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One high-profile medical ethical principle is known as “double effect.” In providing comfort care, if the primary intent is alleviating pain and suffering, it is ethically sound to provide medications that have a secondary effect of causing respiratory depression.
More broadly, the doctrine of double effect states that a harmful effect of treatment, even resulting in death, is permissible if it is not intended and occurs as a side effect of a beneficial action.
The criteria which must be met for it to apply are:
- The intended effect must be a good one.
- The harmful effect must be foreseen but not intended.
- The harmful effect must not be a way of producing the good effect.
- The good effect must on balance outweigh the harmful effect.
What about giving fentanyl, a known respiratory depressant, to patients recently extubated, in end-of-life care?
It depends.
A jury in the Franklin County Court of Common Pleas, just concluded William Husel, DO, was not guilty on 14 counts of murder and attempted murder. This conclusion was reached after a 7-week trial featuring more than 50 witnesses.
Husel was charged with killing the 14 patients from 2015 through 2018 by ordering single large doses of the painkiller fentanyl — from 500 to 2000 micrograms — often in combination with other opioids and sedatives, while working as the solo physician on the overnight shift in the ICU at Mount Carmel West Hospital and at Mount Carmel St. Ann’s Hospital in Westerville, Ohio.
Husel ordered the administration of the drugs while his patients were having an endotracheal tube removed as part of palliative extubation. There was conflicting testimony during the trial about whether the patients were showing signs of pain or were even capable of feeling pain.
Prosecutors argued that Husel, who did a residency and fellowship in critical care medicine at Cleveland Clinic and started working at Mount Carmel in 2013 in his first job as a full-fledged physician, intended to kill the patients or hasten their deaths. They contended that the inexperienced nurses in the ICU went along with his large drug doses because they were “in thrall” to him because of his prestigious background at the Cleveland Clinic and his willingness to take the time to teach them.
He never took the stand in his own defense. Husel never testified.
Many of his medication orders were delivered verbally as opposed to entering them into the electronic medical record. The typical elective process required getting approval from the pharmacist on duty. Here, the override function of the automated Pyxis drug dispensing system was used.
The hospital fired Husel in 2018 after concluding the opioid doses were “significantly excessive and potentially fatal” and “went beyond providing comfort.”
Over 20 nurses and two pharmacists faced disciplinary licensing actions. Federal and state regulatory bodies also cited the health system for lapses in patient safety.
Then there was quite the house cleaning. The hospital CEO, chief clinical officer, and other physician, nursing, and pharmacy leaders were let go or resigned.
CMS threatened to cut off Medicare reimbursement. The hospital put together a corrective plan restricting the use of verbal orders and overrides for opioids on the Pyxis system except in life-threatening emergencies.
Lawsuits were filed. Of course.
The families of Husel’s patients settled cases against the hospital and its parent corporation for $20M.
Prosecutors made the criminal allegation that Husel intended these patients’ deaths. Medical experts noted that the fentanyl doses Husel ordered were 5 to 20 times larger than doses normally used in palliative extubations. These experts continued that Husel’s dosing would cause respiratory cessation except in patients with high tolerance.
Mount Carmel’s 2016 guidelines for IV administration of fentanyl specified a dosage range of 50 to 100 micrograms for relieving pain, and its 2018 guidelines reduced that to 25 to 50 micrograms.
Why did the jury acquit?
The prosecutors needed to prove beyond a reasonable doubt that Husel intended these patients (at the end of their life) die even sooner than they would have. The prosecutors also needed to prove beyond a reasonable doubt that these medications actually did hasten death in these critically ill patients.
The law is clear. If a person has only 10 minutes to live, and you take an action that causes that person to die in five minutes, and hastening death was your intention, you are guilty of murder.
One medical malpractice plaintiff’s attorney, Gerry Leeseberg, opined that the state’s case was doomed to be an uphill struggle.
Leeseberg said it was always going to be extremely hard to convince a jury to convict a physician of murder, with the potential of life in prison, in a case where the physician’s acts occurred openly over 4 years in a hospital setting where no one did anything to stop him. It would have been much easier to convince a jury to convict him of reckless homicide, a lesser offense with a shorter prison term. That only would have required proving that he acted in reckless disregard for his patients’ health and safety.
