The criminalization of treating end of life patients with risky pain medication and the role of the extreme emergency situation

Fordham Law Review

Volumn 76, Issue 1, 2007, Pages 203-234

  Castellano, Gina ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

NARCOTIC ANALGESIC AGENT;

ARTICLE; ASSISTED SUICIDE; BEHAVIOR; CRIME; DISASTER; DISASTER PLANNING; EMERGENCY HEALTH SERVICE; ETHICS; EUTHANASIA; HEALTH SERVICE; HUMAN; LEGAL ASPECT; LEGAL LIABILITY; MEDICAL ETHICS; METHODOLOGY; ORGANIZATION AND MANAGEMENT; PAIN; PALLIATIVE THERAPY; PHYSICIAN; PSYCHOLOGICAL ASPECT; TERMINAL CARE; TREATMENT OUTCOME; UNITED STATES;

ANALGESICS, OPIOID; CRIME; DISASTER PLANNING; DOUBLE EFFECT; EMERGENCY MEDICAL SERVICES; ETHICS, MEDICAL; EUTHANASIA; HEALTH SERVICES NEEDS AND DEMAND; HUMANS; INTENTION; LIABILITY, LEGAL; MEDICAL FUTILITY; NATURAL DISASTERS; PAIN; PALLIATIVE CARE; PHYSICIANS; SOUTHEASTERN UNITED STATES; SUICIDE, ASSISTED; TERMINAL CARE;

EID: 36049032567     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (237)

1. 60 Minutes: Was It Murder? Doctor, Two Nurses Were Accused of Murdering Patients (CBS television broadcast Sept. 24, 2006) [hereinafter Was It Murder?], available at http://www.cbsnews.com/stories/2006/09/21/ 60minutes/printable2030603.shtml (quoting Dr. Anna Pou) (internal quotations omitted).
2. See id.
3. See id. Dr. Pou remained with her patients even though she was offered the chance to leave. Id.
4. Affidavit of Virginia B. Rider at 1 (July 2006), available at www.nola.com/katrina/pdf/072006_nolacharges.pdf.
5. See Was It Murder?, supra note 1.
6. Christopher Drew & Shaila Dewan, Louisiana Doctor Said to Have Faced Chaos, N.Y. Times, July 20, 2006, at A18.
7. See id.
8. See Adam Nossiter & Shaila Dewan, Patient Deaths in New Orleans Bring Arrests, N.Y. Times, July 19, 2006, at A1.
9. See Affidavit of Virginia B. Rider, supra note 4; see also National News, Wash. Post, Nov. 21, 2006, at A5 (describing the district judge as being "frustrated by the time he has spent on this case" and telling prosecutors that the doctor and nurses "should be charged or exonerated").
10. See Denise Grady, Medical and Ethical Questions Raised on Deaths of Critically III Patients, N. Y. Times, July 20, 2006, at A18.
11. Affidavit of Virginia B. Rider, supra note 4, at 1.
12. See id.
13. Id.
14. See Nossiter & Dewan, supra note 8.
15. See Was It Murder?, supra note 1. Dr. Pou continued, "No, I did not murder those patients. . . . I've spent my entire life taking care of patients. I have no history of doing anything other than good for my patients. I do the best of my ability. Why would I suddenly start murdering people? This doesn't make sense." Id.
16. Ben deBoisblanc, It Was Heroism, Not Homicide, During Katrina, Time.com, July 25, 2006, http://www.time.com/time/nation/printout/0,8816, 1218776,00.html. Dr. deBoisblanc is a critical care expert who cared for fifty critically ill patients for five days during the hurricane. See id.
17. Drew & Dewan, supra note 6. It can be inferred that this was not an option for the 380-pound paralyzed male patient.
18. Adam Nossiter, Grand Jury Won't Indict Doctor in Hurricane Deaths, N.Y. Times, July 25, 2007, at A10; see also Mary Foster, Prosecutor Drops Case Against 2 Nurses in Four Post-Katrina Deaths, Wash. Post, July 4, 2007, at A7. The charges against nurses Lori Budo and Cheri Landry were dropped earlier in July 2007. Jim Avila & Mary Kate Burke, Katrina Doctor Not a Murderer, Grand Jury Says, ABC News, July 24, 2007, http://abcnews.go.com/ TheLaw/story?id=3409526.
