Defense Opening Statement

19         MR. STIRBA, DO YOU WISH TO GIVE AN OPENING STATEMENT?
      20             MR. STIRBA:  I DO, YOUR HONOR.  THANK YOU.
      21             THE COURT:  OKAY.  PROCEED.
      22             MR. STIRBA:  MAY IT PLEASE THE COURT, COUNSEL, DR.
      23    WEITZEL, LADIES AND GENTLEMEN OF THE JURY.  THIS IS GOING TO
      24    BE A DIFFICULT CASE.  AND THE REASON WHY IT'S GOING TO BE A
      25    DIFFICULT CASE IS BECAUSE WE'RE GOING TO BE DEALING WITH


                                                                       47



       1    FIVE PEOPLE WHO ARE AT THE END OF THEIR LIVES AND WERE IN
       2    THE DYING PROCESS.  AND NOT ONLY WERE THESE FIVE PEOPLE
       3    SUFFERING FROM PSYCHIATRIC PROBLEMS, BUT THEY WERE SEVERELY
       4    DEMENTED AND HAD A COMPLETE INABILITY TO COMMUNICATE AND TO
       5    EXPRESS THEMSELVES.
       6         THEY ALSO HAD MULTIPLE MEDICAL PROBLEMS.  THE PROBLEMS
       7    RANGE FROM VASCULAR DISEASE, HEART DISEASE, LUNG DYSFUNCTION
       8    AND OTHER MEDICAL, SERIOUS MEDICAL PROBLEMS.  AND ON TOP OF
       9    ALL OF THIS, THEY WERE AT THE DAVIS HOSPITAL BECAUSE THE
      10    NURSING HOME WHERE THEY WERE COULD NO LONGER HANDLE THEM.
      11    THEY WERE COMBATIVE, UNCONTROLLABLE, ASSAULTIVE, AND THE
      12    NURSING HOME COULD NO LONGER DEAL WITH THE BEHAVIOR
      13    PROBLEMS.  AND IN THE MIDST OF ALL THIS, THE FAMILIES HAD TO
      14    MAKE VERY DIFFICULT, AND I EMPHASIZE DIFFICULT, JUDGMENTS AT
      15    THE END ABOUT WHAT KIND OF CARE THEY WERE GOING TO RECEIVE
      16    AT THE HOSPITAL AND WHAT CARE THEY WEREN'T GOING TO RECEIVE.
      17         AND I HOPE THAT AT THE END OF THE OPENING STATEMENT
      18    WHEN I SIT DOWN, AND HOPEFULLY IT WON'T BE TOO LONG FROM
      19    NOW, THAT YOU REMEMBER THE CONTEXT IN WHICH TO VIEW THIS
      20    CASE AND THE EVIDENCE IN THIS CASE.  AND THE CONTEXT IS YOU
      21    HAVE A DOCTOR WHO IS PART OF A MEDICAL TEAM PROVIDING CARE
      22    TO VERY SERIOUSLY ILL AND VERY SERIOUSLY SICK, ELDERLY
      23    PATIENTS IN A HOSPITAL SETTING WHERE THE FAMILIES HAVE MADE
      24    CERTAIN LIMITATIONS IN ADVANCE UPON WHAT CARE SHOULD BE
      25    GIVEN AND WHAT CARE SHOULD BE WITHHELD.


                                                                       48



       1         NOW, YOU ARE GOING TO HEAR EVIDENCE IN THIS CASE,
       2    LADIES AND GENTLEMEN, ABOUT PAIN AND ABOUT SUFFERING.  AND
       3    YOU ARE GOING TO SEE THAT THE EVIDENCE WILL SHOW THAT DR.
       4    WEITZEL AS PART OF A MEDICAL TEAM HAD AS HIS ONLY PURPOSE TO
       5    ALLEVIATE PAIN AND SUFFERING.  YOU ARE GOING TO ALSO HEAR
       6    ABOUT FAMILIES AND THE DIFFICULT CHOICES THEY HAD TO MAKE IN
       7    TERMS OF WHAT THEY WERE GOING TO DO WITH THEIR LOVED ONE
       8    GIVEN THE CIRCUMSTANCES IN THE HOSPITAL WHERE HOME CARE AND
       9    NURSING HOME CARE WERE NO LONGER OPTIONS.
      10         YOU ARE GOING TO HEAR ALSO ABOUT THE FIVE VERY SICK AND
      11    ELDERLY PATIENTS AND THE MEDICAL PROBLEMS THEY HAD AND THE
      12    DIFFICULT AND COMPLICATED CARE THAT WAS REQUIRED, GIVEN THE
      13    FACT THAT THEY WERE ELDERLY, GIVEN THE FACT THAT THEY WERE
      14    DEMENTED, GIVEN THE FACT THAT THEIR CONDITIONS CHANGED, NOT
      15    ONLY FROM DAY TO DAY, BUT FROM HOUR TO HOUR AND FROM MINUTE
      16    TO MINUTE, AND NOW, LADIES AND GENTLEMEN, ALMOST FIVE YEARS
      17    LATER THE STATE WANTS TO PICK APART WITH PERFECT 20/20
      18    HINDSIGHT ALL THAT MEDICAL CARE AND CALL IT FIRST DEGREE
      19    MURDER.
      20         THE EVIDENCE WILL SHOW THAT NONE OF THIS WAS MURDER,
      21    THAT THERE'S REASONABLE DOUBT WRITTEN ALL OVER THIS CASE AND
      22    WHAT YOU HAVE AND WHAT THE EVIDENCE WILL SHOW IS YOU HAVE A
      23    PHYSICIAN AND I'LL TELL YOU RIGHT NOW, NOT A PERFECT
      24    PHYSICIAN, BUT A WELL-INTENTIONED PHYSICIAN AND A WHOLE
      25    MEDICAL TEAM PROVIDING END-OF-LIFE CARE, NOTHING MORE,


                                                                       49



       1    NOTHING LESS.
       2         YOU'LL ALSO SEE AND THE EVIDENCE WILL SHOW THAT THE
       3    SOLE PURPOSE AND THE ONLY GOAL OF THIS MEDICAL TEAM WAS TO
       4    PROVIDE COMFORT CARE AND MAKE SOMEBODY COMFORTABLE IN THE
       5    LAST DAYS OF THEIR LIFE.  AND FINALLY, LADIES AND GENTLEMEN,
       6    THE EVIDENCE WILL SHOW THAT DR. WEITZEL DIDN'T CAUSE ANY OF
       7    THESE DEATHS.  IF HE DID ANYTHING, HE WAS ATTEMPTING TO
       8    BRING COMFORT AND DIGNITY TO EACH ONE OF THEM.
       9         ONE OF THE PATIENTS AT THE HOSPITAL WAS A WOMAN NAMED
      10    JUDITH LARSEN, YOU SAW HER PHOTOGRAPH ON OPENING STATEMENT.
      11    JUDITH WAS 93 YEARS OLD WHEN SHE WAS ADMITTED TO THE
      12    HOSPITAL ON DECEMBER 6TH OF 1995.  IN JANUARY OF 1995 SHE
      13    HAD A VERY ACUTE SERIOUS STROKE AND SHE WAS HOSPITALIZED
      14    FIRST AT LDS HOSPITAL IN SALT LAKE AND THEN AT COTTONWOOD
      15    HOSPITAL AS A RESULT OF THAT STROKE.  AND THAT STROKE CAUSED
      16    JUDITH NOT ONLY TO BECOME CONFUSED, NOT ONLY TO BECOME
      17    DISORIENTED, BUT ALSO DEPRIVED OF HER OF A GREAT ABILITY TO
      18    COMMUNICATE.  IT ALSO CAUSED HER OTHER IMPAIRMENTS IN TERMS
      19    OF HER ABILITY TO WALK AND DO THE NORMALLY DAILY TASKS OF
      20    EVERYDAY LIVING.
      21         IN JULY OF 1995 SHE STARTED TO GET ILL AND SHE WAS SO
      22    ILL, SHE WAS SICK, SHE WAS VOMITING, SHE WAS ONCE AGAIN
      23    HOSPITALIZED AT COTTONWOOD HOSPITAL.  AND IN AUGUST, THE
      24    LATER PART OF AUGUST OF 1995, SHE HAD ANOTHER STROKE AND
      25    THIS WAS ONCE AGAIN ANOTHER ACUTE STROKE, VERY SERIOUS


                                                                       50



       1    STROKE AND SHE WAS HOSPITALIZED AT COTTONWOOD HOSPITAL.
       2         AND TO PUT THIS CASE IN SOME CONTEXT, I WANT TO READ TO
       3    YOU THE ACTUAL ENTRY MADE BY DR. PEARCE AND THIS WILL BE IN
       4    EVIDENCE IN THIS CASE.  THIS IS IN AUGUST OF 1995 AND DR.
       5    PEARCE IS THE DOCTOR AT COTTONWOOD WHO IS TAKING CARE OF
       6    JUDITH AND HE WRITES IN HIS DISCHARGE SUMMARY, ASSESSMENT:
       7    DEMENTIA, WHICH BY THE WAY, YOU'LL HEAR EVIDENCE IS A
       8    TERMINAL CONDITION.  TWO:  NEW STROKE SYNDROME WITH APHASIA.
       9    APHASIA IS A FANCY WORD FOR CAN'T SPEAK VERY WELL, YOU HAVE
      10    DIFFICULTY COMMUNICATING.  AND WITH LOSS OF INTEREST IN
      11    SWALLOWING EITHER FOOD OR FLUIDS.  THREE:  PAST HISTORY OF
      12    HYPERTENSION.  FOUR:  QUESTION OF ISCHEMIC HEART DISEASE.
      13         HE GOES ON TO SAY, PLAN:  IN DISCUSSION WITH THE
      14    FAMILY, IT IS DECIDED THAT THE LAST SIX MONTHS OF HER LIFE
      15    HAVE BEEN VERY POOR QUALITY.  IN FACT, NO QUALITY AT ALL.
      16    WITH POOR RECOGNITION OF PEOPLE, NO CONVERSATION, NO
      17    DECISION-MAKING.  THE OPTION AT THE TIME OF DISCHARGE IS TO
      18    PLACE A FEEDING TUBE, PERIPHERAL NUTRITION OR N.G. TUBE,
      19    N.G. STANDS FOR I THINK IT'S NASAL GASTRIC, IT'S A TUBE TO
      20    ALLOW YOU TO EAT, AND THE FAMILY FEELS THAT THIS WOULD BE
      21    AGGRESSIVE AND INAPPROPRIATE.  THEY ALSO WANTED NO TREATMENT
      22    OF INFECTION, SUCH AS URINARY INFECTIONS, PULMONARY, ET
      23    CETERA.  DISPOSITION:  SHE WILL BE TRANSFERRED TO A NURSING
      24    HOME FOR TERMINAL CARE.
      25         JUDITH WENT TO A NURSING HOME AND SHE WENT TO THE


