Is Trump legally responsible for the death of a man who misunderstood then acted on Trump’s unfounded proclamations? That depends on your theory of causation and legal responsibility. Let’s learn about causation and responsibility in the law!
During his address to the nation on Friday March 19, Trump claimed that chloroquine was a safe and promising treatment for Covid-19. Then, on Saturday, he tweeted that a therapy using hydroxychloroquine, a less toxic derivative of chloroquine, and the antibiotic azithromycin was a promising treatment. This cocktail was administered to 3 patients who recovered from Covid-19 this month in France while 20 received only hydroxychloroquine. 6 patients/26 who received either hydroxychloroquine (alone) or the cocktail fully recovered (study). Trump claimed it has “a real chance to be one of the biggest game changers in the history of medicine.”
A few things to note:
- 4 patients in the treatment group could not tolerate the chloroquine and did worse. They stopped treatment, and died. There are other serious problems with the study that Trump relies on [For evaluations of the study that Trump’s claims are founded on, go here and here.]
- Chloroquine and hydroxychloroquine are similar but not the same, although, Trump uses them interchangeably.
- Trump made these endorsements in direct contradiction to a medical expert, Dr. Fauci, the director of National Institute of Allergy and Infectious Diseases.
On Friday, Trump was also asked about chloroquine and said that he had millions of units on order from Bayer. The day before, Bayer had announced it would donate 3 million tablets of its new drug Resochin to the American government.
Resochin is chloroquine phosphate.
All three forms of chloroquine can result in death at above recommended dosages (which is not a large quantity–a teaspoonful can kill you).
Add to all this that in the rightwing media ecosystem, along with alt-med websites, sales for chloroquine phosphate have skyrocketed in the last few weeks. Chloroquine phosphate, if you haven’t heard by now, is most commonly used for cleaning fish tanks. Prices have skyrocketed from their normal price of around $10.00/bottle to over $400.00!
A couple in Arizona, hearing these claims from the President of the United States, took him at his word. In an attempt to prevent symptoms from coronavirus, the couple purchased and ingested chloroquine phosphate–which is chemically different than hydroxychloroquine. Tragically, chloroquine phosphate is toxic in doses over recommended amounts and the man died while the woman survived after hospitalization.
When asked why they took the compound, the woman said, “they kept saying that it was approved for other things and, you know, Trump kept saying it was basically pretty much a cure.”
Causation and Responsibility in the Law
Within philosophy of law and philosophy generally, there is a massive body of literature on the relationship between causation, moral responsibility, and legal responsibility. This recent tragic death offers an opportunity to consider a brief introduction to the concept of legal responsibility both in jurisprudence and philosophy of law. [Aside: depending on your theory of legal responsibility, it may or may not be the same as moral responsibility, but note that they are not necessarily the same and important to keep conceptually separate.]
As a general practice, both tort law and the criminal law use causation as a way of determining legal responsibility. This is fairly intuitive: We are legally responsible for the effects of our actions when our actions cause harm to others.
In tort law, legal responsibility is usually thought to guide the amount of compensation owed to the plaintiff for damages caused by the defendant. In criminal law, legal responsibility is usually thought to guide the appropriate severity of punishment. Like everything, some philosophers of law dispute this, but these are the most common views.
In many cases, causation is intuitively obvious. If I drive my car into you and you get hurt, I caused the harm. It follows that I’m responsible. But there are cases where it’s not obvious.
There are lots of examples but here are a few puzzles to get us started. These should get us to see that sometimes causation isn’t easy to determine and that causation and responsibility may sometimes come apart.
- Abe stabs Bob. Bob is rushed to the hospital and could easily be saved if he receives a blood transfusion to make up for his lost blood. Bob, while still conscious, refuses the transfusion because his religion forbids blood transfusions. He understands that without the transfusion he will die the death. Bob dies of blood-loss. Did Abe cause Bob’s death? Is Abe legally responsible for Bob’s death?
- Famously, Julius Caesar was stabbed 23 times. Suppose that no single stab wound would have been sufficient to kill him. If each assassin only stabbed once all at the same time, can we say that no one caused his death? Or suppose they stab one at a time and it was the 17th stab wound that finally did him in. Is whoever performed the 17th stab wound the only one who caused his death? Can we say that whoever make stab wounds 18-23 did not cause his death? Who is responsible for Caesar’s death?
