(dissenting). As noted in the majority opinion, this is a most unusual case, both because of the nature of the disease and the mode of proving the alleged criminal negligence of defendant.
To keep the issues in proper focus it must be remembered that hepatitis is of two general classes, i. e., (1) toxic hepatitis, and (2) viral hepatitis. Jaundiced or icteric skin is a common characteristic of both classes. Toxic hepatitis is caused by various poisons or drugs and is noncommunicable. Yiral hepatitis is caused, as its name suggests, by a virus which has to date not been isolated, and is subdivided into two categories, i. e., (1) infectious, (2) serum hepatitis. Infectious hepatitis, which has an incubation period of four to six weeks, is generally transmitted orally, although it is possible to transmit the disease parenterally. Serum hepatitis, which has an incubation period of from six weeks to eight months, is transmitted only by the introduction of the virus into the blood stream. The disease is so virulent that the introduction of 1/40,000 of a c.c. of virus-bearing plasma into the blood is sufficient to cause infection. (A c.c. equals about one-quarter of a teaspoon.)
The determination of whether a patient is suffering from infectious or serum hepatitis is particularly difficult at the onset of the disease. And it must be emphasized that in the early stages of hepatitis no positive diagnosis can be made to eliminate any one of the three types. The positive ascertainment of which of the above types of hepatitis a person is suffering from can be made only through the history of the patient or by epidemiology. That there has been an increase in the recognized incidence of serum hepatitis since World War II is a substantiated scientific fact which has received much general publicity. In spite of the minimal information about serum hepatitis it is medically indisputable that the disease is transmitted solely by the introduction of the virus into the blood stream, and that the spread of the infection *43during the course of intravenous injections or infusions can be prevented by the use of aseptic instruments and medication.
We come then to the crime for which defendant was indicted in 15 separate counts—involuntary manslaughter in connection with the death of 15 persons, all of whom allegedly died of serum hepatitis with which they became infected as a result of defendant’s criminal negligence.
The essential'elements which had to be established beyond a reasonable doubt to convict the defendant under any count were as follows: (1) the decedent named in each count of the indictment died of serum hepatitis; (2) this disease was transmitted by defendant during his course of medical treatment; (3) the transmission resulted from the criminal negligence of defendant during the course of that treatment.
As to the 12 of the named decedents of whose deaths defendant was found guilty, the majority agrees that there was sufficient proof to warrant the jury in finding that the first two elements had been established beyond a reasonable doubt. But they are dissatisfied with the way the third element was handled at the trial, in essence concluding that the State failed to establish a standard practice which defendant violated; that even admitting that such a standard and breach had been adequately demonstrated, the State failed to show which one or more of these improper procedures were followed in the treatment of these 12 decedents, thereby failing to adequately prove a causal connection between such alleged criminal negligence and the deaths; and that the trial court should have charged the jury that in order to find defendant guilty of a patient’s death it must determine which particular standard or standards the defendant breached, causing death.
Before addressing these conclusions, a discussion of “criminal negligence” is required.
It is difficult, if not well nigh impossible, to give a precise definition of criminal negligence. 1 Wharton’s Criminal Law & Procedure, 613, 620 (Anderson 1957). The cases have referred to it in general terms as “reckless,” “gross” *44or “wanton.” Wharton’s, supra, 613. Wharton’s, supra, 611, reads as follows:
“It involves a reckless disregard for human life, and is the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the willful creation of an unreasonable risk thereof. There must be negligence of a gross and flagrant character, evincing reckless disregard of human life, or the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of conscious indifference to consequences, or which shows such wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.”
In Staub v. Public Service Railway Co., 97 N. J. L. 297 (E. & A. 1922), the court said, at p. 300:
“To establish a willful or wanton injury it is necessary to show that one with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result.”
See also State v. Gooze, 14 N. J. Super. 277 (App. Div. 1951), State v. Diamond, 16 N. J. Super. 26 (App. Div. 1951).
