Prosecution Rebuttal
20 MR. WILSON: YES, YOUR HONOR. THANK YOU. LADIES
21 AND GENTLEMEN. THIS PART I'M NOT GOING TO TAKE A LONG TIME,
22 BUT I JUST WANT TO FOCUS YOU BACK ON WHAT I THINK THE
23 RELEVANT FACTS AND CIRCUMSTANCES ARE SURROUNDING THIS CASE.
24 YOU HEARD A NUMBER OF ARGUMENTS AS IT RELATES TO
25 END-OF-LIFE CARE, DR. WEITZEL PROVIDING END-OF-LIFE CARE TO
4490
1 THESE PATIENTS. AGAIN, YOU NEED TO REFOCUS IN TERMS OF WHAT
2 TYPE OF UNIT WE'RE TALKING ABOUT HERE. WHEN THESE PATIENTS
3 WENT INTO THE UNIT, IT'S UNDISPUTED THAT THEY WENT IN A
4 MEDICALLY STABLE SITUATION FOR PURPOSES OF PSYCHIATRIC
5 TREATMENT, NOT END-OF-LIFE CARE TREATMENT. THAT WAS NOT THE
6 PURPOSE OF THEM BEING IN THAT UNIT. SOMEHOW AFTER THEY WERE
7 IN THE UNIT FOR A SHORT PERIOD OF TIME THEY END UP WITH AN
8 ACUTE EVENT. NOW, THE QUESTION IS, HOW DID THAT ACUTE EVENT
9 COME ABOUT AND HOW WAS THAT PRECIPITATED AND WHAT IS THE
10 CAUSE AS IT RELATES TO ACUTE EVENT THAT CREATES THE DYING
11 PROCESS?
12 NOW, ONE THING THAT THE DEFENDANT IN CLOSING INDICATED
13 FOR YOU WAS, WE ALL AGREE ON ONE THING AND THAT IS IN
14 RESPECT TO THE CLINICAL ASSESSMENT OF EACH OF THESE
15 INDIVIDUALS THAT IT'S A DIFFICULT THING TO DO BECAUSE OF THE
16 STATUS OF THE PATIENT WHICH REQUIRES WHAT, LADIES AND
17 GENTLEMEN OF THE JURY? IT REQUIRES CAREFUL MONITORING, IT
18 REQUIRES A LOT OF ASSESSMENT, IT REQUIRES THE HANDS-ON CARE
19 OF THE DEFENDANT IN ORDER TO MAKE THOSE PROPER JUDGMENTS.
20 NOW, DID HE DO THAT. I WOULD SUBMIT TO YOU THAT HE FAILED
21 MISERABLY IN RESPECT TO MAKING THOSE KINDS OF JUDGMENTS.
22 WE ALSO HAVE TO LOOK AT THE FACT THAT IF YOU ARE
23 INVOLVED IN END-OF-LIFE CARE, IF YOU ARE TREATING A PATIENT
24 OUTSIDE OF THE PARAMETERS OF YOUR PSYCHIATRIC EXPERTISE,
25 WHICH HE WAS DOING IN THIS PARTICULAR CASE IN ADMINISTERING
4491
1 PAIN KILLERS, WHAT ARE THE CRITERIA FOR MONITORING? WHAT
2 ARE THE CRITERIA FOR CONTINUOUS ASSESSMENT? IS IT ONE
3 RESPIRATION RATE EVERY EIGHT HOURS, IS THAT CORRECT
4 MONITORING?
5 AS TESTIFIED TO BY DR. HARE, AND I THINK AS
6 CORROBORATED BY DR. FEHLAUER, THE ASSESSMENT AND MONITORING
7 OF THESE PATIENTS WHEN THEY WERE PLACED ON THESE PARTICULAR
8 DRUGS WAS WOEFULLY INADEQUATE. SURE, YOU ARE GOING TO HAVE
9 DIFFERENT RESPIRATION RATES. AND AS THEY TESTIFIED TO, YOU
10 ARE ALSO GOING TO HAVE VARIOUS RESPONSES AS IT RELATES TO
11 THE TYPE OF DRUGS THAT WERE BEING ADMINISTERED TO THEM.
12 SOME OF THOSE DRUGS DO CAUSE AGITATION, SOME OF THEM, AND
13 THEY WOULD CAUSE SEDATION. SO YOU LOOK AT ALL ASPECTS OF
14 THAT IN THE PROCESS OF MONITORING THESE PATIENTS.
15 WHEN YOU GO THROUGH THESE RECORDS LOOK AT THE FACT THAT
16 A SIGNIFICANT NUMBER OF THESE ORDERS FOR MEDICATION ARE DONE
17 BY TELEPHONE. THEY ARE NOT DONE BY THE DOCTOR COMING IN AND
18 ASSESSING THE PATIENT, THEY ARE DONE BY TELEPHONE. IS THAT
19 PROPER CARE AND TREATMENT UNDER THIS PARTICULAR FACILITY?
20 NOW, WE TALK ABOUT THE GEROPSYCH UNIT, BUT WE SEEM TO
21 IGNORE THE FACT THAT IT'S IN A HOSPITAL. AND I THINK ONE OF
22 THE MOST SIGNIFICANT FACTORS HERE IS THE FACT THAT IN EVERY
23 SINGLE ONE OF THESE PATIENTS, EVERY SINGLE ONE OF THESE
24 PATIENTS WITH MAYBE THE EXCEPTION OF MARY CRANE, YOU HAVE NO
25 CONSULT. YOU HAVE NO OTHER DOCTOR COMING IN AND CERTIFYING
4492
1 THAT THIS PATIENT IS DYING. SURE, YOU'VE GOT NURSES, LAURIE
