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[Preliminary version]

I.

When people deliberately do things that are almost certain to cause death, and someone dies as a result, prosecutions for homicide are normally appropriate. However, the administrative conduct of health maintenance organizations (HMOs) seems to be an exception. Unwarranted delays and denials of medical treatment are not prosecuted even in cases where the HMO personnel must have known that their actions would lead to death or grievous bodily harm. This article considers the basis for this exception.

Homicide can be committed by commission or by omission--by affirmatively doing a lethal act or by omitting to do an act that is necessary to preserve another's life. There is, however, an important legal difference between the two: In order for a fatal omission to be considered a crime, the omitter must have had a legal duty to act, and the victim's death must result from a breach of that duty. Such legal duties may arise in various ways. For example, a legal duty to provide care is imposed on the parents or legal guardian of a child. Such a legal duty may also be created by contract, for example when a person agrees to provide care for another. Consider the following case:

In deciding not to save his nephew, D has clearly committed a homicide by omission. He had a legal duty to act, he breached the duty, and the child died as a result. The uncle's motivation to gain a financial advantage is obviously not an acceptable excuse for letting his nephew die. Indeed, financial motivation seems, if anything, to aggravate the seriousness of his crime.

Suppose now that, trying to reduce its medical costs, an HMO breaches a legal duty to one of its subscribers. It breaches this duty by wrongfully denying treatment benefits that would, if timely provided, have preserved the subscriber's life; the subscriber dies as a result. How is such a case legally different from that of the uncle? Certainly there seem to be some salient similarities. In both cases there has been a deliberate breach of a legal duty to provide essential care. In both cases, the lethal omission was inspired by a motive to secure a financial advantage, even at the expense of human life. In both cases, someone has died due to the breach of duty.

There may, of course, also be salient factual differences between the two cases. For example, medical patients who are so ill that they die from lack of treatment are often so close to death that they would soon die anyway, even with all possible care. By contrast, the case of the avaricious uncle seems to presuppose that the young nephew had a long life ahead of him, provided only that he were saved from drowning. This is, however, a difference without a legal distinction. Criminal liability for causing death is not relieved by the victim's pre-existing health condition or the fact that the victim was going to die anyway. "Life is at best of short duration" and, given the inevitability of eventual death, the law is clear that "[m]urder is never more than shortening of life," even if only by a day. It is, moreover, always a characteristic of omission-homicide cases that there are other causes of death than the omission alone. What makes fatal omissions into crimes is, precisely, the defendant's wrongful failure to avert such other causes.

The HMO case presents another potentially salient difference from that of the avaricious uncle. They differ in respect to the origin and scope of the legal duties in question. The HMO's duty is contractual and is subject to stipulated exceptions while the uncle's duty is rooted in a status relationship and is relatively unconditional. However, despite these differences in the origin and scope of the legal duty, once it is shown that the duty has in fact been breached, the cases would seem legally the same. That is, assuming the HMO breached its contractual duty by refusing to authorize timely care, the HMO and its decision making personnel would seem to be in exactly the same legal position as the avaricious uncle--criminally liable for the death that results. Death-by-omission should be the same thing legally no matter who happens to be the omitter.

To my knowledge, no HMO entity or personnel have ever yet been criminally prosecuted for wrongful delay or denial of treatment authorization. It may, however, be only a matter of time before such prosecutions are attempted. Already there is a growing interest in civil actions for the harms that ensue when people, relying on HMOs, suffer or die because benefits are denied. There is, moreover, considerable disquiet about the federal limitations on HMO liability that were enacted by Congress in the Employee's Retirement Security Act (ERISA). However, the ERISA exemptions do not apply to criminal laws In many cases, criminal prosecutions may therefore be the only effective avenues of redress.

In any case, criminal sanctions may actually work better than mere civil damages to motivate HMOs to authorize the medical treatments that their subscribers are contractually entitled to. One of the biggest disadvantages of allowing civil damages against HMOs is that the companies can simply shift the burdens of those "penalties" back to the subscribers, in the form of higher premiums. For the HMO, the amounts paid out as damages in lawsuits become just another cost of doing business. As a result, civil damages for wrongful treatment denials may actually work against the interests of the HMO's subscribers and patients, increasing premiums and diverting scarce resources away from medical care into judgments and lawyer fees. When people subscribe to HMOs, what they are primarily seeking is quality medical care, as needed, not a right to get cash "compensation" after the fact, when life-or-death treatments have been denied. Money is a poor recompense for a permanently impaired quality of life or the loss of life itself. It little serves the person denied benefits, or his surviving family and loved ones, to let an HMO get off with merely paying damages, which it can pass on to subscribers, instead of delivering the benefits it has promised in its contract.

The legal agreements that people make with HMOs are no ordinary commercial contracts. The due performance of these agreements can be vital to life itself. As long as HMOs are able to shift the costs of their breaches, it may never be possible to minimize the numbers of wrongful HMO denials. The only way to prevent HMOs from shifting the penalties for wrongful denials is to impose a cost on wrongful denials that the HMO cannot shift. This is, of course, the classic function of the criminal law--to impose costs on bad behavior that offenders cannot shift. A wrongdoer cannot shift a prison sentence and cannot shift a death penalty.

Although capital punishment is a dramatic response to administrative errancy, it is nevertheless a response that the majority of American states have selected to deal with and deter lethal behavior. And, beyond a doubt, a denial or delay of medical treatment, done with the knowledge that the patient will likely die, is nothing short of lethal behavior. While I do not personally endorse capital penalties, for medical denials or anything else, the fact is that they are prescribed by the laws of most states for cases where people's conduct proves deadly. In the social debate about the role of HMOs, our nation's commitment to capital punishment must recognized as part of the background. It must be recognized, too, that a potential for criminal prosecutions, whether for capital or non-capital offenses, would give HMO decision makers a strong incentive to treat subscribers right, avoiding delays and unwarranted denials of treatment authorization. With prosecutions a possibility, the public could feel appreciably more secure against wrongful medical care denials in any situation where the patient's life might be shortened or health seriously compromised.

