At What Point Does Comfort Care Become Murder? The Husel Verdict

Robert D. Glatter, MD; Ferdinando Mirarchi, DO; Lewis S. Nelson, MD; Thaddeus Pope, JD, PhD


May 18, 2022

This discussion was recorded on May 2, 2022. This transcript has been edited for clarity.

Robert D. Glatter, MD: Welcome. I'm Dr Robert Glatter, medical advisor for Medscape Emergency Medicine. Today, we have a distinguished panel joining us to discuss an important legal decision resulting in an acquittal of an anesthesiologist/critical care physician on 14 counts of murder and attempted murder charges a few weeks ago, after prescribing very high doses of fentanyl in the setting of "palliative extubations" for critically ill patients under his care admitted to an intensive care unit (ICU) at Mount Carmel West Hospital in Columbus, Ohio, from 2015 to 2018.

It's an important decision affecting end-of-life care, focusing on the concept of "comfort care," determining criteria when a patient is terminal or medically futile, and how to ethically conduct a palliative extubation in those who desire withdrawal of lifesaving care.

Joining us to discuss this case is Dr Lewis Nelson, professor and chair of emergency medicine at UMDNJ/Rutgers, with expertise in toxicology. Also joining us is Dr Ferdinando (Fred) Mirarchi, an associate professor of emergency medicine and director at UPMC Hamot and an expert in end-of-life care. Finally, we have Dr Thaddeus Pope, an attorney with expertise in medical law and bioethics, patient rights, and decision-making.

Welcome, everyone. Thank you again for joining me.

Dr Mirarchi, I'd like to begin with you. Can you explain what a palliative extubation is and how it's typically performed? Who participates and what are the mechanics of the procedure?

Ferdinando Mirarchi, DO: Palliative extubation is essentially a time when we decide we're going to withdraw that form of life-supporting intervention from a ventilator, and we would remove the endotracheal tube and allow that patient to die naturally.

What is typical can vary, and it varies according to provider background, training, level of comfort, and so on. It's not something that emergency department (ED) physicians are typically comfortable doing, but we do it and it's something that really came to a head at the time of COVID-19 as far as having to board patients and essentially being stuck with limited resources, where we essentially had to do that procedure inside the ED.

You need to have consent on the part of the patient or the right documents in place, such as living wills, to facilitate that conversation and decision-making. Again, I think the big issue here is the issue of consent and making sure everybody's on the same page as far as the expectations are of what is to be done.

Now, I've done this procedure many times myself. I've seen other physicians do it. I've seen physicians do it very well and I've seen physicians do it very poorly. As far as what's typical, you essentially prepare. You prepare the family, your team, your nurses, any training physicians that you have with you as far as residents, you get the respiratory team involved, and then you very calmly go about your procedure as far as providing some sedation if needed. I've seen people do it with no sedation, but I'm not really a fan of that. I've done it with sedation and asked the respiratory team to remove the tube and then have support there for the family as that patient dies naturally.

Glatter: Some of these patients are near death. We're talking about patients that don't even have a systolic pressure; don't have any palpable pulses; and are apneic, grimacing, and clearly in distress.

Dr Nelson, in a patient who is showing these signs of distress or having difficulty breathing, there's a typical dose of fentanyl to maybe give with midazolam. There's a dose for others who are not as actively having difficulty breathing and who are nearly morbid. Maybe you can discuss your thoughts, and then put that in light of what William Husel, DO, administered.

Lewis S. Nelson, MD: Sure. Thanks for having me here. We started during COVID-19 to go in earnest and perform palliative extubation in the ED because of boarding and what others that have already commented on.

We did use a palliative care team with some expertise in this. Most of the time before that, these were done in the ICU and other places. We did work our way up to performing these more often. We implemented some protocols that had been used in other places, and we learned a little bit more about how to make this happen.

Clearly, the idea here is to keep the patient comfortable as they are being extubated, and to make sure that the family doesn't witness any distress that the patient is having. As part of our protocol and others, you would typically give a couple of medications: one perhaps to dry secretions if they were occurring, one to sedate the patient, and one to get rid of the patient's dyspnea (shortness of breath), which was a big part of dying that was uncomfortable for families to watch and very uncomfortable for patients to experience.