2 WILLSON IN MOST INSTANCES.
3 I WOULD POINT OUT TO YOU IF YOU LOOK AT THE NOTES, IT'S
4 LAURIE WILLSON THAT TALKS ABOUT THE TREATMENT PROGRAM BEING
5 CHANGED TO DEATH AND DYING PROGRAM. YOU DON'T SEE OTHER
6 NURSES DOING THAT. BUT WHERE DOES LAURIE WILLSON GET HER
7 INFORMATION FROM? WHERE DOES SHE UNDERSTAND THAT THIS
8 PATIENT IS DYING? I WOULD SUBMIT TO YOU THERE'S ONE PERSON,
9 ONE PERSON IN CONTROL OF THIS WHOLE PROCESS AND THAT'S THE
10 DEFENDANT. IN EACH INSTANCE IN MEETING WITH THE FAMILY WHO
11 TELLS THE FAMILY THAT THE PATIENT IS DYING. WHO IS THERE AT
12 THAT TIME TO MEET WITH THE FAMILY WHO'S MAKING THAT JUDGMENT
13 CALL? IT'S THE DEFENDANT. THE DEFENDANT IS THE ONE WHO IS,
14 IN ESSENCE, CONTROLLING THE WHOLE SITUATION. HE'S
15 CONTROLLING THE NURSES, HE'S CONTROLLING THE FAMILIES, AND
16 EVERY PIECE OF INFORMATION THAT COMES DOWN ABOUT THE DYING
17 PROCESS COMES DOWN FROM THE DEFENDANT.
18 NOW, THE DEFENDANT DISPUTES THE CAUSATION THAT
19 MORPHINE -- IN FACT, IF WE TALK ABOUT EXPERTS BEING FRANK
20 AND FORTHCOMING, LET'S TALK A LITTLE BIT ABOUT THE
21 DEFENDANT'S EXPERTS. THEY SEEN THE EVIDENCE BEFORE THEM IN
22 TERMS OF THE ADMINISTRATION OF THE MORPHINE. AND WHAT WAS
23 THEIR ANSWER? UNILATERALLY THEIR ANSWER WAS NOT ONLY DID IT
24 NOT CAUSE THE DEATH, BUT IT DID NOT CONTRIBUTE IN ANY WAY TO
25 THE CAUSE OF DEATH. IT WOULD SEEM TO ME WITH THE --
4493
1 PARTICULARLY IN THE CASE OF JUDITH LARSEN, THE OVERWHELMING
2 EVIDENCE WOULD AT LEAST LEAD YOU TO BELIEVE AS AN EXPERT
3 THAT JUDITH LARSEN'S HIGH DOSAGES, AS THE DEFENDANT
4 CHARACTERIZED THEM AS LARGE DOSES, WOULD HAVE PRECIPITATED
5 AT LEAST A CONTRIBUTING FACTOR TO THE CAUSE OF HER DEATH.
6 WHAT THE DEFENDANT WANTS YOU TO BELIEVE IS THIS. HE
7 WANTS YOU TO BELIEVE THAT FIVE PEOPLE OVER A COURSE OF A
8 PERIOD OF TIME -- I WOULD SHORTEN THAT TIME BECAUSE JUDITH
9 LARSEN COMES IN EARLY ON, THE NEXT PERSON THAT COMES IN IS
10 LYDIA SMITH ON THE 10TH, BUT YOU HAVE FIVE PEOPLE ON A
11 GEROPSYCH UNIT, TEN-BED UNIT, TEN BED UNIT. AND IN THE
12 COURSE OF A TWO-WEEK TIME FRAME, LITTLE OVER TWO WEEKS FROM
13 DECEMBER 30 TO JANUARY 14, YOU HAVE FIVE DEATHS ON THAT
14 UNIT. NOT ONLY DO YOU HAVE FIVE DEATHS, BUT YOU ALSO HAVE
15 FIVE DEATHS WHERE MORPHINE, WHERE OTHER C.N.S. DEPRESSANTS
16 ARE ADMINISTERED TO THESE PEOPLE. NOW, IN A TEN-BED UNIT,
17 WHEN A TEN-BED UNIT IS FULL IN A TWO-WEEK TIME FRAME, THAT'S
18 A 50 PERCENT MORTALITY RATE. WHAT DOES THIS DEFENDANT WANT
19 YOU TO BELIEVE? HOW DO YOU EXPLAIN THAT AWAY? HOW DO YOU
20 PUT THE SPIN, IF YOU WILL, ON THOSE CIRCUMSTANCES? WELL,
21 WHAT YOU DO, YOU CAN'T EXPLAIN AWAY ELLEN ANDERSON BECAUSE
22 SHE DIED TOO QUICKLY, THAT CAN'T BE A COMFORT CARE DEFENSE.
23 SO WHAT YOU DO IS YOU GO IN AND YOU EXPLAIN THAT EACH ONE OF
24 THESE PATIENTS EXTENDING FROM JANUARY 3RD -- JANUARY 3RD,
25 MIND YOU -- TO JANUARY 14TH ALL SUFFERED ACUTE EVENTS WHILE
4494
1 IN THE GEROPSYCH UNIT.
2 NOW, I WOULD SUBMIT TO YOU IF A PATIENT IN A GEROPSYCH
3 UNIT DEVELOPS AN ACUTE ILLNESS, A TERMINAL ILLNESS, WOULDN'T
4 THE RESPONSIBLE THING TO DO BE TO MOVE THEM TO ANOTHER PLACE
5 IN THE HOSPITAL TO PROVIDE FOR THEIR CARE? THIS DOCTOR
6 TAKES IT UPON HIMSELF. THE FIRST PATIENT IS JUDITH LARSEN.
7 NOW, THE EXPLANATION GIVEN JUDITH LARSEN'S DEATH AS TO
8 CAUSATION IS ESSENTIALLY THAT JUDITH LARSEN WAS DEHYDRATED.
