DEFENSE CLOSING ARGUMENT
9 MR. BUGDEN: I'd like to begin by also thanking you
10 very much for your attention for these three weeks. It's a
11 huge imposition in your lives and we certainly want to thank
12 you very much for your attention. I also want to apologize
13 for what you're about to -- what's about to be inflicted upon
14 you. This morning you had to sit an awfully long time and I
15 know that, both with the judge reading the instructions,
16 though he read quickly, and then Mr. Wilson addressing you.
17 I know it's a long time to sit. I don't believe I'll be as
18 long as Mr. Wilson was, but this is very important and I know
19 you realize that.
20 There is a little bit of a disadvantage -- it's a little
21 bit tough for me to come and be standing here second in line
22 after you've had -- after you've been sitting here for
23 several hours. I apologize. It's just the card that was
24 dealt to me since I'm second in line. I am going to try and
25 move right along, but I warn you of the fact that we're
1 talking about very serious things and Dr. Weitzel is entitled
2 to have his side of the story told and argued right now.
3 I'll begin by just sort of trying to give you a big
4 picture and at different times I'll do big picture/little
5 picture. The big picture is that our position, the heart of
6 Dr. Weitzel's case, is that, number one, all of these
7 patients had advanced directives and you're now familiar with
8 that term. Number two, Dr. Weitzel's directions or
9 directives in every case were consistent with the patient's
10 desire to die with dignity. And Dr. Weitzel courageously
11 supported his patients' decisions regarding their treatment.
12 Next, as I said in opening statement, and I will come
13 back to this throughout my argument now, but context is
14 everything. The context in which medical decisions were
15 made, the context in terms of whether or not these people had
16 a treatable disease, the context in terms of the underlying
17 medical problems that these people had when they came to the
18 hospital and the total big picture for the family and for the
19 treating physician about whether or not their condition could
20 be -- was curable. Context is everything.
21 Dr. Weitzel gave medications for pain. He gave morphine
22 for two reasons. But you already know that he gave
23 medication for pain because these patients had symptoms of
24 pain. They were suffering pain crises in the case of Ellen
25 Anderson. But the patients either were suffering from pain
1 or, the second theory, or the second reason that morphine was
2 utilized was that they were in the dying process. They were
3 comfort care cases. They were folks where the families had
4 elected comfort measures and Dr. Weitzel provided a pain free
5 dying process for those people. That is what the state is
6 criminalizing. That's what the state is accusing Dr. Weitzel
7 of, murder, because he fulfilled the wishes of all of the
8 other people as we get to them. He fulfilled their wishes
9 about how they wanted to end their life.
10 Here's the prosecution's view of the facts. Number one,
11 I don't think that they completely acknowledged the
12 underlying disease processes that these people had in terms
13 of the dementia. Mr. Wilson wants to suggest to you that,
14 well, they had some mental problems. They had end stage
15 dementia. They had end stage dementia and not a single state
16 witness said otherwise.
17 Next, the state wants, and you heard this in the first
18 weeks of the trial, in particular, over and over again the
19 state suggesting through its witnesses asking the question
20 were these people in a life threatening situation when they
21 were admitted to the geropsych unit. Were they acutely ill.
22 From that the state says these people were stable upon
23 admission. No problem. And that the family members
24 perceived that they were having problems mentally, but were
25 physically healthy. We'll talk about that too.
1 Next the state, I think, acknowledges that if the
2 patients were demented that psychotropic drugs were
3 appropriate. But, according to some of the state's experts
4 that we'll talk about, Dr. Weitzel theoretically, according
5 to some of the state's experts, who I question whether or not
6 they were experts in their field, but the state did present
7 you with expert testimony that although psychotropics were
8 appropriate for population, for these patients, though maybe
9 not Ellen, but that he overdosed them.
10 Next the state wants to say, and this is really the
11 state's argument, and it's just absolutely mind boggling to
12 me after what you've heard for the last three weeks, but the
13 state really believes that there was no pain, therefore no
14 justification for pain medication. That's really their
15 principal underlying theme.
16 Next, there is an underlying -- undercurrent we heard
17 about with Dr. Welby. That's what Mr. Wilson referred to him
18 as. It was Welby Jensen was really the doctor that we heard
19 from. But the state's theory really is that somehow there's
20 something that was not Marcus Welby-like about Dr.
21 Weitzel. We'll get to that again.
22 Our view of the facts, and what I'll be talking about in
23 the next little while, is that absolutely beyond any shadow
24 of a doubt, any reasonable medical certainty, I don't care
25 what your standard is, these patients were suffering from
1 pain. Each patient's status did change. Their status did
2 change when they were in the hospital. Each patient did
3 become ill, very ill. In fact, sick enough to die. Each
4 patient was dying and had an underlying cause of death that
5 we'll talk about.
6 Mr. Wilson acknowledges that everyone had
7 arteriosclerosis, but what I intend to talk to you about
8 later is Cassin talking about that you could tell from the
9 autopsy that all of these people had arteriosclerosis, or
10 hardening of the arteries, a chronic heart disease. These
11 were elderly frail people. I agree with that. I'm not
12 afraid of that, of that characterization. These people were
13 at an end of life process. They were at the end of their
14 lives. And each patient and family wanted end of life care.
15 So they came to the fork in the road. Dr. Weitzel
16 presented them with a crossroad decision. They exercised
17 their own judgment or they tried to interpret -- in every
18 case they tried to interpret what their loved one would want.
19 Some witnesses and this is a huge part of this case, the
20 nurses in particular. Some of the witnesses just simply
21 misunderstood the whole concept of end of life care. They
22 were biased. Some of these ultimately did form a bias or a
23 dislike for Dr. Weitzel.
24 Also, the big picture is that when these patient were
25 dying Dr. Weitzel supported their decisions, he supported
1 their right to treatment consistent with the terminal illness
2 process. He respected their right to no longer prolong
3 dying. He advanced their right and supported their right to
4 die with dignity. And their right, most importantly, to die
5 free of pain. And wouldn't all of us want that and wouldn't
6 all of us want that for our loved one?
7 These patients were all known to be ill when they were
8 admitted, with the exception of Ms. Anderson. All of the other
9 ones were known to have serious medical problems upon
10 admission. Ellen Anderson is not the comfort care,
11 palliative care, case. She's one of the circumstances why
12 pain medications were prescribed because she had overwhelming
13 symptoms of pain.
14 The state would suggest to you -- well, on Ellen Anderson
15 it's interesting. On one hand the state pushes the theme
16 that none of these people were in a life threatening
17 situation, they weren't acutely ill. But Ellen Anderson is
18 sort of the exception because we heard the state's expert,
19 Dr. Bair, who disagreed with all the other state's experts
20 and every other expert in this case, to say that Ellen
21 Anderson in fact was acutely ill with pneumonia upon
22 admission.
23 So, was this patient -- did this patient have underlying
24 medical problems upon admission? This is a 91-year-old woman
25 with a weak heart, a coronary artery disease,
1 arteriosclerosis. She had suffered from dementia for four
2 years. Dementia is a terminal disease. Dr. Fine explained
3 that the terminal process for dementia is actually a shorter
4 time frame than was earlier understood to be. I think his
5 testimony was three to four years.
6 This woman had suffered a hip fracture and upon autopsy
7 it was discovered that her hip fracture actually had not
8 properly healed, had not healed. The daughters testified
9 that there was a significant change in their mother's
10 behavior after the surgery. She also, this woman, had
11 suffered a 20 to 30 pound weight loss before she came to the
12 hospital. And it looks like she had a pneumonia that was
13 undetected upon her admission.
14 That's not Dr. Weitzel's fault. The nurses didn't note
15 it, didn't see a steep spike or something else that would be
16 consistent with an infectious process like pneumonia. So it
17 had gone untreated. What we do know is that Dr. Wilding, one
18 of her family physicians, had seen her in November and he had
19 not -- he thought that pneumonia was a possibility, but Dr.
20 Wilding explained that he didn't rule out pneumonia.
21 As relates to condemning Dr. Weitzel, condemning Dr.
22 Weitzel for not somehow meeting doctor behaviors -- sorry.
23 Not meeting a doctor's standard of care. What I would point
24 out to you is I guess we should also condemn and maybe accuse
25 Dr. Wilding of criminal negligence. Dr. Wilding did not rule
1 out, back in November, pneumonia. But what did Dr. Wilding
2 explain? You know, the prosecution would never on its
3 wildest day accuse Dr. Wilding of criminal conduct or murder.
4 That's what we're talking about, murder most foul. That's
5 what my client is charged with here.
6 But Dr. Wilding said, you know, any more tests for this
7 woman, a 91-year-old woman, would be unreasonable. Let's do
8 what is reasonable, is what Dr. Wilding explained. Don't
9 prolong things. Was she in a life threatening situation upon
10 admission? I would submit to you that it was not apparent to
11 anyone other than Dr. Bair. It wasn't apparent to anyone
12 else that Ellen was in a life threatening situation.
13 Let's talk about Lydia Smith. Mr. Wilson -- these are
14 the people that we're talking about. I'm not losing sight of
15 the fact that we're talking about people who have a right to
16 live, but they have a right to die. They have the right to
17 die with dignity. Mr. Wilson holds up this picture to you
18 and says this is who we're talking about. Well, that was
19 Lydia Smith 11 years ago. That was not Lydia Smith on the
20 day of her admission to the North Davis geropsych unit. This
21 picture here is the patient on the day of her admission.
22 Did this woman have some underlying medical problems?
23 Mr. Wilson just sort of glosses over the fact that this was a
24 90-year-old woman with advanced dementia, congestive heart
25 problems, previous strokes. Her most recent strokes had been
1 four weeks before her admission to the geropsych unit. She
2 had a hemorrhagic stroke. We now know what that means. We
3 learned that that means an artery had broken in her brain.
4 It was followed by severe mental changes. The severe mental
5 changes that made her uncontrollable in the nursing home
6 setting. According to Dr. Southworth, contrary to what Mr.
7 Wilson remembers, but according to Dr. Southworth Mrs. Smith
8 frequently complained of chest and abdominal pain leading up
9 to admission at North Davis. And let's not forget that the
10 reason that ultimately she was transferred was because she
11 hit and punched at the nursing home staff. This woman had
12 become extremely combative. This isn’t the image and the memory
13 that her loved ones have of her. But this is the reality
14 of the patient that was admitted.
15 Now let's talk about Mary Crane. We only have one
16 picture of her. This woman was the youngest of the five
17 patients. 72 years old. But this woman had suffered a
18 stroke six years before her admission and had been in an
19 Alzheimer's unit since 1991. She was incontinent, although
20 the youngest of the people of the five patients. This woman
21 was furthest -- arguably furthest along on the scale that we
22 heard about when you're incontinent, not capable of
23 self-care. This was also a woman who had other problems like
24 drinking from a toilet. And she had this chronic low back
25 pain. This was a woman in advanced stages of dementia.
1 Mr. Alldredge, this is the photograph that the state
2 presented you. This is the photograph that the state wants
3 to suggest that this was a robust man. Mr. Alldredge was not
4 a robust man. He was 82 or 83. This is Mr. Alldredge on the
5 day of his admission to the hospital. This is not a
6 physically healthy man. This is a very sick man.
7 Mr. Alldredge had a number of problems. Advanced
8 dementia. He was transferred from the Sunshine Terrace
9 nursing home. And the doctor -- I'm sure you'll remember,
10 the doctor testified that this man had suffered a rapid
11 decline in his mental status. This was the person who
12 thought that you got orange juice from a bowling ball.
13 Dr. Cunningham, his treating physician, his family
14 doctor, said that this man met the federal government's
15 criteria for hospice care. Hospice care, under the federal
16 guidelines, defines when death is most likely going to occur.
17 There's a finite period under the federal guidelines, within
18 six months. That's Dr. Cunningham, that's not Dr. Weitzel
19 talking about the predictability, the prognosis of death.
20 That's another physician that's predicting that this patient
21 has a limited life expectancy.
22 Now we go to Judith Larsen. This is the image that the
23 state wants you to think about. This is Mrs. Larsen upon her
24 admission. Mrs. Larsen was a very ill woman. She was not a
25 healthy woman when she was admitted to the hospital. She was
1 93 old. She had suffered two strokes in 1995. Her second
2 stroke in August of that year. This was a woman who had
3 heart disease, had a dying heart muscle. She had advanced
4 arteriosclerosis. She suffered from significant angina,
5 which is heart pain.
6 And let me tell you some of the things that Dr. Pearce
7 remembered. He was one of the physicians that treated her in
8 August of that year. These are some quotes from the trial you
9 folks have heard. Dr. Pearce, although this patient might be
10 stable on a particular day at age 93, with this heart disease
11 that is described on the discharge, is this someone that
12 could die tomorrow? Yes. Dr. Pearce, in discussion with the
13 family it was decided that the last six months of her life
14 have been very poor quality, and in fact no quality at all.
15 Poor recognition of people, no conversation, no decision
16 making at the time of discharge, was the question I asked.
17 At the time -- he is reading from his notes now. At the time
18 of discharge to place an eating tube, but the family feels
19 that would be inappropriate. They also wanted to -- wanted
20 no treatment of infection, urinary, et cetera.
21 This was in August, the end of August. Is Mr. Wilson, is
22 the state of Utah, going to charge Dr. Pearce with murder?
23 Is he an accomplice because he met with the family and
24 allowed the family to make a decision at the crossroads for
25 this woman? He allowed this family to decide at that point
1 that they were going to withhold all medical interventions.
2 When she was transferred from the hospital this is right
3 after Dr. Pearce, on Judith Larsen, she was transferred from
4 the hospital to the long-term care facility. She had what
5 was called a no code status, DNR. The family had made that
6 decision with regard to Judith at the end of August of 1995.
7 Dr. Weitzel had nothing to do with that. The family had
8 decided at the end of August that they were going to let
9 their mother go.
10 Was death unexpected in these patients? The state seems
11 to be suggesting that somehow death was unexpected for these
12 folks. I would just say to you, use your common sense. When
13 we start to talk about the standard of care, you can use your
14 common sense. But the standard of care of what a physician
15 needs to do in order to be a competent physician, that is
16 something that the state has to furnish you with that
17 evidence. But as relates to whether or not death was
18 unexpected for these folks, I would just ask you folks to
19 consider the ages of these patients and consider their
20 underlying medical problems and please just remember what
21 we've heard from the scientific literature that has examined
22 survival expectations upon admission to a hospital.
23 There is a different expectation, like Dr. Fine told you,
24 and this is important as relates to the way people perceive
25 an event that happened with these five patients. But science
1 has studied this, a different perception and different
2 expectation when a patient is admitted to the intensive care
3 unit. When you're admitted to the intensive care unit
4 there's a general perception that you may die. There's a
5 different expectation apparently when the patient is just
6 simply admitted to the hospital. That's one of the things
7 Dr. Fine tried to explain yesterday.
8 The state, Mr. Wilson, and to certainly a large extent
9 the family members, are simply unrealistic about the life
10 expectancy of these patients. That included Ellen Anderson's
11 daughter. You know, memories fade. All of us have memories
12 that fade. Barbara Poelman did not recall, for example, that
13 Dr. Wilding had told her in November of 1995 that her mother
14 had congestive heart disease. Either it was she or her
15 sister told you that they always had felt that their
16 mother -- had been told that their mother had a strong heart.
17 That's why they were surprized when Dr. Weitzel said that it
18 looked like their mother had passed away because of a heart
19 problem.
20 The state has put on evidence from family members that
21 they were surprised that a 93 year old, a 91 year old, a 90
22 year old and an 82 year old, a 72 year old passed away. I
23 would just say to you folks, using your common sense and
24 intelligence and your experience, from an objectively
25 reasonable perspective, you're detached. It's not your mom,
1 not your dad. From an objectively reasonable perspective,
2 should any thoughtful person be particularly surprised if any
3 of these patients died from natural causes?
4 Let me talk for a moment about sudden death. Dr. Cassin
5 testified, and I think almost all of the family physicians,
6 it was sort of the state asked all of these doctors whether
7 or not the family doctors -- whether or not the patients were
8 acutely ill when they are sent to the unit. I asked almost
9 all of the same doctors whether or not these were people,
10 because of their underlying medical problems, were people
11 that could die suddenly, unexpectedly, die tonight, die in
12 their sleep.
13 Someone told us about, I can't remember where we heard
14 this, maybe it was Dr. Cassin, but someone said, yeah, it's a
15 situation where people say, gee, I can't believe so and so
16 passed away. We were just having dinner last night. The
17 nature of heart disease, chronic heart disease in elderly
18 people, is that it's not really unexpected when there is a
19 sudden death. That's what happens.
20 Memory is an interesting process. As I said, all of us,
21 you know, all of us certainly can forget things. All of us
22 reconstruct our memories, whether it be family stories that
23 we all end up telling over the years where you may not
24 remember exactly the details so you plug some in. But I
25 think we all know that the passage of time changes our
1 memories.
2 Certainly none of us would want to remember our mother or
3 our father in the context of being a demented person at the
4 end of their life who is kicking and biting and screaming and
5 spitting at people. With all due respect to Mr. Wilson, and
6 to Kent Smith, but Mr. Smith is a perfect example of pointing
7 out to us that the way he remembered his mom was he was shown
8 a photograph by Ms. Isaacson. Is that the way your mom
9 appeared when she was admitted to the geropsych unit? Gee, I
10 don't know. I don't remember her looking that way. The way
11 Kent Smith remembered his mother was this way. The way Kent
12 Smith remembered his mother was playing a piano.
13 This was a woman with advanced dementia that was -- had
14 wildly combative behavior, as you'll recall. Not only before
15 her hospitalization at the geropsych unit but at her
16 hospitalization. In a moment I'll look at the state's drug
17 chart with Lydia, but I'll just ask you to recall your
18 collective memory, jurors. The record is just so clear that
19 up until January 7th or 8th this woman demonstrated very
20 agitated combative behaviors the entire time she was in the
21 hospital.