The medication that we use to get rid of dyspnea and to provide some sedation was fentanyl, and that was very typical, or morphine (an opioid) — one or the other. More typically, people would use morphine, but there's no reason you couldn't use fentanyl. The typical dose of morphine is 5 mg or 10 mg, enough to take the edge off of the shortness of breath and the anxiety, but not enough to slow their breathing to the point at which it stops or it becomes unable to sustain life. An equivalent in fentanyl dose would be in the 50 µg to maybe 100 µg range, if you do the relationship between morphine and fentanyl. Either of them is fine, and any opioid would be fine. Often, they give a benzodiazepine like midazolam to top off any anxiety the patient was having.

The doses administered in the case, at least as it was reported, were in the range of 500 µg of fentanyl (not 100 µg or 50 µg), up to even 2000 µg of fentanyl. Virtually no person, including those who have deep dependance on opioids, who are on long-term care for pain, or who use illicit opioids, can tolerate a 2000- µg dose. It's just exceedingly high.

When you're undergoing operative intervention (for heart surgery or something), a dose of 500 µg or 1000 µg would be more than enough to get rid of all your pain. These doses were just way higher than anybody would recommend for a sedating dose.

Glatter: What would be the clinical effects of giving someone who's opiate-naive, or even had been on some opiates, 500 µg of fentanyl or even up to 1000 µg? Let's say this person has a systolic blood pressure of 70 mm Hg or 50 mm Hg going downward further and is dyspneic, but is not in distress in that sense. What would your expectation be?

Nelson: One of the nice reasons to use fentanyl is that it is much more cardiovascularly stable than morphine. Morphine does tend to lower blood pressure and have some other effects, so fentanyl is better. I wouldn't have that much of a concern for the blood pressure and pulse. They might drop a little bit, but the way that opioids kill you is by suppressing your breathing. Obviously, when you're not breathing, you're not oxygenating and you're not blowing off carbon dioxide.

Both of those, over a short period of time, lead to a fall in blood pressure and other cardiovascular complications. I would have every expectation that somebody who received 1000 µg or 1 mg of fentanyl intravenously at once would stop breathing and have all those other complications.

Glatter: This doesn't happen immediately. It could happen in 20 minutes, or it could happen in 6 hours or 8 hours. Some studies have shown a median of 8 hours until some patients die. That's why we try to move them from the ED up to a patient floor to be with family and so forth. Some patients have lived a week. The studies vary, but it doesn't happen in an immediate fashion.

This brings into the effect the double effect principle: You want to make a patient comfortable and give them comfort care, but a secondary effect could cause harm.

Thaddeus, please describe the double effect principle and what our audience should understand. In this case, the prosecution was trying to say essentially that Husel, what he was doing was in a sense euthanasia. It was not the double effect principle that he was working on. How would you respond to that?

Thaddeus Pope, JD, PhD: Husel was charged with murder and attempted murder, which requires the jury to find both that those doses caused the patient's death and that Husel's intent was that those doses caused the patient's death. The jury acquitted Husel, so they found that either intent or causation or both were lacking. The nature of the doctrine of double effect is that causation is OK.

It's absolutely OK if Husel had admitted, "Yes, I knew that that dose, 1000 µg or 2000 µg, would cause the patient's death. But, that wasn't what I wanted. That isn't why I administered it. I administered it to keep the patient comfortable. That was my intent, was to keep the patients comfortable."

The nature of the doctrine of double effect is that so long as you intend the good thing (patient comfort, alleviation of pain and discomfort), it's OK that you know, even to a certainty, that your action will cause the bad thing — the patient's death.

Glatter: You don't expect death, but it can happen. That's really what you're trying to say.

Pope: The doctrine is actually robust enough that you can say, "I know that it might cause your death," but it's even strong enough to say, "I knew that it probably would or even most definitely would cause your death." That's still OK under the doctrine of double effect.

This is codified, even in Ohio law, to say that you have immunity from criminal and civil liability because we want physicians to be comfortable. We don't want them to be chilled from administering what they deem to be the appropriate amounts of pain medication.

