PROSECUTION CLOSING ARGUMENT
20 I'll ask you, Mr. Wilson, are you ready to make your closing
21 argument?
22 MR. WILSON: I am, Your Honor.
23 THE COURT: You may proceed, then.
24 MR. WILSON: Thank you, Your Honor. If it please
25 the court, counsel, ladies and gentlemen of the jury, at the
1 on set of my closing statement I want to thank you. I want
2 to express my appreciation for your attentiveness to these
3 proceedings. I know it has been long and I know that you're
4 probably anxious, as I am, to get back to living your
5 ordinary lives.
6 It's with some sense of frustration that I approach you
7 today in terms of this closing argument. I perceive over the
8 past few weeks that parts of this trial have turned into
9 essentially a forum on end of life care and pain management.
10 It's with that particular idea in mind that I want to try and
11 refocus you as to what this case is all about. This case is
12 about five people and the deaths of those five people. Those
13 five people being Ellen Anderson, Judith Larsen, Mary Crane,
14 Lydia Smith and Ennis Alldredge. That's what this case is
15 about, ladies and gentlemen, those five people. It's also
16 about the last days of their life and it's about how they
17 died and why they died. And last but not least, it's about
18 who is accountable for their deaths.
19 The evidence that we have presented and that I will argue
20 to you here in the next little while is that evidence which
21 demonstrates that their deaths were the result of this
22 defendant's reckless and criminal negligent conduct. It was
23 through his lack of care, if you will, and treatment that
24 resulted in their untimely deaths.
25 Now, as we pursue this case I want you to just go back
1 with me for a few minutes and let's talk about the setting.
2 As you'll recall, the very first witnesses that testified
3 talked about the history of the geropsych unit which was
4 established in 1994 and at the Davis Hospital. The purpose
5 of that unit was to provide to their community an
6 opportunity to treat geriatric patients who were suffering
7 acute mental disorders. Disorders of the nature according to
8 the criteria set forth that were amenable to treatment in a
9 psychiatric setting. The purpose of the geropsych unit in
10 being set in a hospital setting was for the purpose that, as
11 you're well aware by now, that you have other facilities
12 available in a hospital setting to address the needs of these
13 senior citizens.
14 Now, it's undisputed, ladies and gentlemen, that these
15 were people who were suffering from a variety of physical
16 illnesses along with the dementia that they were suffering
17 from. It's undisputed that they all had varying degrees of
18 hardening of the arteries, of heart conditions, of kidney
19 conditions and liver conditions that you would expect. I'm
20 sure each and every one of you in your life has had the
21 experience of having a loved one in these circumstances and
22 having to deal with the problems that are associated with
23 dementia.
24 I want you to, when you review this case, walk in the
25 shoes, if you will, of the family members, because I think
1 it's very important for you as to do that when you view,
2 particularly when you view the evidence as pertains to these
3 advanced directives and Dr. Weitzel's comments to the family
4 or conversations with the family members concerning the care
5 of their loved ones and the condition of the their loved
6 ones.
7 We know also that the defendant came to the geropsych
8 unit back in November of 1994 and that he subsequently became
9 the associate medical director at the geropsych unit in March
10 of 1995. And we know from Dr. Welby's (sic) testimony that at that
11 time Dr. Welby was burning out. He had to go to another
12 practice. He'd been appointed to a position with that other
13 practice and so he welcomed the assistance of the defendant
14 to the unit at that time.
15 And as we learned from Dr. Welby (sic), he gradually phased out
16 his involvement in the geropsych unit and essentially was
17 uninvolved other than as an assistant in terms of showing up
18 and assisting on the unit from time to time up until his
19 departure, which was after these events.
20 We also know that while Dr. Welby (sic) was on the unit that he
21 there had a conversation that was prompted by Todd Chambers, who
22 was the director of the unit, the managing director the unit,
23 not the medical director, concerning some complaints that
24 he'd received. Dr. Welby (sic) reviewed five files in connection
25 with those complaints. Not the files that are here, but his
1 testimony was that he reviewed a number of files and the
2 purpose of that review was to look at the medication
3 practices of the defendant.
4 Dr. Welby (sic), I think, probably summarized the standard of
5 care better than anybody else that we've probably heard from
6 in connection with these geropsych patients, and that was he
7 told the defendant on that occasion, when he reviewed the
8 records with him, that you can't just blast these patients.
9 You can't just blast them with these psychotropic drugs and
10 you can't do it that way, otherwise there will be harm that
11 will come to them.
12 Now, he also said to the defendant, and this is
13 characterized for the standard of care, go low and go slow,
14 because you're dealing with fragile people. You're dealing
15 with people whose systems are already compromised to a great
16 extent.
17 Now, we know that after that conversation had taken
18 place, and it's undisputed that beginning in December,
19 December 6th, 1995, and going on up through January 10th,
20 1996, there were five patients that were admitted to this ten
21 bed unit and those are the patients that you have in front of
22 you, the pictures you have in front of you. Judith Larsen
23 was the first one to come to the unit on December the 6th.
24 We know that with the exception of Ellen Anderson, and it's
25 undisputed, that all five of these patients, or I should say
1 the remaining four of these patients, were administered a
2 variety of psychotropic medications during their stay. We
3 know from the testimony of the expert witnesses that those
4 psychotropic medications are all central nervous system
5 depressants. They all depress the CNS and can create
6 problems of sedation. Those are one of the major side
7 effects of these types of drugs.
8 We know, in conjunction with these individuals, that in
9 addition to the psychotropic medications, they were also
10 given the drug morphine, which is a pain medication. And the
11 drug of a Duragesic patch, which is Fentanyl, with Mary
12 Crane.
13 Now, what did we learn about these drugs? You'll recall,
14 this was an exhibit that Dr. Hare prepared for us concerning
15 the immediate effects, and I would say risks, associated with
16 the use of these particular drugs. Drugs that the defendant
17 was familiar with and the effects which he was familiar with.
18 If you'll recall, a number of the defendant's experts
19 testified, yes, in an overmedication situation they agreed
20 that a number of these things, in fact, can occur. The only
21 thing I really want you to remember in your review of these
22 cases, well I meant you to remember what these effects are,
23 because you'll see those effects demonstrated throughout the
24 medical records. But the two major effects are that you can
25 get immediate effects with the drug and you can also get
1 long-term effects. Those long-term effects are primarily the
2 organ damage that can occur to these individuals.