19. See, e.g., Vacco v. Quill, 521 U.S. 793, 801-02 (1997).
20. Black's Law Dictionary 825-26 (8th ed. 2004).
21. See La. Rev. Stat. Ann. § 14:30.1 (2007).
22. La. Rev. Stat. Ann. § 14:10. This Note relies on the Louisiana definition of intent.
23. See infra Part II.B.1.
24. See Edward C. Lyons, In Incognito - The Principle of Double Effect in American Constitutional Law, 57 FLa. L. Rev. 469, 471 (2005); Susan Nuccetelli & Gary Seay, Relieving Pain and Foreseeing Death: A Paradox About Accountability and Blame, 28 J. L. Med. & Ethics 19, 20 (2000).
25. See Thomas A. Preston, Physician Involvement in Life-Ending Practices, 18 Seattle U. L. Rev. 531, 539 (1995).
26. See Norman L. Cantor, On Hastening Death Without Violating Legal and Moral Prohibitions, 37 Loy. U. Chi. L.J. 407, 423 (2006).
27. Code of Ethics E-2.21 (Am. Med. Ass'n 2005), available at http://www.amaassn.org/ama/pub/category/8458.html.
28. Stephen W. Smith, Evidence for the Practical Slippery Slope in the Debate on Physician-Assisted Suicide and Euthanasia, 13 Med. L. Rev. 17, 23 (2005).
29. Id. at 23-24.
30. Id. at 24.
31. Michael E. Clark, Oregon 's Death with Dignity Act and Alleged Patient Euthanasia After Hurricane Katrina - The Government 's Role, Health Lawyer, Feb. 2006, at 1, 5 (2006). In 1994, Oregon's Death with Dignity Act (ODWDA) legalized assisted suicide. See infra Part I.B.
32. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 732-33 (1997) ("[T]he State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. . . . Thus, it turns out that what is couched as a limited right to 'physician-assisted suicide' is likely, in effect, a much broader license, which could prove extremely difficult to police and contain.").
33. Code of Ethics E-2.211 (Am. Med. Ass'n 2005), available at http://www.amaassn.org/ama/pub/category/8459.html.
34. See infra notes 41-49 and accompanying text; see also Code of Ethics E-2.211 (Am. Med. Ass'n) ("Physician-assisted suicide is fundamentally incompatible with the physician's role as healer, would be difficult or impossible to control, and would pose serious societal risks.").
35. Washington, 521 U.S. at 728 ("The history of the law's treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause.").
36. See id. at 728. "[T]he asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause." Id. at 735; see also Norman L. Cantor & George C. Thomas III, The Legal Bounds of Physician Conduct Hastening Death, 48 Buff. E. Rev. 83, 86 (2000) ("While the Supreme Court ruled that continued punishment of assistance to suicide withstands federal constitutional challenge, the Court by no means ended debate about the precise legal bounds of diverse techniques for facilitating death or about the soundness of current legal distinctions.").
37. 521 U.S. 793 (1997).
38. See id. at 798.
39. Id. at 800 ("Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide.").
40. See id.
41. See Gonzales v. Oregon, 546 U.S. 243, 249 (2006) ("ODWDA, which survived a 1997 ballot measure seeking its repeal, exempts from civil or criminal liability state-licensed physicians who, in compliance with the specific safeguards in ODWDA, dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient.").
42. Or. Rev. Stat. Ann. §§ 127.800-.995 (West 2003).
43. See Gonzales, 546 U.S. at 250-51.
44. See Or. Rev. Stat. Ann. §§ 127.800(12), 127.805(1).
45. See id.
46. See Gonzales, 546 U.S. at 252.
47. Id. at 253-54.
48. Id. at 275.
49. See id.
50. See Smith, supra note 28, at 24. Some people go even further and argue that the acceptance of physician-assisted suicide will result in "Nazi-style death camps." Id. at 23.