In short, while many approaches to the regulation of HMO decisions have been proposed, the most straightforward approach may be simply to enforce the existing rules of criminal law, rules to which our society turns routinely to address a wide range of harmful activities. First of all, just noted, the criminal law has the advantage of subjecting wrongful treatment denials to a penalty that cannot be shifted back to subscribers. Secondly, criminal prosecutions offer advantages with respect to proof. Medical decisions and judgments are necessarily discretionary, and it may be almost impossible for a civil plaintiff to demonstrate in an individual case that economic considerations played a role, much less an improper role, in an HMO's decision to deny benefits. In a homicide prosecution, by contrast, the needed evidence can be obtained by such well-tested prosecutorial techniques as, for example, offering leniency to subordinates in exchange for testimony against their superiors, the individuals directly responsible for forming HMO policies. Thirdly, as already noted, the criminal law is not superseded by ERISA, so the current federal barriers to civil lawsuits would not stand in the way. Finally, as will be outlined below, the criminal law on lethal and other injurious activities is rather clear. The only real questions seem to be factual. Did the HMO refuse to authorize treatment benefits in a situation where there was a legal duty to approve and provide them promptly? Were the HMO's decision makers aware of the risks imposed on the patient? Was the patient's life shortened or health impaired as a result?

This article will, in Part II, first provide a brief examination of the economic pressures that market forces bring to bear on HMOs and their decision-making personnel. The objective is to show how the natural effect of normal market forces is to exert a constant pressure towards treatment delays and denials, particularly in the cases of elderly and chronically ill patients. Part III will provide an overview of the existing criminal law as it applies to situations in which death results because someone has violated a legal duty to provide medical treatment. In Part IV, the question of the requisite mental culpability will be discussed. Finally, after concluding that the criminal law provides, in its present state, a rather clear basis for homicide prosecutions of HMO personnel who author lethal treatment denials, a short Postscript will consider some further policy implications of HMO homicide prosecutions.

II.

In the past couple of decades, HMOs and other managed care firms have taken on a dominant role in the health care field, with for-profit HMOs now accounting for nearly two-thirds of the total HMO market. Typically, these corporations have acquired the power to make essentially final decisions about who receives medical care, what kinds of care they receive and when they can receive it. This situation has led to much concern in many quarters, and with some reason. In the fall of 1996, the Journal of the American Medical Association (JAMA) reported an extensive study of the medical outcomes for patients who had been treated in HMOs. The study concluded that "elderly and poor chronically ill patients had worse physical health outcomes in HMOs" than under traditional insurance plans. For example,"[t]he elderly treated in HMOs were nearly twice as likely to decline in physical health over time." By contrast, younger, healthier and financially better-off patients "did at least as well in HMOs as in the FFS [fee-for-service] plans." Other studies have generally confirmed these results: While HMOs serve the "average, healthy enrollee" about as well as traditional health insurance, they provide "worse outcomes . . . for vulnerable groups (ie, the seriously ill, the mentally ill, and the poor)." For anyone familiar with the elementary laws of economics, this difference in medical outcomes should come as no surprise.

First, consider the context. Most large HMOs are publicly traded on national stock exchanges and, as such, their securities are in daily competition with those of other corporations. The financial results of their operations are under close and constant scrutiny, and they are compared with those of other HMOs, by Wall Street analysts and others. This public market activity means that HMO executives are under steady pressure to make their companies perform well financially. If they do not keep medical costs down and profits up, the price of the HMO's stock will fall and the jobs of its managers will be in jeopardy. When compensation packages are tied to profits or include stock options in the HMO's securities, the decision makers have an even greater personal interest in the financial success of their company and its market valuation. The market does not reward them for saving lives at stockholder expense.

Looking at the world through the eyes of a rational HMO executive, the company's clientele can be divided into two groups: First, there are the subscribers who will probably pay more in future premiums than they will cost the HMO in future medical services. This is the "net-positive" clientele. The other group is net-negative. It contains the subscribers who will probably cost more in future medical services than they will ever pay in future premiums. Members of the net-negative group include the most seriously ill, those who have only a small chance of recovery, as well as the chronically ill people whose diseases are both lingering and expensive to treat. The "net-negatives" are perhaps typically, though not always, elderly. Young or old, however, they are the subscribers whose medical prognoses make it improbable that they will ever be anything but unprofitable business for the HMO, a net financial drain on its bottom line for the rest of their lives. They are not the kind of customers that a rational HMO manager would normally want to have.

By tallying up and correlating the medical diagnoses, prognoses, treatments and outcomes of the HMO's subscribers, the actuarial staff of an HMO can make fairly reliable estimates of who does and does not fall in the "net-negative" group. Then, whenever a subscriber requests approval for expensive treatments, the HMO's medical-review staff can check the subscriber's file and make a straightforward monetary calculation. If the calculation shows that the subscriber will probably turn out to be "net-positive," then it is in the HMO's economic interest to promptly approve payment for the requested medical treatment. This will keep the subscriber happy and, so, the HMO will more likely retain the subscriber's business. Given normal economic incentives, it is no surprise that the JAMA study reported that younger, healthier people generally did well under HMO systems.

The matter is, however, entirely different in cases where the HMO's prognosis-based calculations would show that the subscriber will probably turn out to be "net-negative." It would not be at all in the HMO's economic interest to extend the lives of net-negative patients. That would just prolong a losing proposition. The financial problem for the HMO is far greater than merely being unable to recoup the immediate out-of-pocket treatment costs. For many serious diseases, such as certain forms of cancer, prompt and comprehensive treatment can prolong the patient's life very substantially. If timely diagnosis and treatment extends an ailing patient's life by, say, five years, those five years might mean additional millions of dollars in treatment costs to be borne by the HMO. Consequently, when an HMO gives prompt and comprehensive treatment to the chronically ill, it risks taking on a stream of financial costs that can go on indefinitely. In terms of HMO economics, this can mean a tremendous increase in the lifetime cost of a subscriber who is already a net drain on the HMO's finances. The economic incentive to avoid aggressive diagnosis and time-critical treatments of certain kinds of ailments is therefore obvious.