9 YOU REMEMBER ONE OF THE CAUSES OF MORPHINE -- ONE OF THE
10 CAUSES OF THE ADMINISTRATION OF MORPHINE IS THAT VERY
11 SECONDARY EFFECT TO THE FACT THAT THEY ARE NOT EATING AND
12 DRINKING AND SO THEY DEHYDRATE.
13 THERE'S NO INDICATION IN THE RECORD OTHER THAN
14 DR. WEITZEL'S DETERMINATION THAT JUDITH LARSEN IS IN THE
15 DYING PROCESS. HE'S THE ONE THAT GIVES THAT INFORMATION TO
16 THE FAMILY AND HE COMPLETES THE COMFORT CARE MEASURES.
17 THERE WAS NO TESTIMONY THAT HE EVEN DISCUSSED WITH THE
18 FAMILY WHAT THOSE COMFORT MEASURES WOULD BE. SO WE TAKE A
19 LOOK AT DEHYDRATION. AND HE SAYS, WELL, I ASKED DR. GREY ON
20 THE STAND, CAN YOU EXCLUDE THAT? DR. GREY SAID, NO, I CAN'T
21 EXCLUDE THAT. BUT AS YOU'LL RECALL, DR. GREY'S TESTIMONY
22 WAS IN LOOKING AT THE PATHOLOGICAL FINDINGS OF THAT
23 PARTICULAR AUTOPSY. HE DETERMINED THAT OUT OF THE FIVE, TO
24 A REASONABLE DEGREE OF MEDICAL CERTAINTY, SCIENTIFIC
25 CERTAINTY, THAT IN HIS OPINION JUDITH LARSEN'S DEATH WAS A
4495
1 HOMICIDE. THAT IT WAS CAUSED BY OTHER MEANS THAN NATURAL
2 CAUSES AND SUICIDE. OR WAS NOT UNDETERMINED. HE RULED OUT
3 EVERYTHING AND CERTIFIED IT TO BE A HOMICIDE. AND WHY WAS
4 THAT? BECAUSE OF THE FINDINGS IN THE PATHOLOGY AS THE
5 RESULT OF THE AMOUNTS OF MORPHINE GIVEN TO JUDITH LARSEN.
6 WE TALK ABOUT ELLEN ANDERSON. AS YOU RECALL, WHEN
7 DR. GREY TESTIFIED AS TO ELLEN ANDERSON'S AUTOPSY, HE DID
8 INDICATE A CAUSE OF DEATH WAS UNDETERMINED AND MANNER OF
9 DEATH WAS UNDETERMINED. WHY DID HE SAY THAT? BECAUSE HE
10 COULDN'T RULE OUT A NUMBER OF FACTORS THAT WERE NOT OF AN
11 ACUTE NATURE. HIS TESTIMONY WAS THERE WAS NO ACUTE DISEASE
12 PROCESS OR FINDING THAT HE COULD SEE THAT WOULD HAVE CAUSED
13 HER DEATH AT THAT TIME. THE OTHER ASPECT OF HIS TESTIMONY
14 THAT'S IMPORTANT IS THAT HE WOULD NOT RULE OUT -- THE REASON
15 HE SAID UNDETERMINED IS THAT, I CANNOT RULE OUT THAT
16 MORPHINE -- HER DEATH WAS NOT CONSISTENT WITH MORPHINE
17 INTOXICATION. NOW, HE FOUND EVIDENCE OF THE PNEUMONIA, YES.
18 HE FOUND EVIDENCE THROUGH HIS REVIEW OF THE RECORDS OF THE
19 CORONARY ARTERY DISEASE, HE FOUND EVIDENCE OF DEMENTIA, ALL
20 OF THOSE THINGS. ON REDIRECT HE WAS ASKED, DOCTOR, IS
21 CORONARY ARTERY DISEASE CONSISTENT WITH WHAT YOU VIEWED IN
22 THE MEDICAL RECORDS AS TO THE DYING OF THIS PATIENT? THE
23 ANSWER WAS NO. IS BRONCHIAL PNEUMONIA CONSISTENT WITH THE
24 DYING PROCESS THAT YOU OBSERVED IN THE MEDICAL RECORD? THE
25 ANSWER NO. IS DEMENTIA CONSISTENT WITH WHAT YOU OBSERVED IN
4496
1 THE RECORD? THE ANSWER WAS NO. HE SAID THOSE THINGS WERE
2 NOT CONSISTENT EVEN THOUGH HE DID NOT RULE THEM OUT ON
3 CROSS-EXAMINATION.
4 ENNIS ALLDREDGE, SAME THING. DR. GREY TESTIFIED IN
5 CONNECTION WITH ENNIS ALLDREDGE, CAUSE OF DEATH AND MANNER
6 OF DEATH ARE UNDETERMINED. HE COULD NOT RULE OUT MORPHINE
7 INTOXICATION. WHEN HE WAS ASKED AGAIN BY COUNSEL AS TO
8 CORONARY ARTERY DISEASE, DEMENTIA, THE SUBACUTE EVENT, THE
9 LUNG DISEASE, FIRST OF ALL, AS TO ANY SUBACUTE EVENT, AS TO
10 ANY C.V.A. WHICH -- EXCUSE ME. THE C.V.A. ITSELF, HE RULED
11 THAT OUT, IF YOU'LL RECALL. HE FOUND THAT THERE WAS NO
12 EVIDENCE OF A STROKE.
13 NOW, AS TO SUBACUTE EVENT, HIS TESTIMONY WAS THAT IF A
14 SUBACUTE EVENT HAD OCCURRED, HE COULD NOT RULE THAT OUT AS A
15 POSSIBILITY. BUT HE HAD NO PATHOLOGICAL FINDINGS OF ANY
16 STROKE HAVING OCCURRED IN ENNIS ALLDREDGE'S BRAIN. WHEN