51. See id. at 43-44.
52. See Oregon Death with Dignity Act, http://www.dhs.state.or.us/ publichealth/chs/pas/pas.cfm (last visited Sept. 4, 2006).
53. See Smith, supra note 28, at 44.
54. See id.
55. Cantor & Thomas, supra note 36, at 138.
56. See Cantor, supra note 26, at 418-20.
57. Id. at 418.
58. Id. at 419.
59. Id. at 420.
60. Id. ("The underlying disease, the sedation, and dehydration accompanying cessation of ANH [artificial nutrition and hydration] are all candidates for cause of death.").
61. See, e.g., Rob McStay, Terminal Sedation: Palliative Care for Intractable Pain, Post Glucksberg and Quill, 29 Am. J.L. & Med. 45, 52 (2003) (arguing that in Vacco v. Quill the U.S. Supreme Court laid the "legal groundwork" for terminal sedation).
62. Cantor, supra note 26, at 421.
63. See Norman L. Cantor, Twenty-Five Years After Quinlan: A Review of the Jurisprudence of Death and Dying, 29 J.L. Med. & Ethics 182, 186 (2001).
64. See Ann Alpers, Criminal Act or Palliative Care? Prosecutions Involving the Care of the Dying, 26 J.L. Med. & Ethics 308, 310 (1998).
65. See id.
66. See id.; Howard Brody, Physician-Assisted Suicide in the Courts: Moral Equivalence, Double Effect, and Clinical Practice, in Law at the End of Life: The Supreme Court and Assisted Suicide 101, 106 (Carl E. Schneider ed., 2000) (noting that "the dosage level at which one can achieve pain relief and the level at which respiratory depression might occur are much farther apart than traditionally has been appreciated").
67. See Alpers, supra note 64, at 310.
68. Id.
69. Cantor, supra note 63, at 186.
70. Denise Grady, The Fuzzy Gray Place in the Killing Zone, N.Y. Times, Aug. 13, 2006, at WK3.
71. See supra notes 21-22 and accompanying text.
72. Cantor & Thomas, supra note 36, at 110; see also Lois Shepherd, Assuming Responsibility, 41 Wake Forest L. Rev. 445, 446 (2006) (arguing that responsibilities to the suffering are "primitively" understood and need to be further explored and taken more seriously).
73. See, e.g., Cantor & Thomas, supra note 36, at 110.
74. See, e.g., Phebe Saunders Haugen, Pain Relief for the Dying: The Unwelcome Intervention of the Criminal Law, 23 Wm. Mitchell L. Rev. 325, 363 (1997).
75. See supra Part I.A.
76. See Vacco v. Quill, 521 U.S. 793, 801-02 (1997); Washington v. Glucksberg, 521 U.S. 702, 737-38 (1997) (O'Connor, J., concurring).
77. See Nossiter & Dewan, supra note 8.
78. See supra notes 41-49 and accompanying text.
79. See, e.g., State v. Naramore, 965 P.2d 211, 213 (Kan. Ct. App. 1998).
80. See supra notes 21-22 and accompanying text.
81. See supra notes 21-22 and accompanying text.
82. See supra notes 21-22 and accompanying text. It should also be noted that "[a]lthough jurisdictions may differ in the details, all states criminalize homicidal behavior and, depending on a prosecutor's decision and the facts of the case, a physician may be criminally liable for any act that grossly deviates from the standard of care and results in a patient's death." Alpers, supra note 64, at 310.
83. See supra notes 31-50 and accompanying text.
84. See id.
85. See Cantor & Thomas, supra note 36, at 86.
86. See id.
87. See supra text accompanying note 14.
88. See, e.g., Haugen, supra note 74, at 363.
89. It should be noted that some commentators considered Dr. Pou's actions mercy killing. See, e.g., Dr. Anna Pou-hero or murderer?, http://nhsblogdoc.blogspot.com/2006/09/dr-anna-pou-hero-or-murderer.html (Sept. 26, 2006, 16:52 GMT). Mercy killing is prohibited in the United States, based on the notion that "[a] ban on mercy killing is arguably a reminder of social veneration for life, even though compassion for a suffering, dying person may tempt a health care provider or other observer to relieve that suffering by any means possible, especially when the patient is requesting such relief." Cantor, supra note 26, at 409.
