Defense Closing Argument
13 MR. STIRBA: MAY IT PLEASE THE COURT, COUNSEL,
14 DR. WEITZEL, LADIES AND GENTLEMEN OF THE JURY. I HAVE SOME
15 GROUND TO COVER SO I HOPE THAT YOU HAD A GOOD LUNCH BUT NOT
16 TOO GOOD OF A LUNCH. WHEN I GET TO THE POINT IN TRIALS LIKE
17 THIS, ESPECIALLY LONG ONES -- THIS HAS BEEN A LONG ONE.
18 I'LL TELL YOU RIGHT NOW THAT THE WAY THE SYSTEM WORKS IS THE
19 STATE GETS THE LAST WORD BECAUSE THEY'VE GOT THE BURDEN. SO
20 I'M GOING TO DO THE BEST I CAN, BUT I GOT TO MAKE IT WORK
21 THE FIRST TIME. SO I WANT YOU TO REMEMBER, IF THERE'S
22 SOMETHING I FORGET AS I ADDRESS THE FACTS, I'LL WANT YOU TO
23 LOOK AT THOSE MEDICAL RECORDS BECAUSE I THINK THOSE MEDICAL
24 RECORDS HAVE EVERYTHING YOU NEED TO KNOW ABOUT THIS CASE IN
25 ORDER TO DEAL WITH THE ISSUES BEFORE YOU. AND I FEEL SOME
4425
1 TREMENDOUS RESPONSIBILITY TO GET IT RIGHT. AND I HAVEN'T
2 REHEARSED THIS SO I'M GOING TO TELL YOU I'LL TRY TO DO MY
3 BEST, BUT YOU'LL FIND I MAY FORGET SOMETHING. I MAY NOT
4 RECOLLECT SOMETHING QUITE THE WAY YOU RECOLLECT IT, SO LET
5 YOUR COLLECTIVE RECOLLECTION CONTROL.
6 NOW, AFTER HEARING EVERY ONE OF THE PHYSICIANS IN THIS
7 CASE, I THINK WE CAN AGREE EVERYONE WHO TOOK THE STAND, WHAT
8 DID THEY TELL YOU? YOU TREAT INDIVIDUAL PATIENTS AND YOU
9 TREAT THEM INDIVIDUALLY AND YOU TREAT THEM IN SOME KIND OF
10 CLINICAL SETTING. EVERY DOCTOR AGREED THAT'S THE WAY YOU DO
11 THINGS. YOU DO IT WITH MEDICATIONS, YOU DO IT WITH THE KIND
12 OF CARE AND TREATMENT YOU GIVE, YOU DO YOU IT WITH
13 EVERYTHING. AND EVERY DOCTOR ALSO AGREED THAT EVERY ONE OF
14 THESE PATIENTS WAS GOING TO BE DIFFICULT. WHY? BECAUSE
15 THEY COULDN'T COMMUNICATE AS WELL AS OTHER PEOPLE, AND SO
16 THEREFORE SOME OF THE COMMUNICATION THAT A DOCTOR RELIES ON
17 YOU JUST WOULDN'T HAVE THAT. THAT WOULD MAKE YOUR JOB
18 DIFFICULT.
19 SO ESSENTIALLY EVERY ONE OF THESE DOCTORS THAT
20 TESTIFIED AGREED THERE'S A CERTAIN AMOUNT OF MEDICAL
21 JUDGMENT EVERY TIME YOU TAKE CARE OF A PATIENT, EVERY TIME
22 YOU PRESCRIBE A MEDICATION AND EVERY TIME YOU DEAL WITH A
23 TREATMENT PROBLEM. AND YET IN SPITE OF ALL OF THAT, IN
24 SPITE OF ALL THAT TESTIMONY FROM THE STATE'S OWN EXPERTS,
25 WHAT HAVE THEY DONE? THEY HAVE COME IN HERE WITH 20/20
4426
1 HINDSIGHT WHICH, LADIES AND GENTLEMEN, YOU ALL KNOW IS
2 PERFECT, AND THEY UNDERTAKE TO PICK APART EVERY LITTLE
3 DECISION IN DEALING WITH THESE VERY, VERY, VERY DIFFICULT
4 MEDICAL JUDGMENTS. AND THEY WANTED TO GO OVER HERE AND THEY
5 WANTED TO POINT THE FINGER AT THAT MAN. THEY SAY
6 DR. WEITZEL IS A MURDERER. WELL, LADIES AND GENTLEMEN, I'M
7 GOING TO TELL YOU THIS: THERE IS REASONABLE DOUBT WRITTEN
8 ALL OVER THIS CASE. THIS CASE ISN'T ABOUT MURDER, IT ISN'T
9 ABOUT MANSLAUGHTER, IT ISN'T ABOUT NEGLIGENT HOMICIDE. IT'S
10 ABOUT ONE THING, IT'S CALLED END-OF-LIFE CARE.
11 NOW, REASONABLE DOUBT IS A BURDEN ON THE STATE. WE
12 DON'T HAVE TO PRODUCE ANY EVIDENCE. THERE IS NO REQUIREMENT
13 THAT DR. WEITZEL HAS TO PROVE ANYTHING. I'D SUBMIT WE HAVE
14 AND I'D SUBMIT WE PROVEN QUITE A BIT. AND I'D SUBMIT WE
15 HAVE PROVEN EXACTLY WHAT WENT ON HERE IN THIS CASE. BUT WE
16 DON'T HAVE ANY BURDEN. THE BURDEN IS ALL ON THE STATE, AS
17 HEAVY A BURDEN AS YOU HAVE BEEN INSTRUCTED AND THEY HAVE TO
18 PROVE EACH AND EVERY ELEMENT, EACH AND EVERY ELEMENT OF
19 EVERY SINGLE FACT BEYOND A REASONABLE DOUBT IN ORDER TO
20 CONVICT. AND IF THEY DON'T DO THAT, YOU HAVE A DUTY AND THE
21 DUTY IS TO ACQUIT THE DEFENDANT. THAT'S THE WAY THE SYSTEM
22 WORKS.
23 AND YOU KNOW, THIS ISN'T A CIVIL CASE. IN A CIVIL CASE
24 YOU MIGHT HAVE HAD AN ARGUMENT WHERE THEY TALK ABOUT THE
25 BURDEN OF PROOF JUST A LITTLE BIT HIGHER THAN THE OTHER
4427
1 SIDE, YOU WIN. THIS IS A CRIMINAL CASE. BEYOND A
2 REASONABLE DOUBT IS A VERY TOUGH STANDARD. THE EVIDENCE HAS
3 TO WEIGH QUITE HEAVILY IN FAVOR OF ONE SIDE. BEYOND A
4 REASONABLE DOUBT. YOU SAY TO YOURSELF, WELL, WHAT DOES THAT
5 MEAN? AND I'D SUBMIT IT'S VERY DIFFICULT. IT'S A VERY
6 DIFFICULT CONCEPT SOMETIMES TO PRECISELY DEFINE. AND YOU
7 WILL HAVE AN INSTRUCTION ON IT. THERE'S BEEN ATTEMPT TO
8 DEFINE IT.
9 LET ME TELL YOU WHAT REASONABLE DOUBT IS, THOUGH. IT'S
10 THE KIND OF DOUBT THAT IF YOU WERE DOING SOMETHING FOR YOUR
11 OWN WORLD, YOUR FINANCIAL WORLD DEALING WITH YOUR KIDS,
12 DEALING WITH YOUR FIELD, DEALING WITH YOUR JOBS, YOU MIGHT
13 HESITATE BEFORE ACTING ON THAT REASONABLE DOUBT. AND I
14 WOULD SUGGEST IF YOU GO BACK TO THE JURY ROOM AND YOU START
15 DELIBERATING ON THIS CASE, EVEN THOUGH YOU THINK HOW
16 DR. HARE TESTIFIED, DR. HARE IS THE GUY RIGHT THERE ON THE
17 STAND ADMITTED HE SETTLED TWO MALPRACTICE CASES. HE ALSO
18 AGREED AND WAS ACCUSED OF CAUSING THE DEATH OF ANOTHER
19 PATIENT. AND HE GETS RIGHT UP ON THAT CHAIR AND HE LOOKS
20 YOU GUYS RIGHT IN THE EYE. HE LOOKS YOU RIGHT IN THE EYE
21 AND HE SAYS THERE'S NO INDICATION, NONE WHATSOEVER, OF PAIN
22 IN THE CHART OF ELLEN ANDERSON WHEN WE ALL KNOW THAT'S NOT
23 TRUE. I'D SUGGEST IF YOU HESITATE IN TERMS OF HIS OPINION,
24 THAT'S REASONABLE DOUBT.
25 IF YOU GO BACK TO THE JURY ROOM AND YOU START THINKING
4428
1 ABOUT CAUSATION AND YOU SAY, WELL, WAIT A MINUTE, THE
2 MEDICAL EXAMINER CAME IN HERE AND THE MEDICAL EXAMINER
3 COULDN'T DETERMINE THE CAUSE OF DEATH IN FOUR OF THESE
4 CASES. AND THEN HE STARTS THINKING ABOUT THE FACT THAT THE
5 DEFENDANT'S OWN EXPERTS DIDN'T AGREE ON SOME SITUATIONS
6 BETWEEN THEMSELVES AS TO WHAT THE CAUSE OF DEATH WAS, I
7 WOULD SUGGEST, LADIES AND GENTLEMEN, THAT'S REASONABLE
8 DOUBT. SIMILARLY, IF YOU GO BACK TO THE JURY ROOM AND YOU
9 START DELIBERATING ABOUT WHAT HAPPENED HERE AND YOU THINK
10 YOU KNOW THOSE NURSES, THEY ALL TESTIFIED AND ALL THEY HAD
11 TOLD YOU, ONE THING THEY TOLD YOU, WE'RE NOT GOING TO DO ANY
12 HARM TO THOSE PATIENTS. YET THEY GAVE ALL THESE INJECTIONS
13 AND SOME OF THEM TOLD YOU, WE DIDN'T THINK THAT WAS GOING TO
14 CAUSE OR CONTRIBUTE TO THE DEATH. AND YOU THINK ABOUT THAT
15 AND YOU SAY, YOU KNOW, I DON'T THINK THOSE NURSES WOULD HAVE
16 DONE THAT. I DON'T THINK THEY WOULD HAVE DONE THAT IF THEY
17 WERE CAUSING OR CONTRIBUTING TO THE DEATH, LADIES AND
18 GENTLEMEN, THAT'S REASONABLE DOUBT.
19 NOW, THIS CASE IS INDEED ABOUT END-OF-LIFE CARE. IT
20 CERTAINLY IS NOT A CASE ABOUT DR. WEITZEL ENDING ANYONE'S
21 LIFE. AND I HOPE YOU ALL UNDERSTAND THE IMPORTANCE, THE
22 VERY, VERY, VERY IMPORTANCE OF THIS CASE TO THAT MAN. AND
23 I'LL TELL YOU RIGHT NOW, WE TRIED THIS CASE ONE WAY. WE
24 SAID, HERE ARE THE RECORDS. HERE ARE THE FACTS OF THIS
25 CASE. WE'RE GOING TO INTRODUCE THOSE RECORDS. WE'RE GOING
4429
1 TO SEE WHAT THOSE RECORDS SHOW. WE'RE NOT SPINNING FACT,
2 WE'RE NOT CHARACTERIZING FACT. WE'RE NOT GOING TO
3 EDITORIALIZE OR MAKE UP FACTS. WE'RE GOING TO DEAL WITH
4 THOSE -- WHAT THOSE RECORDS SHOW.
5 I SUGGEST YOU LOOK AT THESE RECORDS. AND REMEMBER, WHY
6 ARE THE RECORDS IMPORTANT? FOR ONE VERY SIMPLE FACT. THEY
7 WERE CREATED AT THE TIME. THEY ARE NOT DEPENDENT ON
8 SOMEBODY'S RECOLLECTION FIVE YEARS LATER. THEY ARE NOT
9 DEPENDENT ON SOMEBODY TRYING TO FIGURE OUT WHAT ALL HAPPENED
10 FIVE YEARS LATER. THEY WERE DONE AT THE TIME. AND THE
11 OTHER REASON WHY THEY WERE IMPORTANT IS BECAUSE, REMEMBER,
12 IT'S NOT JUST DR. WEITZEL, HE'S NOT THE ONLY PERSON CREATING
13 RECORDS HERE. WE GOT ALL KINDS OF PEOPLE CREATING RECORDS.
14 AND YOU KNOW WHAT? THEY HAD AN OBLIGATION AS PART OF THEIR
15 JOB TO GET IT RIGHT. AND SO WHEN THE NURSES WRITE THAT THEY
16 HAVE A CONVERSATION WITH A FAMILY MEMBER AND THEY SAY THE
17 FAMILY MEMBER IS SAYING, YOU KNOW, WE DON'T WANT CERTAIN
18 THINGS TO HAPPEN HERE, WE JUST WANT TO KEEP OUR LOVED ONE
19 COMFORTABLE, I THINK WE HAVE A RIGHT TO RELY ON THAT. JUST
20 LIKE WHEN A NURSE CHARTS AND SAYS, YOU KNOW, WE'RE GOING TO
21 GET INTO DEATH AND DYING ISSUES. WHY? BECAUSE HE SAYS
22 IT'S -- THAT'S EXACTLY WHERE WE ARE. I THINK WE HAVE A
23 RIGHT TO RELY ON THAT. SO WE'RE TALKING ABOUT THE RECORDS
24 AND WHAT'S IN THOSE RECORDS AND WHAT THEY SAY. AND I THINK
25 THEY CLEARLY SHOW THAT AT LEAST IN FOUR OF THESE CASES WE
4430
1 HAVE END-OF-LIFE CARE.
2 NOW, WHAT I WOULD LIKE TO DO IS FIRST OF ALL REVIEW
3 WITH YOU THE FIRST AREA WHERE THERE'S OVERWHELMING
4 REASONABLE DOUBT IN THIS CASE. THE STATE HAS TO PROVE
5 WHETHER IT'S NEGLIGENT HOMICIDE, WHETHER IT'S MANSLAUGHTER
6 OR WHETHER IT'S MURDER. THEY GOT TO PROVE CAUSATION. THEY
7 GOT TO PROVE THAT DR. WEITZEL CAUSED THE DEATHS. AND I
8 WOULD SUBMIT THAT REASONABLE DOUBT COMES IN THIS CASE
9 DIRECTLY FROM WHAT THE STATE MEDICAL EXAMINER TESTIFIED TO.
10 DO YOU RECALL DR. GREY TESTIFIED? DID YOU NOTICE COUNSEL
11 DIDN'T MENTION DR. GREY IN HIS CLOSING SUMMATION? THE
12 MEDICAL EXAMINER IN THE STATE OF UTAH IN A HOMICIDE CASE AND
13 THE STATE DOESN'T EVEN TALK ABOUT IT. WHY? 'CAUSE HE
14 DOESN'T HELP THEM. BUT THIS IS A GUY WHO'S TRAINED TO BE
15 THE FORENSIC PATHOLOGIST, THE CHIEF GUY IN THE STATE OF UTAH
16 TO DETERMINE CAUSE OF DEATH.
17 WHAT DID HE TELL YOU? WELL, HE TOLD YOU THAT WITH FOUR
18 OF THESE CASES, HE COULD NOT -- HE COULD NOT DETERMINE THE
19 CAUSE OF DEATH. ACTUALLY HE DID THREE AND MS. FRIKKE,
20 DR. FRIKKE, DID ONE. I'D SUBMIT, LADIES AND GENTLEMEN, THAT
21 ALONE IS REASONABLE DOUBT ON THE ISSUE OF CAUSATION.
22 BUT MORE IMPORTANTLY, IF YOU RECALL WHEN I ASKED HIM --
23 THIS IS DR. GREY -- REMEMBER ALL THE THINGS THE REASONS WHY
24 HE COULDN'T DETERMINE CAUSE? HE HAD ALL THESE THINGS HE
25 COULDN'T RULE OUT. HE COULDN'T RULE OUT WITH ELLEN
4431
1 ANDERSON'S CORONARY ARTERY DISEASE, HE COULDN'T RULE OUT
2 ARRHYTHMIA AND HE COULDN'T RULE OUT BRONCHIAL PNEUMONIA
3 WHICH WE KNOW SHE HAD BECAUSE THERE IS AN X-RAY DONE 5 A.M.
4 IN THE MORNING, SO SHE IN FACT HAD BRONCHIAL PNEUMONIA, HE
5 COULDN'T RULE OUT PNEUMONIA, HE COULDN'T RULE OUT DEMENTIA.
6 THESE ARE ALL CIRCUMSTANCES THAT HE COULD NOT RULE OUT AS
7 CAUSING DEATH AND, THEREFORE, HER DEATH WAS UNDETERMINED.
8 AND THE MANNER OF DEATH CERTAINLY AS UNDETERMINED.
9 MR. ALLDREDGE. THESE ARE ALL THE THINGS THAT DR. GREY
10 COULD NOT RULE OUT, CORONARY ARTERY DISEASE, DEMENTIA, A
11 SUBACUTE E. IN OTHER WORDS, SOMETHING IN THE BRAIN. THEN
12 REMEMBER, HE TALKS ABOUT SOME LUNG PROBLEMS. HE THOUGHT
13 THERE WAS SOME ISSUES THERE WHICH COULD HAVE CONTRIBUTED TO
14 THE DEATH. HE ALSO COULD NOT RULE OUT THE HEART ARRHYTHMIA.
15 ONCE AGAIN, UNDETERMINED CAUSE OF DEATH BY THE CHIEF STATE
16 MEDICAL EXAMINER.
17 LYDIA SMITH. HE COULDN'T RULE OUT CORONARY ARTERY
18 DISEASE. HE COULDN'T RULE OUT THE C.V.A., AND YOU KNOW
19 WHAT? I'M GOING TO TELL YOU RIGHT NOW WE HAVE DEFENSE
20 EXHIBITS. I'LL GET TO THIS SHORTLY, BUT I WANT YOU TO LOOK
21 AT DR. SOUTHWORTH'S HOSPITAL ADMISSION AND DISCHARGE
22 CONCERNING WHAT HAPPENED TO HER IN NOVEMBER OF 1995.
23 FIRST OF ALL, THERE'S NO QUESTION IT WAS A STROKE. IT
24 WASN'T SORT OF A STROKE OR SO-CALLED STROKE. IT WAS INDEED
25 A STROKE. AND SECONDLY, AS YOU LOOK AT THOSE RECORDS, HE'LL
4432
1 TELL YOU, AS HE ALREADY TESTIFIED, HE ALMOST LOST HER AND IT
2 WAS VERY SERIOUS I THINK FOR LYDIA SMITH IN NOVEMBER OF
3 1995. BUT ANYWAY, HE COULDN'T RULE OUT C.V.A. WHICH IS
4 CEREBRAL VASCULAR ACCIDENT AND DISEASE, THE PROCESS OF A
5 STROKE. HE COULDN'T RULE OUT HEART ARRHYTHMIA AND THEN HE
6 COULDN'T RULE OUT CONGESTIVE HEART FAILURE. YOU GOT TO
7 REMEMBER DR. SOUTHWORTH, HER TREATING PHYSICIAN, TOOK THE
8 STAND AND HE SAID SHE HAD CORONARY ARTERY DISEASE, SHE HAD
9 CONGESTIVE HEART FAILURE, AND SHE ALSO HAD VASCULAR DISEASE.
10 SHE HAD A HEART VALVE REPLACEMENT A NUMBER OF YEARS BEFORE.
11 SHE WAS A VERY SERIOUSLY ILL WOMAN. UNDETERMINED. AND THEN
12 FINALLY THE ONLY ONE, THE ONLY ONE THAT THE STATE MEDICAL
13 EXAMINER COULD RULE AS A CAUSE OF DEATH WAS JUDITH LARSEN
14 AND REMEMBER ON CROSS EXAMINATION I ASKED DR. GREY, I SAID,
15 DR. GREY, THE REASON WHY YOU CAN'T OR YOU DETERMINED,
16 RATHER, THAT THE CAUSE OF DEATH IS MORPHINE INTOXICATION IS
17 BECAUSE YOU COULDN'T FIND SOME OTHER PATHOLOGICAL PROCESS IN
18 YOUR AUTOPSY THAT EXPLAINED DEATH. AND HE SAID, YES.
19 AND THEN REMEMBER, WE WENT OVER THESE VERY THINGS. AND
20 I ASKED HIM, ARE THESE THE KIND OF THINGS IN AN AUTOPSY YOU
21 COULD EVEN FIND AND HE SAID NO. AND THEN WE WENT OVER THESE
22 AS POSSIBLE THINGS. I ASKED HIM, COULD YOU RULE OUT DEATH
23 THROUGH -- FROM A LACK OF FLUID? NO. COULD YOU RULE OUT
24 DEATH FROM A LACK OF FOOD? NO. IN FACT, YOU MIGHT RECALL
25 HE SAID THAT IF YOU DON'T HAVE FLUIDS, ESSENTIALLY THAT
4433
1 CERTAINLY COULD BE A TERMINAL EVENT AND THAT CAN OCCUR
2 WITHIN A FEW DAYS.
3 I ASKED HIM ABOUT A SUBACUTE EVENT. HE WAS AWARE OF
4 THE DISEASE PROCESS THAT PATIENT JUDITH LARSEN HAD AND HE
5 SAID THAT COULD HAVE CONTRIBUTED. I ASKED HIM ABOUT
6 DEMENTIA WOULDN'T THAT BE SOMETHING HE'D FIND IN AN AUTOPSY
7 'CAUSE THEY DIDN'T HAVE BLOOD. ONCE AGAIN, CONTRIBUTING.
