson spent most of that time begging for the procedure to end and to be allowed to die.  The torment of that experience is what was replaced with memories of Tahiti.

If a patient wakes up on the operating table and says they’d rather die than continue in such pain, should the doctors honor that request or go on with the procedure?  What if the patient had previously stated that they didn’t approve of the procedure, albeit in a non-binding way?

The easy answer is to say that it doesn’t matter because Coulson was still incompetent, either because his mind was still in tatters from his injuries, or because of the trauma of the treatment, or because of the influence of whatever drugs he had been administered.  This is somewhat difficult to reconcile with the fact that he was clearly articulating a consistent position on the issue of the use of the drug, but let’s consider the argument anyway.

A common three-part test for determining patient competency is this one:

1. Is the patient aware of his or her needs and alternatives for meeting them?

2. Is the patient able to express a preference regarding the alternatives?

3. Does the patient demonstrate a factual understanding of the risks, benefits, and alternatives of treatment or no treatment?

It isn’t clear from what we see of the operating scene that Coulson understands much more than that he is in pain (either physical or emotional) and wants it to end.  It isn’t clear that, in that moment, he has “a factual understanding of the risks, benefits, and alternatives of treatment or no treatment.”

If Coulson was incompetent, then a lot more deference would be given to the state interest in maintaining human life, and the operation could probably proceed legally, if under ethically questionable circumstances.  Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990).

But if Coulson was competent in that moment, then the doctors had an obligation to terminate treatment because competent adults have the right to refuse unwanted treatment, even if it means dying as a result.  Washington v. Glucksberg, 521 U.S. 702 (1997).

Whether Coulson was or wasn’t competent at the time is difficult to say, but that is what the answer hinges on.

 

64 responses to “Marvel’s Agents of S.H.I.E.L.D.

  1. And that argument’s going to last for a good while yet, yes?

    Betting that Coulson’s going to want to get a good teams of both doctors and laywers in a room together dealing with updating medical care policy within the organization if he manages to get it revived.

  2. Philo Pharynx

    There’s an interesting conclusion here. Once this treatment has successfully been used, then nobody dies legally until their bodies reach a point that this procedure won’t help them. We know it works after a couple of days. It’s probably that it will work on people who have been dead longer, though possibly with more side effects. Even if you are revived in a vegetative state, you are stll alive.

    This would have major ripple effects through many other laws.

    • That’s true only inasmuch as the drug is available. It isn’t clear at this point that there’s any of it left, nor the means to synthesize it. Coulson wasn’t dead because he was, in fact, revived. I should have included the other part of the definition of death: “A determination of death must be made in accordance with accepted medical standards.” ‘Accepted medical standards’ presumably includes the availability and effectiveness of life-saving therapies.

      • Philo Pharynx

        Okay. If it’s only available in limited circumstances, then it would be easier to treat the rare resurectees like people presumed dead who are later found alive. It’s also unclear if Coulson was ever declared legally dead. It’s unlikely that Skye was.

      • James Pollock

        “That’s true only inasmuch as the drug is available. It isn’t clear at this point that there’s any of it left, nor the means to synthesize it.”

        But that uncertainty cuts the other way, too. You don’t know if anyone else has the process, the materials or just extra doses left over from the research phases. Once you know it’s possible, you have to take on the possibility that it can happen again. (The example I’m thinking of of post WWII atomic weapons. Nobody could know how many of them we had on hand, and we didn’t know how long it would take anyone else to get one… but we had to start thinking about what we’d do when they did.)

        S.H.I.E.L.D. should be absolutely paranoid that some hostile power can and will stumble on the correct Super Soldier serum again, for example.

      • Thanks for answering my questions, James! So much fun to finally get an answer on something that was bugging me ever since the beginning of the show!

        My understanding was that all of the “miracle” drug was kept at the Guest House facility where Coulson was revived/resurrected, as was the alien body it was synthesized from. When Coulson and his team arrived looking for the drug to cure Skye, they tripped an alarm that began a countdown and led to the complete destruction of the facility, including the alien body and any remaining samples. Presumably then, unless they acquire another alien body to work with, there’s no recreating this serum.