17 ASKED AGAIN, IS THIS CONSISTENT WITH CORONARY ARTERY
18 DISEASE, IS IT CONSISTENT WITH DEMENTIA, IS IT CONSISTENT
19 WITH THE LUNG DISEASE? THE ANSWER IS NO, IT'S NOT
20 CONSISTENT WITH WHAT I SEE IN THE MEDICAL RECORDS. BUT IT'S
21 NOT INCONSISTENT WITH MORPHINE INTOXICATION.
22 LYDIA SMITH. AGAIN, HE'S ASKED, DOCTOR, SHE WAS
23 SUFFERING FROM CORONARY ARTERY DISEASE, SHE HAD A C.V.A. IN
24 NOVEMBER, SHE HAD ARRHYTHMIA, SHE HAD CONGESTIVE HEART
25 FAILURE, AGAIN, THE MEDICAL EXAMINER TESTIFIED AND RULED OUT
4497
1 THAT THESE WERE NOT CONSISTENT WITH THE PROCESS THAT HE
2 OBSERVED IN THE MEDICAL RECORDS OF THIS PATIENT DYING.
3 AS TO MARY CRANE, THAT WAS DR. FRIKKE, MAUREEN FRIKKE.
4 SHE WAS THE PATHOLOGIST THAT DID THAT PARTICULAR AUTOPSY.
5 SHE TESTIFIED UP HERE ON THE STAND THAT, NUMBER ONE, EVEN
6 THOUGH AGAIN SHE DETERMINED THAT CAUSE OF DEATH WAS
7 UNDETERMINED AND MANNER OF DEATH WAS UNDETERMINED, THAT SHE
8 DID NOT RULE OUT MORPHINE INTOXICATION AS A CAUSE.
9 FURTHERMORE, SHE MADE FINDINGS THAT THERE WAS NO
10 PATHOLOGICAL FINDINGS OF ANY SEPSIS. SHE COULD NOT FIND
11 ANYTHING IN MARY CRANE'S ORGANS OR BODY WHICH WOULD INDICATE
12 THAT SHE DIED OF SEPSIS WHICH IS THE INFECTIOUS DISEASE
13 PROCESS THAT THEIR EXPERT TESTIFIED TO.
14 SO WHAT IS IT, LADIES AND GENTLEMEN? IS THE EVIDENCE
15 OF CAUSATION -- AND I WOULD SUBMIT THE EVIDENCE IS
16 OVERWHELMING AS TO CAUSATION AS IT RELATES TO MORPHINE
17 INTOXICATION IN COMBINATION WITH THESE OTHER DEPRESSANTS
18 THAN IT IS WITH THE SO-CALLED PNEUMONIA, THE SO-CALLED
19 C.V.A., IT WAS NEVER -- THAT WAS FROM A COMPROMISED
20 DOCUMENT, THE SO-CALLED DEHYDRATION, THE SO-CALLED EPISODE
21 WITH JUDITH LARSEN OF G.I. BLEEDING WHICH, AGAIN, TODD GREY
22 TESTIFIED TO THAT THERE WAS NO EVIDENCE OF BLOOD IN THE
23 STOMACH AND THERE WAS NO EVIDENCE THAT HE COULD SEE OF ANY
24 RECENT BLEEDING IN THE UPPER INTESTINAL TRACT.
25 NOW, CAN WE CHARACTERIZE DR. ROTHFEDER'S TESTIMONY IN
4498
1 REGARDS TO THESE MATTERS? DR. ROTHFEDER IS AN E.R.
2 PHYSICIAN. HE HAS NO CERTIFICATION IN PATHOLOGY, HE HAS NO
3 CERTIFICATION IN GERIATRICS, HE HAS NO CERTIFICATION IN PAIN
4 MANAGEMENT, HE HAS NO CERTIFICATION IN ANY NUMBER OF AREAS.
5 IN FACT, I DON'T EVEN KNOW IF HE HAS BOARD CERTIFICATION, AS
6 I RECALL. AND HE REFERS TO ALL THESE CAUSES OF DEATH.
7 CONSIDER BACK, IF YOU WILL, TO THE TESTIMONY OF DR. HARE WHO
8 NOT ONLY HAS A PH.D IN THE PHARMACOLOGY BUT HAS A BOARD
9 CERTIFICATION AS IT RELATES TO ANESTHESIOLOGY. HE'S BOARD
10 CERTIFIED IN RESPECT TO THE PAIN MANAGEMENT AND HE'S GOT
11 YEARS AND YEARS OF PRACTICE IN THAT PARTICULAR SPECIALTY. I
12 WOULD SUBMIT THE FACT THAT HE HAD A LAWSUIT PENDING AGAINST
13 HIM AT ONE TIME OR ANOTHER, WHICH ACCORDING TO THE RECORDS,
14 IS NOT EVIDENCE THAT DETRACTS FROM DR. HARE'S ABILITY TO
15 ADEQUATELY DOCUMENT AND ADEQUATELY TESTIFY AS TO THESE
16 SPECIALIZED AREAS AND AS TO CAUSES OF DEATH. WHAT WAS HIS
17 REVIEW OF THOSE RECORDS, AND HE'S TESTIFIED CONSISTENTLY,
18 THE CAUSE OF DEATH WAS A RESULT OF INTOXICATION FROM THE
19 MORPHINE. THE MORPHINE CREATED A SITUATION WHERE THIS
20 PATIENT DIED ALONG WITH IN COMBINATION OF THE OTHER C.N.S
21 DEPRESSANTS AND A SYSTEMATIC PROCESS OF OVERMEDICATING HIS
22 PATIENTS THROUGH THIS TIME FRAME. IT'S MUCH MORE BELIEVABLE
23 AND MUCH MORE CONSISTENT WHEN YOU SEE A COMMON DENOMINATOR
