I have recently had the misfortune of being
tried for the “untimely deaths” of five of my patients, not just once but
twice. (They did not die twice,
rather I was tried again after the first trial was set aside, when it was
determined that the prosecutor had improperly withheld exculpatory evidence.)
In each of the two trials I learned a great deal about the judicial
system, some of it positive and illuminating, and some of it quite distasteful.
It was certainly positive to finally have my innocence vindicated but
definitely unfortunate to have spent every last cent, and six months in the
penitentiary.
The first trial lasted five and a half weeks,
while the prosecution tediously presented volumes of trivial detail and
irrelevant minutia that not only confused the jury but also left them bored to
distraction. The first jury refused
to convict me of the charge of first degree murder, as requested by the state
lawyers, but compromised with a verdict of guilty on three counts of negligent
homicide and two of manslaughter, leading to a sentence of fifteen years in
prison. The second trial of three
weeks was conducted in a much more expeditious and concise way, and the defense
witnesses were knowledgeable and informative in their testimonies, while the
state witnesses were just a bit more circumspect.
The jury in this trial returned verdicts acquitting me of all five
deaths.
Prior to my arrest, none of the patients’
families had filed a complaint with the hospital, state agencies, or the medical
societies, nor apparently had any even met with a lawyer during the three years
after the deaths. I can only
imagine the scenario, but there was a day when a state investigator knocked on
the doors of each of these families to announce that their loved ones had not
died natural deaths but had been murdered.
One can easily imagine the rush of emotions that each of these
individuals must have felt, running from fear, to guilt, to anger, and pain.
The loss of the departed had already been grieved, the dead had been
buried, and the pain had been accepted and resolved.
Then the prosecutors arrived with requests to exhume the bodies.
The dead had left their veil of tears, but their survivors were now given
a new and grisly burden to bear. The
exhumations raised again the grief of their loss, not this second time to be so
properly borne, endured, and buried.
As I sat there listening carefully to the
learned explanations of the experts on both sides, the whole significance of our
system of trial by jury became clear to me. As I had watched the families of the alleged victims sit
through every pretrial hearing and both courtroom trials, waiting impatiently
for the justice they felt they deserved, I felt dismayed that they had become so
righteously indignant over care I had provided, care I believed was appropriate
and ethical.
I listened with hope that after these family
members had heard the facts and the expert explanations, they would feel
relieved. I hoped they would find
some peace when they learned that their decision had been a rational and wise
one; to have me withdraw active, interventional medical care from their dying,
demented loved one and to replace it with compassionate comfort care.
After all, these severely demented patients’ ages were 72, 83, 90, 91
and 93 years.
It is now clear that the second jury did
indeed hear the message. Justice
was done, although at great expense to the state.
The parade of experts provided a thorough explanation for those family
members who were open to hearing it. This
opportunity to hear a full disclosure of all the relevant facts is the true
intent and meaning of justice, so that those who continue to harbor inner
conflicts or ill will may be able to reach closure, after a fair and
well-conducted trial.
Among those less well informed, and especially
those unable to attend my last trial, I have no doubt that there remain many
questions, suspicions, and unresolved issues, many of which I believe arise from
our wide spread ignorance about the process of dying.
Our society has essentially denied the reality of death.
Most people have very little contact with death, and with our prolonged
life expectancies we are not touched by it as closely or frequently as were
people only a generation or two past.
The Latin term used in Medicine, in
extremis, denotes not simply a state beyond which nothing further can be
done to save the life, but in addition it describes a process through which the
body passes as it prepares to shut itself down, permanently: The process of
dying. (An explanation of the
natural processes involved in dying was provided the jury and the family members
attending the trial, and these insights should be shared.)
Lewis Thomas in his book, Medusa and the
Snail, has a chapter entitled, “On Natural Death,” which contains ideas
so important to this subject it should be included in every pamphlet or
instruction provided by hospice services. Thomas
describes a process that takes place in the mouse at the instant it is caught by
a cat. He writes,
“…peptide hormones are released by cells in the hypothalamus and the
pituitary gland; instantly these substances, called endorphins… [Exert]
the pharmacological properties of opium; there is no pain.”
“Pain is useful for avoidance, for getting away when there’s time
to get away, but when it is endgame, and no way back, pain is
likely to be turned off, and the mechanisms for this are wonderfully
precise
and quick. If I had to design an
ecosystem in which creatures
had to live off each other and in which dying was an indispensable
part
of living, I could not think of a better way to manage.”
Thomas then quotes the 16th century
French philosopher Montaigne, who had had a near death experience which led him
to write,
“If you know not how to die, never trouble yourself; Nature will
in a moment fully and sufficiently instruct you; she will exactly
do that business for you; take you no care for it.”
It should certainly serve to support the faith
of those who believe in a merciful Creator to know that with all the violence
built into the law of the jungle, prey are provided with this mechanism to
guarantee a gentle and merciful demise. And this mechanism is fully active in humans.
During my second trial the various end-of-life
experts discussed the notion of delirium, which is commonly seen in the
demented. Since the five patients
who died under my care were all in advanced stages of dementia, there was also
substantial testimony about both the nature of dementia and the meaning of
delirium. Dementia, a disease
condition of the brain, results in destruction of large amounts of brain matter,
leaving the afflicted individual trapped inside a tangle of non-functioning
brain structure. In the later
stages of dementia the process also leads to a general wasting of the entire
body, eventually and inevitable leading to death.
It is not in any way the same as psychiatric diagnoses such as phobia or
neurosis, which are conditions of the mind, not the brain.
Of course, the mental state can deteriorate into a depression or other
psychiatric condition on top of or as a result of the dementia, and depression
itself has a biochemical component to it.
Delirium is rather difficult to define, but it
is an altered state of mind that may incorporate hallucinations or other reality
distortions, frequently associated with wild swings in brain activity.
Delirium can be either pleasant or tragic.
The endorphins provide a kind of quiet, pleasant delirium, but dementia
can result in a delirium that is wild, frenzied and destructive.
The experienced caregiver knows it when she sees it, just as the
knowledgeable and experienced caregiver can recognize the dying process when she
sees it.
The demented individual presents many
difficult problems for the caregiver, but one of the most frequent and
perplexing is the inability of the demented to be able to identify and describe
physical pain. The destroyed brain
not only does not allow effective communication, it frequently does not even
give the demented patient a correct interpretation of the problem, so they may
not even recognize that they are in pain. Such
patients may exhibit wild agitation or bizarre behavior in their response to
unrecognized, painful stimuli, which the demented elderly frequently experience.
Since we have no “pain-o-meter” or blood test to measure the symptom
of pain, we can sometimes only make a diagnosis by giving an opioid to see if
the patient’s behavior improves.
Although Thomas titles his chapter, “On
Natural Death,” this is not the usual use of this term, which commonly refers
to a death due to natural causes, and yet it sounds like an oxymoron to speak of
a “normal death.” Still, that
is what Thomas was referring to. In
the normal, natural death, passing is made gentle and pleasant by the brain’s
release of its own natural endorphins. Although
we know of the severe pain many cancer patients suffer, once the dying process
begins their pain is often relieved. In
many of the demented, however, there appears to be the worst of all possible
worlds, since the brain seems to be both unable to discern the pain and unable
to release nature’s merciful endorphins.
This necessitates the employment of powerful pain relievers in generous
dosage to help nature do what the disease process has forestalled, if one is to
be as merciful as we have seen nature to be when death is natural.
Our country is currently experiencing
something just short of a war occurring between the regulatory agencies and
those physicians responsible for compassionate pain control.
The knowledge gained just in the past ten years about the proper use of
opioids has been significant, and the new knowledge suggests that much of our
past use of opioids has been stinting and insufficient.
Now that bureaucrats, managers and lawyers have an ever increasing
involvement in the way health care is delivered, innovative modalities and
changing treatment practices are challenged almost everywhere, as one might
expect. Perhaps the successful outcome in State of Utah v. Weitzel will help
to further assertive and compassionate palliative care; I hope so.
I am very happy that I have been acquitted and that I may once again look forward to regaining my livelihood and respectability, but my greatest happiness comes from knowing that a jury of laypersons can and did hear the message; saw the bigger picture. Although all my own assets have been spent, as well as considerable funds provided by donors, I still feel my optimism has been redeemed, and I am hopeful for my own future as well as that of conscientious and compassionate physicians everywhere.
- Robert Weitzel, MD