        Of course, we find out in the last couple of episodes that the season’s over-arching villain was with Coulson’s team at the time and stuck a couple of vials in his pocket before they got out, but he does use them later on himself. The only way to know if there is anymore of the drug would be to find out if any of the doctors who worked on the project might have slipped a sample out, but I find that doubtful.

        I’m still wondering about the legality of the memory replacement technique though – even if they only replaced the memory of the trauma that the resurrection procedure caused, there’s really no way to know what else they might have altered/removed. Clearly, they removed any of Coulson’s memory of handing in his resignation, and being the director on the resurrection project, so they didn’t just limit it to the traumatic memories of the resurrection. Is this, again, something Fury would have been able to authorize as it doesn’t seem to have a direct impact on the truly traumatic memories they needed to erase in order to keep Coulson sane.

      • James Pollock

        “I’m still wondering about the legality of the memory replacement technique”

        In general, or in Coulson’s case specifically?
        I think in Coulson’s case, there’s an argument that he authorized it, since he recommended that if the resurrection protocol were used, it should include memory alteration (that doesn’t answer the underlying question of whether or not the resurrection protocol was authorized, but once it was started, legally or not, I think you can fit Coulson’s known statements to a theory that he authorized the memory replacement.

        Memory replacement as a general case is a can of worms (and remember, there’s no indication that memory replacement can only be done as part of a resurrection). Imagine the fun, if it turns out that the flashback to agent Ward’s past was fabricated and inserted after Ward joined S.H.I.E.L.D.

        Total Recall is based on that, and the novelization explores the theme quite a bit, although I assume purists would prefer the Philip K. Dick short story.

      • The movie Dark City also tackles the question “Are you who your memories say or can you be someone different?”

      • “I think in Coulson’s case, there’s an argument that he authorized it, since he recommended that if the resurrection protocol were used, it should include memory alteration”

        I don’t know if that would apply. He never said that it should be used, just that it was the only thing they found that kept the subject’s mind from deteriorating into insanity or causing the person to commit suicide.

        To quote from the scene in question: “…but after the initial physical recovery, the subjects began to deteriorate mentally, displaying hypergraphia, aphasia, catatonia, or just complete psychosis…the only course of action that showed any promise of stemming these side effects was memory replacement – erasing completely the awareness of what they’d been through and even those results were very inconsistent. To be clear, I’m recommending the termination of Project T.A.H.I.T.I. Under no circumstances should these procedures or drugs be administered to anyone, ever. The cost is far too great.”

        Even if you could get away with saying that he authorized it, however obliquely and vaguely, I don’t see how that excuses the fact that they erased/replaced memories that had nothing to do with the trauma itself (his resignation, the memory of being the project director, the existence of the project itself…) Who knows what else in his mind that they might have tampered with? Even Coulson may not know unless he runs into someone who mentions something he has no memory of.

    • James Pollock

      “This would have major ripple effects through many other laws.”

      Yes. If a person can be revived after deadly trauma, use-of-deadly-force in defense of self and others gets sticky. One the one hand, the use of deadly force should not be authorized; on the other hand, it doesn’t matter if it IS used.

      Hypothetical: Avenger A falls in combat, “killed” by bad guy B. The other Avengers rally and defeat bad guy B. Avenger A’s body is taken back to Avengers Tower and with the idea of using the resurrection process. However, before they can start the process, Avengers Tower is attacked by bad guy C who completely destroy’s Avenger A’s body.
      Is bad guy B guilty of murder? A isn’t dead until he’s resurrected and dead, right? With no dead guy, there’s no murder, right?
      Is bad guy C guilty of murder? He’s destroyed a body which was lifeless at the time, right? No intent to kill a living person means no murder here, either? So you can get bad guy C on the abuse of a corpse charge, at least. Unless a felony murder charge can be somehow applied?
      Can you get BOTH of them for wrongful death torta?

      • Actually yes – both bad guys would be guilty of felony murder, since they were both committing felonies resulting in the death of a person (Avenger A).

      • James Pollock

        Merger doctrine means that the assaults can’t form the basis of a felony murder conviction.