24 IN EACH ONE OF THESE DEATHS, AND I SUBMIT TO YOU THAT'S THE
25 ONLY COMMON DENOMINATOR IS THE C.N.S. DEPRESSANTS WITH THE
4499
1 MORPHINE.
2 NOW, DR. SUPERNAW, I GUESS -- NOT A DOCTOR BUT HE'S A
3 PHARMACIST. HE TESTIFIED BASED UPON STUDIES THAT HE HAD
4 PARTICIPATED IN AND STUDIED AS TO THE HALF LIFE OF THE DRUG.
5 AS I RECALL, HE DID NOT HAVE ANY EXPERTISE IN GERIATRIC
6 PHARMACOLOGY. HE DID NOT EXPRESS ANY TESTIMONY AS IT
7 RELATED TO THESE PATIENTS OTHER THAN HIS REVIEW OF THE
8 RECORD THE LAST 24 HOURS. AND THAT WAS ALL BASED ON
9 STUDIES, AS I UNDERSTAND IT, THAT DEALT WITH PEOPLE, NORMAL
10 HEALTHY ADULTS AND WHAT THAT HALF LIFE WOULD BE.
11 DR. FEHLAUER IN DIRECT CONTRAST DOES HAVE A SPECIALTY
12 IN GERIATRICS AND DID TESTIFY AT LENGTH ABOUT THE FACT THAT
13 THESE DRUGS HAVE CONSIDERABLY LONGER HALF LIFE AND THEY HAVE
14 CONSIDERABLY LONGER DURATION IN EFFECT IN PATIENTS OF
15 GERIATRIC AGE.
16 REASONABLE DOUBT. THERE'S A REASONABLE DOUBT
17 INSTRUCTION AND I WANTED TO READ A PORTION OF THAT TO YOU.
18 REASONABLE DOUBT MEANS A DOUBT THAT IS BASED ON REASON AND
19 ONE WHICH IS REASONABLE IN VIEW OF ALL THE EVIDENCE. IT
20 MUST BE A REASONABLE DOUBT AND NOT A DOUBT WHICH IS MERELY
21 FANCIFUL OR IMAGINARY OR BASED WHOLLY ON SPECULATIVE
22 POSSIBILITY. HOWEVER, THE LAW DOES NOT REQUIRE
23 DEMONSTRATION OF THAT DEGREE OF PROOF WHICH, INCLUDING ALL
24 POSSIBILITY OF ERROR, PRODUCES ABSOLUTE CERTAINTY FOR SUCH A
25 DEGREE OF PROOF IS RARELY POSSIBLE. PROOF BEYOND A
4500
1 REASONABLE DOUBT IS THAT DEGREE OF PROOF WHICH SATISFIES THE
2 MIND, CONVINCES THE UNDERSTANDING OF THOSE WHO ARE BOUND TO
3 ACT CONSCIENTIOUSLY UPON IT AND OBVIATE ALL REASONABLE
4 DOUBT. THAT'S THE STANDARD BY WHICH YOU LOOK AT THE
5 EVIDENCE AS IT PERTAINS TO CAUSATION.
6 I THINK YOU HAVE TO ALSO CALL UPON YOUR COMMON
7 EXPERIENCE AND COMMON SENSE AND YOU KEEP COMING BACK TO THIS
8 FACT THAT IF YOU REVIEW THIS EVIDENCE, YOU HAVE TO COME TO
9 THE CONCLUSION THAT THERE ARE CERTAIN FACTS THAT ARE
10 UNDISPUTED; THOSE FACTS BEING ALL FIVE PATIENTS WERE
11 ADMITTED TO THIS UNIT UNDER CRITERIA THAT THEY WERE NOT
12 SUFFERING FROM ACUTE LIFE-THREATENING ILLNESS. EVEN THE
13 DEFENDANT'S OWN EXPERTS AGREE EVEN CATEGORIZING THEM AS
14 DR. HERBST CATEGORIZED THEM AS DEMENTIA THAT EACH PATIENT
15 HAD LIFE EXPECTANCY OF AT LEAST SIX MONTHS OR LESS. NOW, NO
16 ACUTE EVENT, THEY COME INTO THE GEROPSYCH UNIT. THE OTHER
17 THING YOU HAVE IS THE TESTIMONY IN CONTRAST TO DR. HERBST AS
18 TO DR. FEHLAUER'S TESTIMONY AS TO THE FACT THAT IN EVERY
19 INSTANCE THESE PATIENTS WERE SUFFERING FROM DELIRIUM. AND
20 AS I RECALL, THERE IS AN EXHIBIT THAT YOU CAN TAKE, IT'S
21 EXHIBIT 29 WHICH DEALS WITH DELIRIUM AND DEMENTIA AS TO THE
22 SYMPTOMS AND FACTORS OF THESE PATIENTS.
23 NOW, DO YOU RECALL DR. FEHLAUER'S TESTIMONY WHEN HE
24 TESTIFIED ABOUT THE DELIRIUM? DELIRIUM IS AN ACUTE EVENT.
25 IT'S USUALLY BROUGHT ON BY SOMETHING HAPPENING, AND AS WE
4501
1 RECOGNIZED IN THESE PATIENTS, THEY ALL HAD SOME BEHAVIORAL
2 CHANGES IN THEIR LIFE. BUT I THINK WHAT WAS SIGNIFICANT
3 ABOUT DR. FEHLAUER'S TESTIMONY WAS THAT DELIRIUM IS
4 TREATABLE. IT'S NOT LIKE DEMENTIA. DEMENTIA CAN BE
5 TREATED. DELIRIUM IS TREATABLE AND THE WAY YOU TREAT
6 DELIRIUM IS YOU DON'T GIVE PATIENTS MIND-ALTERING DRUGS.
7 YOU TAKE THEM OFF THE DRUGS TO FIND OUT AND YOU