90. Dr. Timothy E. Quill, Risk Taking by Physicians in Legally Gray Areas, 57 Alb. L. Rev. 693, 694 (1994); see also Washington v. Glucksberg, 521 U.S. 702, 748 (1997) (Stevens, J., concurring) ("[F]or some patients, it would be a physician's refusal to dispense medication to ease their suffering and make their death tolerable and dignified that would be inconsistent with the [physician's] healing role.").
91. See Haugen, supra note 74, at 363. In reference to the use of morphine, Haugen argues, "[H]ow best, how much, and when to administer [it] are peculiarly medical decisions, with which the criminal law should not interfere, except in the most extraordinary of cases." Id. at 364.
92. Id. at 363.
93. President's Comm'n for the Study of Ethical Problems in Med. and Biomedical and Behavioral Research, Deciding to Forego Life-Sustaining Treatments: Ethical, Medical and Legal Issues in Treatment Decisions 79 (1983).
94. See Preston, supra note 25, at 540.
95. Id. Professor Preston suggests that a central problem with the relationships between physicians and the death of their patients is the language used to describe the role of the physician. Id. at 543. Physicians deny association with their patients' death because they do not want to come close to the word "kill," and as a result the proper "linguistic expressions" do not exist to describe the role of physicians in end of life treatment. Id.
96. The only resources available at this time are the general arguments that physicians made surrounding the Dr. Pou case.
97. Press Release, Floyd A. Buras, President, La. State Med. Soc'y (Sept. 27, 2006), available at http://www.lsms.org/Newsroom/ LSMS%20Stmt%20on%20Anna%20Pou.pdf.
98. deBoisblanc, supra note 16. Dr. Steven Miles, a professor of Medicine at the University of Minnesota and expert on the care of terminal patients expressed that he was '"fundamentally unconvinced of the framing of the story . . . [and] not inclined to believe this is a euthanasia scenario or a physician-assisted suicide scenario.'" Grady, supra note 10. The Director of the Center for Bioethics at the University of Minnesota, Jeffrey Kahn, expressed his belief that '"[i]t's hard . . . to see the wisdom of prosecuting in a case like this . . . . This is talking about being in extremis, in the worst possible conditions.'" Id.
99. deBoisblanc, supra note 16 ("In the wake of Katrina if a patient had died in a hospital without evidence of having received comfort care, I would question that treatment.").
100. See Stephen J. Ziegler & Nicholas P. Lovrich, Jr., Pain Relief, Prescription Drugs, and Prosecution: A Four-State Survey of Chief Prosecutors, 31 J.L. Med. & Ethics 75 (2003).
101. See Beth Packman Weinman, Freedom from Pain: Establishing a Constitutional Right to Pain Relief, 24 J. Legal Med. 495, 503-04 (2003); see also Amy J. Dilcher, Damned If They Do, Damned If They Don't: The Need for a Comprehensive Public Policy to Address the Inadequate Management of Pain, 13 Annals Health L. 81, 81-82 (2004).
102. See Ziegler & Lovrich, supra note 100, at 76 ("A dosage that works for one patient suffering from chronic pain or for a patient near the end of life may be wholly inappropriate for another, particularly when considering the length of treatment, the patient's underlying illness or condition, and the pharmacokinetics of opioids."); see also Dilcher, supra note 101, at 116 ("Clinicians suggest that there is no maximal or optimal quantity of an opioid analgesic drug for either chronic or cancer pain. The appropriate dose is one that relieves the patient's pain without causing adverse side effects. In some instances, patients with severe cancer pain may require 1200 to 1800 milligrams of oral morphine per day, while other cancer patients may require a greater dosage of intravenous morphine at 1000 to 4500 milligrams per hour." (citations omitted)).
