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Can you try to murder a dying man?

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.

Comments (12)

The attempted murder charge was my question too. But I guess since Navarro kept on breathing and was wheeled off to another room where he later died, the connection between the Dr.'s actions and the death itself would be too remote to prove in court. I wonder what Navarro's family thinks about this story. They give permission to remove life support (presumably under the medical judgement that the man was hopeless or something), but once he kept on breathing he should have been left alone, in the sense of being treated like any other patient. The transplanters should have packed up and headed home.

I read the judge's decision. It sure is heartwarming watching doctors and nurses contradict each other in an effort to save their professional asses. These people could be in charge of you or me one day.

But again, if the assault were made with a less "medical" weapon, I think even if the person kept on breathing and died much later, you would have an attempted murder charge. It's only attempted. In the extreme case, if you shoot somebody in the head and it miraculously goes through only the front part of his brain and he survives and dies of old age, etc., there could still be an attempted murder charge. I do think it's because it's _morphine_, and people just have this idea that, hey, we're not experts, we don't really know what mysterious things doctors do with morphine, so we can't charge anybody with trying to kill somebody with morphine. And maybe it would have been hopeless to get a conviction. People are always charging prosecutors with trying for something too extreme and hence not getting anything, so you can't blame them if they are cautious.

I agree about the unedifying spectacle of the various people contradicting each other. To me it looks like the nurses are the only people in the whole case with any integrity. The guy's own doctor and the hospital administrator are just trying to keep out of trouble. "I told her she was in charge." "She never said anything like that to me," and so forth. One of the nurses at least raised a question at the time, and according to the earlier story that is now unavailable, I seem to recall that it was the nurses who reported it. Of course, they should have refused to go and get more and more morphine, but the habit of obeying orders is a hard one to break. And legally, the guy who ordered the actions in question is being treated as the one responsible.

I would say that this makes you wonder about what goes on in hospital situations like this but suspicion is a better word. Suspicion as to number of similar incidents rather than mere existence of a rare few.

Has anybody done any research on the illegal transplant black market? There I would wonder if a connection exists but with the march of Progress and Anything Goes I wouldn't be surprised.

This was intended to be a legal transplant, of course. The illegality arose in the fact that the transplant doctor was where he shouldn't have been (in the room before death) and apparently tried to push things along when the fellow didn't die after the ventilator was removed. This raises one problem with non-heart-beating donation. In one way it might seem better than brain-dead donation, because in brain-dead donation the declaration of death can sometimes be questioned, whereas in non-heart-beating donation the person really has stopped breathing and has no heart-beat. But when that doesn't happen, of course that can lead to frustration on the part of the transplant people. Also, the amount of time the protocol calls for to wait for breathing and heartbeat to resume varies from (I believe) 3 minutes to 5 minutes, and 3 minutes definitely seems to me to be rushing it.

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.

Weak indeed - so if you rape an unconscious person, no rape occurred because she didn't know about it?

For attempted murder, in most jurisdictions there is no requirement to prove a connection bewtween the doctor's actions and the ultimate death (that would be for a murder charage, not attempted murder). You would only have to prove the doctor's actions occurred, and he had the requisite intent to commit murder. If the witnesses' testimony is believed, there seems to be enough for attmepted murder, but as you point out, there are many other factors that could make a jury too squeamish to convict. When my mother was an assistant medical examiner, she was involved in a case where a relative (not our relative, but a relative of the patient) had induced the death of a comatose patient (can't recall all the specifics) and they wanted her to change the cause of death from homocide to some natural cause. She wouldn't budge, and eventually left to open her own practice (and was much better off for it).

If not Attempted Murder, there are at least grounds for Aggravated Assault. My experience is that the latter is the much more common charge, because the prosecutor need not prove the intent to murder.

I had thought of that, Paul. The whole "intent" thing is just going to make it all the harder, in part because of the medical connection I've already mentioned. But aggravated assault sounds tougher than "dependent adult abuse," anyway.

C Matt, that's v. interesting. I do think that in our society it's very hard to get comatose people to be treated with full rights. WJS would probably say this is connected to "personhood theory." A couple of years ago an abortionist in Hialeah had a baby born alive. The abortionist (I think it may have been a woman but can't recall for sure) zipped the living child into a plastic bio-disposal bag of some sort and hid it. POlice found the body later, and it was definitely confirmed that the child had breathed before dying and apparently had died of asphyxiation in the plastic bag. The police were all for going with the fullest charges, but the prosecutors immediately began back-pedaling, saying they were waiting to bring any charges until they discovered if the child was "viable." Not, of course, that Hialeah has some law on the books that says, "If you asphyxiate a non-viable, breathing newborn infant in a bag, this is not murder." It was entirely a made-up bit of nonsense arising from the idea that somehow a right to abortion means the newborn can be legally killed even if he survives, because if he isn't "viable" he isn't a person. I have never been able to find out if charges were filed in that case. But the case of the comatose patient seems to me similar: If the person isn't a "person," there's an assumption that he never dies of anything but natural causes and can't be murdered!

Obviously that protocol is a form of legal murder. With all of the irony about Democrats allegedly being upset that after 5 years, our casualties in Mesopotamia are approaching that number of murders performed daily in abortion facilities in this country alone, I fear what will be next for this country. God is not dead, nor does He sleep.

Do you mean the non-heart-beating donation protocol? I guess it depends on whether you think they wait "long enough" by waiting five minutes to see if the person starts breathing again. The crucial point for both that form of organ-taking and brain-dead organ taking is that we have to realize that vital organs are never taken from really cold corpses. People say, "I don't mind their taking my organs after I'm already dead," but of course vital organs like kidney and heart are useless if the body is already assuming room temperature! _All_ protocols are in some sense pushing the margins by trying to grab the organs while they are still usable, as soon as possible after the person is dead. In the case of brain-death donation, the ventilator is still turned on and so there is still breathing going on--the claim is merely that the person has no capacity to breathe on his own, that brain stem activity as well as cortical activity has shut down, and that therefore the ventilator is merely oxygenating a non-working body. Maybe and maybe not. This is controversial, and there have certainly been "mistakes" and so-called "miracles," including one last November where a man grabbed the nurse's arm when she was prepping him for donation. The one good thing about the Pittsburgh protocol is that there can be no question that the person is no longer breathing and has no heartbeat, so some of the questions that arise about brain-death diagnosis don't arise there. The person is declared dead on the "old" criterion of having no heartbeat or breathing. But is five minutes long enough to be sure that the person isn't going to start back breathing again? I'm not at all sure of that. And some places wait only 3 minutes!

"The Spanish magazine Huellas has published an interview with Sylvie Menard, one of the most renowned oncologists in Europe who for many years was a supporter of euthanasia but several months ago changed her views after she was diagnosed with bone cancer.

Menard told the magazine that she always believed that each person should decide his own fate, but ‘when I became ill, I changed my position radically.”"

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