Economically rational HMO managers know that their company's stock price depends on the bottom line. They know that every dollar spent on a net-negative patient is one less reason why the HMO's securities should command their current prices on the national stock exchange. With jobs and personal wealth ultimately on the line, the economically rational HMO manager can hardly help wondering how to minimize, somehow, the financial burdens posed by the HMO's net-negative subscribers. The chief financial question that they present for the HMO is: How long?

What particularly exacerbates this somber economic reality is the fact that medical decisions are necessarily discretionary and never exact. Medical professionals can in complete good faith differ substantially as to what therapies are called for or necessary in a particular case. When this intrinsic indefiniteness is combined with the pressures to minimize the net-negative clientele, a potent and scary synergy can emerge. Especially in cases of serious illness, there are ample leeways within which to conceal an economic biasing or tilt against an HMO's net-negative subscribers. It is not so easy for an objective outsider to say with confidence that a given delay or denial was motivated by financial as opposed to medical considerations. Adding to the cover is the fact only a relatively small delay in testing or treatment can make a life-or-death difference in medical outcome. If a company implements its cost-containment measures by means of subtle signals and hidden incentives within the plan, a deliberate policy to selectively delay or deny benefits would not necessarily be obvious to persons familiar only with one or a few isolated treatment decisions. In short, a quiet and low-key bias against treatment authorizations to the net-negative clientele would be relatively hard to detect medically, but it could have a very buoyant effect on the company's bottom line. This is a tempting combination.

Even though treatment biases might be difficult to detect in isolation, however, they would tend to be felt in the aggregate, showing up for example in comprehensive surveys such as the JAMA-reported research referred to earlier. The inferior medical outcomes registered by elderly and poor chronically ill patients in HMOs might be entirely a matter of coincidence, with no relation to the market incentives that surround HMOs, or they may be a result of deliberate policy choices. Whether or not intentional, however, the effect is the same. It is an effect that coincides exactly with the sort of decision bias that would well serve an HMO that is trying to cut its losses from net-negative patients. Assuming that HMO managers behave in an economically rational way, such a bias with respect to the elderly and chronically ill would be a normal and expected effect of ordinary market forces and incentives.

In some ways these economic realities faced by HMOs are similar to those that apply to traditional "fee for service" insurance, but HMOs are in a particularly strong position to deal with these realities. Under fee-for-service plans, the insurance company is more at the mercy of the patient's own doctor or health care provider. The doctor or provider makes the treatment decisions, and the insurance company pretty much has to pay for whatever treatments are ordered. Even with a growing tendency towards enhanced utilization reviews and other cost-containment measures in the fee-for-service sector, the fact remains that a fee-for-service insurer leaves health care providers with far more independence and subjects them to much less direct pressure to keep treatment costs down. In fee-for-service it is the doctor's own professional judgment that generally controls medical decisions, not the insurance company's.

By contrast, it is both the genius and the great weakness of HMO-type managed care that final treatment decisions are reserved to the ones that pay the bills. Its strength is that it keeps the costs down, but its weakness is that it eliminates the checks that are inherent in the old and arguably less "efficient" fee-for-service system. As doctors and other health care providers come to depend more and more on HMOs for their own personal livelihoods, they will naturally feel stronger economic disincentives to press for medical tests and treatments. By resort to various techniques, such as "economic credentialing" of physicians, secret bonuses to deter expensive treatments, utilization "profiling" and "capitation" (paying doctors a set annual amount per patient), HMOs have proven quite adept at keeping most important decisions about treatment expenditures to themselves. This is fine for those subscribers who are generally in good health and thus likely to be a future profit source, so the HMO will want to keep them happy. It is, however, not so fine for the patient who needs a time-critical medical treatment but whose HMO would be financially better off if the patient were already deceased.

To state the problem bluntly, there is a potentially lethal economic flaw in the HMO concept. The flaw is that the final say on whether a person gets life-extending treatment is consigned to an entity that can have a strong economic interest in seeing the subscriber dead, as soon as possible. The shorter the lives of the chronically ill, the less the HMO will have to pay for their care. No one would think it fair to hold trials before judges who have personal financial stakes in the outcomes. Yet, this is precisely the way that the HMO concept is structured. That is, arguably at least, a very serious flaw.

It can equally argued, to be sure, that this feature in the HMO concept is not a flaw at all. The recent growth of HMOs is apparently due in major part to the hope that they can provide health care services at less societal expense. A key part of their strategy for doing this is that they combine the roles of decision maker and bill payer, which gives the HMO both the incentive and the ability to say "no" to expensive medical treatment. In purely economic terms, this represents the great advance of HMOs over the old fee-for-service system. A disproportionate share of national medical spending goes for people in their last few months of life, a substantial skewing of resources to people who are about to die anyway. The HMOs' enhanced ability to say "no" to costly life extension is perhaps (depending on your viewpoint) the biggest service that they provide to society. By being systematically disposed to say "no" more often, HMOs have the ability to keep down the insurance premiums of healthy people while, at worst, shortening lives of those already near death. If you do not mind looking at things this way, then HMOs are the way to go.

Actually, I believe that, to date at least, most HMO managers would not look at things in this way. What saves us from these hard economic imperatives may be something that feminist psychologist Carol Gilligan has called the "awesome power of the irrational." Because of this "awesome power," the assumptions of economic rationality made by classical economics are overstated caricatures; they do not reflect actual human behavior in situations where powerful non-rational concerns also come into play. For example, most people probably place a very considerable value on not being killers, even if they can get away with it, or on not doing things that shorten others' lives, even when the countervailing economic incentives are great.