The foregoing standards have been stated with more precision where applied to the medical profession. Justice Holmes, in Commonwealth v. Pierce, 138 Mass. 165, 52 Am. Rep. 264 (Sup. Jud. Ct. 1884) held that a physician’s criminal negligence could be found in his foolhardy presumption or gross negligence in prescribing treatment. That was similar to the condemnation of the “leap in the dark” which defendant herbalist took in R v. Markuss, 4 F. & F. 356, 176 Eng. Rep. 598 (1864). In State v. Lester, 127 Minn. 282, 149 N. W. 297, L. R. A. 1915 D, 201 (Sup. Ct. 1914), defendant’s criminal negligence involved his alleged incompeteney, inattention, or wanton indifference to his patient’s safety in treatment by x-ray.
*45In Hampton v. State, 50 Fla. 55, 39 So. 421 (Sup. Ct. 1905), it was held that criminal negligence exists where the physician or surgeon, or person assuming to act as such, exhibits gross lack of competency, or gross inattention, or criminal indifference to the patient’s safety, and that criminal negligence may arise through gross ignorance of the science of medicine or surgery and of the effect of the remedies employed, gross negligence in the application and selection of remedies and lack of proper skill in the use of instruments, or failure to give proper instructions to the patient as to the use of medicines. See generally Wharton’s Criminal Law (12th ed.), § 488, p. 717; 1 Anderson Ed. (1957), § 294, p. 618.
In every case, the question of the degree of negligence, i. e., its grossness, recklessness, or wantonness is a question for the jury which must be satisfied that the negligence or incompetence of the accused showed such disregard for the life and safety of others as to amount to a crime against the State deserving punishment. See Rex. v. Bateman, 94 L. J. (KB) 791, 794; 133 L. T. 730 (1925). See generally Wharton’s Criminal Law (1957), 1 Anderson ed. (1957), § 294, p. 618.
The standard to which a medical practitioner or specialist is held is summarized in Wharton’s Criminal Law, 207 (12th ed.) as:
“A negligent offense is an offense which ensues from a defective discharge of a duty, which defect could have been avoided by the exercise, by the offender, of that care which is usual, under similar circumstances, with prudent persons of the same class. Negligence is of two kinds: culpa levis, which is the lack of the diligence and care usual with good specialists of the particular class under the circumstances; and culpa lata, which is the lack of the diligence and care exercised by honest and worthy non-specialists, dealing with similar objects. In criminal cases this distinction operates mainly to determine the degree of evidence required to convict. A non-specialist (e. g., a person not claiming to be a physician or lawyer) cannot bo convicted merely on proof of want or failure to apply due qualifications ; while a person claiming to be a specialist can be convicted on such proof. * * *”
*46And so, a physician, having held himself out as having the requisite skill to treat diseases generally, is held to that degree of skill and care in such treatment as the general class of persons engaged in that profession, and belonging to the same school, has or employs. This rule is particularly applicable to a medical specialist who holds himself out as being especially qualified and better qualified than the ordinary general practitioner to treat of certain diseases because of his special education, training, knowledge and skill. He is required to exercise the degree of care and to have the skill which the class of persons similarly engaged in that line of specialized activity exercises and has. This is a greater requirement than that supplied under the “ordinary reasonably prudent man” concept and requires of such a practitioner, when dealing in his speciality, the exercise of a greater degree of care and skill than is required of the average man and even of the average general practitioner. Coleman v. Wilson, 85 N. J. L. 203 (E. & A. 1913), Carbone v. Warburton, 22 N. J. Super. 5 (App. Div. 1952), aff’d. 11 N. J. 418 (1953); Clark v. Wichman, 72 N. J. Super. 486 (App. Div. 1962).
