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.