Barber v. Superior Court

147 Cal. App. 3d 1006, 195 Cal. Rptr. 484 (1983)

Quick Summary

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In Barber v. Superior Court, Dr. Neil Leonard Barber and Dr. Robert Joseph Nejdl faced charges of murder and conspiracy to commit murder for removing life-support equipment from Clarence Herbert at his family’s request. The California District Court of Appeal concluded that the physicians’ actions were lawful, leading to a peremptory writ of prohibition against further action on the complaint.

Facts of the Case

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Following surgery for an ileostomy closure, Clarence Herbert suffered a cardio-respiratory arrest in the recovery room and was placed on life support by a team including Dr. Barber and Dr. Nejdl. Over three days, it was determined that Herbert had severe brain damage and was in a permanent vegetative state with very poor chances of recovery.

Herbert’s family requested in writing that hospital personnel remove all life-support equipment. Dr. Barber and another physician complied by removing the respirator and other life-sustaining devices. Although Herbert continued to breathe independently, he showed no signs of improvement.

Two days later, after consulting with the family again, the physicians ordered the removal of intravenous tubes providing hydration and nutrition, leading to Herbert’s death.

The physicians were subsequently charged with murder and conspiracy to commit murder; these charges were initially dismissed by a magistrate but later reinstated by the superior court, prompting the physicians to petition for review.

Procedural Posture and History

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  1. Dr. Barber and Dr. Nejdl were charged with murder and conspiracy to commit murder before a magistrate in Los Angeles Judicial District.
  2. The magistrate dismissed the complaint after a preliminary hearing.
  3. The People moved under Penal Code section 871.5, leading the superior court to order reinstatement of the complaint.
  4. The physicians petitioned the Court of Appeal for review of this decision.

I.R.A.C. Format


Issue Icon

Whether withdrawing life support constitutes an unlawful act leading to criminal liability under Penal Code §187 (murder) and §182 (conspiracy to commit murder).

Rule of Law

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Murder is defined as an unlawful killing with malice aforethought, but there is no criminal liability for failure to act unless there is a legal duty to act. Additionally, informed consent is crucial in medical treatment decisions, and competent adults have the right to refuse medical treatment.

Reasoning and Analysis

Reasoning Icon

The appellate court examined whether the removal of life-sustaining treatment by Barber and Nejdl was an unlawful act constituting murder. They concluded that stopping life support is not an affirmative action but rather an omission or withdrawal of treatment.

The court reasoned that a physician has no duty to continue treatment once it has proved ineffective and that medical judgments regarding life support should be made based on the patient’s prognosis for recovery of cognitive function.

The court further recognized that while the Natural Death Act allows individuals to refuse life-sustaining procedures in terminal conditions, it does not exclusively govern such decisions; thus, the family’s request for withdrawal of treatment was not legally void.


Conclusion Icon

The Court of Appeal determined that petitioners should not be held to answer to the charges of murder and conspiracy to commit murder, issuing a peremptory writ in their favor.

Key Takeaways

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  • A physician is not required to continue life-sustaining treatment if it is deemed futile.
  • The removal of life-support equipment is considered an omission rather than an affirmative act, which does not constitute murder if there is no legal duty to continue treatment.
  • Informed consent laws protect a competent adult’s right to refuse medical treatment, which includes withdrawing from life-sustaining procedures.

Relevant FAQs of this case

Under what circumstances can omission to act be considered unlawful under criminal law?

Omission is considered unlawful when there is a legal duty to act, and failure to fulfill this duty results in harm. In contrast, if no such duty exists, or if withdrawing action aligns with the recognized standards of practice and respects patient autonomy, it is typically not seen as unlawful.

  • For example: If a lifeguard on duty fails to attempt a rescue when someone is drowning, this omission could be considered unlawful given the lifeguard’s responsibility.


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