REFLECTIONS ON BEING TRIED FOR MURDER

ROBERT WEITZEL, M.D.

I have recently had the misfortune of being tried for the "untimely deaths" of five of my patients, not just once but twice. (They did not die twice, rather I was tried again after the first trial was set aside, when it was determined that the prosecutor had improperly withheld exculpatory evidence.) In each of the two trials I learned a great deal about the judicial system, some of it positive and illuminating, and some of it quite distasteful. It was certainly positive to finally have my innocence vindicated but definitely unfortunate to have spent every last cent, and six months in the penitentiary.

The first trial lasted five and a half weeks, while the prosecution tediously presented volumes of trivial detail and irrelevant minutia that not only confused the jury but also left them bored to distraction. The first jury refused to convict me of the charge of first degree murder, as requested by the state lawyers, but compromised with a verdict of guilty on three counts of negligent homicide and two of manslaughter, leading to a sentence of fifteen years in prison. The second trial of three weeks was conducted in a much more expeditious and concise way, and the defense witnesses were knowledgeable and informative in their testimonies, while the state witnesses were just a bit more circumspect. The jury in this trial returned verdicts acquitting me of all five deaths.

Prior to my arrest, none of the patients' families had filed a complaint with the hospital, state agencies, or the medical societies, nor apparently had any even met with a lawyer during the three years after the deaths. I can only imagine the scenario, but there was a day when a state investigator knocked on the doors of each of these families to announce that their loved ones had not died natural deaths but had been murdered. One can easily imagine the rush of emotions that each of these individuals must have felt, running from fear, to guilt, to anger, and pain. The loss of the departed had already been grieved, the dead had been buried, and the pain had been accepted and resolved. Then the prosecutors arrived with requests to exhume the bodies. The dead had left their veil of tears, but their survivors were now given a new and grisly burden to bear. The exhumations raised again the grief of their loss, not this second time to be so properly borne, endured, and buried.

As I sat there listening carefully to the learned explanations of the experts on both sides, the whole significance of our system of trial by jury became clear to me. As I had watched the families of the alleged victims sit through every pretrial hearing and both courtroom trials, waiting impatiently for the justice they felt they deserved, I felt dismayed that they had become so righteously indignant over care I had provided, care I believed was appropriate and ethical.

I listened with hope that after these family members had heard the facts and the expert explanations, they would feel relieved. I hoped they would find some peace when they learned that their decision had been a rational and wise one; to have me withdraw active, interventional medical care from their dying, demented loved one and to replace it with compassionate comfort care. After all, these severely demented patients' ages were 72, 83, 90, 91 and 93 years.

It is now clear that the second jury did indeed hear the message. Justice was done, although at great expense to the state. The parade of experts provided a thorough explanation for those family members who were open to hearing it. This opportunity to hear a full disclosure of all the relevant facts is the true intent and meaning of justice, so that those who continue to harbor inner conflicts or ill will may be able to reach closure, after a fair and well-conducted trial.

Among those less well informed, and especially those unable to attend my last trial, I have no doubt that there remain many questions, suspicious and unresolved issues, many of which I believe arise from our wide spread ignorance about the process of dying. Our society has essentially denied the reality of death. Most people have very little contact with death, and with our prolonged life expectancies we are not touched by it as closely or frequently as were people only a generation or two past.

The Latin term used in Medicine, in extremis, denotes not simply a state beyond which nothing further can be done to save the life, but in addition it describes a process through which the body passes as it prepares to shut itself down, permanently: The process of dying. (An explanation of the natural processes involved in dying was provided the jury and the family members attending the trial, and these insights should be shared.)

Lewis Thomas in his book 'Medusa and the Snail' has a chapter entitled "On Natural Death" which contains ideas so important to this subject it should be included in every pamphlet or instruction provided by hospice services. Thomas describes a process that takes place in the mouse at the instant it is caught by a cat. He writes,

".peptide hormones are released by cells in the hypothalamus and the pituitary gland; instantly these substances, called endorphins. [Exert] the pharmacological properties of opium; there is no pain."