3 We learned through Dr. Hare's testimony, who also has a
4 Ph.D. in pharmacology, we learned that the effects of these
5 drugs can cause death. And that a physician, an ordinary
6 physician, should be very well aware of those facts. We
7 learned that the effects of these drugs can also cause
8 permanent damage to the heart, the brain and the kidneys.
9 How does it do that? We learned because it reduces the
10 oxygen. It reduces your breathing response and it reduces
11 the oxygen that is pushed into those organs and if they don't
12 get the oxygen sufficient to replenish them they die.
13 So, we know from that and we know also, as Dr. Hare
14 testified, those effects are much more enhanced in the
15 elderly population. We also know that if you decrease the
16 intake of food and water and you get dehydrated, that that
17 again aggravates the sensitivity to the drug and creates even
18 more of an effect.
19 Now, ladies and gentlemen, the other thing that we know
20 is that those central nervous system depressants were placed
21 one on top of another. So we not only have one drug, but we
22 have two drugs and then we have three drugs, in effect, and
23 sometimes four and even five drugs that all have central
24 nervous system depressant qualities that these patients were
25 administered.
1 Again, an ordinary physician ought to know that. He
2 ought to be aware of the risks associated with that. So,
3 what does his duty of care become? First of all, his duty of
4 care becomes one of evaluation. He needs to evaluate that
5 patient to determine, number one, and this is in a
6 psychiatric setting, not a hospice, not a medical unit. If
7 he's treating this patient psychiatrically, as I understand
8 it and the testimony from all the physicians is, the first
9 thing you have to do is you have to evaluate that patient.
10 You've got to come up with a diagnosis.
11 THE COURT: Mr. Wilson, that does not appropriately
12 state the law. It refers to an ordinary person. I want you
13 to make that clear to the jury.
14 MR. WILSON: I will, Your Honor. And I intend to.
15 THE COURT: Thank you.
16 MR. WILSON: I apologize to the court. These were
17 prepared before I saw your instructions.
18 Maybe we ought to deal with that right now, ladies and
19 gentlemen, since I have put these up. As the court has
20 pointed out, I have an ordinary person would exercise and in
21 the instructions that you were given, that ordinary person is
22 replaced with an ordinary physician or psychiatrist. So that
23 is the standard of care that you have to look at. It's not
24 going to be the standard of care of an ordinary person. I
25 hope that you would understand that. The significance,
1 though, the language I want to point out to you is the other
2 part dealing with unjustifiable risk and also the failure to
3 perceive and failure to -- the consciously disregarding.
4 Okay. As I was indicated to you, there's a number of
5 standards that a physician, an ordinary physician, needs to
6 do. The first thing is to evaluate. It will be the state's
7 position that the defendant failed in a number of those areas
8 of the standard of care on each and every one of these
9 patients. That he failed relative to his failure to
10 evaluate.
11 But that becomes the first thing you look at. Now, the
12 defendant knew, when he received these people and admits
13 these people into the unit, and he was the attending
14 physician. He knew from a review of the records what these
15 people -- what their physical condition was like, what their
16 mental condition was like, and why they were being referred
17 to the unit. One the things that I was curious about during
18 the course of this trial is that we had these physicians who
19 were testifying these were all difficult patients. It almost
20 gave me the impression that, boy, we have a bunch of
21 difficult patients here that are out of the ordinary. That's
22 what this whole geropsych unit was set up for was to take
23 those difficult patients. That was the purpose of the
24 geropsych unit.
25 Let's talk a little bit about these definitions, because
1 these are the standards by which you're going to have to
2 judge the defendant's conduct. These are the elements or one
3 of the elements of this particular case. You've got the
4 definition of recklessly. This is a higher standard and this
5 pertains to counts two and three of the information. This
6 pertains to these two ladies right here, Judith Larsen and
7 Mary Crane. What we are alleging is that the defendant's
8 conduct rose to a higher degree in that he was aware of an
9 unjustifiable and substantial risk and that he consciously
10 disregarded it.
11 In respect to counts one, four and five, which are Ellen
12 Anderson, Lydia Smith and Ennis Alldredge, the standard is
13 that he should have been aware or ought to have been aware of
14 a substantial and unjustifiable risk that the circumstances
15 existed or the results would occur and the risk must be of
16 such a nature and degree that his failure to perceive -- in
17 other words, he failed to perceive the risk and his failure
18 to perceive constitutes a gross deviation from that of which
19 an ordinary physician would exercise under those
20 circumstances.
21 So that's the definition relative to criminal negligence
22 and reckless.
23 Now, what I want to do is I want to take you through
24 these five patients and I want to talk about them. I'll
25 leave the one definition up that pertains to that particular
1 patient while we talk about that patient. Before I go to
2 these charts, I want to show you a chart that was prepared
3 for argument purposes relating to these patients. The
4 explanation here, if you'll recall, when Kathleen Kaufman was
5 on the stand, she testified about charting the level of
6 activity or alertness of activity in each of these patients
7 over the course of their stay at the geropsych unit. She
8 went through and she divided the days into 46 hour components
9 and then she used this scale here relative to responses that
10 she noted in the nursing home -- not nursing home, but in the
11 hospital records related to each and every one of these
12 patients. So I just wanted to acquaint you with that so that
13 it will make sense when you see the next few charts.
14 Let's talk about Ellen Anderson. Here's the chart
15 prepared as to Ellen Anderson. You will have for your
16 consideration, the top part of this chart. This part is
17 argument and as the court instructed you, argument is not
18 facts. Argument is my interpretation of the facts and you
19 can do with that argument what you will.
20 I want to take a look at the chart and let's go through
21 with what happened to Ellen Anderson and where the defendant
22 failed in his care. First of all, we know that Ellen
23 Anderson came in to the unit on December the 29th. She came
24 in with her daughter, Barbara Poelman, about 4:00 o'clock
25 that afternoon. We know that Barbara Poelman was with her
1 husband and we know that Dianne Moriah, another daughter,
2 they had assisted in contacting the geropsych unit and
3 talking with the social worker and they were deemed
4 appropriate. But they'd been experiencing some severe
5 problems with their mother in terms of her anxiety.
