A fortnight ago a highly regarded US doctor was acquitted of 14 murder charges arising from dozens of fatal fentanyl overdoses of ICU patients in his care. The case raises important questions around the fine legal distinctions between murder, euthanasia or doctor’s discretion in palliative pain management.
As reported in MedicalBrief on 2 February this year, Dr William Husel had worked at Ohio’s Mount Carmel Hospital for five years. As a physician in the ICU, he was nominated for the institution’s Doctor of the Year twice, winning the award in 2014.
But in 2018, he was accused of killing dozens of his patients with overdoses of fentanyl – in some cases, doses that were up to 10 times higher than what some experts said was the typical palliative amount, reports People magazine.
The prosecution called 53 witnesses and presented dozens of exhibits. But the defence presented only one witness to discuss comfort care for terminal patients.
Yet prosecutors could not present a motive for the killings. They also struggled to explain an internal memo within the Mount Carmel hospital system that listed possible“villains” in the deaths of the patients – and seemed to list Husel as their primary scapegoat.
Additionally, Ohio did not have a statute that outlined the maximum dosage of fentanyl. Doctors are given wide discretion in deciding what’s best for their patients.
Throughout the trial, Husel maintained his innocence.
“I cared for my patients,” he said.“I felt that the doses were appropriate for them. At Mount Carmel, they didn’t have any policy or protocol for dosage. It’s up to the physician, at his discretion, to manage the symptom at end of life.”
Major flaws in the hospital’s patient safety systems were also highlighted after the cases came to light, with an outside medical expert, Dr Robert Powers, a professor of emergency medicine at the University of Virginia, testifying in one of the dozens of wrongful death lawsuits against Mount Carmel and Husel that there was no record of anyone supervising Husel or monitoring his care.
Throughout the trial, the question of euthanasia was pivotal to the case. Two critical care physicians served as expert witnesses in his trial. Dr Joel Zivot of Emory University in Atlanta, was the only witness called by the defence, while Dr Wes Ely of Vanderbilt University and the Nashville VA, was one of 53 witnesses called by the prosecution.
In a MedPage Today interview Zivot and Ely discussed the complexities of the trial: the lack of guidelines on end-of-life opioid dosing, plus the intent of relieving pain versus the intent of shortening the dying process.
Zivot said the “intangible problem of pain”, especially around the time of death, was difficult to measure, with which Ely agreed, adding, “We don’t have the right to take someone’s life, but we absolutely have the intent and the vocational calling to relieve suffering.”
Doctors spend a lot of time thinking about dosage, added Zivot. “Many other kinds of medications we administer have an associated dosage with them. What’s tricky about opioids is that, regarding specific doses, we understand various responses can occur as a consequence of things like prior exposure, or the intangible problem of how much pain a person is actually having. If I’m giving a medication, for example for high blood pressure, I've got a sharp target and I know when I’ve achieved that dose. But the intangible problem of pain, especially around the time of death, is very difficult to measure.
“For example, the American Medical Association really just specifies a quantity necessary to achieve the desired goal.”
Ely said standard starting doses doses of analgesics opiates – opioids for relieving pain – were in the 50 micrograms to 100/200 microgram ranges, but these numbers were not “hard and fast”.
“If our goal is to relieve suffering, we must balance the risk and the benefit of the drug. So with fentanyl, for example, we would start in the 50 microgram to 100 microgram range, and then go up if the patient still exhibited signs of pain.”
What doctors don’t do is immediately jump to doses 10 or 20 times higher –1,000 to 2,000 micrograms – without first going with the lower doses, because the lower doses could achieve pain relief without the main problem of completely suppressing the drive to breathe, he said.
“Because these drugs will suppress the brain’s drive to breathe, and fentanyl will also create intense chest stiffness, preventing someone from breathing, too.
“So, if your intent is to relieve pain: start low, go high. And as you move to the high doses, that’s where you shift from intent [to relieve] pain to something like – for example, in countries that have legalised euthanasia – an intentional shortening of the dying process.”
Both Ely and Zivot are against euthanasia.
Ely said when he reviewed the Husel case records, he did not believe Husel was practicing euthanasia.
He said to Zivot: “When you reviewed the records, perhaps that’s what you thought – that he was practicing euthanasia. And perhaps, that euthanasia here equates with murder. Maybe that’s the place where we found ourselves at odds.
“In the conversations between physicians and in the house of medicine, we’re capable of more nuanced conversations. But the court is very specific on what it means to murder, and murder, I think, was what was at stake here, murder was the problem.”
Ely said he was unaware of Husel’s intent.
“I never claimed to know his intent, and euthanasia does pivot on intent. So, if I intentionally am doing something to shorten your dying process, that is wrong, it’s against the law. If I intend to relieve your suffering, that is not against the law, even if by double effect, I shorten your life with the drug.