- Suppose Bob starts a fire to the North of Abe’s ranch and Chris starts one to the South. Both fires spread out of control and, at the same time, burn down Abe’s house. Who caused Abe’s house to burn down? Who is responsible/liable for the harm to Abe’s property?
- Suppose Bob starts a fire to the North of Abe’s ranch and Chris starts one to the South. Bob’s fire is a mile closer to Abe’s ranch than Chris’s fire. Both fires spread out of control. Bob’s fire burns down Abe’s ranch. 5 min later Chris’s fire passes over where Chris’s ranch used to be. Who caused Abe’s ranch to burn down? Who is responsible/liable?
This should be enough to get us started.
The law uses two standards for determining causation from which legal responsibility is usually assigned. Legal responsibility/causation requires passing both.
Sine Qua Non/But-for Test
Sine qua non means “[a condition] without which it could not be”, or “but for…” or “without which [there is] nothing.” Let’s use an example. You hit my car with yours and damage my fender. We say that you caused the damage because if you had not hit my car the damage would not have occurred. Or, in plain language, “but for” you hitting my car, there would be no damage to my car.
The purpose of the sine qua non standard is to establish “factual” causation; i.e., whether the defendant’s actions were a necessary condition for whatever harm befell the victim. We can ask, would the harm have befallen the victim if the defendant had not acted in the world as they did? Except for troublesome cases like the ones I mentioned above, the but-for standard is fairly straight forward to apply.
The case of Trump and the man who consumed chloroquine phosphate clearly meets the but-for standard. If Trump had not proclaimed, on various occasions, that chloroquine (and its various forms) was a very promising therapy for Covid-19, the couple would not have ingested it. The woman said so herself. Trump’s pronouncement initiated a chain of events culminating with the man poisoning himself. Had Trump said nothing about chloroquine, the man would not have ingested it. “But for” Trump claiming chloroquine was a promising therapy, the couple would not have ingested it.
But wait! There’s more!
The but-for standard is just the first hurdle to establish legal responsibility in the context of causation. Legal causation/responsibility doesn’t follow necessarily from but-for causation. Legal causation also requires passing the proximate cause test. This is probably going to be easiest to understand with an example.
Suppose, I’m at the train station and don’t hear my name being paged. As a result, the train waits for me and departs 5 min late. Somewhere down the line, the train hits a pedestrian that was walking across the track. Most people would say I’m not legally responsible for the death of the pedestrian. However, if we apply the but-for test, strictly speaking, I am causally responsible. If I hadn’t made the train late, the train would have passed at a different time when the pedestrian was not crossing the track. My lateness set off a causal chain of events ending in the death of the pedestrian. But for my lateness, the train would not have struck the pedestrian.
Why do you think I’m not legally responsible?
The Proximal Cause Test:
The proximal cause test says that the cause cannot be remote from its effect. Put another way, the length and route of the causal chain matters.
Unlike the but-for test, the proximal cause test is not thought to be “a matter of fact.” It concerns judgments about what would be a good policy going forward with similar cases. [Aside, some legal theorists think the proximal cause test should be determined on a case-by-case basis rather than selecting one that can function as a good policy for future cases.] The proximal cause test is notoriously vague precisely because it is a matter of value judgments. In practice, it’s also articulated in various ways that, although they are intended to be, they are not synonymous. Here are some common articulations:
It must be a direct cause of the effect; it must not involve such abnormality of causal route that is freakish; it cannot be of harms that were unforeseeable to the actor; its connection to the harm cannot be coincidental; it must make the harm more probable.
Let’s return to the Trump case. Does it pass the second test? How proximate is his utterance (cause) to the effect (man takes poison). Here’s where things get tricky because (a) it depends on precisely how we understand proximate cause and (b) there are some mitigating factors in the proximate cause standard. Let’s try each relevant definition on for size.
Must be direct cause: Again, we have some ambiguity. At first glance, Trump is not the direct cause. It was the man’s decision to ingest the poison that is the direct cause. This coincides with the legal principle that legal responsibility requires an unbroken causal chain. Where another human agent enters the causal chain such that they could alter it, that chain is broken. The defense here is that Trump may have initiated a causal chain of events but it was broken by a human agent’s decision to purchase and ingest the substance.
