(dissenting):
I dissent. In my view, Dr. Warden's actions did not satisfy the statutory requirements necessary to support a conviction of negligent homicide under Utah Code Ann. § 76-5-206 (1990). According to Utah Code Ann. § 76-2-103(4) (1990), a person is criminally negligent
with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor’s standpoint.
The Code provisions defining criminal negligence and negligent homicide are taken directly from the Model Penal Code. The commentary to the Model Penal Code states that a primary factor in criminal negligence is the actor’s lack of awareness of creation of a risk. “A person acts negligently under this subsection when he inadvertently creates a substantial and unjustifiable risk of which he ought to be aware.” Model Penal Code § 2.02 comment 4, at 240 (Official Draft and Revised Comments 1985). One commentator has stated: “The most obvious difference between intentional and [criminally] negligent conduct is that in the former case, the actor chooses to do harm, while in the latter, he is unaware that he is causing harm.” 1 Fletcher, The Theory of Criminal Negligence: A Comparative Analysis, 119 U.Pa.L.Rev. 401, 408 (1971). See also State v. Standiford, 769 P.2d 254, 267 (Utah 1988); State v. Hallett, 619 P.2d 335, 338 (Utah 1980). The risk created by the inadvertent conduct must be a substantial and unjustifiable risk such that the failure to perceive the risk constitutes a gross deviation from the standard of care that an ordinary person would *1154exercise. The Model Penal Code commentary states: “Considering the nature and purpose of his conduct and the circumstances known to him, the question is whether the defendant’s failure to perceive a risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” Model Penal Code § 2.02 comment 4, at 241 (Official Draft and Revised Comments 1985) (emphasis added). Ordinary negligence, which may serve as the basis for damages in a civil action, is “not sufficient to constitute criminal negligence.” Standiford, 769 P.2d at 267.
Criminal negligence cases pose difficult issues as to vagueness and the fundamental fairness of basing a conviction on a subjective standard as to what kind of conduct is prohibited. See O’Hearn, Criminal Negligence: An Analysis in Depth, 7 Crim.L.Q. 27, 29 (1964-65). The Model Penal Code commentary states:
[I]t is quite impossible to avoid tautological articulation of the final question. The tribunal must evaluate the actor’s failure of perception and determine whether, under all the circumstances, it was serious enough to be condemned.
Model Penal Code § 2.02 comment 4, at 241. See also Annotation, Homicide Predicated on Improper Treatment of Disease or Injury, 45 A.L.R.3d 114, 145 (1972).
Because of the dual nature of the determination made by a jury in criminal negligence cases, a different standard of review is appropriate since it is necessary to determine both the sufficiency of the evidence and the propriety of the normative standard that is implicitly intertwined with the facts pertaining to the nature of the risk that gives rise to criminal liability. In the ordinary criminal case, the jury is informed of the legal elements of the crime, and if the jury finds that the evidence fits the elements, then an offense has been committed. In criminal negligence cases, the jury decides not only the facts, but also the legal standard for the kind of conduct that warrants criminal sanctions. Accordingly, we should carefully review the nature of the conduct the jury found to be criminal. In my view, when the testimony of credible experts differs as to what appropriate conduct is, not because of some inherent issue of credibility but only because they assess the risk factors differently, as was the case here, we should exercise great care to assure that what, at least, is civil negligence is not held to be criminal negligence. In my view, the majority fails to make that distinction and holds that what is, at most, civil negligence is a crime.
The majority rules that Dr. Warden breached the standard of care in at least two instances. I believe that a careful examination of the evidence fails to support either that a breach occurred or that a criminal standard of care was in fact established. For example, the majority asserts that “given the information Warden had at the time [prior to the birth], the standard of care would require him to examine [Joanne] Young prior to the time birth was imminent.” However, one of the prosecution’s own experts, Dr. Branch, an obstetrician/gynecologist who teaches at the University of Utah, stated that given what Dr. Warden knew at the time, his decision to have Ivy Young simply observe her daughter prior to the birth and between phone calls to him did not fall outside the standard of care.
The majority also rules, “The standard of care for a newborn of the gestational age and symptoms of the infant in this case would require placement in an intensive care unit.” It is true that one of the prosecution’s own experts, Dr. Chan, testified that one of the reasons for hospitalizing the infant was because it “would be outside the standard of care to have lay family ... members ... watching and observing and monitoring a baby.” He also conceded, however, that there were “other competent physicians in the practice that would ... disagree” with his assessment.
I submit that a conviction based on evidence that establishes such uncertain normative standards by the prosecution’s own witnesses is simply unjustifiable. This is far removed from the situation in which someone runs a red light at 60 miles per hour, clearly violating standards of the *1155criminal law. See State v. Hallett, 619 P.2d 335 (Utah 1980).
Furthermore, none of the prosecution’s expert witnesses practiced home deliveries. The defense produced its own expert, Dr. Gregory White, who had performed over 1,000 home deliveries. He testified that some differences existed between home deliveries and hospital deliveries, that generally Dr. Warden’s actions did not violate the standard of care, and in particular, that hospitalization of the infant was not necessarily indicated.
In short, the evidence as to the standards of care Dr. Warden was charged with violating does not establish any clear and specific standard of care sufficient to meet the due process requirements of the law, irrespective of whether it is sufficient for a civil malpractice case. Furthermore, to apply a substantial evidence test to both the normative standard and the facts concerning breach, is to allow the jury to make the law, and to put all physicians who deal with life and death situations in an untenable position.