22 Mr. Smith's memory has simply faded. It's just not
23 honest for the state to suggest -- I can understand a family
24 member not remembering, but it's not honest for the state to
25 suggest that these people with dementing illness and
1 underlying chronic health problems were not at death's door
2 when they were admitted to the geropsych unit. They were.
3 The state also advances kind of a double argument. The
4 state really does sort of argue out of both sides of their
5 mouth. You heard this in both Mr. Wilson's closing arguments
6 and certainly in the openings statement. I think there's a
7 line of questions of different witnesses to try and develop
8 this theme. On the one hand the state wants to say these
9 people were stable, no acute problems. No acute problems the
10 day they're admitted to the geropsych unit. It wasn't -- it
11 wouldn't be expected that Mrs. Smith might die or Mr.
12 Alldredge might die while he's in a geropsych unit.
13 But Todd Chambers, three weeks ago, he worked at the
14 hospital and he explained and addressed this very issue. He
15 said the bottom line is that some of these patients had more
16 serious problems than we realized when they were admitted. I
17 mean, that's not rocket science. That's not something
18 sinister to lay at the feet of Dr. Weitzel. People are
19 admitted to a geropsych unit because they are wildly
20 agitated, can't be controlled in a nursing home setting.
21 There was no other resort. This was the last resort for
22 these people. They couldn't be handled in a nursing home
23 because they were so completely demented, because they
24 suffered from dementing disease.
25 But the state also wants to argue that they were really
1 too sick to go to the geropsych unit. Because they were too
2 sick to be there, Dr. Weitzel is at fault. It's Weitzel's
3 fault, his fault, for trying to treat them for their
4 psychiatric disorders. He should have realized that they
5 were so ill.
6 Well, what was the choice? What other alternative was
7 there? What else could we do with these people when nursing
8 homes couldn't handle them? Were they supposed to -- upon
9 admission was Dr. Weitzel supposed to recognize, oh, chronic
10 heart disease, arteriosclerosis? I will sedate them because
11 they're wild.
12 Ennis Alldredge throws wheel chairs at people. I guess
13 what Dr. Weitzel could have done is say, you know, they are
14 too sick for me. Let's put them in the ICU. Sedate them to
15 the point of unconsciousness and put them in the ICU. That's
16 one of the state's arguments. But the next argument, the
17 next part, is the state overlooks the fact that all of these
18 patients, not Ellen, but every other patient had a physical
19 and history examination upon their admission. Dr. Dienhart
20 and Dr. Bitner said that these were appropriate patients.
21 They were appropriate patients for the geropsych. They had
22 all of their underlying problems, but this was the right
23 place for them.
24 So there's some more malpractice. There's some more
25 breach of the standard of care. Dienhart and Bitner missed
1 the boat too. Let's charge them with murder. Let's bring
2 them into the courtroom. They should be sitting right there
3 next to Dr. Weitzel.
4 Jurors, these people had to be treated. These patients
5 were hurting themselves, they were hurting other people.
6 Where else could they go and how else could we treat them?
7 Psychotropics were absolutely necessary. There was no other
8 treatment option for these patients. Dr. Crookston and Dr.
9 Bair both suggested to you, with straight faces, that milieu
10 therapy, making the place where they were transferred to a
11 little bit more like home, or group therapy, were really good
12 alternatives to using psychotropic medication for these
13 patients.
14 Now, this is a good example, I would say to you, jurors,
15 of where you should question an expert opinion and weigh it
16 and decide whether or not that is compelling and convincing
17 to you. Whether or not that's an opinion that you'll take to
18 the bank. Is that convincing to you, milieu therapy, making
19 the room little bit more like home? Do you think that would
20 work for Ennis Alldredge? Do you think that this man who was
21 throwing wheel chairs at other patients, was combative with
22 staff, was a danger to others, do you think that milieu
23 therapy would work with him? Do you think that he was just
24 simply constipated when we talk about pain? Do you think his
25 agitation over the days, the months, leading up to his
1 hospitalization at the geropsych unit was because for weeks,
2 for days, he was constipated or couldn't pass water? Do you
3 think even the four days that he was at the hospital that
4 constipation would explain his wildly agitated combative
5 behaviors? You weigh that. You weigh Dr. Bair's standard of
6 care, the Dr. Bair standard of care, and you decide for
7 yourself whether or not that is compelling and convincing and
8 reasonable to you.
9 One last note. This is a sad note, but it needs to be
10 said. As relates to environmental concerns for Mr.
11 Alldredge, and questioning and second guessing and condemning
12 my client, charging him with murder, negligent homicide, with
13 Ennis Alldredge do you think milieu therapy was going to work
14 with a man who was smearing feces on his face and all over
15 his body? Is that reasonable?
16 Selecting a dosage. Obviously that is a huge part of
17 this case. Mr. Alldredge, as we know -- I'm sorry, let's
18 talk about Lydia Smith first. Hitting and punching at staff
19 at the nursing home. Very combative. The state is
20 completely critical of Dr. Weitzel's decisions that he made
21 about psychotropic medication. Well, as relates to Lydia
22 Smith, I think it's certainly important to Dr. Southworth
23 whether or not he should be seated at the table with Dr.
24 Weitzel too. What medications did you try is a question I
25 asked. Initially we tried Ativan, got very little response
1 to that. Our second effort was with a drug called Haldol.
2 Again, I'll just tell you, and we heard it within the last
3 hour, Haldol is in fact one of the very drugs, as relates to
4 Lydia, that Mr. Wilson is particularly critical of Dr.
5 Weitzel using.
6 Our second question was with a drug called Haldol, which
7 is a major tranquilizer, we used moderately high doses. I
8 guess he breached the standard of care. He really didn't put
9 a dent in Lydia's Smith's agitated or combative behavior.
10 Dr. Crookston is the only witness, the only witness, to
11 testify that the treatment of patients was not, this patient
12 population, was not extremely difficult. He also said don't
13 treat pain without a diagnosis and without knowing the
14 location of the pain. I particularly want you to sort of put
15 a parentheses in your brain around that concept when I return
16 to talk about Ellen Anderson.
17 But I want to ask you, if Ellen Anderson was in your mind
18 in an acute pain crisis, and two different nurses called the
19 doctor, do you want a diagnosis and to know the location of the pain
20 before he orders some sort of pain relief for someone that is
21 in extreme, severe pain and agitated to the point that she was
22 throwing her body around in the bed? Is that what you would
23 want for your mother? Dr. Bair at least acknowledged, in
24 regard to Lydia Smith, that this was a very difficult
25 patient. With Lydia, again, I'm talking about the dosings.
1 That's my theme right now. With Lydia you can see that Dr.
2 Weitzel absolutely started at low levels. Dr. Southworth
3 said he couldn't make a dent in Lydia's behavior. Dr.
4 Weitzel starts with very low doses. He couldn't make a dent
5 either.
6 So what's he supposed to do? Are we going to let her
7 just be completely wild, combative, hitting, hurting herself,
8 hurting other people? He increases the dosage. By January
9 3rd, and we did this with witnesses to show you this, what
10 the nurse charting notes, the nurse progress notes showed, by
11 January 3rd, when she did receive more Haldol, it was because
12 her agitated behaviors were absolutely, positively, out of
13 control. How can the state really say, with a straight face
14 to you, that Dr. Weitzel did not titrate to effect with Lydia
15 Smith. How can they say that?
16 You know, Dr. Southworth, and I think any number of the
17 family doctors, explained to you, and even the state doctors,
18 their experts, that when you pick a starting dosage what the
19 treating doctor does is he does the best that he can. There is
20 no one magic dosage.
21 Now, Bonnie Smith. I think her lack of recall about what
22 she had to do and her interactions with the staff on her
23 mother Lydia are sort of important. Three or four -- I'll
24 ask you to remember, collectively try to remember this, but
25 three or four days after her admission this woman testified
1 that she was concerned that they were not -- let's look at
2 three or four days into her hospital stay.
3 Bonnie Smith acknowledged that they were very concerned
4 that they weren't getting Mrs. Smith's agitation under
5 control. They wanted her to be discharged to a long-term
6 care facility and Mrs. Smith acknowledged, when Ms. Isaacson
7 was asking questions, that that meant titrating to effect.
8 That meant sedation, that meant psychotropic medication. And
9 let me just say over and over -- in fact, the only
10 description that the state will use of the drugs that were
11 used to treat agitation, they're going to always say central
12 nerves system depressants. Well, every time they say central
13 nervous system depressants, just remember that what they're
14 really talking about are psychotropic medications. It says to
15 you this central nervous system depressant comes with some
16 sort of baggage. It's supposed to somehow make you go as
17 jurors, oh, we heard Dr. Hare's testimony so that is a bad
18 thing.
19 You know, Dr. Weitzel attempted to titrate with this very
20 difficult patient according to Dr. Bair, but it's difficult
21 to balance. The family, what they really wanted was they
22 wanted good old momma back. This is the Smith family. But
23 there is no magic pill. That's certainly something that you
24 folks have learned during this three weeks. There is no
25 magic formula for demented patients.
1 Further, as relates to dosing, Dr. Cunningham explained,
2 and this is just maybe the week before he's transferred to
3 the geropsych unit. Dr. Cunningham, the reason you did that
4 was because you were trying to deal with this urgently,
5 right. The answer is correct. He had not responded to
6 reasonable dosages of antipsychotics and most likely my
7 thinking was let's start with a larger dose rather than a
8 smaller dose of Buspar given the failure of the other
9 medications to bring about any effect. Doctors make medical
10 judgments. They make treatment decisions. They do their
11 best. They exercise their best medical judgment about how to
12 treat symptoms.
13 And I asked him about whether or not their was a magic
14 number. The state earlier in the trial was trying to suggest
15 that there was a maximum dosage of any drug, whether it be
16 morphine or other CNS depressants. They sort of abandoned
17 that theory partway through the trial. I think there's a
18 maximum recommended dosage with these medical cases. You
19 don't try to exceed that. But I think it's an individual
20 judgment as to what starting dose to use. I had started on
21 low dosages of other medication and I got nowhere.
22 THE COURT: Slow down a little, please.
23 MR. BUGDEN: So I felt in this case my thinking
24 probably was let's go with the larger dose rather than the
25 smaller dose initially with Buspar. So let's charge him with
1 breaching the standard of care under the Dr. Bair standard.
2 Clearly Dr. Cunningham had breached the standard of care.
3 You heard from Dr. Lesley Blake. And let me stop for a
4 moment. The psychiatrist that the state presented you with
5 was Dr. Crookston. One of the things you have to evaluate
6 when you weigh evidence and when you decide what's compelling
7 and what's convincing to you, and I ask you to keep this in
8 the back of your mind, is you've got to decide who really has
9 expertise in the areas that we're talking about in this case.
10 Who really are experts? Who are in the trenches? Who were
11 dealing with the kind of problems that we are dealing with in
12 this case day in and day out?
13 Dr. Crookston is a doctor, a psychiatrist, who treats
14 addictions, juvenile addictions. His principal case load is
15 with juveniles with controlled substance problems. He
16 occasionally has a geriatric patient that also has an
17 addiction problem. He did not treat -- Dr. Crookston did not
18 treat on a day in and day out basis demented, frail elderly
19 people.
20 Dr. Lesley Blake, on the other hand, is a gero
21 psychiatrist who specializes in the treatment of those
22 patients like those in this case. She runs a gero
23 psychiatric unit. This is someone, in terms of knowledge,
24 who has run clinical trials on the use of different drugs.
25 This is not -- certainly she has different experiences and
1 more extensive experience and more expertise with drugs like
2 Risperdal and other drugs than Dr. Crookston, who doesn't
3 treat this type of patient population.
4 She testified that the administration of psychotropics in
5 this case was appropriate. And that the dosages and the
6 combinations were appropriate. She did not see any
7 overmedication. She also acknowledged that there is
8 something that you learn in medical school called go low, go
9 slow, but she made it very clear that that is not a hard and
10 fast rule. Every doctor said that's not a hard and fast
11 rule. It is not. Mr. Wilson wanted to imply to you that
12 that's the standard of care, go low, go slow. That is not
13 the standard of care.
14 Dr. Blake also testified that Lydia Smith was more
15 agitated, more difficult, than any patient, any patient she'd
16 seen on her unit in the last ten years.
17 Were these patients in pain? The prosecutor's case is
18 really quite literally based on the suggestion that these
19 patients did not suffer pain. These patients were not in
20 pain. As proof of that fact, the proof is that the family
21 members didn't see pain. Apparently sometimes nurses Scholl
22 and Cooper and Hardey didn't recognize symptoms of pain
23 either. But were they trained to recognize symptoms of pain
24 in the cognitively impaired patient population? They all
25 answered the question that they were not. It was a little
1 bit harder to get nurse Cooper to admit that. Nurse Scholl
2 readily admitted it, so did nurse Hardey. Laurie Willson, on the
3 other hand, someone who was called by the defense, she has a
4 master's degree in nursing. She also indicated that she in
5 fact did have training, unlike the other nurses, did have
6 training in recognizing the symptoms of pain in the demented
7 population.
8 There's something tragically ironic, and not just for Dr.
9 Weitzel, but in the whole case there's an irony here that the
10 state is prosecuting Dr. Weitzel for murder because the state
11 quite frankly, even today, in closing argument, the state
12 still doesn't get it. These patients, unfortunately, did
13 suffer pain. They were at the end of their life suffering
14 pain.
15 Now, who were the state's experts on pain and whether or
16 not these patients had pain? I've already talked about Dr.
17 Crookston. Dr. Hare really is the principal witness that the
18 state offers up to you as the expert on the recognition of
19 pain. But, again, ladies and gentlemen of the jury, please
20 don't forget, as you evaluate and weigh the testimony of
21 either the state's experts or the defense experts, please
22 don't forget that Dr. Hare does not treat this population of
23 demented patients. He doesn't treat any of them. He
24 acknowledged to you that he's not an expert on geriatric
25 pain. So, quite frankly, how could he know what the standard
1 of care is for treating geriatric patients with pain? How
2 can he know if he doesn't treat any of them? I asked that
3 whole series of questions about what do you do when you're at
4 the bed side of those in pain. He said I don't treat them.
5 That's one of the experts that the state offers to you to
6 convince you beyond a reasonable doubt that Dr. Weitzel is
7 guilty of murder. An expert who doesn't even treat geriatric
8 patients for pain.
9 We also have some points from Dr. Bair. Dr. Bair was of
10 course the geriatric and other degrees as well, who testified
11 to you as relates to the standard of care, which we will come
12 to soon. But Dr. Bair was the witness that told you that
13 because Dr. Weitzel did not conduct his psychiatric admission
14 on Lydia Smith within 24 hours, that in fact he did it in 28
15 hours, that that breached the standard of care.
16 And then I asked Dr. Bair, well, did that alter the
17 outcome of this patient? Did that alter the outcome for this
18 patient at all? That was when Dr. Bair said to you, told
19 you, that he couldn't answer that with a yes or no. That
20 answering it with a yes or no would be confusing to the jury.
21 I don't think it would be confusing to the jury. I don't
22 think whether or not Dr. Weitzel conducted the examination at
23 hour 23 versus hour 28 altered the outcome for the ten days
24 that Lydia Smith was in the hospital.
25 I invite you to compare those experts on pain with the
1 defense experts. One of the experts was Keela Herr. Is she
2 someone that you should have some confidence that she knows
3 what she's talking about? Is she someone that just maybe
4 knows something about the recognition of pain in the
5 cognitively impaired demented population?
6 Professor Herr not only has written all of the articles
7 we talked about with her, she's someone who has helped create
8 the standard of care. She's helped create the guidelines for
9 recognition of pain in the demented population. Keela Herr,
10 not to put too fine a point on it, has written books on
11 the subject of recognizing pain in the demented population.
12 So I ask you, please, Keela Herr or any of the state's
13 experts on the recognition of pain, you tell me who wins that
14 battle on expertise.
15 You've also heard from Dr. Cranmer and Dr. Perry Fine
16 with regard to the recognition of pain in this population.
17 I've already mentioned that you heard from Laurie Willson.
18 There's something sort of profoundly sad in this case that
19 the whole hallmark, or a benchmark of the state's prosecution
20 of Dr. Weitzel, is that they don't think any of these
21 patients were in pain.
22 What we do know is that there was a gross undertreatment
23 of the population of the frail elderly. And in fact for the
24 most significant, and ironically in Utah, out of all 50
25 states, Utah was the 50th, the worst, in the treatment of
1 persistent pain in a nursing home population. Dr. Hare on
2 that very point even agrees that the threshold for the
3 treatment of pain should be lowered in the demented
4 population.
5 MR. BUGDEN: May I ask to approach the bench?
6 THE COURT: Sure. In fact, we will take a ten
7 minute recess at this time. You may be excused. I remind
8 you of my prior admonitions. We'll come back at ten after.
9 Thank you.
10 (Jury out of the courtroom.)