6 They reported these problems to the nurses, the admitting
7 nurse, who was Laurie Willson, I think Laurie Willson Stevenson
8 now. They reported the fact that their mom was almost
9 inconsolable. That mom had a hard time with them not being
10 around.
11 I'm going to put Ellen's picture up here while we talk
12 about her. Well, maybe I'm not going to. So there was no
13 complaints of pain, there was no complaints or history at
14 that time of any opioid medications with the exception in the
15 nursing home, and they did get these in the hospital records,
16 at the nursing home they indicated to the geropsych unit that
17 she had a prescription for Lortab. Now, when you get into
18 your deliberations you can look at the nursing home records
19 and you'll find that over the last two months, before her
20 hospitalization, that she had a total of two Lortabs that she
21 used while in the unit. But that information wasn't supplied
22 to the geropsych unit. But we know she did have a
23 prescription for a low dosage of pain medication of Lortab.
24 I think you'll remember the testimony as to what Lortab is
25 and that that was a rather low dose.
1 But that had been the prescription that was used to
2 manage her pain, if and when she had any.
3 Now, we also know that, and I think to be expected, that
4 when Barbara and her husband left Ellen after the admitting
5 process on that day, that she began to scream out for her
6 daughter. Barbara testified to that, that she was walking
7 down the hallway and was screaming out for her, for her
8 daughter. We know from the nurse's notes that Laurie Stevenson
9 had been paging Dr. Weitzel. We know that there with Judith
10 Larsen also on that date had been vomiting and that there had
11 been a number of pages to Dr. Weitzel that occurred over that
12 time frame.
13 He responded to the first page. He was advised by Laurie
14 Wilson that she appears to be in severe pain. Now, what
15 other information he got I don't know. Laurie Wilson was
16 fairly vague in her recollection of what was said other than
17 what was reflected in her nurse's notes. But we don't know
18 when he evaluated the patient relative to her weight, her age
19 and her ability to tolerate certain medications. What we do
20 know is that he ordered morphine, ten-milligrams, injectable
21 morphine. That's the only drug that Ellen Anderson received
22 is ten-milligrams of morphine on that particular night.
23 Now, there was no orders given as to monitoring her on
24 that drug. As to seek what effect that drug might have.
25 Their experts have testified consistently with our experts,
1 that you would expect to see a peak effect of that drug
2 probably within the first hour. Keep in mind that they also
3 testified that the effects of drugs in the elderly can be
4 delayed. This is an individualized process, ladies and
5 gentlemen. That's what is so significant about this process,
6 it's individualized. So what we see here in this graph is
7 Ellen Anderson goes down to almost a nonresponsive voice
8 state. We know from the nurse's notes that at 1:30 in the
9 morning she has a blood pressure of 70 over 50. And she has
10 a respiration rate, an erratic respiration rate.
11 Doctor Hare testified that those were consistent with
12 damage that was being done to this woman's organs. That she
13 was responding to -- this was in direct response to the
14 morphine.
15 Now, she comes out of it and is agitated again. After
16 Dr. Weitzel has been paged time and time again, he finally
17 responds at 3:30 in the morning. He's advised at that time
18 not only about Ellen Anderson's condition, but he's also
19 advised about Judith Larsen's condition, which we'll come to
20 in a minute.
21 What does he do? He's advised at that time, according to
22 Tracy Scholl, about the blood pressure and about the things
23 that she observed at 1:30. What does he do? He orders
24 another ten-milligrams of morphine. What happens? She
25 passes away.
1 Before she passes away she receives a check of her heart
2 rate and there's a chart in the file. She also receives -- I
3 think they designated it as tachycardia arrhythmia that she
4 was experiencing according to that test. She also has a
5 chest x-ray done which shows evidence of bilateral
6 infiltrate, both lungs. I think there's some real
7 significance to what Dr. Hare says that corroborated him in
8 terms of the organ damage, because when she was admitted to
9 the hospital her lungs were checked and it's in the nurse's
10 notes, there was no crackling noted, no problems with her
11 respiration at that time.
12 So, you tell me. Direct consequence of the morphine? A
13 direct consequence of the risks that the defendant exposed
14 this patient to? And the fact that he should have known or
15 should have perceived that particular risk and that was a
16 gross deviation from the standard of care that resulted in
17 her death.
18 But there's other indicators of the standard of care
19 which you need to look at in combination not only with the
20 dosages of the morphine, and keep in mind, number one, he had
21 information that her pain had been treated with Lortab in the
22 past. Number two, four days prior to this, when he gave
23 Judith Larsen morphine, he gave it to her in two milligram
24 dosages and he tested it for effect and titrated it. The
25 effect was good. But this one on a 90-year-old woman, 81
1 pounds, he gives her five times that dosage.
2 The other thing that he does that is, I think, of
3 significance here, is that when he's notified of her death he
4 comes in the following morning and dictates a psychiatric
5 evaluation. He doesn't reference her death in that
6 dictation. He dictates a psychiatric evaluation as if he had
7 seen that patient. Then he dictates a discharge summary and
8 puts some notes in the file. And we know from the record
9 that all of the orders for morphine and all of the other
10 orders are given over the telephone.
11 We also see in the file a reference on December the 29th
12 by the doctor. I would suggests to you that he didn't see
13 her because we know from Barbara Poleman's testimony she was
14 with her daughter up until the time just prior to 7:30. She
15 left just previous to that time.
16 So he didn't evaluate this patient personally, but yet he
17 gives her a dosage of morphine that is testified by our
18 expert, Dr. Hare said I would have started out with one
19 milligram. Dr. Crookston said I would have given her two
20 milligrams. But that was after I had treated her with the
21 Lortab to see what effect the Lortab would have had.
22 Dr. Bair testified -- Dr. Hare testified, and Dr.
23 Crookston, testified as to the deviation from the standard of
24 care that an ordinary physician would exercise under these
25 circumstances. I would submit to you the evidence shows that
1 if you look at the various conducts the defendant, that it
2 rises to a level of gross deviation from that standard of
3 care. That shot probably has the most significance in terms
4 of gross deviation because he was made aware at that time of
5 some significant problems with that patient previous to that
6 points.
