Gordon v. State ( 1982 )

CORNISH, Judge,

specially concurring:

This case presents the interesting question of whéther negligent conduct of the treating physician can act as a sufficient intervening cause to relieve the appellant of criminal responsibility. First, it can be seen that the appellant’s conduct was the cause in fact of the victim’s death, i.e. but for the appellant’s act of shooting the victim he would not have died. The more perplexing issue is whether the appellant's conduct is the legal or proximate cause of the victim’s death. The appellant argues that the treating physician’s gross negligence was the sole cause of the death, thereby, relieving criminal liability.

As the majority opinion states, where an accused inflicts a dangerous wound, it is no defense to a homicide charge that the victim’s death was contributed to or directly resulted from negligent or improper medical treatment of the wound. Harrison v. State, 18 Okl.Cr. 403, 195 P. 511, 513 (1921). I believe, however, that this general rule must be qualified.¹ If the cause of the victim’s death is solely attributable to grossly improper medical treatment and not at all attributable to the original wound inflicted by the accused, then the improper medical treatment can properly serve as an intervening factor eliminating criminal liability. For example, where an accused inflicts a wound, which in no way could fore-seeably result in death, but instead the victim’s death is solely caused by the gross maltreatment of the physician, the accused should not be held responsible for the resulting death.

In this case, there appears to be substantial evidence of medical malpractice. However, the record clearly establishes that the appellant did inflict life threatening wounds which directly gave rise to perforations in the victim’s bladder and extensive damage to the small intestines. These ultimately resulted in the victim’s death. Therefore, even if it were determined that the treating physician’s failure to properly stitch the victim’s wounds was malpractice and a contributing factor in the victim’s death, it would not relieve the appellant of criminal liability for the homicide because the death resulting from leaking bowel fluid was directly caused from the original wound inflicted by the appellant. Therefore, I specially concur in the majority opinion.

1 . See, 100 A.L.R. 769 (1965).