11 THE COURT: We'll be in recess until ten after.
2 THE COURT: WE'RE BACK IN SESSION. PARTIES AND
3 COUNSEL ARE PRESENT. JURY IS IN THE JURY BOX.
4 YOU MAY PROCEED, MR. BUGDEN.
5 MR. BUGDEN: FOLKS, I WANT YOU TO KNOW I'M DOING THE
6 BEST I CAN TO MOVE THROUGH THIS. I KNOW YOU'VE BEEN SITTING
7 HERE A LONG TIME, BUT THERE IS A LOT, A LOT AT STAKE AND I'M
8 NOT TRYING TO -- I MEAN, THE STATE HAD ITS SAY, AND SO PLEASE
9 BEAR WITH ME. I'M DOING THE BEST I CAN.
10 SO, OBVIOUSLY, A CENTRAL ISSUE FOR YOU TO DECIDE IN YOUR
11 DELIBERATIONS RELATES TO WHETHER OR NOT DR. WEITZEL BREACHED
12 THE STANDARD OF CARE AS TO WHETHER OR NOT THESE PATIENTS HAD
13 PAIN. AS I SAY, TO ME IT'S THE -- IT'S LIKE ALMOST THE MOST
14 IRONIC AND SAD -- PROFOUNDLY SAD THING IN THIS CASE IS THAT
15 THE STATE BASES A MURDER PROSECUTION ON THE STATE'S BELIEF,
16 EVEN TODAY IN THE -- IN THE FACE OF THE SCIENCE THAT WE'VE
17 JUST REVIEWED, THE EXPERT TESTIMONY WE'VE HEARD THAT THESE
18 PATIENTS WERE IN PAIN.
19 DID ELLEN ANDERSON HAVE PAIN? I -- YOU KNOW, HOW CAN
20 ANY OF US HAVE ANY DOUBT WHEN TWO DIFFERENT NURSES, ONE
21 CALLED ON BEHALF OF THE STATE AND ONE CALLED ON BEHALF OF THE
22 DEFENSE, THAT ELLEN ANDERSON, BECAUSE OF HER HIP PROBLEM --
23 WHATEVER IT WAS -- HAD SEVERE, EXTREME PAIN. THE STATE AND
24 ITS EXPERTS SEEM TO SOMEHOW SUGGEST THAT MAYBE THAT WAS NOT
25 THE CASE.
1 AND THEY ALSO OFFERED -- THIS IS SORT OF IRONIC. THERE
2 IS SOME SORT OF -- SOMETHING CURIOUS ABOUT THIS FACT. OF
3 COURSE, AS YOU KNOW, THE DAUGHTERS SAY, GEE, WE JUST THOUGHT
4 MOM HAD THIS INCONSOLABLE ANXIETY. AND ANXIETY IS MENTAL
5 PAIN; IT'S NOT PHYSICAL PAIN.
6 BUT THERE IS SORT OF THIS -- SORT OF TWISTED FACT, ODD
7 LITTLE FACT BURIED IN THE CASE THAT THE DOCTOR --
8 DR. WEITZEL'S CHARGED WITH MURDER BECAUSE HE USED MORPHINE
9 AND PRESCRIBED MORPHINE FOR THESE PATIENTS, INCLUDING ELLEN,
10 WHO WAS WAILING OR WHATEVER -- WHATEVER YOU REMEMBER, YOU BE
11 THE JUDGE OF HOW IT'S DESCRIBED -- AT 3:30 IN THE MORNING
12 WHEN TRACY SCHOLL CALLED DR. WEITZEL.
13 BUT DIANE MARIAH -- I DON'T KNOW IF I'M PRONOUNCING IT
14 RIGHT -- BUT ONE OF THE DAUGHTERS -- COULD I SEE SLIDE 19, I
15 BELIEVE? THIS IS NOT A QUOTE. THIS IS PARAPHRASING WHAT
16 THIS WOMAN HAD TO SAY. BUT MS. ISAACSON ASKED: AND YOU
17 SPECIFICALLY HAD INQUIRED ABOUT THE ADMINISTRATION OF
18 MORPHINE AND YOU WERE, IN FACT, ENCOURAGING THE HOSPITAL.
19 YOU HOPED THAT SHE WOULD GET SOMETHING LIKE MORPHINE OR
20 SOMETHING THAT WOULD HELP CALM HER DOWN.
21 AND DIANE'S ANSWER WAS: YEAH, THAT'S RIGHT. YES, THAT
22 IS RIGHT.
23 NOW, JUST TRYING TO PICK UP ON WHAT MR. WILSON WAS
24 TRYING TO SUGGEST TO YOU IN TERMS OF WHETHER OR NOT
25 DR. WEITZEL BREACHED THE STANDARD OF CARE. OKAY. SO SHE
1 ONLY RECEIVES MORPHINE. SHE RECEIVES TWO SHOTS. I KNOW YOU
2 GUYS -- 7:30, 3:30 SHOT.
3 BRAD HARE, WHO DOESN'T TREAT THE GERIATRIC PATIENTS,
4 SAYS: WELL, I THINK THAT IT WAS AN OVERDOSE. I WOULD HAVE
5 USED A LOWER DOSE.
6 SO LET'S JUST GO WITH THAT FOR A MINUTE, THAT HE WOULD
7 HAVE USED A LOWER DOSE. BUT HE AGREES THAT THE DOCTOR, THE
8 PERSON IN THE TRENCHES, THAT IT'S A JUDGMENT CALL. THERE IS
9 NO ONE, YOU KNOW, MAGIC DOSE. DOCTORS CAN DISAGREE. THERE'S
10 A RANGE OF ACCEPTABLE DOSES. JUST SAYING I WOULD HAVE USED A
11 LOWER DOSE.
12 SO DR. WEITZEL USES A TEN MILLIGRAM DOSE FOR THE PATIENT
13 AT THE 7:30 SHOT. HERE'S THE KEY -- AND I KNOW YOU GUYS
14 UNDERSTAND THIS NOW. BUT HERE'S THE KEY AS IT RELATES TO THE
15 STATE'S ARGUMENT WHERE THEY WANT TO CONVICT DR. WEITZEL WITH
16 SPECULATION, THE SPECULATION OF DR. HARE THAT IF WE LOOK AT
17 THE VITALS -- WELL, EVEN -- LET ME -- HOLD THAT THOUGHT. IF
18 WE HAVE THE PAIN AT 7:30, NOW YOU KNOW ABOUT PEAK EFFECT.
19 NOW YOU KNOW THAT IT WOULD BE ONE -- ONE HOUR FOR MORPHINE
20 SULFATE. NOW YOU KNOW -- AND I'LL JUST REFER YOU IN THE
21 CHART, IT'S VERY CLEAR THAT LAURIE WILLSON NOT ONLY SAW THE
22 TERRIBLE PAIN THAT THIS WOMAN HAD, BUT THEN THE MORPHINE'S
23 ADMINISTERED AND THEN SHE GETS RELIEF. SHE GETS BETTER. SHE
24 GETS -- IT WORKED. EVERYTHING WORKED GREAT. SHE GOT PAIN
25 RELIEF.
1 THEN AT ONE O'CLOCK THERE'S TACHYCARDIA, BUT TACHYCARDIA
2 IS NOT RESPIRATORY DEPRESSION. IT IS NOT A SIGN OF MORPHINE
3 OVERDOSE. THAT IS A RED HERRING. THAT IS A DISINGENUOUS,
4 INTELLECTUALLY MEDICALLY DISHONEST ARGUMENT BY DR. HARE TO
5 SUGGEST TO YOU THAT TACHYCARDIA MEANS ANYTHING IN THIS CASE.
6 BUT HERE'S THE KEY. SO -- AND THEN WE KNOW ABOUT
7 DURATION OF EFFECT, FOUR HOURS. FOUR HOURS FOR MORPHINE
8 SULFATE. THEN DR. HARE WANTS TO SLIDE. IT'S A -- IT'S A
9 SLIDING DR. HARE SCHEDULE ABOUT DURATION OF EFFECT. HE SAYS:
10 BUT WITH THE FRAIL ELDERLY, IT COULD BE LONGER.
11 SO WHEN DID WE GET THE SECOND DOSE? WHAT'S THE PROOF
12 THAT DR. WEITZEL DIDN'T OVERMEDICATE THIS PATIENT? THE PROOF
13 IS THAT THE SYMPTOM OF PAIN CAME BACK. SHE WASN'T SEDATED TO
14 THE POINT THAT SHE WAS UNCONSCIOUS. WHAT HAPPENED IS THAT
15 THE DURATION OF EFFECT -- LET'S USE FOUR -- LET'S SAY IT'S
16 MORE THAN FOUR HOUR. EIGHT HOURS. THE SECOND DOSE IS EIGHT
17 HOURS LATER. THAT'S TWO TIMES THE DURATION OF EFFECT. AND
18 THE PROOF THAT HE DIDN'T OVERMEDICATE ELLEN IS THAT HER PAIN
19 CAME BACK SUCH THAT A STATE NURSE, A NURSE ON BEHALF OF THE
20 STATE, TESTIFIED THAT SHE SAW EXTREME, SEVERE PAIN AND CALLED
21 DR. WEITZEL TO TREAT THAT CONDITION OF PAIN.
22 SO THE PROOF IS IN THE PUDDING HE DIDN'T OVERMEDICATE
23 HER. THE PROOF IS IN THE PUDDING. AND WHY WOULD YOU NOT USE
24 THE SAME DOSAGE SINCE THE -- SINCE IT HAD WORN OFF. THE
25 PATIENT HAD HAD A GOOD RESULT, BUT THE PAIN WAS NOW BACK.
1 AND THEN IN TERMS OF THE DEATH, THIS PATIENT DIED AT
2 AROUND NINE O'CLOCK, AGAIN, LONG AFTER THE PEAK EFFECT AND
3 LONG AFTER THE DURATION OF EFFECT. AND SHALL WE DECIDE THIS
4 CASE -- WHEN YOU ARE JUDGING DR. WEITZEL'S LIFE -- ON
5 SOMEONE'S BARE OPINION, OR SHALL WE DECIDE IT -- I.E.,
6 DR. HARE: I THINK HE -- THIS PATIENT, ELLEN ANDERSON, DIED
7 FROM AN OVERDOSE? OR SHALL WE BASE IT ON SCIENCE, SOMETHING
8 MORE THAN DR. HARE'S BARE OPINION?
9 AND WHAT IS THE SCIENCE? THE SCIENCE IS DR. WEINSTEIN,
10 WHO TESTIFIED THAT THERE ARE NO PEAK EFFECTS, THAT WHAT YOU
11 WOULD EXPECT WITH AN OVERDOSE IS THAT YOU WOULD SEE A
12 DEPRESS -- YOU KNOW, THE RESPIRATORY DEPRESSION, THE CENTRAL
13 NERVOUS SYSTEM. THE RESPIRATORY DEPRESSION, BUT YOU WOULD
14 ALSO SEE A DEPRESSION OF THE HEART RATE, A DEPRESSION OF
15 THE -- DEPRESSION OF THE BREATHING, DEPRESSION OF HEART
16 RATE -- OH, AND BLOOD PRESSURE, AND A DEPRESSION OF THE BLOOD
17 PRESSURE, A DECREASE OF THOSE THINGS. AND WE DON'T SEE IT IN
18 ANY OF THE PATIENTS. NOT ONLY DO WE NOT SEE IT IN ELLEN
19 ANDERSON, WE DON'T SEE IT IN ANY OF THE PATIENTS.
20 TODAY THE STATE'S REBUTTAL TO DR. FINE, DR. SHARON
21 WEINSTEIN, WAS FOR DR. HARE TO TAKE THE WITNESS STAND AND
22 SAY, YES, IT'S TRUE, WITH A MORPHINE OVERDOSE YOU WOULD
23 EXPECT TO SEE RESPIRATORY DEPRESSION AND YOU WOULD EXPECT TO
24 SEE ALL OF THE VITAL SIGNS TO BE LOWER, TO BE DEPRESSED, FOR
25 THERE TO BE A DIP IN THE VITAL SIGNS. AND, YES, IT'S TRUE
1 THAT NO ONE DID HAVE A DIP IN THE VITAL SIGNS, BUT I JUST
2 THINK THAT DR. WEINSTEIN, DR. WEITZEL, EVERYBODY MISSED IT
3 BECAUSE MAYBE -- WHAT HE SAYS -- IS MAYBE THERE WAS A
4 LIFE-THREATENING EVENT IN BETWEEN DOSAGES. IT'S NOT CHARTED,
5 THERE'S NOTHING IN THE MEDICAL RECORDS, BUT MAYBE. MAYBE IS
6 NOT PROOF BEYOND A REASONABLE DOUBT TO CONVICT DR. WEITZEL OF
7 MURDER.
8 OKAY. OH, AND I'LL JUST SAY, BAIR'S PRINCIPLE CRITICISM
9 ON ELLEN ANDERSON AND MAYBE OTHER PEOPLE IS THAT DR. WEITZEL
10 DIDN'T COME IN AT 3:30 IN THE MORNING OR EVEN 7:30 AT NIGHT
11 TO SEE THE PATIENT. WELL, LOOK, THE PATIENT WAS IN A PAIN
12 CRISIS. THAT'S -- THAT'S THE BOTTOM LINE. THE PATIENT WAS
13 IN A PAIN CRISIS.
14 AND DR. CRANMER, WHO TESTIFIED -- THE DOCTOR -- THE
15 GERIATRICIAN FROM OKLAHOMA CITY THAT HAD TO GO HOME AND SEE
16 HIS GRANDDAUGHTER BORN, HE SAID: YOU KNOW, IT HAPPENS. THIS
17 PATIENT WAS IN A PAIN CRISIS.
18 OKAY. MARY CRANE. AGAIN, THE THEME I'M TRYING TO
19 ADDRESS RIGHT NOW IS WERE THESE PATIENTS IN PAIN. I KNOW
20 THAT YOU KNOW TONS ABOUT THIS WOMAN UPON HER ADMISSION. ALL
21 I WILL SAY IS JUST REMIND YOU, SHE WAS NOT OPIATE NAIVE. SO
22 WHEN -- WHEN YOU THINK ABUT WHETHER OR NOT DR. WEITZEL
23 TITRATED TO EFFECT, THAT'S ALL I'D ASK YOU TO REMEMBER. SHE
24 WAS NOT OPIATE NAIVE.
25 REMEMBER THAT WHOLE LINE OF QUESTIONS WHERE THE TWO
1 MONTHS LEADING UP TO HER HOSPITALIZATION SHE HAD A LORTAB
2 EVERY DAY? REMEMBER, THE STATE'S WITNESSES DIDN'T KNOW IT;
3 MAUREEN FRIKKE DIDN'T KNOW IT, AND THEN WOULDN'T BACK DOWN.
4 WOULDN'T EVEN BACK DOWN WHEN SHE WAS CONFRONTED WITH THE FACT
5 THAT SHE MADE THE -- THE BALD ASSERTION THAT SHE WAS OPIATE
6 NAIVE, AND THEN WHEN CONFRONTED WITH THE FACT THAT SHE WAS
7 ABSOLUTELY WRONG BECAUSE THE STATE HAD NOT FURNISHED HER WITH
8 ALL THE RECORDS, RATHER THAN JUST SAYING, YEAH, I DIDN'T HAVE
9 ALL THOSE RECORDS AND IT CHANGES MY OPINION, SHE JUST -- SHE
10 COULDN'T EVEN BUDGE. THAT'S MARY CRANE.
11 AND I WILL JUST -- I JUST CAN'T HELP MYSELF BUT TO SAY
12 AS IT RELATES TO THE TRAGEDY IN THIS CASE, YOU'VE GOT
13 DR. STUBBS, THE PLACEBO, AND -- AND THE DAUGHTERS THAT
14 CLEARLY LOVED THEIR MOM THAT THOUGHT THAT SHE DIDN'T
15 RECOGNIZE ALL THIS CHRONIC PAIN AND JUST THOUGHT THAT IT WAS
16 AN ATTENTION-GETTING DEVICE. YOU KNOW, IT'S -- IT'S SAD.
17 IT'S SAD.
18 IT ALSO RELATES TO THE -- AS IT RELATES TO THE STANDARD OF
19 CARE, WHAT WE DO KNOW IS THAT WITH SOME OF THE PATIENTS,
20 DR. WEITZEL RECOGNIZED EVEN WITH AGGRESSIVE -- THAT'S -- I'LL
21 USE THAT WORD -- BIG PSYCHOTROPIC, BIG CENTRAL NERVOUS SYSTEM
22 DEPRESSANTS, THAT WITH TWO OF THE PATIENTS, WITH JUDITH
23 LARSEN AND WITH LYDIA SMITH, IN PARTICULAR, THE AGITATION --
24 YOU CAN GO BACK AND LOOK AT THE RECORDS, BUT I'M PRETTY SURE
25 YOU'LL REMEMBER THAT HER AGITATION AND COMBATIVENESS AND
1 BITING AND WILD BEHAVIORS DURING HER HOSPITAL STAY WAS JUST
2 OUT OF CONTROL THE WHOLE TIME.
3 JUDITH ALSO HAD WILD AGITATION, AND WITH JUDITH,
4 DR. WEITZEL -- WEITZEL BELIEVED HE SAW PAIN. SO WITH BOTH
5 PATIENTS -- AND I'LL REMIND YOU THAT WITH LYDIA, YOU'VE GOT
6 THE STROKE SITUATION, SO THAT DR. WEITZEL WONDERED IF SHE HAD
7 A THALAMIC STROKE. WELL, WE KNEW THAT SHE HAD A THALAMIC
8 STROKE. WONDERED IF SHE HAD PERSISTENT OR CHRONIC
9 POST-STROKE PAIN SYNDROME. IT'S CALLED SOMETHING LIKE THAT.
10 I'M CLOSE ENOUGH.
11 SO WITH BOTH PATIENTS HE DID A PAIN TRIAL. AND WHAT
