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COPYRIGHT 2002 Health Law Institute
1. Prologue
On May 6, 1997, 60 police officers swarmed into the Queen Elizabeth II Health Sciences Centre (QEII) in Halifax, Nova Scotia, in order to effect the arrest of a physician, Dr. Nancy Morrison, on a charge of first-degree murder in connection with the death of a patient six months earlier. They also carried out searches of 21 locations pursuant to a search warrant. The patient had died in the intensive care unit (ICU) two and a half hours after his removal from artificial life support, and months later a physician at the hospital had informed the police that Dr. Morrison had unlawfully caused his death.
A preliminary inquiry was held in Provincial Court where Randall P.C.J. discharged Dr. Morrison after ruling that "a Jury properly instructed could not convict the accused of the offence charged, any included offence, or any other offence." (1) When the Crown's appeal was denied by a Supreme Court judge, (2) it decided to pursue the matter no further. The case of R. v. Morrison thus never went to trial.
This article has a dual purpose: to present and analyze the legal repercussions of the patient's death, and then to consider the viability of a defence of medical necessity if the case had gone to trial.
On the day of his death the patient received massive infusions of drugs, and the precise dosages and times of administration will be duly noted. (3) A brief review of the drugs in question will assist the lay reader to appreciate the situation as it unfolded. All told, between 6:50 a.m. and 2:30 p.m. on his last day the patient received intravenously four drugs to ease his dying: Ativan, Versed, morphine, and Dilaudid. (4) Ativan (generic name lorazepam) and Versed (generic name midazolam) are sedative-hypnotic and anti-anxiety drugs. He received 10 mg of Ativan which is not an unusual amount. However, the amount of Versed was in excess of 230 rug, whereas the recommended "common range" of Versed for the intractable distress of a dying patient is 30-60 mg/24 hours. Hence the total given (mostly between 12:30 p.m. and 2:30 p.m.) was four times the highest daily dose recommended for such cases. Morphine is an opiate analgesic (in lay terms, a pain-killer), whereas Dilaudid is a synthetic opiate and is five to eight times more potent than morphine. The patient received 40 rug of morphine and in excess of 800 mg of Dilaudid. In effect, then, this amounted to somewhat more than 4400-6800 rug of morphine equivalents.
To place this drug history in context, consider a study appearing in the journal, Palliative Medicine, which reviewed 30 cases in which morphine was administered to relieve the intractable distress of dying patients. The dose range over 24 hours was between 150-600 mg for 18 patients, 600-2500 mg for nine patients, 2500-5000 rug for one patient, and in excess of 5000 mg for two patients. (5) In other words, Mr. Mills was given more opiates than 90 per cent of these patients and comparable amounts to the other 10 per cent. Beyond that, the time frame for all 30 patients was 24 hours whereas his was only seven hours and 40 minutes.
A case reported in the journal, Clinical Pharmacy, provides the drug history of a terminally ill cancer patient "who required exceptionally high doses of narcotic analgesics to control chronic, severe pain." (6) Over the last few days of her life, her daily intravenous (IV) intake of morphine was in the range of 8100-8500 mg. (7) Again, note that in less than eight hours Mr. Mills received in excess of 4400-6800 rug of morphine equivalents. In sum, one can say that Mr. Mills received what was clearly an extraordinary (although not unheard of) amount of opiates.
2. The Day of the Patient's Death
Paul Mills was 65 years old and he was a very sick man; on November 9, 1996 his caregivers and family agreed that the time had come for him to die. His medical history was as follows.