                                                                       51



       1    HOLLADAY CARE CENTER WHICH IS IN HOLLADAY AND THERE SHE
       2    REBOUNDED.  BUT WHILE SHE WAS AT THE NURSING HOME, SHE
       3    BECAME VERY, VERY UNCONTROLLABLE AND THIS WAS A BIG PROBLEM.
       4    AND YOU'LL SEE IN THE NURSING HOME NOTES, SOME OF THE MORE
       5    POIGNANT NOTES I THINK ABOUT THIS CASE, BECAUSE HER SON
       6    MERLIN -- WHAT HAPPENED IS JUDITH WOULD HAVE FALLS AND SHE
       7    WOULD BE HOSPITALIZED.  AND FALLS, AS YOU CAN IMAGINE, FOR
       8    SOMEBODY OF 93 IS A PRETTY SERIOUS MATTER.
       9         IN ONE FALL SHE HAD -- SHE SUFFERED A CONCUSSION.
      10    ANOTHER FALL SHE HAD SHE HAD A THREE-INCH GASH IN HER HEAD.
      11    AND YOU'LL SEE IN THE NOTES THAT HER SON MERLIN IS SAYING
      12    SEDATE HER AND SEDATE HER MORE.  WHY?  BECAUSE HE'S
      13    CONCERNED, OBVIOUSLY, ABOUT THE IMPACT OF A FALL ON A
      14    93-YEAR-OLD MOTHER IN A NURSING HOME AND HE'S BEEN TO THE
      15    HOSPITAL AND HE KNOWS WHAT'S HAPPENING.  BUT SHE IS
      16    UNCONTROLLABLE.  THEY PUT RESTRAINTS ON HER, SHE GETS OUT OF
      17    HER RESTRAINTS, SHE FALLS.  SO FINALLY THE NURSING HOME SAYS
      18    SEND HER TO DAVIS FOR AN EVALUATION.
      19         SHE ARRIVES ON DECEMBER 6TH.  AND I WOULD SAY THE FIRST
      20    FEW WEEKS OF HER HOSPITAL STAY I WOULD SAY ARE RELATIVELY
      21    UNEVENTFUL.  HOWEVER, ON THE 26TH, ON OR ABOUT THE 26TH OF
      22    DECEMBER, SHE HAS A SEIZURE AND IT'S A GRAND MAL SEIZURE AND
      23    THEN SHE STARTS THROWING UP AND SHE THROWS UP CONTINUOUSLY
      24    FOR 26 HOURS STRAIGHT.  AND ONE OF THE THINGS THAT THEY
      25    NOTICE WHEN SHE'S THROWING UP IS SHE'S THROWING UP WHAT THEY


                                                                       52



       1    CALL COFFEE GROUNDS.  AND I ALWAYS HAVE A DIFFICULT TIME
       2    WITH THIS WORD, EMESIS.  AND WHAT THAT MEANS IS THAT'S A
       3    FANCY WAY OF SAYING SHE HAS BLOOD IN HER VOMIT AND WHAT THAT
       4    MEANS IS SHE'S BLEEDING INTERNALLY.
       5         DR. WEITZEL TALKS TO MERLIN AND HE GOES OVER THE
       6    SITUATION WITH HIS 93-YEAR-OLD MOM WHO HAS BEEN THROUGH THE
       7    YEAR THAT SHE HAS JUST BEEN THROUGH.  AND MERLIN SAYS,
       8    CONSISTENT WITH WHAT HE SAID BACK IN AUGUST AND CONSISTENT
       9    WITH EVERYTHING ELSE THAT YOU'LL SEE IN THE CHARTS, HE SAYS,
      10    JUST KEEP HER COMFORTABLE IS ALL I WANT YOU TO DO.  AND
      11    THAT'S PRECISELY WHAT NOT ONLY DR. WEITZEL DID BUT THE WHOLE
      12    NURSING STAFF THAT WAS ATTENDING TO HER.  THEY KEPT HER
      13    COMFORTABLE UNTIL SHE DIED ON JANUARY 3RD OF 1996.
      14         AND PART OF COMFORT CARE -- AND YOU'LL HEAR EXPERTS.
      15    AND THE GREAT THING ABOUT THIS CASE, IF YOU WANT TO HEAR A
      16    LOT OF EXPERTS, YOU ARE IN A PERFECT POSITION BECAUSE THERE
      17    WILL BE A LOT OF THEM IN THIS CASE.  WE'LL CALL SOME, THE
      18    STATE WILL CALL SOME.  BUT THERE'S GOING TO BE A GENERAL
      19    AGREEMENT NOT ONLY WITH OUR EXPERTS BUT ALSO THE STATE'S
      20    EXPERTS, SOME OF THEM, AND THEY ARE GOING TO TELL YOU, THAT
      21    COMFORT CARE OR END-OF-LIFE CARE INVOLVES A LOT OF THINGS.
      22         AND ONE OF THE THINGS IT INVOLVES IS MEDICATION.  AND
      23    THE REASON WHY IS BECAUSE PEOPLE ARE EITHER IN PAIN OR THEY
      24    ARE SUFFERING FOR A LOT OF DIFFERENT REASONS AND THAT'S AN
      25    APPROPRIATE THING TO DO IS TO KEEP THEM COMFORTABLE.  AND


                                                                       53



       1    THEY ARE GOING TO TELL YOU THAT MORPHINE AS A MEDICATION IS
       2    SORT OF LIKE THE GOLD STANDARD, IF YOU WILL, IN TERMS OF A
       3    MEDICATION THAT ROUTINELY IS USED IN END-OF-LIFE CARE.  AND
       4    THEY ARE GOING TO TELL YOU A PHYSICIAN HAS AN ABSOLUTE DUTY,
       5    IN OTHER WORDS, IT'S ETHICAL AND IT'S ETHICALLY REQUIRED
       6    THAT IF A PHYSICIAN SEES SOMEBODY IN PAIN OR A PHYSICIAN HAS
       7    A PATIENT WHO IS SUFFERING, A PHYSICIAN HAS AN ABSOLUTE
       8    ETHICAL RESPONSIBILITY TO DO SOMETHING ABOUT IT.
       9         AND ALSO THEY ARE GOING TO TELL YOU THAT IF A PHYSICIAN
      10    IN END-OF-LIFE CARE HAS TO PRESCRIBE MEDICATION TO PROVIDE
      11    COMFORT, AND EVEN IF THAT PHYSICIAN KNOWS THAT THAT MIGHT
      12    HAVE A TENDENCY TO HASTEN A DEATH, THAT'S STILL ETHICALLY
      13    APPROPRIATE AND A PHYSICIAN IS OBLIGATED TO DO IT IF THE
      14    PURPOSE OF ADMINISTERING AND PRESCRIBING THE MEDICATION IS
      15    TO KEEP SOMEBODY COMFORTABLE AND TO ALLEVIATE PAIN AND
      16    SUFFERING.
      17         NOW, YOU HAVE FIVE CASES, FIVE COUNTS.  IT'S ALMOST
      18    LIKE WE HAVE FIVE DIFFERENT CASES, AND WE DO.  THERE IS ONE
      19    CASE THAT IS DIFFERENT THAN THE OTHER FOUR AND THAT'S THE
      20    CASE OF ELLEN ANDERSON, PATIENT ELLEN ANDERSON.  BECAUSE
      21    ELLEN ANDERSON IS NOT REALLY A CASE AND THE FACTS WILL SHOW
      22    THIS, THE EVIDENCE WILL SHOW THIS OF END-OF-LIFE CARE, ELLEN
      23    ANDERSON IS PURELY AND SIMPLY, IF YOU WILL, A PAIN CASE
      24    WHERE MEDICATION IS PRESCRIBED FOR PAIN.  AND LET ME GIVE
      25    YOU A LITTLE HISTORY ABOUT ELLEN BECAUSE I THINK THIS IS


                                                                       54



       1    IMPORTANT.  REMEMBER, THERE'S GOING TO BE A LOT OF MEDICAL
       2    TESTIMONY HERE BUT EVERY PATIENT HAS A HISTORY AND THAT
       3    CIRCUMSTANCE OF GOING INTO THE HOSPITAL IS VERY IMPORTANT.
       4         BUT BRIEFLY, ELLEN DID HAVE A HIP FRACTURE IN JUNE OF
       5    1995 AND SHE LOST 30 POUNDS BY THE TIME WE HIT DECEMBER OF
       6    1995 AND SHE WASN'T A VERY LARGE WOMAN TO BEGIN WITH.  AND
       7    HER FAMILY IS GOING TO TELL YOU THAT THEY HAD HER IN A
       8    NURSING HOME AND AS THEY DESCRIBE IT FOR ABOUT SIX MONTHS
       9    SHE WAS IN WHAT THEY WOULD CALL AN ACUTE PANIC ATTACK
      10    CONSTANTLY, NEVER A MINUTE WASN'T SHE IN THIS STATE.  AND
      11    SHE WOULD SCREAM AND SHE WOULD SCREAM UNCONTROLLABLY AND SHE
      12    WAS ABSOLUTELY TERRIFIED.  AND THE FAMILY IS STRUGGLING
      13    DEALING WITH THIS.
      14         AND FINALLY ONE OF HER DAUGHTERS, DIANE, COMES INTO THE
      15    NURSING HOME AT THE END OF DECEMBER OF 1995 AFTER HAVING
      16    DEALT WITH THIS FOR SIX MONTHS AND SEEING THEIR POOR MOM IN
      17    THAT SITUATION AND SAYS, I'VE HAD ENOUGH, I DON'T WANT HER
      18    HERE ANYMORE BECAUSE WHATEVER YOU ARE GIVING HER ISN'T
      19    WORKING.  AND YOU KNOW WHAT?  I WANT HER TO GET MORPHINE AND
      20    HOW CAN I GET HER TO GET MORPHINE?  I CAN'T DO IT IN A
      21    NURSING HOME, BUT IF WE HOSPITALIZE HER, MAYBE SHE CAN GET
      22    SOME MORPHINE BECAUSE WE'VE TRIED EVERYTHING ELSE AND AT
      23    LEAST MAYBE MORPHINE WILL HAVE A SEDATING EFFECT.  SO ELLEN
      24    IS THEN TRANSFERRED TO THE DAVIS HOSPITAL.
      25         AND I'M GOING TO PUT THIS UP THEN WE'LL GO THROUGH A


                                                                       55



       1    NUMBER OF THESE.  CAN EVERYBODY SEE THAT?  I DON'T KNOW IF
       2    THIS IS THE BEST POSITION, BUT ANYWAY, THIS IS NOT A TIME
       3    LINE BECAUSE ELLEN WAS IN THE HOSPITAL FROM 12/29 THROUGH
       4    12/30.  THIS IS ALL FROM THE MEDICAL RECORDS.  THIS IS WHAT
       5    THE ENTRIES ARE.
       6         AND AS YOU CAN SEE IN THIS PARTICULAR CASE AND YOU'LL
       7    SEE OTHERS, AND I'LL TELL YOU THEY ALL SORT OF -- THE
       8    RECORDS ARE ALL SORT OF THE SAME, YOU CAN FOLLOW THEM.
       9    THERE'S ALWAYS AN ADMISSION/EVALUATION AND OF COURSE THERE'S
      10    SOME MEDICAL HISTORY THAT'S TAKEN BECAUSE OBVIOUSLY THAT'S
      11    IMPORTANT FOR THE HEALTHCARE PROVIDERS.  AND THEN THERE'S
      12    USUALLY AN INDICATION OF WHAT MEDICATIONS THE PATIENTS WERE
      13    ON ON ADMISSION BECAUSE OBVIOUSLY THAT'S IMPORTANT.
      14         AND I'LL TELL YOU RIGHT NOW XANAX, THAT'S AN
      15    ANTIANXIETY DRUG, IT'S A SEDATING DRUG, IT'S A SEDATIVE.
      16    AMITRIPTYLINE IS A SEDATING DRUG, THAT'S AN ANTIDEPRESSANT.
      17    AMBIEN IS ALSO A SEDATING DRUG.  LORTAB IS A PAIN MEDICATION
      18    AND YOU'LL HEAR DOCS TELL YOU ABOUT THIS, BUT I'M JUST
      19    SAYING THESE ARE THE KIND OF THINGS YOU'LL SEE.  AND THEN
      20    THERE'S ALWAYS AN INITIAL ADMISSION NOTE THAT YOU'LL SEE FOR
      21    EACH ONE, IT'S USUALLY DONE BY THE NURSES.
      22         AND I JUST WANT YOU TO SEE AS WE GO THROUGH THESE TIME
      23    LINES THERE ARE GOING TO BE ENTRIES IN THE MEDICAL RECORDS.
      24    AND ONE THING WE'VE DONE WHICH HOPEFULLY WILL BE HELPFUL IS
      25    INSTEAD OF HAVING TO READ THE CHICKEN SCRATCH OF SOME