12 EVERYBODY AGREES IS THAT IF YOU THINK YOU'VE GOT PAIN, IF YOU
13 TREAT THE SYMPTOMS OF PAIN, AND THEN IF THE SYMPTOMS GO AWAY,
14 THEN IT'S FAIR TO ASSUME THAT YOU -- YOU HIT IT RIGHT. YOU
15 GOT IT RIGHT THAT THE PATIENT HAD PAIN.
16 SO EVEN WHEN DR. WEITZEL DOES TITRATE TO EFFECT, EVEN
17 LIKE WITH JUDITH -- AND YOU CAN GO BACK AND LOOK. WITH
18 JUDITH, WITH LYDIA, THEY WERE LOW DOSES. JUDITH STARTS ON
19 TWO MILLIGRAMS. I CAN'T REMEMBER WHAT LYDIA STARTS ON.
20 BUT THE POINT IS EVEN WHEN DR. WEITZEL DOES -- MEETS THE
21 DR. BAIR STANDARD OF CARE, HE'S STILL GUILTY IN THE STATE'S
22 MIND. DAMNED IF YOU DO; DAMNED IF YOU DON'T.
23 OKAY. I'VE TALKED NOW ABOUT DR. WEITZEL TREATING FOR
24 PAIN AND THE STATE BELIEVING THAT NONE OF THESE PEOPLE HAD
25 PAIN. THE SECOND REASON HAD TO DO WITH ADVANCE DIRECTIVES.
1 THE SECOND REASON THAT DR. WEITZEL UTILIZED MORPHINE FOR
2 THESE PEOPLE WAS IT WAS END-OF-LIFE CARE, IT WAS COMFORT CARE
3 TYPE SITUATIONS. AND AS I SAID AT THE START, DR. WEITZEL WAS
4 HONORING THE ADVANCE DIRECTIVES.
5 AND I'M -- I'M JUST GOING TO SORT OF SCREEN THROUGH
6 THESE WITH YOU, BUT -- AND I KNOW THAT YOU'RE -- YOU'VE SEEN
7 THEM MANY, MANY TIMES. I'M NOT GOING TALK ABOUT THIS YET.
8 I'M JUST PUTTING IT HERE. BUT CAN WE JUST LOOK AT THESE
9 QUICKLY?
10 ENNIS ALLDREDGE -- WELL, I WILL JUST -- I WILL ASK YOU
11 TO LOOK OVER HERE, PLEASE. YOU HAVE SEEN THIS. THIS IS HIS
12 LIVING WILL. YOU COULDN'T HAVE A MORE ARTICULATE AND SORT OF
13 A MORE PROFOUND, THOUGHTFUL STATEMENT ABOUT THIS MAN'S
14 WISHES, ABOUT WHAT HE WANTED WITH HIS LIFE OR AT THE END OF
15 HIS LIFE.
16 YOU REMEMBER, DR. FINE POINTED OUT -- I'M NOT SURE THAT
17 THIS HAD COME OUT BEFORE. DR. FINE POINTED OUT THAT THIS WAS
18 A MAN WHOSE FATHER DIED OF DEMENTIA. WHAT DID MR. ALLDREDGE
19 HAVE TO SAY ABOUT THE END OF HIS LIFE AND WHAT KIND OF CARE
20 HE WANTED: IF AT ANY TIME I SHOULD HAVE A TERMINAL CONDITION
21 AND MY ATTENDING PHYSICIAN HAS DETERMINED THAT THERE CAN BE
22 NO RECOVERY OF SUCH CONDITION AND MY DEATH IS IMMINENT --
23 THE COURT: MR. BUGDEN, PLEASE SLOW DOWN.
24 MR. BUGDEN: TOO FAST.
25 THE COURT: RIGHT.
1 MR. BUGDEN: I'M JUST TRYING TO --
2 THE COURT: I UNDERSTAND.
3 MR. BUGDEN: -- BALANCE EVERYBODY'S NEEDS HERE.
4 THE COURT: USED TO TELL THE WITNESSES, QUICK
5 DOESN'T NECESSARILY MEAN FAST.
6 MR. BUGDEN: WHERE THE APPLICATION OF
7 LIFE-PROLONGING PROCEDURES AND HEROIC MEASURES WOULD SERVE
8 ONLY TO ARTIFICIALLY PROLONG THE DYING PROCESS, I DIRECT
9 THAT -- THAT SUCH PROCEDURES BE WITHHELD OR WITHDRAWN AND
10 THAT I MAY BE PERMITTED TO DIE NATURALLY. I DO NOT FEAR
11 DEATH ITSELF AS MUCH AS THE INDIGNITIES OF DETERIORATION,
12 DEPENDENCE, AND HOPELESS PAIN. I, THEREFORE, ASK THAT --
13 THAT MEDICATION BE MERCIFULLY ADMINISTERED TO ME, AND THAT
14 ANY MEDICAL PROCEDURES BE PERFORMED ON ME WHICH ARE DEEMED
15 NECESSARY TO PROVIDE ME WITH COMFORT CARE FOR IMMEDIATE PAIN.
16 YOU JUST COULDN'T HAVE A MORE ARTICULATE STATEMENT
17 PREDICTING ENNIS ALLDREDGE'S CIRCUMSTANCES, BUT YOU ALSO
18 HAVE -- THEN AFTER THAT, THAT -- I DON'T REMEMBER THE DATE,
19 BUT THAT'S EARLIER IN TIME IS ALL WE REALLY NEED TO KNOW.
20 AND THEN IN OCTOBER OF 1995 WE THEN HAVE SOMETHING THAT --
21 THAT IS EXECUTED BY VONDA, MRS. ALLDREDGE.
22 NEXT SLIDE, PLEASE. MARY CRANE'S MEDICAL TREATMENT
23 PLAN. THIS IS SIGNED BY KAREN BRINGHURST. ALL THE THINGS
24 THAT SHE DID NOT WANT. NO C.P.R., NO MECHANIC VENTILATION,
25 NO I.V.'S, NO N.G.
1 NEXT, PLEASE. ELLEN ANDERSON'S MEDICAL TREATMENT. AND
2 HERS IS, AGAIN, NOT QUITE A COMFORT -- IT'S NOT A COMFORT
3 CARE CASE, BUT NONETHELESS, THE ADVANCE DIRECTIVES PLAY A
4 PART IN THE DECISION-MAKING.
5 ELLEN ANDERSON, IN JULY -- AND THIS IS KIND OF -- I JUST
6 ASK YOU TO WONDER YOURSELVES WHY SUMKO HAD THE FAMILY SIGN
7 THE ADVANCE DIRECTIVE, THE MEDICAL TREATMENT PLAN, AFTER THE
8 SURGERY. AND I SUBMIT TO YOU IT'S BECAUSE OF HER DECLINING
9 STATUS AND BECAUSE OF THE PREDICTABILITY THAT SHE WAS AT THE
10 END OF HER LIFE BECAUSE DR. SUMKO SURELY KNEW OF THE HIGH
11 INCIDENCE OF DEATH FROM HIP FRACTURES AND HIP REPAIRS IN
12 SOMEONE OF THIS POPULATION. BUT ANYWAY, WITHHOLD TREATMENT
13 OF OXYGEN, ET CETERA.
14 NEXT. LYDIA SMITH'S MEDICAL TREATMENT PLAN. THIS
15 SOMEONE DESCRIBED AS A DO-NOTHING PLAN. I THINK ONE OF THE
16 STATE'S NURSES ACKNOWLEDGED THIS WAS A DON'T DO ANYTHING
17 PLAN. LET HER DIE. LET HER DIE NATURALLY AND LET HER DIE IN
18 COMFORT.
19 NEXT. JUDITH LARSEN. NO C.P.R., NO I.V.'S. OKAY.
20 THAT'S ALL.
21 ACTUALLY, I DO NEED THE NEXT SLIDE. THIS IS SO
22 IMPORTANT I -- I JUST -- I'LL TRY NOT TO JUMP UP AND DOWN.
23 BUT THIS IS -- YOU KNOW, YOU -- YOU'VE ALL SWORN THAT YOU
24 WILL FOLLOW THE LAW AS INSTRUCTED BY JUDGE PAGE AND I'M SURE
25 YOU WILL. OKAY. IN THIS CASE, EACH OF THE DECEASED PERSONS
1 HAD IN PLACE AN ADVANCE MEDICAL DIRECTIVE. WE JUST LOOKED AT
2 THEM. UNDER THE LAW, PHYSICIANS, OTHER PROVIDERS OF MEDICAL
3 SERVICES AND THEIR AGENTS WHO IN GOOD FAITH PARTICIPATE IN
4 WITHHOLDING OR WITHDRAWING OF LIFE-SUSTAINING PROCEDURES, OR
5 ADMINISTER MEDICAL CARE OR TREATMENT IN CONFORMING WITH A
6 WRITTEN DIRECTIVE, ARE IMMUNE FROM CRIMINAL LIABILITY.
7 THE BURDEN -- AND I'LL JUST REMIND YOU, THE DEFENDANT
8 DOESN'T HAVE ANY BURDEN IN A CRIMINAL CASE. I DON'T --
9 DR. WEITZEL DOESN'T HAVE TO PROVE ANYTHING. AND WE'RE GOING
10 TO TALK ABOUT REASONABLE DOUBT A LITTLE BIT LATER AND WE ARE
11 ALMOST THERE, BUT LET ME JUST SAY, THE STATE BEARS EVERY
12 BURDEN, EVERY BURDEN IN A CRIMINAL CASE, AND DR. WEITZEL IS
13 PRESUMED INNOCENT.
14 NOW, BACK TO THIS. THE BURDEN IS ON THE STATE AS TO
15 EACH SEPARATE COUNT TO PROVE THAT THE DEFENDANT DID NOT ACT
16 IN GOOD FAITH IN WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING
17 PROCEDURES OR ADMINISTERING MEDICAL CARE OR TREATMENT IN
18 CONFORMITY WITH A WRITTEN DIRECTIVE BY PROVING BEYOND A
19 REASONABLE DOUBT THAT THE DEFENDANT ACTED WITH RECKLESSNESS
20 OR CRIMINAL NEGLIGENCE AS WE -- I'M GOING TO TALK ABOUT WITH
21 YOU, AND AS THE JUDGE INSTRUCTS YOU. BUT THE DEFENDANT THEN
22 IS -- DR. WEITZEL AND ALL DOCTORS ARE ENTITLED TO COMPLETE
23 CIVIL AND CRIMINAL IMMUNITY IF THEY FOLLOW AN ADVANCE
24 DIRECTIVE.
25 NOW, WITH REGARD TO THE MEDICAL TREATMENT PLANS AND THE
1 CROSSROADS DECISIONS FOR THESE FAMILIES, IN EACH CASE --
2 OTHER THAN ELLEN ANDERSON'S -- I THINK THAT THE RECORD -- I
3 COULDN'T BE MORE -- I MEAN, I'M NOT AFRAID OF ANY ASPECT OF
4 THE WAY YOU'VE HEARD THE EVIDENCE ABOUT DR. WEITZEL GOING TO
5 THE FAMILIES IN EVERY CASE AND IN EVERY CASE SAYING, YOU HAVE
6 A CHOICE. I THINK THIS PATIENT IS DYING.
7 THEN WE SEE THE WISHES OF THE PATIENT, EITHER
8 MR. ALLDREDGE OR THE FAMILIES THEMSELVES, AND WE ALL -- AS
9 I'VE SAID FROM THE BEGINNING OF THIS TRIAL -- WE ALL HAVE A
10 RIGHT TO DECIDE HOW WE WANT TO DIE, WE ALL HAVE A RIGHT TO
11 END FUTILE MEDICAL INTERVENTIONS, AND WE ALL HAVE A RIGHT TO
12 TURN AWAY FROM CURE WHEN THERE IS NO CURE AND IT'S NO LONGER
13 REASONABLE TO BE THINKING ABOUT CURE, AND WE ALL HAVE A RIGHT
14 TO CHOOSE COMFORT.
15 AND PHYSICIANS -- WHAT THAT SLIDE -- LAST SLIDE SAID IN
16 THE INSTRUCTION THAT YOU'RE OBLIGATED TO FOLLOW IS THAT
17 PHYSICIANS ARE OBLIGATED, OBLIGATED TO HONOR THOSE WISHES.
18 TRACY SCHOLL -- I'M NOT GOING TO SPEND A HUGE AMOUNT OF
19 TIME ON THIS, BUT THIS IS, AGAIN, ONE OF THE CHAPTERS IN THE
20 BOOK OF PERHAPS WHY DR. WEITZEL IS HERE. AND IT'S BECAUSE
21 THE NURSES -- I'M GOING TO DEVELOP THIS THEME IN A MOMENT --
22 BUT REALLY, I -- I ABSOLUTELY BELIEVE THAT DR. WEITZEL HAS
23 BEEN PROSECUTED BECAUSE THREE OF THE NURSES, EARLENE COOPER,
24 TRACY SCHOLL, BONNIE HARDY JUST NEVER UNDERSTOOD COMFORT
25 CARE.
1 NURSE SCHOLL IS A POWERFUL EXAMPLE -- ALL OF THESE
2 PEOPLE, YOU KNOW, ARE -- ARE, I'M SURE, LOVELY PEOPLE THAT
3 BELIEVE IN NURSING AND CARE. BUT NURSE SCHOLL, WHAT SHE DID
4 IN THE JUDITH LARSEN CASE IS JUST -- IT'S STUNNING, REALLY,
5 WHEN YOU PUT IT ALL IN CONTEXT. CONTEXT IS EVERYTHING IN
6 WHAT -- WHAT YOU'VE HAD A CHANCE TO LEARN OVER THE LAST THREE
7 WEEKS. BUT WHAT SHE DID IS SHE SUBSTITUTED HER JUDGMENT
8 FOR THE -- HER OPINION FOR THE FAMILY'S JUDGMENT WHEN SHE
9 WITHHELD MORPHINE SULFATE THREE TIMES BECAUSE SHE CHECKED THE
10 RESPIRATION RATE AND SHE SAW THAT THE RESPIRATION RATE, IN
11 FACT, WAS DECREASED.
12 BUT WHAT SHE MISSED THE BOAT ON WAS THAT THIS WAS A
13 WOMAN WHO WAS ACTIVELY DYING AND THE FAMILY HAD DECIDED TO
14 LET THIS WOMAN DIE. AND WHAT THE STATE IGNORES AND FAILS TO
15 BE INTELLECTUALLY HONEST WITH YOU FOLKS ABOUT IS THAT THE
16 DYING PROCESS FOR JUDITH LARSEN WAS, IN FACT, EXCRUCIATINGLY
17 LONG. IT BEGAN IN AUGUST WHEN DR. -- I THINK IT WAS PEARCE,
18 I GET CONFUSED LIKE YOU WILL, TOO -- BUT WHEN DR. PEARCE
19 TALKED ABOUT TRANSFERRING JUDITH IN A NO CODE STATUS FOR
20 TERMINAL CARE IN AUGUST AND THE FAMILY CHOSE COMFORT CARE AND
21 A D.N.R., DO NOT RESUSCITATE, IN AUGUST. DR. WEITZEL DIDN'T
22 INFLUENCE THAT DECISION. THEN THIS WOMAN IMPROVED. BUT
23 REMEMBER, SHE HAS ADVANCED DEMENTIA.
24 AND THEN I'M JUST GOING TO RUN THROUGH THIS VERY QUICKLY
25 BECAUSE I KNOW YOU'LL BE FAMIL -- YOU'LL REMEMBER IT. BUT
1 JUDITH LARSEN, THIS -- THIS IS ONE OF THE CASES WHERE
2 DR. WEITZEL'S BEEN CHARGED WITH MANSLAUGHTER, A CLEARLY MORE
3 SERIOUS CHARGE THAN CRIMINAL NEGLIGENCE, THE NEGLIGENT
4 HOMICIDE.
5 WHAT DID DR. WEITZEL DO WITH REGARD TO JUDITH? HE
6 ABSOLUTELY, POSITIVELY RESPECTED THE FAMILY'S WISHES ABOUT
7 WHAT THEY WANTED TO DO WITH JUDITH. HAD THE FAMILY MADE ITS
8 WISHES KNOWN? WAS THERE SOME MYSTERY ABOUT WHAT THIS FAMILY
9 WANTED? HOW MANY TIMES DID THE FAMILY NEED TO COMMUNICATE
10 WITH THE STAFF THAT THEY WANTED TO LET THEIR MOTHER GO AND
11 DIE WITH DIGNITY?
12 ON HER ADMISSION, THE FAMILY SAYS WE HAVE HOPES, BUT NOT
13 FANTASIES. FIVE DAYS LATER ON DECEMBER 11TH THE FAMILY
14 CONTINUED TO NOT WANT I.V.'S, PER HER LIVING WILL. ON 12/30
15 THE FAMILY MAINTAINED THE D.N.R. THE SAME DAY MERLIN LARSEN
16 STRESSED THAT HE ONLY WISHED TO KEEP HIS MOTHER COMFORTABLE.
17 I'M NOT GOING TO SHOW YOU THE SLIDES, BUT I KNOW THAT YOU'LL
18 REMEMBER THE MEDICAL RECORDS BECAUSE I SHOWED THEM ALL TO
19 NURSE SCHOLL.
20 MRS. LARSEN AND HER FAMILY ABSOLUTELY HAD SUFFERED
21 THROUGH -- MAY I SEE THE NEXT SLIDE, PLEASE? RIGHT THERE. A
22 LONG PROCESS OF THIS WOMAN DYING. THIS IS PARAPHRASING, BUT
23 THE GIST OF WHAT THIS MAN SAID WAS: I COULD HEAR HER
24 SCREAMING. SHE WAS VERY AGITATED. I KNEW SHE WAS GETTING
25 PSYCHOTROPICS. THAT WAS THE PLAN.
1 AND THAT WAS IN RESPONSE TO MR. WILSON SOMEHOW