Mr. Mills was admitted to the Moncton (New Brunswick) General Hospital in April 1996 with cancer of the esophagus. The cancer was removed but complications ensued. A portion of his stomach had been used to replace his excised esophagus, but necrosis (death of the stomach tissue) led to leakage of gastrointestinal fluid and infection of surrounding tissue. Three further surgeries in Moncton failed to correct the problem, which led to the patient's transfer to the QEII in Halifax. He there underwent six additional surgeries which likewise proved fruitless. The two hospitalizations thus resulted in 10 surgical procedures (the last on October 28). Between October 15 and November 6 the patient's weight dropped by 19 kilograms (42 pounds), and infection developed to the point where healing from all of his surgical procedures had become impossible. By the time of his eighth operation on October 15, Mr. Mills was "heavily sedated, on narcotics, on antibiotics, multiple TYs running. Probably in the realm of 10 tubes in him, fully catheter arterial line, central lines for administration of antibiotics, and tubes in his stomach and tubes in his chest" (p. 464). And since the surgeons were unable to close his chest wall, pus was continually oozing out. Suffice it to say that his body had come to resemble a war zone. (8)
By mid-October he was profoundly depressed and although quite congested was refusing to cough up secretions. When advised by the nurse on October 12 that he was at risk of contracting pneumonia if he did not cough, he replied: "I just want to die" (p. 36). On October 15 he was admitted to the ICU and placed on a respirator (ventilator) because he could not breathe adequately on his own. Two days later his physicians and family (wife and adult son) agreed to the entry of a Do Not Resuscitate (DNR) order on his chart. As explained by his thoracic (chest) surgeon, Dr. Bethune (p. 465):
We felt that probably his course was going to be progressively downhill and the Do Not Resuscitate order is written so that if he develops any kind of a catastrophic deterioration, that attempts to resuscitate him would not be done. Because certainly if he got any worse than he was, there would be absolutely no reason to resuscitate him. It would just prolong the agony.
According to Elizabeth Bland-MacInnes, his ICU nurse on his last two days of life, he was "incredibly sick...his last few weeks were certainly tortuous" (p. 282). The severity of his condition is reflected in the fact that from October 10 until his death on November 10, he received infusions of Dilaudid around the clock.
The patient's persistent chest wall infection was pronounced incurable by Dr. Bethune on November 6. In his clinical opinion, there was "virtually, virtually definitely no chance of him surviving, no chance at all" (p. 477). Consultants in infectious diseases and plastic/reconstructive surgery, who were involved in the patient's on-going care at the QEII, also concluded that there was nothing more that they could do. On November 9 the family agreed with Dr. Bethune that it was time to call a halt to artificial life-support, and it was arranged for this to happen the next day. At that time, the patient was not mentally competent to make that decision, although as noted he had stated a month before that he wanted to die. Nurse Bland-MacInnes said that throughout her 12 hour shift on November 9, "he was not responsive ... did respond to painful stimuli ... and had episodes of restlessness" (p. 283).
On the morning of November 10 Mr. Mills was taken off antibiotics and tube-feeding. Between 6:50 a.m. and 12:30 p.m. he received 10 mg of Ativan in four doses (the last being 4 mg). At 7 a.m. his Dilaudid drip was increased to 10 mg per hour, and then per hour to 12 mg at 8:20 a.m., to 16 mg at 9:15 a.m., and to 20mg at 10:35 a.m. It was 30mg by 11:04 n.m. and 40mg by 12:10 p.m. The drugs were administered through two lines in the left femoral vein. At 12:30 p.m. the patient was extubated to room air (in other words, the respirator's tubing was removed from his throat where it had been surgically implanted). (9) It was assumed that without the support of the breathing machine he would expire in short order. At that time the resident ordered the following: Dilaudid increased to 100 mg/per hour, morphine 10-20 mg PRN, and Versed 10-50 mg PRN. (10)
Surprisingly, Mr. Mills did not die as anticipated but rather exhibited extreme shortness of breath. Between 12:42 p.m. and 1:03 p.m. Nurse Bland-Maclnnes injected 40 mg of morphine in the IV line in four doses in order to relieve his respiratory distress. Still, he continued to gasp for air. The nurse then turned to Versed, giving him 10mg at 1:10 p.m., followed by 20mg at 1:16 p.m., and 50mg at 1:25 p.m. Recall that at 12:30 p.m. the Dilaudid was increased to 100 mg/hour. By 1:20 p.m. it was 200 mg/hour, and at 1:50 p.m. it was 250 mg/hour. By 2:25 p.m. it was up to 500 mg/hour. Versed in a 50 mg dose was injected at 2 p.m.; the same amount was given at 2:15 p.m. and again at 2:30 p.m. In total that day, Mr. Mills received in excess of 800 mg of Dilaudud, in excess of 230 mg of Versed, and 40 mg of morphine (p. 269). Yet although these were enormous amounts, the patient's air hunger continued unabated.