8 AND FINALLY, HE COULDN'T RULE OUT HEART ARRHYTHMIA BECAUSE
9 THAT'S NOT SOMETHING THEY WOULD FIND IN AN AUTOPSY.
10 BUT MORE IMPORTANTLY, REMEMBER DR. FEHLAUER? THE
11 STATE'S OWN EXPERT HAD THE PAD OVER THERE AND I ASKED HIM, I
12 SAID, LOOK AT THESE. I SAID, COULD YOU RULE OUT THESE
13 CIRCUMSTANCES AS CAUSING THE DEATH OF JUDITH LARSEN. THE
14 STATE'S OWN EXPERT SAID NO. I'D SUBMIT, LADIES AND
15 GENTLEMEN, THAT'S REASONABLE DOUBT WITH RESPECT TO THE CAUSE
16 OF DEATH OF JUDITH LARSEN BASED UPON THAT TESTIMONY. NOW,
17 WHEN YOU LOOK AT WHAT THE STATE -- LET ME JUST SAY ONE OTHER
18 THING BEFORE WE GET THERE.
19 YOU HEARD FROM DR. ROTHFEDER, HE WAS OUR EXPERT. AND I
20 WOULD SUBMIT DR. ROTHFEDER ESSENTIALLY WENT UNCHALLENGED.
21 THESE ARE HIS FINDINGS AS TO CAUSE OF DEATH. MARY CRANE,
22 SHE DIED, AS HE PUT IT, FROM AN INFECTION THAT WE CALL
23 SEPSIS WHICH SHE HAD PREDISPOSED BASED ON NUMEROUS MEDICAL
24 CONDITIONS WHICH WAS SUPERIMPOSED ON THOSE MEDICAL
25 CONDITIONS THAT LED TO HER DEMISE. THAT'S WHAT HE TOLD YOU.
4434
1 ELLEN ANDERSON. MRS. ANDERSON DIED OF PNEUMONIA WHICH
2 HAD BEEN PRESENT FOR SOME TIME SUPERIMPOSED ON OLD AGE AND
3 THE CARDIAC CONDITION. REMEMBER, THERE WAS AN X-RAY DONE AT
4 THE HOSPITAL FIVE A.M. WELL, BEFORE -- OR AFTER, RATHER,
5 DR. WEITZEL PRESCRIBED ANY MORPHINE. HE DIDN'T KNOW ABOUT
6 THE RESULTS OF THAT CHEST X-RAY, COULDN'T POSSIBLY HAVE
7 KNOWN IT. AND THAT DID INDICATE THAT SHE HAD ACUTE
8 PNEUMONIA AND THAT'S EXACTLY, IF YOU RECALL, ONE OF THE
9 THINGS THAT -- THAT'S ONE OF THE THINGS THAT YOU RECALL THAT
10 DR. GREY FOUND IN HIS AUTOPSY CONSISTENT WITH THAT AND ALSO
11 CARDIAC CONDITION. IF YOU LOOK AT THE RECORDS -- AND THEY
12 WILL BE IN EVIDENCE, YOU'LL HAVE THEM -- OF DR. WILDING, IT
13 WAS REFERENCE TO CONGESTIVE HEART FAILURE. HE EVEN FOUND
14 THAT IN NOVEMBER OF 1995. THIS IS ALL CONSISTENT WITH HER
15 MEDICAL HISTORY.
16 ENNIS ALLDREDGE. DR. ROTHFEDER SAID THIS PATIENT
17 SUFFERED A CEREBRALVASCULAR ACCIDENT. THAT'S A STROKE, IN
18 OTHER WORDS, A STROKE DURING HOSPITALIZATION. THAT
19 CEREBRALVASCULAR ACCIDENT SUPERIMPOSED ON HIS LONG-STANDING
20 INSULIN DEPENDENT DIABETES AND KNOWN HEART DISEASE CAUSED
21 HIS DEMISE.
22 LYDIA SMITH. MRS. SMITH DIED AS A RESULT OF A RECENT
23 STROKE THAT OCCURRED IN NOVEMBER OF 1995. THE SEQUELA OF
24 THAT PROBLEM -- AND IT'S A FANCY WORD, I ASKED HIM TO
25 DESCRIBE IT. I THINK HE'S TALKING ABOUT SORT OF THE RIPPLE
4435
1 EFFECT OR THE AFTEREFFECT OF THE ACTUAL STROKE EVENT OF THAT
2 PROBLEM SUPERIMPOSED ON A LONG-STANDING CARDIAC PROBLEM.
3 THOSE ARE THE THINGS DR. SOUTHWORTH TOLD YOU ABOUT THAT
4 ULTIMATELY RESULTED IN HER INABILITY TO TAKE FLUIDS WHICH
5 LEAD TO DEHYDRATION AND DEATH.
6 AND, FINALLY, JUDITH LARSEN. MRS. LARSEN DIED FROM A
7 COMBINATION OF PRE-EXISTING MEDICAL CONDITIONS SUPERIMPOSED
8 ON AN EPISODE OF G.I. BLEEDING WHICH WE KNOW HAPPENED IN
9 FACT IN THE HOSPITAL. I'D SUBMIT, LADIES AND GENTLEMEN, YOU
10 ARE CERTAINLY ENTITLED TO TAKE DR. ROTHFEDER'S OPINION AS
11 THE CAUSE OF DEATH AND THAT'S REASONABLE DOUBT ON THAT ISSUE
12 ALONE.
13 BUT MORE SIGNIFICANTLY, WHAT REALLY HAS THE STATE SAID
14 ON CAUSE OF DEATH? I MEAN, THEY ALWAYS WANTED TO SAY
15 MORPHINE, MORPHINE, MORPHINE. WE HEARD THAT REFRAIN OVER
16 AND OVER AGAIN, BUT THEY NEVER REALLY TELL YOU. NEVER
17 REALLY TOLD YOU WHAT REALLY HOW THAT WOULD WORK. HOW IT
18 WOULD SOMEHOW LEAD TO THE CAUSE OF DEATH OTHER THAN TALK
19 ABOUT RESPIRATORY DEPRESSION, RESPIRATION, THEREFORE,
20 SOMEBODY DIES.
21 NOW, I SUBMIT I THINK WE CAN AGREE THAT ULTIMATELY WHEN
22 YOU HAVE A TERMINAL EVENT YOU WILL STOP BREATHING, THAT'S
23 NOT WHAT WE'RE TALKING ABOUT. WE'RE TALKING ABOUT A
24 MECHANISM, SOMETHING HAPPENING TO YOUR RESPIRATIONS SUCH
25 THAT THEY ARE DECREASED TO A POINT WHERE YOU DIE. IT'S
4436
1 INTERESTING, LADIES AND GENTLEMEN, AND YOU KNOW THIS, THAT
2 THE STATE NEVER ONCE, NEVER ONCE IN THE WHOLE CASE SAID,
3 WELL, LET'S SEE WHAT THE RESPIRATIONS SHOW TO SEE WHETHER OR
4 NOT WE HAVE ACTUALLY RESPIRATORY DEPRESSION. AND THE REASON
5 WHY THEY DIDN'T DO THAT IS 'CAUSE, ONCE AGAIN, THAT WOULDN'T
6 HELP THEM. IT'S NOT CONSISTENT WITH THEIR ALLEGATIONS THAT
7 MORPHINE CAUSED THE DEATH.
8 AND, IN FACT, YOU MIGHT REMEMBER THAT EVERYONE IN THIS
9 COURTROOM HAS TOLD YOU THAT NORMAL RESPIRATORY RATE IS
10 ANYWHERE FROM 12 TO 20. THAT'S SORT OF A WELL-RECOGNIZED
11 NORM. AND YOU WOULD EXPECT TO SEE SOMEBODY DYING AS A
12 RESULT OF THE MORPHINE-INDUCED OR INTOXICATED DEATH, THOSE
13 RESPIRATION RATES WOULD BASICALLY START TO FALL, START TO
14 FALL AND EVENTUALLY GO DOWN TO ZERO. WELL, THESE ARE IN THE
15 HOSPITAL RECORDS AND YOU PROBABLY CAN'T SEE THAT, BUT I WILL
16 TELL YOU THESE ARE GRAPHS. AND THE MED NUMBER IS 41 IN
17 ENNIS ALLDREDGE AND THIS IS A RESPIRATION RATE THAT'S TAKEN
18 THROUGHOUT THE TIME THAT HE'S THERE BY THE NURSES. AND HIS
19 RESPIRATION RATES ARE SOMEWHERE FROM 28 TO 16. IN FACT, THE
20 DAY THAT HE DIED HIS RESPIRATION RATE AS CHARTED BY THE
21 NURSES WAS 16, TOTALLY INCONSISTENT WITH A RESPIRATION RATE
22 THAT IS CONSISTENT WITH DEATH.
23 ELLEN ANDERSON IS IN HER CHART. SAME THING. AND THIS
24 IS MED-175 IN HER CHART. RESPIRATION RATES 26, 16 AS
25 CHARTED BY THE NURSE. TOTALLY INCONSISTENT WITH RESPIRATORY
4437
1 DEPRESSED INDUCED DEATH. AND I ASK YOU WHEN YOU GO BACK TO
2 THE JURY ROOM TO LOOK AT THESE BECAUSE I THINK THEY TELL A
3 VERY INTERESTING TALE, NOT ONLY IN TERMS OF WHETHER OR NOT
4 THE MORPHINE CAUSED OR CONTRIBUTED TO THE DEMISE AT THE END,
5 BUT ALSO YOU'VE HEARD REPEATEDLY SEDATION, SEDATION,
6 SEDATION. IT STARTED RIGHT AWAY IN THE CENTRAL NERVOUS
7 SYSTEM. THE RATES GO DOWN, THE PATIENTS ARE COMPROMISED AND
8 THEN THE MORPHINE STARTS. HAS ONE PERSON COME INTO THIS
9 COURTROOM AND TOLD YOU, OKAY, HERE'S THE DATE, WHATEVER DATE
10 IT IS, AND SAID, NOW LOOK AT THIS PATIENT GETTING WHATEVER
11 PSYCH MEDS THEY ARE GETTING AND LOOK AT HOW SERIOUS A
12 CONDITION THEY ARE OR WHAT WAS GOING ON? NOT ONE DOCTOR HAS
13 REALLY TOLD YOU THAT. IT'S ALL BEEN VERY GENERAL. IT'S ALL
14 BEEN TALKING ABOUT SEDATION AND -- IN FACT, IT'S
15 INTERESTING. I KNOW YOU PICKED UP ON IT.
16 IF YOU LOOK AT THESE RECORDS, AND I WANT YOU TO LOOK
17 VERY CLOSELY AT THE NURSES' RECORDS AND EVERY SINGLE TIME
18 THE STATE WOULD SAY OKAY, DOCTOR, TURN TO THE 4TH OF
19 JANUARY. TURN TO THE 26TH OF DECEMBER, AND WHAT DOES IT
20 SAY? LETHARGY OR WOULD SAY THAT OR THAT. I WOULD COME BACK
21 AND I WOULD HAVE OTHER ENTRIES FOR THAT DAY BECAUSE THEY DO
22 TELL A STORY. AND IF YOU READ THE NURSES' NOTES YOU ARE NOT
23 GOING TO SEE ANY BIG TIME SEDATION. YOU ARE NOT GOING TO
24 SEE ANY RESPIRATORY DEPRESSION. YOU ARE NOT GOING TO SEE
25 ANYTHING LIKE THAT.
4438
1 AND THIS IS A GOOD EXAMPLE. JUDITH LARSEN, SHE WAS
2 THERE FOR AN EXTENDED PERIOD OF TIME. LOOK AT HER
3 RESPIRATION RATES. SHE STARTS OUT WITH 26, THEY END THE
4 WEEK AT 20. SHE'S AT 20, THEY END THE WEEK AT 18. THEY
5 START AT 16 HERE, THEY END AT 18. BACK UP TO 20. NOW, THIS
6 IS THE LAST DAY OF HER LIFE. SO THIS IS THE LAST 24 HOURS.
7 I WOULD SUBMIT WE'RE GOING TO SEE SOME PROBLEMS WITH HER
8 BREATHING BECAUSE SHE'S SO THOROUGHLY COMPROMISED BY HER
9 G.I. BLEED AND THE OTHER THINGS THAT ARE GOING ON, BUT THIS
10 IS AN INTERESTING RESPIRATORY TALE TOO. IT'S SIX, IT ENDS
11 HERE, 12 THEN GOES DOWN TO SIX, AND EVEN IT'S CHARTED NEXT
12 TIME. THE LAST DAY OF HER LIFE, LAST 12 HOURS, SIX, SIX,
13 SIX. THE LAST ONE CHARTED BY THE NURSE IS EIGHT, IT'S GOING
14 UP. AND, IN FACT, I WILL HAVE ANOTHER LITTLE DIAGRAM TO
15 SHOW YOU. TWENTY MINUTES BEFORE SHE DIES, 20 MINUTES BEFORE
16 SHE DIES, HER RESPIRATORY RATE IS BACK UP TO TEN WHICH IS
17 TOTALLY INCONSISTENT WITH RESPIRATORY INDUCED DEPRESSIVE
18 DEATH.
19 MARY CRANE. START AT 18. THE LAST ONE, THE DAY SHE
20 DIES IS THE 28TH. TOTALLY INCONSISTENT, WELL WITHIN THE
21 NORM. AND AS I SAY, THIS -- BY THE WAY, BACK IN THE JURY
22 ROOM YOU CAN LOOK AT THIS. THIS IS MED-280 IN HER CHART.
23 FINALLY, LYDIA SMITH. SHE STARTED AT 20, WELL WITHIN
24 THE NORM. THE LAST DAY OF HER LIFE, THE LAST SIGN TAKEN THE
25 16TH, WELL WITHIN THE NORM. ALL OF THESE ARE WELL WITHIN
4439
1 THE NORM, ALL OF THEM. NO INDICATION, NONE WHATSOEVER, OF
2 SOME GREAT SEDATION THAT'S GOING ON SUCH THAT A RESPIRATORY
3 RATE IS COMPROMISED.
4 THERE'S ANOTHER WAY TO LOOK AT THIS. AND I THINK THIS
5 IS EXTREMELY IMPORTANT BECAUSE REMEMBER, THIS IS THE STATE'S
6 THEORY. I MEAN, THEY MAKE NO BONES ABOUT IT. WE DON'T CARE
7 WHAT THE MEDICAL EXAMINER FOUND IN AUTOPSY, WE'RE GOING TO
8 TRY TO PUT THAT -- PUT THAT ON THE WITNESS STAND RATHER
9 SOMEBODY WHO REALLY DOESN'T HAVE ANY FORENSIC EXPERTISE
10 WHOSE JOB IT IS NOT TO DETERMINE CAUSE OF DEATH, BUT THEY
11 WILL TELL YOU CAUSE OF DEATH AND WE WANT YOU TO RELY ON.
12 THAT DOESN'T TELL YOU HOW IT HAPPENED EITHER. OKAY. THERE
13 IS ANOTHER WAY YOU CAN LOOK AT RESPIRATIONS. THE NURSES'
14 NOTES, SOMETIMES THE NURSES WOULD JUST CHART THE SIGNS, THEY
15 ARE DIFFERENT SOMETIMES THAN THESE VITALS. THESE ARE SORT
16 OF TAKEN PERIODICALLY, BUT THESE ARE MORE HELPFUL TOO.
17 AND THIS IS ENNIS ALLDREDGE. LOOK AT HIS RESPIRATION
18 RATES ON THE 11TH, 16, 20 AND UNLABORED. 1/12, 18 AND 24.
19 1/13, 12 AND 16. AN HOUR AND A HALF APPROXIMATELY BEFORE
20 HIS DEMISE, 16. TOTALLY INCONSISTENT WITH RESPIRATORY
21 DEPRESSION. I'M JUST TAKING THESE RIGHT OFF THE NURSES'
22 NOTES. THEY ARE IN THERE FOR YOU FOLKS TO SEE.
23 ELLEN ANDERSON. THIS IS FROM THE NURSES' NOTES, 26.
24 THEN WE HAVE 8 TO 16 AT 1 O'CLOCK. AND THEN AT 7:30 WE HAVE
25 HER AT 12, WELL WITHIN THE NORM, TOTALLY INCONSISTENT.
4440
1 MARY CRANE, 1/4 -- AND THE REASON I ONLY WENT BACK A
2 FEW DAYS 'CAUSE YOU CAN DO IT THROUGHOUT THE -- I THOUGHT
3 THIS IS THE MORE HELPFUL. THIS IS WHEN SUPPOSEDLY THE
4 RESPIRATIONS ARE SO DEPRESSED AND THEY ARE GOING TOO FAR
5 DOWN THAT THE MORPHINE IS OBVIOUSLY CAUSING THE DEATH. AND
6 HERE WE HAVE 1/4, 24, 16, 20, 14, 28. TOTALLY INCONSISTENT
7 WITH A RESPIRATORY-INDUCED DEATH.