2 SUGGESTING THAT IT WASN'T THE PLAN THAT SHE GET
3 PSYCHOTROPICS.
4 NEXT. IT SEEMED OBVIOUS TO ME THAT SHE WAS TERMINAL.
5 THAT'S MERLIN LARSEN'S CONCLUSION. THIS FAMILY HAD
6 ACCEPTED THAT THEIR MOTHER WAS GOING TO DIE, AND DR. WEITZEL
7 IS NOT THE PERSON THAT PUT HER IN THAT SITUATION. THE STATE
8 HAS NOT OFFERED ANY EVIDENCE TO SUGGEST THAT EITHER THE
9 PSYCHOTROPICS OR THE MORPHINE SOMEHOW -- PSYCHOTROPICS, LET'S
10 STAY THERE. THAT THE PSYCHOTROPICS EXACERBATED, MADE WORSE,
11 ENHANCED THIS WOMAN'S UNDERLYING ARTERIOSCLEROSIS OR OTHER
12 MULTIPLE MEDICAL PROBLEMS. THIS WOMAN WAS A CANDIDATE,
13 UNFORTUNATELY, TO PASS AWAY WHEN SHE WAS ADMITTED. SHE WAS
14 IN THE PROCESS OF DYING AND THIS FAMILY CHOSE NOT TO PROLONG
15 THE DYING PROCESS.
16 NOW, AFTER THIS NURSE SCHOLL -- THIS IS -- SOME OF THE
17 STATE'S EVIDENCE WAS THERE WAS SOMETHING EVIL OR BAD ABOUT
18 DR. WEITZEL. AFTER THIS NURSE DID SOMETHING SHE SHOULD NOT
19 HAVE -- SHE CAN WITHHOLD MEDICATION, BUT OVER AND OVER AGAIN
20 PEOPLE SAID YOU'VE GOT TO NOTIFY THE DOCTOR. AND NURSE
21 SCHOLL, ALMOST UNDER HER BREATH ADMITTED, I DIDN'T NOTIFY
22 DR. WEITZEL WHEN I DID IT. I LET HIM KNOW AFTERWARDS, AFTER
23 I WITHHELD IT THREE TIMES.
24 AND THEN WHAT DID DR. -- DR. WEITZEL WAS UPSET WITH HER.
25 YOU KNOW, AND I'M NOT EMBARRASSED TO SAY IT. HE WAS UPSET
1 THAT THE NURSE HAD MADE THE DECISION TO SUBSTITUTE HER
2 JUDGMENT BY TAKING THE VITALS AND SEEING THAT SHE WAS HAVING
3 RESPIRATORY ISSUES, BUT CONTEXT IS EVERYTHING. THIS WOMAN
4 WAS DYING AND DR. WEITZEL WAS ADMINISTERING TO HER AND
5 PROVIDING FOR COMFORT CARE. YOU COULD NOT HAVE A MORE
6 CLEAR-CUT CASE OF OVER AND OVER AGAIN THIS FAMILY SAYING:
7 LET MY MOM DIE. KEEP HER COMFORTABLE.
8 JUST AS IT RELATES TO JUDITH LARSEN WHO DID RECEIVE --
9 WHICH I KNOW YOU KNOW -- 130 MILLIGRAMS OF MORPHINE ON THE
10 LAST DAY. DR. HARE'S ONE OF THE PRINCIPLE CRITICS OF
11 DR. WEITZEL USING 130 MILLIGRAMS AT THE END OF LIFE FOR THIS
12 WOMAN.
13 AND WHAT I WOULD JUST SAY TO YOU, I'D JUST ASK YOU TO
14 PUT ON YOUR THINKING CAPS, FOLKS, PLEASE, WHEN YOU GO INTO
15 THAT JURY ROOM. AND, AGAIN, IF THE FAMILY, THE NURSING
16 STAFF, THE DOCTOR HAVE -- NOT NURSE SCHOLL BECAUSE SHE WAS --
17 SHE WAS NOT ON-BOARD -- BUT IF EVERYBODY ELSE WHO REALLY
18 SHOULD BE INVOLVED IN THE DECISION, MOST IMPORTANTLY THE
19 FAMILY, IF THEY SAID LET MY MOM DIE A NATURAL DEATH, KEEP HER
20 OUT OF PAIN, THEN WHAT'S THE TREATMENT GOAL?
21 WELL, THE TREATMENT GOAL IS TO NOT BE CHECKING HER
22 VITALS, TO NOT STOP THE DYING PROCESS BY WITHHOLDING THE
23 MORPHINE, BUT NOT ALLOWING PAIN TO RETURN, TO DENY AND IGNORE
24 THE FACT THAT IN PAIN MANAGEMENT YOU MAINTAIN A CONSTANT
25 LEVEL OF PAIN MEDICATION SO THAT PAIN WON'T COME BACK.
1 THAT'S THE FIRST CONCEPT.
2 SO IF THE CONCEPT IS, DON'T LET THE PAIN COME BACK, THEN
3 I SAY TO YOU, IF DEATH IS FORESEEABLE NOW, IF DEATH IS
4 RECOGNIZED, IF DEATH HAS BEEN EMBRACED BY THE FAMILY, THEN
5 WHAT ARE WE GOING TO DO TO THE DOCTOR WHO ADMINISTERS
6 MORPHINE? ARE WE GOING TO SECOND-GUESS, MONDAY MORNING
7 QUARTERBACK LIKE DR. HARE AND SAY: WELL, MAYBE SHE DIDN'T
8 NEED THAT MUCH MORPHINE. MAYBE SHE SHOULD HAVE HAD 50
9 MILLIGRAMS, NOT 130. MAYBE DR. HARE THINKS SHE SHOULD HAVE
10 ONLY HAD 75 MILLIGRAMS AND DR. WEITZEL ADMINISTERED 130.
11 BUT WHAT WAS THE TREATMENT GOAL? HOW CAN YOU
12 SECOND-GUESS THAT AND CALL THAT MURDER? HOW CAN YOU
13 SECOND-GUESS THAT AND CALL THAT MANSLAUGHTER, RECKLESS
14 BEHAVIOR? TEN DROPS VERSUS EIGHT DROPS OR HOWEVER YOU WANT
15 TO THINK ABOUT IT. IF THE GOAL WAS TO KEEP HER OUT OF PAIN,
16 THEN DR. WEITZEL DID THAT.
17 KAREN BRINGHURST, SHE SAID AND ACKNOWLEDGED THAT
18 DR. WEITZEL EXPLAINED TO HER THAT MOR -- YOU KNOW, THAT
19 MORPHINE MIGHT HASTEN HER DEATH. SHE WAS A NURSE. SHE
20 CERTAINLY UNDERSTOOD THAT. MISCOMMUNICATIONS WITH THE
21 FAMILIES BETWEEN I GUESS THE NURSING STAFF AND MAYBE DR. --
22 AND THE PERCEPTION OF THESE FAMILIES WITH REGARD TO WHAT
23 DR. WEITZEL WAS DOING WITH THESE FAMILIES, THERE WAS SOME
24 MISCOMMUNICATION. AND PERHAPS THE BEST EXAMPLE IS WITH THE
25 SMITH FAMILY.
1 COULD I SEE SLIDE 31? OKAY. REMEMBER THAT KENT
2 SMITH -- ON 1/7/96, KENT SMITH, HE'S THE ONE WHO EXECUTES THE
3 MEDICAL DIRECTIVE, AND THIS IS REMEMBERED AS THE DO-NOTHING
4 PLAN. BY ALL ACCOUNTS, THIS IS A DO-NOTHING PLAN.
5 WELL, THEN THE NEXT SORT OF SIGNIFICANT TESTIMONY WE
6 HAVE IS FROM BONNIE SMITH WHO ON JANUARY 8TH -- WHY DON'T YOU
7 TURN THAT OFF -- IS CRITICAL BECAUSE THEY'RE NOT SUCTIONING
8 THE MOTHER. WELL, I JUST SHOWED YOU ON THE LAST MEDICAL
9 DIRECTIVE, NO SUCTIONING. SO HOW IS THAT DR. WEITZEL'S
10 FAULT? BECAUSE HE FULFILLED KENT SMITH'S WISHES AND KENT,
11 APPARENTLY, HAD NOT TALKED TO BONNIE, SO THAT BONNIE SEES
12 THAT MOM IS NOT GETTING SUCTIONING AND IS CONCERNED ABOUT
13 THAT AND THINKS THAT THAT'S NOT RIGHT? WELL, CLEARLY WHAT
14 HAD HAPPENED WAS THAT THERE WAS A MISCOMMUNICATION OR A
15 FAILURE TO COMMUNICATE BETWEEN THEM.
16 SO WHY ARE WE HERE? WHY HAS DR. WEITZEL BEEN CHARGED?
17 I SUBMIT TO YOU THAT I THINK THAT THERE ARE TWO PRINCIPLE
18 REASONS. THE FIRST, THAT THREE OF THE NURSES THAT I'VE
19 ALREADY NAMED, THAT THEY JUST NEVER UNDERSTOOD COMFORT CARE,
20 THAT THEY SAW THEMSELVES AS PSYCHIATRIC NURSES. THAT BECAUSE
21 THEY'RE PSYCHIATRIC NURSES, BECAUSE IT WAS A PSYCHIATRIC UNIT
22 ON THE HOSPITAL, THEY JUST DIDN'T THINK ANYONE SHOULD DIE
23 THERE. THEY DIDN'T THINK THAT ANYONE SHOULD DIE UNDER THEIR
24 CARE AND THEY DIDN'T WANT TO HAVE ANYTHING TO DO WITH COMFORT
25 CARE. AND IT JUST TURNED OUT THAT SOME PATIENTS CAME ON THAT
1 UNIT -- THE ONES THAT WE'RE TALKING ABOUT -- THAT WERE IN THE
2 ACTIVELY DYING PROCESS AND THAT THEY DID DIE ON THE UNIT.
3 BUT THE NURSES JUST SIMPLY NEVER GOT THE CONCEPT.
4 THE OTHER REASON THAT I'M GOING TO GET TO IN JUST A
5 MOMENT, BUT I HONESTLY BELIEVE THAT THE OTHER REASON THAT
6 DR. WEITZEL HAS BEEN ACCUSED OF MURDER AND MANSLAUGHTER AND
7 CRIMINAL -- CRIMINAL NEGLIGENCE IS BECAUSE THE STATE MET WITH
8 DR. FINE EARLY ON AND THEY JUST DIDN'T WANT TO HEAR THE
9 TRUTH. THEY ALREADY HAD TUNNEL VISION, BUT THEY JUST DIDN'T
10 WANT TO HEAR THE TRUTH ABOUT WHETHER OR NOT THERE WAS ANY
11 CRIMINAL CONDUCT HERE, WHETHER THERE WAS A BREACH IN THE
12 STANDARD OF CARE.
13 EVEN -- BACK TO NURSES. EVEN FOR NURSES, WATCHING
14 PEOPLE DIE IS SURELY A PAINFUL AND EMOTIONAL PROCESS. BUT
15 THE PHILOSOPHY OF PROVIDING COMFORT CARE IS SORT OF THE --
16 THE -- THE FOUNDATION HERE. AND THE THREE NURSES THAT ARE SO
17 HOSTILE TO DR. WEITZEL, BONNIE HARDY AND EARLENE, IN
18 PARTICULAR, THEY JUST SIMPLY DIDN'T UNDERSTAND THE COMFORT
19 CARE CONCEPT. THEY WEREN'T COMFORTABLE WITH IT.
20 AND I HONESTLY BELIEVE THAT BECAUSE THEY FAILED TO
21 UNDERSTAND PAIN MANAGEMENT AND COMFORT CARE, END-OF-LIFE CARE
22 FOR THESE PATIENTS, THAT BECAUSE THEY THEN WERE INVOLVED IN
23 PROVIDING COMFORT CARE, BECAUSE THEY DIDN'T SEE THEMSELVES AS
24 COMFORT CARE NURSES, THEY ONLY SAW THEMSELVES AS PSYCHIATRIC
25 NURSES, THAT COLORED OR LENT A FILTER AND A BIAS AGAINST
1 DR. WEITZEL WITH REGARD TO ABSOLUTELY EVERYTHING THAT THEY
2 SAW.
3 AND I THINK THERE ARE JUST A COUPLE OF -- COUPLE OF
4 EXAMPLES WITH BOTH BONNIE HARDY AND EARLENE. I JUST WANT YOU
5 TO REMEMBER THIS. ENNIS ALLDREDGE, BONNIE HARDY DESCRIBED AS
6 FEISTY AND HE WAS A GOOD MAN.
7 WELL, YOU KNOW, JUST LIKE I THINK DR. CRANMER SAID, YOU
8 KNOW, AND ALL OF US UNDERSTAND IT, ALL OF GOD'S CREATURES,
9 YOU KNOW, ARE GOOD PEOPLE, GOOD MEN, GOOD WOMEN, BUT THAT'S
10 REALLY SORT OF BESIDE THE POINT OF WHAT WE'RE DEALING WITH.
11 WE'RE DEALING WITH A PROFOUND, SAD SITUATION. MR. ALLDREDGE
12 HAD DEMENTING DISEASE. MR. ALLDREDGE HAD THROWN WHEELCHAIRS
13 AT PEOPLE AND ATTACKED THE MEDICAL STAFF. THAT'S A LITTLE
14 BIT MORE THAN FEISTY. AND HE MAY HAVE BEEN A GOOD MAN, BUT
15 IT MISSES THE POINT THAT HE HAD DEMENTING ILLNESS, HE HAD
16 DEMENTIA, AND THAT'S WHAT WAS CAUSING ALL OF THESE WILDLY
17 AGITATED BEHAVIORS.
18 EARLENE COOPER, IN TERMS OF WHETHER OR NOT SHE'S
19 OBJECTIVE, IS SHE AN OBJECTIVE HISTORIAN FOR YOU TO RELY ON?
20 SHE DESCRIBED LYDIA SMITH AS FEISTY, AND SHE SAID, QUOTE, SHE
21 WAS A DARLING LITTLE THING, UNQUOTE.
22 EARLENE HAS A SELECTIVE MEMORY HERE AND SHE HAS DELETED
23 FROM HER MEMORY BANKS THAT -- THAT MRS. SMITH KICKED AND SPIT
24 AT THE STAFF AT THE NURSING HOME, AMONG OTHER THINGS.
25 AND REMEMBER, WITH REGARD TO LYDIA SMITH, THAT
1 DR. BITNER COULD NOT EVEN EXAMINE THIS WOMAN REALLY BECAUSE
2 SHE WAS SO DEMENTED, SO AGITATED. HE WOULDN'T EVEN -- SHE
3 WOULDN'T EVEN -- WELL, ANYWAY, SHE WOULDN'T ALLOW ANY KIND OF
4 CONTACT AT ALL.
5 SO DID THESE NURSES DISLIKE DR. WEITZEL? CLEARLY. WAS
6 DR. WEITZEL PERHAPS MORE RUDE WITH BONNIE HARDY OR DID HE
7 MAYBE NOT RESPECT HER OPINIONS ON PHARMACOLOGY? MAYBE. WERE
8 THESE PEOPLE AFRAID TO ADMINISTER MORPHINE EVEN IN THE
9 SITUATION OR WITH NURSING KNOWLEDGE THAT IT MIGHT HASTEN
10 DEATH? THEY SURE WERE. I MEAN, THAT'S THE POINT. THEY
11 WERE.
12 BUT EVEN, FOR EXAMPLE, WHEN BONNIE HARDY CHECKED WITH
13 THE PHARMACY TO FIND OUT WHETHER OR NOT DR. WEITZEL WAS
14 OVERMEDICATING AND THE PHARMACY SAID NO, THAT STILL WASN'T
15 GOOD ENOUGH FOR BONNIE HARDY.
16 SO THE POINT, AS IT RELATES TO THE NURSES AND WHETHER OR
17 NOT THESE ARE OBJECTIVE, RELIABLE HISTORIANS FOR YOU, JUST
18 REMEMBER, THEY HAVE A BIAS. NOT LIKE AN EVIL THING, BUT IT'S
19 A BIAS, I BELIEVE, BORN -- BORN FROM A FAILURE TO UNDERSTAND
20 WHAT PALLIATIVE CARE IS.
21 NOW, DR. FINE, I'VE SAID TO YOU I HONESTLY BELIEVE THAT
22 THE STATE HAD SORT OF -- WELL, THE BEST SPIN I CAN PUT ON IT
23 IS A TRAGIC CASE OF TUNNEL VISION.
24 MAY I SEE THE SLIDE? WHAT'S WRONG WITH THIS PICTURE
25 WITH WHAT HAPPENED WITH THE PROGRESSION HERE? FIRST,
1 DR. HARE, THE STATE'S EXPERT, RECOGNIZES HE'S NOT AN
2 END-OF-LIFE SPECIALIST. HE RECOGNIZES THAT THE STATE
3 CONTACTED UTAH'S REALLY FOREMOST EXPERT ON END-OF-LIFE CARE,
4 DR. PERRY FINE. DR. FINE THEN IS ONLY GIVEN SELECTED MEDICAL
5 RECORDS.
6 NEXT, PLEASE. I THINK THAT MR. WILSON WILL PROBABLY
7 TALK ABOUT THIS IN HIS REPLY TO ME. AND YESTERDAY AT THE END
8 OF THE DAY BETSY BOWMAN WAS MENTIONED AS A WITNESS AND THEN
9 SHE WASN'T CALLED. WE HAVE A BLOW-UP OF THIS.
10 SO THIS IS THE INTRODUCTION TO DR. FINE SEVERAL YEARS
11 AGO: ENCLOSED YOU'LL PLEASE FIND THE REQUESTED MEDICAL
12 RECORDS OF THESE PEOPLE.
13 THE COURT: MR. BUGDEN?
14 MR. BUGDEN: TOO FAST.
15 THESE RECORDS INCLUDE THE PSYCH EVALS, CONSULTS,
