May 10, 2001
RE: Prosecution of Robert Weitzel, MD
The Association of American Physicians & Surgeons, Inc. (“AAPS”) is a national organization of thousands of physicians in all specialties. Founded in 1943, AAPS remains dedicated to preserving the practice of private medicine. It frequently files amicus briefs on behalf of prosecuted physicians, including a successful appeal before the 9th Circuit on most counts in the conviction of Dr. Jeffrey Rutgard. United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997).
The prosecution of a physician for alleviating pain in a patient, without overwhelming proof of wrongdoing, would establish a dreadful precedent. Many patients have pain when they are near death. Accordingly, patients frequently die while they are taking prescriptions for pain relief. In some cases, the pain prescriptions may even unintentionally hasten death. It is simply unavoidable, and no basis for prosecution.
Prosecution of a physician for murder or manslaughter for prescribing pain relief would have an enormous chilling effect on all physicians. This chilling effect is multiplied when a physician is tried twice for a murder charge, despite an initial acquittal. Physicians will be even more inclined to underprescribe narcotics than they already are. One example such as Dr. Weitzel’s is sufficient to negate numerous conferences and journal articles attempting to reassure physicians that they may and should exercise their own best judgment in easing patients’ pain. The specter of prosecution will be constantly in mind, especially if a patient fails to respond to an average dose. Patients will suffer needlessly, and some may even end their own lives prematurely because of unendurable but treatable pain.
We have examined in detail the medical treatments prescribed by Dr. Weitzel, which he has opened to the world for scrutiny (See www.weitzelcharts.com). We find no evidence of intent to harm a patient, nor would the charts stand out as being significantly different from those routinely encountered in hospital peer review were they presented blindly in a stack of other records of hospital deaths. We are aware that at least one well-respected Utah expert, who did not testify at trial, believes that the standard of care was met.
Especially with difficult patients such as Dr. Weitzel’s, physicians will inevitably disagree about specifics of management, including dosage of analgesic drugs. The right dose cannot be calculated by a standard algorithm; the proper dose is the one that relieves the pain. Current thinking favors scheduled dosing without waiting for breakthrough pain as the best way to achieve symptom control while minimizing total dosage and side effects, although nurses caring for Dr. Weitzel’s patients disagreed and in at least one instance failed to carry out the order. It is easy to criticize the dosage in retrospect, especially if the patient’s death occurs in close proximity to a dose (not the case here), but no one is in a better position in real time to determine the appropriate balance than the physician at the bedside.
It is important to note that the patients in question were particularly difficult to manage due to their dementia. They were unable to communicate a history or to cooperate with ordinary diagnostic and treatment measures. Although not terminally ill at the time of admission to the geropsychiatric unit, the patients were elderly and suffered from a variety of comorbid conditions that could rapidly decompensate at any time. It is doubtful that aggressive medical intervention could have prolonged life to any significant extent. Moreover, patients or their families had refused such intervention. In the absence of intravenous therapy and other medical treatments, death was imminent with or without narcotic therapy.
Physicians are bound to adhere to advance directives by both ethical and legal considerations. Physicians who subject a patient to treatment which he or she has refused could be charged with assault and battery. The precedent set by Dr. Weitzel’s prosecution places a physician treating similar patients on the horns of a dilemma: should he attempt to alleviate pain and risk prosecution in the event that a patient's death is attributed to his treatment rather than to the underlying disease, or should he allow patients to suffer? Or should he avoid the dilemma by not accepting patients in similar straits? Patient access to optimal care will be limited if physicians are deterred by fear from accepting these most difficult cases, or from prescribing adequate pain relief to patients they do treat.
We know that patients’ families are often distraught at the loss of a family member. At such a time, they seek to understand the reasons for their loss and may seek to place blame. Their perceptions may change dramatically after the event. Their recollections as to communication about treatment options may differ radically from that of the physician. Normally, if such differences are not resolved satisfactorily, they lead to malpractice litigation. Physicians are able to protect themselves from financial destruction by purchasing liability insurance. There is no insurance, however, against loss of livelihood and liberty if the outcome is, instead, criminal prosecution. The only protection is to withdraw from medical practice, if physicians perceive that difficult decisions made in good faith can lead to a prison cell.
We know that your office has the discretion to prosecute physicians. We know that the government prefers to retry cases that did not result in full convictions the first time.
When physicians make an error, they are supposed to acknowledge it. Indeed, Dr. Weitzel was castigated for not showing “remorse” after conviction, even though he believed himself to be innocent. Government should also be willing to acknowledge error and refrain from perpetuating harm resulting from an injudicious decision.
We ask you, however, to forbear from prosecuting Dr. Weitzel again for these pain management treatments. We are committed to speaking out against such prosecutions, and to filing amicus briefs to avoid the chilling effect that such precedents have. The interests of patients require defense of the treating physician's medical judgment in such cases.
Most patients could benefit from pain treatment when they are near death. We all have had, or will have, relatives who have suffered tragically near death. We may one day be in that position ourselves. Physicians can, and should, alleviate such pain. But if Dr. Weitzel is prosecuted again, the precedent will discourage good medical care. Faced with the need to protect themselves against emotional, unfounded charges followed by prosecution, physicians will withhold pain relief in situations where it is needed the most.
We recognize the possibility that not all physicians will exercise good judgment in difficult clinical situations. There are many mechanisms for protecting the public: hospital peer review (which we understand found no fault with Dr. Weitzel’s management); actions by the licensure board; better consumer awareness; and tort law. Criminal sanctions are appropriate only in cases in which physicians are proven, beyond a reasonable doubt, to have intentionally harmed or killed a patient. We believe that prosecution or imprisonment is not appropriate in this case and will be a disservice to the public.
Respectfully Submitted this __ day of _________, 2001.
Jane Orient, M.D.
cc: Craig Jackson, Director, Utah Department of Professional Licensing