To the extent that Gilligan's "awesome power" prevails, we may expect that HMO managers will be exceptionally able to resist the strong economic incentives that they have to quickly cut losses when subscribers turn net-negative. The problem is, however, that this exceptional and "irrational" resistance to cutting the company's losses may gradually erode over time. Even the most conscientious HMO management will not last very long if it does not keep the costs down, the revenues up and the premium rates in line with those of their competitors. They are ineluctably bound to respond "rationally" to normal market pressures or else risk being replaced by people who will. Market discipline is not sentimental and, if the tenets of free market economics are valid, the only HMOs that will survive in the longer run will be those whose managements behave like economically rational decision makers. As competitors seek advantage through moral slippage on the question of serving the net-negatives, the economic pressures to meet the competition will fall on everyone else, as well.

In any case, if one of the very purposes of HMOs is to reduce the overall costs of health care, to prevent the "waste" of health care dollars, then at least some treatment decisions will have to be based, at least partly, on dollars and cents calculations; it will not be possible to keep medical need and financial considerations entirely separate, even in principle. Moreover, as the economic circumstances of their companies become tighter in the face of competitive winnowing, HMO managers may find themselves ever less at liberty to make hard economic sacrifices in order to extend human life. In short, it would be naive to assume that the HMO industry can remain satisfactorily immune to the normal laws of economics that drive our free market economy in general, and make it so strong. As long as HMOs are run by self-interested rational individuals, these economic pressures must somehow eventually be felt.

In making public policy, the normal market forces to which HMOs are subject cannot be ignored. What the existence of these forces suggests is this: The position of conscientious HMO managers is not unlike the position of manufacturers in "dirty" industries who want to stop polluting but cannot unilaterally make anti-pollution expenditures without giving their competitors a crucial cost advantage. In these situations, the enforcement of anti-pollution laws is the way that we level the playing field, so that those who want to do the right thing can, and those who do not, will. Just as a manufacturer may need anti-pollution laws to remain competitive while doing the right thing, the conscientious HMO manager also needs the enforcement of laws, such as laws against homicide, to prevent less scrupulous rivals from gaining a competitive advantage by inappropriately mixing up questions of medical necessity with issues of pure economics.

To conclude, if the usual assumptions underlying the free market system hold true, then HMOs are under constant economic pressure to curtail the net cash drain they face every time one of their subscribers goes "net-negative." Even with the best of intentions, an HMO simply cannot, in a competitive market, lavish its assets on net-negative subscribers if its competitors are not doing likewise. Because economically biased deferrals or denials of treatment would not always be easy to detect, it seems logical to attach the most serious of consequences to those that are. Homicide is category of crime that applies when people behave in ways that shorten the lives of others. When a patient's life is shortened by a wrongful refusal to authorize medical treatment, the offense of homicide is legally indicated.

III.

It certainly seems morally questionable for health insurers to deny coverage for life-saving medical treatments just because they cost "too" much. But can a wrongful denial of treatment on economic grounds be a crime as well? If it is a crime, moreover, whose crime is it?

The discussion in the remainder of this article will focus on the possible criminal liability of HMO personnel who, in the course of their jobs, make decisions to deny medical treatment authorizations and foreseeably hasten the deaths of persons who depend on HMOs for treatment. The goal is to provide an outline of the basis on which prosecutions could be legally warranted by the already existing, generally accepted framework of criminal law.

From the standpoint of the HMO, a failure to authorize life-sustaining care to a person who needs it is an "omission," and a mere omission is not a crime unless there is a legal duty to act. However, by virtue of their contracts with their subscribers, HMOs do have a legal duty to act; they have a legal duty to authorize and provide payments for certain medical care--not any and all prescribed care, perhaps, but at least some medical care. It is therefore a crucial threshold question: What are the scope of and limits on an HMO's legal duty to provide medical care, especially in life-threatening situations?

1. Outer Limits of the Duty. A leading case on a physician's duty to provide medical services to patients in life-or-death situations is Barber v. Superior Court. Compared with the physician's duties, an HMO's duties may be markedly less extensive since they can presumably be limited and tailored in the subscriber agreement. Nevertheless, the Barber case is of interest; it would seem to supply the outer limits of the HMO's potential duty.

The patient in Barber was a man who had suffered a cardio-respiratory arrest a short time after undergoing an abdominal surgery. He was revived and placed on a life support system. Three days later he was still deeply comatose, a state from which he was "not likely" to recover. Tests and examinations by specialists indicated that he had suffered severe brain damage. Although not "brain dead," he was in a vegetative state that was deemed "likely" to be permanent. After consultation with the patient's family, and on their instructions, the doctors in charge "caused the respirator and other life-sustaining equipment to be removed." Two days later, they removed the intravenous tubes that provided hydration and nourishment. The patient died.

The question in Barber was whether the doctors could be properly charged with murder and conspiracy to commit murder. The lower court concluded as a matter of law that the doctors' conduct, "however, well motivated" and ethically "sound" as a medical matter, was unlawful under California law. Observing that homicide means simply the "shortening of life by some measurable period of time," the lower court judge held that the doctors' intentional acts to remove the biological necessities for life constituted murder.

The doctors could not, of course, legally claim to excuse their actions merely on the ground that their motives were good or beneficent. As the appellate court stated in Barber, "the law is settled that motive is irrelevant to a determination of whether a killing amounts to murder...." Nor did the circumstances of the case bring it within any of the recognized categories of "excuse" or "justification." "Euthanasia," said the court, "is neither justifiable nor excusable in California." Although the appellate court was evidently concerned about the "gap between statutory law and recent medical developments" it nonetheless felt constrained to decide the case according to the "existing criminal law." It is that "existing criminal law" that is of interest here.

