Mercy­—or murder?

A troubled physician faces criminal charges in the deaths of five patients. The state says it was homicide; the doctor says it was compassionate care.

By Mark Crane
Senior Editor

Some 4,400 physicians in Utah received a letter early last year with the ominous warning that they, too, could be charged with murder for prescribing pain medication to the terminally ill. The letter's author, a board-certified psychiatrist with a long history of trouble, claims he was unjustly prosecuted because he'd provided "moderate amounts" of morphine to hopeless elderly patients in deep pain.

His view of the case wasn't news to Utah physicians who'd followed his torturous legal woes over the previous few years. What was unprecedented was that Robert Allen Weitzel, 45, set up a Web page, www.weitzelcharts.com , with extensive hospital and nursing home records of his patients, including psychiatric histories, comments by family members, and medication charts.

"I had some qualms about putting the charts on the Web because of confidentiality concerns," says Weitzel. "But they're part of the public record of my trial, and they clear me. No doctor who reads them could conclude that I'd committed a crime."

But a jury could. Weitzel was convicted in 2000 of two counts of manslaughter and three counts of negligent homicide in the deaths of five patients at Davis Hospital and Medical Center's geriatric-psychiatric unit. All the deaths occurred within a 16-day period from December 1995 to January 1996.

Weitzel was sentenced to up to 15 years in prison, and he served six months before the conviction was overturned. A judge found that prosecutors improperly withheld information about an expert witness who'd told them that Weitzel's care, however "bumbling," was no crime. The judge concluded that Weitzel might not have been convicted if the jury had heard this evidence, and he ordered a new trial.

Prosecutors, patients' families, and many Utah medical leaders are disturbed to see the patients' charts on the Web. "It's not illegal because they are public, but to release such private information to the world like that is unethical and wrong," says Elizabeth Bowman, a state assistant attorney general.

Even more galling to prosecutors is how Weitzel has portrayed himself as a victim of authorities seeking to punish doctors for providing palliative or end-of-life care. Instead, they argue that Weitzel systematically weakened patients with psychotropic drugs, misled their families into agreeing to withhold care, and then finished off the patients with morphine overdoses.

The Utah Medical Association takes no position on Weitzel's guilt or innocence, but has distanced itself from him, and reassured physicians that there is no "witch hunt" to punish them for prescribing appropriate pain medication. Other medical and advocacy groups have protested his prosecution.

Weitzel argues the UMA has "stabbed me in the back," but he understands the lack of support: "I'm not exactly the poster boy for Utah medicine. I've had some problems in my past, and that makes me a convenient target. Prosecutors use my history as a smoke screen because they don't want anyone to focus on the facts of the case."

Saying that Weitzel has had some problems is putting it mildly. He's pleaded guilty to federal charges that he prescribed morphine and Demerol to patients, but administered only half the prescribed doses. Prosecutors say he kept the remaining drugs for his own use. His medical license has been suspended in three states. Utah officials contend that Weitzel has engaged in inappropriate sexual behavior with patients, stalked former girlfriends, intimidated nurses, assaulted people, and lied on licensing applications to cover up his past.

An investigation at a headache clinic leads authorities to five deaths

Weitzel was working at the Salt Lake Headache Clinic when Utah and federal Drug Enforcement Administration officials began investigating his prescribing patterns in 1996. They noticed that what he'd prescribed and what was actually administered to patients didn't match up. "For example, he'd prescribe 30 mg of morphine but administer only 12 mg," says Bowman. "No record was kept of how excess medications were disposed of." There were other problems with overprescribing and inadequate monitoring of patients, she adds.

In 1999, investigators also began looking into five suspicious deaths at the 10-bed gero-psychiatric unit at the Davis hospital, where he served as assistant medical director. A nurse there told investigators about the deaths that had occurred in the winter of 1995-96. Weitzel alleges that the nurse had a grudge against him and was repeating innuendo and rumor.

Prosecutors pulled the patients' charts and showed them to medical experts. They interviewed the patients' families and asked a court for permission to exhume the bodies. While the postmortems were inconclusive to prove morphine overdoses, prosecutors were nevertheless suspicious.

Other events were coming to a head around the same time. Utah officials learned that Weitzel had voluntarily surrendered his medical license in California because of allegations of sexual misconduct with an ex-patient. Weitzel never notified Utah officials of the suspension. They were also investigating charges by a female patient that he had fondled her breasts. Weitzel angrily denies this.

"The licensing board ordered that he be examined at the Menninger Clinic in Kansas to rule out malignant personality disorder," says Bowman. "When he refused, we immediately suspended his license to protect the public."

Prosecutors in Davis County filed first-degree murder charges against Weitzel in the five deaths, while federal prosecutors indicted him on 22 drug fraud charges.

Was he relieving pain or killing patients?

The five patients Weitzel was accused of killing would present a tough challenge to any physician. Their average age was 86. All were admitted to the unit with severe dementia and agitation, including assaultive behavior directed at other patients and staff at the nursing homes they were transferred from. They all had extensive comorbidities and were legally incompetent. Their families were in charge of medical decisions.

But were they terminally ill and in dire pain requiring extensive morphine injections? That issue became a battle between medical experts for both sides.

According to trial testimony, Weitzel had tried to control the patients' aggressive symptoms with sedating antipsychotics, mood stabilizers, and anxiolytics, and had intended for them to return to their nursing homes in a couple of weeks. But after admission, four of the patients developed other acute medical problems, including a GI bleed, evidence of stroke, renal failure, and sepsis, Weitzel testified.