Glatter: The question is, how will this affect, going forward, end-of-life care and comfort care? In your clinical view, when you work a shift, are you going to think about this, or have you been thinking about this in any sense? Again, Husel is an outlier. This is not, in my opinion, how 99.9% of physicians who work in EDs and ICUs (considering their anesthesiology, pulmonary/critical care training) will approach this type of procedure in this type of patient. I'll let you start, Fred.

Mirarchi: As I have mentioned, I've seen various ways people do this. Some are very appropriate; some are very inappropriate. When people start giving these mega doses with an intent, it's a different way to practice. I've seen everything from someone giving somebody 20 mg of morphine every 3 minutes until they stop breathing to someone just gently titrating to do it with respect.

I think that's the issue here: Will it stop people? I don't know, because it may be in the moment right now and people may think about it, but I don't know that this would actually stop anyone from their typical practice pattern, especially because they found him not guilty. Essentially, it'll have an effect. I just don't know how big of an effect.

Nelson: Yes. I think it's going to have mixed effects also. On the one hand, I could see many doctors out there who feel that these patients deserve to die with dignity on their terms. If the family and the patients made a decision, why do I just want to continue to provide comfort care when I could end their suffering? Effectively, I guess that might come forward to the doctrine of double effect or it might be considered euthanasia, depending on intent or whatever the motive or whatever the underlying issues are.

It does raise within us the idea that people are watching. We're going to be under scrutiny for some of our practices. Many doctors and others do want to end suffering but know that they're going to be scrutinized for the work that they do potentially. We've seen this with the case of the nurse out in Tennessee as well. There are going to be people thinking twice about the activities they do that might bring scrutiny upon them, particularly if there is risk for legal proceedings.

Glatter: Some of the scrutiny, again, obviously wasn't just on Husel. It was on the nurses and the pharmacist. There were multiple people who were suspended or lost their licenses. In any event, the issue is of the electronic medicine cabinet, the Pyxis, and the involvement of ED pharmacists and ICU pharmacists in these nonemergent palliative extubations where there was an override. In other words, the pharmacist wasn't informed, and the nurses didn't go to the Pyxis and get the medicines. These were verbal orders that Husel gave staff — to just administer the drugs.

They were complicit in giving the medicines in many of the cases until someone started to speak up, whether it was a nurse or a pharmacist. That's important, because someone spoke up and said there seems to be an issue here with the aggressiveness of the dose.

The ultimate question is, what guardrails and what safety features and other aspects of cultural change should we start to implement?

Mirarchi: The big thing is, it has to start with appropriate policies, procedures, and training. For an institution to do this, they should have something in place that's a guideline. Essentially, part of that guideline should be on the part of the family to give consent, and when that consent is given and appropriate, to essentially follow the policies and procedures ad standardize dosing. When those doses come out of standard, then they should be questioned.

There is no doubt as far the dose: Giving someone 1 g or 2 g of fentanyl, that's immediate. That's not even a question, and it's very inappropriate. I think anything that should come out of that standard policy and procedure should be questioned and brought to another level for oversight or approval.

Nelson: I think there's going to have to be a national conversation about many of these issues. Whether we're talking about medical aid in dying for certain populations or, frankly, euthanasia, the issues that came up over the past 20 years about things like death panels have really pushed people's buttons. It's always a little bit surprising to see who falls on what side of an issue, whether it's a religious or an economic decision, whether it's medical or otherwise.

These are very complicated issues, which I think we have not done a very good job working our way through in the country. To some extent, it's a state-by-state issue, to some extent it's a national issue, and there are insurance implications and all these other things that go along with it.

Part of the conversation has to be about how what Husel did, for example, is different than some of these "angels of death" or some of these folks who, perhaps well-meaning, gave patients things like paralytics in the ICU in order to hasten their death. I don't necessarily want to equate the two directly because the jury has spoken in this case. Again, it does raise many questions about what we think is right as a culture, or even within subcultures across the country, regarding how the time of death should be managed.

We've all seen people who really have no functional life left and, sadly, who are suffering, still having repetitive visits to the ED from a nursing home, which are expensive and consume a large amount of resources. We have a limited amount of resources in the country to spend on healthcare, so when we're spending it on people who are unsalvageable and suffering, it raises many issues.

You can see why people might think that what Husel did or what angels of mercy have done in other settings was OK.

