For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Hall. For affirmance -- Justices Schettino and Haneman. The opinion of the court was delivered by Weintraub, C.J. Haneman, J. (dissenting). Justice Schettino joins in the above opinion. Jacobs, J., concurring in result.
Defendant, a licensed physician of this State, was indicted for the involuntary manslaughter of 15 of his patients. He was convicted on 12 counts and acquitted on the other three. He was sentenced to two to four years in the New Jersey State Prison and fined $1,000 on each conviction, the sentences to run concurrently. We certified his appeal before the Appellate Division considered it.
Defendant's specialty is neuropsychiatry. His treatments included intravenous injections of certain drugs and also the infusion intravenously of a saline solution and a surital solution. The State's thesis was that death was caused by serum hepatitis transmitted into the blood stream by these injections and infusions.
The case is unusual. It is unusual in that a physician is charged with crime in pursuing procedures he intended to aid the patient. It is unusual in that there was a common trial
of 15 charges arising out of separate events, and the State's proof included as well evidence of the alleged infection of 25 additional patients who recovered. It is unusual in that the State was unable to prove what precise failure or misconduct transmitted the fatal disease. The issues on this appeal arise from these circumstances, and to see them in perspective, the nature of the disease and the state of medical knowledge must be understood.
Hepatitis is an inflammation of the liver. It may come from sundry causes. Three forms figure largely in this case. One, called "toxic" hepatitis, is caused by certain drugs or chemicals and we gather is noncontagious. The other two, attributed to a virus, are called "viral" hepatitis. One form of viral hepatitis is "infectious" hepatitis and is communicated or transmitted by the fecal-oral route. The other form of viral hepatitis is "serum" hepatitis, and this is transmitted directly into the blood stream by the injection of contaminated material. The State's case depended upon the thesis that the decedents died of serum hepatitis, transmitted into their veins by the injections and infusions which we have already mentioned and which we will shortly describe.
The important fact to be noted is that although infectious hepatitis and serum hepatitis are deemed to be viral, the offending virus or viruses, if there are more than one, have not been isolated and hence have never been cultured. Accordingly there is no way to detect the virus by examination of equipment or drug or solution. Indeed there are carriers of the disease who reveal no evidence of it and who cannot be uncovered by any test. Dr. Hans Popper, produced by the State as a leading authority on diseases of the liver, testified:
"I would like to state that we cannot culture the virus, that is the only way how we can obtain information about -- definite information about the existence of virus, is by establishing in a human volunteer that the certain material is infectious. Obviously there are tremendous limitations in doing so. This is the reason for our limited knowledge of viral hepatitis. This is the reason why I am forced to answer many questions I don't know, I don't think so, it may be so."
Dr. Alexander Duncan Langmuir, Chief Epidemiologist of the Communicable Disease Center of the United States Public Health Service, said:
"* * * The infectious hepatitis in the last four or five years has become one where we have become increasingly realizing how important the total problem is. In addition to the routine reports which are put out each week, we put out rather extensive surveillance reports to specialized persons."
Further, even upon pathological examination of the liver tissue it apparently cannot be told whether the hepatitis is infectious or serum. Thus upon autopsy in any given case all that can be said is that the hepatitis is viral in nature. Whether the disease is the infectious type or the serum type can be only inferred from a survey of a much larger scene and by finding in that scene evidence of the known differences between the two viral hepatitises. One such difference is that the rate of fatality is distinctly higher in the case of serum hepatitis. Another is that the incubation period with respect to infectious hepatitis is two to six weeks, while the period in the case of serum hepatitis is six weeks to six months, or, according to some testimony, as much as one year.
Here the incidence of viral hepatitis among defendant's patients, when contrasted with the incidence of the disease in the locality, convincingly pointed to defendant's office as the place where the infection was transmitted; and that the hepatitis was serum, rather than infectious, was inferable from the rate of fatality, and also, at least in the view of an epidemiologist produced by the State, from the incubation pattern which he found in the dates of illnesses of the 40 patients to whom we have referred. And of course the circumstances that all of the victims received intravenous injections or infusions supplied the final fact without which the diagnosis of serum hepatitis could not have been made.