103. See Weinman, supra note 101, at 508; see also Dilcher, supra note 101, at 85-86; Jeffrey Wishik, Chronic Pain: Medical and Legal Aspects, R.I. Bus. J., Nov.-Dec. 2004, at 23, 40 ("Fear of regulatory, disciplinary, and even criminal sanctions for over prescribing opioids is pervasive among physicians."). For more on the under treatment of pain in America, see Ben A. Rich, The Politics of Pain: Rhetoric or Reform?, 8 DePaul J. Health Care L. 519 (2005). For an analysis of under treatment by nurses, see Marybeth Scanlon, Providing End-of-Life Care in Connecticut: Should Nurses Fear Liability?, 5 Quinnipiac Health L. J. 35, 40 43 (2001).
104. See Haugen, supra note 74, at 364.
105. Id. at 342. "To allow a patient to experience unbearable pain or suffering is an unethical medical practice, and physicians should not allow exaggerated fears of legal action to deter them from providing dying patients with aggressive, intensive palliative care." Id. at 363. The notable cases discussed in Part II.B.2.b may prove that physicians' fears are well justified.
106. Sandra H. Johnson, Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act, 24 J.L. Med. & Ethics 319, 320 (1996).
107. See Weinman, supra note 101, at 510.
108. See supra note 15 and accompanying text.
109. See supra note 1 and accompanying text. A comparison should be made with the Capute case analyzed in Part II.B.2.b.
110. Drew & Dewan, supra note 6.
111. See supra Part II.A.1 b.
112. See Cantor, supra note 26, at 427.
113. See Vacco v. Quill, 521 U.S. 793, 801-02 (1997).
114. See supra notes 21-22 and accompanying text.
115. See infra note 121 and accompanying text.
116. See, e.g., Vacco, 521 U.S. at 801-02.
117. See Lyons, supra note 24, at 471 (citing Philip E. Devine, Principle of Double Effect, in The Cambridge Dictionary of Philosophy 44, 44-45 (Robert Audi ed., 1995)).
118. Id.
119. See Nuccetelli & Seay, supra note 24, at 20. For a more theoretical explanation of the four elements, see Lyons, supra note 24, at 482 (requiring that the act be "ethically neutral, if not praiseworthy").
120. The standard example is when a pilot drops a bomb on a village to destroy a munitions factory. See Richard S. Kay, Causing Death for Compassionate Reasons in American Law, 54 Am. J. Comp. L. 693, 712 (2006). The pilot's intention is to shorten the war and save lives. Id. It is a foreseeable consequence that innocent civilians in the village will die as a result of his actions, but the deaths are morally justifiable under the doctrine of double effect. Id.
121. Brody, supra note 66, at 105.
122. Id.
123. Daniel P. Sulmasy, Commentary, Double Effect - Intention Is the Solution, Not the Problem, 28 J.L. Med. & Ethics 26, 28 (2000).
124. See Kay, supra note 120, at 694.
125. See Alpers, supra note 64, at 319.
126. See, e.g., Vacco v. Quill, 521 U.S. 793, 801-02 (1997).
127. See Alpers, supra note 64, at 319.
128. McStay, supra note 61, at 54.
129. See id.
130. See id.; see also supra Part II.A.2.
131. See McStay, supra note 61, at 54.
132. Vacco v. Quill, 521 U.S. 793, 801-02 (1997) (comparing a physician who withdraws life-sustaining treatment or provides aggressive pain medication with a doctor who assists a suicide and thus intends death).
133. See id. at 802-03 ("Put differently, the law distinguishes actions taken 'because of a given end from actions taken 'in spite of their unintended but foreseen consequences.").
134. See, e.g., Rebecca Dresser, The Supreme Court and End-of-Life Care: Principled Distinctions or Slippery Slope?, in Law at the End of Life: The Supreme Court and Assisted Suicide, supra note 66, at 83, 88.