7 We also know, if we believe what the experts have told us
8 that this lady had pneumonia, that that's one of the worst
9 things in the world you can do for that patient is to give
10 them morphine which cuts down the oxygen, which then creates
11 further damage to the organ.
12 Let's talk about Judith Larsen. Again, we have the top
13 part of the chart, which you've seen before, and on the
14 bottom the chart we have the activity levels of Judith Larsen
15 monitored here. I need to change the definition, because
16 what we're dealing with here is the standard of conscious
17 disregard.
18 Judith Larsen enters the unit on December the 6th. She
19 has is started on these particular psychotropic medications
20 at that time. We see a pattern of activity that goes from
21 essentially verbally agitating down to normal activity during
22 this time frame. There are increasing dosages administered
23 to Judith Larsen over this time frame. We start to see, on
24 December the tenth, she's dropping down to a little bit lower
25 level. Then we see on the date that a number of the doses
1 are withheld. We see a dramatic drop in her level of
2 activity down to nonresponsive to touch or pain.
3 If you'll recall the testimony, it was about that time
4 that they -- the nurses started to withhold these dosages. I
5 think it was on December the 12th, or maybe the 13th, that we
6 have what is characterized by the defendant as a miraculous
7 recovery. I would submit to you that that's clear evidence
8 by withholding the dosages, that she'd rebounded from the
9 effects of those drugs, the sedating effects of those drugs.
10 She's put back on the regimen and she drops down and
11 continues on at a fairly decent level of normal activity
12 during that time frame. It is interesting to note in the
13 records you'll see that on December the 13th Dr. Weitzel
14 observed pain in this particular patient. I think he
15 described it as she seems to be in some pain. He prescribed
16 15 milligrams of morphine, one and a half times the initial
17 dose he gave to Ellen Anderson. Fortunately for Judith
18 Larsen, that was prescribed PRN so that the nurses never
19 noted the pain. They never saw any reason to give that.
20 Then we have a conversation that takes place between him
21 and Bonney Hardey on the 19th where she asked him to put a
22 stop on that because she's fearful that another nurse may
23 very well come along and see that order and inject Judith
24 Larsen with a 15-milligram shot of morphine.
25 So we see her level continue like this up until about
1 December the 22nd. It's at that time, as I recall, she
2 experiences some kind of a problem and then, as we carry on,
3 the problem I guess is on December the 24th where the level
4 of activity goes down. There's some drugs withheld. And
5 then on the 25th the defendant gives her the test on the
6 morphine. He gives her two milligram shots, three times. So
7 it comes out to six milligrams over a four hour time frame.
8 We see a little spike here. That's referenced as she
9 seems to be improving in one of the nurse's notes. Then what
10 we get is the addition of Ativan, a very powerful drug. When
11 you look at the drop in her level of activity, she's also
12 given two milligrams of morphine on that particular day.
13 Now, we know somewhere in this time frame for Judith
14 Larsen, and this comes from Merlin Larsen, that he has a
15 conversation with the doctor about his mother. He's been
16 advised by the nurses that he'll need to make arrangements to
17 have her transported or taken out of the unit. They're
18 saying we haven't been able to accomplish what we needed to
19 accomplish with her and you'll have to find some other place
20 to take her.
21 Merlin was concerned about that. He hadn't been able to
22 find a place that would take her. The nursing home she was
23 in wouldn't take her back. So he has this conversation with
24 Dr. Weitzel and during this conversation the defendant tells
25 him, well, your mother is dying and you don't need to make
1 those arrangements. We'll just keep her here and keep her
2 comfortable.
3 Again, if you're a family member and there was other
4 references through Merlin interspersed throughout that
5 particular time period, about keeping his mother comfortable
6 and they weren't looking for any kind of a miracle here.
7 They were hoping for one, but weren't looking for one.
8 Now, is that somehow unbelievable, that Merlin, or a
9 family member, would respond in that fashion? Your mother is
10 93 years of age. She's been having these psychiatric
11 problems. And the doctor comes to you and says your mother
12 is dying. He doesn't tell them what she's dying from. The
13 records don't indicate that. The records don't indicate that
14 he ever sought the opinion of a consultant at the hospital
15 relative to what was happening to Judith Larsen, to verify
16 his impressions that this individual was dying.
17 So what does he do on the 30th? He starts her on a
18 regimen of morphine. As you can see, ladies and gentlemen of
19 the jury, the level of activity goes down profoundly and as
20 the days goes by it goes down profoundly even more. And then
21 we get to the date of her death and you know, I think it
22 was -- maybe I've got the nurses mixed up. I think it was
23 Tracy Scholl. One of the nurses, anyway, on that particular
24 day, withheld three doses of morphine because her respiration
25 rate was so low. She felt like she would kill her if she was
1 to administer that morphine.
2 We also know that the defendant reacted to her
3 withholding that. He reacted in a number of ways, but first
4 of all he told her she wasn't supposed to be withholding any
5 more morphine unless he was called.
6 Second of all, he characterizes this as breakthrough
7 pain. As I recall, the only indication from his notes was
8 that she appeared to be in pain and that there was some
9 indication that she was moving about. If you'll recall, the
10 nurse testified about the fact that this lady seemed to be
11 coming out of it and she motioned to her mouth for water.
12 She was able to take some sips of water.
13 So what do we get on the last day of her life? We get
14 130 milligrams of morphine. It's administered to her over
15 that short period of time. Ellen Anderson receives her last
16 dosage of morphine as I recall, -- excuse me. Not Ellen
17 Anderson, but Judith Larsen receives her last dose of
18 morphine at 1830 hours. That would be 6:30 in the evening.
19 She dies at 2010. She dies approximately an hour and a half
20 later.
21 What does the defendant note when she expires. She
22 finally dies. This after large doses of morphine.
