Criminal Act or Palliative Care? Prosecutions Involving the Care of the Dying

See Committee on Care at the End of Life, Field M.J. Cassel C.K. , eds., Approaching Death: Improving Care at the End of Life (Washington, D.C.: National Academy Press, 1997): At 2.

See Editorial, “Caring about Care at the End of Life,” American Medical News, May 12, 1997, at 17.

The Open Society Institute is currently funding research associated with its “Project on Death in America.” See Open Society Institute, ed., Project on Death in America: A Report of Activities, July 1994-December 1997 (New York: Open Society Institute, 1998): 1–84.

See Van Grunsven P.R. , “Criminal Prosecutions of Health Care Providers for Clinical Mistakes and Fatal Errors: Is ‘Bad Medicine’ A Crime?,” Journal of Health & Hospital Law, 29 (1996): At 107.

See People v. Einaugler, 208 A.D.2d 946 (N.Y. App. Div. 1994). All subsequent appeals, including writs of habeus corpus, were denied. See Einaugler v. Supreme Court of New York, mandamus denied, 117 S. Ct. 1840 (1997), Einaugler v. Supreme Court of the State of New York, 109 F.3d 836 (2d. Cir. 1997), aff'g Einaugler v. Supreme Court of the State of New York, 918 F. Supp. 619 (E.D.N.Y. 1996). The plaintiff received at least two feedings before the mistake was noticed. Although a consulting nephrologist, who was concerned about the danger of peritonitis, recommended immediate hospitalization, Dr. Gerald Einaugler waited ten hours before transferring the patient. A jury found him guilty of reckless endangerment and willful neglect, and the court sentenced him to fifty-two weekends of incarceration. See 109 F.3d 836 (reviewing pertinent facts of the case).

See Johnson S.H. , “Disciplinary Actions and Pain Relief: Analysis of the Pain Relief Act,” Journal of Law, Medicine & Ethics, 24 (1996): At 320 n.11.

See, for example, Einaugler, 208 A.D.2d 946 (physician convicted on two criminal misdemeanor counts for ordering that a nursing home patient on dialysis be fed through her dialysis catheter and then attempting to disguise mistake); State v. Warden, 813 P.2d 1146 (Utah 1991) (upholding conviction of negligent homicide in home delivery of baby because evidence supported a determination that the physician's care grossly deviated from the accepted standard of care); and Jones C.T. Thornton A. , “Dose Not Lethal, Doctor Testifies,” Daily Oklahoman, May 8, 1998, at 1 (reporting Dr. C. Douglas Wood's trial for first-degree murder where the government alleges that he gave an eighty-six-year-old patient an excess of potassium chloride, while the defense argues that the drug was given in an attempt to revive the patient's failing heart).

See People v. Schade, 30 Cal. App. 4th 1515 (Cal. Ct. App. 1994). In another California criminal case, prosecutors charged Dr. Wolfgang Schug with second-degree murder for his alleged mistakes in clinical judgment. The patient, an eleven-month-old boy, had suffered from persistent vomiting and diarrhea for several days and was severely dehydrated. Schug discharged the baby and told his parents to drive him to Santa Rosa Community Hospital, fifty-five miles away over winding roads. Ninety minutes later when the parents arrived in Santa Rosa, the boy had stopped breathing and could not be revived. In February 1998, Lake County Superior Court Judge Robert Crone dismissed the criminal case against Schug, ruling that there was insufficient evidence of criminal wrongdoing. See Stryker J. , “Medical Mistake or Criminal Conduct?,” California Healthline, Mar. 2, 1998.

Morphine, an opioid generally used for moderate to severe pain, can be lethal in doses significantly above the patient's level of tolerance, because an overdose will typically lead to respiratory depression. See Hanks G. Cherny N. , “Opioid Analgesic Therapy,” in Doyle D. , eds., Oxford Textbook of Palliative Medicine (New York: Oxford University Press, 2nd ed., 1998): At 349.

See Gianelli D.M. , “Patient Deaths Spur Guidelines on Pain Drugs,” American Medical News, May 4, 1990, available in 1990 WL 3259650.

See id.

See Wanzer S.H. , “The Physician's Responsibility Toward Hopelessly Ill Patients,” New Engl. J. Med., 320 (1989): 844–49; and Quill T.E. Brody R.V. , “‘You Promised Me I Wouldn't Die Like This!’,” Archives of Internal Medicine, 155 (1995): 1250–54.

See, for example, Kowalczyk L. , “Wife's Painful Last Day Prompts Husband to Act; Brockton Hospital Responds with Changes,” Patriot Ledger, Oct. 16, 1997, at 1.

See SUPPORT Principal Investigators, “A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients: The Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatments (SUPPORT),” JAMA, 274 (1995): 1591–98.

See Solomon M.Z. , “Decisions Near the End of Life: Professional Views on Life-Sustaining Treatment,” American Journal of Public Health, 83 (1993): At 20 (data suggest inappropriate management of pain is due partly to ignorance about appropriate techniques for pain control).

See Quill Brody , supra note 12, at 1251; and Solomon , supra note 15, at 20 (inadequate pain management “related to fear of providing a last, lethal dose”).

Stolberg S.G. , “Cries of the Dying Awaken Doctors to a New Approach,” New York Times, June 30, 1997, at A1.