When defence counsel suggested to Nurse Bland-Maclnnes that the patient's struggle for air was "a horrible & hideous scene," she replied, "Yes, that is correct" (p. 309). She said that in 11 years of ICU experience she had never witnessed that much suffering in a patient and that "it was beyond a shadow of a doubt the worst death I have ever witnessed" (p. 320).
The ICU resident, Dr. Cohen, testified that following extubation Mr. Mills "continued to live and persist in a distressed state, gasping for breath" (p. 260). As he elaborated (p. 261):
From time to time, pus would ooze from his chest as he gasped. He had an infection in...the subcutaneous tissue...in his chest. It was filled with pus.... And there were wounds & incisions...made...to drain the pus. And the physical action of breathing involves contraction of...muscles in your chest... And this had the effect of causing some pus at time to dribble from...these open wounds.
When asked if he thought that the patient was conscious after being extubated, he replied: "Well, consciousness is a relative term, but he did not appear very conscious" (p. 262). He added that "he remained in distress, remained apparently in discomfort, and continued to gasp for breath" (p. 264). When asked why he qualified discomfort by saying "apparently," Dr. Cohen responded (pp. 264-65):
Well discomfort is a subjective term and it relates to the patient's ability to perceive stimuli that ordinary conscious people would consider uncomfortable. When somebody makes reactions that are typical of somebody in discomfort, you assume that they are in discomfort because it's cruel not to.
He further stated that there were no "independent means of verifying" whether the patient was "consciously aware of pain" (pp. 276-77). In other words, no one can say with certainty whether Mr. Mills died in agony. At the time of his death, his systolic blood pressure was 50mm Hg (where it had hovered for most of that day), which would likely result in greatly reduced blood flow to his brain. For that reason a physician at the QEH later expressed the opinion to one of us that "[h]e probably lost consciousness when the tube was removed. Agonal breathing isn't necessarily agonizing. His blood pressure was so low as to suggest that there was no conscious awareness of suffering." (11)
On the other hand, Nurse Bland-MacInnes was at the patient's bedside for hours and was convinced that he was suffering. Her intuition is supported by anecdotal evidence of patients with comparable systolic blood pressure who were able to communicate with their physicians. (12) So perhaps he was experiencing an agonizing death and perhaps he was not. But the point surely is that this may well have been the case and that it was not unreasonable for his caregivers to assume so.
Be that as it may, Nurse Bland-MacInnes was appalled at what she clearly perceived as unconscionable suffering and she did not hesitate to convey her concerns to Dr. Morrison. After the nurse expressed her exasperation that the sedatives and narcotics were accomplishing nothing, Dr. Morrison returned to the bedside at 2:52 p.m. where she injected 10cc of nitroglycerine into the patient's IV line. According to the nurse, Dr. Morrison told her that "it would decrease blood pressure to end patient's suffering" (p. 294). His systolic blood pressure immediately dropped to 50mm Hg although it then increased to 55-60 (p. 294). At 2:59 p.m. Dr. Morrison returned to the bedside with a 10cc syringe of clear liquid that she began to inject into the IV. When the nurse asked what it was, she answered: "It is KCI" (p. 294). (KCI is potassium chloride, about which we will have much to say later.) Within a minute there was no electrical activity in the heart. Both the nitroglycerin and the KCI were administered by IV push, w hich caused the drugs to move more quickly into the bloodstream than when given by infusion (p. 302).
Dr. Cohen had left the ICU sometime around 2:30 p.m. for lunch, and when he returned shortly after 3 p.m. he was not surprised to learn that Mr. Mills was dead. He then completed the death certificate because, as he said, that was a task for house staff. As...
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