April 20, 2001
Some say that patients have the “right” to receive pain relief. But you, Doctor-reassurances from organized medicine notwithstanding-do not have the right to provide it without risking your livelihood and your liberty.
Consider this scenario: You are caring for terminally ill patients, whose families have signed advance directives. Patients are in pain, and you prescribe reasonable doses of morphine. (You do not intend to provide euthanasia.) The nurse gives the medication, and is supposed to withhold it if the patient is oversedated. In due course, the patients die, as expected.
Everything seems to be normal and routine until investigators start poring over your hospital records looking for a Medicare billing problem. Your coding, thank goodness, appears to be all right. However, a nurse who has a grudge against you informs the investigators that there were five “questionable” deaths in the hospital the previous winter.
About three years later, the County District Attorney decides to arrest you and prosecute you for first-degree murder. The DEA revokes your narcotics license, and the hospital suspends you from the medical staff. You're out on $100,000 bail, and out of work.
Prosecutors “leak” defamatory information to the press, destroying your reputation on the eve of trial. Local doctors don't want to support you. Out-of-state witnesses are intimidated and harassed. The State hires witnesses at $40,000 to testify against you. Still, you demolish the prosecution's assertions on cross-examination.
At the last minute, the prosecution introduces lesser charges that you really don't have a chance to address. To everyone's surprise, the jury convicts you on those (manslaughter and negligent homicide). They apparently think that the government should get something out of a four-week trial, and they don't think you will go to jail.
Right after the verdict, they handcuff you and cart you off to prison to begin serving a “one-to-fifteen” year sentence, with eligibility for parole after six years.
In light of the travesty of justice, and with the help of an intervention of a courageous colleague, the trial judge grants a motion for retrial. You're out in six months: bankrupted by legal bills, with no way to earn a living (your medical license, of course, has been suspended), and facing new legal bills estimated to be $150,000 by the end of the new trial.
The prosecutor is unhappy that he didn't get his murder-one conviction, so he is going to try again. If he loses on opposing your motion about double jeopardy, he vows to appeal.
He has to vindicate himself, after all. The Judge called his conduct “manifestly unethical” for withholding exculpatory evidence.
And now you have problems on another front. Having been told by the State that you murdered their loved ones, some of the patients' families are suing you for malpractice. At least you have insurance for that!
Sound like something from The Bonfire of the Vanities? No, too incredible.
Unfortunately, this is really happening to a Utah physician, Robert Weitzel, M.D. In retrospect, he might have done some things differently. But he feels secure enough about his treatment to post it on the Internet for the world to judge. (See www.weitzelcharts.com.)
As with other legal outrages that AAPS has described, we expect organized medicine (and many physicians) to react with denial. “He must have done something wrong. This would never happen to me because I do things differently and document them carefully.” Before you say this, read the charts.
The fact is that prosecutors have tremendous discretion. They can pursue an innocent man like the Furies, backed by the practically limitless resources of government. They can benefit from perjury, withheld evidence, and a jury prejudiced by media coverage-all without sanction.
More of us would be in a predicament like Dr. Weitzel's were it not for the integrity of (we hope) most prosecutors. It could be that Davis County D.A. Melvin Wilson was acting in good faith when he started this case, but that he made a mistake. If that is what happened, the right thing for him to do is drop the charges.
But let us not blame it all on the prosecutor. Cases like this would never make it as far as they do without the active and passive complicity of our profession.
We need to demand open and honest discussion of the issues. We need to hold judges and prosecutors accountable at the polls. And we need to hold “expert” witnesses accountable for their testimony: expose it to the sunlight and let them explain it to their colleagues.
There are several ways you can help Dr. Weitzel (assuming you have studied the cases and decided he deserves your help-contact him at [email protected] [or 801-581-0963] if you have a question).
1. Write a letter to members of the Board of Professional Licensure and others who might have an influence in matters like this. Ask questions, such as: “How can I prescribe narcotics without risking a prosecution such as Dr. Weitzel's?” We'll post contact information or mail it on request. We'll mail your letter, with your name blacked out, if you'd rather be anonymous.
2. Attend the double-jeopardy hearing at 9:00 a.m. on May 18, in Judge Thomas Kay's 2d District Court in Layton, UT.
3. Make a non-deductible contribution to Weitzel Legal Defense Fund, c/o Peter Waldo, Esq.-Trustee, 9 Exchange Place, Suite 1000, Salt Lake City UT 84111.
Jane M. Orient, M.D., Executive Director