On the basis of its analysis of the existing law, the appellate court in Barber ordered the criminal proceedings against the doctors to be terminated. It held that the doctors did not, on the facts of the case, have any further legal duty to provide medical care to the patient at the time when the life-support was removed. The general rule is, according to the appellate court: "A physician has no duty to continue treatment, once it has proved ineffective." With particular reference to life-sustaining machinery, it said that "there is no duty to continue its use once it has become futile in the opinion of qualified medical personnel." These conceptual limits on the doctor's duty, "futile" and "ineffective," are both obvious and minimal. A duty to help to another cannot logically be breached once the other is beyond help anyway. The Barber doctors did no wrong by merely omitting to do things that would have served no purpose at all.

The matter is not, however, quite so simple. For one thing, biological uncertainty being what it is, the concepts of "ineffective" and "futile" are necessarily somewhat relative. As long as basic physiological processes continue, revival remains a possibility. Recently, an elementary school principal returned to work two weeks after hospital doctors had declared him dead. A woman regained consciousness and was munching pizza after 16 years in a coma. Adding even further to these biological uncertainties, the court in Barber seemed to define "futility" to mean less than literal futility. The test, according to the court, was whether further treatment would offer "reasonable benefit to the patient." For this purpose, the court invoked a sort of proportionality analysis, whether the proposed treatment "has at least a reasonable chance of providing benefits to the patient, which benefits outweigh the burdens attendant to the treatment." Thus, for example, even "minimally painful or intrusive" procedures may be unwarranted where "the prognosis is virtually hopeless for any significant improvement." Notably, however, the court did not appear to think that burdens to persons other than the patient, such as burdens to the doctors or medical payors, had any proper role in the determination. Only burdens to the actual patient, such as pain, were mentioned as proper considerations.

Where continuing medical treatment is of "only debatable value," the really crucial question may be: Who decides? Whose job is it to weigh, with fatal finality, the benefits and burdens of treatment to the patient? On this question, the Barber court stressed the primacy of patient autonomy: "[W]henever possible, the patient himself should . . . be the ultimate decision-maker." Otherwise, the decision should be given to a person who would be "guided in his decision by the patient's best interests." At one point the court appears to accept the view that the doctors themselves might be authorized to determine the limits on their own legal duties. However, the court also relayed the worry that physicians' decisions may not always be free "from possible contamination by self-interest or self-protection concerns which would inhibit their independent medical judgment for the well-being of their dying patients." In the end, the court states that doctor's duty to provide treatment continues until the "patient himself" or, at least, a surrogate preoccupied with the patient's own interests decides that further treatment is futile. Nowhere did the Barber court suggest that economic interests of the duty-holder are legitimate factors in determining whether a patient should receive life saving medical care.

The relatively few other cases that comment on a medical provider's legal duty to render care in end-of-life contexts generally accord with Barber in stressing the patient's interests as controlling. Although doctor and patients presumably have the freedom of contract to make different arrangements, the Barber case appears to represent, in general, the terms of the "contract that the law implies" between doctor and patient.

2. Denying Medical Care: Omission or Act? One of the most striking aspects of the analysis in Barber is the way the court got itself to the question of whether the doctors had a duty to continue treating their dying patient. The court said that disconnecting the patient's vital life support was only an "omission," not an affirmative act. This was a crucial logical step: If the doctor's had done an "act" in disconnecting the life support, they would almost certainly have violated the law; everybody has a duty to refrain from doing acts to end another's life. However, by holding the removal of the life support to be an omission rather than an act, the court opened the door to exonerating the doctors from the murder charges. For once the conduct was held to be an omission the court was able to invoke the "no duty, no guilt" analysis, already described. It could exonerate the doctors by a finding that, given the patient's extreme condition, the doctors no longer had a duty to provide live-prolonging treatment.

On the surface, however, it seems at very least counterintuitive to say the doctors did no "act" to disconnect the patient. They or their assistants surely had to pull out plugs, extract tubes and deliberately cut off the flow of sustenance. Nevertheless, the Barber court managed to conclude that this fairly elaborate conduct constituted neither acts nor murder. Essentially, the court's reasoning went like this: The operation of the self-propelled life support devices in question was "comparable" to manually administering injections or medication. To cease manual injections or medication would merely be an omission to provide further treatment, not an act. "Hence," the court asserted, to disconnect a self-propelled device is "comparable" to withholding manually administered injections or medication. On the basis of this assertion, it concluded that the doctors' conduct was merely an omission to provide further treatment, not an act.

The court's logic to distinguish acts and omissions may seem a bit contrived, though it is probably no more contrived that the act/omission dichotomy itself. A seemingly more serious objection to the court's logic is that it appears to reach too far: The very same reasoning that the Barber court used to exonerate the doctors would appear to be equally apt to exonerate almost anybody who might disconnect a dying patient from life support. Suppose, for example, a mere interloper entered the patient's room and cut off the machinery "just for fun," or that a covetous relative did so in order to hasten an inheritance, or to prevent its dissipation in medical bills. Should a court be required, at the trial of such a person, to treat the disconnection as an omission and to dismiss the charges on the ground that, like the doctors in Barber, the interloper or relative had no affirmative duty to provide the patient with care? It is hard to believe that a court would regard such behavior by the interloper or relative as anything but "acts," plain acts of murder.

As was explained in Airedale NHS Trust v. Bland, the interloper situation is clearly distinguishable from that of the doctors: "[W]hereas the doctor, in discontinuing life support, is simply allowing his patient to die of his pre-existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient's life, and such conduct cannot possibly be categorized as an omission." In other words, the interloper obstructs a flow of medical services that the patient was entitled to receive, or in any event would have received, while the doctors merely cease to provide it. Because the interloper's conduct modifies a course of events, instead of "simply allowing" events to take their course, the interloper is properly understood to have done an "act"--quite distinguishable from the mere omission of the doctors.