16 DOCTOR'S ORDERS, PROGRESS NOTES, LAB RESULTS, MEDICATION
17 RECORDS, DISCHARGE SUMMARIES, DEATH CERTIFICATE. I ALSO HAVE
18 THE THREE AUTOPSIES. THIS IS SORT OF IMPORTANT HERE.
19 NEEDLESS TO SAY, THERE ARE MANY OTHER MEDICAL RECORDS
20 AVAILABLE. I HAVE NOT INCLUDED NURSING TREATMENT PLANS, TEAM
21 THERAPY, ET CETERA.
22 NEXT, PLEASE. ANOTHER LETTER: ENCLOSED YOU'LL FIND
23 SOME ADDITIONAL MATERIALS THAT HAVEN'T BEEN INCLUDED.
24 NEXT, PLEASE. WHAT DIDN'T -- WHAT DID THE STATE FAIL TO
25 GIVE DR. FINE BEFORE THEY SOUGHT HIS OPINION? BEFORE I SHOW
1 YOU THE NEXT SLIDE, LET ME JUST SAY, CONTEXT IS EVERYTHING.
2 NEXT SLIDE, PLEASE. WHAT WAS MISSING? THE NURSE
3 PROGRESS NOTES. LIKE WE JUST SAID, THE TEAM THERAPY RECORDS,
4 SPECIAL OBSERVATION RECORDS, NURSING HOME RECORDS.
5 NEXT, PLEASE. HOW COULD YOU MAKE SENSE OUT OF ANY
6 ASPECT OF THIS CASE IF YOU DIDN'T SEE THE NURSING NOTES? HOW
7 COULD YOU EVER UNDERSTAND WHETHER OR NOT DR. WEITZEL WAS
8 TITRATING TO EFFECT WITH PSYCHOTROPIC MEDICATIONS? HOW COULD
9 YOU EVER KNOW IF PATIENTS WERE PRESENTING WITH SYMPTOMS OF
10 PAIN? I'M ONLY GOING TO SHOW YOU TWO EXAMPLES, BUT WAS THE
11 STATE FAIR WITH DR. WEITZEL?
12 YOU'VE SEEN THIS BEFORE. THIS IS ELLEN ANDERSON: MS 10
13 MILLIGRAMS I.M. EIGHT O'CLOCK FOR SEVERE PAIN. THIS IS
14 LAURIE WILLSON'S NOTE. PATIENT -- CAN'T READ THE FIRST
15 LINE -- RIGID, OS -- WELL, ANYWAY, THE GIST OF IT IS SEVERE
16 PAIN, PROFOUND OSTEO -- OSTEOPOROSIS. CALMER FOR TWO HOURS
17 AFTER THE MORPHINE IS INJECTED.
18 NEXT, PLEASE. ENNIS ALLDREDGE. HOW COULD THEY EVER
19 EXPECT DR. WEITZEL TO REACH A FAIR OPINION WITHOUT THE
20 NURSING PROGRESS NOTES?
21 THE COURT: DR. FINE?
22 MR. BUGDEN: THANK YOU. DR. FINE.
23 PATIENT AWAKE, AGITATED, TRYING TO GET OUT OF BED.
24 STRIKING OUT AT CAREGIVERS, GRABBING. ATTEMPTED TO GIVE
25 P.R.N. -- THIS IS LIKE -- THIS IS LIKE JUST SO PERVERTED
1 THAT -- THAT DR. WEITZEL IS PROSECUTED, THAT -- THAT DR. FINE
2 WASN'T GIVEN THIS KIND OF A NOTE. ATTEMPTED TO GIVE P.R.N.
3 TRAZODONE AS ORDERED. PATIENT REFUSED. SPITTING.
4 ENOUGH. COULD I SEE -- I THINK IT'S PROBABLY THE NEXT
5 SLIDE.
6 SO I ASK YOU THIS SORT OF RHETORICAL QUESTION. IF
7 ALLOWING PATIENTS TO DIE WITHOUT MEDICAL INTERVENTIONS IS
8 MANSLAUGHTER OR NEGLIGENT HOMICIDE, THEN LIVING WILLS WOULD
9 MAKE -- THERE'S NO REASON TO HAVE THEM. MEDICAL POWERS OF AN
10 ATTORNEY, THEY WOULD BE USELESS.
11 THERE WOULD BE SOME ACCOMPLICES. THE ACCOMPLICES WOULD
12 BE ANYONE LIKE FAMILY MEMBERS WHO APPROVE LIFE-SHORTENING
13 MEASURES; THOSE WHO ORDERED THE MEDICATIONS -- THAT WOULD BE
14 THE DOCTOR; THOSE WHO ADMINISTER THE MEDICATIONS, THE
15 PHARMACISTS AND THE NURSES; THOSE WHO REMOVE THE LIFE
16 SUPPORT, THE NURSES. ANYONE WHO FAILED TO RESUSCITATE. IT
17 WOULDN'T JUST STOP WITH DR. WEITZEL. LET'S BE FAIR.
18 LET'S -- LET'S HOLD EVERYONE ACCOUNTABLE UNDER THAT STATE
19 THEORY.
20 NOW, I WANT TO JUST TALK A LITTLE BIT ABOUT CAUSE OF
21 DEATH. AND, OF COURSE, THE STATE HAS PRESENTED YOU -- THEIR
22 BIG PICTURE ON CAUSE OF DEATH IS TO PRESENT YOU WITH
23 CROOKSTON, WHO SAYS THAT HE BELIEVES THE PSYCHOTROPICS AND
24 THE MORPHINE CAUSED OR CONTRIBUTED TO THE DEATH OF THESE
25 PATIENTS; DR. HARE, WHO I THINK SORT OF SAYS THE SAME THING.
1 DR. BAIR SAYS MORPHINE DIDN'T CAUSE THE DEATH IN FOUR -- FOUR
2 OF THE FIVE PATIENTS, BUT HE BELIEVES IT DID CAUSE THE DEATH
3 ACTUALLY WITH MR. ALLDREDGE, WHO'S NOT CHARGED WITH ONE OF
4 THE MORE SERIOUS CRIMES. THEY'RE ALL SERIOUS, BUT NOT
5 CHARGED WITH MANSLAUGHTER.
6 ON THE OTHER HAND, THE DEFENSE HAS PRESENTED YOU WITH
7 THE OPINIONS OF DR. BLAKE THAT THERE WAS NO OVERMEDICATION
8 WITH THE PSYCHOTROPICS, DR. CRANMER, DR. FINE, DR. WEINSTEIN,
9 DR. CASSIN. AND DR. WEINSTEIN -- I'VE GONE OVER IT, BUT I
10 WILL JUST SAY TO YOU WHEN YOU RETIRE JUST -- MAYBE JUST
11 UNDERLINE THIS THOUGHT. THE STATE HAS ITS EXPERT AND, YOU
12 KNOW, ANYBODY I GUESS IS ENTITLED TO THEIR OPINION, WHICH I
13 HONESTLY BELIEVE IS ALL THAT DR. HARE HAS DONE.
14 BUT WHAT I ASK YOU TO DO WHEN YOU GO BACK TO THE JURY
15 ROOM IS THINK ABOUT WHO PRESENTED YOU WITH SCIENCE, WHO
16 PRESENTED YOU WITH THE MEDICAL SCIENCE AS TO WHETHER OR NOT
17 MORPHINE TOXICITY WAS BORN OUT BY THE MEDICAL RECORDS? AND
18 I'VE GONE THROUGH THIS ABOUT WHAT HAPPENED TODAY WHEN
19 DR. HARE WAS ON THE STAND, BUT IT -- IT JUST -- IT SPEAKS
20 VOLUMES TO THE FACT THAT THE STATE'S EVIDENCE AND THEIR OWN
21 EXPERT ACKNOWLEDGES THAT WHEN YOU LOOK -- WHEN YOU TRY TO
22 LOOK IN THE MEDICAL RECORDS TO SEE WHETHER OR NOT THERE IS
23 MEDICAL EVIDENCE OF MORPHINE TOXICITY, IN TERMS OF ALL THE
24 VITALS BEING DEPRESSED, IT'S NOT THERE. SO HOW COULD THAT
25 POSSIBLY BE PROOF BEYOND A REASONABLE DOUBT THAT DR. WEITZEL
1 CAUSED THE DEATH OF THESE PEOPLE?
2 DR. CASSIN EXPLAINED TO YOU THAT ALL OF THESE PEOPLE
3 DIED FROM NATURAL DEATHS. THEY DIED FROM ARTERIOSCLEROTIC
4 CARDIOVASCULAR DISEASE WHICH EFFECTS THE BRAIN AND THE HEART.
5 THESE PATIENTS WERE NOT VICTIMS OF DR. WEITZEL; THEY WERE
6 JUST VICTIMS OF THEIR DISEASES.
7 LET ME ALSO JUST GIVE YOU THIS LITTLE NEWS BLIP, THEN
8 WE'LL TALK ABOUT THE STANDARD OF CARE. AND THEN I --
9 THANKFULLY, I AM GETTING CLOSE TO THE END.
10 BUT AN INTERESTING LITTLE THING HERE IS THAT TODD GREY,
11 THE MEDICAL EXAMINER FOR THE STATE, CERTIFIED JUDITH LARSEN
12 AS A HOMICIDE ONLY BECAUSE MORPHINE WAS ON-BOARD. ONLY
13 BECAUSE MORPHINE WAS ON-BOARD. BUT IF THAT'S THE CRITERIA,
14 THEN EVERY TIME PHYSICIANS PROVIDE COMFORT CARE AND THERE IS
15 MORPHINE ON-BOARD -- BECAUSE, REMEMBER, IN JUDITH LARSEN'S
16 CASE THESE -- FORENSICALLY OR SCIENTIFICALLY AT AUTOPSY THERE
17 WAS NO QUANTITY. THERE WAS NO QUANTIFIABLE AMOUNT. IT JUST
18 SIMPLY WAS THAT THERE WAS SOME THERE.
19 SO UNDER DR. TODD GREY'S VERSION, EVERY TIME A
20 PALLIATIVE CARE PHYSICIAN PROVIDES MORPHINE TO SOME PATIENT
21 AT THE END OF THEIR LIFE, MORPHINE IS FOUND IN THEIR BLOOD
22 AFTER DEATH, IT WILL ALWAYS BE CERTIFIED AS A HOMICIDE. KIND
23 OF SHOCKING.
24 COULD WE SEE STANDARD OF CARE, PLEASE? NOW, HOLD ON FOR
25 JUST A SECOND BEFORE WE READ THIS TOGETHER. LET ME JUST SAY,
1 THE GIST OF WHAT DR. WEITZEL -- OR THE GIST OF EITHER OF THE
2 CRIMINAL CHARGES AGAINST DR. WEITZEL -- I'M GOING TO TALK
3 ABOUT THIS IN JUST A SEC -- BUT THE GIST OF EITHER CHARGE,
4 NUMBER ONE, IS THAT DR. WEITZEL BREACHED A STANDARD OF CARE,
5 A STANDARD OF MEDICAL CARE.
6 NUMBER TWO, THAT HE DIDN'T JUST BREACH IT A LITTLE BIT,
7 THAT IT HAS TO BE A -- A SUBSTAN -- WELL, IT HAS TO BE A
8 GROSS DEVIATION FROM THE STANDARD OF CARE. HOLD THAT THOUGHT
9 FOR A MINUTE.
10 AND NUMBER THREE, THAT THIS GROSS DEVIATION FROM THE
11 STANDARD OF CARE CAUSED THE DEATH OF ALL THESE PEOPLE.
12 OKAY. NOW, REMEMBER THAT DR. FINE EXPLAINED TO YOU AND
13 I THINK HARE -- I -- I CAN'T REMEMBER ON THE STATE'S SIDE.
14 BAIR WAS SOMEONE WHO WAS REAL HARD TO EVER GET HIM TO
15 ACKNOWLEDGE THAT THERE'S A RANGE OF ACCEPTABLE BEHAVIOR, BUT
16 WHAT YOU NEED TO UNDERSTAND -- AND I'M GOING TO REFER TO SOME
17 JURY INSTRUCTIONS IN JUST A MOMENT.
18 BUT THERE'S MORE TO THE STANDARD OF CARE FOR A DOCTOR
19 THAN JUST DR. BAIR'S STANDARD OF CARE. THERE HAS TO BE A
20 RANGE OF ACCEPTABLE BEHAVIOR. THERE HAS TO BE A RANGE OF
21 ACCEPTABLE BEHAVIOR FOR A MECHANIC. THERE HAS TO BE A RANGE
22 OF ACCEPTABLE BEHAVIOR FOR A MEDICAL DOCTOR, FOR A
23 PSYCHIATRIST, FOR A LAWYER. IT CAN'T JUST BE THERE'S ONLY
24 ONE WAY TO DO IT, ONE SIDE -- OR, YOU KNOW, ONE WAY TO DO IT,
25 AND IF YOU DON'T DO IT THAT ONE WAY THEN YOU HAVE BREACHED
1 THE STANDARD OF CARE.
2 SO WHAT'S -- LET ME TRY TO WALK YOU THROUGH THE WAY I
3 THINK THE LAW REQUIRES YOU TO LOOK AT THIS. FIRST, THERE IS
4 AN ACCEPTABLE RANGE OF MEDICAL CARE. IT'S MORE THAN
5 DR. BAIR'S STANDARD OF CARE. AND THERE'S BEST MEDICINE AT
6 THE TOP, WHICH IS WHAT DR. LESLEY BLAKE TALKED TO YOU ABOUT;
7 THERE'S GOOD MEDICINE, YOU KNOW, DOCTORS THAT ARE JUST PLAIN
8 GOOD DOCS, WHICH IS PROBABLY, YOU KNOW, THE BULK, I BET.
9 AND ALL OF THAT MEETS THE STANDARD OF CARE. BUT IF
10 YOU -- IF YOU DEVIATE FROM THE STANDARD OF CARE, IF YOU DON'T
11 MEET THAT RANGE OF ACCEPTABLE BEHAVIORS, THEN YOU HAVE
12 SUBSTANDARD MEDICINE, A DEVIATION FROM THE STANDARD OF CARE.
13 THAT WOULD BE WHAT WE CALL NEGLIGENCE AND THAT WOULD BE A
14 CIVIL LAWSUIT FOR MALPRACTICE.
15 WHAT YOU DO WHEN A DOCTOR BREACHES THE STANDARD OF CARE
16 IS THAT YOU SUE HIM BECAUSE YOU SAY YOU -- YOUR MEDICINE WAS
17 NOT -- DIDN'T MEET THE STANDARD OF WHAT A REASONABLY
18 COMPETENT DOCTOR WOULD MEET.
19 SO -- AND LET ME JUST STOP THERE TO SAY THAT IS ALL THAT
20 THE STATE'S EXPERTS -- WHO I CHALLENGE THEIR OPINIONS AND I
21 INVITE YOU, PLEASE, TO PUT ON YOUR THINKING CAPS AND WEIGH
22 WHETHER OR NOT YOU ARE PERSUADED THAT DR. WEITZEL BREACHED
23 THE STANDARD OF -- OF ACCEPTABLE MEDICINE. I -- PLEASE THINK
24 ABOUT THAT. PLEASE WEIGH DR. BAIR AND THE CROOKSTONS AND THE
25 HARES OF THIS WORLD -- OR OF THIS TRIAL VERSUS -- AND, AGAIN,
1 I JUST EMPHASIZE, HARE, WHO DOESN'T KNOW -- KNOW THE
2 GERIATRIC STANDARD OF CARE IF IT KICKED HIM IN THE BUTT
3 BECAUSE HE ACKNOWLEDGES THAT'S NOT HIS AREA OF MEDICINE.
4 BAIR, WHO HAS THE BEST MEDICINE, HE'S ONE OF ONLY TWO IN THE
5 COUNTRY, SO IT'S NOT THE DR. BAIR STANDARD.
6 SO THERE'S THIS RANGE OF ACCEPTABLE BEHAVIOR. WEIGH
7 DR. BAIR AND DR. CROOKSTON, WHO TREATS JUVENILES THAT ARE
8 SMOKING TOO MUCH POT, AGAINST DR. PERRY FINE, UTAH'S FOREMOST
9 EXPERT ON END-OF-LIFE CARE; OR DR. CRANMER, WHO TREATS
10 DEMENTED, FRAIL ELDERLY PATIENTS; OR DR. LESLIE BLAKE, WHO
11 RUNS A GEROPSYCHIATRIC UNIT.
12 AND I ASK YOU, WHEN YOU WEIGH THE DEFENSE EXPERTS, WHO
13 IS AN EXPERT? WHO REALLY, REALLY IS -- ARE THE EXPERTS IN
14 THIS CASE? WHO ARE THE PRETENDERS? WHO ARE INTELLECTUALLY
15 DISHONEST?
16 YOU KNOW, I SUBMIT TO YOU WHEN YOU DO THAT WEIGHING,
17 THAT WILL NOT BE A HARD DECISION, THAT THE DEFENSE
18 EXPERTS -- I MEAN, DR. FINE IS ONE OF THE GUYS THAT SETS THE
19 STANDARD OF CARE, ARTICULATES IT BY CREATING GUIDELINES.
20 KEELA HERR DOES THE SAME THING. DR. CRANMER CREATES THE
21 GUIDELINES ON A NATIONAL LEVEL.
22 DO ANY OF THE STATE'S EXPERTS DO THAT? SO HOW WOULD
23 THEY KNOW WHAT THE HECK THE STANDARD OF CARE IS? HOW WOULD
24 THEY KNOW THAT? BUT THIS IS SO IMPORTANT, SO I HOPE I'M
25 FIRING IT. I HOPE MY PISTONS AND EVERYTHING ARE WORKING HERE.
1 SO YOU GOT THE BREACH OF THE STANDARD OF CARE WHICH IS
2 ALL THAT THE STATE EVER PUT ON. THAT'S EVEN IF YOU
3 BELIEVE -- YOU BELIEVE DR. BAIR OVER DR. CRANMER; YOU BELIEVE
4 DR. BAIR AND DR. CROOKSTON OVER PERRY FINE AND ALL MY PEOPLE