In a different case, RaDonda Vaught, a nurse at Vanderbilt, was recently convicted of negligent homicide (involuntary manslaughter) when she erroneously injected a patient with Vecuronium instead of what she intended, Versed. The patient died. In that case, the prosecutor scored a trial victory. Ms. Vaught will soon be sentenced to prison.
The sentence for negligent homicide is shorter than intent to kill murder. But it is harder to prove murder. In Husel’s case, the prosecutor scored a loss.
After the jurors acquitted Husel, they told the judge why they ruled as they did.
“..the procedures for the dispensing of fentanyl and other drugs at Mount Carmel weren’t properly explained to them during the trial, and that they were confused by the large number of prosecution witnesses. He also said they were confused that no one had stated a maximum dosage for fentanyl.”
Husel said he wants to go back to work. It’s unclear whether any entity will hire him. He also is still on the receiving end of multiple medical malpractice lawsuits. And, as of the date of his trial, Husel’s license to practice medicine was suspended. He has a long road in front of him.
In 2019, Husel filed a defamation and breach of contract lawsuit against Mount Carmel Health System. Will the acquittal help his case? Hard to say.
What do you think? Did Husel do right by his patients, delivering compassionate care? Or did he get away with murder?
"Can Medical Justice solve my problem?" Click here to review recent consultations...
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
The legal focus is on such minutia. Palliative extubation = the patient is expected to die. The patient is NOT expected to live. Recovery is not the intention. By remaining intubated, only the patient’s death is expected to be prolonged, so if it to be hastened by withdrawing respiratory support, why should hastening it by any other means (especially by further mitigating discomfort) be looked upon any differently? The distinction between withholding care and actively causing death is made just to make us feel better about the former. Under other circumstances, withholding care can be construed as torture, so legalities are defined by situation and intent. The intent was clear as soon as the extubation was planned, so proving it further is pointless, except to make someone responsible. It is all a symptom of how we love to lay blame on someone for everything. Story: G-d was assigning duties to the angels and asked for a volunteer to be the Angel of Death. Of course no one wanted the job, so He was forced to select one at random. Afterwards, G-d is explaining the job to the angel, how to transport the soul and care for it until it reaches its final resting place… The angel looks miserable about his new responsibility, so G-d puts His arm around the angel and says, “Look, this job isn’t so bad, because no matter WHAT happens, people are going to be willing to blame everything but you.”
This is a peculiar case since there are SO many people involved over a long period. Frankly, I’m surprised CMS hasn’t sent Husel a special award for saving Mount Carmel St. Ann’s Hospital in Westerville the most money in ICU care history. Maybe he applied for the Czar of Death Panels at CMS, and they thought he was just a bit too aggressive. Very peculiar case.
I will be very interested to learn Husel’s side in his deposition scheduled Monday (I suppose in the defamation and wrongful termination case against Mt Carmel by him and other terminated employees? Or in one of the cases brought against him?)
The initial motivation of the hospital was first to clear beds for the following day— otherwise why would they be doing these “palliative extubations” at night? After the fact, it was obviously to exonerate themselves, and regain their CMS certification.
The motivation of the prosecutor (50 witnesses? Come on!) is almost certainly political in OH.
The motivation of the patients’ families (all of whom knew the patients were moribund and either they, or the patients themselves via Advance Directives gave consent to “Palliative Extubation”—which is specifically intended to end suffering and hasten death) is clearly $$$. (Gee, I wonder if they did/will claim damages for Pain and Suffering.)
The motivation of the medical board in OHIO was clearly to C(Its)A.
Did anyone there care a whit about the desires or feeling of the patients themselves?
No, they were mere bit players in this monetarily driven melodrama of litigants.
Ever since Hitchens, Dawkins and Krauss wrote their fabulously successful books extolling atheism, with the “goal of promoting reason over superstition,” Western Societies have been confused by death. I don’t blame these rich authors for their success because at one time I too was monumentally confused about God and the Holocaust. I still am but have reached a kind of “detente” with God.
We now demand our physicians “make up” for that same confusion that has split our society almost exactly in half. This is what happened to Dr. Husel. Because of his choice of employing respiratory depressants for dying patients, he essentially ended his carrier and faced criminal charges that almost put him away et eternal.