        Bad guy B can’t go down for murder because, at the time he was subdued, there’s no dead body (since a dead body isn’t dead until the resurrection process has failed, and bad guy B and bad guy C are not acting in conspiracy, so you can’t hang bad guy C’s murderous act on bad guy B (the other way to get a felony murder conviction.)

      • Seems like this would be comparable to cases where B fatally injures somebody, then C interferes with the treatment, particularly if the interference is malicious.

        Obviously if B shoots A, and that person dies on the operating table, then B is guilty of murder. If C, say, takes the operating room hostage or attacks the ambulance or whatever, especially if for the specific purpose of preventing A being saved, surely then C is just as guilty of murder as B?

        I mean, obviously, both B and C have committed criminal acts of one form or another, but are you saying you can’t you accuse both of them of murder?

      • Martin Phipps

        This is where a coroner comes in: the coroner concludes that the victim died as a result of a gunshot wound so even though D punched him, E slapped him and F fed him poison, B is the one guilty of murder.

      • And that is where B’s lawyer comes in and starts arguing against that.

        This kind of thing must surely have some legal precedence somewhere; there must be real life examples to look to. Imagine if B was just some panicking kid and instantly regretted firing the gun, while C was a vindictive psychopath who wanted A to die. It would be monstrous to think that C would get away with murder in that regard (even if, in my examples, he’s still in trouble for other stuff).

      • Martin Phipps

        That’s called “intent”. If B didn’t intend to shoot A then his lawyer can get the charge reduced to manslaughter or criminal negligence. If B intended to kill A then it is murder, although if he immediately regrets it then it probably wasn’t premeditated and would therefore be second degree murder (as opposed to first degree murder).

        If is not enough though to establish intent though: you also need to be responsible for the death. If C sees A bleeding by the side of the road and just stands there and watches him die without rendering aid or calling an ambulance then he obviously intended for A to die but he did not murder him. It would be the same if he prevented someone else from helping, say a doctor or ambulance driver: assaulting a doctor or ambulance driver would be a crime but it wouldn’t be murder.

    • James Pollock

      “Even if you could get away with saying that he authorized it, however obliquely and vaguely, I don’t see how that excuses the fact that they erased/replaced memories that had nothing to do with the trauma itself”

      That’s a side effect of the way memory works… memories are interlinked in ways that are not linear. It’s a kind of error-checking algorithm. If you’re like me, you occasionally misremember what day it is, but cues linked to memories will set me straight (“Why isn’t there any mail today? It’s Satur– wait a minute.”) At first, that seems like the present stimuli is what makes the difference, but it’s tied to memory. I remember that there’s no mail on Sundays.

      So a memory replacement HAS to stretch out and affect other things in order to be effective. A simple erasure (ala Men in Black) is noticeable and may prompt investigation.

  3. Phil has the photos of himself in a duly-labelled body bag. His name, printed in Stratum 1 Bold, on the body bag. I’d say that a legal declaration was filed.

  4. This all assumes that the operation took place in a location subject to US laws.

    • Yes and no. It’s true that I made that assumption, but it does not follow that if the operation took place in, say, Canada that the result would be different. Many countries have similar laws on a variety of subjects. It’s possible that Coulson could have been taken to a country that would allow medical intervention that would have been illegal to perform in the US, but I suspect that doing so would itself be illegal.

      • I’d expect an organization such as S.H.I.E.L.D. to use a secret base in (or above) international waters, not a foreign country. The question of the legality of transporting his body outside of the country is an interesting subject though. Bodies are transferred for burial, so it is possibly legal.

      • In this case though, the base where Coulson was resurrected was buried under a mountain in – I would assume – an unnamed country. It is clearly stated that the “Guest House” is a decommissioned World War 2 bunker, which to me says somewhere in Europe. Given that in the episode right before their discovery of the drug they were in Italy and were en route back to America before they discovered the Guest House’s location, my guess is that, at the very least they did transport Coulson overseas for the treatment.

        Besides, once Coulson returns to the base, he begins to have vague memories of having been there before, during the treatment, so we know that this is the base in question.