A medical practitioner, even a specialist, however, cannot be held liable for negligence where he acts as a member of his school of medicine engaged in his speciality might have acted under the circumstances, but injury was caused by error of judgment—a defense not here asserted. 1 Wharton, Criminal Law, 618. He is required to employ such care and skill as is ordinarily exercised in his branch of the profession, having due regard to the advanced state and knowledge of the profession at the time of the treatment, and is bound to know the dangers inherent in his method of treatment. Coleman, Carbone, Clark, supra.
Applying the foregoing to the factual complex sub judice, it becomes apparent that defendant, a specialist in psychiatry regularly employing intravenous injections and infusions as a part of his course of treatment, should have realized the great danger of the transmission of serum hepatitis through *47the use of non-aseptic instruments or medication in connection with such injections and infusions, and should have employed all due care to avoid infecting patients.
We turn now to the question of whether the State adequately established both a standard of practice, and defendant’s violation of it.
During his injections and infusions, defendant had available two methods of instrument use. He could have (1) employed new disposable needles, syringes, Yen-O-Pak tubing, and bottles of solution in the injection and infusion of each patient and thus have made certain that those instruments or equipment were uncontaminated with the serum hepatitis virus, or (2) used the same needles and syringes repetitively but only after proper sterilization to destroy the virus which possibly could have contaminated the needle and syringe by prior use upon a patient. It is not disputed that the Yen-O-Pak tubing should not he re-used in either method. We shall treat of the repeated use of the 1000 c.c. bottle of saline solution later. The defendant elected to pursue the second of the above alternative courses.
There is adequate expert proof by Dr. Popper, one of the State’s experts, that the recognized procedure for the dry heat sterilization of an instrument to eliminate the hepatitis virus was to keep it at 356° Fahrenheit for one hour. Defendant submitted the needles and syringes to dry heat sterilization at 375° Fahrenheit heat for 15 to 20 minutes. He cites as his authority for this course of conduct, directions allegedly given by the manufacturer’s distributor of the sterilizing machine which he used. He refers to no scientific authority. Surely, in such a critical area the instructions allegedly received from a nonmedical salesman were not such technical advice as would justify the defendant specialist’s reliance thereon nor excuse his apparent failure to make further inquiry or conduct further research to assure himself that his procedure would render the needles and syringes sterile. The only other attempted justification of the sterilization process came from the defendant’s wife, who stated *48that the temperature and length of time complied with what she had done elsewhere as a registered nurse. Again, this is no basis upon which defendant can rely in support either of the standard nature of the proceeding or the efficiency of the method which he pursued.
There was as well adequate proof that a standard procedure required the use of the Ven-O-Pak tubing for only one patient. Defendant does not dispute this testimony but, to the contrary, admits the necessity of following such procedure.
The proof of the use of 1000 c.c. bottles of saline solution and like bottles of surital solution for from 5 to 10 patients per bottle was as well condemned by some of the State’s experts as improper. Some of defendant’s witnesses, on the other hand, testified that bottles for intravenous injections or infusions were used repetitively in various institutions. Viewed in the light most favorable to defendant, this raised a fact issue for resolution by the jury.
That defendant appreciated that the testimony concerning sterilization and use of individual bottles for infusions was directed at establishing standards, and that he was not misled by the form in which that evidence was presented, is demonstrated by his contravening evidence on each of these facets of the case.
There is no dispute that the defendant’s inserting a needle into the vein of a patient, withdrawing it, emptying its contents into a sink, and then inserting that contaminated needle into a bottle filled with surital would contaminate both the bottle and its contents, and that such a course of conduct would be contrary to accepted practice.
Thus there was evidence of standard practice and of defendant’s violation thereof. There was also testimony that would support a finding that these violations amounted to criminal negligence under the circumstances.