There is, however, a problem with drawing confident conclusions from the interloper example described in Airedale. The problem is that, as portrayed in Airedale, the interloper differs in a second (and highly prejudicial) respect from that of the patient's own doctors: The interloper had no business fiddling with the medical machinery at all. Therefore, the interloper's conduct in disconnecting the patient seems to be a purely gratuitous or selfish infliction of harm. The same could presumably also be said of the patient's covetous relative, motivated by the inheritance. It is obvious enough how these factors of gratuitousness or selfishness might tend to pump our moral intuitions, causing us lean against exonerating the interloper or relative no matter what. However, the presence of these factors also raises at least the suspicion that the interloper/relative counterexamples are rigged. Are we actually reacting to the repellant factor of gratuitousness or selfishness, or is there really a substantive difference to be found in the distinction between obstructing a flow of medical care and merely ceasing to provide one?

To test the genuineness of the Airedale distinction between obstructing life support and merely "discontinuing" it, let us suppose a hypothetical where the elements of gratuitousness and selfishness are both removed from the equation. Suppose, for example, that the life-saving machinery were disconnected, not by a mere interloper, but by somebody who was legitimately interested (albeit conflictually) in how these valuable resources were used:

Even though the elements of gratuitous harm and personal selfishness are now removed, the analysis should still probably be the same as that of the interloper presupposed in Airedale. Again, what we have is conduct to obstruct medical care, a person "actively intervening to stop the doctor from prolonging the patient's life." Since the hospital had a legal duty to the patient at the time the administrator intervened, this is surely not a case of "simply allowing [the] patient to die of his pre-existing condition," i.e., an omission. Rather, like the Airedale interloper, the hospital administrator has "actively intervened to stop the doctor" from providing needed care. When a person prevents another from giving life-critical assistance knowing that its absence will mean a high risk of death, the conclusion seems inescapable that the one who prevents is a proximate causer of death, if death in fact ensues. It does not exonerate the administrator that he did not personally have an affirmative duty to the patient. He had a negative duty, a duty to forbear from injuring others by obstructing the flow of essential medical care to which they were entitled.

The analysis of hospital administrator hypothetical may be especially pertinent to analyzing a wrongful HMO denial. The position of the errant hospital administrator is very similar to that of an HMO functionary who effects a wrongful denial of medical authorization to a patient who dies as a result. In both situations what we have is conduct to prevent a flow of life-prolonging medical care to a person entitled to receive it--conduct that Airedale says "cannot possibly be categorized as an omission." If the HMO has a duty to provide a particular treatment to a patient, the acts of HMO personnel that prevent the fulfillment of that duty would seem to be as criminally culpable as those of the hypothetical hospital administrator. Such administrative conduct constitutes affirmative acts that foreseeably and directly deprive a person of life-critical treatments to which the person is legally entitled.

3. The Limits on the HMO's Duties to Provide Medical Care. Even though it is an affirmative act for an HMO functionary to cause a wrongful treatment denial, the question of duty is still crucially relevant to the analysis of criminal liability. For unless the HMO has a legal duty to supply the treatment denied, the functionary who effects the denial does not factually "prevent" a flow to the patient of medical services that the patient was entitled to receive; none were flowing or promised in the first place. To take an obvious example, suppose a seriously ill patient needs life-sustaining treatment and, due to some sort of clerical mistake, she applies to the wrong HMO, one with which she has no contract. Certainly, a denial of treatment benefits by a wrong HMO should not occasion criminal liability: In such a case the HMO is merely a bystander and, at common law, a mere bystander generally has no duty at all to save others in need. Logically, too, it would seem that exactly the same reasoning ought to apply if a patient applies to her own HMO for a treatment not covered by the HMO agreement--"no duty, no guilt." Accordingly, the question of criminal liability seems to turn, crucially, on the scope of the HMO's duty to provide the care that the HMO functionary refused to authorize.

The legal duties of HMOs to provide medical care are based on the agreements they make with their subscribers. The scope of the HMO's duties is presumably limitable by the terms of those agreements, and they can vary considerably in their details. Different agreements may have exclusions for different kinds of conditions and experimental therapies, as well as differing decision procedures, payment conditions, arbitration provisions, and other variations. Moreover, an HMO's contract duty to provide care does not necessarily run to the point of "futility," as did the doctors' duties in Barber. Instead, the HMO may describe the outer limits of its duties in less comprehensive terms, for example by committing itself only to provide those tests and treatments that are "medically necessary" or not "experimental."

To the extent that HMOs contract to assume less extensive duties to provide medical care than those imposed on physicians, they make it almost inevitable that severe disappointments will occur. The resulting discrepancies in legal duties make it almost inevitable that occasions will arise in which a patient's physician will be duty-bound to recommend or order medical treatments but the HMO will have no duty to pay for them. The tensions and dissatisfactions that will emerge from these situations should be plain.

For present purposes, however, we need not examine the variations on the HMOs' contractual duties in detail. Although contractual terms limiting HMOs' duties will present factual and interpretive questions in each particular case, their existence does not in any way foreclose the threshold question under discussion here, namely, whether the ordinary definitions of existing law make it a criminal act for HMO personnel to order a wrongful benefits denial knowing it will probably lead to death or serious injury. For purposes of this question it is only necessary that a judge or jury be able to find that the HMO in question had a contractual obligation to approve the treatment that was denied and that the HMO did not follow its own contractual rules, so that the denial can be considered "wrongful."

IV.

Like other homicides, lethal administrative conduct on the part of HMO functionaries and managers is criminal only if the requisite mental culpability is present. In this section, three aspects of mental culpability will be discussed: Knowledge of the risks to the patient; knowledge of the legal duty; and the problem of getting proof of the requisite mental culpability.

1. Knowledge of the Risks. The mental culpability for homicide varies with the degree of crime charged. It ranges from the mental states of intention or purpose to cause death (typically murder), through recklessness regarding the risk of death (typically involuntary manslaughter) down to the minimum mental culpability for guilt, criminal negligence. "The doing of an act, or imperfect performance of a duty, toward a person who is helpless, which naturally and ordinarily leads to the death of such person, is murder if the death or grievous bodily harm is intended; and manslaughter, if the cause is negligence."