                                                                       56



       1    PHYSICIAN, WE HAD THEM TRANSCRIBED AND TYPED UP SO YOU HAVE
       2    THE PAGE IN FRONT OF AND YOU CAN SEE WHAT THE DOCTORS AND
       3    NURSE WROTE AND RIGHT ACROSS IT WILL BE TYPED SO IT'S EASY
       4    TO READ.  ANYWAY, YOU'LL SEE ENTRIES BY DR. WEITZEL AND
       5    ENTRIES BY NURSES AND THERE'S A WHOLE SERIES OF NURSES AND
       6    THESE ARE IN THE NURSES' NOTES.
       7         BUT THESE ARE THE FACTS WITH MS. ANDERSON.  SHE COMES
       8    IN AND SHE ARRIVED I BELIEVE AT ABOUT 4 O'CLOCK IN THE
       9    AFTERNOON.  AND I'LL TELL YOU DR. WEITZEL IS FULLY PREPARED
      10    TO NOT ONLY DOCUMENT THAT HE SAW HER THE DAY SHE ARRIVED, HE
      11    ACTUALLY SAW HER AND HE CAN DOCUMENT THAT, BUT HE'LL TELL
      12    YOU ABOUT HIS EVALUATION.  AND THIS IS WHAT HE PUTS IN HIS
      13    INITIAL EVALUATION, GENERALLY THE OVERVIEW OF HER MEDICAL
      14    SITUATION.
      15         AND THEN HERE THE NURSE -- THIS IS WHAT THE NURSE
      16    STATES, PATIENT ADMITTED IN COMPANY OF DAUGHTER FROM CARE
      17    CENTER.  DETERIORATING OVER THE PAST THREE WEEKS.  CRYING
      18    AND SCREAMING INCONSOLABLY EVEN WHEN FAMILY IS PRESENT.
      19    MORPHINE 10 MILLIGRAMS, S.O. 4 BY THE WAY, I HAVE TO PUT IT
      20    IN THERE BECAUSE IT'S IN THERE, IT MEANS -- IT'S SULFATE.
      21    IT'S JUST -- THAT'S WHAT THEY ALWAYS PUT IN, S.O. 4 FOR
      22    MORPHINE, BUT THAT'S WHAT WE'RE TALKING ABOUT, INTRAMUSCULAR
      23    FOR SEVERE PAIN.  PATIENT BECOMES RIGID AND SCREAMS WHEN
      24    TOUCHED RELATED TO PROFOUND OSTEOPOROSIS WHICH CAUSED HER TO
      25    HAVE A SERIES OF FRACTURES. SHE HAD A NUMBER OF COMPRESSION


                                                                       57



       1    FRACTURES BECAUSE THE BONES -- YOUR BONES ARE VERY BRITTLE
       2    AND IT'S VERY PAINFUL WHEN YOU HAVE THOSE FRACTURES.  SO
       3    THAT IS THE FIRST MEDICATION.
       4         THEN WE GO OVER TO THE NEXT DAY AT 1 O'CLOCK THE NURSE
       5    CHARTS, PATIENT'S RESPIRATION IS VERY ERRATIC, 8 TO 16.
       6    BLOOD PRESSURE 75/50.  DR. WEITZEL PAGED, A NURSING
       7    SUPERVISOR INFORMED OF PATIENT'S CONDITION.  THE NURSING
       8    SUPERVISOR IS ALWAYS NOTIFIED WHEN A NURSE BELIEVES THAT
       9    SOMEONE IS ABOUT TO DIE, THAT WAS HOSPITAL PROTOCOL AND
      10    THAT'S THE SIGNIFICANCE OF THAT ENTRY.  AND THEN AT 3:15,
      11    PATIENT AWAKENED, THRASHING ARMS AND ATTEMPTING TO THROW
      12    BODY.  PATIENT MOANING AND SCREAMING.  DR. WEITZEL PAGED
      13    AGAIN, THIS IS BY TRACY SCHOLL, A NURSE.  AND THEN AT 3:30,
      14    DR. WEITZEL RETURNS PAGE, INFORMED OF PATIENT'S CONDITION.
      15         IN OTHER WORDS, ALL THROUGHOUT HERE AND COUNSEL IS
      16    QUITE RIGHT IN HER OPENING STATEMENT, THE NURSES THERE ARE
      17    PROVIDING MOST OF THE CARE.  AND SO THEY ARE GIVING
      18    INFORMATION TO THE DOCTORS ABOUT WHAT THEY ARE ASSESSING IS
      19    THE CLINICAL POSITION OF THE PATIENT AND THAT'S WHAT NURSE
      20    SCHOLL IS DOING HERE.  SHE TELLS DR. WEITZEL AND THEN
      21    MORPHINE IS GIVEN INTRAMUSCULAR PER THE DOCTOR'S ORDERS AND
      22    THEN THAT'S WHAT HAPPENS, AND THEN MS. ANDERSON DIED AT 8:55
      23    A.M.
      24         THE FACTS IN THIS CASE AND THIS MS. ANDERSON WAS
      25    AUTOPSIED BY THE MEDICAL EXAMINER AND HE'LL TESTIFY AND


                                                                       58



       1    HE'LL TELL YOU THAT IN HIS EXAMINATION SHE HAD ACUTE
       2    PNEUMONIA.  IN OTHER WORDS, REMEMBER, THERE WAS A CHEST
       3    X-RAY DONE AT ABOUT FIVE OR SIX IN THE MORNING AND THERE WAS
       4    AN E.K.G. THAT WAS DONE THAT WAS ABNORMAL.  AND HE'LL TELL
       5    YOU THAT THERE ARE AT LEAST FOUR OR FIVE REASONS, HE
       6    COULDN'T TELL EXACTLY, BUT FOUR OR FIVE REASONS ALL OF WHICH
       7    COULD HAVE CAUSED HER DEATH.  HE DOES NOT KNOW BECAUSE ANY
       8    ONE OF THEM WOULD BE BEEN SUFFICIENT, AND ONE OF THEM WAS
       9    SHE HAD ACUTE PNEUMONIA UPON ADMISSION WHICH YOU'LL SEE IN
      10    THE X-RAY.  IT IS SHOWN RIGHT THERE IN THE X-RAY WHAT THE
      11    PROBLEM IS AND THERE ARE OTHER THINGS, CARDIAC AND WHAT HAVE
      12    YOU, RELATED TO THE CIRCUMSTANCES OF HER DEATH.  AND WE'LL
      13    HAVE OUR OWN EXPERT WHO IS GOING TO TELL YOU THAT SHE DIDN'T
      14    DIE AT ALL ANYTHING RELATED TO MORPHINE.
      15         NOW, YOU ARE GOING TO SEE A PATTERN HERE BUT IT'S A
      16    PATTERN OF CIRCUMSTANCE.  IT'S NOT GOING TO BE A PATTERN OF
      17    CRIMINALITY.  FOR EXAMPLE, YOU ARE GOING TO SEE IN THE OTHER
      18    FOUR CASES THAT ALL OF THESE PATIENTS ARE SUFFERING FROM
      19    SEVERE DEMENTIA OR ALZHEIMERS AND CAN'T COMMUNICATE.  AND
      20    YOU ARE GOING TO SEE THAT THEY ARE ALL ADMITTED BECAUSE THEY
      21    NEED TO BE SEDATED.  AND YOU'LL SEE IN THE PROGRESS NOTES
      22    AND THE NURSING NOTES FROM THE NURSING HOMES THAT THEY ARE
      23    ALL BEING SEDATED EITHER WITH ATIVAN OR HALDOL WHICH IS
      24    ANOTHER SEDATING MEDICATION OR SOMETHING LIKE THAT.  WHY?
      25    BECAUSE THIS IS AN ATTEMPT TO CONTROL THEIR BEHAVIOR.  SO


                                                                       59



       1    WHEN THEY ARE GOING INTO THE HOSPITAL THEY ARE ALL ON PSYCH
       2    MEDS AND THEY ARE ALL ON SEDATING CONTROL MEDS.
       3         YOU ARE ALSO GOING TO SEE THAT THEY ARE ALL HIGH-RISK
       4    PATIENTS GIVEN THE NATURE OF THEIR AGE, THEIR DEMENTIA AND
       5    THEIR OTHER MEDICAL COMPLICATIONS.  AND YOU ARE GOING TO SEE
       6    AND I THINK SIGNIFICANTLY THAT THEY ALL HAD, THEY ALL HAD --
       7    THE OTHER FOUR ALL HAD LIVING WILLS OR MEDICAL DIRECTIVES
       8    WHICH THEY PROVIDED TO THE HOSPITAL WHICH LIMITED THE KIND
       9    OF CARE THEY COULD GET.
      10         NOW, LET'S LOOK AT SOME OTHERS AND WE'LL GO THROUGH
      11    THEM IN SORT OF A TIME LINE SO YOU CAN GET SOME FEEL FOR
      12    WHAT THE FACTS WILL BE IN THIS CASE.  HOW IS THAT?  IS THAT
      13    SOMETHING YOU ALL CAN SEE?
      14         NOW, THIS IS -- THIS IS PATIENT ENNIS ALLDREDGE AND
      15    YOU'LL SEE THESE AGAIN.  BUT ONCE AGAIN, THEY ALL START WITH
      16    THE DAY HE'S ADMITTED AND THEY GO THROUGH THE TIME OF THE
      17    DEATH AT 1/14 IN THIS CASE OF '96.  AND WHAT WE'VE ATTEMPTED
      18    TO DO IS TO PROVIDE IN COLOR -- IN THE GREEN, THESE ARE THE
      19    PSYCH MEDS THAT WERE ORDERED AND ACTUALLY GIVEN AT THE
      20    HOSPITAL.  THE BLUE IS THE MORPHINE WHICH WAS GIVEN TO THE
      21    PATIENT AT THE HOSPITAL.  AND IF YOU LOOK AT THIS ONE, ONCE
      22    AGAIN IF WE START OUT WITH THE ADMISSION, WE HAVE AN
      23    83-YEAR-OLD WHITE MALE ADMITTED AND ORIENTED TO THE UNIT.
      24    PATIENT ACCOMPANIED BY HIS WIFE OF SEVEN YEARS.  PATIENT IS
      25    VERY COMBATIVE AND AGITATED.  PATIENT NOT ORIENTED TO TIME,