5 WHO TESTIFIED ON BEHALF OF DR. -- DR. WEITZEL.
6 LET'S -- LET'S JUST FOR A MOMENT SAY THAT YOU BELIEVE
7 THAT. THERE WASN'T ONE -- ONE STATE WITNESS, NOT ONE, TO
8 TELL YOU THAT DR. WEITZEL -- WEITZEL'S PRACTICE AND HIS
9 TREATMENT OF THESE PATIENTS WAS SO BAD THAT IT WAS A GROSS
10 DEVIATION FROM THE STANDARD OF CARE. NO ONE SAID THAT WHAT
11 HE WAS DOING WAS A SUBSTANTIAL AND AN UNJUSTIFIED RISK. BUT
12 MOST IMPORTANTLY, NOBODY -- IT'S THE STATE'S BURDEN AND I'M
13 GOING TO TIE THIS INTO THE LAW THAT YOU MUST FOLLOW, THAT
14 JUDGE PAGE HAS GIVEN YOU.
15 BUT HOLD ON FOR A SECOND. SO WHAT WOULD BE A GROSS
16 DEVIATION FROM THE STANDARD OF CARE? IN OTHER WORDS, NOT
17 JUST ONE -- ONE SCHOOL OF MEDICINE, YOU KNOW, MAYBE A SMALL
18 SCHOOL OF MEDICINE SEES IT THIS WAY, BUT THE MAJORITY OF THE
19 MEDICAL FIELD SEES IT ANOTHER WAY. WHAT WOULD BE A GROSS
20 DEVIATION FROM THE STANDARD OF CARE? I SUBMIT TO YOU THAT A
21 GROSS DEVIATION OF STANDARD OF CARE IS WHAT WE'RE TALKING
22 ABOUT IS THE FLAT EARTH SOCIETY OF MEDICINE. SOMETHING THAT
23 IF -- IF THE STANDARD OF CARE IS HERE, THE FLAT EARTH SOCIETY
24 OF DOCTORS IS OVER HERE. BY ALL ACCOUNTS, EVERYONE WOULD SAY
25 THIS IS SO WAY OUT THERE, SO WAY OUT THERE.
1 IS THERE AN EXAMPLE THAT COMES TO -- THAT MIGHT COME TO
2 YOUR MIND? WELL, IN UTAH THERE WAS THAT WACKY CASE WHERE
3 SOME PEOPLE DRILLED SOMEONE IN THE HEAD TO TRY TO RELIEVE --
4 I DON'T KNOW WHAT -- I CAN'T -- THERE'S A SPECIAL, CRAZY WORD
5 FOR IT. I WOULD SAY THAT'S THE -- THAT'S A GROSS DEVIATION.
6 DOWN IN CEDAR CITY IT HAPPENED.
7 OR I GO IN TO HAVE MY RIGHT LEG AMPUTATED BECAUSE IT'S
8 GANGRENOUS, AND THEY CUT OFF MY LEFT LEG. SO NOW I'M GOING
9 TO BE LEGLESS BECAUSE THEY'VE GOT TO TAKE OFF THE ONE THAT
10 WAS GANGRENOUS AND THEY TOOK OFF THE WRONG ONE. THAT WOULD
11 BE REALLY, REALLY BAD MEDICINE. THAT WOULD BE WAY BAD.
12 BUT THAT'S NOT WHAT HAPPENED AND THE STATE -- COULD WE
13 DARKEN THAT -- THE STATE DIDN'T PUT ON ANY EVIDENCE TO
14 ESTABLISH THAT. NOW, PLEASE BEAR WITH ME HERE. I'LL TRY NOT
15 TO READ TOO FAST, TRY NOT TO -- I KNOW YOU'RE SITTING THERE A
16 LONG TIME. BUT THIS IS SO IMPORTANT TO UNDERSTAND HOW TO
17 CONNECT THE LEGAL DOTS AND SO IMPORTANT FOR YOU TO DO YOUR
18 JOB.
19 THIS IS INSTRUCTION -- YOU'RE GOING TO HAVE THESE SO
20 DON'T -- DON'T WORRY ABOUT IT, BUT I'LL TELL YOU THE NUMBER.
21 IT MIGHT HELP YOU. 26(B) SAYS: WHEN THERE IS MORE THAN ONE
22 METHOD OF DIAGNOSIS OR TREATMENT WHICH IS RECOGNIZED BY A
23 RESPECTABLE PORTION OF THE MEDICAL COMMUNITY -- I WOULD SAY
24 FINE, CRANMER, WEINSTEIN, KEELA HERR, THEY'RE PROBABLY
25 RESPECTED MEMBERS OF THE COMMUNITY -- AND NO ONE OF THE
1 METHODS IS USED EXCLUSIVELY AND UNIFORMLY BY ALL
2 PRACTITIONERS OF GOOD STANDING, IT IS NOT A BREACH OF THE
3 STANDARD OF CARE FOR A PHYSICIAN -- EXCUSE ME -- IN
4 EXERCISING THE PHYSICIAN'S BEST JUDGMENT TO SELECT ONE OF THE
5 APPROVED METHODS, EVEN IF IT LATER TURNS OUT TO BE A WRONG
6 SELECTION OR ONE NOT FAVORED BY CERTAIN OTHER
7 PRACTITIONERS -- THE STATE'S EXPERTS.
8 THAT'S, FIRST, ONE WAY TO LOOK AT THE STANDARD OF CARE.
9 NEXT, JUDGE -- JUDGE PAGE ALSO GAVE YOU THIS
10 INSTRUCTION, NUMBER 26, WHICH DEFINES THE STANDARD OF CARE.
11 THE SHORT THING THAT I'LL TELL YOU IS THAT IT'S THE STANDARD
12 IN -- THE STANDARD IS FOR DOCTORS IN SIMILAR CIRCUMSTANCES TO
13 THOSE DOCTORS HERE IN UTAH IN 1995/1996.
14 NOW, THIS IS KEY. REMEMBER, I DON'T HAVE A BURDEN OF
15 PROOF TO PROVE ANYTHING FOR DR. WEITZEL. HE DOESN'T HAVE TO
16 PROVE ANYTHING. MR. WILSON AND THAT PROSECUTION TEAM OVER
17 THERE HAVE CHARGED HIM WITH MURDER. THEY HAVE TO PROVE
18 EVERYTHING BEYOND A REASONABLE DOUBT. AND ONE OF THE THINGS
19 THAT -- LET ME JUST TELL YOU WHAT THE JUDGE TELLS YOU. HE SAYS
20 THE ONLY WAY YOU MAY PROPERLY LEARN SUCH STANDARD AND THUS
21 DETERMINE WHETHER OR NOT THE DEFENDANT ACTED RECKLESSLY OR
22 WITH CRIMINAL NEGLIGENCE IS THROUGH EVIDENCE PRESENTED DURING
23 THE TRIAL BY DOCTORS AND PSYCHIATRISTS TESTIFYING AS EXPERTS.
24 NO ONE SAID THERE WAS A GROSS DEVIATION OF THE STANDARD
25 OF CARE. NO ONE. NOT EVEN DR. BAIR WITH THE BAIR STANDARD
1 OF CARE.
2 AND THEN THE JUDGE ALSO GAVE THIS INSTRUCTION. THE RISK
3 OF ANY MEDICAL TREATMENT TO ANY PARTICULAR PATIENT, THE
4 STANDARD OF CARE AND THE EXISTENCE OF A GROSS DEVIATION FROM
5 THE STANDARD OF CARE MUST BE ESTABLISHED BY THE STATE THROUGH
6 EXPERT TESTIMONY.
7 OKAY. LET ME SAY IT ONE MORE TIME. THE STANDARD OF
8 CARE AND THE EXISTENCE OF A GROSS DEVIATION FROM THE STANDARD
9 OF CARE MUST BE ESTABLISHED BY THE STATE THROUGH EXPERT
10 TESTIMONY.
11 WELL, HOW COULD THEY HAVE ESTABLISHED IT IF NO ONE SAID
12 WEITZEL BREACHED THE STANDARD OF CARE AND IT WAS A GROSS
13 DEVIATION FROM THE STANDARD OF CARE? NOT A SINGLE WITNESS
14 TOUCHED IT WITH A 10-FOOT POLE, NOT EVEN THE STATE'S
15 WITNESSES.
16 THEN IT GOES ON TO SAY: IF YOU FIND THAT THERE'S A
17 DIFFERENCE OF OPINIONS ON THIS ISSUE -- WELL, THE STATE
18 DIDN'T PUT ON ONE SHRED OF EVIDENCE FOR GROSS DEVIATION, BUT
19 IT ALSO SAYS THIS. I'LL -- I'LL JUST READ IT. IF YOU FIND
20 THAT THE TESTIMONY OF CREDIBLE EXPERTS -- WELL, EVEN IF
21 YOU -- I MEAN, YOU'VE GOT TO BELIEVE THAT THE DEFENSE EXPERTS
22 ARE CREDIBLE -- REGARDING THE STANDARD OF CARE AND THE
23 EXISTENCE OF A GROSS DEVIATION, AND YOU'RE UNABLE TO RESOLVE
24 THE CONFLICT THEN YOU WOULD BE ENTITLED TO FIND THE STATE HAS
25 FAILED TO MEET ITS BURDEN OF PROVING THE ELEMENTS OF THE
1 CHARGES BEYOND A REASONABLE DOUBT.
2 SO WHAT IS DR. WEITZEL ACCUSED OF? COULD I SEE THE NEXT
3 SLIDE, PLEASE? THERE ARE TWO COUNTS OF MANSLAUGHTER, JUDITH
4 LARSEN AND MARY CRANE; THREE COUNTS OF CRIMINAL NEGLIGENCE.
5 FOR THIS, WE'RE GOING TO TALK ABOUT RECKLESSNESS; FOR THIS,
6 WE'RE GOING TO TALK ABOUT CRIMINAL NEGLIGENCE. AND THE KEY
7 PHRASES -- I'LL JUST TELL YOU, I WON'T REREAD IT. BUT THE
8 KEY PHRASES FOR MANSLAUGHTER AND RECKLESSNESS ARE THAT
9 THERE'S A CONSCIOUS DISREGARD OF A SUBSTANTIAL AND
10 UNJUSTIFIABLE RISK -- LET'S STOP THERE.
11 WAS THERE ANY EVIDENCE PUT ON BY THE STATE OF A -- OF A
12 SUBSTANTIAL RISK? WELL, MAYBE THE STATE'S EXPERTS SAID THAT
13 THERE WAS A SUBSTANTIAL RISK OF DEATH. SO MAYBE THEY MET
14 THAT. BUT RECKLESSNESS ALSO REQUIRES THAT IT'S -- THE WORD
15 SUBSTANTIAL IS JOINED WITH AND. AND SO IT MUST BE A
16 SUBSTANTIAL AND AN UNJUSTIFIED RISK -- UNJUSTIFIABLE RISK.
17 HOW COULD YOU SAY THAT IN THE END-OF-LIFE TREATMENT OF THESE
18 PATIENTS IT WAS AN UNJUSTIFIABLE RISK? AND THEN FOR IT TO BE
19 RECKLESS, IT MUST BE A GROSS DEVIATION, THE FLAT EARTH
20 SOCIETY DEVIATION FROM THE STANDARD OF CARE.
21 SO ON MARY -- ON THOSE TWO PATIENTS WHAT I SAY TO YOU IS
22 THEY DIDN'T PROVE IT BREACHED THE STANDARD OF CARE. MAYBE
23 YOU WILL DECIDE TO CREDIT WHAT THEIR WITNESSES SAY, SAY THAT
24 THERE WAS A SUBSTANTIAL RISK OF HARM. I BELIEVE WE PRESENTED
25 YOU WITH COMPELLING EVIDENCE THAT THE FEARS OF OPIOID
1 OVERMEDICATION ARE MUCH EXAGGERATED, AS DR. FINE EXPLAINED
2 YESTERDAY.
3 BUT -- SO LET'S SAY -- LET'S SAY THAT THEY -- WELL, I
4 DON'T THINK THEY PROVED A BREACH OF THE STANDARD OF CARE, BUT
5 LET'S SAY YOU BELIEVE THAT. THEN YOU HAVE TO BELIEVE THAT IT
6 WAS SUBSTANTIAL. MAYBE YOU COULD BELIEVE THAT. BUT THEN
7 THERE'S NO EVIDENCE IT WAS UNJUSTIFIED. AND -- AND YOU'VE
8 GOT TO FIND IT WAS A GROSS DEVIATION FROM THE STANDARD OF
9 CARE; AND YOU'VE GOT TO FIND THAT IT CAUSED DEATH; AND YOU'VE
10 GOT TO FIND THAT IT ALL WAS DONE WITHOUT GOOD FAITH IN
11 FOLLOWING THE MEDICAL DIRECTIVE. PROOF BEYOND A REASONABLE
12 DOUBT OF ALL OF THOSE THINGS.
13 NOW, CRIMINAL NEGLIGENCE. NOT A LOT DIFFERENT. THE
14 DIFFERENCE IS JUST THAT THE STATE HAS TO PROVE BEYOND A
15 REASONABLE DOUBT THERE WAS A BREACH OF THE STANDARD OF CARE,
16 THAT THERE WAS A SUBSTANTIAL RISK OF DEATH, THAT THERE WAS AN
17 UNJUSTIFIABLE -- THAT IT WAS UNJUSTIFIABLE, THAT DR. WEITZEL
18 SHOULD HAVE RECOGNIZED SUBSTANTIAL AND UNJUSTIFIED RISK,
19 AND -- AND THAT THERE WAS A GROSS DEVIATION FROM THE STANDARD
20 OF CARE.
21 THERE'S JUST A TOTAL FAILURE OF PROOF. THERE IS A
22 COMPLETE, ABSOLUTE, TOTAL FAILURE TO PROVE THOSE THINGS.
23 THESE PEOPLE DIED FROM NATURAL CAUSES, AND DR. WEITZEL OBEYED
24 THE WISHES OF THE FAMILIES WITH EVERY ONE OF THESE PEOPLE.
25 I'M GOING TO POWER THROUGH THESE, MENTION A LITTLE
1 SNIP-IT ON EACH PERSON, BUT NOT MUCH MORE THAN THAT. ON
2 JUDITH I WOULD JUST SIMPLY SAY AS YOU EVALUATE THE EVIDENCE,
3 CONTEXT IS EVERYTHING. YOU COULDN'T HAVE A MORE CLEAR-CUT
4 STATEMENT BY THE FAMILY ABOUT WHAT THEIR WISHES WERE.
5 MR. WILSON'S PERSONAL OPINION THAT DR. WEITZEL NEEDED
6 ANOTHER EVALUATION BEFORE APPROACHING THE FAMILY, I JUST
7 THINK IGNORES ALL OF THE EVIDENCE ABOUT WHAT THE FAMILY
8 WANTED WITH THIS PERSON.
9 NEXT, WITH MARY CRANE, THE DURA -- AS IT RELATES TO THE
10 DURAGESIC PATCH, DR. DIENHART AGREED THAT A DURAGESIC PATCH
11 WAS THE RIGHT THING. HE SUGGESTED -- THIS IS MR. WILSON'S
12 BIG POINT TO PROVE RECKLESS DISREGARD. THAT DR. DIENHART
13 SUGGESTED AT SOME POINT THAT THE DURAGESIC BE LOWERED, BUT
14 DR. DIENHART, WHEN WE -- WHEN I EXAMINED HIM ACKNOWLEDGED
15 THAT THE DIFFERENCE BETWEEN 50 MICROGRAMS AND 25 -- OR MAYBE
16 IT WAS 75 AND 50, I DON'T REMEMBER.
17 BUT WHATEVER IT WAS -- YOU'RE THE JURY, YOU REMEMBER THE
18 FACTS. BUT WHATEVER IT WAS, DIENHART SAID, I ABSOLUTELY
19 WOULD DEFER TO THE -- TO THE ATTENDING PHYSICIAN. AND HE
20 SAID, BY THE WAY, IT'S MUCH ADO ABOUT NOT A BIG DEAL. IT'S A
21 VERY INSIGNIFICANT DOSING DIFFERENCE. THAT WAS
22 DR. DIENHART'S TESTIFY -- TESTIMONY. SO MR. WILSON AND THE
23 STATE OUGHT TO ALSO BE ACCUSING DR. DIENHART OF MURDER. HE
24 SHOULD BE ON TRIAL, TOO.
25 THEN MR. -- MR. WILSON EVEN SAID THIS IN HIS OPENING AND
1 CLOSING. HE SAID THAT DR. WEITZEL DIDN'T LAY IT OUT CLEARLY
2 ENOUGH TO KAREN BRINGHURST THE CROSSROADS DECISION. AND ALL
3 I WOULD SAY IS, AGAIN, JUST USE YOUR COMMON SENSE. THIS IS A
4 SURGICAL NURSE. MAYBE -- MAYBE DR. WEITZEL DIDN'T SAY WE
5 COULD PUT HER IN CRITICAL CARE, BUT THAT'S WHERE KAREN
6 BRINGHURST WORKED WAS IN CRITICAL CARE AS A SURGICAL NURSE.
7 SO WHEN DR. WEITZEL EXPLAINED TO THIS WOMAN, A NURSE, A
8 SURGICAL NURSE, THAT MORPHINE MIGHT HASTEN DEATH, SHE
9 CERTAINLY UNDERSTOOD IT. AND, IN FACT, SHE SAID TO YOU -- IF
10 YOU'D PUT UP -- NO, I GUESS IT'S NOT REALLY -- NOT REALLY A
11 SLIDE. BUT SHE -- MAYBE THERE IS ONE.
12 MS. ISAACSON: NO.
13 MR. BUGDEN: NO?
14 SHE SAID IN ANSWER TO A QUESTION BY -- BY MS. ISAACSON,