8 AND THIS IS WHAT I TOLD YOU PREVIOUSLY. THIS IS
9 PATIENT JUDITH LARSEN. AND THIS IS FROM THE NURSES' NOTES.
10 AND YOU'LL SEE KIND OF WHERE THEY ARE ALL WITHIN THE NORMAL
11 RANGE. AND THEN EVEN WHEN WE GET DOWN HERE TEN MINUTES
12 LATER, NOT 20 MINUTES, BEFORE HER EXPIRATION, THE NURSES ARE
13 NOTING HER RESPIRATION RATE WAS AT TEN. IN OTHER WORDS,
14 IT'S EVEN GOING UP.
15 AND FINALLY, LYDIA SMITH. AND THIS IS, ONCE AGAIN,
16 TAKEN FROM THE NURSES' NOTES AND SHE DIES OF COURSE ON THE
17 8TH. IT'S INDICATED THERE, LOOK AT HER RESPIRATION PATTERN
18 AND LOOK AT HER RATES. TOTALLY INCONSISTENT, WELL WITHIN
19 THE NORM. AND THE REASON WHY I THINK THESE ARE IMPORTANT IS
20 BECAUSE THESE ARE FACTS. THESE ARE FACTS OF THE RECORD.
21 THEY ARE NOT CONCLUSIONS, THEY ARE NOT SPIN, THEY ARE NOT
22 CHARACTERIZATIONS. AND WHAT THEY TELL YOU IS THEY DIDN'T
23 DIE AS A RESULT OF MORPHINE DEPRESSING THE RESPIRATORY
24 SYSTEM. THEY DIED AS A RESULT OF OTHER REASONS INDICATED BY
25 DR. ROTHFEDER AND INDICATED BY THE STATE MEDICAL EXAMINER ON
4441
1 THOSE THINGS THAT HE COULDN'T RULE OUT.
2 THE FINAL THING ON CAUSE OF DEATH AND WHY REASONABLE
3 DOUBT IS WRITTEN ALL OVER THAT IS YOU REMEMBER DR. SUPERNAW?
4 DR. SUPERNAW COMES IN HERE -- AND THIS IS UNREFUTED. THE
5 STATE HASN'T EVEN ATTEMPTED TO CHALLENGE THIS SO YOU CAN
6 ACCEPT IT BASICALLY AS A GIVEN BECAUSE IT'S NOT EVEN
7 DISPUTED -- AND WHAT DOES HE SAY? AND REMEMBER EVERY
8 EXPERT -- DR. HARE AGREED WITH THIS, DR. CROOKSTON AGREED
9 WITH THIS, THAT YOU ARE GOING TO HAVE MAXIMUM RESPIRATORY
10 DEPRESSION WHEN THE ACTUAL DRUG IS AT ITS PEAK. MAKES
11 SENSE. AND YOU MIGHT RECALL THAT DR. SUPERNAW FROM -- WELL,
12 THIS I THINK WAS DR. HARE. BUT IT WAS THE SAME THING THAT
13 DR. SUPERNAW AGREED WITH. IN OTHER WORDS, THESE
14 MEDICATIONS, FOR EXAMPLE, MORPHINE, THEY HAVE A PEAK. AND
15 THEN THEY REFER TO AS BASICALLY THE HALF LIFE IS GOING
16 THROUGH THE SYSTEM AND THE MEDICATION EFFECT IS NOT AS
17 CRITICAL AND SO THE MAXIMUM RESPIRATORY DEPRESSION IS AT THE
18 PEAK.
19 SO WHAT DR. SUPERNAW WAS SAYING, FOR EXAMPLE, YEAH,
20 THIS WAS AN EXAMPLE AS HE CHARTED OUT OF ELLEN ANDERSON.
21 AND REMEMBER WHAT HE WAS SAYING. YOU WOULD EXPECT THAT IF
22 THE DEATH IS GOING TO BE CAUSED AS A RESULT OF RESPIRATORY
23 DEPRESSION, YOU'D SEE IT AT THE PEAK. AND SO WHEN HE
24 CHARTED THIS OUT, FOR EXAMPLE, THIS WAS ELLEN ANDERSON, HE
25 CHARTED THIS OUT AND SEE WHAT YOU ARE HAVING IS THE DEATH
4442
1 OCCURRING BASICALLY AT THE DEMINIMUS PORTION OF THE DRUG'S
2 EFFECT. ONCE AGAIN, TOTALLY INCONSISTENT WITH RESPIRATORY
3 DEPRESSION AND TOTALLY INCONSISTENT WITH THE MORPHINE
4 RELATED DEATH.
5 SIMILARLY, HE DID THIS WITH RESPECT TO MARY CRANE. I
6 THINK THIS WAS HIS CHART WITH MARY CRANE AND HE ATTEMPTED TO
7 ADD IN THE OTHER MEDICATIONS AND, ONCE AGAIN, SHE DOES NOT
8 DIE AT THE PEAK. AND HE TESTIFIED ABOUT ALL OF THEM NOT
9 DYING AT THE PEAK, AND THAT'S SIGNIFICANT BECAUSE YOU WOULD
10 EXPECT THAT IF IT'S GOING TO BE RESPIRATORY-INDUCED DEATH,
11 THAT IT WOULD BE AT THE PEAK. AND ALL OF THIS, LADIES AND
12 GENTLEMEN, IS UNCHALLENGED. THE STATE DIDN'T TRY TO EVEN
13 DEALING WITH THAT ON REBUTTAL. THE ONLY THING THEY ASKED ON
14 REBUTTAL OF DR. SUPERNAW WAS THE HALF LIFE OF DEPAKENE AND
15 CROOKSTON SAID IT'S THIS.
16 INTERESTINGLY ENOUGH, WE HEAR ALL ABOUT -- WE HEAR ALL
17 ABOUT THESE DOSAGES FROM THE GERIATRIC DOSAGE HANDBOOK.
18 AND, YOU KNOW, THE WHOLE THING IS BASED ON THE GERIATRIC
19 DOSAGE HANDBOOK. AND REMEMBER, DR. CROOKSTON ON REBUTTAL
20 WHEN I READ HIM RIGHT OUT OF -- STANDING RIGHT THERE -- WHAT
21 THE DEPAKENE HALF LIFE IS AND THE ONLY QUALIFICATION OUT OF
22 THE GERIATRIC DOSAGE HANDBOOK, DO YOU AGREE WITH THAT? AND
23 HE SAID NO. AND HE HAD PREVIOUSLY TESTIFIED THAT HE DOESN'T
24 EVEN CONSIDER THE GERIATRIC DOSAGE HANDBOOK IN TERMS OF
25 DOSING BECAUSE IT'S JUST A GUIDELINE AND HE JUST TREATS THE
4443
1 PATIENT. SO TO USE THIS AS SORT OF YOUR BASIS FOR ALL YOUR
2 MEDICATIONS, I'D SUBMIT IS NOT CONSISTENT WITH THE EVIDENCE
3 OR CONSISTENT WITH WHAT THE EXPERTS EVEN AGREE UPON.
4 MOREOVER, IF YOU RECALL, THEY CAN'T EVEN GET IT RIGHT
5 THERE. REMEMBER DR. FEHLAUER TESTIFIED AND THEY PUT UP THIS
6 CHART AND IT HAD 2.5 IS THE RANGE OF MORPHINE FOR GERIATRIC
7 PATIENTS? THAT'S WHAT ALL THIS IS BASED ON AND HE SAID
8 EVERY FOUR TO SIX HOURS. I SAID NOW, WAIT A MINUTE, THAT'S
9 NOT WHAT THE BOOK SAYS, DOES IT? AND HE SAID NO BECAUSE
10 THERE WAS A RANGE. IT WAS 2.5 TO 5 MILLIGRAMS. AND THEY
11 DIDN'T TAKE THAT. EVEN THOUGH THEY RELIED ON THE GERIATRIC
12 DOSAGE HANDBOOK, THEY DIDN'T PUT THAT INTO THE CHART WHICH
13 YOU SEE WHICH IS THE WHOLE BASIS FOR THE MORPHINE
14 CALCULATIONS. I'D SUBMIT THAT'S IMPORTANT TO REMEMBER. BUT
15 IN ANY EVENT, THAT'S THE CIRCUMSTANCES ON CAUSE OF DEATH.
16 NOW, LET'S LOOK AT A FEW OF THESE SITUATIONS REALLY
17 BECAUSE THEY ARE END-OF-LIFE CARE AS DR. WEITZEL TESTIFIED.
18 AND WHAT DID HE TELL YOU? HE TOLD YOU THAT WHAT HE WAS
19 TRYING TO DO AT THE END WAS TO PROVIDE SOME KIND OF
20 DIGNIFIED PAIN-FREE CIRCUMSTANCE AT END OF LIFE. AND, YOU
21 KNOW, YOU ARE GOING TO BE INSTRUCTED THAT IT IS LAW IN THE
22 STATE OF UTAH THAT WE WANT PEOPLE TO HAVE THE MAXIMUM OF
23 DIGNITY AT THE END OF LIFE WITH A MINIMUM OF PAIN. YOU'LL
24 RECEIVE AN INSTRUCTION THAT I'LL TALK ABOUT THOSE SHORTLY.
25 BUT IF WE LOOK AT WHAT HAPPENED -- AND I SHOWED YOU
4444
1 THESE BEFORE AND I'M GOING TO USE THEM A LITTLE BIT
2 DIFFERENTLY TODAY. GET THAT UP THERE. THAT'S PATIENT
3 JUDITH LARSEN. WHEN WE WERE HERE BEFORE IN OPENING
4 STATEMENT I THINK I WAS MORE CONCERNED ABOUT LOOKING SORT OF
5 AT ADMISSIONS BECAUSE I'LL TELL YOU RIGHT NOW, THE EVIDENCE
6 CAME IN OVERWHELMING. WE HAVE NEVER TAKEN A POSITION THAT
7 SOMEHOW PEOPLE ON ADMISSION WERE UNSTABLE, OBVIOUSLY THEY
8 WERE. THE QUESTION ISN'T WHETHER THEY WERE STABLE ON
9 ADMISSION. THE QUESTION IS WHAT WAS THEIR MEDICAL CONDITION
10 AND WAS THERE AN ACUTE EVENT THAT OCCURRED IN THE HOSPITAL
11 SUCH THAT IT REQUIRES SOME EXTRAORDINARY CARE OR LED TO
12 THEIR DEMISE. AND I THINK AS YOU LOOK AT JUDITH LARSEN IT'S
13 IMPORTANT -- AND I'M GOING BACK HERE AND I TOLD YOU I DIDN'T
14 REHEARSE THIS -- BUT WE GOT TO CONSIDER HER HISTORY. HER
15 HISTORY IS INCREDIBLY IMPORTANT TO UNDERSTAND WHAT'S GOING
16 ON. AND THIS IS HER CONDITION COMING INTO THE HOSPITAL.
17 THE QUESTION REALLY ISN'T WAS SHE TERMINAL, BECAUSE
18 OBVIOUSLY THESE PEOPLE WERE NOT IN THAT SITUATION ON
19 ARRIVAL, BUT THINGS DID CHANGE AND THINGS DID CHANGE RATHER
20 RAPIDLY. BUT LOOK AT HER SITUATION. SHE HAS A STROKE AND A
21 VERY ACUTE STROKE IN 1995 AND THERE IS HER DISCHARGE
22 DIAGNOSIS. THESE ARE ALL -- THIS IS EXHIBIT D-17, THIS IS
23 ALL EVIDENCE IN THE CASE, AND SHE GOES BACK TO COTTONWOOD
24 HOSPITAL. LOOK AT THAT DISCHARGE DIAGNOSIS DEALING WITH ALL
25 OF THE PROBLEMS THAT THIS POOR WOMAN WAS SUFFERING FROM AT
4445
1 THE TIME. THAT'S D-16.
2 THEN SHE HAS A SECOND STROKE. AND, YOU KNOW, THAT ONE
3 IS REALLY SIGNIFICANT BECAUSE YOU REMEMBER DR. PEARCE
4 TESTIFIED HE WAS ACTUALLY THE TREATING PHYSICIAN AT THAT
5 POINT AND THIS IS WHAT HE SAID AND TESTIFIED TO ABOUT HIS
6 SORT OF CIRCUMSTANCE INTERCHANGE WITH THE FAMILY, BUT SHE'D
7 REACHED A QUALITY OF LIFE LEVEL THAT THEY DIDN'T THINK IT
8 WOULD BE HUMANE TO KEEP HER GOING. GIVEN THAT AND GIVEN
9 WHAT HE FOUND THERE AND GIVEN HER CIRCUMSTANCES, I MEAN,
10 LOOK AT THAT LOSS OF INTEREST IN SWALLOWING EITHER FOOD OR
11 FLUIDS. QUESTION OF ISCHEMIC HEART DISEASE. SHE'S TESTED,
12 SHE HAS A NEW STROKE WITH APHASIA AND THAT'S A FANCY WORD
13 FOR SHE CAN'T TALK, IT'S HARD TO TALK NOW. THERE WAS SOME
14 CONCERN AND DISCUSSION, IT'S RIGHT THERE IN THE EXHIBIT
15 ABOUT WHAT KIND OF DIRECTION THE FAMILY SHOULD GIVE AND
16 YOU'LL SEE IT. DR. PEARCE WRITES THAT THEY DIDN'T WANT ANY
17 MEASURES TAKEN. THEY DIDN'T EVEN WANT ANTIBIOTICS TO BE
18 GIVEN. SHE HAD A URINARY TRACT INFECTION. THAT'S HOW
19 UNFORTUNATELY COMPROMISED MEDICALLY SHE WAS. AND THAT WAS
20 THE POSITION OF THE FAMILY IN SEPTEMBER OF '95.
21 AND THEN DR. STEVE HONES WAS HER TREATING PHYSICIAN.
22 WHEN HE TESTIFIED, THIS IS WHAT HE TESTIFIED HER CONDITION
23 WAS ON ADMISSION: THE MAJOR STROKE CAUSED HALF OF HER
24 VISUAL FIELD TO BE MISSING, SHE WAS ALSO 93 AND WEAK AND
25 BEING A LITTLE BIT CONFUSED AS WELL ON TOP OF THAT. THAT'S
4446
1 KIND OF A BAD COMBINATION. I'D SUBMIT, LADIES AND
2 GENTLEMEN, THAT JUDITH LARSEN WAS THOROUGHLY COMPROMISED
3 MEDICALLY ON HER ADMISSION. AND THEN WHEN SHE GETS -- WHEN
4 SHE GETS AT THE TIME TO THE HOSPITAL -- AND THIS IS MERLIN
5 WHO TESTIFIED, EVEN HE SAYS WE HAVE NO HOPES. WE HAVE HOPES
6 BUT NOT FANTASIES IN REGARD TO THE CONDITION.
7 ON THE 11TH RIGHT HERE, THIS IS A FEW DAYS AFTER
8 ADMISSION. THIS IS A NURSE BONNIE HARDEY WHO'S ONE THAT
9 TESTIFIED. THIS ISN'T DR. WEITZEL, HE DIDN'T SAY THAT.
10 THIS IS A NURSE SAYING THIS. PATIENT'S FAMILY MEMBER CALLED
11 AND REQUESTED INFORMATION ON PATIENT STATUS. FAMILY
12 CONTINUES TO NOT WANT I.V. FEEDING TUBES, ET CETERA AS PER
13 LIVING WILL, OXYGEN OKAY, PATIENT RELIEVED FOR -- FAMILY
14 RELIEVED TO HEAR PATIENT IS NOT SCREAMING OUT OR AGITATED
15 CURRENTLY. THAT'S THE POSITION OF THE FAMILY AT THAT POINT.
16 THEN WHEN WE GET OVER HERE TO THE 29TH. AND YOU KNOW,
17 YOU'VE HEARD THE TESTIMONY. SHE HAD A SEIZURE, SHE HAD A
18 SIGNIFICANT EVENT, AND THEN SHE STARTED TO HAVE INTESTINAL
19 BLEEDING. YOU HEARD DR. ROTHFEDER SAY SHE ESSENTIALLY LOST
20 25 PERCENT OF HER BLOOD. THE QUESTION IS, WHAT DOES HE DO
21 NOW WITH THIS 93-YEAR-OLD WOMAN WITH THESE TREMENDOUSLY
22 DIFFICULT MEDICAL PROBLEMS, WHAT DO WE DO?
23 AND YOU RECALL THAT MERLIN LARSEN TESTIFIED ABOUT HIS
24 CONVERSATION WITH DR. WEITZEL, AND IT'S ALL CHARTED. I
25 MEAN, THAT'S THE MIDDLE OF ONE OF THESE. YOU'LL SEE THESE
4447
1 IN THE MEDICAL RECORDS, THIS IS WHAT IS CHARTED. THIS IS
2 THE 29TH AND THIS IS WHAT IS CHARTED. THIS IS CHARTED BY
3 THE NURSES. PATIENT CONTINUES VOMITING FROM MIDNIGHT TO
4 9:20 COFFEE GROUND IN APPEARANCE.
