As most of my readers are already aware, this past week a grand jury in New Orleans refused to indict Dr. Anna Pou for murder. The response to the news in the medical blogging world has been characteristically divided: While most medical people are saying justice was served, a few are saying a murderer has slipped the noose. I have posted about this topic several times before, but would like to make a final comment before this topic passes out of our collective memory.
First a quick refresher: Anna Pou, MD, is an otolaryngologist (ears, nose, and throat specialist) who was working at Memorial Hospital in New Orleans when Hurricane Katrina struck. An affidavit issued by the Louisiana State Attorney General just over a year ago accused Dr. Pou and two nurses, Cheri Landry and Lisa Budo, of murdering four patients five days after the storm hit with lethal doses of morphine and benzodiazapines. Since that time, the New Orleans District Attorney's office has been preparing the case for prosecution. A grand jury was impaneled in March and had been hearing witness testimony for the past 4 months. A few months ago, the two nurses were granted immunity in the case, presumably in exchange for testimony. This was widely assumed to be a move on the part of prosecutors to isolate Dr. Pou. Now that the grand jury has chosen not to indict, all charges are dropped and the case is essentially dead.
In my view, the grand jury did the right thing -- the only thing it could do given the weakness of the case. No one saw the fatal doses given other than the accused individuals, and there was no clear evidence in the medical record that any medication was given with the intent to kill. The original affidavit quotes several witnesses who said Dr. Pou indicated that she intended to deliver fatal doses of pain medication to patients, but Dr. Pou has vehemently denied she has said any such thing. Although the witnesses had some credibility, their testimony amounts to hearsay. Dr. Pou could have said any number of things in advance, but saying something in advance only suggests intention, not proof that the action was carried out.
But the real weakness of the case was the lack of physical evidence. The substance of the charges were based on autopsy reports, but the bodies of the patients were not removed from the hospital for three weeks after the storm. In those three weeks the bodies decomposed significantly, and there is no way under these conditions that toxicology reports could prove that the medication dose was high enough to have been intentionally fatal. Toxicology reports can be difficult to interpret mere hours after an overdose. A lapse of weeks made this impossible. Frank Minyard, the Orleans Parish Coroner, underscored this problem when he issued a report in February 2007 stating that the cause of death of all four patients, based on autopsy evidence, was "indeterminate."
The outcome of this case has not satisfied everyone. After all, four patients died under heavy sedation shortly after their doctor suggested to several witnesses that she intended to euthanize them. This temporal association is hard to ignore. On the other hand, it is undisputed that all four patients were very near death, and could easily have died from natural processes.
It is very possible that the morphine in the patients' blood was administered for therapeutic reasons. Pain relief is a necessary and very important part of medical care. Commonly accepted medical guidelines clearly permit doctors to use large amounts of pain medication for dying patients when necessary, even in quantities that could hasten the dying process. Intent is the key. If the doctor is giving the medication to relieve pain, then giving painkilllers is ethical; if the intent is to kill, then it is not.
If this assertion sounds foreign, consider a more familiar example. It is permissible for a doctor to give highly toxic chemotherapy to a cancer patient even though the treatment could kill. As with pain medication, the act is ethical as long as the intent is to help the patient. If the treatment, which is intended to help, inadvertently kills the patient, this does not mean the doctor has done anything wrong.
All that being said, I have some sympathy with the people who feel that dropping the case for lack of evidence is not as satisfying as proving it one way or another. I don't want to know that wrongdoing cannot be proven; I want to know that wrongdoing did not happen. I also wholeheartedly agree that even given the extremity of the situation (100 degree heat, no running water, no electricity, no antibiotics, no IV fluids, 10 feet of standing water in the street, and no help coming) it remains illegal to kill patients, even if the intent is to relieve suffering. A law does not become less of a law because conditions make it harder to obey. I don't get to kill someone just because I am seriously aggrieved and I don't get to steal simply because I am broke. It is true that in extreme situations physical and emotional pressures distort judgment, and courts of law must account for this. In the event of a guilty verdict, a judge should weigh the matters of distorted judgment and extreme situations before sentencing. But before that time, only the facts should rule. It is regrettable that there are not enough facts available to allow the facts to rule.