23 I'll submit to you that there's a number of deviations
24 from the standard of care here. First of all, as was
25 testified by the state's experts, Dr. Hare, Dr. Crookston and
1 Dr. Bair, particularly as to the pharmacological effect of
2 all of these drugs put on top of one another. Second, to the
3 failure to properly intervene when she had what appeared to
4 be a seizure. Do you recall that there was a consult called
5 in but it wasn't by the defendant. He gave her Dilantin to
6 control the seizure activity. That was subsequently stopped
7 by the defendant. We know that he failed to evaluate
8 appropriately. I think most significantly, when we get down
9 here, we don't see any documentation as to why this woman is
10 dying.
11 Now, we don't see any rationale for the treatment of
12 pain, other than there's expressions of she appears to be in
13 discomfort. She appears to be moaning and groaning. There's
14 some of those references that are made on occasion. But tell
15 me, in your own mind and using your own common sense, as you
16 look at the care that has been rendered here, morphine has
17 been described as the gold standard of pain medication.
18 Morphine has been described as the medication that is used
19 for post-operative pain.
20 Does discomfort -- do the words discomfort and moaning
21 and groaning signify that this individual is in need of such
22 strong drug? Why wasn't there an evaluation relative to
23 either lower dosages, like there was back here, and titrated
24 to effect and why wasn't there an attempt to keep this lady
25 in a position where she could at least relate to her family
1 members?
2 And that's another significant part of the testimony that
3 you've heard and the evidence you've heard. Remember Harold
4 Larsen? His testimony was read into the record for you. But
5 Harold made comments that his mother -- he'd previously
6 visited her during a stay and he could converse with her and
7 she remembered him, but when he gets up to the latter part of
8 her stay what does he say happened? She didn't recognize
9 him. And then the next thing he notes is that she was not
10 responsive. I think he visited her, as I recall, either on
11 January the 2nd or January the 1st, just prior to her death.
12 And he indicated in his testimony that she was not responding
13 to him or the sisters. She'd just lay there in bed.
14 Merlin Larsen testified that during the course of her
15 hospitalization he had seen a deterioration in terms of her
16 level of activity. Here was what had been described as a
17 very viable woman in terms of her interactions. Yeah, she
18 was having some real mental health problems and that's why
19 they were trying to get her the help she needed. A gross
20 violation of the standard of care. Consciously disregarding
21 a substantial and unjustifiable risk. The fact that she was
22 never properly evaluated as to what was the reason for the
23 dying process, that fact alone, in my mind, says that if I'm
24 going to give her these kinds of injections and I hope know
25 that those drugs will kill and I know they can have the side
1 effects as demonstrated in terms of the graphs, that
2 constitutes a conscious disregard, ladies and gentlemen.
3 And one other significant factor that we have here, that
4 was the testimony of Todd Taylor -- I'm thinking of the
5 medical examiner. Okay. Todd Gray. I have to get -- they
6 think I'm suffering from a little dementia here, so bear with
7 me. Todd Gray, out of the people that he performed autopsies
8 on, from his review of the medical record and his review of
9 the autopsy reports and the tests, this person he certified
10 as a homicide.
11 Now Mary Crane. The yellow signifies when she entered
12 the hospital. That demarcation is when she entered the
13 geropsych unit. Mary Crane is administered on the day of her
14 admittance, and this is the only case that there is any
15 documentation in the admission charts relative to any pain
16 complaints. I think it's interesting to note that she
17 apparently was alert enough, was answering the questions to
18 the admitting nurse, responding enough and she said on that
19 particular occasion that she equated her pain at a five out
20 of one to five. She also said that that's the thing she
21 wanted to have controlled was her pain. But the records show
22 that she had been given, again, a form of Lortab, or there is
23 another name for it, over the course of her care at the
24 community hospital. She'd been given the equivalent of about
25 one five-milligram pain pill a day. That was over the past
1 five years.
2 The significance of that in my mind is that why do we all
3 of a sudden now go to a pain killer that is very powerful?
4 You looked at the PDR and we talked about the warnings in the
5 PDR. You'll note that the PDR is Physicians Desk Reference.
6 It talks about the sedating effects and that it should not be
7 used in terms of -- that its side effects can create
8 hypoventilation and other depressing effects. Then it said
9 down here, a general Duragesic dose greater than 25 is too
10 high for initiation of therapy and not for opioid tolerant
11 patients.
12 Now, there's going to be some dispute whether Mary Crane
13 was opioid tolerant. As I recall the testimony of Dr. Hare,
14 that type of drug dosage for one day wouldn't create opioid
15 tolerance at the level you would expect for purposes of the
16 administration of a Duragesic patch. But let's take a look
17 because it's -- what we need to do, I think, is you need to
18 look at this chart. I'll hold that up.
19 You'll note that the lowest patch, the 25 micrograms, we
20 look at oral dosages, you'll recall that Dr. Hare said the
21 conversion to IM, morphine injected into her muscularly,
22 would be that you divide these by 30. So it comes out 15 to
23 about 45 milligrams of morphine per day on a 25 microgram
24 patch.
25 You go up to the next one, which was the one that Mary
1 Crane got, and it's the mid level microgram patch, and it's
2 135 to 244. So she was receiving the equivalent of about 45
3 milligrams of morphine to, oh, approximately 75 milligrams of
4 morphine per day. And if we take the mid level on that,
5 you're talking about 55 or 60 milligrams of morphine a day
6 that is going into her system automatically through this
7 Duragesic patch.
8 What is the pattern that we observe here relative to the
9 medication pattern that is being given to this patient? We
10 can see these patches that are put on and -- you know, Dr.
11 Dienhart evaluates her too. He says that the Duragesic patch
12 is probably appropriate. But then later in the week when he
13 sees her again he references that she seems to be
14 oversedated. So what does he do? He decreases the Duragesic
15 patch. What does the defendant do? Just like he did in the
16 other case, he comes in and he stops the order and increases
17 it back up to 50 micrograms. Now, he's the psychiatrist.
18 Dienhart is the internist.
19 Then we see additional dosages of different psychotropic
20 medications given on top of each other. Do you remember the
21 testimony of the expert, the pharmacy effect of giving three
22 dosages over this course of time. She's got this Duragesic
23 patch on and January the 2nd, that's the date that there's a
24 vaginal fistula noted. That's the date that they call in Dr.
25 Meeks and they say we want you to evaluate this patient. Dr.
1 Meeks comes in and he makes a recommendation, based upon his
2 evaluation, that they could try to heal this vaginal fistula
3 with surgery -- excuse me. With the treatment of a low fiber
4 diet, I guess it was, or low residue diet is a better term.