                                                                       60



       1    PLACE OR SITUATION, AND IT GOES ON FROM THERE.  AND EVEN
       2    SAYS, IS VERY STRONG AND GRABS AT STAFF, HURTING STAFF.
       3    THAT'S THE SIGNIFICANCE OF THE DIFFICULTY OF THE BEHAVIOR.
       4         THEN WE HAVE HIS HISTORY, ALZHEIMERS, T-CELL LYMPHOMA,
       5    WHICH IS A FORM OF CANCER, DIABETES WHICH WAS UNCONTROLLABLE
       6    FOR 25 YEARS, HE WAS ON INSULIN.  HERNIA REPAIR,
       7    HYPERTENSION, AND HE HAD PREVIOUS BYPASS SURGERY.  HE HAD
       8    CORONARY ARTERY DISEASE ON ADMISSION.  AND THEN HIS
       9    MEDICATIONS ON ADMISSION, ATIVAN WHICH IS, ONCE AGAIN, A
      10    SEDATING ANTIANXIETY MEDICATION.  THIS WAS ALL THAT WAS
      11    GIVEN WHEN HE WAS AT THE NURSING HOME.  THIS HAS NOTHING TO
      12    DO WITH THE HOSPITAL.  RISPERDAL, WHICH IS A PSYCH
      13    MEDICATION WHICH I BELIEVE HE ALSO GOT WHEN HE WAS IN THE
      14    HOSPITAL.  VOLMAX IS ANOTHER PSYCH MEDICATION, HYTRIN IS
      15    ANOTHER ONE, BUSPAR IS ANOTHER ONE AND THEN HE ALSO GOT
      16    MELLARIL AND HALDOL AT THE NURSING HOME.  ONCE AGAIN, THESE
      17    ARE ALL PSYCH MEDS THAT WERE PROVIDED.  THEY ARE ALL
      18    SEDATING TO HIM IN AN ATTEMPT TO CONTROL HIM.  D.N.R., DO
      19    NOT RESUSCITATE.  HE HAD A LIVING WILL AND THERE WERE
      20    MEDICAL DIRECTIVES LIMITING THE CARE.
      21         NOW, SIGNIFICANTLY IF WE FLIP OVER TO HERE TO GIVE YOU
      22    SOME IDEA HOW DIFFICULT THIS WAS.  THIS IS -- TRACY SCHOLL
      23    IS THE NURSE AGAIN, SHE STATES, PATIENT REMAINS POSEY. THEY
      24    HAD TO PUT HIM IN A RESTRAINT BECAUSE HE WAS VIOLENT AND
      25    COMBATIVE SO HE'S IN AN ACTUAL RESTRAINT IN THE BED AND


                                                                       61



       1    THAT'S WHAT THE POSEY IS.  PATIENT HAD LARGE BOWEL MOVEMENT,
       2    HAS SMEARED FECES ALL OVER, INCLUDING FACE, BED RAILS, ET
       3    CETERA.  ON THE 12TH, HE HAS AN M.R.I. AND YOU'LL SEE THIS,
       4    THIS WILL BE PART OF THE RECORD.  AN M.R.I. IS A WAY THAT
       5    YOU GO -- I THINK IT'S CALLED MAGNETIC RESONANCE IMAGING,
       6    BUT IT'S A WAY TO SEE IF THERE IS A PROBLEM WITH THE STROKE
       7    EVENT.
       8         AND THE M.R.I. REPORT COMES BACK, AND I'LL TELL YOU, IT
       9    IS SOMEWHAT AMBIGUOUS AS TO WHAT REALLY IS FOUND.  BUT IT
      10    WAS CONSIDERED BY NOT ONLY DR. WEITZEL, BUT THE NURSING
      11    STAFF AS INDICATING HE HAD A STROKE.  AND LAURIE WILLSON IS
      12    A NURSE AND SHE WRITES THIS -- THIS IS WHAT SHE WROTE ON
      13    THIS DAY INTERVENTION:  M.R.I., THAT'S THAT MAGNETIC
      14    RESONANCE IMAGING, DR. CLINGER, HE'S THE GUY THAT DID IT,
      15    CALLED TO REPORT EVIDENCE OF POSSIBLE NEW INFARCTION, THAT'S
      16    A STROKE WHERE YOUR BRAIN DOESN'T GET THE BLOOD AND
      17    THEREFORE THERE'S A PROBLEM, TO LEFT OCCIPITAL LOBE.
      18    PATIENT REMAINS RESTLESS AND MINIMALLY RESPONSIVE EXCEPT TO
      19    DISCOMFORT.  DR. WEITZEL HAS BEEN NOTIFIED OF THE RESULTS.
      20    IN VIEW OF HIS DIABETES AND POSSIBLE DEHYDRATION, DR.
      21    WEITZEL HAS ORDERED I.V.  DR. WEITZEL PLANS TO TALK WITH
      22    FAMILY IN MORNING REGARDING M.R.I. RESULTS AND PLAN OF CARE.
      23         THE NEXT DAY, THERE'S NO MORPHINE, NONE.  ON THE 12TH,
      24    THE 11TH OR THE 10TH FOR ANY PURPOSE.  ON THE 13TH, DR.
      25    WEITZEL SAYS, ADDENDUM -- THIS IS IN HIS PROGRESS NOTES,


                                                                       62



       1    YOU'LL HAVE THIS ALL WITH YOU, IT'S PART OF THE EVIDENCE.
       2    SPOKE WITH WIFE EXTENSIVELY.  SHE FEELS STRONGLY THAT NO
       3    EXTRAORDINARY MEASURES SHOULD BE TAKEN TO PROLONG ENNIS'
       4    LIFE.  GIVEN THE STROKE FOUND ON THE M.R.I., SHE REQUESTS WE
       5    DISCONTINUE I.V.  NO FLUIDS, NO FOOD, NO NOURISHMENT, AND
       6    GIVE COMFORT CARE.  LET HIM EXPIRE NATURALLY.
       7         SO THEN DR. WEITZEL PUTS IN HIS PLAN WHICH IS
       8    CONSISTENT WITH THAT AND THEN HE DECIDES APPROPRIATELY THAT
       9    HE'S GOING TO START MORPHINE 10 MILLIGRAMS EVERY THREE HOURS
      10    INTRAMUSCULAR WITH ATIVAN.  AND BY THE WAY, THE MORPHINE
      11    STARTS AT 8 O'CLOCK IN THE MORNING.  THE CONVERSATION WITH
      12    THE WIFE TOOK PLACE BEFORE 8 O'CLOCK, I MEAN, THIS -- YOU
      13    CAN'T SEE THAT RIGHT HERE BUT THAT'S WHEN IT OCCURRED.  AND
      14    THAT'S ALL GIVEN FOR COMFORT BECAUSE THE FAMILY HAS DECIDED
      15    TO LET HIM GO.  AND ONE OF THE THINGS THEY ALSO HAVE DECIDED
      16    IS TO DECREASE THE INSULIN.  THIS GENTLEMAN HAD
      17    UNCONTROLLABLE DIABETES.  AND YOU'LL HEAR -- THE MEDICAL
      18    TESTIMONY WILL BE IF YOU WITHDRAW THE INSULIN FROM SOMEBODY
      19    LIKE MR. ALLDREDGE, HE WILL EVENTUALLY LAPSE INTO A DIABETIC
      20    COMA AND DIE.
      21         NOW, FINALLY, THIS -- I'M JUST HIGHLIGHTING THESE,
      22    YOU'LL HAVE ALL THIS, BUT IT'S RIGHT HERE.  THE NURSE, ONCE
      23    AGAIN, LAURIE WILLSON, SHE'LL TESTIFY IN THIS TRIAL.  YOU'LL
      24    HEAR FROM HER, WE'LL CALL HER, 600, DR. WEITZEL GAVE
      25    TELEPHONE ORDER FOR MORPHINE 10 MILLIGRAMS INTRAMUSCULAR


                                                                       63



       1    GIVEN IN LEFT GLUTEUS.  NO RESPONSE FROM PATIENT TO NEEDLE
       2    STICK.  FAMILY REMAINS WITH PATIENT COMFORTING HIM AND
       3    TALKING WITH HIM ASKING HIM TO LET GO.
       4         NOW, I'VE TOLD YOU ABOUT THE TEAM.  TO HELP YOU, THESE
       5    ARE ALL THE FOLKS WHO PROVIDED MR. ALLDREDGE CARE.  IN OTHER
       6    WORDS, IT WASN'T JUST DR. WEITZEL.  THESE ARE ALL PEOPLE WHO
       7    PROVIDED HIM SOME FORM OF CARE.  EVERY ONE OF THESE PEOPLE
       8    HAD FULL ACCESS AT ANY TIME TO THE MEDICAL RECORDS AND THE
       9    MEDICAL CHARTS.  ANY TIME THESE PEOPLE COULD HAVE SEEN WHAT
      10    MEDICATIONS WERE BEING GIVEN AND WHAT THE CARE WAS BEING
      11    PROVIDED.
      12         AND MORE IMPORTANTLY, WE HAVE ASTERISKS UNDER THIS IS
      13    EARLENE COZZENS, SHE'S A NURSE.  WE HAVE AN ASTERISK BY
      14    BONNIE HARDEY, SHE'S A NURSE, AN ASTERISK BY LYNN LONG,
      15    NURSE, AND LAURIE WILLSON, NURSE.  AND THE REASON FOR THAT
      16    IS THOSE FOUR INDIVIDUALS ADMINISTERED THE MORPHINE.  IN
      17    OTHER WORDS, THERE WILL BE NO EVIDENCE IN THIS TRIAL THAT
      18    DR. WEITZEL EVER GAVE ONE OF THESE PATIENTS AN INJECTION.
      19    EVERY SINGLE INJECTION WAS GIVEN BY A NURSE, AND THESE
      20    NURSES WILL TESTIFY.
      21         AND I'LL TELL YOU RIGHT NOW THAT LYNN LONG WILL TESTIFY
      22    AND SHE WILL TELL YOU BASED UPON HER CLINICAL ASSESSMENT,
      23    SHE WAS THERE, SHE SAW THE PATIENT, SHE OBSERVED THE
      24    PATIENT, SHE HAD A FEEL FOR WHAT THE MEDICAL SITUATION WAS,
      25    AND SHE WILL TELL YOU THERE WAS ABSOLUTELY NOTHING WRONG,


                                                                       64



       1    NOTHING WITH THE MEDICATION PRACTICES IN TERMS OF
       2    ADMINISTERING MORPHINE FOR COMFORT CARE.
       3         LAURIE WILLSON, WE'RE GOING TO CALL HER.  WE HAD TO
       4    BRING HER IN ALL THE WAY IN FROM PENNSYLVANIA AND SHE'LL
       5    TELL YOU -- AND SHE ACTUALLY HAS A MASTER'S AS A NURSE AND
       6    SHE IS A NURSE PRACTITIONER SO THAT SHE HAS A LICENSE IN THE
       7    STATE OF UTAH TO GIVE MEDICATIONS.  AND SHE'LL TELL THAT YOU
       8    SHE WAS THERE, TOO, AND WHAT SHE SAW WITH RESPECT TO EACH
       9    ONE OF THESE PATIENTS WAS TOTALLY APPROPRIATE, WAS TOTALLY
      10    CONSISTENT WITH GOOD NURSING PRACTICE AND CERTAINLY THERE
      11    WAS NOTHING WRONG WITH THE CARE.  AND I'LL ALSO TELL YOU
      12    THERE'S NOT ONE NURSE THAT'S GOING TO TESTIFY IN THIS TRIAL
      13    THAT'S GOING TO TELL YOU THAT ANY INJECTION THEY GAVE, ANY
      14    INJECTION THEY GAVE WHEN THEY GAVE IT, THEY THOUGHT IT WAS
      15    GOING TO KILL A PATIENT.
      16         THIS IS ANOTHER TIME LINE, ONCE AGAIN, OUT OF THE
      17    MEDICAL RECORDS FOR MS. SMITH, LYDIA SMITH.  AND YOU CAN GO
      18    THROUGH THE SAME PROCESS, I'M GOING THROUGH THIS QUICKLY FOR
      19    PURPOSES OF JUST GIVING YOU SOME GENERALIZED UNDERSTANDING,
      20    BUT HERE, ONCE AGAIN, THE GREEN ARE THE PSYCH MEDS.  THESE
      21    WERE ACTUALLY GIVEN THE TIMES AND THE DOSAGES IN THE
      22    HOSPITAL.  YOU'LL SEE THESE AND THEN I HAVE, OF COURSE, THE
      23    DATE.
      24         SHE WAS ADMITTED TO THE HOSPITAL ON 12/20/95, SHE DIED
      25    ON 1/8/96.  AND WHAT IS SIGNIFICANT HERE IS SHE INDEED WAS


