Five Days at Memorial: Life and Death in a Storm-Ravaged Hospital (64 page)

Doctor and nurse mass murderers of more recent ilk, some who have killed many dozens of patients before being stopped—Howard Shipman, Michael Swango, and Arnfinn Nesset among them—have similarly targeted the very sick and elderly, as well as those unable to communicate and neglected by their families. On arrest, some have invoked similar justifications, claiming to have euthanized suffering patients to put them out of their misery.

Psychiatrists have profiled these killers, identifying them as grandiose narcissists who tend to bristle at criticism, or to see themselves as saviors or gods unable to do wrong, or who get a thrill out of ending suffering and deciding when somebody should die.

Decades after World War II, arguments for legalizing voluntary euthanasia again gained traction in several European countries. In 1973,
a Dutch court ruled that euthanasia and physician-assisted suicide (whereby a doctor provides medicine that a person can take to commit suicide) were not punishable under certain circumstances, and imposed only a symbolic, suspended sentence. These acts were decriminalized in the 1980s and formally legalized by a vote of the Dutch parliament in 2001. Similar laws passed in Belgium in 2002 and Luxembourg in 2009. In Belgium,
one pharmacy chain made home euthanasia kits available for about €45, complete with the sedative drug used at Memorial, midazolam; along with the anesthetic drug sodium thiopental (Pentothal), which Dr. Ewing Cook used at Memorial to euthanize pets; and a paralyzing agent that stops breathing. The kits were intended for use by doctors
in patients’ homes. Doctors could prescribe them for specific patients who had signed a request for euthanasia at least a month in advance, after having discussed it with two independent doctors. The Dutch and Belgian laws did not require a terminal medical condition for a euthanasia request to be granted.

In each country, legality rested on different guidelines, which at first appeared to offer important safeguards. For example, in the Netherlands, euthanasia was supposed to be limited to people who made repeated requests to die and were experiencing, as certified by two doctors, unbearable suffering without the possibility of improvement. However, a study of the program showed these rules were
not always followed, and a small proportion of people were killed each year without having made an explicit request. There were few prosecutions in these cases. Were the Dutch merely more honest about their practices? Or did the legalization of one form of euthanasia bleed, inexorably, into the other, darker kind?

While it was a problem that some ill or injured people had no option of participating in the program because they could not speak for themselves and had not let their wishes be known, involuntary, active euthanasia was, at the time Caplan made his review of the LifeCare deaths, not legal anywhere. Taking the life of someone who had not expressed the wish to die would contravene the principle that people have a right to decide what doctors can do to their bodies. It would also put the physician or other decision maker in the position of judging what quality of life is acceptable to another human being. The possibility of abuse (for example, insurance payouts for family members) was too great.

However, while not legal, in practice what was considered acceptable in the Netherlands had expanded to include this type of active euthanasia. The 2002
Groningen Protocol for Euthanasia in Newborns, devised by leading Dutch medical authorities, outlined conditions for taking the lives of very ill or brain-damaged babies with the substituted consent of their parents. While this was not explicitly legal, doctors who followed
the guidelines were not prosecuted. Babies—albeit sick, disabled babies, but babies nonetheless—were being euthanized openly again in Europe.

The Netherlands’s premier advocacy and counseling organization for euthanasia and choice in dying, the NVVE, promoted social acceptance of euthanasia under conditions that were not yet legal in the hopes that they someday would be. People, particularly the elderly, who were reasonably healthy, but who were becoming an increasingly dependent burden on their families, had a profoundly diminished “quality of life,” and felt “after many years on this earth,
life has been completed,” should be entitled to aid in dying, according to the group. So, too, should people with dementia and difficult-to-treat chronic psychiatric illnesses. A Dutch court approved of euthanasia for a woman with advanced dementia who repeatedly communicated her wish to die.

In contrast with the European countries that formally legalized euthanasia in the first decade of the twenty-first century, in the United States, intentionally ending a life to relieve suffering remained illegal. The American Medical Association’s influential
Code of Medical Ethics
continued to prohibit active euthanasia.