He ends with,

"Pain is useful for avoidance, for getting away when there's time to get away, but when it is endgame, and no way back, pain is likely to be turned off, and the mechanisms for this are wonderfully precise and quick. If I had to design an ecosystem in which creatures had to live off each other and in which dying was an indispensable part of living, I could not think of a better way to manage."

Thomas then quotes the 16th century French philosopher Montaigne who had had a near death experience which led him to write...

"If you know not how to die, never trouble yourself; Nature will in a moment fully and sufficiently instruct you; she will exactly do that business for you; take you no care for it."

It should certainly serve to support the faith of those who believe in a merciful Creator to know that with all the violence built into the law of the jungle, prey are provided with this mechanism to guarantee a gentle and merciful demise. And this mechanism is fully active in humans.

During my second trial the various end-of-life experts discussed the notion of delirium, which is commonly seen in the demented. Since the five patients who died under my care were all in advanced stages of dementia, there was also substantial testimony about both the nature of dementia and the meaning of delirium.

Dementia, a disease condition of the brain, results in destruction of large amounts of brain matter, leaving the afflicted individual trapped inside a tangle of non-functioning brain structure. In the later stages of dementia the process also leads to a general wasting of the entire body, eventually and inevitable leading to death. It is not in any way the same as psychiatric diagnoses such as phobia or neurosis, which are conditions of the mind, not the brain. Of course, the mental state can deteriorate into a depression or other psychiatric condition on top of or as a result of the dementia, and depression itself has a biochemical component to it.

Delirium is rather difficult to define, but it is an altered state of mind that may incorporate hallucinations or other reality distortions, frequently associated with wild swings in brain activity. Delirium can be either pleasant or tragic. The endorphins provide a kind of quiet, pleasant delirium, but dementia can result in a delirium that is wild, frenzied and destructive. The experienced caregiver knows it when she sees it, just as the knowledgeable and experienced caregiver can recognize the dying process when she sees it.

The demented individual presents many difficult problems for the caregiver, but one of the most frequent and perplexing is the inability of the demented to be able to identify and describe physical pain. The destroyed brain not only does not allow effective communication, it frequently does not even give the demented patient a correct interpretation of the problem, so they may not even recognize that they are in pain. Such patients may exhibit wild agitation or bizarre behavior in their response to unrecognized, painful stimuli, which the demented elderly frequently experience. Since we have no "pain-o-meter" or blood test to measure the symptom of pain, we can sometimes only make a diagnosis by giving an opioid to see if the patient's behavior improves.

Although Thomas titles his chapter, "On Natural Death," this is not the usual use of this term, which commonly refers to a death due to natural causes, and yet it sounds like an oxymoron to speak of a "normal death." Still, that is what Thomas was referring to. In the normal, natural death, passing is made gentle and pleasant by the brain's release of its own natural endorphins. Although we know of the severe pain many cancer patients suffer, once the dying process begins their pain is often relieved. In many of the demented, however, there appears to be the worst of all possible worlds, since the brain seems to be both unable to discern the pain and unable to release nature's merciful endorphins. This necessitates the employment of powerful pain relievers in generous dosage to help nature do what the disease process has forestalled, if one is to be as merciful as we have seen nature to be when death is natural.

Our country is currently experiencing something just short of a war occurring between the regulatory agencies and those physicians responsible for compassionate pain control. The knowledge gained just in the past ten years about the proper use of opioids has been significant, and the new knowledge suggests that much of our past use of opioids has been stinting and insufficient. Now that bureaucrats, managers and lawyers have an ever increasing involvement in the way health care is delivered, innovative modalities and changing treatment practices are challenged almost everywhere, as one might expect. Perhaps the successful outcome in State v. Weitzel will help to further assertive and compassionate palliative care; I hope so.

I am very happy that I have been acquitted and that I may once again look forward to regaining my livelihood and respectability, but my greatest happiness comes from knowing that a jury of laypersons can and did hear the message; saw the bigger picture. Although all my own assets have been spent, as well as considerable funds provided by donors, I still feel my optimism has been redeemed, and I am hopeful for my own future as well as that of conscientious and compassionate physicians everywhere.