But over and above these actions was defendant’s conduct in continuing to inject and infuse patients who were jaundiced. Defendant’s attention was specifically called by one *49patient to the fact that prior to January 1960, and before coming to defendant, she had had a history of hepatitis. A second patient, while being treated by defendant, called his attention to her jaundiced condition in January 1960. Defendant advised her to cease using certain theretofore prescribed drugs but proceeded to treat her intravenously. In May 1960 two patients became jaundiced and were treated for that condition by defendant, who nonetheless continued their intravenous treatments. In July 1960 another patient became jaundiced and defendant continued to treat him intravenously. That defendant recognized the patient’s condition as hepatitis is attested by the fact that he so certified to an insurance company. In September 1960 three more of defendant’s patients became jaundiced. Defendant told one that he had an inflammation of the liver, the second that he had hepatitis, and the third not to worry. In each of these cases intravenous injections and infusions continued. During this same period defendant similarly treated as many as 20 patients per day.
This conduct must be viewed in the light of the testimony of his own expert on cross-examination that it was not standard practice to continue to inject a jaundiced patient, and that of one of the State’s experts that a patient suffering from serum hepatitis should be isolated in a room with his own toilet facilities; food should be served to him upon disposable dishes and with disposable eating utensils; and all equipment used for examination and treatment should not be re-used on another patient. Defendant’s conduct must also be considered together with the following circumstances: Defendant ordinarily scheduled patients at 20-minute intervals but on some days he allocated as short a period as five minutes to each patient. He at times treated as many as 40 patients per day. In addition to his wife, who was a registered nurse and who, on occasions, assisted him, he employed two nurses, only one of whom was in attendance at a time. A nurse would be required to function as a receptionist, to make out bills, receive fees and deliver receipts, sterilize equipment, prepare *50syringes for use, change the Ven-O-Pak tubes, tidy np the four consultation rooms after each use, administer intramuscular injections and disburse drugs prescribed by defendant. Surely a busy day for each nurse.
The knowledge that one patient had a history of hepatitis prior to January 1960, and that a second became jaundiced in January 1960, should have sounded a tocsin for defendant. This alarm became shriller in May with the two additional cases, still shriller in July with the incidence of another case, and deafening in September with the addition of three more eases. Defendant’s disregard of these warnings and his failure to review his procedure—especially since he was assisted by but two nurses and his wife in his practice, which had reached the volume above described—can be categorized as nothing short of reckless or wanton. Dot until late in September or early October did defendant change his modus operandi by the nonrepetitive use of disposable needles, by the use of smaller bottles of saline solution and surital, and the installation of a steam sterilizer in place of the hot air sterilizer he had theretofore used.
It is only reasonable and logical to deduce that there was something drastically wrong with defendant’s procedure when it is realized that serum hepatitis could have been spread by defendant only through the use of contaminated instruments or medication. But defendant, knowing that some of his patients had hepatitis or jaundice in January, May, July and September of 1960, realizing that although he had diagnosed some of their sickness as toxic hepatitis he could not with certainty eliminate the possibility of serum hepatitis, and knowing that serum hepatitis was spread solely by infusion or injection into the blood, continued their intravenous treatments. Thus his conduct in this respect was in breach of standard practice. He also exhibited a general reckless or wanton disregard of and indifference to the welfare of all of his patients when he did not cease intravenous treatment of jaundiced patients and did not check his course of conduct to assure himself that there was nothing in his procedures *51which would spread the disease if the icteric conditions he found in some patients were symptomatic of the dreaded serum hepatitis.
Erom the foregoing it is seen that the State adduced proof which would warrant the jury in finding beyond a reasonable doubt that defendant’s course of conduct exhibited a wanton and reckless disregard of the welfare and safety of his patients and the probabilities of fatal consequences of exposing his patients to the known danger of infection with serum hepatitis unless due precautions were taken and standard procedure followed.
My colleagues of the majority also conceive that causation was not adequately proved. They reason that since four or five theses of habitual faults were advanced by the State as constituting criminal negligence, the jury was obliged to find of which one or more defendant was guilty and which one or more was the particular medium that caused the transmission of the disease in each of the deaths.