Despite the strong economic incentives that HMOs have to remove net-negative subscribers from their rolls as quickly as feasible, we will pass over the possibility that these incentives might motivate treatment denials for the conscious purpose of shortening life. This does not, however, eliminate the possibility of a murder charge for an HMO denial. In general, the law treats the result of an act as "intended" if the act is done with an awareness that the result is practically certain to occur. This sort of "intention" might be found, for example, in a case where an HMO medical reviewer denied authorization for a life-critical treatment with the knowledge that the patient's prognosis would be very grim without it. Moreover, even a merely "reckless" homicide can be treated as murder if the circumstances manifest "extreme indifference to the value of human life." Suppose, for example, an HMO manager makes a decision to deny life-critical medical care for essentially financial reasons, or on the ground that the patient's life is not simply "worth it"--due to advanced age, poor overall condition, mental infirmity, net-negative economic prognosis, or other invidious discrimination. Such a denial may very plausibly be considered to evince a sufficient indifference to the value of human life to support a charge of murder.

In addition to possible murder charges, lesser degrees of homicide might apply to deaths that are caused with lesser mental culpabilities. For example, a denial of benefits that is ordered with a mental state of "recklessness" should attract at least a charge of involuntary manslaughter. The influential Model Penal Code defines recklessness as occurring when a person "consciously disregards a substantial and unjustifiable risk" if the disregard "involves a gross deviation from the standard of conduct that a reasonable person would observe" under the circumstances. It defines the still lesser culpability of criminal negligence as existing when a person "should be aware" of a risk but acts as though in disregard of it. When a medical reviewer who ought to know the risks decides to cause a denial of essential medical treatment, and the denial triggers a patient's death, there would seem to be at least a case of negligence or recklessness and, therefore, a basis for charging negligent homicide or involuntary manslaughter. If the person who causes the denial does so with almost certain knowledge that it will lead to the patient's death, it would seem to be one of the degrees of murder.

2. Knowledge of the Duty. Although knowledge or foreseeability that an action will have potentially lethal consequences is a standard element of criminal liability for death, it is not so clear that the HMO functionary need know the nature or exact scope of HMO's legal duty. In the typical case, of course, the HMO medical reviewer almost certainly ought to know at least the general tenor of HMO's duty to the patient; before presuming to order a denial of treatment, she should have at a minimum made herself aware of the terms of the subscriber's agreement, the patient's diagnosis, the treatment requested, and whether the HMO's protocols describe such treatments as indicated for the persons with the patient's condition. With this information at hand, she should be able to infer the HMO's probable duties, as well. At any rate, the preeminent case for an HMO-homicide prosecution would be one in which the HMO's decision makers were consciously aware that a treatment denial would not likely be upheld in court if the HMO were (or could be) sued, but they went ahead and ordered the denial anyway--perhaps figuring that a chance of being forced to pay civil damages in the future was a financially better risk than the certainty of paying right away.

Suppose, however, that an HMO medical reviewer were truly under the impression that the HMO had no legal duty to authorize treatment in the particular case. Suppose, for example the reviewer orders a denial of medical treatment while fully aware of the mortal risk that denial poses to the patient, but she honestly (albeit erroneously) concludes that the HMO's contract does not cover the requested treatment because it is not, in her judgment, "medically necessary." If a judge or jury later concludes that the treatment was "medically necessary," based on a trial with expert testimony, is the HMO reviewer guilty of criminal homicide for the death that ensued, or does she have an excuse because it was her honest judgment that the treatment was not necessary?

On one hand, this misconception of the HMO's legal duty would not appear to be a simple case of "mistake of fact," where an honest error or ignorance serves as a defense because the error negates the mental state that is an essential element of the crime in question. On the contrary, the reviewer fully knew the factual character of what she was doing. She knew that her action was almost certain to have fatal consequences (the mental element of criminal homicide) but, because she misinterpreted or misapplied the HMO contract, she thought that such lethal behavior was, on her part, legally permissible.

The meager law available from the criminal omissions context also does not well support the idea that ignorance of a legal duty is an exonerating excuse when a person breaches the duty and another's death foreseeably results. For example, the avaricious uncle who allowed his nephew to drown would probably not be allowed to claim he did not know that guardianship carried with it a duty to save his nephew from accidental death. Likewise, the hospital administrator who, pre-occupied with costs, disconnected a patient from life support should presumably not be heard to claim that he mistakenly thought that, like a hotel, the hospital had no legal duty to accommodate people who could no longer pay their bills. Perhaps such claims of ignorance would not be regarded as reasonable mistakes in any event, but the point here is that, reasonable or not, there seems to be no legal basis for thinking they even would be heard at all. In sum, the existing criminal law seems, if anything, to weigh against giving a legal excuse where the HMO functionary errs in interpreting the legal duty of the HMO.

On the other hand, it would be very harsh if people who are required to make life-or-death decisions in their daily work were held to do so at entirely their own peril in the event they were to misapply a contract. It would be not only harsh but it would be a bad policy for the public, as well. After all, we should not as a society want to drive reasonable and conscientious people out of the HMO business entirely. That is, however, exactly what we ought to expect to happen if errors in medical judgment, or medico-economic judgment, were to put the decision makers in personal peril of prosecution.

When lethal administrative errors occur in the HMO approval process, it therefore seems to make sense to allow an accommodation for cases of good faith mistake, similar to that allowed in cases of mistaken self-defense. Under the law of self-defense, it can be legal to kill a perfectly innocent person who is posing no menace to anyone provided that the killer actually believe that the use of deadly force is necessary for self-protection from serious harm or death. That is, the law leaves a margin of safety to allow people to act in borderline cases.