135. See id.
136. Washington v. Glucksberg, 521 U.S. 702, 736, 737-38 (1997) (O'Connor, J., concurring). Justice Sandra Day O'Connor also appears to subscribe to the doctrine of double effect, noting that patients in both Washington and New York can receive palliative care even when such care "hastens death." See Michael P. Allen, Justice O 'Connor and the "Right to Die": Constitutional Promises Unfulfilled, 14 Wm. & Mary Bill Rts. J. 821, 828 (2006) ("At the most basic level, Justice O'Connor's opinion can be cited for the proposition that there may be a constitutional due process right to palliative care (i.e., pain management) at the end of life. . . . In Glucksberg, pain management leading even to death might be a constitutionally protected right.").
137. Glucksberg, 521 U.S. at 789 (Ginsburg, J., concurring); id. at 789 (Breyer, J., concurring).
138. See Dresser, supra note 134, at 83 (including both pain medication that could hasten death and terminal sedation).
139. See id.
140. See, e.g., Glucksberg, 521 U.S. at 737-38 (O'Connor, J., concurring).
141. See Dresser, supra note 134, at 88.
142. Id. at 87-88.
143. See id. at 88.
144. See Nuccetelli & Seay, supra note 24, at 21.
145. Compare Nuccetelli & Seay, supra note 24, at 22 (noting that there are certain situations where there are general moral duties and people do not have that much control), with Sulmasy, supra note 123, at 27 ("No serious proponent of the [rule of double effect] says that someone who has hastened the death of a patient is not responsible for that outcome.").
146. See Nuccetelli & Seay, supra note 24, at 22.
147. See id.
148. See id. at 23.
149. See id. at 22.
150. Id. at 23.
151. See id. at 24.
152. Id. ("[T]he clinician must take into account all of her relevant professional obligations in that situation and weigh them in deciding how to do what is best for that patient, all things considered, given his values and beliefs, with a reasonable assessment of what the quality of his remaining life is likely to be.").
153. See supra note 144 and accompanying text.
154. See Roger S. Magnusson, The Devil's Choice: Re-thinking Law, Ethics, and Symptom Relief in Palliative Care, 34 J.L. Med. & Ethics 559, 564 (2006).
155. Id.
156. See id. at 565.
157. See id. at 566.
158. Id.
159. Id. at 567.
160. See id. ("The defense of necessity immunizes palliative care practices that accord with accepted and responsible professional practice, while permitting law and ethics to better acknowledge the gravity and consequences of these end-of-life decisions.").
161. See id. at 566.
162. See supra Part I.A.
163. See, e.g., McStay, supra note 61, at 54; Preston, supra note 25, at 539.
164. See infra note 166.
165. See McStay, supra note 61, at 54.
166. See id.
167. See id.
168. See, e.g., Preston, supra note 25, at 539.
169. Id.
170. See supra Part II.A.1.
171. See Cantor, supra note 26, at 423 (arguing that "distinguishing intent to relieve suffering from intent to cause death is a mission impossible"); see also Grady, supra note 70 ("Anyone who has watched a lingering, painful decline knows that the urge to provide comfort is often mixed with a wish that it would just be over. Boundaries can blur, and breach, in desperate moments. Moral concern can rise when dosages do.").
172. Cantor & Thomas, supra note 36, at 115.
173. See Cantor, supra note 26, at 423-25.
174. Model Penal Code § 210.2(1)(6) (1985).
175. Cantor, supra note 26, at 425.
176. Id. (noting, however, that the endorsement is only "dictum in concurring opinions").
177. See id. (referring to the concurrences of Justices Sandra Day O'Connor, David Souter, and Stephen Breyer in Vacco v. Quill, 521 U.S. 702, 736-38 (1997)).
178. See id. at 426.
179. Id. at 427 (citing Code of Ethics E-2.21 (Am. Med. Ass'n 1996), available at http://www.ama-assn.org/ama/pub/category/8459.html); see also Cantor & Thomas, supra note 36, at 113 (noting that proponents of legalizing active euthanasia argue that it has already been legalized through risky pain treatment).