5 THEN BONNIE HARDEY, PATIENT FAMILY CAME TO SEE PATIENT,
6 AWARE OF PHYSICAL STATUS CHANGES -- THIS IS SIGNIFICANT --
7 FAMILY STATED THEY DO NOT -- THEY WANT DO NOT RESUSCITATE
8 STATUS MAINTAINED AND COMFORT MEASURES GIVEN. ESSENTIALLY
9 THEY HAD ALREADY DECIDED. AND THEN YOU HAVE DR. WEITZEL'S
10 NOTE ON THE 30TH, MET WITH SON AND DAUGHTER P.M. REGARDING
11 PATIENT'S CONDITION. SHE HAD COFFEE GROUND VOMITUS OF
12 GREATER THAN 200 C.C. THIS MORNING, STOMACH IS EXTENDED, HAS
13 HYPERSTITIAL VALVE SIGNS TAKEN. HE GOES ON TO SAY AFTER
14 THIS PLAN, MAKE SURE SHE WAS COMFORTABLE WITH ROUTINE
15 MORPHINE. AND SO THE MORPHINE AROUND-THE-CLOCK WHICH IS
16 GIVEN TO ALLEVIATE THE DISCOMFORT AND PAIN WHICH SHE IS NOW
17 GOING TO EXPERIENCE, BECAUSE, REMEMBER, MERLIN LARSEN
18 TESTIFIED TO THIS, SHE ISN'T GOING TO GET ANY FLUIDS, SHE
19 ISN'T GOING TO BE ON I.V., THERE ISN'T ANYTHING THAT'S GOING
20 TO BE DONE FOR THIS POOR WOMAN GIVEN HER CIRCUMSTANCES. AND
21 SO DR. WEITZEL DOES THE COMPASSIONATE AND THE APPROPRIATE
22 THING AND THEY START ROUND-THE-CLOCK MORPHINE AND IT'S ALL
23 CONSISTENT WITH WHAT IS CHARTED.
24 HERE'S ANOTHER REFERENCE THAT HE CALLS, THE SON'S
25 EXPRESSED ONLY WISH TO KEEP HER COMFORTABLE. REMEMBER THAT
4448
1 MRS. KLEI, SHE RECEIVED -- SHE WAS A NURSE AND THE OTHER
2 THING IS THAT ON ALL OF THESE -- REMEMBER, IT'S NOT JUST
3 DR. WEITZEL WHO'S MAKING THE DECISIONS. THESE PEOPLE ARE
4 DYING AT SOME POINT. BUT REMEMBER WHAT NURSE KLEI SAID? I
5 ASKED HER ABOUT THIS, REMEMBER WHAT SHE SAID? SHE THOUGHT
6 SHE WAS DYING TOO. THIS IS WELL BEFORE ANY MORPHINE. WELL
7 BEFORE ANYTHING. SHE'S DYING BECAUSE OF THE G.I. BLEED AND
8 SHE TOLD YOU ALL IT'S NOT JUST DR. WEITZEL MAKING THIS
9 ASSESSMENT; OTHERS ARE TOO. GOES ON TO SAY -- THERE'S SOME
10 MORE ENTRIES.
11 THE FAMILY AT THIS POINT ON THE 30TH WANTS TO KNOW WHEN
12 SHE IS GOING TO BE DYING. IT GOES ON, HAS SOME CONCERN THAT
13 FAMILY MEMBERS ARE FLYING IN FROM OUT OF STATE DUE TO THE
14 NIGHT SHIFT'S REPORT TO THE SON ON 12/30 AND SO IT'S JUST A
15 CONTINUING PROCESS UNTIL EVENTUALLY HER DEATH ON THE 3RD.
16 AND I'D SUBMIT THAT THESE NOTES TELL THE TALE. AND THEY
17 WERE NOT TOLD THIS JUST BY DR. WEITZEL. THEY ARE TOLD BY
18 LAURIE WILLSON, THEY WERE TOLD BY BONNIE HARDEY, THEY
19 WERE -- THEY WERE TOLD BY THE NURSE.
20 AND, YOU KNOW, LAURIE WILLSON, YOU HEARD HER TESTIMONY
21 AND LOOK WHAT SHE WRITES. PATIENT'S MEDICAL STATUS HAS
22 RAPIDLY AND PROFOUNDLY DETERIORATED. SHE'S EXPERIENCED A
23 SEIZURE OF MULTIPLE EPISODES OF VOMITING COFFEE GROUND
24 MATERIAL, SHE IS NO LONGER VERBALLY RESPONSIVE. THE CARE
25 PLAN HAS BEEN ALTERED TO REFLECT THE NEED TO SUPPORT THE
4449
1 PATIENT AND FAMILY THROUGH A POST-DEATH AND DYING PROCESS.
2 PATIENT IS CURRENTLY RECEIVING MORPHINE INTRAMUSCULARLY
3 EVERY THREE HOURS FOR COMFORT. LAURIE WILLSON WAS -- I
4 ASKED HER, WELL, WAIT A MINUTE, DID YOU ASSESS SHE WAS
5 DYING? WHAT DID SHE TELL YOU? SHE SAID, YEAH. DO WE HAVE
6 A DEATH AND DYING PLAN? I AM A PROFESSIONAL NURSE, WE DO,
7 ABSOLUTELY. THIS ISN'T DR. WEITZEL, THIS IS LAURIE WILLSON.
8 THEY WANTED TO SAY, WELL, WAIT A MINUTE, THERE IS NO PAIN
9 HERE. THESE PEOPLE AREN'T COMPLAINING OF PAIN. WELL,
10 REMEMBER, THEY COULDN'T. THEY COULDN'T COMPLAIN OF PAIN.
11 IT'S A RED HERRING.
12 IF YOU LOOK AT THE NOTES AND I WANT YOU TO LOOK AT THE
13 LAST FEW DAYS OF JUDITH'S LIFE, YOU'LL SEE REFERENCE TO
14 MOANING. YOU'LL SEE REFERENCE TO DISCOMFORT. YOU'LL SEE
15 REFERENCE TO GRIMACING. YOU'LL SEE ALL THE REFERENCES THAT
16 ARE THE SIGNS THAT THESE NURSES READ. HOW DO WE KNOW THEY
17 READ THEM? WELL, LOOK ON THE 1ST. THAT'S A P.R.N. ORDER.
18 THAT MORPHINE WAS GIVEN BECAUSE A NURSE DECIDED IN HER
19 DISCRETION THAT IT WAS APPROPRIATE. ON THE 2ND AT 1630
20 THAT'S A P.R.N. MORPHINE INJECTION GIVEN BECAUSE THE NURSE
21 ASSESSED THAT IT WAS APPROPRIATE. THIS ISN'T DR. WEITZEL.
22 SO I'D SUBMIT, LADIES AND GENTLEMEN, AS YOU LOOK AT
23 THIS, IT'S ABSOLUTELY CLEAR WHAT'S GOING ON IN TERMS OF
24 PROVIDING COMFORT CARE AND COMFORT MEASURES AND END-OF-LIFE
25 CARE. AND REMEMBER -- YOU'LL BE INSTRUCTED ON THIS AND
4450
1 DR. HARE AGREED WITH THIS, EVERY PHYSICIAN HERE AGREED WITH
2 THIS -- THAT ONCE YOU HAVE A SITUATION WHERE THE PATIENT IS
3 DYING, A PHYSICIAN HAS AN ETHICAL OBLIGATION TO TRY TO KEEP
4 THEM COMFORTABLE AND TRY TO DEAL WITH THE SYMPTOMS OF THE
5 DYING PROCESS. AND, YOU KNOW, IF YOU THINK ABOUT THE
6 SITUATION THAT JUDITH LARSEN WAS IN FROM THE 29TH OF
7 DECEMBER FORWARD WHERE SHE'S LOST 25 PERCENT OF HER BLOOD,
8 SHE'S BLEEDING INTERNALLY, SHE IS 93 YEARS OLD, SHE'S NOT
9 GETTING ANY FOOD, SHE WAS NOT GETTING ANY FLUIDS, I'D
10 SUBMIT, LADIES AND GENTLEMEN, THAT IT WOULD HAVE BEEN
11 ABSOLUTELY WRONG FOR A PHYSICIAN NOT TO INTERVENE AS
12 REFLECTED HERE AND TO TRY TO MAKE HER PASSING FROM THIS LIFE
13 IN SOME DIGNIFIED PAIN-FREE MANNER.
14 WE ALSO HAVE ENNIS ALLDREDGE AND THIS IS HIS HISTORY.
15 AND I THINK WHAT'S SIGNIFICANT IS WHAT DR. CUNNINGHAM SAID,
16 HIS TREATING PHYSICIAN. THIS IS WHAT HE TESTIFIED TO IN THE
17 TRIAL. HE OBVIOUSLY WAS NOT IN GOOD HEALTH AT THE TIME THAT
18 HE WAS ADMITTED BECAUSE HE HAD THE CORONARY ARTERY DISEASE,
19 THE LYMPHOMA AND HE HAD -- OBVIOUSLY HE HAD PREVIOUS
20 PROBLEMS AT THE NURSING HOME WHICH BASICALLY REFLECTED --
21 HERE YOU MIGHT RECALL THAT DR. ROTHFEDER TESTIFIED THAT HE
22 SAW THERE WAS SLURRED SPEECH AND THAT BASIC LOSS OF SOME
23 CONTROL ON HIS RIGHT SIDE INDICATING A SERIES OF MINI
24 STROKES. NOW, I THINK WHAT'S SIGNIFICANT, ESPECIALLY AS YOU
25 READ THE RECORDS HERE. ONCE AGAIN, WE'RE NOT CHARACTERIZING
4451
1 THE RECORDS. IT WAS IN THE RECORD. THIS IS LAURIE
2 WILLSON'S ENTRY. AND SO THERE'S CLEAR RECOGNITION THAT
3 THERE'S A PROBLEM IN TERMS OF THE REPORT ON THE M.R.I.
4 NOW, COUNSEL REFERS TO BEING COMPROMISED. DR. CLINGER
5 TESTIFIED OF -- REMEMBER WHAT DR. CLINGER SAID? HE SAID ON
6 CROSS, CAN YOU RULE OUT A STROKE? NO. I SAID, ALSO HAVE
7 CLINICAL CORRELATION IN YOUR REPORT, WHAT DOES THAT MEAN?
8 THAT'S SOMETHING A PHYSICIAN NEEDS TO DO IN ORDER TO ASSESS
9 PROPERLY WHETHER OR NOT THERE WAS IN FACT A STROKE. SO YOU
10 HAVE THIS INTERVENTION. AND THEN LOOK AT WHAT HAPPENS.
11 TOTALLY CONSISTENT WITH PROVIDING END-OF-LIFE CARE
12 BECAUSE YOU HAVE DR. WEITZEL INDICATING ON THE 13TH THAT HE
13 SPOKE WITH THE WIFE EXTENSIVELY. SHE FEELS STRONGLY THAT
14 EXTRAORDINARY MEASURES SHOULD NOT BE TAKEN TO PROLONG ENNIS'
15 LIFE, GIVEN THE STROKE FOUND ON THE M.R.I. SHE REQUESTS WE
16 DISCONTINUE I.V. AND GIVE COMFORT CARE AND LET HIM EXPIRE
17 NATURALLY. AND THEN HE CONTINUES WITH THE PLAN AND DOES
18 THIS. HE DOES THIS AFTER HE TALKS TO THE FAMILY. YOU'LL
19 SEE IN THE NURSES' NOTES THE FAMILY WAS THERE THE MORNING OF
20 THE 13TH AND DR. WEITZEL TOLD YOU HE TALKED TO THEM AND THIS
21 IS WHAT THEY WANTED.
22 AND, YOU KNOW, YOU HAVE ANOTHER ENTRY RIGHT AFTER THIS
23 WHICH I THINK REALLY CORROBORATES WHAT HAPPENED IN A
24 SIGNIFICANT WAY. THIS IS BY TODD CHAMBERS. AND THIS IS
25 RIGHT AFTER IN THE PROGRESS NOTES SECTION. THIS IS WHAT
4452
1 TODD CHAMBERS SAYS, MET WITH FAMILY ONE AND A HALF HOURS.
2 THEY ASKED ME TO CALL THE MORTUARY IN DELTA. FAMILY VERY
3 SUPPORTIVE OF MEASURES BEING TAKEN. THEY'RE ESPECIALLY GLAD
4 THAT PATIENT IS CLOSE BY IN DAVIS COUNTY SO THEY DON'T HAVE
5 TO TRAVEL TO LOGAN. NOW, THIS IS VERY SIGNIFICANT,
6 ATTEMPTED TO NOTIFY DR. DIENHART AS OF 10 A.M, HE'S NOT
7 RETURNED THE PAGE. WILL TRY AT HOME IN ORDER TO NOTIFY OF
8 PATIENT'S CONDITION. M.R.I. RESULTS.
9 NOW, LADIES AND GENTLEMEN, I WANT YOU TO ASK
10 YOURSELVES, DO YOU REALLY THINK IN THIS SETTING UNDER THESE
11 CIRCUMSTANCES THAT DR. WEITZEL IS SOMEHOW MURDERING PEOPLE,
12 MUCH LESS MURDERING ENNIS ALLDREDGE GIVEN THE FACT THAT
13 DR. DIENHART IS BEING NOTIFIED OF THIS GENTLEMAN'S CONDITION
14 BY MR. CHAMBERS? AND, IN FACT, IF YOU GO RIGHT DOWN HERE,
15 MS. COZZENS LATER INDICATES THAT SHE IN FACT TALKED TO
16 DR. DIENHART AND THE FAMILY. I ASK YOU TO LOOK AT THIS
17 RECORD. IT'S PREPOSTEROUS TO THINK THAT DR. WEITZEL SOMEHOW
18 IN THIS CONTEXT WITH EVERYBODY LOOKING AT WHAT WAS GOING ON,
19 HAVING ACCESS TO ALL THE CHARTS, EVERYBODY BEING AWARE OF
20 THE PATIENT'S CONDITION, THAT SOMEHOW HE WAS DOING SOMETHING
21 IMPROPER OR INAPPROPRIATE.
22 I THINK IT'S MUCH MORE PLAUSIBLE THAT EVERYBODY WAS ON
23 BOARD BECAUSE YOU WON'T SEE ANYTHING REFLECTED IN THE CHARTS
24 SUGGESTING OTHERWISE. AND, IN FACT, YOU REALLY HAVEN'T
25 HEARD ANY TESTIMONY LIKE THAT FROM ANYONE ELSE. AND, IN
4453
1 FACT, THE ONLY TESTIMONY YOU'VE HEARD FROM THE NURSES IS --
2 AND I'LL EXPLAIN NURSE HARDEY'S CIRCUMSTANCE LATER -- IS
3 WHEN THEY ARE ASKED, DID YOU BELIEVE YOU WERE CAUSING OR
4 CONTRIBUTING TO THE DEATH BY INJECTING MORPHINE? I ASKED A
5 NUMBER OF THE WITNESSES INCLUDING MS. COZZENS, THE ANSWER
6 WAS NO. AND THE REASON WHY? BECAUSE THEY ALL KNEW THAT, IN
7 THIS CASE, MR. ALLDREDGE WAS DYING. HE WAS DYING OF A
8 STROKE. AND IT IS TOTALLY APPROPRIATE TO START MORPHINE
9 ROUND-THE-CLOCK AND ATIVAN AS COMFORT CARE.
10 THEN IF YOU GO OVER HERE AS FURTHER CONFIRMATION OF
11 THAT THIS IS ANOTHER NOTE BY NURSE WILLSON AND WHAT DOES SHE
12 SAY? PLEASE SEE DR. WEITZEL'S NOTE ABOVE RE: M.R.I.
13 RESULTS. THE PATIENT'S CARE PLAN HAS BEEN AMENDED TO
14 REFLECT DEATH AND DYING ISSUES. THE PATIENT WISHES TO
15 EXPERIENCE A PEACEFUL DEATH FREE OF DISCOMFORT. MORPHINE
16 AND ATIVAN INTRAMUSCULARLY ARE BEING PROVIDED EVERY THREE
17 HOURS AROUND-THE-CLOCK TO ASSURE PATIENT'S COMFORT. I'D
18 SUBMIT, LADIES AND GENTLEMEN, SHE NEVER WOULD HAVE WRITTEN
19 THAT IF SHE DIDN'T BELIEVE THAT OF THE CASE AND SHE DIDN'T
20 BELIEVE THAT WAS ABSOLUTELY APPROPRIATE.
21 THE MEDICAL HISTORY OF LYDIA SMITH. LOOK AT WHAT
22 DR. SOUTHWORTH TOLD YOU. THIS IS A TREATING PHYSICIAN. HE
23 HAS NO REASON NOT TO TELL IT LIKE IT IS AND I THINK HE ALSO
24 WAS A PRETTY IMPRESSIVE WITNESS. IN ADDITION TO HER
25 CORONARY DISEASE AND CONGESTIVE HEART FAILURE DIAGNOSIS, SHE
4454
1 HAD A DIAGNOSIS OF CEREBRALVASCULAR DEMENTIA WHICH REFERS TO
2 CONFUSION AND MENTAL STATUS CHANGES BASED ON INADEQUATE
3 BLOOD FLOW TO THE BRAIN AND POSSIBLY EVEN SMALL STROKES.
4 THIS IS WHAT IS REFERRED TO IN NOVEMBER. I THOUGHT SHE MAY
5 ONLY HAVE A FEW DAYS AT THAT TIME, SHE WAS 90 YEARS OLD AND
6 HAD VERY POOR HEALTH, AND THIS IS HER CIRCUMSTANCE AS SHE'S
7 COMING IN. AND REMEMBER, LADIES AND GENTLEMEN, I THINK
8 EVERY PHYSICIAN HAS TESTIFIED GIVEN THE NATURE OF THE AGE OF
9 THIS GROUP, GIVEN THE NATURE OF THEIR MEDICAL HISTORY, I
10 THINK EVERYBODY RECOGNIZED ACUTE EVENTS COULD OCCUR AT ANY
11 MOMENT AND, IN FACT, IN THIS SITUATION DID.
12 NOW, ONCE AGAIN, THIS IS WHERE THE FAMILY WAS AT THE
13 TIME STARTING -- WE'RE GETTING TIRED OF ALL THIS, BUT WE TRY
14 OUR BEST, AND YOU KNOW WHAT I WANTED TO SAY? I THINK THIS
15 CASE HAS HAD A LOT OF ANGUISH FOR THESE FAMILIES BECAUSE I
16 THINK THEY WERE IN A VERY DIFFICULT SPOT. BECAUSE OBVIOUSLY
17 YOUR LOVED ONES WHEN THEY BECOME UNCONTROLLABLE, THEY HAD
18 BEEN ESSENTIALLY KICKED OUT OF THE NURSING HOME. THEY WERE
19 SENT TO THE HOSPITAL TO TRY AND MANAGE THAT BEHAVIOR. AND,
20 QUITE FRANKLY, I THINK GIVEN ALL THE CIRCUMSTANCES, THE
21 OPTIONS ARE PRETTY LIMITED AT THAT POINT. AND WHEN I SEE
22 THIS -- I JUST POINT IT OUT BECAUSE I THINK THAT IT'S A VERY
23 REALISTIC ASSESSMENT OF PERHAPS WHERE THAT FAMILY WAS GIVEN
24 THE NATURE OF THE CIRCUMSTANCES.
25 BUT ANYWAY, YOU WON'T SEE ANYTHING -- I'LL TELL YOU
4455
1 RIGHT NOW YOU CAN LOOK AT THOSE NURSES RECORDS FROM COVER TO
2 COVER, YOU AREN'T GOING TO SEE ANYTHING THAT WOULD SUGGEST
3 THAT LYDIA SMITH IS SUPPOSEDLY WILDLY SEDATED, OVERSEDATED,
4 COMPROMISED IN ANY WAY, SHAPE OR FORM UNTIL BASICALLY YOU
5 GET TO THE EVENT OF THE 5TH AND THE 6TH WHEN CLEARLY THERE'S
6 A MATERIAL CHANGE IN HER MEDICAL CONDITION.
7 AND, YOU KNOW, DR. WEITZEL TESTIFIED ABOUT THE
8 MEDICATION REGIMEN. WELL, HERE IT IS. NOW, IT ISN'T THESE
9 LITTLE LOZENGES. IT ISN'T THESE LITTLE LOZENGES THAT ARE
