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Omnia pro aegroto

June 12, 2001

Mr. Mark Shurtleff
Utah Attorney General
236 State Capitol
Salt Lake City, UT 84114

Mr. Melvin C. Wilson
Davis County Attorney
P O Box 618
Farmington UT 84025

Re: Dr. Robert A. Weitzel

Dear Sirs,

We are compelled to object to your statements and conclusion in your letter to us dated May 18, 2001 (the “Letter”).

We vigorously object to your conclusion: “The jury will therefore decide whether Weitzel’s ‘pain management’ decisions which resulted in the death of patients were ‘good judgment’.” (Letter at p. 4). Juries do not practice medicine. Physicians do. The public does not want attorneys or juries second- guessing medical judgments about pain management, especially not in a criminal context.

Moreover, your statement implies certainty that Dr. Weitzel's decisions-rather than their advanced age and complicated medical conditions- resulted in the death of his patients. That is an unproven allegation. Pursuant to Rule 24, the decision to grant a new trial has the effect of nullifying the judgment and placing Defendant “in the same position as if no trial had been held” (Utah R. Crim. Pr. 24(d)).

As paragraph 3 of the Letter states, Dr. Weitzel did not diagnose any of the five patients as being terminal upon admission to the geropsychiatric unit. However, after the patients had been in the unit under observation for a time, their condition and his assessment apparently changed. Dr. Weitzel evidently felt that they could not survive long in the absence of aggressive medical intervention, probably requiring transfer to the nearby Intensive Care Unit-with or without adequate pain relief. One prosecution such as Dr. Weitzel's assures that many other patients will spend their last days without adequate pain relief.

According to trial testimony, the cause of death was “undetermined” at autopsy, except in one case, which was signed out as “homicide,” in the opinion of one pathologist, on the sole basis that morphine was detectable in the tissues. (Morphine was not detectable in the other cases.) As the bodies were in varying stages of decomposition, it is not surprising that a specific cause of death could not be identified. Even immediate autopsies do not always reveal a proximate cause of death (such as a cardiac arrhythmia).

One of the patients who died was a 93-year-old with well-documented bleeding. Although the source of the gastrointestinal hemorrhage was not found at autopsy in this patient (who had a detectable morphine level), the numerous episodes of vomiting coffee-ground material and passing melanotic stool (both evidence of blood in the upper g.i. tract), along with poor fluid intake, lack of urine output, and other clinical evidence of a moribund condition, demonstrated that death was likely without the intensive care that the family had refused.

The reasons provided in the Letter for prosecuting Dr. Weitzel again are alarming. Three full paragraphs are devoted to scurrilous, irrelevant allegations about Dr. Weitzel. At one point you even rely on hearsay from a California tabloid and “local media reports” from Texas. Do you really make prosecutorial decisions in Utah based on out-of-state media reports? Let’s hope not.

The Letter, as well as the trial transcript, makes it plain that the State has no evidence that Dr. Weitzel deliberately administered or ordered a fatal dose of medication for any patient, but relies solely on the opinion of various expert witnesses that he exercised poor judgment. As it will always be possible to find some physicians who disagree with the attending physician's judgment about drug dosage, this approach inevitably will have a profound chilling effect on the prescription of comfort measures for patients with an acutely deteriorating course-the more so in view of the State's concealment of the opinion of the best qualified witness.

As Judge Thomas L. Kay found in his Memorandum and Order of January 9, 2001, “prosecutors had a manifest constitutional, legal, and ethical duty to disclose to the defense Dr. Fine's opinions and failed to do so.”

The Judge continued: “In assessing the significance of the evidence the prosecutors failed to disclose, it is important to note at the outset that the State's case against Defendant was a very close one. Convictions were based, in large measure, upon the opinions of expert witnesses and not on the observations of fact witnesses or incriminating admissions.” Further, “confidence in the verdict cannot survive where the undisclosed evidence would have provided the jury with information that could well have led them to reject some, if not all, of the State's theory of the case.”

In the Letter, you state that murder can be prosecuted “if the actor acts with depraved indifference to human life and thereby causes the death of another.” Though the State lacked evidence that Dr. Weitzel's pain-relief measures had any causal relationship to a patient's death, it did go to considerable lengths to try to establish “depraved indifference.” The “evidence” for this state of mind included a nurse's opinion that he spent less time with patients than another doctor on the unit did; that he came in early, left late at night, and looked in on patients when they were sleeping; that he gave a number of medication orders by telephone; that he dictated his psychological evaluations “after the fact”; and that he violated a hospital policy recorded somewhere in a 2-inch book of bylaws, after signing a statement that he had had the opportunity to read them. Most physicians in the nation are frequently guilty of all of the above.

Upon further review, including trial transcripts now available on Dr. Weitzel's web site, the Memorandum and Order by Judge Kay, and your letter with enclosures, we respectfully ask once again that you refrain from further criminal prosecution of what was, at worst, poor judgment in pain management decisions.

A retrial of Dr. Weitzel would generate nationwide publicity, all of it hurtful to both the medical and legal professions and ultimately to the patients themselves who need undistorted medical judgments about pain management. In the end, the public will reject your approach that juries in criminal court should decide whether pain management decisions constituted “good judgment.”

Just as importantly, all Americans need to have their confidence restored in the fairness of the criminal justice system. As the Supreme Court of Utah has held, “a criminal proceeding is more than an adversarial contest between two competing sides. It is a search for truth upon which a just judgment may be predicated.” (State v. Carter, 707 P.2d 656, 662 (Utah 1985).)


Jane Orient, M.D.

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