8 ELIMINATE ALTERNATIVE CASES OF THE DELIRIUM. AND THEN YOU
9 MAY LATER PROVIDE DRUGS IN ORDER TO ADEQUATELY TREAT THE
10 DELIRIUM. AND THAT WAS THE GIST OF HIS TESTIMONY WERE ALL
11 PATIENTS WITH THE EXCEPTION OF ELLEN ANDERSON WERE
12 ADMINISTERED IN COMBINATION EXCESSIVE DOSES OF PSYCHOTROPIC
13 MEDICATIONS WHICH ALL HAD C.N.S. DEPRESSANT QUALITY. AND IN
14 SOME PATIENTS THESE MEDICATIONS WERE ADMINISTERED WITH
15 MORPHINE AND IN MARY CRANE'S CASE A DURAGESIC PATCH.
16 ALL FIVE PATIENTS SUBSEQUENTLY DIED. THEY WERE THE
17 ONLY PATIENTS ON THE UNIT WHO RECEIVED THE MORPHINE DURING
18 THE TIME FRAME EXTENDING FROM DECEMBER 25 WHEN IT WAS FIRST
19 ADMINISTERED TO JUDITH LARSEN UP THROUGH JANUARY 14 WITH THE
20 EXCEPTION -- THERE WAS ONE OTHER PATIENT THAT RECEIVED A 3
21 MILLIGRAM DOSE OF MORPHINE. THERE WAS NO MORPHINE
22 PRESCRIBED FROM JANUARY -- OR FROM DECEMBER 6TH UP UNTIL
23 DECEMBER 25TH. WHY THEN, WHY ALL OF A SUDDEN WE SEE THE
24 MORPHINE IN COMBINATION WITH THESE MIND-ALTERING DRUGS. THE
25 EXPLANATION AGAIN OF THE DEFENDANT IS EACH OF THESE PATIENTS
4502
1 SUFFERED AN ACUTE EVENT. EACH OF THESE PATIENTS WAS THEN
2 PROVIDED COMFORT CARE IN A GEROPSYCH SETTING BY A
3 PSYCHIATRIST, A PSYCHIATRIST WHO DID NOT -- AND AT LEAST
4 THREE OUT OF THOSE FOUR -- REQUEST ANY KIND OF CONSULTATION
5 AS TO WHAT THE DYING ISSUE WAS.
6 LET'S TALK A LITTLE BIT ABOUT THESE MEDICAL DIRECTIVES
7 IN THAT RESPECT. THERE'S A MEDICAL DIRECTIVE IN THE RECORD
8 THAT YOU ARE GOING TO REVIEW. I WANTED TO TALK TO YOU A
9 LITTLE BIT ABOUT THE EXPECTATION BECAUSE I THINK IF WHEN
10 THESE FAMILY MEMBERS CAME IN AND EXECUTED THESE DIRECTIVES,
11 IT WAS IN THE CONTEXT OF, AGAIN, A GEROPSYCH SETTING. I
12 DON'T THINK THEY ANTICIPATED ANYTHING IN RESPECT TO ANY KIND
13 OF CRITICAL EVENT TAKING PLACE WHILE IN THAT SETTING. IN
14 FACT, THEY HAD BEEN TOLD UNDER THE TREATMENT PLANS THAT
15 THEIR PARENTS WOULD BE HOUSED THERE FOR A COUPLE OF WEEKS
16 AND THEN RELEASED TO GO BACK TO WHATEVER FACILITY, DEPENDING
17 ON THE SUCCESS OF THE TREATMENT.
18 JUDITH LARSEN'S DIRECTIVES I THINK ARE INTERESTING
19 BECAUSE, AS I RECALL, THE TESTIMONY OF THE DEFENDANT HE
20 COULDN'T RECALL WHICH DIRECTIVE WAS INVOKED. AS YOU RECALL,
21 JUDITH LARSEN HAD TWO DIRECTIVES IN HER FILE. ONE WAS THE
22 MEDICAL TREATMENT PLAN WHICH HAD BEEN EXECUTED BY MERLIN
23 BACK IN SEPTEMBER 19, 1985 WHEN SHE WAS HOSPITALIZED FOR THE
24 FALL OUT OF BED. THE OTHER ONE IS HER LIVING WILL DOCUMENT.
25 AND IN HER LIVING WILL SHE REQUIRES A COUPLE OF THINGS.
4503
1 FIRST OF ALL, IT REQUIRES THE CERTIFICATION OF TWO
2 PHYSICIANS AS TO HER TERMINAL CONDITION. FURTHER DOWN IN
3 THAT DOCUMENT SHE AGAIN REFERS TO PARAGRAPH TWO OF THE
4 LIVING WILL, IF MY CONDITION IS CERTIFIED TO BE TERMINAL AS
5 IN PARAGRAPH TWO, THEN SHE WRITES THEREIN MEDICATION TO
6 RELIEVE PAIN MAY BE GIVEN IF OBVIOUSLY NEEDED. IN THE OTHER
7 DOCUMENT WHICH IS THE MEDICAL TREATMENT PLAN, AGAIN IT WAS
8 RENDERED FOR A PRIOR HOSPITALIZATION, NOT THIS
9 HOSPITALIZATION, BUT A PRIOR HOSPITALIZATION. SHE SAYS,
10 OXYGEN AND ORAL MEDICATION MAY BE GIVEN FOR RELIEF OF PAIN
11 AND FOR COMFORT.
12 YOU TAKE A LOOK AT LYDIA SMITH, THERE WAS NO ADVANCE
13 DIRECTIVE THAT WAS EVER EXECUTED AT THE TIME OF HER
14 ADMISSION BACK ON THE 20TH. IN FACT, THE INDICATION ON
15 12/20 BY KENT SMITH IS THAT THERE IS NO ADVANCE DIRECTIVE.
