Weintraub, C.J. 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. ***
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. ***
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 ***
[A]lthough infectious hepatitis and serum hepatitis are deemed to be viral, the offending virus or viruses *** have not been isolated ***. Accordingly there is no way to detect the virus by examination of equipment or drug or solution. ***
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. ***
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 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 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 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 ***
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 *** [T]he 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.
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 State offered testimony of former patients or members of their families, most of which was intended circumstantially to indicate such re-use. ***[T]he records of the defendant revealed that during the period here involved, *** 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. ***
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.
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. ***
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." ***
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. ***
We are puzzled *** 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 ***
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. ***
[T]he State did not try by expert proof to establish a causal connection between the deaths and any specific act or omission. Nor did the State seek by such testimony to identify all the acts or omissions which constitute the likely vehicles or avenues of transmitting the disease. We can but infer what acts or omissions the State had in mind ***.
If the State had tried this case upon the sole thesis that defendant had subjected the decedents to Ven-O-Pak tubings contaminated with the blood of other patients, the issue of causation would not realistically present any difficulty. The reason is that multiple use of the tubings would so likely spread the disease that, if one found the tubings were so re-used regularly, he would look no further. But the State did not try the case upon that single theme ***.. Rather the State advanced the sundry additional theses we described above. It is as to them that we think the problem of causation was not adequately handled.
With respect to such other theses of criminal fault, we could not see how the jury could find from the evidence which of those possible mediums of transmission of the disease *** was in fact the medium ***. If there is no way to infer that any one of the mentioned mediums for the transmission of the disease did in fact transmit it to the decedents, then it would not be enough for the jury to find defendant was criminally negligent as to but one of the possible mediums the jury found to be established by the proof. Rather, to convict, the jury would have to find defendant was criminally negligent as to all of the established mediums, for in no other way could it be said that it was his criminal negligence which caused death. *** We propounded the question whether, if the jury could not find which of the possible mediums was in fact the medium,
"* * * then should the jury have been instructed that the defendant must be acquitted unless the jury found that defendant was criminally culpable with respect to all of these mediums [of transmission of the disease]?"In reply the State insisted that a conviction would be proper if the jury found criminal negligence as to any one of the vehicles of transmitting the disease. The State argued, by analogy, that if a man were charged with causing death of a pedestrian by criminal negligence in driving a car (a) while drunk, (b) at 70 miles an hour in a 25-mile zone, (c) through a red light, and (d) onto a crosswalk teeming with people, the jury could convict without finding defendant did all of those things. That may be so, but the analogy fails because in the hypothetical case the jury could conclude that the reckless act it found did in fact cause the death. In the case before us, it would not be enough to find, for example, that defendant was criminally negligent with respect to multiple use of bottles of solution, because, as the State concedes, there is just no way to say that that act transmitted the virus and brought about the deaths with which defendant is charged. For all that one could tell, the fatal failure, according to the State's own thesis, could have been in the sterilization of needles and syringes, as to which the jury, although accepting the State's claim that the procedure was inadequate, may have found defendant was not negligent or was not criminally negligent. Hence the deaths cannot be attributed criminally to defendant unless he is found to have been criminally culpable as to all the mediums which could have transmitted the virus, i.e., all the mediums projected by the State except such of them as the jury should find the evidence did not establish. ***
We add that the trial court should have instructed the jury with respect to defendant's criminal liability for the negligence of his staff. The defense requested instructions upon that topic which, however, were not granted. The trial court mentioned the subject only with respect to Ven-O-Paks, as to which it said:
"The evidence indicated that it was the duty of the nurses employed by the defendant to change the Ven-O-Pak or tube after each infusion. If you conclude from the evidence that the nurses failed to perform this function contrary to the rules of their employment, and you are convinced beyond a reasonable doubt that this fact was known or should have been known to the accused, and the failure to do so was a proximate cause of the death of anyone or all of the 15 decedents, then you would be justified in finding the defendant guilty of any or all of the counts of the indictment." (Emphasis added)*** The difficulty with the instruction as given is that it makes defendant culpable with respect to a nurse's failure to perform her duty if her failure "should have been known" to him. As we have said, defendant could be liable with respec to a nurse's act or omission only if he was personally culpable, that is, if he authorized or assented to it or himself was guilty of wanton and reckless indifference with respect to it. It so happens that as to the Ven-O-Paks, the use of "should have been known to the accused" was of no possible harm, since it is clear that defendant had to know of a nurse's failure because only he attached the adapter to the needle and in that process he would necessarily know whether the Ven-O-Pak had been used. Nonetheless, while the instruction was harmless as to Ven-O-Paks, there would be no reason apparent to the jury why defendant would not also be criminally liable if some other failure of a nurse (as to sterilization for example) "should have been known" to him. Thus, under the facts of this case, the standard of responsibility, laid down as to a nurse's handling of Ven-O-Paks, would likely be understood by the jury to pervade the entire case and to warrant a conviction even though defendant's failure to know of his nurse's act or omission was not a failure of criminal proportions.
If the jury understood the charge related only to Ven-O-Paks, then the jury was wholly uninstructed upon the question of defendant's responsibility with respect to other acts or omissions of his nurses. *** The jury should have been suitably instructed, especially since most laymen probably know an employer is civilly liable for his employee's conduct and hence might assume the same or a similar rule applies in criminal matters. [S]ince the proof could well leave the jury in doubt as to whether a nurse was the one who failed, the jury should have been told what is required to inculpate defendant with respect to such failure.
The judgments of conviction are reversed and the matters remanded for new trial.