10 STACKED ON ONE ANOTHER. YOU KNOW, SOMETIMES THEY ARE A
11 HALF, SOMETIMES THEY ARE A FOURTH, IT SIMPLY LISTS SOME
12 PROGRESSION HERE. THIS IS ACTUALLY WHAT SHE GOT. I SUGGEST
13 YOU ARE NOT GOING TO SEE A MATERIAL CHANGE IN THIS UNTIL YOU
14 HAVE A SITUATION WHERE THE FAMILY HAS BECOME CONCERNED AND
15 RIGHTLY SO. ON THE WAY THE FAMILY IS CONCERNED, YOU KNOW
16 WHAT? YOU ARE NOT TAKING CARE OF THE AGGRESSION, YOU ARE
17 NOT TAKING CARE OF THE PROBLEM. AND GUESS WHAT? IF YOU
18 CAN'T, WE CAN'T PLACE HIM IN OUR HOSPITAL. IT'S A REAL
19 PROBLEM. AND SO THERE'S SOME ADJUSTMENT OF THE MEDICATIONS.
20 AND YOU MIGHT RECALL DR. CROOKSTON, HE EVEN ADMITTED
21 RIGHT ON THE STAND HIS REPORT. HE SAID DR. WEITZEL TRIED TO
22 ADJUST JUDITH LARSEN'S MEDICATIONS, YOU KNOW, AS HER
23 BEHAVIOR CHANGED. THIS IS NOT SOME WILD REGIMEN OF
24 PSYCHOTROPIC DRUGS, IT JUST ISN'T AND THE RECORDS DON'T
25 REFLECT THAT. SO THERE'S A CHANGE.
4456
1 AND THEN FINALLY, AS WE INDICATE -- AS INDICATED ON THE
2 7TH, THERE'S A VERY SERIOUS CHANGE IN HER BEHAVIOR AND
3 DR. WEITZEL BELIEVES THAT SHE IS DYING. AND SHE'S DYING
4 BASICALLY BECAUSE SHE IS NOT RESPONSIVE, SHE HAS NO URINE
5 OUTPUT. AND REMEMBER, THIS IS A WOMAN THAT JUST SIX WEEKS
6 AGO -- OR ACTUALLY EIGHT WEEKS AGO ALMOST DIED FROM A SEVERE
7 STROKE. THIS IS A WOMAN THAT IS COMPROMISED BY THREE
8 DIFFERENT HEART AILMENTS. THIS IS A WOMAN WHO IS 90 YEARS
9 OLD. IT IS CERTAINLY REASONABLE FOR A PHYSICIAN TO MAKE A
10 JUDGMENT, GIVEN COMPLETE UNRESPONSIVENESS AT THIS POINT AND
11 THE FACT THAT SHE'S NO LONGER FUNCTIONING IN HER KIDNEYS, TO
12 THINK THAT SHE'S DYING.
13 THERE IS A CONVERSATION WITH THE FAMILY. AND ONCE
14 AGAIN, IT'S ALL DOCUMENTED RIGHT HERE, VERY WEAK, NOT TAKING
15 ANY NOURISHMENT, NO URINE OUTPUT, FAMILY DISCUSSION WITH TWO
16 SONS AND DAUGHTERS RE: THEY DON'T WANT HER LIFE PROLONGED,
17 BUT ARE READY TO LET HER GO. AT TIMES SHE SEEMS TO BE IN
18 PAIN AND ANXIETY. ASSESSMENT: QUITE ILL. PLAN: HOLD
19 OTHER MEDICATIONS OR HOLD MEDICATIONS. MORPHINE
20 ROUND-THE-CLOCK. AND THAT'S EXACTLY WHAT HAPPENED AND
21 THAT'S CONSISTENT WITH THE FAMILY WISHES. AND, YOU KNOW, IF
22 YOU LOOK AT THESE CHARTS, YOU ARE GOING TO SEE SOMETHING IN
23 THE NURSES' NOTES WHICH I THINK IS PRETTY IMPORTANT.
24 FOR EXAMPLE, IN MR. ALLDREDGE'S CASE. THE FAMILY IS
25 THERE FROM THE 13TH, FROM THE TIME THAT THE MORPHINE IS
4457
1 STARTED UNTIL THE END. AND THE NURSES CHART THAT THE FAMILY
2 AT ONE POINT ON THE 14TH, I BELIEVE IT IS, RIGHT AT HIS
3 BEDSIDE BASICALLY ASKING HIM TO LET GO, WHICH I THINK IS
4 SIGNIFICANT 'CAUSE DR. WEITZEL SAID THE FAMILY WERE ALL ON
5 BOARD. I WOULD SUBMIT, IF YOU LOOK AT THOSE NURSES' NOTES
6 AND YOU LOOK AT WHAT THE FAMILY'S BEHAVIOR IS AS CHARTED BY
7 THE NURSES AT THE TIME, I THINK IT'S CONSISTENT THAT THEY
8 WERE ON BOARD. AND I THINK PERHAPS APPROPRIATELY SO GIVEN
9 THE CIRCUMSTANCES OF WHAT THEY FACE.
10 AND SIMILARLY, IF YOU LOOK AT THE -- AS I POINTED OUT
11 IN A NUMBER OF EXAMPLES WITH PATIENT JUDITH LARSEN -- YOU
12 SEE SIMILAR SITUATIONS. AND YOU HEARD THE TESTIMONY OF
13 MR. LARSEN. HE COULDN'T FIND ANY PLACE TO PUT HIS MOM SO HE
14 TALKED TO DR. WEITZEL AND DR. WEITZEL SAID, WELL, OKAY, WE
15 CAN BEND THE RULES, I'LL KEEP HER HERE, I'LL KEEP HER
16 COMFORTABLE. HOW DID HE CHARACTERIZE THAT? DID HE SAY THIS
17 WAS A TERRIBLE THING? DID HE SAY, GEE, DR. WEITZEL, DID YOU
18 DO SOMETHING WRONG? HE SAID, NO, HE THOUGHT IT WAS KINDLY
19 AND HE THOUGHT DR. WEITZEL WAS QUITE EMPATHETIC IN THIS
20 CASE. HIS POSITION -- IN THIS SITUATION YOU HAVE A SIMILAR
21 THING, THE PATIENT'S FAMILY ALL HERE, THERE IS A MEETING
22 CALLED BY DR. WEITZEL, THEY ARE ALL THERE, THEY HAVE A
23 DISCUSSION. NOT ONLY DO THEY HAVE A DISCUSSION, BUT THIS
24 VERY NIGHT, THIS VERY DAY, KENT SMITH, LYDIA'S SON, FILLS
25 OUT THE MEDICAL DIRECTIVES AND YOU'LL SEE THE MEDICAL
4458
1 DIRECTIVES UNDER THE MEDICAL/LEGAL PART IN THIS CHART, GUESS
2 WHAT? THERE IS NOTHING. THERE'S NOTHING THAT HE WANTS DONE
3 IN THOSE MEDICAL DIRECTIVES. NOT A THING.
4 NOW, ONCE AGAIN, YOU LOOK AT THIS PHYSICIAN. YOU'VE
5 HEARD WHAT DUTIES HE HAS. YOU ARE THINKING ABOUT THE
6 CIRCUMSTANCE IF WE'RE NOT GOING TO FEED LYDIA SMITH, IF
7 WE'RE NOT GOING TO GIVE HER ANY FLUIDS, IF WE'RE NOT GOING
8 TO DO ANYTHING TO TRY TO TAKE CARE OF THIS WOMAN, WHAT AM I
9 GOING TO DO AS A DOCTOR? I'LL TELL YOU WHAT I'M GOING TO
10 DO, THAT'S EXACTLY WHAT HE DID. I'M GOING TO KEEP HER
11 COMFORTABLE. AND I'M GOING TO TELL THE FAMILY I'M GOING TO
12 KEEP HER COMFORTABLE. AND HOW DO YOU KEEP HER COMFORTABLE?
13 ROUND-THE-CLOCK MORPHINE, WHICH IS EXACTLY WHAT HAPPENED
14 HERE. AND I WOULD SUBMIT, ONCE AGAIN, THAT CERTAINLY IS NOT
15 MURDER, BUT CERTAINLY IS MERCY.
16 AND THEN FINALLY YOU HAVE, ONCE AGAIN, ANOTHER LAURIE
17 WILLSON NOTE. SHE DOESN'T HAVE TO WRITE THIS. THIS IS
18 WRITTEN AT THE TIME. AND IF SHE DIDN'T BELIEVE IT WAS THE
19 CASE, I'M SURE SHE WOULDN'T HAVE WRITTEN IT. YOU SAW HER,
20 YOU HEARD THE TESTIMONY, PATIENT'S PHYSICAL CONDITION IS
21 MARKEDLY DETERIORATED, SHE WAS UNABLE TO SWALLOW FOOD, FLUID
22 OR MEDICATION, SHE'S NOT VISUALLY RESPONSIVE TO THE
23 ENVIRONMENT, SHE DEMONSTRATES NO REGRESSED REFLEXES OF
24 GRABBING. AND SHE GOES ON TO SAY THE CARE PLAN HAS BEEN
25 CHANGED TO REFLECT PATIENT AND FAMILY NEEDS AROUND DEATH AND
4459
1 DYING ISSUES. THAT'S NOT DR. WEITZEL WRITING THAT, THAT WAS
2 LAURIE WILLSON.
3 MARY CRANE, HER HISTORY I THINK IS SIGNIFICANT. ONCE
4 AGAIN THESE ARE EXHIBITS, YOU'LL HAVE THEM, YOU CAN SEE
5 THAT. WHAT I THINK IS SIGNIFICANT IS THE COTTONWOOD -- OR
6 THE ALTA VIEW HOSPITAL ADMISSION ON MARCH OF 1994. AND YOU
7 RECALL, I THINK, BOTH KAREN BRINGHURST TESTIFIED AND ALSO
8 DR. STUBBS THAT SHE ROUTINELY AND CHRONICALLY HAD URINARY
9 TRACT INFECTIONS AND WHEN YOU ARE ELDERLY AND THEY ARE NOT
10 TREATED, THOSE CAN BE TERMINAL EVENTS. I THINK YOU'VE HEARD
11 TESTIMONY TO THAT EFFECT.
12 THIS PARTICULAR ONE THEY WERE CONCERNED AT THAT POINT
13 THAT SHE WAS GOING TO BECOME SEPTIC AND THEY WOULD RULE IT
14 OUT. THIS WAS A CONCERN BACK IN '94, WHICH I'LL SUBMIT IS
15 THE VERY SAME THING THAT HAPPENED TO HER IN '96 AT THE
16 HOSPITAL. THE OTHER THING IS IT'S INTERESTING IF YOU -- IF
17 YOU LOOK AT THE RECORD THERE, SHE GOT 5 MILLIGRAMS OF
18 MORPHINE FOR HEADACHES IN THAT ADMISSION. AND I JUST THINK
19 THAT'S SIGNIFICANT IN LIGHT OF ALL THE TESTIMONY YOU'VE
20 HEARD ABOUT MORPHINE AND WHAT LEVELS ARE APPROPRIATE AND
21 WHAT LEVELS AREN'T APPROPRIATE. BUT THAT'S WHAT SHE GOT,
22 IT'S IN THE RECORD, YOU'LL SEE THAT FOR HEADACHES. OKAY. I
23 THINK THAT'S SIGNIFICANT.
24 ONCE AGAIN, I FOCUS MORE ON THE INITIAL ADMISSION OF
25 MARY CRANE. BUT I THINK COUNSEL QUITE RIGHT EXPLAINED THE
4460
1 CIRCUMSTANCES OF HER DEATH. SHE DIED FROM SEPSIS. SHE
2 DIDN'T DIE FROM MORPHINE. I THINK COUNSEL ALMOST CONCEDED
3 THAT. BUT HE'S SAYING, WELL, WAIT A MINUTE. I GUESS THE
4 STATE'S THEORY IS THAT SOMEHOW WHAT HAPPENED BEFORE THAT
5 CAUSED THE SEPSIS. THINK ABOUT THAT. SOMEHOW THE PSYCH MED
6 IS GOING TO CAUSE A BACTERIAL PROBLEM IN THE BLOOD. YOU
7 HAVEN'T HEARD ONE DOCTOR, NOT ONE EXPERT SAY THAT HAPPENED,
8 BECAUSE, QUITE FRANKLY, IT'S MEDICALLY IMPOSSIBLE. IT
9 DOESN'T HAPPEN.
10 AND THE CARE SHE RECEIVED, YOU KNOW, IT'S KIND OF LIKE
11 ENNIS ALLDREDGE ON THE 12TH. DR. WEITZEL, BECAUSE HE'S
12 DEHYDRATED, GIVES HIM AN I.V. AND ON THE 13TH HE
13 DISCONTINUES THAT BECAUSE OF THE STROKE EVENT AND HIS
14 CONVERSATION WITH THE FAMILY. WELL, IT'S THE SAME THING
15 HERE. I MEAN, IF YOU LOOK AT WHAT DR. WEITZEL WAS DOING,
16 ONCE THEY FIND OUT THERE IS A FISTULA WHICH IS ON THE 1ST I
17 THINK WE'RE ALL IN AGREEMENT WITH THAT, THEN DR. WEITZEL IS
18 THE ONE WHO SAYS WELL, WAIT A MINUTE, WE BETTER HAVE THE
19 GYNECOLOGIST COME IN AND DO THE EXAM AND CHECK IT OUT. AND
20 THE GYNECOLOGIST COMES IN ON THE 2ND. DR. MEEKS. AND IF
21 YOU REMEMBER DR. MEEKS' TESTIMONY, HE TESTIFIED HERE. WHAT
22 DID HE SAY? I ASKED HIM SPECIFICALLY, WHY ARE YOU REFERRING
23 TO 25 TO 35 PERCENT PROBABILITY OF SPONTANEOUSLY HEALING
24 WITH THE BROAD-SPECTRUM ANTIBIOTIC AND WHAT WAS YOUR
25 CONCERN? INFECTION. OBVIOUSLY THIS CAN BE A VERY, VERY BIG
4461
1 PROBLEM IN TERMS OF INFECTION. SO WHAT HAPPENS?
2 DR. WEITZEL, IF I'LL TELL YOU -- IT PROBABLY ISN'T ON HERE.
3 BUT I'LL TELL YOU IT'S IN THE RECORD. THERE'S A
4 RECOMMENDATION THAT SHE ALSO BE GIVEN A SPECIAL DIET WHICH
5 DR. WEITZEL ORDERS ON THE 3RD RIGHT THERE IN THE PROGRESS
6 NOTE. SO HE'S DOING WHAT THE GYNECOLOGIST SAYS AND
7 BASICALLY HE SAYS DR. DIENHART BECAME AWARE OF THE PROBLEM.
8 AND SO NURSE LONG -- IT'S RIGHT THERE IN THE PROGRESS
9 NOTES. SHE NOTIFIES ON THE 3RD DR. DIENHART AND GUESS WHAT?
10 DR. DIENHART IS M.I.A., HE SHOWS UP HERE. WELL,
11 DR. WEITZEL, YOU HEARD HIS TESTIMONY, HE LOOKS AT THIS, HE
12 SAYS, WELL, I GUESS YOU KNOW THE INTERNAL MEDICINE GUY ISN'T
13 GOING TO TAKE CARE OF THIS. I BETTER. SO HE'S THE ONE ON
14 THE 5TH -- AND YOU SEE IT, HE'S THE ONE THAT ACTUALLY ORDERS
15 KEFLEX WHICH IS A BROAD-SPECTRUM ANTIBIOTIC CONSISTENT WITH
16 WHAT THE GYNECOLOGIST SAID. HOW IS THAT CONSISTENT, LADIES
17 AND GENTLEMEN, WITH SOMEHOW COMPROMISING THIS PATIENT? HOW
18 IS ANYTHING THAT HE DID FOR THIS PATIENT CONSISTENT WITH
19 DOING THAT WHEN HE'S THE ONE THAT'S DOING THE ANTIBIOTICS,
20 WHEN HE'S THE ONE THAT PUTS THE SPECIAL DIET IN PLACE, AND
21 HE'S THE ONE THAT'S TRYING TO TAKE CARE OF THE PROBLEM?
22 BECAUSE DR. DIENHART, QUITE FRANKLY, ISN'T.
23 AND, YOU KNOW, HE GETS TO THIS DATE. YOU KNOW, WE HAVE
24 DR. DIENHART AGREEING SHE'S DYING. WE HAVE NURSE COZZENS
25 AGREEING SHE'S DYING. AND THIS IS ALL IN THE AFTERNOON.
4462
1 THE MORPHINE DOESN'T EVEN START UNTIL 8 O'CLOCK AT NIGHT AND
2 SO IT'S TOTALLY CONSISTENT WITH SHE'S DYING BECAUSE OF
3 SEPSIS. YOU HEARD DR. DIENHART SAY THAT BASICALLY EVEN IF
4 HE TOOK THE EXTRAORDINARY MEASURES THAT HE THOUGHT HE MIGHT
5 BE ABLE TO TAKE IT. OTHERWISE DIRECTIVES ALLOWED HIM TO DO
6 SO. HE THINKS THEY SHOULD SAVE HER ANYWAY.
7 AND BASICALLY SO WHAT DOES DR. WEITZEL DO? HE TALKS TO
8 THE FAMILY, ONE OF WHICH IS A NURSE AND HE SAYS, I CAN KEEP
9 YOUR MOM COMFORTABLE. AND YOU KNOW WHAT? ONCE AGAIN, ARE
10 YOU GOING TO LET A 72-YEAR-OLD WOMAN WHO'S BASICALLY
11 SYSTEMATICALLY INVOLVED WITH INFECTION, A KILLER INFECTION,
12 SHE'S SPIKING UP RIGHT THERE, IF SHE'S SPIKING 103 FEVER AS
13 A RESULT OF HER INFECTION, HER WHITE BLOOD COUNT IS 15,000
14 WHEN THE NORMAL IS, TEN. SHE'S GOING TO DIE FROM IT. AND
15 THIS PHYSICIAN ISN'T SUPPOSED TO DO SOMETHING ABOUT IT?
16 THIS PHYSICIAN ISN'T SUPPOSED TO KEEP HER COMFORTABLE? AND
17 THIS PHYSICIAN ISN'T GOING TO GIVE HER MORPHINE? I WOULD
18 SAY IT WOULD BE ABSOLUTELY WRONG NOT TO DO SO.
19 AND THE DUTY, AS YOU'LL BE INSTRUCTED, OF A PHYSICIAN
20 IS TO DO PRECISELY THAT AT THE DYING PROCESS AND THE DYING
21 STAGE AND TO PROVIDE COMFORT CARE. AND THAT'S EXACTLY WHAT
22 HE DID. AND YOU HEARD HIS TESTIMONY ABOUT WHAT HE TOLD
23 KAREN BRINGHURST. AND REMEMBER, ONCE AGAIN, THESE ARE
24 CONVERSATIONS THAT GO BACK FIVE YEARS. I'M SURE EVERYBODY
25 HAS THE BEST INTENTIONS ABOUT WHAT THEY REMEMBER AND WHAT
4463
1 THEY DON'T REMEMBER, BUT, YOU KNOW, THIS IS AN INSTRUCTION
2 THAT YOU WILL GET AND IT WILL SAY THAT A PHYSICIAN CAN GIVE
3 MEDICATION IN END-OF-LIFE CARE, EVEN IF IT HASTENS DEATH OR
4 EVEN IF HE KNOWS IT MAY HASTEN DEATH, IF THE INTENT AND THE
5 PURPOSE IS TO DEAL WITH THE PAIN AND DEAL WITH THE SUFFERING
6 AND DEAL WITH THE SYMPTOMS, AND THAT'S EXACTLY WHAT WAS
7 GOING ON HERE.
8 NOW, IN TERMS OF THE ACTUAL MORPHINE -- AND NOW THIS IS
9 REALLY WHAT THE STATE WANTS YOU TO BELIEVE. THEY WANT YOU
10 TO BELIEVE, YOU KNOW, IT WAS SO MUCH MORPHINE ON BOARD AS A
11 MECHANISM OF DEATH, THE ACT OF DEATH. IT DID IT. WELL,
12 REMEMBER WHAT THE TESTIMONY'S BEEN IN THIS TRIAL. I TOLD
13 YOU ABOUT DR. FEHLAUER. HE CAME IN HERE AND HE TRIED TO SAY
14 2.5 IN THE GERIATRIC DOSAGE HANDBOOK. I CAUGHT HIM ON THAT.
