Batman: No Man’s Land, Part 2

This is our second post on the No Man’s Land story arc.  The subject this time is a little more serious than the first post in this series.

Following the earthquake and fire, Gotham City hospitals were quickly overwhelmed.  Unable to adequately care for many patients, there was talk of euthanizing the terminally ill.  In the end that plan was not put into effect because of a shortage of the necessary drugs.  We’re not too sure how much sense that makes, medically-speaking, but it raises a question: could doctors or nurses legally end a terminally ill patient’s life if it was clear that care could not be continued following a disaster?  In this case the comics were prescient, since that’s what happened in the aftermath of Hurricane Katrina.

In that case, one doctor was charged with murder but the grand jury did not return an indictment (there were, however, several civil suits filed).  Furthermore, the doctor maintained that she lacked the intent necessary for a charge of either murder or euthanasia.  This is true as far it goes, but there are lesser crimes that do not require an intentional killing, including involuntary manslaughter or even assault.

In any case, three laws were subsequently passed in Louisiana that give healthcare workers additional immunity during disasters.  First, healthcare workers are immune from suits for ordinary negligence (though not gross negligence or willful misconduct) in the provision of medical care during a disaster even if they are compensated for their work.  La. Rev. Stat. § 37:1731.1.  Second, healthcare workers are immune from suits for ordinary negligence and gross negligence during an evacuation following a “disaster medicine” protocol (i.e. evacuating the sickest patients last).  La. Rev. Stat. § 29:735.3.  Third, a “Disaster Medicine Review Panel” will review issues of medical judgment during a disaster, further protecting—although not immunizing—healthcare workers from both criminal and civil liability so long as “good faith clinical judgment” was exercised under the circumstances.  La. Rev. Stat. § 40:1299.39.3.

In the absence of such laws, however, there is little protection for doctors or nurses who euthanize patients in a disaster situation.  After all, necessity is generally not a defense to murder.  R. v. Dudley & Stephens, 14 QBD 273 DC (1884).  And no competent doctor or nurse could argue that they didn’t know that the patient’s death would be accelerated by the administration of the drugs, which makes it hard to avoid lesser included offenses.  The medical community has embraced the doctrine of double effect as an ethical rule that may permit euthanasia in these situations, but it is only an ethical rule, not a legal one.

We conclude, then, that it’s just as well that Gotham’s doctors did not attempt the proposed plan.  There is no statute of limitations on murder, and they may have found themselves at the mercy of a jury once Gotham was rebuilt.

(A side note: Oregon’s Death with Dignity Act would be of little help in a disaster, as the protocol that must be followed requires, among other things, a 15 day waiting period.)