Similarly, whether or not a treatment for a particular condition is "medically necessary" is a class of judgment that surely has many borderline cases, where the conclusions and judgments of reasonable experts may differ. Surely, too, there are many cases when the medical necessity is not borderline, situations in which it is almost certain that certain well-established treatments will help and, without them, the patient will die or grievously suffer. In the borderline situations, the case for allowing a legal excuse for wrongful denials seems strong. In the non-borderline situations, however, where the reasonable persons in the field would find the "medical necessity" to be clear, the matter is entirely different; there is no more warrant for excusing a lethal "error of judgment" in such cases than there is to excuse the lethal error in judgment of a truck driver in traffic who purposely steers onto a crowded sidewalk to avoid being late. Once a jury finds that reasonable people with suitable educational background and training could not differ on medical necessity, conviction would seem proper as a matter of course.

3. Getting Proof of Mental Culpability. The decisions of HMOs in individual cases and the policies and direction that guide those decisions are normally made internally; the elements that go into these decisions, policies and direction, be they proper or improper--culpable or not--lie largely outside ken of external observers. Nevertheless, in prosecutions of lower level medical reviewers and similar personnel, proof of the crucial mental elements of criminal liability--such as knowledge of the deadly risk of a denial--should pose no special prosecutorial difficulties. The accused could hardly deny having had knowledge of the key facts that show awareness of the risk: the patient's condition and prognosis, the recommendations of the treating physician, the HMO's internal guidelines, and customary medical practices. If a medical reviewer were to maintain that she withheld medical treatment without such knowledge, it would be tantamount to admitting extreme recklessness. Getting proof of the managerial direction and mental culpabilities of people higher up in the organization is more intricate, but essentially the task is the same as that of obtaining mental-state evidence in any case of organization-based criminality.

Suppose, for example, a prosecutor is looking for evidence to show that an HMO's management has deliberately put policies into place to cause time lags in the approval process for certain tests and treatments--with the foreseeable effect that patients having certain conditions and ailments would often not get approvals for treatment in time to make a life-saving difference. Remember that a relatively short delay of treatment can be enough to shorten a life. To obtain evidence of deliberate delay policies, a prosecutor could first bring in the medical reviewers who were immediately and visibly responsible for delaying or denying the authorization of life-critical treatments in one or more cases. The legal accusations and personal risk of conviction could be explained, along with the advantages of cooperating. Specifically, the prosecutor could request that, in exchange for leniency or immunity, these lower-level functionaries provide testimony with respect to the internal policies of their company, instructions received from their superiors, the performance criteria by which employees are judged, the patterns of approval and denial fostered among the medical review staff, and the like. By working "up the ladder" with successive interviews of this sort, a resourceful and motivated prosecution could take the case right up to the high-level locus of actual policy formation. In fact, getting the needed evidence of managerial-level culpability may be even easier in the case of HMOs than in other multiparty criminal cases because the lower-level personnel involved are likely to be less nonchalant about the prospect of imprisonment than more traditional criminal actors; they may, that is, be relatively more amenable to cooperating with the government.

When people do things that they know are almost certain to have lethal consequences, and death results, criminal prosecution for homicide is normally called for. The existing criminal law provides no obvious reason why there should be an exception for actions by HMO functionaries who prevent their companies from performing their legal duties to authorize and pay for critical medical care. Under the law's prevailing categories and definitions, prosecutions of HMO personnel for wrongful treatment denials appears to be logically indicated in cases where death or serious medical injury were foreseeable and death actually results. To prosecute in such cases would be a straightforward application of the principle that, when death is foreseeable, lethal behavior is a crime. The fact that the lethal behavior may be a "rational" response to pressing economic forces would not, under ordinary criminal law, constitute an excuse or defense.

However, the economic pressures that bear on HMOs and their managements are not entirely an unintended consequence of the HMO structure or unanticipated accidents that no one could foresee, nor do they work in isolation on the HMO industry. The view is apparently held by many that fewer of our resources should go to medical treatments so that more will be left over for other things. In any case, the economic pressures on HMOs do not arise ex nihilo. Rather, they are the manifestations of values and priorities that are exerted by society as a whole. The HMO industry only happens to be the locus where these pressures have particularly visible impact. If HMO managers were in fact never influenced by the economic pressures they feel to contain the costs of medical treatments, if they never said "no" to the less promising therapies in less salvageable cases, they would not be doing the job that society has arguably charged them with doing.

In short, by allowing and even encouraging the delivery of medical services via the modern HMO/managed care format, society may be saying that it wants its medical care to be provided and financed under conditions that cannot possibly pay the cost of saving every life from avoidable foreshortening. If so, then it is society in aggregate which has decided that some "life-saving" must be foregone, that some lives are simply not worth the cost and that, in consequence, lethal treatment decisions must sometimes be made. The people on the front lines of these fatal decisions are, in the final analysis, only doing the bidding of others.

Oliver Wendell Holmes once wrote: "The life of the law has not been logic; it has been experience." In other words, if the application of legal rules is not "experienced" as being right, if legal outcomes do not "feel" right when put into practice, then the logic must yield to the experiences that contradict it. If the idea of homicide prosecutions for HMO managers seems repellant, even when they appear to be logically indicated by the existing categories of the law, then something must be wrong with the law. There must be something additional and decisive in the mix of considerations that affects the way that we "experience" such results.

In the case of homicide and HMOs, the most obvious "additional" factors are the considerations of social position and distinction, which can subtly enter human moral calculus. Criminal sanctions in this country are not primarily aimed at people like HMO managers and administrative personnel but are mostly intended for a very different segment of society. As long as the punishments for homicide are limited to the "kinds" of conduct and people to which they are usually applied, the rest of us can live tolerably with the deliberate inflictions human suffering that their application entails. When it is suggested, however, that these punishments be applied more evenly, extending also to the lethal activity of classes that the legislator may not have envisioned, we are tempted to suspect that the law's logic has gone awry. We are put on the alert to find ways to make exceptions.

Perhaps, however, this particular dissonance between experience and law goes deeper, lying beyond the reach of resolution by mere exceptions. Perhaps, instead, it is that the purposeful infliction of human suffering is itself a morally dubious way to deal with social problems, and only when we contemplate extending it beyond the usual targets do we truly comprehend its horror.