16 SO WHAT DO WE DO? WE WAIT UNTIL THE DYING EVENT AND THEN WE
17 COME IN, MEET WITH THE FAMILY, ADVISE THE FAMILY THE PATIENT
18 IS DYING AND THEN HAVE THE FAMILY REPRESENTATIVE, KENT
19 SMITH, EXECUTE THE DIRECTIVE? THERE'S NO INDICATION IN THE
20 FILE, AS I RECALL, THAT HE HAS BEEN APPOINTED AS POWER OF --
21 SPECIAL POWER OF ATTORNEY. NO DOCUMENT TO THAT EFFECT.
22 THE OTHER THING YOU SHOULD NOTE ABOUT THE DOCUMENT IS
23 IT'S NOT FILLED IN. THERE'S NOTHING HERE INDICATING THAT
24 THE PATIENT IS SUFFERING FROM ANY DISEASE OR ILLNESS.
25 THERE'S NOTHING IN HERE AS DIRECTED BY THE DECLARANT OR
4504
1 DIRECTED BY THE REPRESENTATIVE OF THE DECLARANT THAT'S
2 CHECKED OFF. IT'S SIGNED BY THE ATTENDING PHYSICIAN AND
3 IT'S SIGNED BY MR. SMITH, BUT THERE'S NO EVIDENCE BEFORE YOU
4 AS TO THE REASONABLENESS OF THE EXPECTATION OF MR. SMITH AT
5 THE TIME OR HIS UNDERSTANDING AT THE TIME AS TO WHAT WAS
6 GOING ON HERE OR, I WOULD SUBMIT, AS TO THE PROVISION OF
7 SERVICES FOR COMFORT CARE, AND THAT WOULD, IN FACT, INCLUDE
8 THE ADMINISTRATION OF MORPHINE.
9 I THINK IT'S REASONABLE TO BELIEVE A PHYSICIAN WOULD
10 SIT DOWN IN THE DETERMINATION THAT SOMEBODY IS DYING AND
11 WOULD LAY OUT THE ALTERNATIVE FOR THE FAMILY SO THAT THEY
12 COULD MAKE A JUDGMENT CALL AS TO JUST EXACTLY WHAT THEY
13 WANTED TO DO. THERE'S NOTHING HERE TO GIVE YOU ANY
14 INDICATION AS TO THAT.
15 NOW, MARY CRANE, THE DOCUMENT IN HER FILE SHOWS THAT
16 SHE SIGNED ESSENTIALLY A MEDICAL TREATMENT PLAN BACK IN
17 MARCH OF '91, THAT WHEN SHE WAS ADMITTED TO THE HOSPITAL SHE
18 SIGNS OFF ON A SPECIAL POWER OF ATTORNEY FOR HER DAUGHTER
19 KAREN BRINGHURST TO ACT ON HER BEHALF AND THEN KAREN
20 BRINGHURST FOLLOWS THE SAME PATTERN THAT MARY CRANE HAD
21 INDICATED IN THE '91 DOCUMENT IN FILLING OUT THIS FORM.
22 YOU'LL NOTE THAT SHE INDICATES THERE IN THAT ORAL
23 ANTIBIOTICS, I.M. ANTIBIOTICS AND I.V. ANTIBIOTICS CAN BE
24 ADMINISTERED. NOW, YOU RECALL THE TESTIMONY OF THE
25 DEFENDANT? WHEN ASKED ABOUT THAT HE SAID, WELL, THE OTHER
4505
1 I.V. CANNOT BE GIVEN, YOU COULD NOT GIVE HYDRATION,
2 THEREFORE THAT WAS IN DIRECT CONTRAVENTION OF GIVING I.V.
3 FROM AN ANTIBIOTIC STANDPOINT. WAS THERE ANY TESTIMONY THAT
4 THAT WAS EXPLAINED TO KAREN BRINGHURST? WAS THERE ANY
5 INDICATION THAT SHE UNDERSTOOD WHAT THE CONDITION OF HER
6 MOTHER WAS AS TO WHETHER OR NOT SHE WAS SUFFERING FROM
7 SEPSIS?
8 ANOTHER SIGNIFICANT FACTOR IS THAT, YOU KNOW, WHY DID
9 THE DOCTOR WAIT TO TREAT THE SEPSIS UNTIL THE 5TH IF HE
10 REALLY FELT THAT THAT WAS A SIGNIFICANT FACTOR HERE? THAT
11 THIS LADY WAS DEVELOPING AN INFECTIOUS DISEASE PROCESS THAT
12 WAS GOING TO INVADE HER ENTIRE BODY. WHY WAIT? I MEAN, IT
13 WAS VERY -- IT WAS DR. MEEKS INDICATED HIS RECOMMENDATION TO
14 PROVIDE NOT ONLY THE DIETARY PROCESS BUT ALSO TO PROVIDE THE
15 KEFLEX OR TO PROVIDE A BROAD-SPECTRUM ANTIBIOTIC THAT WAS
16 SUBSEQUENTLY ADMINISTERED ON THE 5TH.
17 ALSO RECALL IN THE DOCUMENTS THAT YOU HAVE THERE WAS NO
18 INDICATION OF ANY INFECTION IN THE URINARY TRACT ON JANUARY
19 THE 4TH. ELLEN ANDERSON, I DON'T THINK WE NEED TO DEAL WITH
20 THAT. THAT'S NOT ANOTHER LIFE DIRECTIVE SITUATION. SHE WAS
21 NOT A COMFORT CARE ISSUE.
22 ENNIS ALLDREDGE. INTERESTING. ENNIS ALLDREDGE'S
23 MEDICAL TREATMENT PLAN PROVIDES NO C.P.R., NO RESPIRATORS.
24 IT DIDN'T PROVIDE ANY DIRECTIONS TO TAKE HIM OFF THE INSULIN
25 OR THE OTHER, THE HYDRATIONS, THOSE TYPES OF THINGS. DIDN'T
4506