The debate in the United States focused instead on what some call passive euthanasia, the withdrawal of life support and withholding of medical treatment. In 1975, not long after the widespread adoption of high-tech intensive care medicine and only a decade and a half after the trial of Nazi leader Adolf Eichmann in Jerusalem had focused attention on the horrors of mass euthanasia, the parents of a comatose young woman,
Karen Ann Quinlan, asked doctors in New Jersey to remove her from a ventilator. She had stopped breathing and suffered brain damage after taking the sedative Valium and drinking several gin and tonics with friends. She was not expected ever to recover, and friends and family recalled her having said she would never want to be kept alive that way. Doctors refused to discontinue life support, but the New Jersey Supreme Court ruled that this could be done on the basis of Quinlan’s
constitutional rights to privacy and liberty, as exercised by her father. The respirator was turned off.

Quinlan breathed on her own and survived nine more years, but her case proved a landmark. Subsequently, state courts ruled in other cases that the right to refuse treatment flowed from established rights to privacy, liberty, self-determination, and informed consent. The right to refuse treatment had already been established, in the case of some Jehovah’s Witnesses, on the basis of freedom of religion.

The climate of American medicine had changed since the
Clarence Herbert case Dr. Baltz and his colleagues had discussed at Memorial in the 1980s. Doctors treating the comatose Mr. Herbert had been charged with murder for withdrawing life support and intravenous fluids, even as they contended that this accorded with his prior wishes and the requests of his family members, who did not want him on “machines.” A California appeals court decided the case should be dismissed because the burdens to Mr. Herbert of continued treatment, although minimal, outweighed its benefits to him, as his prognosis was “virtually hopeless for any significant improvement in condition.” Stopping treatment, the court ruled, taking its lead from a presidential ethics commission, was indistinct from never having started it and was not in this case equivalent to active euthanasia. Shutting off an ordinary IV, the court likewise decided, was no different from shutting off a ventilator, as long as the treatment was legitimately refused by a patient or surrogate decision maker.

The case set a binding precedent only in part of California, but these concepts had gained wide acceptance by the time of Katrina. The US Supreme Court in 1990 considered the case of thirty-three-year-old Nancy Cruzan, severely brain damaged in a Missouri car accident years earlier, whose parents sought to remove the feeding tube that nourished her. The Court agreed by a five-to-four margin that the right to liberty included the right to refuse life-sustaining medical care and die. However, the ruling allowed states to require clear and convincing proof of the patient’s wishes to discontinue care, not just what was believed to be in the
patient’s best interest. A Missouri judge allowed Cruzan’s nutrition to be discontinued after acquaintances gave evidence this would have been her wish. The case led to increased adoption of living wills and advance directives that documented treatment preferences prior to a catastrophe.

The next battleground was assisted suicide: whether it should be legal for doctors to prescribe drugs certain patients could take to end their lives. Having the option of a painless death at a time of one’s choosing could ease the senses of terror, loss of control, and suffering experienced by people with grave progressive diseases such as metastatic cancer, advocates argued. They questioned why only people who relied on life support or medical treatments that could be withdrawn should have the freedom to choose a dignified death with medical assistance.

Opponents countered that removing life support allows nature to take its course whereas assisting suicide is intended to shorten life, long considered unethical and akin to active euthanasia. Hundreds of years after sorcery’s amputation from medicine, did Americans want doctors again to conjure death? Could the societal embrace of suicide for terminally ill or disabled people lead members of those groups to feel more worthless, devalued, and abandoned? Would it discount the meaning to be had from family reconnections, insights, and various forms of spiritual enrichment and personal growth that may accompany death’s approach?

Physician-assisted suicide became legal in Oregon in the 1990s (and later in Washington and Vermont, and was deemed by Montana’s state supreme court as not legally forbidden there), but at the time of Caplan’s review, most American doctors continued to reject the practice as unethical. To address the very real issues of pain and suffering in the last stages of deadly illnesses, hospitals and doctors increasingly offered palliative and hospice care programs. These employed an array of medical treatments, counseling, and support to address symptoms and keep patients comfortable rather than to attempt to cure them. Hospice was considered a philosophy and a movement to care for the terminally ill
and their families, which took root in the United States in the 1970s after being developed in Britain. Because patients had to agree to forgo treatments aimed at extending their lives, caring for them was thought to be cheaper, too, and Medicare covered hospice care beginning in 1982.