Every terminal care physician needs to create a kind of “sliding scale” for evaluating terminal use of respiratory depressants. The guide above is not enough because it lacks specificity for each patient. I have thought over the years that a kind of numerical sliding schedule that would be filled out each day by nurses and other care operatives could be used as a template. But it would be INDIVIDUALIZED for each patient, each day. That individualized history is what protects you best legally.
I have wondered about the best way to create this document. I am still thinking about it. But should it be up to an old retired DPM to come up with it? Almost anything would have at least protected Dr. Husel from his personal hell. The key is INDIVIDUALIZED DAILY METROLOGY, combining the status of the patient with their Sp02 and some other kinds of objective clinical pain measurements. Any metrology is better than nothing.
If you do terminal care, you need to create a metrology form for respiratory depressants and fill it out each day. If you are interested in developing one, contact me through Medical Justice. I know what you’re thinking: “How can an old retired DPM come up with anything?” Actually, I have created numerical chart audit systems, unlikely as that sounds. But if you do terminal care, almost anything is better than nothing. Start out with your chart notes. Ultimately, they defend you best.
Michael M. Rosenblatt, DPM
Given my most recent posting above, in case you are interested, here is an “example” of a Digital Chart Audit (TM) Worksheet I am describing. You are permitted to use it or any permutation of it you choose, but you must specify it is “Digital Chart Audit (TM). ”
The form I have on MSWORD prints out better as a single page.
Example of Digital Chart Audit (TM) for terminal care:
Terminal Care Fill-in Sheet-Digital Chart Audit™
Disclaimer: This Form contains PHI. This is regulated by Government. Special handling is required. No guarantees, warrantees or promises are made concerning outcome of audit, prosecution, fines, effectiveness of treatment or any other effects of the use of this form. This is not legal advice. If you have any questions, contact a licensed attorney.
Name: Enter name here Date:Click or tap to enter a date. Motor Responses and Features of Final Days:
Localization to Noxious ☐ Stimulation
Fixation of Pupils ☐
Reaching with hands ☐
Flexion Withdrawal ☐
No facial expression ☐
Speaking to unknown persons ☐
Speaking to unseen persons ☐
Abnormal Posturing ☐
Grimace ☐
Request by patient to notify ☐
None/Flaccid Verbal Response
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Oral Reflexive movements
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Depressive facial features
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Verbalization (un) intelligible
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Startle Response ☐
No Startle Response☐
Overt Anger ☐
Overt Fear ☐
Acceptance ☐
Vocalization ☐
Frequent shifting in bed ☐
Request for sharing ☐
Request for Clergy ☐ By family ☐
Groaning ☐
Scratching/itching ☐
Combative ☐
No Visual Response ☐
Obvious dyspnea and struggling ☐
Massive pain response ☐
Un-focused Movements ☐
Contortions/flexion contractures
☐
Enter total point values for Motor Responses (+1 points for each) here: Click or tap here to enter text.
Present Dose/Name of Narcotic(s) Enter Text here Click or tap here to enter text.
☐ Family Request for “better” pain control Enter text here
Expectation of death within 24 hrs. Enter Text here
Restlessness and depth of coma deepening Enter text here
Enter more text:
Cheyne-Stokes Respiration ☐ Click or tap here to enter text.
Conscious contact with deceased relatives Enter text here
Pain from disease ☐ Worsening ☐ Lessening ☐ Not responding as expected
Kidney Function ☐ Anuria ☐ Urine flow increasing ☐ Urine flow decreasing
Jaundice ☐ Sclerae only ☐ Total ☐ Jaundice meter measurement
Enter Total point values for bold features (+1 point for each) here: Click here to enter point value
Identification of unexpected patterns: Enter text here
Enter more text here
Decision ☐ Admit to hospice ☐ Remove from hospice ☐ Reactivate curative treatment ☐ No Change
Time factors ☐ Floor time ☐ Counsel family ☐ Counsel patient ☐ Chart review
Decision ☐ Increase narcotics ☐ Decrease narcotics ☐ Change to different narcotic ☐ Alternative care
History of narcotic abuse ☐ Enter text here
Enter more text here
Comments: Enter text here Enter more here: