The Strange Case of Dr. Weitzel

The next chapter in the ongoing matter of media sensationalism is the case of Dr. Robert Weitzel, a matter that the Foundation has been monitoring for many months. Dr. Weitzel, a psychiatrist practicing geriatric psychiatry in Utah, was prosecuted for murder and convicted of manslaughter. He was sentenced to prison and then freed when the trial judge reversed the conviction. He did so when he discovered that the prosecution had sequestered exculpatory evidence. That is, the prosecutors knew that a Dr. Fine, the foremost medical expert on end of life care in Utah, had found nothing out of the ordinary in Dr. Weitzel's treatment of the deceased patients and told them (they had hired him) that there was no basis for prosecuting him. They hid this from the defense, resulting in a mistrial when the judge found out about it.

The prosecution then sought to recuse the judge as biased. The Appeals Court excoriated the prosecution's behavior and then granted the motion for recusal. Now Dr. Weitzel will face another trial. The prosecutors offered him a "deal" of  misdemeanors - negligent homicide - if he would plead guilty. He has refused the offer and will go forward to trial, to prove his innocence.

Dr. Weitzel has lost his practice, his financial resources and his medical license. He has been reported as a convicted murderer to the National Practitioners Databank. He currently works as a waiter to try to keep his family fed. Only the miraculous gift of $100,000 for his legal defense has allowed him to continue to seek justice. "Sixty Minutes" aired a piece about his case this afternoon. It revealed a horrendous miscarriage of justice.

I invite everyone to review the cases in question (www.WeitzelCharts.com). The Foundation withheld any public position on the case until now, desiring to take the time necessary to do a careful review of the cases and of the legal record. We now feel that we must take a stance on the matter.

This is the third instance of a doctor being criminally prosecuted for murders, in connection with the treatment of pain. In all three cases the professional mechanisms for reviewing the quality of the medical care involved were ignored, circumvented and avoided. In the cases of Ds. Graves and Fisher, the Foundation can make no statement about the medical care involved, as we have not reviewed the actual cases. But in the matter of Dr. Weitzel we have reviewed the charts (as can anyone by going to the Web site above), and we agree entirely with the conclusions of Dr. Fine, of Utah.

As all involved with this case have correctly discerned, the impact of Dr. Weitzel's case on the treatment of intractable pain is catastrophic. As Sixty Minutes pointed out, what the Weitzel case demonstrates is that no physician in America is safe now from such malicious and dishonest prosecution. It also demonstrates that prosecutors are ready to circumvent the professional mechanism for review of the quality of care (peer review), and take cases directly to Grand Juries and trial juries. It further demonstrates that lacking professional training, these juries can be emotionally persuaded to convict, particularly when prosecutors manipulate them through emotional appeals, sequestering of evidence and malicious prosecutorial strategies. The conclusion of any prudent physician must be that if they can do this to Dr. Weitzel, they can do it to anyone. This conclusion has been further driven home by the conviction of Dr. Graves in Florida. These prosecutions have set back the progress in the management of intractable pain by ten years.

Hopefully legislatures will correct this great harm. Specifically the Foundation supports the proposal that laws be passed to mandate that professional peer review must come to the conclusion that a doctor has committed malpractice before the cases can be taken to a criminal court. That is only rational. How could a case be a criminal matter if the medical treatment wasn't malpractice? And obversely, if the treatment is not found to be malpractice, how could it be a criminal matter? Why would any prosecutor try to avoid professional review, except to try to win a baseless case? This brings us to the most important question. Why would prosecutors do such a thing?

The Foundation does not presume to be expert on the motivations of prosecutors. We do have some common sense experience on the subject, however.

First, as one attorney told us years ago, "when a person walks around with a hatchet all the time, after a while everything starts to look like a tree". That is to say that the mindset of a prosecutor requires being convinced of guilt prior to the actual process of adjudication. The standard of proof for a prosecutor can vary as to the political climate, political ambition, their personal emotional state and their psychological character. Prosecutors by definition tend to be distrusting, cynical and self-righteous. They often see evil in everyone except themselves. The error of this is clearly seen in the behavior of the Weitzel prosecutors. They were willing to betray their oaths - to support and follow the law - so long as they could win a conviction. For many prosecutors, a jury is not a means of establishing the truth. Instead, for them, a jury is just something to be manipulated to reach their objectives. Having already decided what the truth is, they are not after establishing it, but only after succeeding in enforcing their view upon the judge and the defendant. In our view this is, itself, criminal behavior hiding behind the robes of justice.

Second, the psychology of prosecutors is uncharted terrain. To my knowledge, there has never been a scientific study of the character, psychology or mental condition of prosecutors as a group. We do not know what motivates attorneys to be prosecutors, or whether their psychology or character differs from that of other lawyers in the legal system. It appears to be different, but the subject has never been objectively studied. It needs to be. Clearly there are prosecutors out there whose motivations and character do not serve the law or justice, but only their own motivations and egos.

Third, the essential checks and balances, which safeguard all citizens from tyranny in America, do not exist when it comes to the behavior of prosecutors. For there is nothing in the law to restrain their behavior or punish their travesties. In Utah, these prosecutors might suffer the discipline of the Utah Legal Bar. I do not know if that Bar has ever disciplined an abuse by a prosecutor. But one can safely bet that there is no law in Utah (or most states) that threatens a prosecutor with felonious prosecution for abuse of their authority, betrayal of their oath of office, or corruption of justice (as in the Weitzel case).

So, not only is the legitimate treatment of intractable pain threatened by the precedent of this case, common sense reflection must conclude that it threatens the very foundations of Justice. Knowing that this does happen, and that little will be done to stop it, who could blame a timid physician (who just wants to practice medicine and has no desire for martyrdom or historical legal conflicts) for simply refusing to take the chance of treating pain patients in any setting or situation.

In closing, I cannot help but comment on the prosecutor who is also an R.N. Her contribution to the Sixty Minutes exploration of Dr. Weitzel was extraordinary. If ever a person hoisted herself on her own petard, it appeared to me that she did. How could any credible medical professional take the position that elderly people do not experience pain, and present that to the world as a fact? Either she is lost, or corrupted beyond redemption, in her own self-delusions. In either case, in my strictly personal opinion (not speaking for the Foundation or anyone or anything else) she should get the Joseph Mengele award of the Year for an anti-humanitarian medical practitioner. I recommend her to the Utah State Board of Nursing for a cozy interview about her qualifications and the scientific credulity of her public opinions.

J.S.Hochman MD
Executive Director