180. See supra Part II.A.2.a.
181. In the United States, most chief prosecutors are elected officials, serving both as a law enforcement official and officer of the court. See Stephen J. Ziegler, Physician-Assisted Suicide and Criminal Prosecution: Are Physicians at Risk?, 33 J.L. Med. & Ethics 349, 349 (2005). Prosecutors are often described as '"gatekeepers' to the administration of justice" because they have the discretion to determine whether a person gets charged with a crime. See id. In deciding whether or not to charge a person with a crime, the primary factor influencing the prosecutor is whether he believes that he can secure a conviction. See Ziegler & Lovrich, supra note 100, at 78. "If the distinction between aggressive pain relief and hastened death is a point of contention among physicians and ethicists, what can we expect from prosecutors who are likely less knowledgeable about pain relief and end-of-life care?" Id. at 76-77.
182. See Haugen, supra note 74, at 354.
183. See Scanlon, supra note 103, at 52.
184. See Haugen, supra note 74, at 354.
185. See id.
186. See Scanlon, supra note 103, at 52-53.
187. See id. at 53.
188. Nurse Calls Overdoses an Effort to Ease Pain, N.Y. Times, Oct. 22, 1981, at A24.
189. See Scanlon, supra note 103, at 53.
190. See id. at 54.
191. Id.
192. Id.
193. See id. at 55.
194. Id. at 55 56.
195. State v. Naramore, 965 P.2d 211,213 (Kan. Ct. App. 1998).
196. Id. at 213-15.
197. Id.
198. Id. at 215.
199. Id.
200. Id.
201. Id.
202. Id. at 216.
203. Id.
204. Id. at 217.
205. Id. at 213.
206. Id. ("We can find no criminal conviction of a physician for the attempted murder or murder of a patient which has ever been sustained on appeal based on evidence of the kind presented here.").
207. Id. at 221.
208. Id. at 223. The prosecution brought in three physicians who disagreed with the defense witnesses' testimony that Dr. Lloyd Naramore's treatment was medically appropriate. Id.
209. Id. ("When there is such strong evidence supporting a reasonable, noncriminal explanation for the doctor's actions, it cannot be said that there is no reasonable doubt of criminal guilt.").
210. See, e.g., Kay, supra note 120, at 694.
211. See id.
212. See id.
213. Cantor & Thomas, supra note 36, at 111.
214. See supra note 15 and accompanying text.
215. See supra note 16 and accompanying text.
216. See supra note 16 and accompanying text.
217. See Haugen, supra note 74, at 363.
218. See supra note 99 and accompanying text.
219. See supra Part II.A.2.3. However, this view is in direct contrast with the view of some scholars who argue that physicians are experts, know the consequences of their actions, and therefore intend death. See supra notes 168-69 and accompanying text.
220. See supra notes 78-82 and accompanying text.
221. See, e.g., State v. Naramore, 965 P.2d 211, 223 (Kan. Ct. App. 1998).
222. See supra Part II.B.2.b (discussing cases which illustrate the difficulty in obtaining a conviction).
223. See Naramore, 965 P.2d at 223 (proving that, even if the jury finds intent, a higher court may be willing to overturn the jury's verdict if the evidence at trial is not explicitly supportive of a finding of intent).
224. See supra notes 125-31 and accompanying text.
225. See supra note 169 and accompanying text.
226. See supra notes 173-76 and accompanying text.
227. See supra Part II.B.2.b.
228. See supra notes 128-31 and accompanying text.
229. See supra notes 168-69 and accompanying text.
230. See supra note 169 and accompanying text.
231. See supra notes 173-76 and accompanying text.
232. See supra Part II.C.1.a.
233. See supra notes 210-13 and accompanying text.
234. See, e.g., Grady, supra note 10 ('"It's a narrow gray line. Nobody knows how we would react under extreme circumstances.'" (quoting Dr. Mark Siegler)).
235. See supra note 1 and accompanying text.
236. See supra note 1 and accompanying text.
237. See supra note 132 and accompanying text.