“Somebody in the ICU is voiceless when they are in critical care, on a ventilator, and unconscious. We have to protect them … how do we speak for people who don’t have a voice? So in this case, we must ask ourselves the difference between palliative care and euthanasia.”
He added that Husel’s doses of 2,000 micrograms, 1,000 of fentanyl, “will almost always stop somebody from breathing”.
“So those doses fall into the category of almost always going to shorten somebody’s life.”
Zivot didn’t believe Husel had “the comportment of a murderer”.
“Normally as physicians, where we interact with the law is through the concept of negligence, and negligence is something we think of as a non-criminal wrong or a tort. What was unusual about Husel is that he was charged with a criminal wrong, and a criminal wrong is constructed very differently from a non-criminal wrong.
“A criminal wrong needs two elements: first, the guilty act, referred to as actus reus. And then the guilty mind, or mens rea.
“I think the court erred is assuming the act alone was where the guilty mind therefore must lie. It’s the same problem with the case of the nurse RaDonda Vaught, where an action alone was considered to be only the thing a person with a guilty mind could possibly do.
“That’s troubling. I think the law here has shown itself to be strikingly limited to navigating these very important end-of-life questions and practices.”
Ely said in this case, he thought it was actus reus. “There was a dose given which was almost certainly going to shorten someone’s life. A median time of death of 12 minutes is very unusual. Mens rea, I have no idea. I don’t know what was in Husel’s mind, but I know the families were not told the patient was about to get a lethal dose of drug, and they did get what I absolutely consider a lethal dose.
“Again, I do not know his intent, but the circumstance of taking care of patients in the ICU… we must always be aware that we have the power to actus reus, to commit a harm against a person that can’t be reversed.
“In this case, what was striking was that the pain scores for many of these people were zero all day, meaning no indication of ongoing pain, until they received 1,000 or 2,000 mcgs of fentanyl and benzos. Suddenly, they were at 10. That seems very unusual, where somebody goes from zero to 10.”
He added that something he had never seen in 30 years of medicine was that all 14 death notes were part of the Do Not Resuscitate (DNR) and the withdrawal-of-life support note.
“Usually, I would write a note. I just conversed with the family and they believe the patient would want to not be resuscitated. Then hours later, we have chosen to withdraw support, and then maybe hours or a day or two days later, the patient has now died. But in all 14 of these people, those three notes were in the same note. I’m making them DNR, I’m taking them off the vent, they’re dead.
“That to me shows these doses were part of an active shortening of the dying process. Whether he meant to do it or not, it happened.
“I would not want Husel to be jailed, but I want us to protect society for vulnerable patients, to set up laws and rules within medicine so we don’t take advantage of people who can’t speak for themselves.”
On actus reus, Zivot said: “I would say an act occurred, but whether that’s a guilty act, I think I would push back on. I just think an act occurred. And when we think about the conflict in bioethical practice, we can probably start with the simple first two directives of secular ethics. The first being: do no harm. And the second: do good. So non-maleficence and beneficence.
“Where we got into trouble here is that the law decided it had something to say in a way that was ultimately very problematic.
“In these cases, in every instance, a conversation took place. In every case, the family agreed the patients would be made DNR, and most of the time, as we know in intensive care, patients die because we stop. That’s the normal way to die in intensive care.
“So, now it might be claimed that the conversation was manipulated in some way.”
Ely could not surmise whether Husel manipulated any conversations.
“What I do think is that when people sign for their loved one to get DNR orders, they don’t sign on to get a dose of drug that will stop them from breathing. And that did happen, even though the families didn’t know it.”
He referred to a paper published in 2013 from Flanders, Belgium, showing that when people were given medicines to provide palliative care, 27% of the time doctors were deliberately giving a dose to end the patient’s life.
“The Belgian families were not told they were getting that dose. The doctors did intend it, and that is considered a crime in Belgium. It’s considered murder there, but they weren’t criminally prosecuted.
“And what I hope happens from Husel’s situation is that we all reconsider – and this is happening at the Society of Critical Care Medicine – and review guidelines of pain, anxiety, and delirium, and address what reasonable doses are. We can’t skip steps and jump to these high doses that cause chest restriction and lack of breathing without first going through very low doses.
“Also, let’s have checks and balances so we can calibrate one another and inform one another from within medicine, rather than having to go to court to do this, which I don’t believe in.”
ZIvot said: “The law struggles, and I think it struggled greatly in this case in trying to navigate an important subject that really should be under the purview of medicine.
“We need to do a better job of conveying to the public and each other what we intend; draw the distinction between the reduction of suffering, active euthanasia, and even in the most extreme, unusual example, the intentional killing of a person with malice.”
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