For the minority of patients whose suffering failed to yield even to the most determined efforts to treat it, another strategy had emerged: terminal sedation. The idea was to render patients unconscious until death. A proposal that would have explicitly legalized the practice upon request of “mortally injured and diseased persons” had been made and voted down by the
Ohio legislature in the first decade of the 1900s, but interest in it surged again in the 1990s.

Terminal sedation seemingly fulfilled the goal of relieving terminally ill patients’ discomfort without intending to kill them, but it did not do away with all ethical bugbears. A sedated person was unable to eat and drink, which would eventually lead to death, and unless the drugs were withdrawn and the patient awakened, it would be impossible to know whether the symptoms had abated. Still, in a 1997 decision that there was no constitutional right to physician-assisted suicide, the US Supreme Court supported the legality of terminal sedation. While Dr. Minyard deliberated about Memorial, the American Medical Association’s top ethics body was considering a proposal to endorse terminal sedation as a last resort under the more palatable term “palliative sedation.” (It later backed the practice in 2008.)

Some observers suggested the Memorial health professionals, if indicted, could claim palliative sedation as their defense. However, Pou’s attorney, Rick Simmons, had for the time being decided not to have Pou publicly wade into a discussion of end-of-life care issues. Louisiana, he felt, was too fundamentally Christian for the kind of discussion that would entail. It was too risky, too hot a topic.

Simmons had been frustrated to find no useful guidelines for comfort care in disasters from the American Medical Association. “I’m defending a doctor here,” he’d told leaders of the organization. “I don’t see any
standards. There’s nothing there for me to go to a courtroom and say she followed these standards.” The AMA did have guidelines on palliative care, but they called for consultation with family members and documentation of the medications given, neither of which Pou had done. “Why is it that you can’t do something,” Simmons asked, “that addresses the situation when you cannot document the file, when you cannot talk with the relatives?”

Ethicist Arthur Caplan concluded that what had happened at Memorial did not fit within the purview of palliative sedation precisely because of these guidelines. If the women had intended solely to ease pain and discomfort on Thursday, September 1, then he would expect at least some documentation that the medicines were given gradually and with care. The fact that doctors, including Pou, had recorded some medication orders by hand throughout the disaster before midday on Thursday meant that, while difficult, this was not impossible. Even war hospitals kept records. The apparently rapid introduction of large amounts of drugs known to be lethal, without any prior use in these patients, concerned him. It also disturbed him that at least some of the patients did not appear to have been terminally ill. No effort seemed to have been made to consult with the family members who were present at Memorial.

He was unconvinced that the sole option to relieve any pain or suffering was to kill.

Caplan had told CNN viewers that judges and juries rarely convicted physicians and non-physicians for murder when they believed the motive for hastening a death was compassionate.
Studies in 1973 and in 1987 of twenty cases of alleged euthanasia found that only three resulted in prison sentences, and those were marked by unusual circumstances including that the victim may not have been terminally ill and suffering. Similarly, juries have acquitted—sometimes on technicalities—physicians who have intentionally killed patients with air emboli, potassium chloride lethal injections, and expired Amytal Sodium sedatives. One of the few doctors to see jail time was Jack Kevorkian. He escaped conviction
for first-degree murder several times in the 1990s, even as he hooked up more than 100 suicidal patients to his death machines. Kevorkian finally goaded a judge to send him to prison for second-degree murder after he videotaped himself injecting drugs into Lou Gehrig’s disease patient Thomas Youk in 1998 to put him to sleep, paralyze his muscles, and stop his heart, killing him. Previously the patients themselves, not Kevorkian, would press a button or handle on his machines to release a sequence of deadly drugs or carbon monoxide gas. Kevorkian later said he wanted to go to jail to make a point and shift public debate from assisted suicide to euthanasia.