I want to make a final point. This case is a very poor example of a euthanasia, and has no place in ethical discussions about euthanasia. Right-to-die activists who think the Anna Pou case is a milestone for their cause need to rethink their positions. Personally, I am strongly opposed to euthanasia in any form, but, for or against, if we are going to argue about it we need to avoid sloppiness. The term euthanasia, as it is used in medical ethics, refers to the voluntary killing of a patient for the purposes of alleviating pain. The operative word here is voluntary. Even right-to-die advocates (at least the sensible ones) would agree that a patient should never be euthanized against his will. In countries like the Netherlands where euthanasia is practiced, a patient who requests euthanasia goes through a careful multi-step process to determine if he is sound of mind, has a terminal condition, and truly wishes to die. Only if all three of these criteria are strictly met is the final act carried out.
Even in the case of Dr. Jack Kevorkian, there was never any question that the patients who died were willing to die, asked to die, and assisted in carrying out the administration of the fatal dose.
In the Pou case, there is no documentation that the patients wished to die. No proof that they were of sound mind. In fact, given the circumstances, at an abandoned hospital without fresh food or running water, without medication, in 100 degree heat, it is unlikely that any of the patients were fit to consent to euthanasia.
The State Attorney General maintained that Dr. Pou murdered the patients, not that she euthanized them. Dr. Pou has always maintained that she did not kill the patients, not that she did and should be excused from doing so. Such a defense would not work under Louisiana law anyway, which prohibits physician-assisted suicide just as well as murder. As far as I know, Dr. Pou is not nor ever has been an advocate of euthanasia.
It would be lunacy for right-to-die advocates to use Dr. Pou's case as an object lesson in their cause, any more than it would make sense for death penalty advocates to use a lynching case as an example of a justified death sentence. If right-to-die advocates consider Dr. Pou's case meaningful than they are a dangerous lot indeed. Extreme circumstances don't justify relaxing the rules, and there is no reasonable person who believes that people should be euthanized without asking them first. If there is anything that supersedes the duty of the doctor to relieve pain, it is the right of the patient to self-determination.
One final question the reader may ask: Do I think Dr. Pou did it?
I don't know Dr. Pou personally, but I do find it difficult to believe that a doctor educated in the United States, knowing the law as all doctors do, would have tried to do something like this. It would have been much easier for her to simply sedate the patients with the aim to relieve pain. She had no obligation to kill them, and, in fact, with sufficient morphine on hand to keep pain at bay, no need to kill them either. She could have managed them to to the point of natural death without having to make such a terrible decision. So on balance, I would have to say probably not.
Of course, only Dr. Pou knows the truth. The rest of us are left, like the grand jury, with nothing more than insufficient evidence.
This morning when I came into my office, I found a letter on my desk soliciting a political contribution for Charles Foti's opponent in the upcoming State Attorney General election. (Charles Foti is responsible for bringing charges against Anna Pou.) The letter is signed by three medical doctors, and opens this way:
To say that Charles Foti is over his head is kind. To say that he has blundered and stumbled from one disaster to another and failed to take the initiative in protecting our citizens is much more accurate.
The doctors then go on to tell what is really on their minds:
Most illustrative of his ego-centered abuse of the power of his office for personal political gain was his handling of the issues at Memorial Hospital after Hurricane Katrina . . . .
Remember, this time, this election is truly about protecting Louisiana -- from Charles Foti.
It is an understatement to say the doctors in Louisiana are furious about this case.
Foti's behavior in the Pou case was inexcusably bad. He called a press conference to announce the charges -- something the Attorney General almost never does -- and continued to call press conferences each time he made a move in the case. He arrested Pou in the middle of the night instead of allowing her to voluntarily surrender -- and notified the media so they could film it. He repeatedly called the case a murder case, even though the decision to charge Pou with murder was not his, but that of the New Orleans DA's office. And he failed to disclose to the press a serious conflict of interest in this case. Since Anna Pou is a state university employee, her legal defense comes from the state -- the AG office. In other words, Foti was both Pou's accuser and, in theory, her defense attorney.
Needless to say, Foti is not a popular figure in Louisiana these days. I think Foti's hijinks made it easier for the public to sympathize with Dr. Pou. Foti came off as the bad guy, and Dr. Pou as the innocent. I don't know that it would have made a difference in the final outcome, but if Foti had simply filed his report and kept his mouth shut more people would have examined the case on its merits. Instead, once the labels were applied, Dr. Pou was tried and exonerated in the public mind.
Sometimes, rather than speaking for the facts, it is better to let the facts speak for themselves.