5 And with antibiotics. He reiterated about a 35 to 30 percent
6 probability of being able to heal it that way. Or, he said,
7 you could have her evaluated for possible surgery. She needs
8 to be evaluated by an internist. But the internist is not
9 called, not for a couple of days anyway.
10 This lady has what the defendant subsequently describes
11 as what he thinks might be the cause of her death. The
12 inception of an infection that may relate to the sepsis
13 again. But he doesn't do anything in terms of ordering the
14 antibiotics. He doesn't intervene at that time. As Dr. Bair
15 said, one of the things you do as a physician is to determine
16 what is causing that. There may be a serious problem with
17 this lady that is causing that. He doesn't do that.
18 So what is the next thing that happens? Well, we know
19 it's clear up into the 5th, I think, of January before she
20 receives any antibiotics. We also know and have a bigger
21 increase of drugs here. We're also see Depakene added now.
22 We still have the Duragesic patch on, but we've ordered
23 morphine. Why? Because the patient appears to be in some
24 discomfort or pain.
25 The next day, January the 4th, the Duragesic patch is
1 increased now to 75 micrograms, so now she's probably getting
2 the equivalent of, midline, probably in the area of eight
3 milligrams a day.
4 So then we start to see again more morphine and we start
5 to see -- we find that she's not eating, she's not doing the
6 kinds of things that you see as one of the effects of these
7 central nervous system depressant drugs. She's becoming
8 dehydrated. Her sodium level starts to increase and I think
9 we have a real spike in that around the date of her death.
10 She's got all of these things going into her system. There's
11 certain drugs that are withheld on that date and I think the
12 reason they were withhold is because of her lethargy. They
13 weren't able to -- they weren't able to get her to swallow.
14 They suspected possibly an aspiration pneumonia. The medical
15 records reflect that. They send her in for a chest x-ray,
16 which showed negative for that.
17 But she becomes very very ill on the 7th. This is the
18 only case out of the five where Dr. Dienhart is called in as
19 a consult relative to her serious condition. She's dying at
20 this time. Dienhart knows that from what he can pick up of
21 the vital signs. So what we have, then, according to the
22 records, is we have a meeting that takes place the night of
23 the 8th. Between Karen Bringhurst and her sister Cathy
24 Charlesworth, which takes place in Mary Crane's room.
25 They've been called to the hospital and they've been told
1 that their mother has suffered some kind of a stroke. They
2 go into the room and Karen talks with the doctor. Cathy is
3 off to the side. Karen's a nurse and she asks the doctor,
4 you know, what's the problem? What does he tell her? He
5 doesn't tell her any cause of death. He just says she's
6 dying and it appears irreversible and the only thing we can
7 do is give her morphine, according to Karen's testimony,
8 which will hasten her death. Or, he says, in a subsequent
9 affidavit that she signed, could possibly hasten her death.
10 She's only given ten milligrams of morphine, but keep in
11 mind she's got a Duragesic patch still on. This meeting
12 takes place at 7:00. At that time the doctor enters these
13 orders to withhold the drugs and to just give the two five
14 milligram shots of morphine. It looks like that order went
15 in about seven that evening. She dies at 2335 p.m. The last
16 morphine shot given was at 2300, so 35 minutes after the last
17 morphine shot.
18 Now, again, this is a case that probably fits with the
19 effects of the morphine in combination with the Duragesic
20 patch causing her death. At least it fits the timeline as
21 testified to by the experts that you would see those effects
22 during that time frame. But I would also submit to you that
23 because of the course of medication, because of the
24 defendant's failure to evaluate this patient and intervene
25 appropriately in terms of these other circumstances, assuming
1 she was suffering from a sepsis, because of all of those
2 failures to get that and his failure to diagnose, in
3 combination they resulted in a gross deviation from the
4 standard of care. As every one of those experts testified
5 to, there were deviations from the standard of care in a
6 number of areas, which I'll try and talk a little bit about
7 later.
8 That's Mary Crane. Looking at the definition of
9 recklessly, consciously disregards a substantial and
10 unjustifiable risk that the circumstances exist. That's a
11 gross deviation of the standard of care of an ordinary
12 physician.
13 THE COURT: Ladies and gentlemen, it's been about an
14 hour and 15 minutes. Do you want to stand and stretch for a
15 minute? You may if you would like for a moment.
16 (Pause in the proceedings.)
17 THE COURT: Let's go ahead and take a five minute
18 recess. We'll be in recess for five minutes.
19 (Short recess.)
20 THE COURT: We are back in session. The parties and
21 counsel are present. The jury is in the jury box. You may
22 continue, Mr. Wilson.
23 MR. WILSON: Thank you, Your Honor. Let's talk a
24 little bit about Lydia Smith now. We know from the medical
25 records that she entered the unit in the late afternoon or
1 evening hours of December the 20th. Again, here's a patient
2 that was admitted to the unit by Dr. Weitzel. She was
3 determined to be medically stable. Not only at that time,
4 but subsequently when she was physically evaluated.
5 She's having some problems, some mental health problems,
6 and she's sent to the unit to address those needs and to be
7 returned back to the care center or another care center. But
8 she's put on a number of psychotropic medications. You see
9 that she's fairly physically agitated here in the beginning
10 of her stay. It drops down as you see the drugs and you see
11 the level of activity, that they almost correspond on a daily
12 basis. Then you see the implementation of a new drug,
13 Haldol. And then we go along and now we're starting to see
14 one little drop here on December the 26th. We see the
15 implementation of more Haldol.
16 We go along at a fairly level period with some periods of
17 agitation, but she's at a fairly normal level all through her
18 stay, until about this time here and then what we see is we
19 start to see some larger dosages of the psychotropic
20 medications and we see the addition of Depakene to her
21 medications.