                                                                       65



       1    VERY COMBATIVE.  SHE HAD A STROKE RIGHT IN NOVEMBER OF 1995,
       2    A SEVERE STROKE.  SHE HAD A HISTORY OF CONGESTIVE HEART
       3    FAILURE, ATRIAL FIBRILLATION WHICH IS AN EVENT THAT CAN
       4    OCCUR WITH THE HEART THAT CAN CAUSE SUDDEN HEALTH, (DEATH?)
       5    HYPERTENSION AND SHE HAD A HEART VALVE REPLACEMENT.  SHE WAS
       6    ON A NUMBER OF MEDICATIONS AND SERZONE, WHICH IS ONE OF THE
       7    PSYCH MEDS THAT WAS SHE WAS ON WHEN SHE WAS ADMITTED, YOU'LL
       8    SEE SHE WAS GIVEN SERZONE AGAIN IN THE HOSPITAL.  HALDOL IS
       9    ANOTHER PSYCH MED AND I'M NOT SURE SHE GOT ANY HALDOL IN THE
      10    HOSPITAL BUT IT'S A SEDATING MEDICATION TO TRY TO GET
      11    CONTROL.
      12         AND SIGNIFICANTLY, SIGNIFICANTLY THERE'S AN ENTRY RIGHT
      13    HERE THIS ENTRY ON 12/28 AND KAY STEGLICH IS A C.S.W. WHICH
      14    IS A CERTIFIED SOCIAL WORKER.  SHE'S ONE OF THE SOCIAL
      15    WORKERS THAT WOULD COME IN AND PROVIDE CERTAIN KINDS OF
      16    ASSISTANCE.  SHE TALKS WITH THE FAMILY AND THE FAMILY
      17    VERBALIZES CONCERN REGARDING DISCHARGE PLANS.  THEY
      18    EMPHASIZE IMPORTANCE OF DECREASE IN PATIENT'S AGGRESSIVE
      19    BEHAVIOR IF SHE'S TO BE ADMITTED TO ROCKY MOUNTAIN BOUNTIFUL
      20    AFTER DISCHARGE.  THE NURSING HOMES -- ONCE SOMEBODY GETS
      21    COMBATIVE OR ASSAULTIVE, THE NURSING HOMES NO LONGER WILL
      22    TAKE THEM AND THE REASON FOR THAT IS IS THEY CAN BE A DANGER
      23    TO THEMSELVES, THEY CAN BE A DANGER TO THE STAFF OR THEY CAN
      24    BE A DANGER TO OTHER PATIENTS.
      25         SO THE WHOLE PURPOSE OF HER BEING HERE IS TO TRY TO GET


                                                                       66



       1    MS. SMITH SO THAT SHE WOULDN'T BE SO COMBATIVE AND
       2    ASSAULTIVE.  AND IN THE NURSING HOME, YOU'LL READ THIS,
       3    THERE WAS ONE INCIDENT RIGHT BEFORE SHE WAS ADMITTED WHERE
       4    SHE ACTUALLY WENT OUT, OUT OF THE NURSING HOME, WAS IN THE
       5    PARKING LOT, A BUNCH OF NURSES CAME OUT TO TRY TO GET HER TO
       6    COME BACK AND SHE PHYSICALLY FOUGHT THEM.  I MEAN, THAT'S
       7    THE BEHAVIOR WE'RE TALKING ABOUT, AND OBVIOUSLY, THE FAMILY
       8    IS CONCERNED ABOUT THE AGGRESSION AND TRYING TO RESOLVE IT.
       9         WE GO OVER HERE AND YOU CAN -- YOU CAN READ THESE.
      10    THESE BASICALLY -- BUT SEE THERE'S NOTHING THAT OCCURS
      11    SIGNIFICANT IN TERMS OF ANY KIND OF SEDATION OR ANY KIND OF
      12    POSITIVE EFFECT UNTIL WE GET TO THE 6TH OF JANUARY.  AND
      13    THERE YOU HAVE, FINALLY, BEHAVIOR IS NOT -- PATIENT HAS NOT
      14    BEEN VERY AGGRESSIVE.  SHE'S BEEN SLEEPING MOST OF THE DAY.
      15    WHEN AWAKE SHE'S BEEN TRYING TO STRIP.  WHEN OFFERED MEALS,
      16    SHE HAS SPIT IT OUT AT US.  BEHAVIOR:  PATIENT HAS BEEN
      17    QUIET THIS SHIFT.  RESTING QUIETLY WITH EYES CLOSED MOST OF
      18    THE SHIFT.  RESPIRATION:  EVEN AND UNLABORED.
      19         AND THEN WE GET TO THE 7TH AND THIS IS A CRITICAL DAY.
      20    AND YOU'LL SEE THAT DR. WEITZEL STATES IN HIS PROGRESS NOTE
      21    DOWN HERE, VERY WEAK.  WHAT HAPPENED IS MS. SMITH'S KIDNEYS
      22    SHUT DOWN AND SHE STOPPED TAKING FOOD, SHE STOPPED TAKING
      23    NOURISHMENT, SHE HAD NO URINE OUTPUT AND YOU'LL HEAR PEOPLE
      24    COME IN AND THEY'LL TELL YOU, EXPERTS IN HOSPICE CARE AND
      25    NURSES, THAT THOSE ARE SIGNS OF THE DEATH AND DYING PROCESS


                                                                       67



       1    WHEN THOSE THINGS OCCUR.
       2         AND SO THERE WAS AN ASSESSMENT THAT MS. SMITH WAS DYING
       3    AND DR. WEITZEL PUTS, FAMILY DISCUSSION WITH TWO SONS AND
       4    DAUGHTER REVEALS THAT THEY DO NOT WANT HER LIFE PROLONGED
       5    BUT ARE READY TO LET HER GO.  AT TIMES SHE THRASHES ABOUT,
       6    SEEMS TO BE IN PAIN AND ANXIETY.  ASSESSMENT:  QUITE ILL.
       7    PLAN:  HOLD MEDICATIONS, IN OTHER WORDS, HOLD THE PSYCH
       8    MEDICATIONS BECAUSE THERE'S NO PURPOSE FOR HAVING THEM
       9    ADMINISTERED AT THIS POINT, AND MORPHINE S.O. 4,
      10    5 MILLIGRAMS EVERY THREE HOURS INTRAMUSCULARLY, WHICH IS
      11    EXACTLY WHAT HAPPENS AFTER THE CONVERSATION WITH THE FAMILY.
      12    AND THEN YOU HAVE THIS ON THE 8TH IN TERMS OF MORPHINE BEING
      13    ADMINISTERED AND THEN THE PATIENT DIES.
      14         AND INTERESTING THIS IS -- ONCE AGAIN, THIS IS A NURSE
      15    WHO CHARTS THIS IN THE WEEKLY ADVOCATE NOTE.  PATIENT'S
      16    PHYSICAL CONDITION HAS MARKEDLY DETERIORATED.  SHE'S UNABLE
      17    TO SWALLOW FOOD OR MEDICATION.  SHE'S NOT VISIBLY RESPONSIVE
      18    TO HER ENVIRONMENT, AND THAT WAS THE CIRCUMSTANCE.  ONE OF
      19    THE THINGS -- THE CARE PLAN HAS BEEN CHANGED TO REFLECT
      20    PATIENT AND FAMILY NEEDS AROUND DEATH AND DYING ISSUES.
      21         THE NURSES WILL TELL YOU -- BECAUSE REMEMBER, THEY HAD
      22    A VERY SIGNIFICANT ROLE IN THE CARE PROVIDED.  AND WHAT
      23    NURSES DO IS THEY ASSESS THINGS AND THEY'LL TELL YOU THIS:
      24    THEY ARE NOT DOCTORS.  THEY DON'T DIAGNOSE, THEY ASSESS.
      25    THEY PERCEIVE THINGS.  THEY SEE CONDITIONS AND THEN THEY


                                                                       68



       1    DEVELOP CARE PLANS.  AND ONE OF THE CARE PLANS THAT NURSES
       2    DEVELOP WHEN THEY SEE THAT A PATIENT IS DYING IS BASICALLY A
       3    DEATH AND DYING CARE PLAN.
       4         AND ONE OF THE THINGS THAT'S INCLUDED IN THAT PLAN IS
       5    WHAT ARE CALLED COMFORT MEASURES, IT HAS NOTHING TO DO WITH
       6    MEDICATION.  AND THOSE COMFORT MEASURES, FOR EXAMPLE, WOULD
       7    BE DIMMING THE LIGHTS, SOFTLY TALKING TO THE PATIENT,
       8    PROVIDING SOME KIND OF COMFORT IN TERMS OF THEIR EYES, AND
       9    YOU'LL SEE THIS IN THE NOTES BUT IT'S PART OF THE DEATH AND
      10    DYING PROCESS THAT PEOPLE STARE AND THEIR EYELIDS DO NOT GO
      11    UP AND DOWN SO THEIR EYES GET DRY SO THEY GET ARTIFICIAL
      12    TEARS SO THERE'S A WHOLE HOST OF OTHER THINGS TO TRY TO GIVE
      13    COMFORT AND COMPASSION TO A PERSON WHO IS DYING.
      14         AND THIS IS WHAT MS. WILSON IS TALKING ABOUT IN TERMS
      15    OF THE CARE PLAN.  IT'S ACTUALLY A WRITTEN PLAN, IT'S IN THE
      16    MEDICAL RECORDS BASED UPON HER CLINICAL ASSESSMENT THAT THIS
      17    PERSON WAS IN FACT DYING.  SAME THING AS WITH MR. ALLDREDGE.
      18    THESE ARE ALL THE PEOPLE WHO YOU WILL SEE IN THE MEDICAL
      19    RECORDS PROVIDED CARE AS PART OF THE MEDICAL TEAM TO
      20    MS. SMITH, AND, ONCE AGAIN, THESE ARE THE NURSES, MS. SHEILA
      21    HANSEN AND MS. LAURIE WILLSON WHO PROVIDED MORPHINE
      22    INJECTIONS TO MS. SMITH.
      23         NOW, I'LL TELL YOU ALSO MS. HANSEN IS GOING TO TESTIFY
      24    IN THIS CASE.  I DON'T KNOW WHETHER SHE'S GOING TO BE CALLED
      25    BY THE PROSECUTION OR IS GOING TO BE CALLED BY US, BUT SHE'S


