March 28, 2002
James R. Fowler, M.D.
Dear Dr. Fowler:
I have seen a copy of your letter of March 13th regarding the case of Dr. Robert Weitzel. I am astounded at the unwillingness of the Utah Medical Association to take a stand on this manifest injustice and the deplorable effect it will have on physicians. Fortunately, we have heard from many Utah physicians and patients who are willing to speak out.
This is to request a clarification of the UMA position. Does the Utah Medical Association hold that it is acceptable for a prosecutor to withhold exculpatory evidence on a physician? If not, is such behavior in one case a mere aberration? How many cases would it take to constitute a problem?
In the US Court system, a defendant is supposed to be presumed innocent. It appears to us that the Federation of Medicine may presume guilt, or make its own determination of guilt. We wonder whether that determination requires official action. If so, is it taken at the level of the Executive Committee, the Board of Trustees, or the entire House of Delegates? Does the defendant have any due process rights in the proceeding? Are other matters weighed in the determination, or just the actual charges?
Perhaps I should also ask whether it makes any difference. You state that "We remain hopeful that justice will be achieved in Dr. Weitzel's case, which is as much as anyone can do from a practical standpoint once a case goes to court." Does this mean that the Utah Medical Association is declaring itself to be impotent once a case goes to court? At what stage does this impotence begin? At the investigatory stage? After the indictment? Only after conviction? Does it matter that the conviction was thrown out, and a retrial granted?
You state it is the policy of the Utah Medical Association to focus on systemic issues, rather than individuals. Does that mean that your decision about a case should be completely blind to the identity of the individual? And was it, in this case? In our view, prosecutorial abuse is a systemic issue. And we believe that the identity of the individual physician - and his past history - is irrelevant.
You state that "We continue to encourage all physicians to provide adequate pain control for their patients in pain, regardless of the outcome of Dr. Weitzel's trial." This is despite the fact that you recognize that there are "seemingly fuzzy boundaries between appropriate pain control, malpractice, and alleged criminal negligence." You intend to "make sure that medical mistakes are treated as mistakes and not as crimes." You will continue to "work with the Division of Occupational and Professional Licensing and with state prosecutors." And you are "anxious to educate physicians about the outcomes of all these efforts."
Have you published a status report for your members regarding the current situation: That fuzzy areas exist, that continuing work is necessary, and that once a case goes to court you are entirely unwilling or impotent to offer any assistance to the individual physician? Have you informed members that there will be no public statements about violations of defendants' due process rights, or about a prosecutor's breach of ethics, or about one-sided press coverage? That there will be no amicus briefs? And no warnings to physicians about the specific pain control issues that led to a particular prosecution?
In the face of such a statement physicians might not feel especially encouraged. Nevertheless, it appears to be your position is that physicians should go ahead and put themselves in harm's way. As they do so, the Utah Medical Association evidently takes its stand-either on the sidelines, or on the prosecutors side. Which, is not altogether clear.
Jane M. Orient, M.D.