Glatter: Right, and the jury did speak. You've been quoted on this previously in other articles, that maybe this is what people do want. When you have a full jury that unanimously agrees that he didn't "murder 14 patients," it says something. I was a little surprised by the verdict, and other physicians were as well. Again, had they gone for a lesser charge of murder — and I'll bring in Thaddeus — such as criminally negligent homicide or reckless homicide, could they have gotten a conviction here? That's something we don't know, and we'll never know. In your estimation, how would that have played out?

Pope: First, he did get acquitted on the criminal charges. Remember, for context, he was fired back in 2018, his medical license is suspended, his Drug Enforcement Administration registration is suspended, and he's facing numerous civil lawsuits. He beat the criminal charges, but there are many other sanctions that he's bearing and will continue to bear.

The prosecutors did try to go for reckless homicide as a lesser included charge. What they had hoped was if the jury doesn't find murder, then they would find attempted murder. If they didn't find attempted murder, then they would drop down to reckless homicide. The judge did not instruct the jury on reckless homicide and that is because of the doctrine of double effect, because he's immune.

If you allow the jury to conclude that he didn't intend their deaths, but he knew that his conduct was likely to cause their deaths, that would eviscerate the doctrine of double effect, which is codified in the state of Ohio. Because the legislature of Ohio is expressing the public policy, the citizens of Ohio, that we want our doctors to feel comfortable providing what they think is appropriate pain medication and we don't want them to be chilled or scared from doing that. As long as they are doing it with the intent of addressing the patient's comfort, it's OK that they know it might or will cause the patient's death.

Glatter: It's a very important point you bring across about the intent here being that he did not intend to euthanize these patients, which was their verdict or what they came to decide.

Pope: It's also worth noting that, let's say the judge did instruct the jury on reckless homicide — he didn't. But had he, it's not clear the jury would have come back with the guilty verdict on that, because notwithstanding Dr Nelson's points, it appeared that the jury was uncertain whether the drugs caused the patient's death, which is still an element.

Even if you take out the intent element, even on the reckless homicide, they still need to show that Husel's conduct caused the patient's death. It's not clear that they were convinced beyond a reasonable doubt that it did because these patients were already dying.

Glatter: The issue of accelerated death vs causation of a death, there's a fine line.

Pope: If you contrast it with the recent RaDonda Vaught verdict, she was convicted of reckless homicide. There, the causation part was easy because she was supposed to have administered Versed (midazolam), an anti-anxiety drug, but instead she had administered a paralytic drug. It's very clear that her conduct caused the patient's death. On the causation part, that case was easy. The Husel case was way more difficult on causation.

Glatter: Maybe you could just review reckless homicide and criminally negligent homicide. How do they differ? What's the main difference between first-degree or second-degree murder, on which they were trying to convict him?

Pope: For murder, they don't need to show motive. They only need to show why he was trying to do it. The prosecution did need to establish beyond a reasonable doubt that Husel, by administering those doses, wanted to cause the patient's death. They were unable to convince the jury of that.

When you move down from murder to reckless homicide, you don't need to show that kind of intent. All you need to show is that the physician proceeded in the face of a high probability that his conduct would cause it. Husel didn't want it to happen, but he should have known that it would. It's like driving at 100 miles per hour. Maybe you don't want to kill anybody or you don't want to get in an accident, but by driving 100 miles per hour on the highway, you know that's very likely to happen.

"Criminally negligent" is an even lower bar where you just make a mistake or a series of mistakes as in RaDonda Vaught's case. She wanted to help her patient, but she pulled the wrong drug from the Pyxis and made so many mistakes in a row that the jury found that was negligent or grossly negligent because of the number of mistakes that she made.

Glatter: That brings up system errors vs individual or provider errors. It still involves some system errors, but in this case, no doubt with the pharmacist involvement, the overrides, and so on, in a setting of these palliative extubations.

Pope: In both of these cases, it's worth noting all the public media spotlight shown on the RaDonda Vaught, the nurse, and William Husel, the doctor. In the background, the Centers for Medicare & Medicaid Services basically threatened to shut down both these hospitals because they had imminent patient safety issues. If you look at what the regulators were doing, they weren't focused so much on the individual clinicians. They were focused on the entities and on the processes that allowed this to happen.