The record would well warrant a finding that serum hepatitis was transmitted in defendant's practice. We do not mean that there was no serious issue of fact as to the cause of
death of the 15 patients. There was considerable conflict in expert evaluation of the post-mortem findings, and the jury probably acquitted the defendant of three of the charges because it was not convinced that the deaths therein involved were due to serum hepatitis.
We of course must keep in mind that this is a criminal case. In a civil action for damages, the question is whether a loss shall remain where it fell or be shifted to him whose act brought it about. The test there is ordinary negligence -- the failure to behave as would a reasonable man in such circumstances. The issue being only whether the victim or the actor shall bear the dollar impact, the law goes far in permitting the trier of the facts to "infer" both fault and causal connection between the fault and the loss. Indeed, if the total circumstances bespeak a likelihood of fault upon the part of a defendant, the law, for civil purposes, permits a jury to infer negligence even though the precise respect in which there was fault cannot be identified. So here, if the suit were for damages, it could be urged (we of course have no occasion here to pass upon it) that the total picture breathes the probability that defendant was careless somewhere and that his unidentifiable carelessness brought about these deaths. And in that connection, we would not be troubled by the possibility that one of defendant's nurses may have been the careless actor, since for the purposes of civil liability, defendant, as the employer of a nurse, must answer for her fault even though he was personally blameless.
But a criminal case is another matter. The injury to be vindicated is not the personal wrong suffered by the victim but rather an outrage to the State. And the question is not whether a defendant should absorb the dollar loss of his victim but whether his conduct justifies stamping him a criminal and sending him to State Prison. In that inquiry, the test is not ordinary negligence -- behavior of which men of
the highest character are capable. Rather, as phrased in 1 Warren, Homicide (perm. ed. 1938), § 86, p. 424:
"Negligence, to be criminal, must be reckless and wanton and of such character as shows an utter disregard for the safety of others under circumstances likely to cause death."
See State v. Williams, 29 N.J. 27, 40 (1959); State v. Blaine, 104 N.J.L. 325, 327-328 (E. & A. 1928). And whereas a doctor is chargeable in a private suit for the negligence of his nurse-employee, he is not chargeable criminally on the basis of respondeat superior. 1 Burdick, Law of Crimes § 179, p. 231; see State v. Pinto, 129 N.J.L. 255, 257 (Sup. Ct. 1942); State v. Waxman, 93 N.J.L. 27 (Sup. Ct. 1919). "For it is of the very essence of our deep-rooted notions of criminal liability that guilt be personal and individual * * *" Sayre, "Criminal Responsibility for Acts of Another," 43 Harv. L. Rev. 689, 717 (1930). Accordingly, if defendant is to be criminally liable with respect to an act or omission of his nurse, it could not be merely because he was her employer. He could be so liable only if he directed her conduct or assented to it or failed to act with respect to it in circumstances which indicate the same wantonness or recklessness to which we have referred. And finally, whereas in civil matters the plaintiff need prove his case only by a mere preponderance of the proof, yet in a prosecution for manslaughter based upon criminal negligence the State must prove guilt beyond a reasonable doubt, a test which, despite some theoretical devaluations of it, does serve to tell the trier of the facts that a criminal trial is no guessing game.
The proof upon the issue of criminal fault revolved about defendant's procedures relating to injections and infusions. To anesthetize the patient, defendant injected either amobarbital or surital into the vein, using the familiar syringe and needle. The infusions were of two kinds. One was of saline
solution, used immediately after an injection of a drug if the drug was found to irritate the vein. The other solution was a dilute mixture of surital and saline, used to maintain a state of anesthesia first achieved by injection of the drug.
The infusion procedure was the same in both cases. To the bottle containing the solution there was attached a plastic tube of some six feet in length, called a Ven-O-Pak. At the other end of the tube was an adapter designed for attachment to the needle after the syringe was detached from it. The adapter came covered with a removable tip to keep it sterile. Before the infusion was begun, the sterile tip was removed and the solution permitted to run through the tube to clear it of air. If this was done by a nurse employed by defendant, the adapter was recapped with the sterile tip, to be removed by defendant when he connected the adapter to the needle. The bottle was hung in a position well above the patient so that the solution could flow by gravity into the vein.
The actual injection and infusion were done by the defendant and not by a nurse. The infusion was preceded by an injection of the drug into the vein, in which process some blood would enter the needle. When the Ven-O-Pak was attached to the needle, some blood was permitted to enter the adapter to indicate that the needle was still in the vein. Thus in every case the needle and the adapter end of the Ven-O-Pak necessarily became contaminated with the patient's blood.
