"Who’s Going Down?" - A Criminal Law Analysis of Jane the Virgin: Pilot

Editor's Note: In her "Who's Going Down" series of posts, Robson Hall Law Student A. Sandhu looks at episodes of popular television shows and analyzes them through a criminal law lens for an insightful, comical and fun application of criminal law to popular culture.

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Who’s Going Down? – Jane the Virgin

Episode: Chapter 1: Pilot *Spoilers Ahead*

In the CW telenovela, Jane the Virgin,1 Dr. Luisa Alver accidentally artificially inseminates the protagonist of the series, Jane. Dr. Alver confesses her mistake to Jane and Jane’s mother, and reveals that Jane is pregnant as a result of her error. When Dr. Alver apologizes, Jane’s mother responds, “You’re sorry? You should be in jail lady! You should be locked up!” Is Jane’s mother correct? If this incident had occurred in a Canadian jurisdiction, could Dr. Alver be convicted of criminal negligence for mistakenly artificially inseminating and causing the impregnation of Jane?

To determine if Dr. Alver is liable of criminal negligence, it is necessary to review the series of events that led up to her immense error. On the day of the incident, Dr. Alver went to work distraught because she had learned of her spouse’s infidelity the night before. She was upset and distracted when a nurse informed her that she was to perform a pap exam in room 8 and an insemination in room 7. Dr. Alver was filling in for a colleague who was on leave, and was therefore unfamiliar with the patients she was treating that day. She entered exam room 8 under the false, but honest belief that she was to be performing an insemination. Once she had performed the insemination procedure on Jane, she entered exam room 7 where she became aware of the error she had made. Dr. Alver consulted a lawyer, who advised her that there was only a 20% chance of Jane becoming pregnant as a result of the insemination, and that Dr. Alvez should not confess her mistake. (Maybe I’ll take a look at possible criminal liability of the lawyer at some point, but that’ll be a whole other blog post).

In Canada, those who administer medical services, like Dr. Alvez, are held to an elevated standard of care. Section 216 of the Criminal Code states that:

“Everyone who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.”2 Dr. Alver had the necessary credentials to treat Jane, but did she use reasonable knowledge, skill and care in doing so?

The section 216 charge has an objective liability requirement as opposed to a traditional subjective mens rea requirement. This means that if Dr. Alvez’s conduct was found to be a marked and substantial departure from the conduct of a reasonably prudent medical practitioner, she could be convicted of criminal negligence.

Dr. Alver was in a distraught state while she provided medical services to Jane. This was apparent based on the fact that the nurse sensed something was wrong, and asked if she needed any assistance, to which Dr. Alver insisted, “No, I’ve got it”. While in the exam room with Jane, Dr. Alver began crying and Jane offered to reschedule the appointment. Dr. Alver assured her that she was fine and administered the insemination procedure.

When determining objective liability personal characteristics are not taken into account, so the fact that Dr. Alvez was upset and distracted that day is irrelevant. It is also irrelevant that Dr. Alvez did not intend to artificially inseminate Jane. All that is considered is whether the conduct was a marked and substantial departure from that of a reasonably prudent medical practitioner who found themselves in the same circumstances as Dr. Alvez. A reasonable doctor who was unable to focus on their job would likely excuse himself or herself until they regained composure.

Dr. Alver was criminally negligent by not ensuring that she was performing the correct procedure on Jane. Dr. Alver had Jane’s chart in hand, but was too distraught to properly read and understand it.

In reality, occasional mix-ups do occur. Unfortunately, when they occur in a medical context, the results can be fatal. In the Ontario case of R v Omstead,3 a nurse mistakenly gave a patient the incorrect medication, which resulted in his death. The court determined that this was not a substantial and marked departure from the conduct of a reasonable nurse, because she had followed proper hospital protocol. An expert testified that mix-ups of medications do happen on occasion, even to conscientious nurses. The court determined that the mix-up was the fault of the hospital’s medication distribution system. Since Omstead had followed all necessary protocol by reading the label at least three times before administering the medication, she had not been criminally negligent.

The court also took into account the fact that Omstead self-reported her own error. In contrast, Dr. Alvez tried to conceal her mistake until it was impossible for her to do so any longer. Had Dr. Alvez reported her mistake immediately, Jane may have had more options regarding how to proceed.

To get a better sense of whether Dr. Alvez’s behaviour would be a marked and substantial departure from the conduct of a reasonable medical professional, I consulted two doctors. A pediatrician from BC Children’s Hospital believed that, “it’s a departure. Who the hell would do a procedure without confirming the patient and the plan?!” She added that the circumstance of being in charge of unfamiliar patients did not excuse Dr. Alvez’s conduct. If a doctor is dealing with new patients, it is even more crucial to take extra precautions to ensure that they are performing the correct treatment.

When asked if Dr. Alvez’s conduct would be considered a marked and substantial departure from the conduct of a reasonable OBGYN, a surgeon from St. Boniface Hospital responded, “Ummmmmmm, YES!”

These strong reactions indicate that Dr. Alvez’s conduct was indeed a substantial and marked departure from the conduct of a reasonable doctor. A Canadian court would likely consider Dr. Alvez’s artificial insemination of Jane criminally negligent. Escándalo! To put a positive spin on this, perhaps this means that a Jane the Virgin/Orange is the New Black crossover episode* might be in the works! *Disclaimer: If someone from the CW or Netflix is reading this, please note that I expect full compensation if my crossover episode idea is used…do any copyright lawyers read this blog? If so, call me.

Endnotes

1 Jane the Virgin, 2014, DVD (Burbank, Cal: Warner Home Video, 2014).

2 Criminal Code, RSC 1985, C-46, s 216.

3 R v Omstead [1999] OJ No 570, 1999 CarswellOnt 632.