22 Now, keep in mind Dr. Hare's testimony about the
23 long-term effects of these medications. We go up to January
24 3rd and it's at this point -- and she's getting a huge amount
25 of Haldol on that particular date. Her Depakene is about --
1 it says 250 to 1,000 milligrams of Depakene with the Ativan
2 added to it. It's at this time in her stay, and we have
3 testimony from the family members to corroborate this,
4 that -- and Kent Smith testified as to visiting his mother
5 almost on a daily basis because he didn't live that far from
6 her, or from his place of employment. He talks about going
7 to see her and the fact that she was not very happy with the
8 fact that they had put her in this geropsych unit. But as
9 the other family showed up they were all hopeful and
10 anticipating that this would be the resolution to some of the
11 mental health problems and they'd be able to get her
12 stabilized.
13 We go along here and we see her dropping down and
14 dropping down and dropping down. We have testimony that, I
15 think on January the 6th, where she says -- where it is
16 stated by the family that they come in to see her that day
17 and she's found in the cafeteria and is slumped over. And I
18 think it was Bonnie Smith wheels her down. Bonnie testified
19 that those were the last words that she heard from her mother
20 on that particular day. It was why, why, why. So they start
21 to see this progress, this drop, in her level of activity.
22 What happens is we get a pronounced deterioration on
23 January the 7th. Again, no consult. The family is called
24 in. I want you to keep in mind, remember Mary Crane? The
25 conversation with the defendant that took place on Mary Crane
1 with the family? That takes place on January the 7th at
2 7:00. The conversation with the Smith family takes place
3 about an hour later. What are they advised? Well, there's
4 something seriously wrong with your mother. She's dying. At
5 that time they have Kent execute the advanced directive.
6 It's under those circumstances that he indicates to withhold
7 these medical procedures. He doesn't want her -- any
8 extraordinary measures taken to save her. The information he
9 has is I've got a doctor here and we all trust doctors. We
10 trust that they'll tell us what the problem is. We trust in
11 their judgment. Your mother is dying they are told. All we
12 can do -- it's almost a repeat of what was said to the Crane
13 family. All we can do is keep her comfortable and give her
14 morphine.
15 So the injections of morphine start on the 7th. She's
16 given five milligrams, I think, at that time. They are
17 subsequently increased the following morning to ten
18 milligrams every four hours. It looks like she receives a
19 five milligram shot on the 7th at 2100 hours. That would be
20 at 9:00. Then she receives additional shots the following
21 morning of five milligrams at 2:30 in the morning and at
22 5:45. Then at 9:00 the order comes in, a telephone order
23 comes in, to change that to ten milligrams of morphine.
24 And you'll recall the testimony of Bonnie Smith. Bonnie
25 was present with her mother at noon that day. She saw Dr.
1 Weitzel and he said that he was going to have her given
2 another morphine shot. Bonnie said why. She's laying there,
3 she's in a coma, she's not responding at all. Why? He gave
4 her the statement that he had to go to another job. She's
5 sitting there and a few minutes later in walks the nurse at
6 about 12:00. The nurse has the shot and before Bonnie can
7 stop her she turns Lydia over and injects her with another
8 ten milligrams of morphine.
9 Now, remember the expert testimony about the peak effect
10 of morphine and when you would expect the reaction? She dies
11 at 12:45, 45 minutes after the shot has been administered to
12 her. You can see the pattern of level of activity go down
13 and down.
14 Dr. Bair testified as to a number of deviations from the
15 standard of care, some of those which were documented also in
16 the testimony of Dr. Hare and Dr. Crookston. He testified to
17 some of the areas as to her documentation on admission. She
18 wasn't evaluated. He testified that there was a variation as
19 to the geriatric pharmacology and in regard to the
20 pharmacological actions of these drugs.
21 He testified of his failure to recognize delirium. I
22 would state that that was one of the standard of care
23 violations for all of these patients that was testified to by
24 Dr. Bair. And he also testified as to the medical
25 consultation, the fact that there was no consultation sought
1 or evaluation of this fragile woman before the implementation
2 of so-called comfort measures. He testified that, as I
3 recall, that these demonstrated a significant deviation from
4 the standard of care in geriatric practices.
5 Those particular areas, the pharmacological, was also an
6 area that Brad Hare testified about. And his failure to
7 monitor, to titrate, these particular drugs so that you could
8 substantiate the effects that they were having on this
9 individual. This woman went from a woman who was reported as
10 still playing the piano, even though she had suffered a CV in
11 November and had aphasia, she was still able to walk around,
12 still able to ambulate upon her entry.
13 On this particular case, though, we're talking about the
14 negligent standard. We're talking about conduct where he
15 ought to be aware of a substantial and unjustifiable risk,
16 that these circumstances existed or the result will occur.
17 Because of his position as a physician and his knowledge as a
18 physician, he's aware of those risks or ought to be aware of
19 them. But his failure to perceive that risk constitutes a
20 gross deviation from the standard of care.
21 Next let's talk about Ennis Alldredge. Ennis was only in
22 the hospital about three-and-a-half days, or three days. We
23 know from the history on Ennis and have been told to us time
24 and time again, that Ennis was suffering some fairly severe
25 psychiatric symptoms, eight symptoms. His behavior was
1 fairly aggressive. We know that he -- when he came in that
2 he'd been medicated and we know that when Dr. Dienhart saw
3 him, and I think that was on the date of his admission on the
4 10th, he noted that he was extremely sedated when he
5 conducted his physical exam of Ennis.
6 You can see that he received a large amount of Haldol on
7 that particular day. He was put on another regimen of drugs.
8 And then on the 12th is when things started to fall apart.
9 On the 12th he's given a significant dose of Haldol. Again,
10 you can see in the graph, the activity graph, a dropping
11 where he goes down to the early morning of January 13th where
12 he drops down to not responsive to touch and pain.
13 Ennis supposedly was sent down for an MRI. These MRI
14 findings, and they were testified to by the doctor that
15 conducted them, they were compromised. His report reflects
16 that it appeared that possibly -- I think possible was the
17 word he used, a CVA, but he couldn't age it. He couldn't
18 determine just what age this stroke was. He testified that,
19 as I recall his testimony here, that it was a mild stroke.
20 It wasn't a massive stroke, it wasn't a life threatening in
21 nature stroke. But he also recommended to the defendant that
22 he ought to either get -- maybe this was a CAT scan that he
23 had initially and then an MRI. I can't remember for sure.
