Letter to (UMA President) Dr. James Fowler  (from Dr. Orient, Executive Director of AAPS)   AAPS website>>

March 28, 2002


James R. Fowler, M.D.
President, Utah Medical Association
540 East 500 South Street
Salt Lake City, UT 85102-2784


Dear Dr. Fowler:

I have seen a copy of your letter of March 13th regarding the case of Dr.
Robert Weitzel. I am astounded at the unwillingness of the Utah Medical
Association to take a stand on this manifest injustice and the deplorable
effect it will have on physicians. Fortunately, we have heard from many Utah
physicians and patients who are willing to speak out.

This is to request a clarification of the UMA position. Does the Utah
Medical Association hold that it is acceptable for a prosecutor to withhold
exculpatory evidence on a physician? If not, is such behavior in one case a
mere aberration? How many cases would it take to constitute a problem?

In the US Court system, a defendant is supposed to be presumed innocent. It
appears to us that the Federation of Medicine may presume guilt, or make its
own determination of guilt. We wonder whether that determination requires
official action. If so, is it taken at the level of the Executive Committee,
the Board of Trustees, or the entire House of Delegates? Does the defendant
have any due process rights in the proceeding? Are other matters weighed in
the determination, or just the actual charges?

Perhaps I should also ask whether it makes any difference. You state that
"We remain hopeful that justice will be achieved in Dr. Weitzel's case,
which is as much as anyone can do from a practical standpoint once a case
goes to court." Does this mean that the Utah Medical Association is
declaring itself to be impotent once a case goes to court? At what stage
does this impotence begin? At the investigatory stage? After the
indictment? Only after conviction? Does it matter that the conviction was
thrown out, and a retrial granted?

You state it is the policy of the Utah Medical Association to focus on
systemic issues, rather than individuals. Does that mean that your decision
about a case should be completely blind to the identity of the individual?
And was it, in this case? In our view, prosecutorial abuse is a systemic
issue. And we believe that the identity of the individual physician - and
his past history - is irrelevant.

You state that "We continue to encourage all physicians to provide adequate
pain control for their patients in pain, regardless of the outcome of Dr.
Weitzel's trial." This is despite the fact that you recognize that there
are "seemingly fuzzy boundaries between appropriate pain control,
malpractice, and alleged criminal negligence." You intend to "make sure
that medical mistakes are treated as mistakes and not as crimes." You will
continue to "work with the Division of Occupational and Professional
Licensing and with state prosecutors." And you are "anxious to educate
physicians about the outcomes of all these efforts."

Have you published a status report for your members regarding the current
situation: That fuzzy areas exist, that continuing work is necessary, and
that once a case goes to court you are entirely unwilling or impotent to
offer any assistance to the individual physician? Have you informed members
that there will be no public statements about violations of defendants' due
process rights, or about a prosecutor's breach of ethics, or about one-sided
press coverage? That there will be no amicus briefs? And no warnings to
physicians about the specific pain control issues that led to a particular
prosecution?

In the face of such a statement physicians might not feel especially
encouraged. Nevertheless, it appears to be your position is that physicians
should go ahead and put themselves in harm's way. As they do so, the Utah
Medical Association evidently takes its stand - either on the sidelines, or on
the prosecutor's side. Which, is not altogether clear.

Sincerely yours,



Jane M. Orient, M.D.


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