In addition, the evidence does not establish that the risk which Dr. Warden took was unjustifiable. The evidence demonstrates that Dr. Warden was well aware of the risk involved, but exercised a reasoned, professional judgment in deciding to forego hospitalization of the infant. His judgment was based on several factors. He drew on 20 years of experience with over 300 home deliveries. He testified that of the home-delivered infants, ten had been premature, and of those ten, eight had experienced respiratory distress syndrome. Of those eight, Dr. Warden had hospitalized three. He testified that the other five who had experienced respiratory distress syndrome improved without hospitalization and with only home care. Dr. Warden further testified that when he left the infant that night, he had made a conscious decision that the condition of the infant was similar to that of the five who had not required hospitalization. In fact, Dr. Warden testified that he had seen infants who had been more sick than the Young infant and had recovered without hospitalization.
Dr. Warden’s own testimony on cross-examination demonstrated that he was aware of the risk and made a calculated judgment:
Q. (by the prosecutor) We have a risk here, a child who obviously is exhibiting the symptoms of respiratory distress syndrome; is that right?
A. Correct.
Q. You’re aware of that risk?
A. Yes.
Q. You’re aware that this child could, if it worsens, die from that, are you not?
A. That’s correct.
Q. You’re aware of all of those factors?
A. Yes.
Q. You have a grandmother here that you have confidence in relative to her care of that child, right?
A. Yes.
Q. And you also in your own mind have a consideration that this may be expensive to take this child to a hospital, right?
A. Yes.
Q. Now, at that point in time, you elect in your own mind, exercise that judgment and you elect not to recommend that the child be taken to the hospital at that time; is that right?
A. Yes.
Q. Now, you’re also aware, are you not, Doctor, as to the progressive nature of this disease?
A. Yes, I am.
Q. And you’re also aware, are you not, that exercising caution in these circumstances is of the utmost importance to the life of that child?
A. That’s correct.
Q. Now, did you feel in your own mind that by placing that child in the care of a lay person that that indeed was exercising caution in this respect?
A. Mr. Wilson, I exercised judgment.
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Dr. Warden’s professional judgment that the infant would survive if left at home under the observation of the grandmother, to whom he gave instructions, was concurred in by other competent physicians.
*1156Other testimony from the State’s own witnesses demonstrated that the risk which Dr. Warden took was not an unjustifiable risk. For example, the State’s expert medical witnesses testified that although the mother and baby “would do better” in a hospital, Dr. Warden’s evaluation of the infant’s vital signs indicated that they were “acceptable.” Dr. Chan testified that statistically only 2 percent of babies die from untreated respiratory distress syndrome. He also stated: “I guess the message is it’s very unusual and rare to lose a baby at this gestation and this birth weight from hya-line membrane disease.” Furthermore, Dr. Warden had been informed that the family wished to minimize the expense of the birth and did not want to go to a hospital because of the expense.
Finally, the evidence does not support the conclusion that Dr. Warden’s actions caused the child’s death. He left the child in the care of the grandmother, who was instructed to call him if the child’s condition worsened. The State’s experts testified that a layperson would be unable to recognize subtle changes in the condition of the child as the disease progressed but, in the early morning hours, a manifestly obvious change occurred. At 8 a.m., the child stopped breathing. The grandmother resuscitated the child and then called the doctor’s office but did not disclose her name or that the situation was an emergency. Although Dr. Warden was not at his office at the time, he was available and could have responded if the nature of the emergency had been communicated to his office. The grandmother then called a friend and discussed the birth of the child, but she did not mention that it had stopped breathing. Later, she called her clergyman, but again did not advise him of the emergency. At 10:30 a.m., the clergyman and another doctor arrived at the home, and the child was hospitalized. Any kind of reasonably prompt action by the grandmother may well have saved the child’s life. Because of her intervening unreasonable failure to inform Dr. Warden’s office of the emergency, Dr. Warden was not the legal cause of the child’s death.
In my view, the criminal law should not be used to punish a physician for a death when he or she makes a decision that turns out to have a fatal consequence, simply because some other physician, acting in more favorable circumstances, would have done differently.
. Criminal negligence is most often compared with recklessness, the mens rea required for one type of manslaughter. The commentary to the Model Penal Code elaborates on the distinction between the two:
[The] level of culpability [required for criminal negligence] should be distinguished from recklessness, which suffices for conviction of manslaughter under Section 210.3. The essence of the difference between recklessness and negligence as those terms are defined in Section 2.02 of the Model Code is that the reckless actor must ‘‘consciously disregard” a substantial and unjustifiable homicidal risk created by his conduct, whereas the negligent actor need only disregard a risk of which he "should be aware.”
Inadvertence to risk is thus the basis upon which condemnation for negligence proceeds, coupled with the judgment that the actor’s failure to perceive the risk involves a "gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.”
Model Penal Code § 210.4 comment 1, at 80-81 (Official Draft and Revised Comments 1980). Summarily stated, recklessness requires awareness of a substantial and unjustifiable risk and a conscious disregard of the risk, while criminal negligence requires unawareness of a substantial and unjustifiable risk of which the actor ought to have been aware.