RYAN GALBRAITH/The Associated Press

Prosecuting attorney Charlene Barlow questions Dr. Perry Fine in Weitzel's trial Thursday. Fine's opinion contributed to a judge's decision to overturn guilty verdicts in an earlier trial against Weitzel.

Doctors back Weitzel's case

Physician's testimony was factor in overturned verdicts

Fri, Nov 22, 2002

By LORETTA PARK
Standard-Examiner Davis Bureau

FARMINGTON -- Dr. Perry Fine, a University of Utah physician specializing in pain management and end-of-life care, finally got his day in court.

In October 2001, Judge Thomas L. Kay, who was later removed from the case, ruled prosecutors withheld exculpatory evidence from the defense of psychiatrist Robert Allen Weitzel. That ruling overturned a jury's guilty verdict of two counts of manslaughter and three misdemeanor counts of negligent homicide after a six-week trial.

Now, 10 days into the second trial, Fine -- who was that exculpatory witness -- testified for the defense on Thursday in 2nd District Court that Weitzel met the standard of care for physicians in 1995, "so how could it be criminalized?"

In the first trial, Fine did not testify. Weitzel's defense team then claimed it had no knowledge of Fine's statements to prosecutors, which could have strengthened its case.

When asked by defense attorney Walter Bugden if Weitzel met the medical standard in caring for the five patients, Fine said, "To condemn these actions by Dr. Weitzel would be to condemn these patients to a horrible death."

The defense rested its case after Fine testified. The defense and prosecution will make closing arguments Friday before the jury receives the case for deliberation. Judge Rodney Page told jurors if they do not reach a verdict sometime Friday evening, they will come back on Saturday. If they reach a verdict then, it will be sealed until Monday.

JEFFREY D. ALLRED/The Associated Press

Robert Weitzel listens during his trial Thursday in a Farmington courtroom.

Weitzel, who was scheduled to testify, will not take the stand.

Fine testified that each patient died by medical conditions they had on admittance, not by overdoses of morphine. He said there was nothing surprising in the amount of morphine the patients received shortly before dying.

He testified that his friend and colleague, Dr. Bradford D. Hare, who testified for the prosecution on Friday, does not specialize in pain management for end-of life care.

Fine testified during cross-examination that it was Hare who asked him if he would be interested in reviewing the medical records for the prosecution in 2000.

But Fine also testified that "I was dealing with a limited deck of cards" concerning what records he had to review at first. Fine said he was led to believe the state had given him most of the medical records of the five patients, but later was given more documents which included nursing home records, nurses" notes, nutrition notes and therapist notes.

He said when he first heard that five patients had died in a 16-day period and after reviewing the medical records prosecutors first gave him, "It aroused my suspicions."

Prosecutor Charlene Barlow asked Fine what he had said in 2000 to her and Betsy Bowman, another prosecutor, about the care each of the patients received. He said he told them it was poor, but "the standard for end-of-life care is very, very poor." He said a study showed Utah ranks the lowest in the nation in providing hospice care in hospitals and in 1995 Davis County had very few hospice programs.

Fine testified that he is concerned what impact this case could have on care doctors give to patients.

Barlow asked him if he agreed with the Utah Medical Association's resolution passed earlier this month stating that doctors should not be prosecuted. He said that he did.

Earlier in the day, Dr. Sharon Weinstein, who also practices at the University of Utah, testified that she, too, agrees with the resolution that says: "When a medical expert admonishes a prosecutor against filing a criminal complaint, it behooves the prosecutor to reconsider his position and seek the opinion of the Utah Medical Association, the Physicians Licensing Board, or some other regulatory established and constituted panel of medical peers. Neither Utah's physicians nor their patients can afford this type of judicial embarrassment. It is a serious threat to good patient care for all Utah's citizens."

Weinstein also testified that overmedication of central nervous system drugs can possibly lead to a high heart rate.

Barlow asked Weinstein why she was testifying. She said, "After reviewing the charts, I believe the care the patients received was compassionate and I do not believe Dr. Weitzel did anything wrong."

Weitzel is charged with two second-degree felony counts of manslaughter and three misdemeanor counts of negligent homicide in the deaths of Ellen Anderson, 91; Ennis Alldredge, 83; Judith Larsen, 93; Mary Crane, 72; and Lydia Smith, 90. The five deaths occurred over a 16-day span at Davis Hospital and Medical Center starting in late December 1995.

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