With this description we can relate the sundry theories in the State's case as to how hepatitis, probably brought into defendant's office by some patient, was transmitted into the veins of the 40 alleged victims. We emphasize that there was no direct testimony as to what transpired between defendant and the deceased patients. The State relied primarily upon defendant's records, voluntarily made available to representatives of the State Department of Health, which disclosed treatments of the deceased in which a drug was injected intravenously. Infusions of saline solution were not noted, defendant testifying that they were used only to relieve the vein from drug irritation and that he did not deem them to be
part of his treatment. The State sought to prove that the alleged criminal neglects were matters of general habit or practice, to the end that the jury could infer that defendant subjected each deceased to them.
We will now list the alleged breaches of proper practice all of which the State contended were of criminal proportions, and we will incidentally comment upon the state of some of the proof in the hope that there will be a fuller presentation upon the retrial we feel obliged to order.
(1) Admittedly the 1000 cc. bottles of saline solution and like bottles of surital solution were used on more than one patient. The average infusion ran between 100 cc. and 200 cc. The State contended that although the blood of a patient would enter only the terminal part of the Ven-O-Pak, nonetheless the virus could in some way travel up six feet of tubing and contaminate the contents of the bottle.
There was no testimony as to whether such multiple use of bottles had ever been found to be a medium of communication of this or any disease. Rather the testimony stressed what a particular hospital or an individual doctor did or did not do, which testimony the defense met in kind. It may be that, if fully explored, the practices were less divergent than a mere statement of them would suggest. Some of the testimony was consistent with the thought that where a patient was being treated for a viral hepatitis, everything used upon him was discarded because so little was known about the behavior of the virus. Or it may be that the unused portion of a bottle of an intravenous solution was discarded because what remained was too little for use upon another patient and the economics involved did not justify retaining the unused portion. What impresses us is the categorical testimony of a defense anesthesiologist that multiple use of bottles of anesthetizing solutions administered intravenously was and remains standard practice in surgery.
It seems to us that there need not be so much dispute upon a matter so commonplace, and that there would not be if the testimony were directed to the underlying issue. The testimony
should reveal (a) whether the communication of hepatitis by multiple use of bottles of solutions has been demonstrated or is merely feared as a probability or possibility, and if so why; (b) whether the profession generally has been alerted to the alleged danger, to the end that a jury can decide whether defendant knew of it or his ignorance was chargeable to a neglect criminal in nature. As to the second facet, we note that when the State's expert, Dr. Dougherty, the director of the Division of Preventable Diseases of the New Jersey State Department of Health, testified concerning his review with defendant of his procedures, he did not say that multiple use of bottles offended a known established criterion, but rather he said merely that "This multiple use of bottles was a serious problem in my mind." Later, in response to the prosecutor's question, "Well, would you use the same bottle on different patients?" he answered "No, sir." That kind of testimony seems to us to be unnecessarily fuzzy. It should be sharpened to reveal what the profession knew and how widespread that knowledge was at the time of defendant's treatment of the deceased.
We have commented upon the state of the evidence for the purpose of guidance at retrial. So far as the present appeal is concerned, the pertinent fact is that the State's contention that multiple use of these bottles constituted criminal negligence was one of the theses before the jury. We add that the State did not prove that the decedents were in fact subjected to an infusion from a bottle that had been used on a patient who already had the disease.
(2) Next the State contended defendant used the same Ven-O-Pak on more than one patient. It will be recalled the Ven-O-Pak is the tube which conducted the fluid from the bottle to the needle. The tube being plastic, it could not be sterilized for re-use. The defense agreed that a tube must not be re-used because the blood of the first patient would contaminate the adapter and use upon another patient would involve an unnecessary risk of infection. In short, as to this, there was no dispute upon the topic of prudent practice.