With this conclusion I do not agree. I reiterate that there was adequate proof, as admitted by the majority, to warrant the jury’s finding beyond a reasonable doubt that 12 of the named deceased died of serum hepatitis transmitted by the defendant in the course of his intravenous treatments of them. The only way that serum hepatitis can be communicated is by the introduction of the hepatitis virus into the blood. The disease would not have been spread had defendant’s instruments and medication been aseptic. The sole possible conclusion that can be drawn from these postulates is that defendant did not employ sterile instruments or medication. The question which naturally then arises is, What caused the instruments or medication to become and remain contaminated? (i. e., What did defendant do to cause non-asepsis in his treatment of 12 of those who died?) :
It must be recognized that direct proof of what actually occurred in the treatment of any of the patients whose fatality was caused by hepatitis is to all intents and purposes impossible. Their respective voices are silenced by death. Thus, *52only the defendant and his employees could conceivably furnish this missing information by direct evidence. It is self-evident that the defendant himself could not be called by the State to establish these facts. It is hardly possible that his employees would recall specifically the procedures in each of the 12 instances where death resulted from serum hepatitis, bearing in mind that defendant treated as many as 40 patients per day. Additionally, under defendant’s modus operandi only he was present with the patient during treatment and hence that which occurred during that period is impossible to reveal. No expert could testify as to the specific negligent act of defendant which transmitted the disease to any individual patient.
It is clear, therefore, that an insurmountable obstacle to prove defendant guilty would be raised were it required to prove what actually transpired in the treatment of each of the 15 patients named in the indictment by pinpointing the particular medium which caused his infection. Were the thesis of the majority followed it would be impossible to convict a defendant who is guilty of more than one negligent act unless the specific act causing the death could be ascertained and proved by direct evidence beyond a reasonable doubt. Circumstantial evidence would be unavailing.
Only by proof of conduct habitually practiced upon those patients who survived the serum hepatitis infection could the State circumstantially demonstrate the possible manner in which both the living and the dead became contaminated. The State, therefore, employed the tactic of attempting to prove that defendant’s criminal neglects were matters of general habit or practice and were the cause of the transmittal of the infection to the deceased. In that situation the Prosecutor could not properly have limited the proof to one allegedly improper action. Patently, the State had been advised by its experts that there were at least four or more procedures which defendant pursued which were not consistent with customary practice, and which probably caused the spread of the infection. The State was neither obliged to, *53nor could it eliminate any one of the procedures from consideration by the jury.
At no point does defendant assert that having once intravenously treated a patient while infected with viral hepatitis, there was no method by which the further spread of the disease could have been prevented in subsequent like treatments of other patients. He does not argue that it is impossible to destroy the hepatitis virus by instrument sterilization or to prevent the transmittal thereof by the avoidance of equipment re-use. He does not defend upon the thesis that although complying with standard procedure he had committed an error of judgment. No explanation of how 40 of defendant’s patients could have contracted serum hepatitis in any method other than through his use of contaminated equipment or medication is advanced. The jury could then have reasonably concluded at the close of the entire case that it was probable (beyond a reasonable doubt) that the disease was spread through his general disregard of standard practice and due care in the above respects to prevent infection and that these derelictions evidenced a reckless disregard of the consequences thereof.