15 DID HIS -- DID DR. WEITZEL'S INDICATION OF GIVING HER
16 MORPHINE GIVE YOU ANY CONCERN AT THAT TIME?
17 NO, BECAUSE I KNEW AT THE END OF LIFE THAT HAPPENS.
18 OKAY. THEN WITH REGARD TO ELLEN ANDERSON, ALL I WOULD
19 SAY IS, AGAIN, THIS WOMAN WAS IN THE MIDDLE OF A PAIN CRISIS,
20 THE NURSES SAW PAIN, WHAT WAS DR. WEITZEL TO DO? DID
21 DR. WEITZEL, TO SATISFY THE STATE, HAVE TO RUN DOWN TO THE
22 HOSPITAL -- LET THE WOMAN CONTINUE TO BE IN AGONIZING PAIN
23 WITHOUT TREATING HER, RUN DOWN AT 3:30 IN THE MORNING AND TRY
24 TO DETERMINE THE SOURCE OF THE PAIN AND MAKE A DIAGNOSIS
25 BEFORE HE COULD PRESCRIBE PAIN MEDICATION? OR WHEN THE
1 NURSES, BOTH NURSES CALLED DR. WEITZEL TO SAY WHAT DO WE DO,
2 THIS WOMAN IS IN AGONIZING PAIN? OR SHOULD WE HAVE USED THE
3 TYLENOL, THE DR. HARE SUGGESTION?
4 WELL, HARE AND DR. WEITZEL MAY DISAGREE ABOUT THAT, BUT
5 THAT CLEARLY HAS TO BE THE TWO SCHOOLS OF THOUGHT THAT WE --
6 THE JURY INSTRUCTION I JUST READ TO YOU.
7 MR. ALLDREDGE -- THE STATE'S BIG POINT ON ENNIS
8 ALLDREDGE, AS I UNDERSTAND IT, FIRST, THEY DENY THAT HE WAS
9 IN PAIN. ALL I CAN TELL YOU IS THAT THERE'S PLENTY OF
10 AGITATION AND SYMPTOMS OF PAIN IN THE RECORDS THAT WE'VE
11 SHOWN YOU.
12 BUT NEXT, THEIR BIG POINT SEEMS TO BE THAT THE M.R.I.
13 WAS COMPROMISED BECAUSE THE MAN WAS MOVING. BUT LIKE
14 DR. WEINSTEIN EXPLAINED, DR. FINE EXPLAINED, YOU KNOW, IT
15 COULD BE A FUZZY PICTURE OF YOU, MA'AM, BUT WE WOULD KNOW IT
16 WAS YOU. THERE COULD BE A FUZZY PICTURE OF THE BRAIN BECAUSE
17 ENNIS ALLDREDGE WAS MOVING AROUND, BUT THEY KNEW IT WAS AN
18 INFARCT. THEY KNEW IT WAS A STROKE.
19 AND AS DR. FINE SAID, IT WOULD NOT ALTER THE OUTCOME AND
20 THERE WAS NO REASON TO DO ANYTHING ELSE. IT WAS A -- THERE
21 IS A RULE OF REASONABLENESS. EARLY IN THE -- IN MY
22 EXAMINATION I -- I POINTED OUT TO YOU THAT THE OTHER DOCTOR
23 THAT WAS TREATING HIM, THE FAMILY DOC SAID, HEY, LOOK, YOU'RE
24 ONLY GOING TO DO SO MUCH.
25 IT'S NOT ANY DIFFERENT FROM DR. WILDING, TREATING ELLEN
1 ANDERSON, NOT RULING OUT PNEUMONIA. YOU DO WHAT'S REASONABLE
2 UNDER THE CIRCUMSTANCES.
3 LYDIA -- LYDIA SMITH, THE BOTTOM LINE IS THAT THIS
4 PERSON BECAME VERY ILL. THIS WOMAN BECAME VERY ILL.
5 DR. WEITZEL WENT TO THE FAMILY, TO KENT SMITH. AND ALTHOUGH
6 THERE'S ONE MEMBER OF THE FAMILY THAT HEARD SOMETHING
7 COMPLETELY WILD AND CRAZY, NO ONE ELSE IN THE ROOM HEARD
8 DR. WEITZEL SAY ANYTHING MALEVOLENT. ONLY ONE PERSON DID.
9 I -- I JUST SIMPLY PUT THAT INTO THE CATEGORY OF MEMORIES
10 CHANGE AND THINGS CAN BECOME SORT OF DEMONIZED IN YOUR MIND.
11 THE PRESUMPTION OF INNOCENCE AND PROOF BEYOND A
12 REASONABLE DOUBT, THESE NEED TO BE YOUR TOUCHSTONES WHEN YOU
13 GO INTO THAT JURY ROOM. YOU'VE ALL RAISED YOUR RIGHT HAND
14 AND YOU'VE BEEN -- THANK YOU SO MUCH FOR BEING HERE FOR THREE
15 WEEKS, BUT PART OF YOUR JOB IS THAT YOU MUST FOLLOW JUDGE
16 PAGE'S INSTRUCTIONS. AND TWO OF THEM THAT ARE SO IMPORTANT
17 TO MAKE AMERICA DIFFERENT FROM OTHER COUNTRIES, MAKE -- MAKE
18 IT DIFFERENT FROM, YOU KNOW, RUSSIA AND PLACES LIKE THAT.
19 NUMBER ONE, DR. WEITZEL IS PRESUMED TO BE INNOCENT. WHAT
20 DOES THAT MEAN? IS THAT JUST SOME WORDS?
21 MY FATHER, WHEN I BECAME A LAWYER, A DEFENSE LAWYER,
22 JUST LIKE A LOT OF MEMBERS OF THE PUBLIC KIND OF -- IT WASN'T
23 HIS PERFECT, IDEAL PROFESSION FOR HIS KID TO FOLLOW. AND
24 I'LL TELL YOU THAT HE'S A DOCTOR, HE'S A SURGEON. SO IT WAS
25 KIND OF LIKE HIS WORST NIGHTMARE THAT HIS KID GROWS UP TO BE
1 A LAWYER. BUT HE'S TOLD ME THAT HE WOULD NEVER -- OR AT
2 LEAST WHEN I STARTED OUT HE WOULD -- HE SAID, YOU KNOW, I
3 ABSOLUTELY WOULD START FROM A PRESUMPTION OF GUILT. I WOULD
4 FIGURE THAT WE COULDN'T BE THERE -- WE WEREN'T THERE -- THE
5 ONLY REASON TO BE THERE IS THAT YOUR GUY MUST HAVE -- OR HER,
6 SHE, MUST HAVE DONE SOMETHING WRONG.
7 WELL, I LOVE MY DAD, BUT THAT'S WHY WE HAVE THE
8 PRESUMPTION OF INNOCENCE. THAT'S WHY JUDGE PAGE ADMONISHED
9 YOU THAT -- AND I'M TELLING YOU, IF YOU'RE DOING YOUR JOB,
10 YOU HAVE TO BREATHE LIFE INTO THAT. AND WHEN WE STARTED THIS
11 TRIAL, EVEN NOW, YOU CAN'T SAY TO YOURSELVES, IF YOU'RE -- IF
12 YOU'RE REALLY MAKING THE PRESUMPTION OF INNOCENCE WORK, YOU
13 CAN'T SAY, WELL, I DON'T KNOW IF HE'S GUILTY OR NOT.
14 THE STARTING POINT HAS GOT TO BE, HE IS INNOCENT.
15 THAT'S WHAT THE PRESUMPTION OF INNOCENCE MEANS. THE STARTING
16 POINT IS NOT NEUTRAL. THE STARTING POINT IS HE DIDN'T DO
17 ANYTHING WRONG, AND YOU, MR. WILSON, AND YOUR TEAM HAVE TO
18 SHOW ME OTHERWISE. THAT'S WHAT THE PRESUMPTION OF INNOCENCE
19 MEANS.
20 AND THEN NEXT, BURDEN OF PROOF, PROOF BEYOND A
21 REASONABLE DOUBT AND PERRY MASON, YOU KNOW, THE STANDARD OF
22 PROOF, YOU'VE HEARD THAT PHRASE, BUT IT IS SO IMPORTANT TO
23 WHAT YOU'RE GOING TO DO. THIS IS SUCH A BIG DEAL.
24 SO IN A CIVIL CASE, MALPRACTICE, THE BURDEN IS
25 PREPONDERANCE OF THE EVIDENCE. THAT MEANS THE -- THE
1 GREEK-LOOKING LADY WITH A SHEET OR A ROBE OR WHATEVER, A
2 DRESS, BLINDFOLD, HOLDING THE SCALE OF JUSTICE AND IT TIPS A
3 LITTLE BIT, ONE GRAIN OF SAND, ONE GRAIN OF SAND AND IT TIPS
4 THE SCALE THAT MUCH, WHOEVER TIPPED THE GRAIN -- THE SCALES
5 OF JUSTICE THAT MUCH, THEY WIN. THAT'S PREPONDERANCE OF THE
6 EVIDENCE. THAT'S SUE DR. WEITZEL IN MALPRACTICE. THAT'S
7 DR. WEITZEL BREACHED THE STANDARD OF CARE, AND WHEN YOU
8 EVALUATE WHETHER OR NOT THERE WAS A BREACH OF THE STANDARD OF
9 CARE, YOU DECIDE ONE SIDE TIPPED THE SCALE THAT MUCH. THAT'S
10 PREPONDERANCE OF THE EVIDENCE. THAT'S NOT OUR BURDEN HERE.
11 THAT'S NOT WHAT THE STATE HAS TO PROVE.
12 THE NEXT HIGHER BURDEN IS TO ACCUSE SOMEONE OF LIKE
13 FRAUD. THAT'S WHAT'S CALLED CLEAR AND CONVINCING. THE
14 HIGHEST BURDEN OF PROOF IN AMERICA, IN OUR SYSTEM OF JUSTICE,
15 IS PROOF BEYOND A REASONABLE DOUBT. WHY? AS JUDGE PAGE
16 SAID, IT'S TO PROTECT YOU JURORS AND OUR CITIZENS FROM BEING
17 UNJUSTLY CONVICTED.
18 WHAT IS THE -- WHAT IS THE -- PROOF BEYOND A REASONABLE
19 DOUBT, WHAT'S IT REALLY INTENDED TO DO? IT'S THE -- NUMBER
20 ONE, IT'S THE MEASURING STICK, HOW MUCH EVIDENCE, BUT THE
21 REAL DEAL HERE IS THAT IT'S THE SAFETY NET. THE REAL THING
22 HERE IS IT'S WHAT MAKES THE DIFFERENCE BETWEEN OUR COUNTRY
23 AND OTHER COUNTRIES. THE REAL DEAL IS THAT THE STATE HAS TO
24 PROVE IT TO A BIG STANDARD, PROOF BEYOND A REASONABLE DOUBT.
25 AND IN THIS CASE, THE STATE COULD NOT -- YOU'RE THE
1 JUDGE, YOU'RE THE JURORS -- I'M SORRY, HE'S THE JUDGE, YOU'RE
2 THE JURORS --
3 THE COURT: THEY WILL SOON BE THE JUDGE.
4 MR. BUGDEN: -- YOU ARE THE JUDGES OF THE FACTS.
5 THE COURT: THEY WILL SOON BE THE JUDGE.
6 MR. BUGDEN: YEAH, YOU'RE THE JUDGES, SOON. AND THE
7 STATE HAS NOT MET ITS BURDEN. IT JUST HAS NOT COME CLOSE.
8 THIS IS NOT A CLOSE CALL. WHEN YOU -- WHEN YOU WEIGH THE --
9 THE FACTS, THE STATE'S EXPERTS, WHO I THINK ARE NOT
10 INTELLECTUALLY HONEST WITH YOU, THE STATE'S CASE REALLY IS
11 BASED, AGAIN, ON FAMILY MEMBERS AND NURSES WHO DON'T THINK
12 ANYONE'S IN PAIN. IT'S BASED ON NURSES THAT WERE
13 UNCOMFORTABLE WITH PATIENTS DYING IN THE GEROPSYCH UNIT.
14 BUT LET ME JUST REMIND YOU FROM -- I'M NOT SURE WHEN WE
15 SAW THIS. BUT NURSES -- THIS IS THE AMERICAN NURSING
16 ASSOCIATION CODE FOR NURSES: NURSES SHOULD NOT HESITATE TO
17 USE FULL AND EFFECTIVE DOSES OF PAIN MEDICATION FOR THE
18 PROPER MANAGEMENT OF PAIN IN THE DYING PATIENT. THE
19 INCREASING TITRATION OF MEDICATION TO ACHIEVE ADEQUATE
20 SYMPTOM CONTROL, EVEN AT THE EXPENSE OF LIFE, THUS HASTENING
21 DEATH SECONDARILY IS ETHICALLY JUSTIFIED.
22 NEXT. THE MAIN GOAL OF NURSING INTERVENTION FOR DYING
23 PATIENTS SHOULD BE MAXIMIZING COMFORT THROUGH ADEQUATE
24 MANAGEMENT OF PAIN AND DISCOMFORT, AS THIS IS CONSISTENT WITH
25 THE EXPRESSED DESIRE -- AS THIS IS CONSISTENT WITH THE
1 EXPRESSED DESIRES OF THE PATIENT.
2 TOWARD THAT END, THE PATIENT SHOULD HAVE WHATEVER
3 MEDICATION, IN WHATEVER DOSAGE, AND BY WHATEVER ROUTE IS
4 NEEDED TO CONTROL THE LEVEL OF PAIN AS PERCEIVED BY THE
5 PATIENT.
6 THE STATE'S THEORY, AGAIN, TOO MANY PSYCHOTROPICS, NO
7 PAIN, NO REASON, NO REASON -- ACCORDING TO THE STATE -- TO
8 ADMINISTER PAIN MEDICATION.
9 LET ME JUST -- ON THE MEDICAL DIRECTIVES, AND THEN
10 I'M -- REALLY AM AT MY FINAL REMARKS. BUT WHEN YOU EVALUATE
11 THE MEDICAL DIRECTIVES IN THIS PLACE, ANOTHER ONE OF THE
12 JUDGE'S INSTRUCTIONS IS INSTRUCTION 38: A MEDICAL DIRECTIVE
13 IS PRESUMED VALID AND BINDING. PHYSICIANS SHALL PRESUME, IN
14 THE ABSENCE OF ACTUAL NOTICE TO THE CONTRARY, THAT A PERSON
15 WHO EXECUTES A DIRECTIVE, WHETHER OR NOT IN THE PRESENCE OF
16 THE PHYSICIAN, IS OF SOUND MIND AND EXERCISED DISCRETION IN
17 THE MATTER. IT IS REASONABLE FOR A PHYSICIAN TO RELY UPON
18 PREVIOUSLY EXECUTED MEDICAL DIRECTIVES. IT IS NOT NECESSARY
19 FOR AN INDIVIDUAL TO EXECUTE A NEW DIRECTIVE UPON CHANGING
20 PHYSICIANS OR UPON CHANGING MEDICAL CIRCUMSTANCES.
21 THESE PEOPLE HAVE MEDICAL DIRECTIVES THAT DR. WEITZEL
22 WAS OBLIGATED TO HONOR AND HE DID HONOR. AND WOULDN'T YOU
23 WANT THAT FOR YOUR LOVED ONE OR FOR YOURSELF?
24 LIFE IS PRECIOUS, YOU KNOW, WE ALL KNOW THAT. AND ALL
25 OF US HAVE MOMENTS OF SHEER JOY, AND THERE ARE THOSE TERRIFIC
1 CRESCENDO MOMENTS IN LIFE: BIRTH OF OUR CHILD, MARRIAGE.
2 BUT THERE COMES AN END TO EVERYONE'S LIFE, AND ADVANCES IN
3 MEDICAL SCIENCE HAVE CHANGED THE PROCESS OF DYING. AND HOW
4 OUR DOCTORS CARE FOR, ADMINISTER TO THE DYING PATIENT IS WHAT
5 THIS CASE IS REALLY ABOUT, LADIES AND GENTLEMEN OF THE JURY.
6 WHEN ARE MEDICAL INTERVENTIONS APPROPRIATE OR HELPFUL? WHY
7 WOULDN'T -- WHO WOULDN'T WANT OUR LOVED ONES TO BE ABLE TO
8 PASS AWAY WITHOUT PAIN AND IN A MAXIMUM AMOUNT OF COMFORT?
9 CONTEXT IS EVERYTHING. CONTEXT, CONTEXT. WHEN DEATH IS
10 AT THE DOOR, WHEN CURE IS NOT POSSIBLE, WHEN RESTORATION OF
11 QUALITY OF LIFE IS IMPOSSIBLE, WHEN WE ARE SICK ENOUGH TO
12 DIE, ALL OF US HAVE THE RIGHT TO CHOOSE A PATH OF DEATH. WE
13 HAVE A RIGHT TO FORGO FUTILE MEDICAL INTERVENTIONS, WE HAVE A
14 RIGHT TO CHOOSE COMFORT FOR OURSELVES AND OUR LOVED ONES.
15 AND THE DOCTOR WHO OBEYS OUR REQUESTS, WHO ALLOWS NATURE TO
16 TAKE ITS COURSE SHOULD NOT BE CHARGED WITH MURDER. IT REALLY
17 IS A TRAVESTY OF JUSTICE THAT DR. WEITZEL IS HERE.
18 THERE'S ONE FAIR VERDICT IN THIS CASE. THERE'S MORE
19 THAN DR. WEITZEL ON TRIAL HERE. PALLIATIVE CARE IN UTAH, IN
20 AMERICA IS ON TRIAL IN THIS CASE. DO WE ALLOW PEOPLE TO DIE
21 WITH DIGNITY? DO WE CHARGE THE DOCTORS WHO OBEY OUR ADVANCE
22 DIRECTIVES WITH MURDER? THAT'S WHAT'S ON TRIAL HERE, NOT
23 JUST DR. WEITZEL. THERE'S ONLY ONE VERDICT. SHOUT IT OUT,
24 NOT GUILTY.