                                                                       69



       1    GOING TO TESTIFY.  AND SHE'LL ALSO TELL YOU SHE HAS HAD
       2    PROBABLY ABOUT 30 YEARS EXPERIENCE DOING ALL KINDS OF THINGS
       3    IN THE NURSING WORLD AND SHE'S GOING TO TELL YOU THAT THE
       4    CARE THAT WAS PROVIDED TO THESE PATIENTS WAS APPROPRIATE AND
       5    THAT THE MEDICATION PROVIDED, THAT IS MORPHINE, WAS PROVIDED
       6    FOR COMFORT MEASURES ONLY AND WAS TOTALLY APPROPRIATE GIVEN
       7    THE NATURE OF THE DEATH AND DYING PROCESS WHICH SHE
       8    ASSESSED.
       9         NOW, THIS IS THE MOST COMPLICATED TIME LINE BECAUSE
      10    JUDITH WAS ACTUALLY IN THE HOSPITAL FOR A LONGER TIME THAN
      11    ANYONE ELSE.  IN FACT, YOU SEE SHE WAS ADMITTED ON 1/26/95 (12/6/95)
      12    AND SHE WAS IN THE HOSPITAL UNTIL 1/3 OF '96 SO IT'S A
      13    FAIRLY EXTENSIVE MEDICAL CIRCUMSTANCE.  AND I TOLD YOU ABOUT
      14    MERLIN AND HIS DIFFICULTIES THAT HE WAS EXPERIENCING WITH
      15    HIS MOM.  ON ADMISSION THIS IS WHAT HE TOLD THE NURSE.  HE
      16    SAID, WE HAVE HOPES BUT NOT FANTASIES IN REGARD TO PATIENT'S
      17    CHANCES FOR IMPROVEMENT.  AND THEN ONCE AGAIN -- AND YOU'LL
      18    SEE THESE.  THEY ARE ACTUALLY WRITTEN DOCUMENTS THESE LIVING
      19    WILLS AND THESE DO NOT RESUSCITATE ORDERS.  YOU'LL SEE THEM
      20    AND WHAT LIMITATIONS THEY IMPOSE.
      21         BUT HERE ON THE 11TH, THE NURSE, THIS IS BONNIE HARDEY
      22    THIS TIME WHO IS CHARTING THIS, PATIENT'S FAMILY MEMBER
      23    CALLED AND REQUESTED INFORMATION ON PATIENT'S STATUS.
      24    FAMILY CONTINUES TO NOT WANT I.V.'S, FEEDING TUBES, ET
      25    CETERA, AS PER LIVING WILL.  OXYGEN OKAY.  FAMILY RELIEVED


                                                                       70



       1    TO HEAR THAT PATIENT IS NOT SCREAMING OUT AND/OR AGITATED
       2    CURRENTLY.  SO THERE'S SOME DEVELOPMENTS THROUGHOUT HERE.
       3         AND YOU GET TO THE POINT WHERE WE'RE -- AT THIS POINT
       4    ON THE 26TH WHICH IS WHERE I TOLD YOU THAT JUDITH STARTED TO
       5    HAVE SOME VERY SERIOUS MEDICAL PROBLEMS.  IT SAYS, SEIZURE
       6    ACTIVITY NOTED.  AND DR. DIENHART IS CALLED IN, HE'S AN
       7    INTERNAL MEDICINE DOCTOR.  HE'S CALLED IN TO DEAL WITH THIS
       8    PROBLEM.  AND HE ORDERS 3-MILLIGRAM ATIVAN WHICH IS A
       9    SEDATING MEDICATION BE ADMINISTERED.  NO IMPROVEMENT.  AN
      10    ADDITIONAL 1 MILLIGRAM ATIVAN IS ORDERED BY DR. DIENHART AS
      11    WELL AS DILANTIN.  NOW, DILANTIN IS ALSO A SEDATING
      12    MEDICATION BUT IT'S AN ANTISEIZURE MEDICATION.  IT'S GIVEN
      13    TO DEAL WITH THE SEIZURES.  HER BLOOD PRESSURE AT THIS POINT
      14    IS 70 OVER 40.  PERIODS OF APNEA.  APNEA -- AND YOU'LL HEAR
      15    ABOUT THIS.  THIS IS WHERE YOU STOP BREATHING FOR 15, 20, 25
      16    SECONDS AND THEN YOU BREATHE AGAIN.  IT'S A PHENOMENON THAT
      17    YOU SEE IT'S CALLED APNEA.  IT'S ONE OF THOSE FANCY WORDS
      18    FOR THAT CONDITION.
      19         SO ANYWAY THAT'S HER CONDITION ON THE 26TH.  AND THEN
      20    NOTICE SHEILA HANSEN SAYS, COMPLAINT OF MOANING, APPEARS TO
      21    BE IN SOME DISCOMFORT.  PATIENT HAS SEEMED COMFORTABLE SINCE
      22    RECEIVING MORPHINE, BECAUSE THERE WERE 2 MILLIGRAMS OF
      23    MORPHINE GIVEN ON THIS DAY FOR THE VERY REASONS THAT WHAT
      24    MS. HANSEN OBSERVED.  AND THEN WE HAVE RIGHT HERE THIS
      25    PARTICULAR ENTRY WHERE DR. WEITZEL SPEAKS WITH THE SON AND


                                                                       71



       1    THE DAUGHTER-IN-LAW AND SHE APPEARS MEDICALLY STABLE AT THIS
       2    POINT, SO THE DILANTIN WHICH APPEARS TO BE CAUSING SEDATION
       3    IS DISCONTINUED BY DR. WEITZEL.
       4         AND THEN WE START ON 12/29 THE PROBLEM ABOUT HER
       5    THROWING UP FOR 26 HOURS STRAIGHT WHICH IS CHARTED HERE AND
       6    HERE.  PATIENT -- AND THIS IS WHAT BONNIE HARDEY WRITES,
       7    THIS IS AN EXACT QUOTE OUT OF THE NURSES' NOTES, PATIENT'S
       8    FAMILY IN TO SEE PATIENT, AWARE OF PHYSICAL STATUS CHANGE.
       9    FAMILY STATED THEY WANT DO NOT WANT RESUSCITATE STATUS 
      10    MAINTAINED AND COMFORT MEASURES GIVEN.  THEN DR. WEITZEL HE 
      11    CHARTS SAME DAY, MET WITH SON AND DAUGHTER THIS P.M.
      12    REGARDING PATIENT'S CONDITION.  COFFEE GROUNDS VOMIT IS
      13    GREATER THAN THIS MORNING WHICH IS, ONCE AGAIN, IT'S
      14    EVIDENCE OF BLOOD.  SO HE ASSESSES A GASTROINTESTINAL BLEED.
      15    PLAN:  MAKE SURE SHE IS COMFORTABLE WITH ROUTINE MORPHINE.
      16         MERLIN CALLS AND TALKS TO MS. KLEI, MS. KLEI IS ANOTHER
      17    NURSE WHO WAS ON SHIFT THAT NIGHT, CALLED SON AND GAVE SON
      18    REPORT ON PATIENT'S CONDITION.  MERLIN, STRESS THAT ONLY ,
      19    THIS IS MERLIN STRESSING TO THE NURSE, ONLY WISH TO KEEP HER
      20    COMFORTABLE.  SO THAT'S WHERE WE ARE AS OF THIS DATE, THERE
      21    ISN'T GOING TO BE ANY OTHER ATTEMPT TO TRY TO DEAL WITH THE
      22    GASTROINTESTINAL BLEEDING OR ANY OTHER CIRCUMSTANCE OR THE
      23    FACT THAT JUDITH BECAUSE OF THIS BLEEDING, AND THE MEDICAL
      24    EVIDENCE WILL SHOW THIS, SHE LOST 25 PERCENT OF HER BLOOD
      25    AND THAT WAS DONE PURSUANT TO A TEST THEY DID IN THE


                                                                       72



       1    HOSPITAL WHICH CAUSES INCREDIBLE PROBLEMS IN TERMS OF
       2    OXYGENATION AND THINGS LIKE THAT.
       3         SON GOES ON TO SAY ON THE 31ST, SON VERY CONCERNED
       4    ABOUT PATIENT'S MEDICAL CONDITION.  WANTED TO KNOW WHEN
       5    PATIENT WOULD BE DYING.  FAMILY MEMBER UPSET THAT STAFF
       6    NURSE WOULD NOT STATE PATIENT WAS DYING.  PATIENT'S
       7    CONDITION POOR.  AND THIS IS WELL BEFORE ANY SIGNIFICANT
       8    AMOUNTS OF MORPHINE ARE EVEN PROVIDED TO THE PATIENT.  GOES
       9    ON TO SAY ON 12/30, SON CONCERNED THAT FAMILY MEMBERS WERE
      10    FLYING IN FROM OUT OF STATE DUE TO NIGHT'S SHIFT REPORT TO
      11    SON ON 12/30, AND THAT'S REFERRING TO THIS.  THEN IT GOES ON
      12    AND THERE'S A PROGRESSION HERE WHICH FINALLY ENDS UP WITH
      13    JUDITH'S DEATH ON THE 3RD.
      14         SIGNIFICANTLY, THIS IS WHAT LAURIE WILLSON SAID ABOUT
      15    HER SITUATION IN THIS WEEKLY NOTE.  WEEKLY R.N. ADVOCATE
      16    NOTE, PATIENT'S MEDICAL STATUS HAS RAPIDLY AND PROFOUNDLY
      17    DETERIORATED THIS WEEK.  SHE HAS EXPERIENCED A SEIZURE AND
      18    MULTIPLE EPISODES OF VOMITING COFFEE GROUNDS MATERIAL.  SHE
      19    IS NO LONGER VERBALLY RESPONSIVE, THE CARE PLAN, ONCE AGAIN,
      20    THAT NURSING CARE PLAN, HAS BEEN ALTERED TO REFLECT THE NEED
      21    TO SUPPORT THE PATIENT AND FAMILY THROUGH A POSITIVE DEATH
      22    AND DYING PROCESS.  PATIENT IS CURRENTLY RECEIVING MORPHINE
      23    INTRAMUSCULAR EACH AND EVERY THREE HOURS FOR COMFORT.
      24         SAME THING AS WITH THE OTHERS BUT BECAUSE JUDITH WAS IN
      25    THE HOSPITAL FOR A LONGER PERIOD OF TIME THERE ARE A LOT


                                                                       73



       1    MORE FOLKS WHO HELPED HER AND PROVIDED HER CARE AND YOU SEE,
       2    ONCE AGAIN, YOU HAVE IN HER CASE ONE, TWO, THREE, FOUR,
       3    FIVE, SIX, SEVEN, NURSES WHO ALL GAVE HER MORPHINE
       4    INJECTIONS.  AND, ONCE AGAIN, THERE WERE NO INJECTIONS GIVEN
       5    BY DR. WEITZEL.  AND ALL OF THESE PEOPLE, ALL OF THESE
       6    PEOPLE, INCLUDING THESE M.D.'S, THESE SOCIAL WORKERS AND
       7    EVERYONE ELSE AT ANY POINT COULD JUST OPEN UP THE CHART,
       8    TAKE A LOOK AT IT, SEE WHAT WAS GOING ON IN TERMS OF THE
       9    PATIENT'S CONDITION AND THE MEDICATIONS.
      10         THE FINAL ONE AND THIS IS MS. CRANE.  OUR EXPERT -- AND
      11    I'LL TELL YOU, WE'LL HAVE A CAUSE OF DEATH EXPERT, A MEDICAL
      12    DOCTOR WHO WILL TELL YOU WHAT HE BELIEVES TO A REASONABLE
      13    MEDICAL CERTAINTY CAUSED THE DEATH WITH RESPECT TO EACH ONE
      14    OF THESE PATIENTS, AND HE'S GOING TO TELL YOU MORPHINE HAD
      15    ABSOLUTELY NOTHING TO DO WITH IT.
      16         AND HIS OPINION IS, IN ESSENCE, CONSISTENT WITH THE
      17    MEDICAL EXAMINER, BECAUSE THE STATE MEDICAL EXAMINER IN
      18    DOING AUTOPSIES ON FOUR OF THESE PATIENTS COULD NOT CONCLUDE
      19    A CAUSE OF DEATH AND IS NOT GOING TO COME IN HERE AND GIVE
      20    HIS OPINION THAT MORPHINE CAUSED THE DEATH OF THOSE FOUR
      21    PATIENTS, ONE OF WHICH IS MARY CRANE.  AND OUR EXPERT IS
      22    GOING TO SAY THE REASON WHY MARY DIED IS BECAUSE MARY HAD A
      23    VERY SERIOUS INFECTION AND THAT SERIOUS INFECTION EVENTUALLY
      24    CREATED A CONDITION SO THAT SHE DIED FROM THE INFECTION.
      25         AND THE SIGNIFICANT THINGS HERE, ONCE AGAIN, TO SHORT


