First of all, a blessed Good Friday to our readers. I realize that any of you folks who are of the Eastern Orthodox persuasion are not celebrating Good Friday today, so I ask for your indulgence. I'll be wishing everybody a joyous Easter on Sunday, too, so this is a warning. (The wisdom of the Eastern Easter dating is, I must admit, rather evident just now where I'm located. We are having what may add up to be a record snowfall before Holy Saturday morning.)
Now: Wesley J. Smith has been blogging about the infamous case of a Dr. Roozrokh out in California. (See here, [unfortunately, the detailed news story linked from this article, which I read when Smith first linked it, has disappeared] here, and here. Here is the judge's opinion.) Dr. Roozrokh is going to trial for "dependent adult abuse." The allegation, attested by multiple witnesses, is as follows: Dr. Roozrokh is a transplant surgeon. He arrived at a hospital where a patient was going to be taken off life support so that a "non-heart-beating donation" could take place. This method, sometimes called the Pittsburgh Protocol, involves taking a person who is not brain-dead but is believed to be ventilator dependent off of the ventilator. When the person's heart stops beating, doctors wait for five minutes to see if he starts breathing or his heart stops beating again. If nothing happens, he is declared dead and the transplant team takes the organs. Only in this case, the patient actually wasn't so ventilator-dependent as all that, so he kept breathing. Everyone is agreed that protocols were flagrantly violated in that the transplant team was not even supposed to be in the room until the patient was declared dead by his own attending physician. But they were. And it just gets worse from there.
Allegedly, when the patient kept breathing, Dr. Roozrokh ordered multiple, heavy doses of morphine to be given to him, with everyone standing around watching in between to see if he would finally stop breathing. Eventually they gave up, and the nurses were left to clean up the mess and take the patient back to a different room, where he eventually died much later.
The judge has dismissed two of the three charges against Roozrokh. One was that he wrongly prescribed medications, but evidently that law is not applicable to medications prescribed in a hospital. Another was that he poisoned the patient by putting Betadine into his feeding tube, but the judge didn't feel there were enough witnesses to attest definitely to this. My own opinion would be that that should be for a jury to decide. Be that as it may, the remaining charge is dependent adult abuse. It's basically charging that the doctor did something that a reasonable person would know would be likely to put the person at risk of grave harm. Words to that effect.
But I'm still trying to understand: Why could he not be charged with attempted murder? It seems that the very same evidence that is being used to support this much lesser charge also supports an attempted murder charge. The whole point is that there was no good reason for him to be sending the nurses scurrying all over the hospital (as one nurse has attested, in the news story that unfortunately has disappeared) for more, more, and still more morphine. Not only was he not supposed to be prescribing anything for the patient at all (because he wasn't even supposed to see the patient until after he was dead), but it seems pretty obvious that the repeated doses of morphine, followed in each case by everyone's waiting to see if the breathing would stop, were intended to stop the breathing. If that isn't attempted murder, I don't know what is.
WJS's interpretation of the defense as offered so far is that the claim is that the patient couldn't be abused because he was too far gone to know anything about it. A very poor defense. We certainly don't want to go down the road of claiming that people who are unconscious cannot in the nature of the case be abused. But further, it appears to me from the news stories and the judge's summary that the defense attorney is claiming that the patient was going to die anyway, so the huge morphine doses didn't really "do him any harm." This would be a dangerous precedent, too, because it implies that you can't try, even actively try, to kill a person who is dying.
This is fairly silly, as is evident from the fact that if the doctor had pushed a pillow over the patient's face, no one would be in any doubt. I believe that the whole problem arises from the medicalization of the situation. Basically, the idea is that doctors can't murder people, or even try to, even actively, so long as they use substances that have some therapeutic use. It used to be well understood that you certainly could murder someone with an overdose of morphine, and the claim is often made that worries about prosecution kept people under-medicated for pain. Be that as it may, we have now come so far in the other direction that apparently (as claimed by the prosecution itself) a doctor can stand in front of multiple witnesses and keep ordering large hits of morphine for a patient, waiting each time to see if he will stop breathing, and if he gets charged with anything, it won't be attempted murder!
Not that I'm blaming the prosecution, exactly. If there is some doubt as to whether they can get a conviction even for "abuse," with this kind of evidence, then they probably know well that they are trying to prosecute in a seriously messed-up social context. They have my sympathy. But I sure wish it were different.