However, suppose a pharmacist said to a patient, “take a teaspoon of chloroquine peroxide, it is a very promising way to prevent Covid-19. It’s very tremendous.” Most of us would say the pharmacist is responsible for whatever consequences followed from their patient taking chloroquine peroxide. We wouldn’t say, “well, aaactshchually the patient broke the causal chain by deciding to listen to the pharmacist.”
Why do we think this? Because the pharmacist is in a position of authority and has a social position of being a trustworthy and knowledgable person in the domain of medicines. They are entrusted by the public to make factual pronouncements in the domaine of medicine. Notice that the proximal cause standard is primarily guided by judgments about what would make for good social policy. It’s not scientifically objective.
Is the Trump case like the pharmacist or something else? Let’s revisit that question in a moment.
Let’s look at failing to be a proximate cause because of a harm being unforeseeable to an actor. Here, again, we need to do some interpretive work and ask what needs to be foreseeable. Is it foreseeable that people would believe the President of the United States when they say that a particular compound is very likely to be a successful medical treatment? Sure.
Is it foreseeable that people would buy chloroquine diphosphate instead of hydroxychloroquine when the President, multiple times at multiple press conferences, referred to chloroquine, hydoxychloroquine, and Bayer’s drug (Resochin) all interchangeably? Probably. I doubt Trump himself knows the difference if he even knows the three exist as different substances.
Is it foreseeable that a panicked population with low scientific literacy could confuse similar sounding chemicals or think they’re the same especially when an authority figure uses them interchangeably? Probably. Recall also what was going on in the background. Bayer on Thursday (and Trump on Friday) announced that it will be collaborating with the US gubbamint to supply Resochin (chloroquine phosphate) as a potential therapy.
Is it foreseeable to Trump that people could die because of his recommendations? Perhaps Trump could not have foreseen these consequences because he himself did not know about the multiple compounds and/or their different properties. Recall, he uses them interchangeably and, without noting a distinction, refers to Bayer’s drug, Resochin, which is chloroquine phosphate. If true, then this is a strong argument against people in positions of authority making unclear recommendations about untested drugs that contradict what the country’s top medical experts say. And that doing so is negligent. It’s why it’s a very bad idea to do so.
[For evaluations of the study that Trump’s claims are founded on, go here and here. The evidence is ridiculously thin and the study design does not come close to approaching the minimum standard that would be required to make proclamations to a desperate and panicked public. It was published in a low impact factor journal, which should raise red flags and inspire caution.]
The philosophical issue is that all these different considerations point to the fact that the proximate cause standard is not objective. It relies on what we think would make a good social policy–wherever we stand on the issue.
Consider: Suppose that it turned out that chloroquine phosphate does make people immune to Covid-19 or cured them. Suppose also that all of Trump’s supporters, after the Friday press conference, ingested the compound, stopping the spread of Covid-19 in its tracks. USA! USA! USA! In this scenario, is Trump at least partially responsible for saving America and the world? Do you think he’d take credit? Do you think his supporters would trumpet this fact this from the rooftops until liberals’ ears bleed?
Whatever you answer, it should be the same for both cases (there are some fancy philosophical theories of moral responsibility that might treat these two cases differently. But we’re dealing with legal responsibility).
Alright, so this post is already way longer than I wanted it to be. Let’s wrap things up.
Verdict on the Trump case: This comes down to which conception of proximate cause you think makes for good policy. Is Trump like a pharmacist giving bad and confusing medical recommendations? Or is the causal chain broken when another human agent enters regardless of the individual’s professional, social, political position? Which is good policy?
A defense of Trump probably relies on the fact that he’s not a pharmacist or physician and so there’s a disanalogy with people who are in those professions.
But should presidents who are not medical professionals make very public pronouncements—that contradict the CDC–about untested medical cures to a panicked public? Probably not. It is precisely because he isn’t an expert is this domain that he does not know the consequences. This is at least moral negligence.
By doing so, is a president legally liable for harms that occur as a consequence of his pronouncements? I think it would make good policy but I can also see how there’s room for reasonable disagreement. It will depend on which conception of proximate cause people think makes for good social policy across similar cases.