15 IT'S REALLY 2.5 TO 5. BUT THEN YOU REMEMBER DR. HARE THERE
16 ON THE STAND, WHAT DID HE SAY AT THE PRELIMINARY HEARING?
17 AND I WROTE THIS DOWN BECAUSE I KNEW IT WOULD COME TO THIS
18 POINT. REMEMBER ON THE HALF LIFE, I HAD HIM EXPLAIN HALF
19 LIFE AND THEN THIS IS WHAT HE SAID. A NORMAL THERAPEUTIC
20 RANGE OF MORPHINE IS 2.5 TO 10 MILLIGRAMS. DR. HILL SAID A
21 USUAL DOSE IS 10 MILLIGRAMS. WELL, IF YOU LOOK AT WHAT
22 EVERYBODY GOT IN TERMS OF DOSING AND YOU THINK ABOUT IT IN
23 TERMS OF FOUR TO SIX HOURS AND YOU USE EVERY FOUR HOURS AS A
24 DOSING REGIMEN, LOOK AT WHAT WE'RE TALKING ABOUT. THAT
25 COULD BE 60 MILLIGRAMS A DAY. AND, ONCE AGAIN, I'M SAYING
4464
1 THIS RECOGNIZING -- AND I KNOW YOU KNOW THIS -- EVERY
2 PHYSICIAN HAS SAID THAT YOU CAN'T REALLY DO IT THIS WAY.
3 YOU HAVE TO TREAT THE INDIVIDUAL PATIENT. YOU HAVE TO MAKE
4 A CLINICAL ASSESSMENT, YOU HAVE TO MAKE A CLINICAL JUDGMENT,
5 BUT FORGET ALL OF THAT. LET'S JUST DEAL WITH THE NUMBERS.
6 OKAY. LYDIA SMITH, 60 MILLIGRAMS PER DAY. WHAT DID
7 SHE GET? WELL, ON 1/7 GOT 5 MILLIGRAMS. ON 1/8 SHE GOT 30
8 MILLIGRAMS, WELL WITHIN ANY NORMAL DOSING RANGE.
9 MR. ALLDREDGE, 60 MILLIGRAMS PER DAY. HE GOT 60
10 MILLIGRAMS ON THE 13TH, HE GOT 40 MILLIGRAMS ON THE 14TH.
11 ONCE AGAIN, WELL WITHIN A NORMAL RANGE. MARY CRANE, 8
12 MILLIGRAMS ON THE 3RD, 5 MILLIGRAMS ON THE 4TH,
13 10 MILLIGRAMS ON THE 5TH. AND BY THE WAY, SOME OF THESE ARE
14 P.R.N. AND 10 MILLIGRAMS ON THE 7TH, WELL WITHIN ANY NORMAL
15 DOSING RANGE.
16 AND JUDITH LARSEN, WE HAVE THE -- BY THE WAY, BOTH OF
17 THESE DAYS, IF YOU LOOK AT THE NURSES' NOTES, AND I THINK I
18 BROUGHT THIS OUT ALREADY IN THE TESTIMONY, BUT REMEMBER ON
19 THE 25TH HOW THE NURSE REFERRED TO THAT SHE SAID HOW
20 BASICALLY ALERTNESS INCREASED THROUGHOUT THE DAY AND
21 BASICALLY THAT WAS A POSITIVE THING AS FAR AS WHAT THE NURSE
22 CHARTED. AND ON THE ONE WAS SHEILA HANSEN WHO CHARTED THIS.
23 I LOOK AT HER NOTE. SHE SAID SHE APPEARED TO BE IN
24 DISCOMFORT, MORPHINE WAS GIVEN AT THIS POINT. AND THEN
25 LATER ON IN THE SHIFT -- I CAN'T REMEMBER PRECISELY THE
4465
1 TIME -- SHE SAID APPEARED TO HAVE HELPED HER BECAUSE SHE NO
2 LONGER APPEARS IN DISCOMFORT. 30, 15. WELL, WITHIN NORMAL
3 RANGE. 31ST, 35, WELL WITHIN THE NORMAL RANGE. THE 1ST,
4 45, WELL WITHIN THE NORMAL RANGE. THE 2ND, 35, WELL WITHIN
5 THE NORMAL RANGE. NOW THIS IS THE ONLY DAY. THIS IS THE
6 ONLY DAY OF ANY OF THESE PATIENTS WHERE YOU CAN ARGUE
7 SOMEBODY GOT MORE THAN WOULD BE A NORMAL RANGE. REMEMBER
8 WHAT I SAID, THIS IS JUST A GUIDELINE.
9 BUT, YOU KNOW, YOU HEARD THE TESTIMONY ABOUT THIS. AND
10 YOU HEARD DR. WEITZEL TELL YOU WHY HE DID THAT. AND HE TOLD
11 YOU, IF YOU REMEMBER, THAT HE WAS CONCERNED BECAUSE WHEN HE
12 CAME IN THAT MORNING, THAT JUDITH LARSEN APPEARED TO BE IN
13 PAIN BECAUSE SHE HADN'T GOTTEN ANY MORPHINE ABOUT I THINK 12
14 HOURS FROM THE NIGHT BEFORE. AND HE TOLD YOU ABOUT THE
15 DIFFICULTIES OF CONTROLLING PAIN. IT'S A LOT HARDER TO GET
16 CONTROL THAN REGAIN CONTROL. AND SO HE HAD TO INCREASE HER
17 DOSES TO TRY TO DO THAT. AND YOU REMEMBER DR. HILL TOLD YOU
18 THAT THAT IS EXACTLY RIGHT, THAT IF ONE, YOU LOSE CONTROL OF
19 THE PAIN, YOU HAVE TO INCREASE THE DOSES TO TRY TO GET
20 CONTROL OF THE PAIN. REMEMBER SOMETHING ELSE, TOO, YOU
21 KNOW, HE HAS A COMMITMENT. AND I THINK THIS IS CONSISTENT
22 WITH WHAT MR. LARSEN TOLD YOU. HE HAS TOLD MR. LARSEN THAT
23 HE'S GOING TO KEEP JUDITH COMFORTABLE. IT'S KIND OF A
24 COMMITMENT HE HAS. AND, YOU KNOW, WHEN HE COMES IN ON THE
25 3RD AND HE SEES THAT SHE'S NOT COMFORTABLE, BUT IN FACT
4466
1 SHE'S GROANING AND THAT SHE'S IN PAIN, I THINK HE WOULD FEEL
2 AN OBLIGATION TO MAKE SURE HE TRIED TO DEAL WITH THAT AND
3 DEAL WITH IT THE WAY HE DID. AND THAT'S WHY YOU HAVE THE
4 INCREASED DOSES SHOWING ON THE 3RD AND HE TOLD YOU WHY THAT
5 WAS. BUT OTHER THAN THAT, EVERY OTHER EXAMPLE IN THIS CASE
6 IS WELL WITHIN THE RANGE OF 60 MILLIGRAMS PER DAY DOSING
7 LEVEL OF MORPHINE.
8 MR. STIRBA: YOUR HONOR, WOULD THIS BE A GOOD TIME
9 TO BREAK.
10 THE COURT: YES. LADIES AND GENTLEMEN, DURING THIS
11 BREAK IT'S YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES OR
12 CONVERSE WITH OR ALLOW YOURSELF TO BE ADDRESSED BY ANY OTHER
13 PERSON ON THE SUBJECT OF THE TRIAL. NOT FORM OR EXPRESS AN
14 OPINION UNTIL THE CASE IS FINALLY SUBMITTED TO YOU. WHY
15 DON'T WE COME BACK AT TEN AFTER TWO.
16 (COURT IN RECESS.)