Rather the question was whether Ven-O-Paks were re-used. The State offered testimony of former patients or members of their families, most of which was intended circumstantially to indicate such re-use. Defendant and his three nurses (one his wife), all of whom are registered nurses, strongly denied any such thing occurred. In this connection the records of the defendant revealed that during the period here involved, January 1, 1960 to October 25, 1960 when defendant ceased to administer intravenously pursuant to an order of the State Department of Health, he had used 116 bottles of 1,000 cc. and 27 bottles of 250 cc. whereas during that same period 918 Ven-O-Paks were used, 27 with the smaller bottles which bottles were not re-used, leaving 891 Ven-O-Paks which were used with the 116 of the larger bottles for an average of 7.6 Ven-O-Paks per bottle. Those figures, if true, would quite effectively destroy the State's thesis as to Ven-O-Paks since they negate the idea that one Ven-O-Pak was used for each 1,000 cc. bottle. The average of 7.6 per bottle squares with the testimony that the average infusion ran somewhere between 100 cc. and 200 cc. We add that the State did not dispute, at least testimonially, the records concerning purchases or the inventory count which figures in the computation and which was made jointly with a representative of the State Department of Health.
Again, as in the case of the bottles of solution, the State did not prove that the decedents received an infusion after the tubing had been used upon a patient who already had the disease.
(3) Another thesis was that the sterilization procedure was inadequate. Defendant used a dry-heat sterilizer, a product which the record indicates to be standard equipment, reputably manufactured and sold. The syringes and needles, after being immersed in a chemical solution for some period and then rinsed, were placed in the sterilizer which was set for 375 degrees F. and were treated for 15 minutes after that temperature was reached. Sterilization is the immediate task and responsibility of the registered nurse who, according to defense
testimony, is trained in that area. This is not to say that a physician has no responsibility to ascertain the sufficiency of the procedures in his office, but rather that the nurse too is apparently expert.
As to this critical aspect of the case, the evidence seems to lack the depth we would think could readily be reached. In the State's case Dr. Popper testified that in his treatise on the liver, published in 1957, he included a short paragraph on the sterilization required with respect to the virus of hepatitis, the contents of which were "taken from the literature, not taken from my own experience." That text recommends autoclaving (a steam process) for 20 minutes at 15 pounds pressure at 121 degrees, boiling in water for at least 10 minutes, or "dry heat at 180 degrees for one hour." Dr. Popper testified he was speaking of centigrade and not Fahrenheit. Translated into Fahrenheit, 180 degrees would equal 356 degrees. Thus an apparent conflict exists between 356 degrees F. for one hour which Dr. Popper had gathered from literature he examined, and 375 degrees F. for 15 minutes which defendant's nurses used.
Defendant and his wife both testified that the figures they followed complied with the directions given by the manufacturer's distributor when they bought the sterilizer. Mrs. Weiner also testified that they coincided with what she had done elsewhere as a registered nurse. Curiously, although the State called the salesman of the distributor to prove the date when defendant purchased an autoclave and the defense brought out from him the standard nature of the dry-heat sterilizer, yet neither side explored the question of manufacturer's instructions as to proper use. We are puzzled, too, as to why the State's witnesses, who are specialists in public health, were not interrogated upon a subject of such obvious significance in the search for the cause of this tragic experience. We should think that authoritative information ought to be available in literature directly connected with the topic of sterilization, and that physicians selecting a sterilization technique would hardly search for an isolated statement in a
book devoted to so specialized a subject as the problems of a single organ of the body. We gather from the testimony that sterilization is taught in nursing schools and in medical schools. If so, there should be available testimony as to what the nursing and medical professions are trained to do.
Again, our comments are for the retrial. For present purposes the pertinent fact is that the jury had before it a disputed claim as to adequacy of the sterilization procedure.
(4) Another possible source was the drug bottle. One former patient testified that on a single occasion defendant, after injecting the needle into her vein, withdrew it, ejected the contents into the sink, and then put the contaminated needle into the drug bottle to refill the syringe. Defendant denied that occurred. The witness did not indicate the size of the drug bottle. Her testimony of course could not establish a habit, but that fact is really of no moment. Its significance on the overall scene is the suggestion that drug bottles could have been the vehicle for dissemination of contaminated material. If, for example, a needle had not been effectively sterilized either because the technique itself was inadequate or because a nurse had failed to follow the established procedures, or a nurse or the defendant had unwittingly contaminated a needle after it was sterilized, the insertion of such a needle into the drug bottle could presumably contaminate the entire contents. In this connection we note that so far as we can find in the testimony, this possible route for spreading the virus seems significant only with respect to surital. As to that drug, the nurses prepared a ...