The question here is not simply whether defendant was guilty of a particular single isolated reckless or wanton act of negligence which caused death. I would hesitate to allow a jury to find criminal negligence, under proof of habit and custom, had this case involved the death of a number of patients caused by defendant’s single act of negligence on one occasion. (See Akerele v. The King (P. C. 1943) A. C. 255, where the court denied the existence of criminal negligence in the defendant’s causing the death of 10 patients by his injections of them from a bottle of fluid that he had mixed in the wrong proportion, defendant’s attention not being called to his mistake until the damage had been done.) Here, however, defendant is not charged with an isolated act of negligence but rather with a long, continuous, negligent course of conduct, and the question is whether the aggregate total of defendant’s conduct exhibited a general reckless or *54wanton disregard and breach of his duty to his patients to exercise that degree of care and skill required of him as a medical specialist to prevent the infection of his patients with serum hepatitis, and, whether it is probable (beyond a reasonable doubt) that the infection-' was thus transmitted to those for ythose death he was indicted as a result of such conduct. Under the proof, the jury was justified in finding that defendant’s conduct was such as to exhibit a reckless and wanton disregard of normal procedures. Again, having in mind the nature of the disease, the proof that 12 of the persons who died became infected during Dr. Weiner’s course of treatment ■—a conclusion not denied by the majority—the absence of any proof or argument that these patients could have become infected in any manner other than through some one or more of the State’s hypothesized means, it is rational to conclude, beyond a reasonable doubt, that the instruments and medication could have become contaminated only by defendant’s deviation from standard practice in one or more of the manners alleged by the State. It is unnecessary under the peculiar facts here present for the jury to decide of which one he was guilty. It was sufficient for the jury to find, as suggested by the State, that there was no other manner in which contamination could have occurred than by some one of the modes-followed by the defendant. The jury could also have found beyond a reasonable doubt that defendant’s action in continuing intravenous treatments after notice of jaundice in his practice constituted a reckless and wanton disregard of standard practice and his patients’ welfare, either by itself or in conjunction with the other improper practices above referred to. It follows that there was adequate proof of criminal negligence to sustain a guilty verdict.
As noted in the majority opinion, the jury requested further instruction in connection with the court’s charge. The following appears in the transcript:
“The Coubt: Members of the jury, I have a memorandum from you, in which you say ‘In your Honor’s charge, specific reference was made regarding a doctor’s responsibility and/or liability for over[t] *55acts of commission or omission by nurses in Ms employ wMch are the proximate cause of some subsequent wrong.’
I am going to read to you that particular paragraph I feel you have reference to, since you refer to my charge.
‘(6632) The evidence indicated that it was the duty of the nurses employed by the defendant to change the Ven-O-Pah 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 the proximate cause of the death of any one or all of the 15 decedents, then you would be justified in finding the defendant guilty of any or all of the counts in the indictment.’
Is that clear?
All right. You may retire.” (Emphasis supplied)
The only reference in the charge to defendant’s liability for the acts of his employees was in connection with the reuse of Ven-O-Paks. This is quite clear when the above section of the charge is read in context with the entire original charge. That the instruction was limited to Ven-O-Pak was re-emphasized by the above-quoted colloquy during which that portion of the charge was separately redelivered. I do not see how the jury could have failed to understand that this facet of their instructions applied only to Yen-O-Pak reuse. The propounding of the question by the court, “Is that clear?” and the failure of the jury to demur, leads to but one conclusion, that the jury’s request and the court’s charge and recharge were understood to have been restricted as above stated and that the jury so “clearly” understood. Moreover, no suggestion appears in the record that the trial court’s understanding of what bothered the jury was incorrect, as defendant’s counsel made no suggestion or objection.
While on the question of charge, I should like to state that the defendant received a more favorable instruction than the facts and issues warranted, when the court stated:
“It is basic in onr tMnking that for any criminal liability there must be concurrence of an evil-meaning mind with an evil-doing hand, so that to impose criminal liability on any or all of the counts in this indictment, the negligence of the defendant must be such that *56you are convinced beyond a reasonable doubt that the negligence was of a gross and flagrant character, evincing reckless disregard of human life, which would raise the presumption of indifference to consequences or which shows a wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of those rights.” (Emphasis supplied)
I would affirm.
Justice Schettino joins in the above opinion.
Jacobs, J., concurring in result.
For reversal—Chief Justice Weintbaub, and Justices Jacobs, Ekancis, Peoctoe and Hale—5.
For affirmance—Justices Schettino and Haneman—2.