17 THE COURT: PLEASE BE SEATED. THE RECORD WILL
18 REFLECT THAT THE JURY HAS RETURNED. MR. STIRBA, IF YOU LIKE
19 TO GO AHEAD.
20 MR. STIRBA: THANK YOU, YOUR HONOR. I TOLD YOU IN
21 THE OPENING STATEMENT THAT WE THINK ONE OF THESE CASES IS
22 DIFFERENT THAN THE OTHERS AND THAT'S THE SITUATION WITH
23 ELLEN ANDERSON. THAT IS A PAIN CASE, PURE AND SIMPLE. IT'S
24 NOT AN END-OF-LIFE CARE CASE. AND COUNSEL TOLD US -- TOLD
25 YOU IN THE OPENING PART OF THE SUMMATION ABOUT THE PIONEER
4467
1 CARE RECORDS AND WHAT THEY SHOW CONCERNING LORTAB. I NEED
2 TO CLARIFY THAT.
3 IF YOU LOOK AT THE HOSPITAL RECORDS OR WHAT DR. WEITZEL
4 WOULD HAVE HAD AVAILABLE TO HIM, THERE'S A VERY SMALL AMOUNT
5 OF NURSING HOME RECORDS IN THERE. BUT THERE'S THE ORDER FOR
6 LORTAB AND THERE'S ALSO AN ORDER FOR NITROSTAT FOR CHEST
7 PAIN. THE HISTORY THAT COUNSEL IS REFERRING TO AT THE
8 NURSING HOME ISN'T PART OF THE DAVIS HOSPITAL RECORD. THAT
9 WOULD NOT HAVE BEEN SOMETHING THAT DR. WEITZEL WOULD EVEN
10 KNOW ABOUT. WHAT HE DID KNOW IS WHAT THE NURSES PUT IN
11 THERE ON THEIR NURSING ASSESSMENT FORM THAT SHE WAS
12 RECEIVING LORTAB FOR PAIN AND ALSO NITROSTAT FOR CHEST PAIN.
13 BASICALLY YOU FOLKS KNOW THE FACTS FAIRLY WELL. AND
14 YOU HEARD LAURIE WILLSON TESTIFY ABOUT WHAT SHE TOLD
15 DR. WEITZEL AT THIS POINT, 7:30 ON THE 29TH. AND SHE DOES
16 CHART, IN FACT, SEVERE PAIN. AND SHE THOUGHT IT WAS
17 APPROPRIATE AND SHE DIDN'T HAVE ANY PROBLEMS GIVING IT AND
18 THAT'S WHAT SHE TOLD THE PHYSICIAN. AND MORPHINE, WHICH IS
19 A MEDICATION FOR SEVERE PAIN, WAS ORDERED AND GIVEN.
20 NOW IN TERMS OF WHAT HAPPENED LATER, THIS IS WHAT
21 ACTUALLY NURSE SCHOLL'S CHARTED, YOU'LL SEE THAT, BEING AN
22 ATTEMPT TO THROW BODY, PATIENT MOANING AND SCREAMING,
23 DR. WEITZEL PAGED AGAIN. DO YOU REMEMBER, THOUGH, WHAT SHE
24 SAID IN HER TESTIMONY? SHE SAID ON CROSS-EXAMINATION SHE
25 SAID SHE TOLD DR. WEITZEL THAT MS. ANDERSON WAS IN SEVERE
4468
1 PAIN ON THE PHONE. AND SHE DIDN'T CHART IT BECAUSE THAT'S
2 WHAT SHE SAID SHE TOLD HIM AT THAT TIME. SO GIVEN THE FACTS
3 THAT HE WAS AWARE OF AT THE TIME, GIVEN HER PAIN HISTORY AND
4 GIVEN THE CIRCUMSTANCES, ANOTHER 10 MILLIGRAMS OF MORPHINE
5 WAS ORDERED TO BE GIVEN. AND IF YOU LOOK AT THIS CASE,
6 LADIES AND GENTLEMEN, CERTAINLY WE'VE ALREADY GONE OVER
7 CAUSATION, BUT YOU KNOW FROM THE TESTIMONY THAT MORPHINE HAS
8 A RELATIVELY SHORT HALF LIFE. THE EXPIRATION IS OVER FIVE
9 HOURS AFTER THE LAST MEDICATION. AND IT JUST WOULDN'T BE
10 CONSISTENT WITH CAUSATION.
11 THE OTHER THING IS, YOU KNOW, THE STATE HAS MADE A BIG
12 DEAL OF THIS ENTRY AND I THINK IT IS IMPORTANT. BUT I THINK
13 WHAT'S IMPORTANT IS IF YOU RECALL WHAT ELLEN ANDERSON'S
14 MEDICAL HISTORY WAS SHE HAD HEART PROBLEMS. AND, IN FACT,
15 DR. WILDING, YOU'LL SEE THAT IN EXHIBIT D-9, HE HAS
16 DIAGNOSED HER AS HAVING MILD CONGESTIVE HEART FAILURE AND
17 THEN ALSO DR. SUMKO. YOU REMEMBER DR. SUMKO IS THE FELLOW
18 WHO DID THE HIP REPLACEMENT AND THEY DID SOME TESTING BEFORE
19 THE HIP SURGERY BECAUSE THIS IS SIGNIFICANT IN A 91-YEAR-OLD
20 WOMAN AND HE INDICATED THAT SCLEROTIC VASCULAR DISEASE WAS
21 PRESENT AND CARDIOVASCULAR DISEASE WAS ALSO PRESENT AND
22 THAT'S BASICALLY CORONARY ARTERY DISEASE AND HE SAYS YES,
23 THIS IS INTERESTING BECAUSE THIS IS THE CHART WHERE
24 DR. WEITZEL WRITES DOWN, RECOMMEND AUTOPSY, PROBABLE M.I.
25 HE DOESN'T KNOW, BUT CERTAINLY IS CONSISTENT WITH THE
4469
1 FINDING MADE BY TODD GREY BECAUSE IF YOU RECALL TODD GREY
2 COULDN'T RULE OUT -- HE COULDN'T RULE OUT CORONARY ARTERY
3 DISEASE. AND SO I GUESS, LADIES AND GENTLEMEN, IT'S UNCLEAR
4 PROBABLY AS TO PRECISELY WHY SHE DIED, BUT IT CERTAINLY IS
5 CONSISTENT, THIS FINDING HERE, WITH FIRST OF ALL ACUTE
6 PNEUMONIA AND HER CONGESTIVE HEART FAILURE AND CERTAINLY
7 DR. WEITZEL WRITES -- HE RECOMMENDS AUTOPSY, PROBABLE M.I.
8 WHICH IS CONSISTENT WITH HER MEDICAL HISTORY.
9 NOW, IN TERMS OF THE EVALUATION AND THE EXAMINATION,
10 YOU KNOW, DR. WEITZEL WOULD NOT AND IS NOT AND WAS NOT IN
11 THE POSITION OF HAVING A VERY CLEAR RECOLLECTION AS TO
12 PRECISELY WHAT HAPPENED ON THE 29TH. AND I THINK HE SAID,
13 LOOK, I DON'T KNOW, I SAW HER, I JUST SAW HER, IT WASN'T AN
14 EXTENSIVE EXAMINATION. IT WOULDN'T BE, GIVEN THE NATURE OF
15 HER CIRCUMSTANCE BECAUSE REMEMBER, THIS IS THE WOMAN WHO IS
16 CHARTED SHE WAS SCREAMING AND MOANING AND DOES HAVE AN ENTRY
17 ON THE 29TH PROGRESS NOTE RIGHT THERE. HE ALSO HAS AN ENTRY
18 THAT YOU'LL SEE WHICH SAYS, NEED ACUTE HOSPITAL SERVICES,
19 IT'S DATED THE 29TH. YOU HEARD LAURIE WILLSON SAY, WELL, I
20 ASSUME HE WOULD HAVE SEEN HER OR HE WOULDN'T HAVE PUT THESE
21 ENTRIES IN THERE. THEY WERE DOCUMENTED AT THE TIME SO THEY
22 ARE PART OF THE MEDICAL RECORD. AND NOBODY SUGGESTED
23 ANYTHING DIFFERENTLY ABOUT WHAT THE RECORD SAYS AND YOU'LL
24 SEE THEY ALL SORT OF LINE UP AND THEY WERE CONSISTENT.
25 BUT YOU KNOW WHAT I THINK HAPPENED IN TERMS OF THE
4470
1 POHLMAN'S AND THEIR TESTIMONY? YOU KNOW, YOU HEARD THEM. I
2 THINK THEY ARE GOOD AND DECENT PEOPLE, BUT THIS IS THE
3 PROBLEM WHEN WE TRY TO REMEMBER WHAT HAPPENED FIVE YEARS
4 AGO. YOU REMEMBER THEY TESTIFIED FIRST OF ALL THAT MRS.
5 ANDERSON WASN'T SCREAMING OR MOANING OR AGITATED. LOOK AT
6 THE NURSING ASSESSMENT FROM WHERE THE INTERVIEW, IT'S RIGHT
7 THERE, IT SAYS MOANING, CRYING. BECAUSE, ONCE AGAIN, YOUR
8 RECOLLECTION IS VAGUE, YOUR RECOLLECTIONS FADE.
9 THE OTHER THING IS, I ASKED ABOUT AN OBSERVATION
10 BECAUSE ONCE AGAIN IT'S HARD TO REMEMBER PRECISELY WHAT
11 HAPPENS FOUR AND A HALF YEARS AGO. WELL, DID YOU SEE
12 SOMEBODY? YOU DON'T SEE SOMEBODY. THEY WERE THERE, THEY
13 WERE NOT THERE, THIS IS A DOCUMENT. THIS IS IN HER RECORD
14 AND IT'S TWO OR THREE. AND IT'S AN INTERESTING DOCUMENT.
15 YOU REMEMBER, I ASKED ABOUT PRECISELY WHEN ELLEN
16 ANDERSON WOULD HAVE BEEN IN HER ROOM AND WHETHER OR NOT SHE
17 WAS AGITATED. THIS IS A SPECIAL OBSERVATION RECORD DONE BY
18 THE HOSPITAL AND DONE BY NURSE HUGGINS AND YOU'LL SEE IT'S
19 12/29/95. AND APPARENTLY THERE'S CLOSE OBSERVATION GIVEN
20 EVERY 15 MINUTES. AND IF YOU'LL LOOK OVER HERE -- AND I
21 ASKED ABOUT THIS -- AND OF COURSE I WOULDN'T EXPECT THE
22 POHLMAN'S QUITE FRANKLY TO REMEMBER THIS.
23 YOU KNOW, THERE'S ANOTHER THING ABOUT THIS TOO. YOU
24 KNOW, THERE ARE JUST SOME THINGS THAT ARE PAINFUL AND THEY
25 WERE JUST SOME THINGS YOU DON'T WANT TO REMEMBER. AND I
4471
1 DON'T BLAME ANYBODY FOR THAT GIVEN THE CIRCUMSTANCES AND
2 THIS MAY BE ONE OF THEM. BUT LOOK, THIS IS THE NURSE CANE.
3 IT'S AT 1630 HOURS, AT 4:30, ELLEN ANDERSON IS IN HER ROOM,
4 SHE'S NOT DOWN IN ADMISSIONS AND THEN EVERY 15 MINUTES
5 THERE'S AN INDICATION OF WHERE SHE IS UP THROUGH I GUESS
6 THAT'S 7 O'CLOCK, AND SHE'S IN HER ROOM. SO SOMETHING THAT
7 JUST IS THERE, IT'S INCONSISTENT WITH THE TESTIMONY. AND,
8 ONCE AGAIN, IT'S THE PROBLEM WITH MEMORY.
9 ALSO IF YOU LOOK AT WHAT THEY'RE DESCRIBING IN THE
10 NURSE'S CHARTING N.N.A. ALL RESPOND TO AGITATION AND THAT
11 WAS NOT SOMETHING THAT WOULD BE REMEMBERED. I WOULDN'T
12 EXPECT IT TO BE REMEMBERED BECAUSE, QUITE FRANKLY, AS I SAY,
13 YOU ARE NOT GOING TO REMEMBER EVERYTHING. YOU ARE NOT GOING
14 TO REMEMBER EVERYTHING FOUR AND A HALF YEARS OR FIVE YEARS
15 AGO, BUT THIS IS A DOCUMENT WHICH I THINK SHOWS WHAT THE
16 CIRCUMSTANCES WERE.
17 AND YOU REMEMBER MR. POHLMAN SAID THAT THERE WERE A LOT
18 OF FOLKS THAT CAME INTO THE ROOM. THERE WAS ANOTHER PATIENT
19 IN THERE AND THAT THEY DIDN'T MEET DR. WEITZEL UNTIL THE
20 NEXT DAY FOR THE FIRST TIME WHEN HE IDENTIFIED HIMSELF. I
21 WOULDN'T EXPECT THEM TO REMEMBER ANYTHING THAT WENT ON ON
22 THE 29TH. AND, HECK, YOU HEARD MRS. POHLMAN SAY HER FOCUS
23 AND HER ATTENTION WAS ON HER MOTHER, AS IT SHOULD HAVE BEEN.
24 BUT IN ANY EVENT, THAT IS THE SITUATION WITH ELLEN ANDERSON
25 AND I JUST DON'T THINK UNDER ANY TESTIMONY YOU'VE HEARD,
4472
1 BECAUSE THE TESTIMONY YOU'VE HEARD IS 10 MILLIGRAMS MORPHINE
2 AS A USUAL DOSE. SHE CLEARLY IS IN PAIN, A PAIN MEDICATION
3 IS GIVEN, I DON'T SEE HOW THAT'S INCONSISTENT WITH ANY
4 CRIMINAL LAW.
5 NOW, I THINK THE HEART OF THIS CASE -- LET ME JUST SAY
6 ONE OTHER THING TOO ABOUT THE SITUATION OF ELLEN ANDERSON.
7 YOU KNOW, THIS WAS A DIFFICULT CIRCUMSTANCE. YOU RECALL, I
8 THINK MRS. POHLMAN SAID THAT AFTER THE HIP REPLACEMENT,
9 AFTER THE HIP REPAIR, RATHER, THERE WAS SOME PROBLEMS THAT
10 DEVELOPED IN TERMS OF THEIR MOTHER FEELING SOME ESSENTIALLY
11 LIKE ACUTE PANIC ATTACKS AND WENT ON AND ON ALL THE TIME.
12 AND, YOU KNOW, THEY WERE NOT KNOWING REALLY WHAT TO DO ABOUT
13 IT.
14 I THINK SOME OF THE MOST POIGNANT TESTIMONY IN THE CASE
15 ACTUALLY CAME FROM DIANE MANROY WHO'S ELLEN ANDERSON'S
16 DAUGHTER AND YOU RECALL WHAT SHE SAID. HE DIDN'T ASK HER
17 ANY QUESTIONS ON CROSS, BUT YOU RECALL WHAT SHE SAID ON
18 DIRECT. AND THIS IS, ONCE AGAIN, HIGHLIGHTING NOT ONLY THE
19 DIFFICULTIES FOR THE POHLMANS IN PROVIDING CARE, BUT
20 CERTAINLY THE DIFFICULTIES FOR THE FAMILY. I WANTED HER
21 MENTAL STATE TO CALM DOWN, DIDN'T WANT HER LIFE ENDED SHORT
22 OR SHORTENED, I WAS NOT DOING ANYTHING OR I DIDN'T -- I
23 WASN'T NECESSARILY LOOKING FOR A DRUG TO END HER LIFE, BUT
24 IF IT SHORTENED HER LIFE, I WOULD -- I THOUGHT THAT WAS
25 GOOD. AND THAT'S HOW DIFFICULT THIS PROBLEM HAD BECOME IN
4473
1 TERMS OF TRYING TO PROVIDE SOME COMFORT TO ELLEN ANDERSON IN
2 THE LAST DAYS OF HER LIFE. BECAUSE THIS CASE I THINK THE
3 HEART OF THIS CASE REALLY IS ABOUT THE PHYSICIAN'S DUTY IN
4 END-OF-LIFE CARE.
5 NOW, YOU'VE HAD INSTRUCTIONS READ TO YOU AND I WANT TO
6 EMPHASIZE THESE AS YOU GO BACK AND DELIBERATE. I THINK THEY
7 ARE CRITICAL TO THIS CASE. THEY ARE INSTRUCTIONS 51 THROUGH
8 53. AND BASICALLY WHAT THESE INSTRUCTIONS SAY IS THAT THE
9 STATE HAS A BURDEN TO PROVE BEYOND A REASONABLE DOUBT
10 UNANIMOUSLY THAT DR. WEITZEL ACTED IN THE ABSENCE OF GOOD
11 FAITH CONSISTENT WITH DIRECTIONS OR DIRECTIVES OF THE
12 FAMILY. AND IF YOU FIND THAT THEY HAVE NOT MET THAT BURDEN,
13 THEN YOU MUST ACQUIT DR. WEITZEL ON EACH AND EVERY COUNT.
14 AND I THINK THEY ARE PARTICULARLY IMPORTANT IN TERMS OF THE
15 LANGUAGE. FOR EXAMPLE, 51, IT SAYS, PERSONS ARE ENTITLED TO
16 PRIVACY AND DIGNITY TO REFUSE TO BE TOUCHED OR TREATED IN
17 ANY MANNER WITHOUT THEIR WILLING CONSENT AND TO DIE WITH A
18 MAXIMUM AMOUNT OF DIGNITY AND A MINIMUM OF PAIN. PHYSICIANS
19 ARE ETHICALLY OBLIGATED TO RELIEVE PAIN AND SUFFERING AND TO
20 PROMOTE THE DIGNITY OF A DYING PATIENT IN THEIR CARE.
21 THEN IT GOES ON TO SAY, WHERE A PHYSICIAN COMMITS TO
22 SUSTAIN LIFE AND RELIEVE SUFFERING ARE IN CONFLICT, THE
23 PHYSICIAN'S ETHICALLY OBLIGATED TO DEFER TO THE PREFERENCES
24 OF THE PATIENT OR IN THIS CASE THE FAMILY WHO'S ACTING FOR
25 THE PATIENT. THIS INCLUDES PROVIDING EFFECTIVE PAIN
4474
1 TREATMENT, EVEN THOUGH IT MAY FORESEEABLY HASTEN DEATH. A
2 PHYSICIAN MAY ETHICALLY PRESCRIBE MEDICATION, EVEN IF IT MAY
3 HASTEN DEATH OR HE KNOWS IT MAY LIKELY CAUSE DEATH. IF THE
4 PURPOSE AND THE INTENT OF THE PHYSICIAN IS TO RELIEVE PAIN
5 AND SUFFERING.
6 AND THEN IT GOES ON TO SAY -- AND I THINK THIS IS THE
7 CRITICAL INSTRUCTION IN WHICH YOU CAN DECIDE AT LEAST FOUR
8 POINTS IN THIS CASE -- PHYSICIANS ARE PROVIDERS OF MEDICAL
9 SERVICES AND THEIR AGENTS WHO IN GOOD FAITH PARTICIPATE IN
10 THE WITHHOLDING OR WITHDRAWING OF LIFE-SUSTAINING
11 PROCEDURES. AND THEN GOES ON TO SAY, OR ADMINISTER MEDICAL
12 CARE OR TREATMENT IN CONFORMITY WITH THE WRITTEN DIRECTIVE
13 ARE IMMUNE FROM CRIMINAL LIABILITY. AND THEN THEY GO ON AND
14 TALK ABOUT THE BURDEN ON THE STATE.
15 LADIES AND GENTLEMEN, THAT INSTRUCTION GOES TO THE
16 HEART OF WHAT WE HAVE HERE. BECAUSE WHAT DR. WEITZEL WAS
17 DOING WAS FOLLOWING THE FAMILY DIRECTIVES AND WITHHOLDING
18 LIFE-SUSTAINING TREATMENT OR WITHDRAWING LIFE-SUSTAINING
19 TREATMENT. AND THIS INSTRUCTION DOESN'T SAY THERE'S AN
20 "OR." AND THEN GOES ON TO TALK ABOUT WRITTEN DIRECTIVES.