                                                                       74



       1    CIRCUIT THIS -- AND MARY DID HAVE A NUMBER OF PROBLEMS WHICH
       2    DR. DIENHART NOTED IN HIS INITIAL CONSULT, BUT SIGNIFICANTLY
       3    ON 1/1 -- YEAH, SHE CAME IN WITH URINARY TRACT INFECTION AND
       4    I THINK ALL THE DOCTORS WHO WILL TESTIFY IF ASKED THEY'LL
       5    AGREE THAT IN AN ELDERLY PATIENT -- AN INFECTION PERHAPS IN
       6    A YOUNGER PERSON IS NOT SIGNIFICANT, BUT AN INFECTION IN AN
       7    ELDERLY PERSON CAN BE VERY, VERY -- IT CAN BE FATAL AND
       8    VERY, VERY DIFFICULT.  A URINARY TRACT INFECTION CAN BE A
       9    TERMINAL EVENT IF NOT ADEQUATELY DEALT WITH IN AN ELDERLY
      10    WOMAN.
      11         SHE COMES IN WITH A URINARY TRACT INFECTION AND YOU'LL
      12    SEE DR. WEITZEL PUT HER ON AN APPROPRIATE ANTIBIOTIC TO DEAL
      13    WITH THAT.  BUT HE NOTES AS THE NURSES' NOTE ON 1/1 HE SAYS,
      14    SHE HAS A FISTULA FROM RECTUM TO VAGINA PASSING FECES
      15    THROUGH THE VAGINA.  NOW, I'LL TELL YOU, WE'RE GOING TO HAVE
      16    A DOCTOR WHO WILL TELL YOU WHO'S TREATED THIS CONDITION, HE
      17    WILL TELL YOU THAT'S EXCEEDINGLY, EXCEEDINGLY PAINFUL.
      18    THAT'S THE FIRST THING HE'S GOING TO TELL YOU.  THE SECOND
      19    THING IS IT'S INFECTIOUS AS ALL GET-OUT.  AND YOU'LL SEE
      20    THAT DR. WEITZEL GETS A CONSULT IN FROM A GYNECOLOGICAL -- A
      21    GYNECOLOGIST, RATHER, AND HE COMES IN ONE, TOO, BECAUSE HE
      22    SUPPOSEDLY KNOWS ABOUT THESE THINGS AND THIS IS DR. MEEKS.
      23         DR. MEEKS IN HIS CONSULT SAYS, COMPLAINT OF FECAL
      24    MATTER OUT OF VAGINA.  ON EXAM HAS HIGH RECTAL VAGINAL
      25    FISTULA.  SO THAT'S WHAT MARY HAS.  CAN REPAIR IF CLEARED


                                                                       75



       1    FOR SURGERY BY HER INTERNIST, THAT WILL BE DR. DIENHART.
       2    MAY TRY TO HEAL SPONTANEOUSLY PROBABLY WITH 25 TO 35 PERCENT
       3    WITH BROAD-SPECTRUM ANTIBIOTICS, BECAUSE IT'S INFECTIOUS.
       4    WELL, ON THE 3RD, DR. WEITZEL SAYS, PLEASE HAVE DR. DIENHART
       5    MADE AWARE OF GYNECOLOGIST'S RECOMMENDATIONS.  IN OTHER
       6    WORDS, TELL THE INTERNAL MEDICINE GUY THAT DR. MEEKS HAS HIS
       7    CONSULT AND IF WE'RE NOT GOING TO DO SURGERY, WE BETTER DO
       8    ANTIBIOTICS.  AND THERE'S AN ENTRY BY LYNN LONG SAYS, DR.
       9    DIENHART'S SECRETARY NOTIFIED, ON THIS DAY.
      10         NOW, THEREAFTER, DR. DIENHART DOESN'T SHOW UP IN THE
      11    CARE OF THIS PATIENT UNTIL THE DAY SHE DIES.  MEANWHILE
      12    YOU'LL SEE IN THE RECORDS, DR. WEITZEL FINALLY BECAUSE OF
      13    THIS SITUATION ORDERS AN ANTIBIOTICS, KEFLEX, IT'S ON THE
      14    5TH.  IT MAY NOT BE ON THIS CHART BUT I'M TELLING YOU THAT'S
      15    WHAT HE DOES AND THE RECORD WILL SHOW THAT.  SO SHE HAS A
      16    VAGINAL FISTULA WHICH ESSENTIALLY IS UNTREATED.
      17         AND THEN IF YOU GO TO THE 7TH, LOOK AT WHAT DR.
      18    DIENHART IS ASSESSING.  POSSIBLE SEIZURE.  SHE DID HAVE A
      19    SEIZURE.  AND IMPRESSION AND HE GOES ON TO SAY, HYPOTENSIVE,
      20    WHICH MEANS HER BLOOD PRESSURE WAS VERY, VERY SLOW AND
      21    LETHARGIC, AND POSSIBLE SEPSIS.  SEPSIS IS THE CONDITION
      22    WHERE YOU ARE SO INFECTED THAT ESSENTIALLY YOU HAVE BACTERIA
      23    IN YOUR BLOOD AND THAT IS A -- THAT'S A DEADLY CONDITION, NO
      24    ABOUT IT AND IF UNTREATED, IT'S A TERMINAL CONDITION.
      25         HE GOES ON TO SAY, CASE DISCUSSED WITH DR. WEITZEL,


                                                                       76



       1    PATIENT FELT TO HAVE DECLINING STATUS AND WISHED NOT TO HAVE
       2    C.P.R. PERFORMED.  ONCE AGAIN, SHE HAS MEDICAL DIRECTIVES IN
       3    PLACE SIGNED BY HER DAUGHTER ON THE 28TH OF DECEMBER WHICH
       4    ELIMINATE THE ABILITY OF A PHYSICIAN TO DO CERTAIN THINGS,
       5    ONE OF WHICH IS THE C.P.R., ONE OF WHICH IS SURGERY, ONE OF
       6    WHICH IS USING I.V. FLUIDS.  THE PHYSICIAN IS ETHICALLY
       7    OBLIGATED AND IS BOUND BY THEM.
       8         AND THEN HE GOES ON TO SAY, AFTER DISCUSSION WITH
       9    PRIMARY MEDICAL DOCTOR, THIS IS DR. DIENHART AND WILL NOT --
      10    AND BASICALLY, IT'S 3:10 A.M., WILL NOT OFFER FURTHER
      11    AGGRESSIVE SUPPORTIVE CARE.  I SUSPECT SHE MAY DIE SOON.
      12    AND THEN THERE'S A CONVERSATION BECAUSE THE HOSPITAL -- THE
      13    EVIDENCE WILL BE THE HOSPITAL CALLS THE DAUGHTER, I THINK
      14    KAREN BRINGHURST, AND SAYS, YOUR MOM IS IN REAL BAD SHAPE,
      15    YOU BETTER COME TO THE HOSPITAL SOON AND SHE DOES.  AND THEN
      16    SHE HAS A CONVERSATION WITH DR. WEITZEL AND DR. WEITZEL
      17    SAYS, I HAVE SPOKEN WITH HER TWO DAUGHTERS AND THEY DO NOT
      18    WANT EXTRAORDINARY MEASURES TAKEN BUT WOULD RATHER HAVE
      19    COMFORT CARE GIVEN. IN OTHER WORDS, DON'T DO ANYTHING TO
      20    TREAT THE INFECTION, LET MS. CRANE DIE NATURALLY.
      21         AND THEN, ASSESSMENT:  PROBABLY ASPIRATION PNEUMONIA,
      22    QUITE DEMENTED, HYPOTENSIVE, POSSIBLE SEPSIS.  PLAN:  WILL
      23    RESPECT FAMILY'S WISHES, PROVIDE COMFORT CARE BUT NOT
      24    EXTRAORDINARY CARE.  AND MS. BRINGHURST WILL TESTIFY IN THIS
      25    CASE.  MS. BRINGHURST IS MARY'S DAUGHTER, ONE OF MARY'S


                                                                       77



       1    DAUGHTERS AND SHE'S BEEN A NURSE FOR OVER 20 YEARS AT THE
       2    TIME THAT THIS OCCURRED.  SHE CAME INTO THE HOSPITAL IN
       3    RESPONSE TO A CALL FROM THE HOSPITAL THIS AFTERNOON, AFTER
       4    DR. DIENHART HAD ALREADY DETERMINED THAT MARY MAY DIE SOON.
       5         AND SHE'S GOING TO TELL THAT YOU HER ASSESSMENT WAS,
       6    BASED UPON LOOKING AT HER MOM, SHE THOUGHT HER MOM WAS IN
       7    PRETTY BAD SHAPE.  AND SHE RECALLS THE CONVERSATION WITH DR.
       8    WEITZEL AND SHE ALSO RECALLS THAT DR. WEITZEL SAID, WELL,
       9    ONE OF THE WAYS WE CAN KEEP YOUR MOM COMFORTABLE IS TO GIVE
      10    HER SOME MEDICATION, MORPHINE, IT'S A WAY TO KEEP HER
      11    COMFORTABLE SO THAT SHE'S NOT IN THIS ANGUISH IF WE'RE NOT
      12    GOING DO ANYTHING TO TRY TO TREAT THE INFECTION.  AND SHE
      13    RECALLS THAT CONVERSATION AND AT THE TIME GIVEN WHAT SHE SAW
      14    AND WHAT SHE OBSERVED AND WHAT SHE ASSESSED, SHE DIDN'T FIND
      15    ANYTHING INAPPROPRIATE ABOUT GIVING MORPHINE AT THAT TIME
      16    UNDER THOSE CIRCUMSTANCES.
      17         ONCE AGAIN, THESE WERE ALL THE PEOPLE WHO PROVIDED CARE
      18    TO MARY CRANE.  THESE ARE ALL THE DOCTORS.  NOW REMEMBER,
      19    EVERY ONE OF THESE DOCTORS AT ANY TIME COULD HAVE LOOKED AT
      20    THAT FILE, COULD HAVE LOOKED AT THE CHART AND MADE ANY KIND
      21    OF MEDICAL JUDGMENT THEY WANT.  THE SAME IS TRUE WITH THE
      22    CERTIFIED NURSING ASSISTANTS.  THE SAME IS TRUE WITH THE
      23    NURSES.  ONCE AGAIN, WE HAVE MS. COZZENS WHO GAVE AT LEAST
      24    ONE INJECTION OF MORPHINE AND MS. LONG AND MS. SCHOLL.
      25         NOW, WE'RE GOING TO HAVE A NURSE EXPERT WHO IS GOING TO


                                                                       78



       1    TELL YOU THAT A NURSE IS SUPPOSED TO MAKE SURE THAT IF THEY
       2    ARE GOING TO DO ANYTHING IN TERMS OF MEDICATIONS THAT THEY
       3    DO NO HARM TO THE PATIENT AND THAT A NURSE HAS A DUTY IF
       4    THERE IS A PROBLEM WITH THE MEDICATION NOT TO GIVE IT.  MORE
       5    IMPORTANTLY, IF THE NURSE THINKS THERE IS A PROBLEM AND SHE
       6    HAS A PROBLEM WITH THE PHYSICIAN, SHE'S SUPPOSED TO GO TO
       7    THE PHYSICIAN AND TALK TO THE PHYSICIAN AND IF THE PHYSICIAN
       8    AND HER CAN'T RESOLVE THE CONFLICT, SHE'S OBVIOUSLY SUPPOSED
       9    TO GO UP THE LINE WITH RESPECT TO THE HOSPITAL
      10    ADMINISTRATION.  BUT UNDER NO CIRCUMSTANCES IS A NURSE
      11    SUPPOSED TO DO HARM TO A PATIENT.  AND A NURSE HAS AN
      12    INDEPENDENT PROFESSIONAL DUTY TO MAKE SURE THAT WHEN SHE
      13    GIVES AN INJECTION, FOR EXAMPLE, MORPHINE, THAT THAT
      14    MORPHINE IS NOT GOING TO DO ANY HARM TO THE PATIENT AND
      15    THERE WILL BE OTHER THINGS SHE'LL TELL YOU ABOUT AND THESE
      16    NURSES WILL TELL YOU ABOUT.
      17         NOW, DR. WEITZEL -- AS YOU'VE ALREADY BEEN INSTRUCTED
      18    HERE, WE HAVE NO BURDEN HERE.  WE HAVE NO DUTY TO CONVINCE
      19    YOU OF ANYTHING AND DR. WEITZEL HAS A CONSTITUTIONAL RIGHT
      20    NOT TO TESTIFY.  HE'S GOING TO TESTIFY AND HE'S GOING TO
      21    TAKE THE STAND AND HE'S GOING TO TELL YOU CERTAIN THINGS.
      22    AND FIRST OF ALL HE'S GOING TO TELL YOU CERTAINLY THAT HIS
      23    SOLE PURPOSE IN PROVIDING ANY MEDICATION TO PROVIDE CARE FOR
      24    THESE PATIENTS WAS TO HELP THEM AND TO KEEP THEM COMFORTABLE
      25    IN THE DYING PROCESS.