      • James Pollock

        If the project is designed to be used on Avengers, a mostly American lot, you’d think the facility would be in America. This would be especially true if the process is affected by how long the patient has been dead.

        In any case, America has jurisdiction over what Americans do, even if they are overseas.

  5. Oliver Neukum

    As he is an armed agent of a supranational defense agency, doesn’t that make him a soldier? Is he allowed to refuse treatment that affects his readiness for combat?

    • At least as portrayed in the MCU I don’t think S.H.I.E.L.D. is a military organization. Coulson is no more a soldier than a CIA agent who might also carry a weapon.

      In any case, at least in the US, soldiers still have a right to refuse treatment. The refusal may ultimately result in being subject to a court martial, but there is still a right to refuse treatment.

      • The Helicarriers’ mere existence – as well as their attached air wings – would argue for at least para-military. At minimum.

      • Why? There’s nothing about the equipment used by an agency that makes it automatically part of the military. Police forces all over the US now use weapons, vehicles, and other equipment that would have been considered the sole province of the military half a century ago (e.g. fully automatic weapons, routine use of body armor and armored vehicles, helicopters, drones). That doesn’t make them part of the military.

        In the TV series, S.H.I.E.L.D.’s primary modes of action (prior to Project Insight and its fallout) were investigation, containment, and arrest. In other words, domestic law enforcement, which the US military ordinarily cannot do. Whereas it’s precisely the sort of thing that the FBI does.

        S.H.I.E.L.D. agents are just that, agents. That’s the term used for civilian employees of agencies like the FBI and CIA. They don’t have military ranks, and they are not soldiers. They don’t wear military uniforms in or out of the field.

        A lot of people are hung up on this notion that S.H.I.E.L.D. is part of the military, apparently because they like the idea or because they think it helps explain plot issues. I don’t think it’s very well supported by the canon, and it doesn’t actually help explain much of anything (see my comment above for why it won’t help in this case, for example).

      • I might argue that SHIELD is a international law enforcement agency – maybe they take the place of Interpol in the MCU, but without as many member countries? Avengers started Natasha’s introduction in Russia, and it was implied that she was on a mission for SHIELD when Coulson called her back.

        Plus when they go after Bruce, Natasha brings what appears to be an entire armed SHIELD Strike Team with her to India, and they seem to have freedom to try to contain Loki in Germany. We don’t see any fallout with the Germans protesting SHIELD invading their airspace with the Quinjet, for instance.

        So not military, but definitely with some international jurisdiction.

      • “Plus when they go after Bruce, Natasha brings what appears to be an entire armed SHIELD Strike Team with her to India, and they seem to have freedom to try to contain Loki in Germany. We don’t see any fallout with the Germans protesting SHIELD invading their airspace with the Quinjet, for instance.”

        There’s also an AoS episode (don’t remember the title, it’s the one that introduces Gravitonium or whatever it’s called) in which it’s mentioned that SHIELD is not allowed to operate in the country where the villain’s compound is located, as that country has refused permission for them to do so. (They, of course, then completely proceed to ignore that and go in anyway, but there’s some acknowledgement among them that they’re operating off-book.)

    • James Pollock

      “There’s nothing about the equipment used by an agency that makes it automatically part of the military.”

      When we’re talking about rifles, I tend to agree with you; police agencies have access to many of the same firearms that military forces do. But S.H.I.E.L.D. has nuclear munitions. They’re not military, but they’re about as close as a civilian agency can come without being one. It would be wrong to try to apply the UCMJ to S.H.I.E.L.D. and it’s agents, but it isn’t ridiculous to assume that they might have their own field of law that applies, which, like the agency itself, is similar two what the military has. For example, S.H.I.E.L.D. seems to have authority to seize and sequester property extrajudicially.

      • Bingo.

        Until Winter Soldier, They had flying aircraft carriers, attached air wings, nuclear weapons, and Agents of SHIELD has Fitz referring to submarines and spacecraft in the asset mix as well.

        What Coulson’s team – and others like it, probably – was doing was also part of the toolkit, and that work probably did a lot more good for human society. But from the beginning, they were an offshoot of the Allied military. Spun out of the Strategic Scientific Reserve, right?

