MJ's doc's defence: poor excuses

The prosecution expert witnesses have been nearly impeccable, genuinely expert, confident enough to respond to mischievous questions deliberately asked outside their very considerable areas of expertise, clear (some tended to talk a bit fast, but that's common), and leaving no real room for any genuine expert to disagree with them. And patient, even when needled by the dour Mr Flanagan.

 What can the defence do?

If one were unwise enough to undertake the defence of someone in Murray's position, it would be extraordinarily hard to come up with any argument or evidence to defend him. They tried at times to challenge the prosecution experts, but those gentlemen were far too excellent to leave room for serious challenge.

I really wonder what sort of witnesses could claim to be expert in anything and to have something helpful to say on behalf of Murray. I have seen two named, and there seems to be something awfully sneaky in how they are being used. Murray has so far chosen not to testify - that is his right. But his team seems to be trying, successfully so far, to sneak in a lot of self-serving and untested, unproven claims he is making through the backdoor.

An exception to the hearsay exclusion

The police statement tape was a stroke of genius - it enabled the court to hear what Murray wanted to say, without him being cross-examined or needing to prove anything he claimed, none of which can be assumed to be factual. And the detectives were listening, but not questioning, let alone interrogating, him.

Now one hears that the two experts for the defence have been allowed to interview Murray at length and he has provided them with more information, claims and excuses, which were not made available to the prosecution. Normally, such information would be excluded as hearsay evidence. The court cannot rely on what you say someone else told you.

But expert witnesses can be an exception to this. Experts are allowed to testify as to what people told them, otherwise, for instance, no doctor could testify as to how he formed a diagnosis based on what the patient told him. But it would be grossly unfair if the jury were misled into accepting stuff Murray may have invented, and which he is not allowing to be properly tested in court.

I have very rarely come across someone so comprehensively negligent in every aspect of the handling of a case -  it would be really hard to suggest anything at all that Murray did right. We may assume that some of the feeble defences his lawyers have argued come from their client, as no real expert could have suggested them, and most lawyers would be embarrassed to even raise them.

The servant-doctor claim

One line they seem to be trying is to suggest that Murray had no choice but to obey, faced with an important patient adamantly demanding a dangerous treatment he wanted to receive. Of course this is nonsense. A doctor is a professional, bound by ethical codes of conduct, and not a servant; he cannot be expected to meekly whisper "Yes, Boss" and do what the patient orders.

If the treatment requested is the wrong one, and would have risks that far our-weigh the possible benefits, as in this case, it is his absolute duty to refuse to provide it. Dr Kamangar responded to this with elegance and clarity.

One doesn't, as Flanagan indignantly suggested, just abandon the patient and tell them to find another doctor. One discusses the issues, to understand why the patient wants something harmful, and one explains the good reasons one has for refusing, outlining other and better alternatives.

If the patient when fully informed, still refuses your advice (something I consider necessary informed dissent, to balance the need for Informed Consent when the patient accepts your advice), then you're supposed to help them find another good doctor, and meanwhile help them the best you can, without abandoning your standards.

Why did Murray behave so disastrously? 

This issue is a crux of the sad story. Why, we must ask, did any doctor, behave so dangerously as Murray did?  He's not stupid, and he's not badly trained, so he must have understood the risks to which he was exposing his patient, even if he chose to ignore them. He was not trying the best that even he could, to treat Jackson as well as possible, or he would have called in the advice of experts on drug addiction and dependency, sleep problems, and drug therapy. He was a cardiologist, and until his heart stopped due to the propofol, Michael Jackson did not have cardiac problems. Murray was working outside his areas of expertise. Why ? 

He reportedly has had serious financial problems for some time. He seems to have ingratiated himself into the Jackson family group, more as a sort of kindly GP. But once he had the chance of a meal ticket, of $150,000 a month, maybe he feared losing that lucrative post.

Perhaps he feared that if he stood up to Jackson, if he refused to supply everything the man asked for, he might be replaced. There's sadly no shortage of Dr Feelgood types everywhere, and especially in LA. Jackson seems to have had a history of doctor shopping, and of using multiple doctors each devoted to making him feel good and doing whatever he wanted. He would not have expected Murray to be any different.

I wonder what the details of Murray's contract were. Were all medical expenses, and the provision of any assistants or other medical or nursing assistants, to have to come out of his own monthly stipend? And was he therefore stingy, choosing to provide no assistants and wholly inadequate equipment, to save himself cash? If his employers genuinely wanted MJ to be properly cared for, could they otherwise not have been persuaded to provide a nurse anaesthetist to assist, and for proper monitoring and other equipment?  Did he ask for this, and was he refused ? 

In the end, did Michael Jackson die because of three main factors, only one of which is being closely examined in court? He was being cared for by an inadequate and dangerously subservient doctor; he demanded dangerous treatments he had found satisfying and convenient; and those responsible for his care were perhaps too concerned to save money than to ensure that every possible facility was available.

 (Professor MA Simpson, aka CyberShrink, October 2011)