Glatter: Exactly. To wrap this up, maybe each of you could give a few take-home points from this case and what you think our audience should remember. Lewis, I'll start with you.

Nelson: I think it does open up a whole new area of conversation that we have to have about what we as physicians and the healthcare system believes, what patients and communities and populations believe, and how we should be managing end-of-life issues.

I am concerned about the optics of palliative care, particularly in this case, just because of the doses that were used. Again, what his intent and motive and other things were, notwithstanding the jury's decision, I think these doses are too high to be utilized on a regular basis. I hope we don't walk away from this thinking that these are the right doses to be used. They are unquestionably likely to end in a fatal outcome, as they did in this case.

Statistically, maybe if one of these patients happened to die the moment the tube came out and they got the medication the rest of them did, but we have this many of them pooled together, it just speaks to me that the statistical chances of these all being coincidental with the extubation seem very unlikely.

Mirarchi: I copy that as well. No one should take from this that this was an OK dose to give. This is not an OK dose to give, and appropriateness needs to be called into question here. Policies and procedures at institutions need to be put in place so that there's a guideline for providers to act on, and then subsequently have consequences if they don't act upon those policies and procedures appropriately.

There has to be a reason that they want to take some superhuman dose that would kill a horse and give it to a patient. It's a respect issue. There is a lack of respect that was applied here. I hope that people will still do what they need to do for patients and not let this type of an outcome affect them, but they still need to bring it into reality and use it with appropriateness.

Pope: I would just say that this is not new when you zoom out a little bit. For a long time, we've talked about the tension between giving patients appropriate pain medications and the physicians fearing criminal or regulatory investigations. The way that we balanced those two with the physicians getting caught in that vise grip was good documentation.

Maybe 2000 µg is never sufficient, but there's going to be a gray zone, right? I don't know exactly the right number. We don't want physicians to be chilled or deterred when they think that's appropriate, but you're going to have to document, for example, if you're going up to 500 µg, why 200 µg wasn't sufficient.

Start with the lower dose, document that it wasn't sufficient to alleviate the dyspnea or whatever discomfort there was, and then go up to a higher dose. This is what we do in the outpatient setting, and I think that's a way to resolve the tension.

Glatter: I want to thank everyone for this excellent discussion on a very difficult topic, again, with respect to all the families. Thank you and much appreciated.

Robert D. Glatter, MD, is assistant professor of emergency medicine at Lenox Hill Hospital in New York City and at Zucker School of Medicine at Hofstra/Northwell in Hempstead, New York. He is an editorial advisor and hosts the Hot Topics in EM series on Medscape. He is also a medical contributor for Forbes.

Ferdinando (Fred) Mirarchi, DO, is clinical associate professor of emergency medicine at the University of Pittsburgh Medical Center in Pennsylvania. He has published extensively on end-of-life care, physician orders for life-sustaining treatment (POLST), and medical orders for life-sustaining treatment (MOLST) forms for emergency department patients.

Lewis S. Nelson, MD, is professor and chair of the Department of Emergency Medicine and chief of the Division of Medical Toxicology at Rutgers New Jersey Medical School in Newark, New Jersey. He is a member of the board of directors of the American Board of Emergency Medicine, the Accreditation Council for Continuing Medical Education, and Association of Academic Chairs in Emergency Medicine and is past president of the American College of Medical Toxicology. He is a consultant to CDC, FDA, and DHS and has worked closely with several professional medical organizations, such as the American College of Medical Toxicology, American Society of Addiction Medicine, Society for Academic Emergency Medicine, and American College of Emergency Physicians. Nelson is an editor of the textbook Goldfrank's Toxicologic Emergencies and serves on the editorial boards of several journals.

Thaddeus Pope, JD, PhD, is a law professor at Mitchell Hamline School of Law in Saint Paul, Minnesota. He is an expert on medical law and clinical ethics and maintains a special focus on patient rights, healthcare decision-making, and end-of-life options. Ranked among the Top 20 most-cited health law scholars in the United States, Professor Pope has over 250 publications in leading medical journals, bioethics journals, and law reviews. He coauthors the definitive treatise The Right to Die: The Law of End-of-Life Decisionmaking, and he runs the Medical Futility Blog (with over 5 million page-views).

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