      • Martin Phipps

        > But from the beginning, they were an offshoot of the Allied military.

        This is not clear. From the Agent Carter One Shot, it seems that Howard Stark was in charge. How can a civilian (other than the President) be in charge of a military organisation?

        As for nuclear weapons, in the Iron Man movie Obadiah Stane said to Tony “Your father gave us the bomb.” I took that to mean that Howard Stark was in charge of the Manhattan Project. In fact, while it was not stated, I would argue that the SHIELD facility that got destroyed in the Avengers movie was Los Alamos. It seemed to exist primarily for military research. Note that Nick Fury’s title is not “General” but “Director”. It could be that SHIELD’s main function is military research and the agency grew out of the need to maintain secrecy.

      • James Pollock

        “How can a civilian (other than the President) be in charge of a military organisation?”

        Rather easily. Military personnel swear to obey the orders of officers appointed over them… but it doesn’t specify that those officers must be military officers.

        Every diplomatic embassy we have has a contingent of guards who are military… and the whole shebang is under the control of the State department, not Defense. Utimately, they still report to the President, but there’s a lot of civilians in that chain of command.
        (Director Fury is ALSO Colonel Fury in the movies, right? Because S.H.I.E.L.D. is paramilitary, you’d want a retired military officer to run it, much like the V.A.)

  6. James Pollock

    I think it’s a mistake to use a definition of death used in our universe, where death is permanent, applied to a universe where death is not necessarily permanent (and there’s precedent in the Marvel Cinematic Universe, Cap). If you have a resurrection process which may or may not work, you need a definition that sets time and cause of death appropriately.

    I think the proper analysis from Fury’s point of view is that Coulson is dead when treatment begins, therefore his advance wishes are immaterial. If the treatment fails, he is still dead. Assuming the S.H.I.E.L.D. has some kind of authority as to the disposal of its agents’ remains, as does the military, then Fury is within his rights as a duly authorized agent of S.H.I.E.L.D. to order the treatment. During the treatment, they followed his advance orders… which were if the treatment is used, do memory replacement. Once the treatment is completed and Coulson is resurrected, AND confirmed to be competent, then he’s able to make his own decisions, which are, of course, pending for season 2.

    This isn’t a case of possible medical battery; it’s a case of possible abuse of a corpse.

    The question of the definitions of “life” and possibly “death” are set to be explored in Avengers 2… Is Ultron alive? The Vision?

  7. I don’t know about the MU, but the Vision was quite clearly identified as a living human being made out of synthetic materials when he debuted (though later writers, such as John Byrne, presented him as a machine). Legally that’s another question, but he has Avengers ID status which would seem to argue yes.

  8. As followup questions — presuming that he was competent, does Coulson have standing for a civil suit against S.H.I.E.L.D. and/or Director Fury? Does the semi-covert status of S.H.I.E.L.D. leave them shielded from such suit per Totten v United States? Could Director Fury be left personally exposed? Can Coulson sue for damages from pain and suffering when the direct memories were erased; or alternately, sue for the injury of the memory erasure?

  9. James Pollock

    “does Coulson have standing for a civil suit against S.H.I.E.L.D. and/or Director Fury?”
    I don’t see why he wouldn’t have standing. Fury might have some kind of immunity, though.

    The problem, as I see it, in pursuing a civil suit is that the jury might disregard instructions and award either no or nominal damages, feeling that being resurrected is worth the price Coulson paid.

    • S.H.I.E.L.D. seems to be a part of the American government in the MCU, although there may be some room to question that. If it is part of the American government, then the sovereign immunity doctrines would apply. Of course, the government is sued all the time, but those are pursuant to situations where the government has waived immunity. I am not sure if any of the waivers would apply here to an entity like S.H.I.E.L.D.

      • James Pollock

        Wouldn’t the Tort Claims Act apply?
        My understanding is that intentional torts by law enforcement agencies (but not military) are included under the TCA.

      • Quite possibly, that is the biggest of those waivers I mentioned. I think it depends on how SHIELD is classified. If they are classified as something other than law enforcement, it may well not apply. Even if it does apply, it removes punitive damages and since he arguably benefitted in the end, without the punitive damages he may be left with nominal damages if he could sue.

      • James Pollock

        “If they are classified as something other than law enforcement”

        Isn’t the “L” in S.H.I.E.L.D. for “Law Enforcement”?

        (Checks Wikipedia)
        Hmmm. Apparently not any more. But the E is now enforcement… what are the “enforcing”?

  10. James Pollock

    Different followup:
    Do the next of kin of any of the many, many S.H.I.E.L.D. agents killed in action have a claim because this treatment was intentionally withheld?

    Does the fact that it seems doubtful that this treatment has gone through FDA approval make a difference?

    • The fact that because the side effects were considered catastrophic, the drug was not going to be submitted for consideration by the FDA – or the equivalent agencies in other SHIELD-allied nations – wouldn’t have an effect on class action suits?

      (Assuming that word of GH-325 ever got out to the public in the Romanova Infodump…)

      • James Pollock

        Is that the reason the process wasn’t going to be submitted to FDA, or was it the desire to keep the process (and its origins) secret?

        The process WAS available and it WAS used, successfully. Wouldn’t a family deprived of a fallen S.H.I.E.L.D. agent have a complaint that not only wasn’t the process offered, it was never considered?

        Not a class action suit, as the class is too small… agents killed, on duty, where the S.H.I.E.L.D. commander or medical staff knew of the existence of the treatment

    • I doubt it. What obligation does SHIELD have to provide every conceivable life saving technique to its agents?

      The Emergency Medical Treatment and Labor act requires hospitals to provide reasonable treatment to stabilize someone brought to them in an emergency situation regardless of ability to pay or many other factors. But in this case, the agent in question is already stable, namely dead. But the hospital is generally required to try to stop them from deteriorating further, not ensure they necessarily improve. And its not clear that act would apply to S.H.I.E.L.D. (other than SHILED run hospitals anyway).

      Even if they had some obligation to use “best efforts”, this treatment sounds like it was in early experimental stages. They probably aren’t legally required to use something that wasn’t even ready for full scale testing much less FDA approved.

      And even if they could have used it and had some obligation to use best efforts, the drug seems to be in short supply. Much like organs in short supply from donors, the agency would likely be justified in carefully selecting what patients it is used on.

      • James Pollock

        “What obligation does SHIELD have to provide every conceivable life saving technique to its agents?”

        The same duty every other employer has to provide a safe workplace.

        “Much like organs in short supply from donors, the agency would likely be justified in carefully selecting what patients it is used on.”
        When an organ becomes available, it goes to the best matching candidate. They don’t say, well, we have some kidneys, but we’re not giving them out to anybody, in case we’d rather give them to someone else later.

        You can get away with withholding treatment in a triage situation (“you’re gonna die anyway, so we’re working on this guy instead”) but that doesn’t seem to have been an issue until after the Winter Soldier (still haven’t seen it, it isn’t out on DVD yet.) when S.H.I.E.L.D. stops being, well, anything anyway. But between Coulson’s death in Avengers and the destruction of the Guest House, there were agents killed who could have been healed, but S.H.I.E.L.D. withheld that option. Yeah, it’s a stretch from “causing death” to “causing death to remain permanent”. but it feels wrong, like it should be a tort… that if such a thing were possible in the first place, tort law should cover withholding it.

      • James, I see where you are coming from, but I have to respectfully disagree.

        Yes, employers have a duty to take reasonable steps to provide a safe environment. But they only need to take reasonable steps. There are plenty of dangerous professions still. And providing a difficult to administer, rare, only partially tested drug to your employees seems to be going well beyond reasonable steps for safety.

        You have a point about the organ donor thing. That anology was less than perfect.

        But that doesn’t change the other facts. With some exceptions for things lik emergency stabilization, a medical provider is generally not required to use extraordinary measures if those measures are costly and no one is going pay. I have known people that had great difficulty getting potentially life saving cancer treatments because their insurance didn’t cover it.

        And that applies to treatments that are generally accepted and approved. When we talk about something not yet approved, still experimental, loaded with side effects, and in extremely short supply so that using it on one person means it won’t be there for the next then I think that really seals the argument.

      • James Pollock

        “providing a difficult to administer, rare, only partially tested drug to your employees seems to be going well beyond reasonable steps for safety.”

        That’s a good reason why S.H.I.E.L.D. shouldn’t have to fund, develop, or implement resurrection treatment. But that isn’t the question. It was funded, developed, and available… but withheld. You’re comparing a situation where something is difficult (or expensive) to make available. I’m talking about something that is right there, not being used.

        Before they became available, putting an automatic defibrillator into the workplace would not have been a reasonable thing to require. But if one is in the office, and the manager decides not to use it, that’s harder to justify, isn’t it? Airbags are expensive, but you still get to sue if it doesn’t deploy in an accident, right?

        “in extremely short supply so that using it on one person means it won’t be there for the next then I think that really seals the argument.”
        Two things… you need an argument for why it would be available for one person and not another. Then you need an argument for why it would be withheld from someone who needed it against the POSSIBILITY of someone else needing it.
        Then, there’s the actual fact pattern… they didn’t use it, even though there were supplies of the drug and the equipment was available (this is during the period between treating Coulson and the destruction of the Guest House.)

        They’d have an argument along the lines of “this is dangerous and shouldn’t be used”, except they chose to use it on Coulson (and possibly undisclosed others.)

        The closest parallel is deploying troops into Iraq without sufficient body armor or IED-resistant HUMMV’s. It would be one thing if nobody had them, but some did, and some did not. The military is exempted from the Tort Claims Act… is S.H.I.E.L.D.?

        I suspect that rather than contest the very fluid legal issues, S.H.I.E.L.D. would have paid out undisclosed settlements or “death benefits” with an attached waiver of liability.

      • Philo Pharynx

        I question the word “develop”, as the treatement still had major side effects. Given the severity of those side effects it could be actionable for somebody to use this drug on somebody without informed consent. Which is not possible when they are dead.

        Which brings up th other point. They are dead and their employment with SHIELD is terminated. SHIELD has no responsibility for their health at that point.

      • This would be like using a defibrilator if there was a high chance of the defibrilator leaving you in permanent pain or saving your life but damaging your brain.

      • James Pollock

        “Which brings up th other point. They are dead and their employment with SHIELD is terminated. SHIELD has no responsibility for their health at that point.”

        At this point you move out of Agents of S.H.I.E.L.D. into Monty Python.
        Hold on! He’s not dead yet!
        Well, he’s mostly dead…

        When does death occur? If it doesn’t occur until S.H.I.E.L.D. decides not to use the resurrection process, then S.H.I.E.L.D. is responsible for the death.

        “Since the drug worked and the cessation of those functions was clearly not irreversible, Coulson wasn’t legally dead, though he may have been medically dead from the perspective of any doctor who didn’t know about the secret wonder drug.”

      • Philo Pharynx

        “Since the drug worked and the cessation of those functions was clearly not irreversible, Coulson wasn’t legally dead, though he may have been medically dead from the perspective of any doctor who didn’t know about the secret wonder drug.”

        As Mr. Daily stated above, legal death is detemined by “Accepted Medical Standards”, which says that these people are dead when their brain stops. Most SHIELD personnel don’t know about the secret wonder drug, let along the general medical community. In terms of the law, these people are dead, dead, dead – with a side order of dead.

      • James Pollock

        “This would be like using a defibrilator if there was a high chance of the defibrilator leaving you in permanent pain or saving your life but damaging your brain.”

        I’ve been defibrillated, twice, btw.

        If the “dead” patient regains consciousness, THEN we can consult him as to what his options are, going forward. But we don’t foreclose them in advance without a really, really good reason. (A DNR order, triage situations, or the like.)

        An unconscious person may need medical attention, or they may want to be left alone. Should we leave them alone, in case that’s what they wanted, or should we give them medical care they visibly need? Do we prosecute first responders for medical battery if it turns out they just wanted to be left alone? No, we expect them to deliver lifesaving treatments as needed. Well, this lady with the two bullet holes in her needs some Guest House drugs.

      • James Pollock

        “As Mr. Daily stated above […] In terms of the law, these people are dead, dead, dead – with a side order of dead.”

        I quoted Mr. Daily’s conclusion, which is that they are not legally dead.
        I’m not sure where your conclusion is coming from, but it is at odds with the conclusion presented at the end of section I of the article.

  11. “Then we learn that Coulson was dead for several days before he was revived/resurrected…”

    At what point does a DNR order run out? What rights (if any) does a corpse have? The only cases I know that even come close are cases where a funeral director has held the remains of a person sort of hostage until someone pays the bill for services rendered, and the courts seem confused as to who “owns” the remains.

    Lets say in 25 years we have nanobots that can, with 100% success, repair and revive a person who’s been dead for 24 hrs. Does the deceased have any rights to stay dead? Would it be a decision for next-of-kin? If there was a conflict between next of kin (let’s say two brothers), then what? If an injunction is issued to stop the procedure while the courts review the question, and the clock runs out for doing the procedure, can the blocking party be charged with, I don’t know, retroactive homicide? Would that be civil matter?

    • James Pollock

      “Then we learn that Coulson was dead for several days before he was revived/resurrected…”

      This explains why Coulson is always looking for braaaaaaains.

      “What rights (if any) does a corpse have?”
      Fear of premature burial is a real, if not widely-held, belief. People with this fear have gone to great lengths to assure themselves that if they wake up in a casket six feet under, they can do something about it. Not to throw dirt on people who have this belief, but although you can do things like purchase a casket with and escape hatch or a way to summon aid, you can’t guarantee that you’ll actually be buried in it. Assuming you have supportive next-of-kin, though, you can stuff like being buried behind the wheel of your favourite automobile.
      In fact, regadless of the law, you can sometimes get what you want… if you have live friends willing to risk the law to give you your final desire, such as having your ashes mixed with the dirt of the infield at Wrigley Field or having one last party weekend with your friends Andrew McCarthy and Jonathan Silverman.
      Of course, if you get revived and wanted to stay dead, you can always reverse the procedure (well, you can in Oregon, not sure about other states.)

  12. BTW, I find your site endlessly fascinating. Keep up the great work!

  13. My understanding is that before beginning a medical procedure, the patient signs a power of attorney. That is, “While I’m in the operating room, I am surrendering my rights to make decisions concerning my care. That authority is vested in ______ until I am in the recovery room.”

    Thus, Coulson’s “let me dies” would, in theory, have no legitimacy from a legal POV. It would be up to his surrogate to make any such decision.

    • I don’t know about that, Al. Given the state he was in would he have been able to sign anything?

    • That would make sense if this had been a planned procedure, but this was an unplanned emergency procedure. Furthermore, Fury justifies his actions based on the need to save an Avenger (i.e. Coulson), not “because your duly appointed attorney-in-fact for medical decisions decided that it was what you would have wanted.”

      • James Pollock

        My understanding (drawn at least in part from television, so suspect) is that if a person is not conscious, treatment may be given unless the person doing the treatment is aware of the patient’s wish to not receive care.

        This is done because public policy is that people should be treated for their injuries rather than having doctors stand around worried about being sued for touching the patient.

        Having thought about this for a couple of days, it really comes down to a determination of whether a patient who undergoes this procedure was a person who was alive, then dead, then alive again, or whether they are a person who was alive the whole time but in an EXTREMELY vegatative state between their “fatal” injury and receiving the “resurrection” treatment.

  14. One thing I would like to see answered is how ould this drug effect civil laws as well. Lets say agent Coulson had the equivalent of SGLI through SHIELD.
    1. Agent Coulson dies.
    2. Through bureaucratic mismanagement (no one told them about the resurrection treatment) the Personnel Office at SHIELD files this as death in the line of duty.
    3. ABC Insurance Company sends a check to Coulson’s beneficiary. (For added fun, lets say that Social Security and the IRS gets in on this too.)
    4. After his resurrection treatment, ABC (along with Uncle Sugar) learns that Coulson is alive, and sues for a return of it’s money.
    5. Coulson’s beneficiary countersues, saying that he was really dead.

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