24 He recommended that, but that recommendation wasn't
25 followed through. Now, Vonda Alldredge's testimony was read
1 into the record. As you'll recall, Vonda testified as to
2 conversations she had with the defendant on the 13th. In her
3 testimony she was advised that her husband was dying, that
4 he'd suffered a massive stroke, as I recall the testimony.
5 This was advised by the defendant to her. And that comfort
6 measures should be taken.
7 There apparently was a meeting the following morning at
8 the hospital between her and the defendant, as I recall,
9 wherein those things were solidified. However, if you'll
10 look at Ennis's medical directive, it doesn't talk about a
11 number of procedures that you would normally expect in a
12 medical directory being withhold. It talks about essentially
13 two procedures, as I recall. So I would like -- I would
14 encourage you to take a look at that medical directive.
15 But, again, we have the same pattern. There's no
16 consult. He doesn't call any internist in to verify his
17 findings. He immediately goes to the spouse and says, hey,
18 he's dying. All we can do is give him comfort care.
19 One of the things that's significant in the expert's
20 opinions is the fact that he adds Ativan to the morphine,
21 which gives it an increased risk effect. It's not titrated.
22 He just orders a particular regimen. He gives that Ativan
23 and you see the pattern here and you see some agitation on
24 the 14th and then you see him drop down.
25 Now, there's some interesting notes from the nurse on
1 Ennis. I think it was Bonnie Hardey, as you'll recall,
2 testified that she withheld the last dosage that was supposed
3 to be administered to Ennis at 9:30 that morning because she
4 could see that he was having Cheyne-Stokes respirations, that
5 he was in the throes of dying. And that she didn't want to
6 participate by giving him the shot. She didn't call the
7 doctor, didn't tell the doctor, because she didn't want to be
8 confronted by Dr. Weitzel. But he dies. The last shot
9 administered to him, I think, was administered at 8:00 a.m.
10 that morning and he dies at 9:36. So about an hour and a
11 half afterwards.
12 Dr. Bair testified that the deviations from the standard
13 of care, that the geriatric pharmacology and physiology, the
14 pharmacological, the effects of these drugs at the high
15 dosages that those were deviations. The delirium was not
16 documented and not detected.
17 He also testified as to the unusual intervention in the
18 last part of this victim's life being characterized as a
19 deviation from the standard of care. There's no
20 documentation as to why the necessity of the morphine. There
21 was no expression of pain. There was no indication that this
22 victim was suffering pain either in his preadmission history.
23 In fact, in his preadmission history I think it said that his
24 pain claims were taken care of by Tylenol.
25 Again, the lesser standard is that he fails to perceive
1 the substantial and unjustifiable risk by his -- that his
2 conduct created to this particular victim.
3 All of these patients, with the exception of Ellen
4 Anderson, fit a continued pattern of overmedication, of
5 underevaluation, of failure to diagnose, failure to consult.
6 All of these things combine -- I think one of the most
7 significant areas of his failures was related to the failure
8 to adequately supervise these patients. If you look in terms
9 of the medical records, you'll find that most of the orders
10 for the administration of these drugs occurred through
11 telephone orders. You'll also find evidence that -- and we
12 have heard evidence from the nurses, to the effect that he
13 would come in early in the morning or late at night and that
14 he would peek in on the patients. He would then review the
15 nurse notes, make whatever orders he would make and then
16 leave. There was testimony, I think, as to Mary Crane, that
17 after she developed the vaginal fistula he didn't even darken
18 her room.
19 I think all of these things demonstrate in totality his
20 gross deviation from the standard of care. I would submit to
21 you, ladies and gentlemen of the jury, that this constitutes
22 the theory of the state's case. That in combination with the
23 failure of care, the administration of the psychotropic
24 medications in combination on top of one another, all CNS
25 depressants, and the morphine that was subsequently
1 administered all give rise to clear evidence, beyond a
2 reasonable doubt, that the cause of death relates to his
3 failure of care and his medication practice.
4 Now, a couple of things I just need to reference to
5 reference at the conclusion of this part of my closing. That
6 is, when you get in and review the records, keep in mind a
7 couple of things. First of all, a hospital record, the Davis
8 medical records, is the only record that the defendant had
9 access to at the time of the administration of these drugs.
10 There are some records that were formed from these care
11 centers that are part of that record.
12 When you take a look at that keep that in mind, because
13 there's a number of things that were contained in the
14 Davis -- in the care center records that were part of the
15 testimony of other witnesses, that weren't part of his
16 knowledge and part of his ability to perceive certain things
17 that are going on.
18 And I think that also pertains to your overall view of
19 the neglect here and of the gross negligence and the
20 recklessness with which he cared for these five patients.
21 But most significantly, and I think this is probably -- I
22 would characterize his conduct over this period of time. We
23 start out with Ellen Anderson. We know Ellen Anderson was
24 administered only morphine. We know Ellen Anderson, when she
25 came into the unit, was deemed to be medically stable for a
1 person of her condition. There was only one drug that was
2 administered to Ellen Anderson. She wasn't even given her
3 other medications that night. Only one drug administered to
4 Ellen Anderson. There was no notations in the record that
5 Ellen Anderson fell or that she had any crisis event. There
6 was nothing to give any indication that she had had any
7 particular crisis in her life that would need to have an
8 intervention medically.
9 The only thing that was done was the defendant ordered
10 the injection of ten milligrams of morphine and then another
11 injection and she died. I refer to that as the smoking gun.
12 So when you consider the evidence here, the evidence is
13 cumulative. If anybody was put on notice as to the effects
14 of the drug morphine at that time, it was the defendant.
15 Yet, on the very same date and the day following, he starts
16 administering a combination -- this drug to Judith Larsen.
17 She dies on January the 3rd.
18 Then we get to Lydia Smith and Mary Crane. Mary Crane
19 dies on the 7th and Lydia Smith dies on the 8th. Then you
20 have Ennis Alldredge who passes away on the 14th. All of
21 them with morphine or Fentanyl or a combination of morphine
22 and fentanyl.
23 All die, all five of them, in a ten bed unit. That's the
24 one fact that can't be disputed is the fact that we have five
25 people, a ten bed unit, 14 or 16 day time frame, and they
1 receive doses of these drugs and they die.
2 Thank you.