By Stacey Kusterbeck
In a highly publicized case, a critical care doctor was acquitted on 14 counts of second-degree murder.1 The prosecution alleged the defendant had ordered excessively high fentanyl dosages that caused patient deaths. “Certainly, this case has shown us that it will be very difficult to prosecute any doctor for excessive use of painkillers,” says Ric Simmons, JD, a law professor at The Ohio State University. The prosecutors presented solid evidence and a strong circumstantial case, yet the defense still won. “Prosecutors will be unlikely to bring cases like this unless the circumstantial evidence — the amount of medication administered — is even stronger,” Simmons predicts.
For any criminal case, the prosecutor must prove intent. In this case, prosecutors had to prove either the doctor knew the dose of painkillers could kill the patient, or the doctor was aware of the risk, and the risk was unreasonable. It is unlikely prosecutors would have a statement from a defendant physician admitting either. Thus, says Simmons, prosecutors must prove intent through circumstantial evidence (i.e., given the large number of painkillers, there is no other reasonable inference). “But as the defense lawyers demonstrated in court, juries are reluctant to second-guess doctors who claim that a given amount of painkillers is necessary to alleviate suffering, even if the doctor administered many orders of magnitude more painkillers than is considered standard,” Simmons explains.
Criminal Liability Difficult to Prove in ED
Proving criminal liability would be even more difficult in an ED, according to Simmons. One reason is decisions in the ED are made under much more urgent conditions, with less time for consideration or premeditation. “Proving that a doctor knew that the medication would cause death or was aware of that risk under those conditions would be even more challenging,” Simmons asserts.
In contrast to criminal liability, most civil liability can be established with mere negligence. This means a plaintiff would only have to prove a reasonable physician should have known the dose of painkillers likely would cause death. “This would be somewhat easier, since there is no need to prove that the defendant doctor subjectively was aware of the risk,” Simmons says.
Questions About Medical Aid in Dying
Lewis S. Nelson, MD, chair of the department of emergency medicine at Rutgers New Jersey Medical School, says, “the silver lining of the case is that it opened up a nice conversation about medical aid in dying and physician-assisted suicide. The real question is not whether those are OK to do — that’s a societal question — but whether it’s OK for the doctor to take that into their own hands without the patient or family’s consent.”
From a medical perspective, says Nelson, “it seemed pretty clear that the doctor gave doses that were far in excess of what he should have given.”
The verdict may have been sending a message that jurors approve of the idea of patients determining when they want their life to end, within reason.
“But we need, as a society, to say, ‘What is the right way to do this?,’ and not allow cases like this to occur, where doctors take these decisions into their own hands and do not go through the right process,” Nelson says.
Although the case involved ICU patients, a similar situation could occur in the ED. There is growing emphasis on provision of palliative care in the ED.2 There also is growing acceptance of the use of palliative extubation (removing the endotracheal tube from a patient who is not expected to recover, with the goal of easing the patient’s suffering) in the ED.3,4 “During the pandemic, EDs certainly did palliative extubation for COVID patients who were suffering with a poor prognosis on ventilators [with the family’s consent],” Nelson notes.
Palliative extubation also is happening in EDs (as opposed to the ICU) because admitted patients are boarded in the ED for such long periods. “On an average day in my ED, probably a third of our patients are just waiting for beds upstairs,” Nelson reports.
Some of those patients suffered lethal strokes or other serious complications and might be candidates for palliative extubation. If those patients are held in the ED only an hour or two, the discussion about whether palliative extubation is appropriate probably can wait. “But if they are in the ED for many hours or days, the issue does come up,” Nelson says.
Some EDs use grand rounds and online modules to educate providers on appropriate use of palliative extubation. “If ED providers follow the proper practices, they should not be overly concerned,” Nelson says.
However, many EPs are uncomfortable making decisions on palliative extubation.
“You don’t want to keep somebody alive who’s suffering and there is no chance of a good outcome. But most EPs would probably be reticent to do it on their own. Most of us try to get the patient to a better place in the hospital for extubation,” Nelson says.
Involving the palliative care team is ideal. “It’s not just the mechanics of actually doing it,” Nelson says. “It’s the emotional support that the family needs and the other wraparound, where the palliative team becomes so important.”
REFERENCES
- Dyer O. Ohio doctor is acquitted of murdering 14 intensive care patients with fentanyl overdoses. BMJ 2022;377:o1051.
- George N, Bowman J, Aaronson E, Ouchi K. Past, present, and future of palliative care in emergency medicine in the USA. Acute Med Surg 2020;7:e497.
- Tan A. Palliative extubation in the ED (Yes, the ED). Emergency Medicine News 2017;39:24.
- Hosain F, Wallingford G, Jubanyik K. A patient and family-focused approach to terminal extubation. ACEP Now. Aug. 16, 2021.
In a highly publicized case, a critical care doctor was acquitted on 14 counts of second-degree murder. The prosecution alleged the defendant had ordered excessively high fentanyl dosages that caused patient deaths. Prosecutors presented solid evidence and a strong circumstantial case, yet the defense still won. In this case, prosecutors had to prove either the doctor knew the dose of painkillers could kill the patient, or the doctor was aware of the risk, and the risk was unreasonable.
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