                                                                       79



       1         HE'S ALSO GOING TO TELL YOU THAT HE ESSENTIALLY WAS
       2    PROVIDING WHAT IS CALLED HOSPICE CARE IN THE HOSPITAL AND
       3    HE'S GOING TO TELL YOU ONE OF THE REASONS WHY HE DID THAT.
       4    IT'S BECAUSE WHEN SOMEBODY IS DYING AND THEY ARE ON A
       5    PARTICULAR UNIT AND THEY ARE IN A HOSPITAL, TO TRANSFER THEM
       6    OUT OF THE HOSPITAL, TO TRANSFER THEM TO ANOTHER PLACE CAN
       7    BE VERY DISRUPTIVE, NOT ONLY TO THE FAMILY BUT TO THE
       8    PATIENT.  SO HE MADE A DECISION THAT IT WAS BETTER TO KEEP
       9    THEM IN THE HOSPITAL RATHER THAN TRANSFER THEM OUT FOR
      10    HOSPICE CARE WHICH HE COULD HAVE DONE.
      11         HE'S ALSO GOING TO TESTIFY AND TELL YOU THAT THE
      12    DECISIONS HE MADE, FOR EXAMPLE, THE JUDGMENT THAT HE MADE
      13    THAT A PATIENT WAS DYING, WAS A CLINICAL JUDGMENT THAT HE
      14    MADE IN CONJUNCTION WITH THE ENTIRE MEDICAL TEAM.  HE'S ALSO
      15    GOING TO TELL YOU THAT THE DECISIONS HE MADE ABOUT WHAT KIND
      16    OF CARE WERE IN CONJUNCTION WITH THE FAMILY AND IN
      17    CONJUNCTION WITH THE MEDICAL CHOICES AND THE LIVING WILLS
      18    WHICH THE FAMILY HAD IN PLACE WHICH LIMITED HIS ABILITY TO
      19    TAKE CERTAIN MEASURES WHICH MIGHT -- MIGHT HAVE REVERSED
      20    SOME OF THESE PROCESSES.
      21         AND HE'S FINALLY GOING TO TELL YOU, AND I THINK THIS IS
      22    REALLY, LADIES AND GENTLEMEN, WHERE THIS CASE HINGES, ONCE A
      23    DECISION WAS MADE IN THESE CASES, FOR EXAMPLE, ONCE A
      24    DECISION WAS MADE ON MARY CRANE THAT WE'RE NOT GOING TO
      25    TREAT THE INFECTION AS WE SHOULD WITH I.V. FLUIDS OR WE'RE


                                                                       80



       1    NOT GOING TO HAVE SURGERY WITH RESPECT TO THE VAGINAL
       2    FISTULA, DR. WEITZEL HAS A DUTY INDEPENDENT OF ANYTHING ELSE
       3    TO MAKE SURE THAT THAT PERSON IS KEPT COMFORTABLE IF THEY
       4    ARE ABOUT TO DIE, AND THAT'S PRECISELY WHAT HE WAS DOING IN
       5    TERMS OF HIS MEDICATION PRACTICES AND IN TERMS OF HIS CARE.
       6         NOW, AS YOU GO THROUGH THE EVIDENCE AND I'M ABOUT TO
       7    WRAP UP BECAUSE I -- BUT I THINK IT'S IMPORTANT YOU KNOW ONE
       8    OF THE THINGS THAT'S GOING TO HAPPEN IN THIS CASE IS YOU ARE
       9    GOING TO GET AS EVIDENCE, YOU ARE GOING TO GET A BUNCH OF
      10    BINDERS.  THEY MAY NOT BE RED BUT I'M TELLING YOU RIGHT NOW
      11    HERE ARE ALL THE MEDICAL RECORDS AND THEY'LL BE RIGHT THERE
      12    AND YOU'LL HAVE THEM.  AND THEN YOU ARE GOING TO HAVE PEOPLE
      13    WHO ARE GOING TO TAKE THIS WITNESS STAND AND THEY ARE GOING
      14    TO SAY, WELL, FIVE YEARS AGO I REALLY DIDN'T SAY THAT OR
      15    THAT REALLY DIDN'T HAPPEN AND I SUGGEST THINK ABOUT IT.
      16    WHICH IS MORE TRUSTWORTHY, THE ACTUAL MEDICAL RECORDS WHICH
      17    WAS MADE AT THE TIME BY PEOPLE WHOSE RESPONSIBILITY IT WAS
      18    TO BE ACCURATE, OR SOMEBODY'S RECOLLECTION NOW FIVE YEARS
      19    LATER WHEN MAYBE THAT RECOLLECTION IS NOT THAT GOOD OR MAYBE
      20    THEY HAVE SOME OTHER MOTIVE OR BIAS TO TESTIFY THE WAY THEY
      21    ARE?
      22         THE OTHER THING IS I TOLD YOU ABOUT THESE EXPERTS.
      23    WELL, THINK ABOUT THIS AS YOU HEAR THE EVIDENCE AND AS YOU
      24    HEAR THE EXPERTS:  WHO REALLY WAS IN A BETTER POSITION TO
      25    DECIDE WHAT WAS GOING ON, SOME GUY WHO COMES UP HERE AND


                                                                       81



       1    TESTIFIES AFTER BASICALLY JUST BEING A RECORD REVIEWER?
       2    THAT'S ALL THE EXPERTS ARE GOING TO BE.  THEY LOOK AT A
       3    BUNCH OF RECORDS AND THEY SAY, WELL, THIS, THIS, THIS, AND
       4    THAT HAPPENED.  OR THE PEOPLE, THE NURSES, THE NURSES'
       5    ASSISTANTS, THE SOCIAL WORKERS, THE DOCTORS WHO ARE ACTUALLY
       6    TREATING THE PATIENTS AT THE TIME?  THESE ARE CLINICAL
       7    JUDGMENTS AND THEY ARE BASED UPON WHAT PEOPLE SEE AND WHAT
       8    THEY OBSERVE AT THE TIME.  WHO IS IN A BETTER POSITION TO
       9    REALLY MAKE THOSE JUDGMENTS, SOMEBODY WHO JUST LOOKS AT A
      10    BUNCH OF RECORDS COLD OR THE PEOPLE WHO WERE ACTUALLY
      11    PROVIDING THE CARE?
      12         LISTEN TO THE NURSES.  WE'RE GOING TO CALL THEM.  IF
      13    THE STATE DOESN'T CALL THEM, WE'LL CALL THEM AND LISTEN TO
      14    WHAT THEY ARE GOING TO SAY.  BECAUSE, SEE, THEY ARE
      15    INDEPENDENT AND THEY ARE MAKING THE SAME ASSESSMENTS AS PART
      16    OF THE TEAM THE EVIDENCE WILL SHOW THAT DR. WEITZEL WAS
      17    MAKING.  SO LISTEN TO THEM, LISTEN TO LAURIE WILLSON, LISTEN
      18    TO SHEILA HANSEN, LISTEN TO LYNN LONG AND LISTEN TO WHAT
      19    THEY SAY ABOUT WHAT THEY SAW AND WHAT THEY ASSESSED AND WHAT
      20    THEY THOUGHT WAS APPROPRIATE MEDICAL CARE AT THE TIME.
      21         AND FINALLY, AS YOU HEAR THE EVIDENCE, IT'S TRUE, THE
      22    PROSECUTION HAS NO BURDEN AND YOU'LL BE INSTRUCTED ON THIS
      23    TO PROVE MOTIVE AS PART OF THIS CRIME.  BUT ASK YOURSELF,
      24    ASK YOURSELF WHY.  WHY ON EARTH WOULD A DOCTOR, A DOCTOR WHO
      25    STARTED -- STARTED WITH THIS GROUP IN NOVEMBER OF 1994, WHO


                                                                       82



       1    WAS GIVEN PRIVILEGES BY THE HOSPITAL IN NOVEMBER OF 1995,
       2    WHY WOULD HE POSSIBLY AND WHAT MOTIVE COULD HE POSSIBLY HAVE
       3    TO GO AND KILL INTENTIONALLY FIVE HUMAN BEINGS?  AND THAT'S
       4    WHAT WE'RE FOCUSING ON, THIS VERY SHORT PERIOD OF TIME.  WHY
       5    WOULD HE DO THAT?  AND I'LL ANSWER THAT QUESTION AT CLOSING,
       6    BUT I WANT YOU TO ASK YOURSELF THAT AS YOU HEAR THE
       7    EVIDENCE.  WHAT POSSIBLE MOTIVE COULD HE HAVE?  AND I AGREE
       8    WITH COUNSEL, IT'S ONE THAT IS REALLY HARD TO FIGURE OUT AND
       9    I KNOW THE ANSWER WHY IT'S HARD TO FIGURE OUT BUT I'M NOT
      10    GOING TO ARGUE THAT HERE, BUT THINK ABOUT IT.
      11         AT THE CLOSE OF THIS CASE, LADIES AND GENTLEMEN, I WILL
      12    COME BACK.  YOU'LL HAVE ME AGAIN AND I'M GOING TO ASK YOU --
      13    I'M GOING TO ARGUE ABOUT THE EVIDENCE.  I'M GOING TO SAY
      14    WHAT I THOUGHT IT SHOWED AND I'M GOING TO ASK YOU TO RETURN
      15    A VERDICT OF NOT GUILTY ON EACH ONE OF THESE COUNTS BECAUSE
      16    I THINK AT THE END OF THE CASE THE EVIDENCE WILL SHOW AT
      17    LEAST THREE THINGS.  IT'S GOING TO SHOW, FIRST OF ALL, THIS
      18    CASE IS ABOUT MEDICAL JUDGMENT.  IT'S NOT ABOUT CRIMINAL
      19    INTENT.  SECOND OF ALL, IT'S ABOUT END-OF-LIFE CARE, NOT DR.
      20    WEITZEL TRYING TO END SOMEBODY'S LIFE.  AND, FINALLY, LADIES
      21    AND GENTLEMEN, IT'S NOT ABOUT MURDER.  IT'S ABOUT MERCY.
      22    THANK YOU.

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