1 PROVIDE FOR THAT. YOU'VE HEARD THE TESTIMONY OF VONDA
2 ALLDREDGE AND CHARACTERIZED IN THE NOTE OF THE DOCTOR THERE
3 WAS A MEETING WITH THE FAMILY. THE MEETING OR THE
4 DISCUSSION AS TO THE CARE AND TREATMENT OF ENNIS ALLDREDGE
5 WAS WITH VONDA. THERE WERE OTHER FAMILY MEMBERS THAT MAY
6 HAVE BEEN PRESENT WHEN THE A DISCUSSION WITH THE DOCTOR, BUT
7 SHE WAS -- SHE WAS NOT PRESENT DURING ANY FAMILY MEETING
8 THAT SHE TESTIFIED TO. AS I RECALL HER TESTIMONY, THE ONLY
9 CONVERSATION SHE HAD WITH THE DOCTOR WAS OVER THE PHONE.
10 GOOD FAITH.
11 GO BACK TO THE PROPOSITION, LADIES AND GENTLEMEN. YOU
12 CANNOT COMMIT MURDER IN GOOD FAITH, YOU CANNOT COMMIT
13 MANSLAUGHTER IN GOOD FAITH, YOU CANNOT COMMIT NEGLIGENT
14 HOMICIDE IN GOOD FAITH. I DON'T THINK THIS IS A CASE OF
15 COMFORT CARE OR END-OF-LIFE CARE. THIS IS A CASE OF ABUSE
16 OF MEDICAL AUTHORITY AND OF THE PHYSICIAN. THIS IS A CASE
17 WHERE A PHYSICIAN NOT ONLY TAKES ADVANTAGE OF FAMILY MEMBERS
18 IN THE CONTEXT OF ADMINISTERING LETHAL DOSES OF MORPHINE
19 THEN FOR THESE PEOPLE, BUT HE HAS ALSO ABUSED HIS AUTHORITY
20 WITH THE NURSES. HE INTIMIDATES THEM INTO GOING ALONG WITH
21 THIS. IN SOME INSTANCES THE NURSES BUY INTO WHAT HE'S
22 SAYING. BUT AGAIN, WE ALL GO BACK TO THE DEFENDANT. IT'S
23 ALWAYS THE DEFENDANT WHO GIVES THE DIRECTIONS, WHO'S THE
24 ATTENDING PHYSICIAN, WHO INSISTS, IF YOU WILL, ON THE
25 ADMINISTRATION OF THESE DRUGS. THE ISSUE OF END-OF-LIFE
4507
1 CARE IS NOTHING MORE THAN A SMOKE SCREEN. IT'S AN ATTEMPT
2 TO CONFUSE YOU, TO LEAD YOU TO BELIEVE THE UNLIKELY, AND I
3 WOULD SAY, THE UTTERLY IMPOSSIBLE POSITION THAT ALL OF THESE
4 PEOPLE DIED OF DIFFERENT ACUTE EVENTS IN A PERIOD EXTENDING
5 FROM JANUARY THE 3RD THROUGH JANUARY THE 14TH, APPROXIMATELY
6 11-DAY TIME FRAME FOR THE FOUR INDIVIDUALS THAT WERE
7 SUPPOSEDLY END-OF-LIFE CARE PATIENTS.
8 I'VE SHOWN YOU THE CHARTS AND DESPITE THE
9 CHARACTERIZATION THAT WAS PLACED BY COUNSEL, THERE'S NOTHING
10 INDICATED ON THOSE CHARTS THE WORD COMA. THIS WASN'T PART
11 OF THIS PARTICULAR CHARTING OF THESE EVENTS. WE GO FROM
12 LETHARGIC TO AGITATED. THERE WAS PLENTY OF TIMES THAT THOSE
13 WORDS APPEAR IN THE NURSING DOCUMENTS. YOU'VE SEEN THOSE
14 CHARTS, YOU CAN REFLECT ON THEM IN YOUR DELIBERATIONS, NOT
15 THAT THEY NECESSARILY BE WITH YOU, BUT YOU CAN REFLECT ON
16 WHAT YOU OBSERVED THERE AND THE PATTERN THAT YOU OBSERVED
17 THERE AND THE PATTERN WAS THAT THESE PEOPLE HAD ESCALATING
18 AMOUNTS OF PSYCHOTROPIC CHEMICALS PUT INTO THEIR SYSTEMS.
19 IN ADDITION TO THAT, WHEN THEY REACHED A CERTAIN STAGE AS
20 DESCRIBED AS THE ACUTE EVENT, THEN THEY ARE GIVEN THE
21 SUBSTANCE OF MORPHINE AND YOU CAN DISAGREE MATHEMATICALLY ON
22 THOSE CHARTS. IN EVERY INSTANCE THEY GO DOWNHILL RAPIDLY
23 AND DIE. ELLEN ANDERSON IS THE SMOKING GUN. SHE
24 DEMONSTRATES TO YOU UNEQUIVOCALLY THAT DEFENDANT KNEW THAT
25 MORPHINE WOULD CAUSE DEATH AND HE ADMINISTERED THAT TO HER
4508
1 IN A FASHION THAT THE STATE SUBMITS TO YOU IS DEPRAVED
2 INDIFFERENCE. HE DID NOT EVALUATE HER. THE EVIDENCE
3 DOESN'T SUPPORT THAT.
4 THE EVIDENCE SUPPORTS THAT HE DICTATED HIS
5 PSYCHOLOGICAL EVALUATION AFTER THE FACT. THIS DEFENDANT
6 ABUSED HIS AUTHORITY. HE ABUSED HIS POSITION OF TRUST WITH
7 THESE PATIENTS AND WITH THEIR FAMILIES AND HE USED THEM FOR
8 HIS OWN PURPOSES, THOSE PURPOSES BEING TO COMMIT EUTHANASIA.
9 I, AGAIN, THANK YOU FOR YOUR TIME AND I ASK YOU TO RETURN A
10 VERDICT OF GUILTY AS CHARGED.