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Omnia pro aegroto
June 12, 2001
Mr. Mark Shurtleff
Utah Attorney General
236 State Capitol
Salt Lake City, UT 84114
Mr. Melvin C. Wilson
Davis County Attorney
P O Box 618
Farmington UT 84025
Re: Dr. Robert A. Weitzel
Dear Sirs,
We are compelled to object to your statements and conclusion in your
letter to us dated May 18, 2001 (the "Letter";).
We vigorously object to your conclusion: "The jury will therefore decide
whether Weitzel's pain management decisions which resulted in the death
of patients were good judgment" (Letter at p. 4). Juries do not
practice medicine. Physicians do. The public does not want attorneys or
juries second- guessing medical judgments about pain management,
especially not in a criminal context.
Moreover, your statement implies certainty that Dr. Weitzel's
decisions-rather than their advanced age and complicated medical
conditions- resulted in the death of his patients. That is an unproven
allegation. Pursuant to Rule 24, the decision to grant a new trial has the
effect of nullifying the judgment and placing Defendant "in the same
position as if no trial had been held" (Utah R. Crim. Pr. 24(d)).
As paragraph 3 of the Letter states, Dr. Weitzel did not diagnose any of
the five patients as being terminal upon admission to the geropsychiatric
unit. However, after the patients had been in the unit under observation
for a time, their condition and his assessment apparently changed. Dr.
Weitzel evidently felt that they could not survive long in the absence of
aggressive medical intervention, probably requiring transfer to the nearby
Intensive Care Unit-with or without adequate pain relief. One prosecution
such as Dr. Weitzel's assures that many other patients will spend their
last days without adequate pain relief.
According to trial testimony, the cause of death was "undetermined" at
autopsy, except in one case, which was signed out as "homicide", in the
opinion of one pathologist, on the sole basis that morphine was detectable
in the tissues. (Morphine was not detectable in the other cases.) As the
bodies were in varying stages of decomposition, it is not surprising that
a specific cause of death could not be identified. Even immediate
autopsies do not always reveal a proximate cause of death (such as a
cardiac arrhythmia).
One of the patients who died was a 93-year-old with well-documented
bleeding. Although the source of the gastrointestinal hemorrhage was not
found at autopsy in this patient (who had a detectable morphine level),
the numerous episodes of vomiting coffee-ground material and passing
melanotic stool (both evidence of blood in the upper g.i. tract), along
with poor fluid intake, lack of urine output, and other clinical evidence
of a moribund condition, demonstrated that death was likely without the
intensive care that the family had refused.
The reasons provided in the Letter for prosecuting Dr. Weitzel again are
alarming. Three full paragraphs are devoted to scurrilous, irrelevant
allegations about Dr. Weitzel. At one point you even rely on hearsay from
a California tabloid and "local media reports" from Texas. Do you really
make prosecutorial decisions in Utah based on out-of-state media reports?
Let's hope not.
The Letter, as well as the trial transcript, makes it plain that the State
has no evidence that Dr. Weitzel deliberately administered or ordered a
fatal dose of medication for any patient, but relies solely on the opinion
of various expert witnesses that he exercised poor judgment. As it will
always be possible to find some physicians who disagree with the attending
physician's judgment about drug dosage, this approach inevitably will have
a profound chilling effect on the prescription of comfort measures for
patients with an acutely deteriorating course-the more so in view of the
State's concealment of the opinion of the best qualified witness.
As Judge Thomas L. Kay found in his Memorandum and Order of January 9,
2001, "prosecutors had a manifest constitutional, legal, and ethical duty
to disclose to the defense Dr. Fine's opinions and failed to do so".
The Judge continued: "In assessing the significance of the evidence the
prosecutors failed to disclose, it is important to note at the outset that
the State's case against Defendant was a very close one. Convictions were
based, in large measure, upon the opinions of expert witnesses and not on
the observations of fact witnesses or incriminating admissions". Further,
"confidence in the verdict cannot survive where the undisclosed evidence
would have provided the jury with information that could well have led
them to reject some, if not all, of the State's theory of the case".
In the Letter, you state that murder can be prosecuted "if the actor acts
with depraved indifference to human life and thereby causes the death of
another". Though the State lacked evidence that Dr. Weitzel's pain-relief
measures had any causal relationship to a patient's death, it did go to
considerable lengths to try to establish "depraved indifference". The
"evidence" for this state of mind included a nurse's opinion that he spent
less time with patients than another doctor on the unit did; that he came
in early, left late at night, and looked in on patients when they were
sleeping; that he gave a number of medication orders by telephone; that he
dictated his psychological evaluations "after the fact", and that he
violated a hospital policy recorded somewhere in a 2-inch book of bylaws,
after signing a statement that he had had the opportunity to read them.
Most physicians in the nation are frequently guilty of all of the above.
Upon further review, including trial transcripts now available on Dr.
Weitzel's web site, the Memorandum and Order by Judge Kay, and your letter
with enclosures, we respectfully ask once again that you refrain from
further criminal prosecution of what was, at worst, poor judgment in pain
management decisions.
A retrial of Dr. Weitzel would generate nationwide publicity, all of it
hurtful to both the medical and legal professions and ultimately to the
patients themselves who need undistorted medical judgments about pain
management. In the end, the public will reject your approach that juries
in criminal court should decide whether pain management decisions
constituted "good judgment".
Just as importantly, all Americans need to have their confidence restored
in the fairness of the criminal justice system. As the Supreme Court of
Utah has held, "a criminal proceeding is more than an adversarial contest
between two competing sides. It is a search for truth upon which a just
judgment may be predicated". (State v. Carter, 707 P.2d 656, 662 (Utah
1985).)
Sincerely,
Jane Orient, M.D.
cc: Salt Lake Tribune
members, Department of Professional Licensure
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