21 AND I WILL SUGGEST YOU HAVE THESE WRITTEN DIRECTIVES, OF
22 COURSE, YOU'VE SEEN THEM. UNDER EITHER CASE, DR. WEITZEL
23 MUST BE ACQUITED FOR ACTING IN GOOD FAITH EITHER IN
24 COMPLIANCE WITH THE WRITTEN DIRECTIVES WHICH YOU'VE SEEN,
25 YOU CAN READ THEM ALL AND SEE WHAT THEY SAY, OR BY ACTING AS
4475
1 AN ETHICAL PHYSICIAN PROVIDING END-OF-LIFE CARE BY
2 ESSENTIALLY WITHDRAWING CERTAIN KINDS OF CARE, FOR EXAMPLE,
3 MR. ALLDREDGE'S CASE, THERE IS A DISCUSSION WITH THE FAMILY
4 AND THERE'S WITHDRAWAL OF AN I.V., THERE IS WITHDRAWAL OF
5 INSULIN, THERE IS WITHDRAWAL OF SOME OTHER THINGS. FOR
6 EXAMPLE, THE DISCUSSION WITH MERLIN LARSEN. THERE IS NO
7 I.V. GIVEN WHEN OBVIOUSLY THAT WOULD CREATE A TERMINAL
8 CONDITION AND YOU MIGHT RECALL THAT MR. LARSEN EVEN CONCEDED
9 THAT HIS MOM AT THAT POINT WAS TERMINAL, GIVEN THE NATURE OF
10 HER AGE AND OTHER THINGS. SO HE'S DOING WHAT THE FAMILY
11 WANTS. AND THEN WHEN HE DOES WHAT THE FAMILY WANTS, HE HAS
12 AN OBLIGATION TO GIVE MEDICATION WHICH IS EXACTLY WHAT HE
13 DID.
14 I JUST WANT TO POINT OUT A FEW FACTS WHICH I THINK ARE
15 UNREFUTED IN THIS AREA. FIRST, NOT ONE PERSON THAT I KNOW
16 OF IN THIS CASE TOLD YOU THAT ANY OF THESE PATIENTS WERE NOT
17 DYING AS A RESULT OF THIS ACUTE EVENT. NOT ONE NURSE WHO
18 TESTIFIED IN THIS TRIAL SAID THAT THEY THOUGHT THE MORPHINE
19 WAS GIVEN WAS SUCH THAT IT WOULD CAUSE OR CONTRIBUTE TO THE
20 DEATH OF ANYONE.
21 POINT THREE, NOT ONE FAMILY MEMBER DISPUTED TALKING
22 WITH DR. WEITZEL OR THAT THEY WANTED THEIR LOVED ONE TO BE
23 KEPT COMFORTABLE. AND THERE ISN'T ANY FAMILY MEMBER WHO HAS
24 COME IN HERE AND SAID, YOU KNOW, THOSE DIRECTIVES WHICH ARE
25 IN THAT MEDICAL FILE, THAT SIGNATURE ISN'T MINE, IT ISN'T
4476
1 AUTHENTIC, IT ISN'T OUR WISHES. NOBODY SAID THAT.
2 POINT FOUR, IT IS UNDISPUTED THAT THE ROUND-THE-CLOCK
3 MORPHINE STARTED AFTER THE ACUTE EVENTS. IT IS ALSO
4 UNDISPUTED THAT THE ROUND-THE-CLOCK MORPHINE WHICH, IF YOU
5 RECALL, SUPERNAW, HILL, I THINK EVEN DR. HARE, CONFIRMED
6 THAT IF YOU ARE REALLY TRYING TO DEAL WITH PAIN, THIS IS AN
7 APPROPRIATE WAY TO DOSE BECAUSE THEN YOU HAVE SOME EVENNESS
8 TO THE MEDICATION REGIMEN.
9 IT IS UNDISPUTED THAT THE ROUND-THE-CLOCK MORPHINE
10 STARTED AFTER THE CONVERSATIONS WITH THE FAMILY. YOU KNOW,
11 I'LL SUBMIT -- I'LL SUBMIT, LADIES AND GENTLEMEN, THAT THERE
12 ARE DIFFERENCES -- THERE HAVE BEEN DIFFERENCES IN WHAT SOME
13 FOLKS SAID AND WHAT SOME FOLKS HAVE REMEMBERED. BUT I DON'T
14 THINK THEY ARE MATERIAL DIFFERENCES BECAUSE NOBODY GOT UP
15 THERE ON THE STAND, A FAMILY MEMBER, AND SAID, I NEVER
16 TALKED TO DR. WEITZEL. NEVER EVER GOT UP ON THE STAND AND
17 SAID, I DIDN'T TALK ABOUT THE FACT THAT MY LOVED ONE WAS
18 DYING. NOBODY SAID, YOU KNOW, I NEVER TALKED ABOUT KEEPING
19 SOMEONE COMFORTABLE. THE MATERIAL GUTS OF THESE
20 CONVERSATIONS WE'RE IN AGREEMENT ON.
21 NOW, THERE MAY BE THINGS ON THE EDGES, BUT IN TERMS OF
22 WHAT HAPPENED AND THE FACT THAT MORPHINE DIDN'T START UNTIL
23 AFTER THESE CONVERSATIONS ROUND-THE-CLOCK, IT'S UNDISPUTED.
24 AND WHY IS THAT IMPORTANT? BECAUSE IT'S TOTALLY CONSISTENT
25 WITH THE PHYSICIAN DOING EXACTLY WHAT A PHYSICIAN IS
4477
1 ETHICALLY OBLIGATED TO DO. AND AS DR. WEITZEL SAID, THE
2 FAMILY MEMBERS WERE ALL ON BOARD. AND I'D SUBMIT ANY FAIR
3 READING OF THE RECORD WOULD SUBSTANTIATE THAT'S EXACTLY
4 TRUE. IT'S ALSO DOCUMENTED IN ALL OF THE RECORDS.
5 I MEAN, ONCE AGAIN, I'VE SHOWED YOU, IT'S ALL THERE,
6 IT'S IN THE RECORDS, IT HAPPENED AT THE TIME. IT'S NOT
7 SOMETHING ALL OF A SUDDEN YOU SHOW UP IN A CASE LIKE THIS
8 AND YOU SAY, YEAH. I REMEMBER WE HAD A DISCUSSION, OR,
9 YEAH, I THINK THERE WAS SOMETHING THERE. IT'S ALL THERE.
10 IT WAS ALL THERE AT THE TIME FOR EVERYBODY TO SEE. IT'S
11 LIKE THESE DIRECTIVES. THEY ARE THERE AND THEY ARE NOT ALL
12 SIGNED AT THE TIME OF THE ACUTE EVENT. THERE'S ONLY ONE AND
13 THAT'S SMITH, BUT THAT'S THE ONE THAT SAYS WE DON'T WANT
14 ANYTHING. WHO ARE WE TO SAY THAT A DOCTOR SHOULDN'T GO
15 AHEAD AND ABIDE BY WHAT THE FAMILY WANTS?
16 NOBODY SAID DR. WEITZEL SOMEHOW COERCED THESE PEOPLE IN
17 SIGNING THESE DIRECTIVES. NOBODY SAID DR. WEITZEL SOMEHOW
18 CREATED THOSE DIRECTIVES OR THEY ARE OBVIOUSLY HOSPITAL
19 FORMS CREATED BY SOMEBODY IN THE HOSPITAL GIVEN TO PEOPLE
20 FOR THIS VERY EXPRESS PURPOSE. FOR EXAMPLE, MARY CRANE.
21 THAT DIRECTIVE IS SIGNED ON THE 28TH OF DECEMBER TO DEAL
22 WITH THE VERY PROBLEM THAT THERE MAY BE AN ACUTE EVENT THAT
23 OCCURS IN THE HOSPITAL AND THEN WHAT DO WE DO? WELL, WE
24 MAINLY HAVE AN ETHICAL OBLIGATION TO COMPLY WITH THE WRITTEN
25 DIRECTIVES MINIMALLY, AND THAT'S EXACTLY WHAT HAPPENED.
4478
1 I WANT TO SHOW YOU AN EXHIBIT THAT YOU'LL HAVE BACK
2 THERE WHICH I THINK SORT OF ENCAPSULATES A LOT OF THE
3 ISSUES. THIS IS THE CARD THAT MERLIN LARSEN WAS KIND ENOUGH
4 TO SEND TO DR. WEITZEL. IT'S DEFENDANT EXHIBIT D-27. AND
5 THE FIRST THING I WANTED TO CALL YOUR ATTENTION TO, YOU
6 NOTICE THIS IS NOT A CARD JUST FROM MERLIN LARSEN. THIS IS
7 A CARD FROM THE FAMILY OF JUDITH VIOLA LARSEN. IN FACT, I
8 COUNTED THOSE UP. THERE'S ABOUT 135 PLUS PEOPLE BASICALLY
9 COMPLEMENTING DR. WEITZEL AND THE PEOPLE AT THE HOSPITAL FOR
10 THE KIND OF CARE THAT THEIR LOVED ONE RECEIVED. AND YOU
11 KNOW, HE SAYS, WE ARE GRATEFUL FOR YOU AND THE STAFF AT THE
12 GEROPSYCHIATRIC UNIT FOR THE KINDNESS AND THE SPLENDID CARE
13 YOU GAVE OUR MOTHER DURING THE FINAL FOUR WEEKS OF HER LIFE.
14 AND YOU WERE ALL VERY CONSIDERATE OF ALL OF US WHO VISITED
15 HER OFTEN AT IRREGULAR TIMES.
16 YOU KNOW, THE STATE WANTS TO OR THEY TRIED TO MAKE A
17 BIG DEAL ABOUT SOME OF THE DOCTORS WHO WERE THERE AT WEIRD
18 TIMES. WELL, I MEAN, THAT'S THE NATURE OF THIS BUSINESS.
19 THAT'S THE NATURE OF THE PROBLEM. THAT'S THE NATURE OF THE
20 ISSUE. THANK YOU FOR MAKING IT UNNECESSARY TO MOVE HER
21 DURING THE LAST FEW DAYS. REMEMBER, THAT WAS THE PROBLEM.
22 WHAT DO WE DO? AND RELOCATION WOULD HAVE BEEN TRAUMATIC.
23 IT WAS VERY KIND OF YOU. WE WISH -- WE WISH ALL OF YOU
24 SUCCESS AND HAPPINESS IN YOUR PROFESSIONAL AND PERSONAL
25 LIVES.
4479
1 TWO THINGS ABOUT THIS WHICH I THINK SPEAK VOLUMES ABOUT
2 THIS CASE. FIRST, SEEING THIS, IS THERE ANY DOUBT IN
3 ANYBODY'S MIND THAT THIS FAMILY WAS ON BOARD? AND SECONDLY,
4 DR. WEITZEL TOLD YOU WHAT HAPPENED WITH THE LARSEN FAMILY,
5 THE CRANE FAMILY, THE SMITH FAMILY, AND THE ALLDREDGE
6 FAMILY. THIS WAS HIS FIRST EXPERIENCE IN PROVIDING
7 END-OF-LIFE CARE AS THE ATTENDING PHYSICIAN. IT WASN'T
8 SOMETHING, AS HE PUT IT, HE DESCRIBED IT, HE FELL INTO IT.
9 YOU CAN SEE WHY THAT HAPPENED. JUDITH HAD BEEN THERE FOR
10 ALMOST A MONTH. HE OBVIOUSLY GOT TO KNOW THE SON MERLIN
11 QUITE WELL AND MERLIN COMES TO HIM. JUDITH NOW HAS A
12 SEIZURE AND G.I. BLEED AND OBVIOUSLY THERE IS A PROBLEM. HE
13 CAN'T FIND ANY PLACE TO TAKE HER AND SO HE DOES THE HUMANE
14 RATIONAL AND COMPASSIONATE THING AND SAYS, OKAY, WE'LL
15 ADJUST THE REGULATIONS HERE AND WE'LL KEEP HER COMFORTABLE
16 BECAUSE HE UNDERSTOOD TO RELOCATE SOMEONE IS GOING TO BE
17 DIFFICULT. OBVIOUSLY THEY KNOW THE NURSING STAFF, THEY KNOW
18 THE LOCATION, HIS MOTHER'S DYING, HE FELL INTO IT. YOU
19 LEARNED THAT THEY TOLD YOU WITHIN THE NEXT COUPLE OR THREE
20 WEEKS, ACTUALLY LESS THAN THAT, THESE OTHER EVENTS OCCURRED
21 IN THE HOSPITAL. THESE ACUTE EVENTS, AND YOU KNOW WHAT IT
22 WAS, CERTAINLY SOMETHING THAT THIS FAMILY PRESENTED. AND SO
23 HE CONTINUED WITH END-OF-LIFE CARE WITH THE CRANE FAMILY,
24 WITH THE SMITH FAMILY AND THE ALLDREDGE FAMILY. AND THAT'S
25 WHAT HAPPENED.
4480
1 I DON'T THINK THAT THE CIRCUMSTANCES OF ELLEN ANDERSON
2 HAVE ANY RELEVANCE TO THE COMFORT MEASURES AND THE COMFORT
3 CARE THAT STARTED WITH THIS VERY POIGNANT SITUATION WITH THE
4 LARSEN FAMILY. AND YOU CAN SEE HOW A PHYSICIAN IN HIS
5 SITUATION MIGHT HAVE THOUGHT, YOU KNOW, THIS WORKED FOR
6 THEM, SEEMED TO MAKE SENSE. SEEMED TO BE A COMPASSIONATE
7 THING AND SEEING THAT THE FAMILY APPRECIATED WHAT I DID SO
8 I'M GOING TO DO IT AGAIN, WHY RELOCATE THESE PEOPLE, I CAN
9 DO IT HERE. AND THAT'S WHAT HE DID. AND THAT'S HOW WE HAVE
10 THE CIRCUMSTANCES OF THESE FOUR DEATHS IN A VERY SHORT
11 PERIOD OF TIME.
12 AND, YOU KNOW, IT'S INTERESTING. YOU HAVEN'T HEARD ANY
13 EVIDENCE, NONE, ZERO, THAT SOMEHOW HE LOST HIS PRIVILEGES
14 BECAUSE OF THIS, THAT SOMEHOW HE WAS DISCIPLINED BECAUSE OF
15 THIS, THAT SOMEHOW HE GOT HIS CONTRACT TERMINATED BECAUSE OF
16 THIS. IN FACT, REMEMBER WHAT THE EVIDENCE WAS OF BONNIE
17 HARDEY? THIS WAS INVESTIGATED BECAUSE YOU WOULD EXPECT ANY
18 RESPONSIBLE HEALTH ORGANIZATION TO INVESTIGATE THESE
19 CIRCUMSTANCES BECAUSE THESE ARE SOMEWHAT UNUSUAL IN A SHORT
20 PERIOD OF TIME ON A GEROPSYCHIATRIC UNIT.
21 AND IT WAS INVESTIGATED BY HORIZON AND HORIZON TOOK NO
22 ACTION AT ALL. AND, IN FACT, THE STATE INTRODUCES THE
23 CONTRACT THAT HE HAS WITH HORIZON AND YOU RECALL THE
24 EVIDENCE THERE. THERE'S A CERTAIN NUMBER OF THINGS WHICH HE
25 COULD HAVE RECEIVED NOTICE FOR US TO TERMINATE THE CONTRACT.
4481
1 WOULD HAVE LOST HIS PRIVILEGES, ONE OF WHICH WOULD HAVE BEEN
2 COMMITTING A FELONY, ONE OF WHICH WOULD HAVE BEEN DOING
3 SOMETHING UNETHICAL UNDER THE A.M.A. ETHICS. NEVER RECEIVED
4 NOTICE. I'LL TELL YOU WHY, IS BECAUSE THERE WASN'T A
5 PROBLEM WITH THE MEDICINE. THE MEDICINE WAS CONSISTENT WITH
6 THE DUTY THAT PHYSICIANS HAVE. AND HE FELL INTO IT AND HE
7 TRIED TO DO THE BEST HE COULD UNDER THE CIRCUMSTANCES
8 DEALING WITH THESE ACUTE EVENTS THAT HE WAS FACED WITH.
9 I'M CLOSE, SO WE'RE GETTING THERE. I JUST HAVE TO DEAL
10 WITH ONE OTHER SUBJECT, THOUGH, THE PSYCH MEDS. BECAUSE
11 EVERY TIME I HEAR IT I THINK, WHERE IS THE BEEF? BUT, YOU
12 KNOW, THESE CHARTS THAT YOU'VE SEEN AND THESE PSYCH
13 MEDICATIONS, FIRST OF ALL, I THINK WE ALL KNOW THE EVIDENCE
14 IS THEY ARE NOT ACCURATE. IN OTHER WORDS, THEY ARE TALKING
15 ABOUT INITIAL DOSES. BUT YOU ALL KNOW EVERY ONE OF THESE,
16 ALMOST EVERY ONE OF THESE PATIENTS HAD PSYCH MEDICATION
17 INCLUDING TRAZODONE, SERZONE AND OTHERS. TALK ABOUT INITIAL
18 DOSE. IT ISN'T THE FACTS OF THE CASE. SECONDLY, YOU ALL
19 KNOW THAT'S THE REASON WHY THEY WERE THERE. THEY WERE
20 UNCONTROLLABLE, UNMANAGEABLE, VERY DIFFICULT CIRCUMSTANCES.
21 THERE HAS NOT BEEN ONE PHYSICIAN, NOT ONE PHYSICIAN WHO HAS
22 COME UP HERE AND SAID NO, NO. YOU DON'T DEAL WITH THIS BY
23 SEDATING MEDICATIONS. THAT'S EXACTLY WHAT YOU DO AND THAT'S
24 EXACTLY WHAT WAS GOING ON HERE. THERE'S BEEN DIFFERENCES
25 FROM EVERY PHYSICIAN ALL OVER THE LOT ABOUT THOSE
4482
1 MEDICATIONS THEMSELVES. GOOD EXAMPLE.
2 DR. SOUTHWORTH TOOK THE STAND. HE'S A TREATING
3 PHYSICIAN. HE'S NOT MADE A BUNCH OF MONEY IN HERE AND GIVEN
4 YOU AN OPINION. I ASKED HIM, I SAID, SERZONE IS NOT A
5 SEDATING MEDICATION? NO, I DON'T THINK THAT'S SEDATING AT
6 ALL. WELL, HE CAN TALK TO THE STATE'S EXPERTS. THEY THINK
7 EVERYTHING IS SEDATING TO BEAT THE BAND. EVERY PHYSICIAN
8 HAS HAD A DIFFERENT TAKE. DR. CROOKSTON SAYS, NO, I NEVER
9 USED THOSE GUIDELINES TO MEDICATE MY PATIENTS. I DEAL WITH
10 INDIVIDUAL PATIENTS. DID YOU HEAR ANYBODY SAY, THOUGH,
11 ANYBODY SAY THAT SERZONE IS NOT APPROPRIATE FOR GERIATRIC
12 CARE? NO. TRAZODONE IS NOT APPROPRIATE FOR GERIATRIC CARE?
13 NO. RISPERDAL IS NOT APPROPRIATE FOR GERIATRIC CARE? NO.
14 HALDOL IS NOT APPROPRIATE FOR GERIATRIC CARE? NO. NOBODY
15 SAID.
16 ALL YOU HEARD WAS, WELL, HERE'S A LOT OF MEDICATIONS
17 AND, YOU KNOW, IN A GENERAL WAY THEY ARE KIND OF SEDATING.
18 AND THEN WE SAY, WELL, THEY COMPROMISED THESE PEOPLE.
19 THAT'S ALL YOU'VE HEARD. THAT HASN'T BEEN IN ONE PERSON'S
20 STORY. AND SAYING THERE'S A COMBINATION TREATMENT ON THIS
21 DAY, IT'S RIGHT THERE IN THE PHYSICIAN'S NOTE. WE CAN SEE
22 THAT THAT CAUSED SOME REAL PHYSICAL PROBLEMS FOR THAT
23 PATIENT. DIDN'T HAPPEN. A, IT DIDN'T HAPPEN AND B, YOU
24 DIDN'T HEAR IT. I TOLD YOU ABOUT CROOKSTON. HE EVEN
25 ADMITTED THAT IN JUDITH LARSEN'S CASE THE MEDICATIONS WERE
4483
1 ADJUSTED TO TRY TO DEAL WITH THE SITUATION.
2 AND, FINALLY, IN TERMS OF WHAT THIS CASE REALLY BOILS
3 DOWN TO AS FAR AS DR. WEITZEL. HE SHOULDN'T BE CONVICTED OF
4 NEGLIGENT HOMICIDE OR MURDER OR MANSLAUGHTER BECAUSE WE HAVE
5 A DIFFERENCE IN DOSING LEVELS. I SUGGEST, LADIES AND
6 GENTLEMEN, THAT'S NOT A CRIMINAL CASE AT ALL. BECAUSE IF
7 YOU HEARD ANYTHING IN THIS CASE, YOU'VE SEEN HOW PHYSICIANS
8 DIFFER. THEY DIFFER ON DOSES, THEY DIFFER ON WHAT THEY DO,
9 THEY MAKE JUDGMENTS. THOSE JUDGMENTS HAVE TO BE CLINICAL
10 AND EVERY ONE OF THESE EXPERTS THEY ALWAYS COME IN AND WANT
11 TO TELL YOU ABOUT EVERYTHING. BUT THINK ABOUT THIS. THINK
12 ABOUT THIS.
13 THIS IS A CLASSIC -- THIS SUMS UP THIS WHOLE
14 PRESENTATION TO YOU. WE KNOW. WE KNOW -- IN ELLEN
15 ANDERSON -- 'CAUSE WE'VE SEEN IT. WE HAVE NURSE WILLSON WHO
16 IS THERE AND SHE'S SAYING THAT'S PAIN. SHE'S SAYING RIGHT
17 THERE SEVERE PAIN. WE HAVE NURSE SCHOLL COMING IN SAYING
18 THRASHING, MOANING, SCREAMING. SHE TELLS US ON THE STAND
19 THAT'S PAIN. I TOLD DR. WEITZEL. THESE ARE PEOPLE WHO ARE
20 THERE, WE PUT THEM -- PUT DR. HARE ON THE STAND,
21 DR. FEHLAUER ON THE STAND. THEY ARE ASKED, DO YOU SEE ANY
22 INDICATION OF PAIN? NO. SEE ANY COMPLAINTS OF PAIN? NO.
23 WELL, I WOULD SUBMIT, HOW CAN YOU POSSIBLY DO THAT? I MEAN,
24 WOULDN'T IT HAVE BEEN MUCH MORE HONEST FOR THEM TO HAVE SAID
25 TO YOU YES, I SAW THE NURSES CHARTING PAIN, I SAW SCREAMING,
4484
1 I SAW MOANING, I SAW AGITATION, I THINK THEY CAN BE
2 PERCEIVED AS PAIN. BUT IN MY PROFESSIONAL OPINION, BASED
3 UPON THE REVIEW OF THE RECORDS, I DIDN'T THINK IT WAS PAIN.
4 BUT THEY DIDN'T SAY THAT THEY WOULD. THERE WAS NO
5 INDICATION OF PAIN. AND THAT'S THE SAME THING WE HAVE WITH
6 THE PSYCH MEDS. IT'S REAL EASY FOR SOMEBODY TO COME UP HERE
7 AND SAY, YOU KNOW, I WOULDN'T HAVE GIVEN 200 MILLIGRAMS OF
8 TRAZODONE. I DON'T HAVE A PROBLEM IF 100 WERE GIVEN. I'D
9 SUBMIT IF THAT'S WHERE WE ARE, THIS ISN'T EVEN REMOTELY
10 CLOSE TO A CIVIL CASE, MUCH LESS A CRIMINAL CASE DEALING
11 WITH HOMICIDES AND THAT'S REALLY ALL YOU HAVE.
12 THE DURAGESIC PATCH -- BY THE WAY, I PROBABLY SHOULD
13 HAVE POINTED THIS OUT. THE DURAGESIC PATCH IS KIND OF FUNNY
14 BECAUSE IF YOU LOOK IN THE NOTES, AND DR. WEITZEL TESTIFIED
15 TO IT, FIRST OF ALL, DIENHART AGREES WITH THE 50 MILLIGRAMS.
16 IT'S RIGHT THERE IN THE REPORT. BUT THEN MORE IMPORTANTLY
17 DR. WEITZEL DISPUTES THIS. HE TALKED TO THE PHARMACIST. I
18 GUESS THE SAME PHARMACY THAT NURSE COZZENS TALKED TO YOU
19 ABOUT THE 5 MILLIGRAMS OF MORPHINE. AND THAT PHARMACIST
20 SAYS DON'T WORRY ABOUT THAT, THAT'S NO BIG DEAL. AND
21 BASICALLY THE PHARMACIST SAYS, 50 MICROGRAMS OR WHATEVER IT
22 IS, THAT'S FINE TOO. IT'S NOT LIKE WE'RE TALKING ABOUT HUGE
23 PROBLEMS HERE. WE'RE TALKING ABOUT DIFFERENCES OF OPINION,
24 REALLY, AND JUDGMENT AS TO VARIOUS DOSING LEVELS. THAT'S
25 ALL WE GOT AND THAT'S WHAT WE GOT ON THE PSYCH MEDS.
4485
1 NOW, A FEW FINAL OBSERVATIONS JUST ABOUT THE LAST FIVE
2 WEEKS BECAUSE I THINK YOU ALL KNOW. YOU'VE BEEN HERE A LONG
3 TIME AND PROBABLY SEE I'VE BEEN FOR A LONG TIME, BUT LET ME
4 TELL YOU THESE THINGS. WE STARTED OPENING STATEMENTS. WE
5 WERE TOLD THIS IS A MURDER CASE. WELL, NOW WE'RE DOWN TO
6 MANSLAUGHTER. NOW WE'RE DOWN TO NEGLIGENT HOMICIDE. AND I
7 CAN TELL YOU WE DIDN'T REQUEST THOSE INSTRUCTIONS. AND I'D
8 SUBMIT THAT'S A GOOD INDICATION OF KIND OF THE PROOF AND THE
9 QUALITY OF THE PRESENTATION OF THE PROOF OF THIS CASE. IN
10 OTHER WORDS, IN OPENING STATEMENT YOU HEARD THAT DR. WEITZEL
11 DID THIS BECAUSE THERE WAS SOME MONETARY THING HE WAS GOING
12 TO GET OUT OF IT. YOU HAVEN'T HEARD ONE SCINTILLA, ONE
13 SHRED OF EVIDENCE THAT ANYTHING HE DID HERE WAS BECAUSE OF
14 MONEY.
15 IN OTHER WORDS, OPENING STATEMENT, WELL, HE DIDN'T
16 LIKE -- HE DIDN'T LIKE OLD PEOPLE. THAT'S WHY HE DID THIS.
17 THINK ABOUT THAT. WHAT EVIDENCE, WHAT CREDIBLE EVIDENCE
18 HAVE YOU HEARD ABOUT THAT? YOU HEARD ONE FAMILY MEMBER
19 TESTIFY ABOUT A COMMENT THAT HE MADE WHICH NOBODY ELSE IN
20 THE WHOLE CONVERSATION HEARD APPARENTLY 'CAUSE THEY
21 CERTAINLY DIDN'T TELL, BUT -- AND I WOULD SUBMIT THAT'S NOT
22 CREDIBLE. BUT WHAT OTHER EVIDENCE HAVE YOU REMOTELY HEARD
23 THAT SOMETHING SUGGESTS HE DOESN'T LIKE OLD PEOPLE? YOU ARE
24 ALSO TOLD ABOUT NURSES WHO WERE GOING TO GET FIRED. DID YOU
25 HEAR ONE NURSE GET UP HERE AND SAY SHE WAS GOING TO BE FIRED
4486
1 OR WAS FIRED FROM HER JOB? NO. AND I WILL SUGGEST THAT'S
2 KIND OF THE CONSISTENCE WITH THE WAY THIS CASE HAS BEEN
3 PRESENTED.
4 YOU KNOW THESE CHARTS OVER HERE? IT'S KIND OF LIKE ALL
5 OF A SUDDEN NOW WE'RE GETTING AT THE 11TH HOUR. I JUST WANT
6 TO SHOW YOU IT'S INTERESTING, YOU KNOW, TO PUT THIS UP HERE.
7 NEVER SEEN IT BEFORE. NOW WE'RE GETTING THIS KIND OF STUFF.
8 NOW WHAT TESTIMONY -- TELL ME WHAT TESTIMONY YOU HAVE HEARD