"I told the patients' families how bad things were and gave them this option: The patient could be transferred to our ICU where we'd do everything we could, or we could withdraw all but comfort care and let nature take its course," says Weitzel.

The families signed directives withdrawing all interventions and urged Weitzel to keep the patients free from pain, he testified. All previous medications were stopped, and Weitzel ordered regular intramuscular doses of morphine.

The fifth patient, a 91-year-old woman with cardiac disease and numerous other conditions, was also admitted because "she'd been screaming almost constantly whenever anyone touched her," says Weitzel. But she seemed to be in relatively better shape than the other patients.

Prosecutors say Weitzel never saw this patient but told nurses by phone to administer morphine. In less than a day, the patient was dead. Weitzel, who claims he did see her, says the woman suffered an MI, and the morphine had nothing to do with her death.

His attorney argued that these patients' conditions deteriorated rapidly once they were in the hospital, which isn't uncommon for sick elderly people. "The state wants to pick apart with perfect 20/20 hindsight all that medical care and call it first-degree murder," he told the jury.

Weitzel never administered any morphine himself, but left instructions for nurses. Some testified for him, and some testified that he had intimidated them into going along with his treatment plans.

Prosecutors charge it is inconceivable that all five patients died of different acute events during such a short time period. Overdoses of morphine were the common denominator, they told the jury. They endorsed the comments of one patient's daughter who said, "Five victims in just over two weeks in a unit of only 10 patients that had only one death in the previous two years screams of wrongdoing."

Prosecutors say that Weitzel falsely told family members their loved ones were terminally ill, and encouraged them to withdraw needed care. His motive? Money and convenience, say prosecutors. Weitzel received fees for psychiatric evaluations, so he wanted to "get someone else into that bed so he'd get paid more," a prosecutor said. "He didn't like these people. They were old and of no more use to society."

The state's experts argued that Weitzel had over-sedated the patients and then ordered overdoses of morphine. They said the patients were medically stable when they were admitted to the hospital.

Defense experts took the opposite view. They testified that all the patients were terminally ill and in great pain, and that Weitzel met the standard of care. One called the prosecution "one of the most egregious abuses of government power I have ever witnessed."

Following a six-week trial, a jury deliberated for just a few hours before reaching its verdict. They were unanimous that Weitzel hadn't committed first-degree murder, but they convicted him of two counts of felony manslaughter and three counts of negligent homicide, a misdemeanor.

A new trial is ordered, and the legal battles rage on

Weitzel had been in prison for six months when his attorney learned about the potential expert witness who believed the psychiatrist was innocent. Before the trial, prosecutors had asked Perry Fine, an end-of-life care specialist at the University of Utah School of Medicine, for his opinion on the case. While highly critical of Weitzel's care, as he was of care rendered by most physicians in end-of-life situations, Fine thought the patients were terminally ill and in pain, and that Weitzel's actions didn't constitute a crime.

Prosecutors felt they weren't required to turn over this information, but trial judge Thomas L. Kay ordered a new trial.

Since then, the legal wrangling and public relations offensives have been filled with more twists and turns than a soap opera. Weitzel has uploaded thousands of pages of trial transcripts and newspaper articles on to his Web page. He peppers these transcripts with comments like "ludicrous!" after portions of testimony he disagrees with, and provides a chatty running commentary on each day's developments.

Weitzel openly taunts the prosecutors. "I'm going to the mat with them," he vows. He's filed complaints against four prosecutors with the Utah State Bar.

Meanwhile, Weitzel agreed to a plea bargain on the federal drug charges. He told his Web readers that he did so only to focus his energies on the homicide retrial. He admits to record-keeping mistakes, but denies that he uses drugs. He also denies the sexual misconduct allegations, saying they were filed by spiteful ex-girlfriends.

Prosecutors requested that Judge Thomas Kay be removed from the case because of allegations that he's biased and has made intemperate remarks to the victims' families. They claim they weren't allowed to enter evidence that nurses had complained about Weitzel and that other physicians had warned him about over-sedating patients.

In a highly unusual motion, two families also demand that Kay be removed, arguing that victims as well as defendants are entitled to a fair trial. Kay has denied allegations of bias.

An appeals court judge disqualified Kay last November, saying that his apparent anger at prosecutors, "even though justified, does reasonably call into question his impartiality." The appeals judge denounced prosecutors for inappropriate and unethical conduct that bordered on prosecutorial misconduct. He accused them of engaging in a witch hunt against Kay by attempting to try the case in the press. Prosecutors "created an atmosphere of bias and prejudice, and then blamed Judge Kay for the poisoned atmosphere," he said.

Groups such as Compassion in Dying Foundation and Association of American Physicians and Surgeons have filed briefs in favor of Weitzel, arguing that prosecuting physicians for providing adequate pain medication is unjust.

Prosecutors and Utah Medical Association leaders answer back that Weitzel's case hasn't had any chilling effect. "There is no evidence of a state-sanctioned witch hunt against physicians who legitimately use narcotics to treat pain," says UMA past president Val B. Johnson.

Prosecutors decided against seeking first-degree murder charges against Weitzel for the retrial, which isn't expected for several months. But he'll face counts of manslaughter and negligent homicide.

Despite his troubled record, Weitzel is confident that he will prevail and ultimately regain his medical license. "I've done some very stupid things. But prosecutors have smeared me with irrelevant allegations. If what I did in this case is murder, then half of all doctors in America are probably guilty also."

Prosecutors insist that physicians who follow established guidelines have nothing to fear, and this trial is only about Weitzel, not palliative care. "It's our obligation to pursue justice in this case," says Elizabeth Bowman.

 

Mark Crane. Mercy--or murder?. Medical Economics 2002;1:34.