Washington v. Glucksberg, 117 S. Ct. 2258 (1997).

Vacco v. Quill, 117 S. Ct. 2293 (1997).

Sanders K. , NBC Today Show (NBC News broadcast, June 27, 1997).

See Glucksberg , 117 S. Ct. 2258; and Quill, 117 S. Ct. 2293.

See Stryker , supra note 8.

See Feldman M.K. , “Pain Control in Dying Patients,” Minnesota Medicine, 73 (1990): 19–24.

Id. at 19.

See Bavley A. , “Now Paroled, Doctor Appeals Verdicts: Murder, Attempted Murder Convictions Involved Two Patients in Northwest Kansas,” Kansas City Star, Dec. 21, 1997, at A1.

See id.

See State v. Naramore, 965 P.2d 211 (Kan. Ct. App. 1998), cert, denied, No. 96–77069-AS (Kan. Sept. 29, 1998).

See id. (finding that the reasonable jury does not have the discretion to disregard substantial expert medical opinions that would exonerate the defendant).

See Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990).

See Barber v. Superior Court, 147 Cal. App. 3d 1006 (Cal. Ct. App. 1983).

Id. at 1017.

For consistency, pre-1990 cases that may fit the pattern of giving lethal doses of medications to dying patients were also excluded. See, for example, Digirolamo M. , “No Jail Term for Doctor in Mercy Killing,” United Press International , Dec. 19, 1986 (reporting on a physician who pleaded guilty to manslaughter for giving his mother-in-law a lethal dose of undisclosed medications and was sentenced to two years of probation, 400 hours of community service, and fined $10,000); and Friedman S. , “Matthew Chandler,” St. Louis, Oct. 1988, at 27 (criminal and administrative investigations launched after nurse reported that a pediatric anesthesiologist injected an eleven-year-old boy dying of adult respiratory distress syndrome and muscular dystrophy with 20 mL of potassium chloride).

For example, Swango Michael Dr. was convicted in 1985 of poisoning five co-workers at Blessing Hospital in Quincy, Illinois. Several stories alleging that he is a prolific serial killer have appeared in the national media; however, his criminal activities are not part of patient care. Although some of his victims are alleged to have been patients, Swango has not faced criminal charges based on his provision of palliative care to dying patients. His convictions rested on the arsenic and other poisons that Swango mixed into food and drink. See Stewart J.B. , “Annals of Crime: Professional Courtesy,” New Yorker, Nov. 24, 1997, at 90–105; and “Physician Serial Killer Mystery,” ABC Good Morning America (ABC News broadcast, Nov. 17, 1997).

For example, one of dozens of searches explored the news data base from years prior to 1996 with keywords like: (physician or doctor or nurse or pharm!) and (homicide or murder or kill! or death) w/50 (drug! or morphine or potassium or opiate!). Focus searches were also used to narrow the results.

Indeed, the Kansas Court of Appeals recently wrote that its own “substantial research” had revealed no criminal convictions of physicians for attempted murder or murder without clear and direct evidence of criminal intent. See Naramore , 965 P.2d 212.

See generally Dressler J. , Cases and Materials on Criminal Law (St. Paul: West, 1994): At 81–99, 103–05 (discussing the actus reus and mens rea for a crime).

See id. at 81–99.

See, for example, Cal. Penal Code § 20 (West 1988) (emphasizing the “unity of act and intent” in the statutory definition of crime).

See, for example, Cal. Penal Code §§ 188–89 (West 1997) (defining murder as an expressly or implicitly intentional act).

Compare, for example, Cal. Penal Code § 187, with Ala. Code § 13A-6-2 (1997).

See, for example, Cal. Penal Code § 189, in Dressler , supra note 37, at 197.

See N.Y. Penal Law §§ 125.10, .15, .20, .25, .27 (Consol. 1998).

See Dressler , supra note 37, at 906 (reprinting the American Law Institute, Model Penal Code , Official Draft 1962) (hereinafter Model Penal Code).

Model Penal Code § 210.2.

See generally, Dressler , supra note 37, at 650–99.

Cal. Penal Code § 192 (West 1988).

See People v. Protopappas, 201 Cal. App. 3d 152, 166 (1988).

See, for example, N.Y. Penal Law § 120.20 (Consol. 1998); and Einaugler, 918 F. Supp. 619.

See Committee on Care at the End of Life, supra note 1, at 2.

See Doyle D. , eds., Oxford Textbook of Palliative Medicine (New York: Oxford University Press, 1998): At 3 (commenting on the definition adopted by the World Health Organization).

See Committee on Care at the End of Life, supra note 1, at 126–35 (noting evidence of quality problems, including overuse of care, underuse of care, poor technical performance, and poor interpersonal performance).

See id. at 128.

See id.

See Hanks Cherny , supra note 9, at 349.

See id.

See vander Maas P.J. , “Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990–1995,” New Engl. J. Med., 335 (1996): At 1702.

See id. at 1703 tbl. 3.

See Portenoy R.K. , “Adjuvant Analgesics in Pain Management,” in Doyle , supra note 9, at 376–77.

See Brody H. , “Withdrawing Intensive Life-Sustaining Treatment: Recommendations for Compassionate Clinical Management,” New Engl. J. Med., 336 (1997): At 653.

See United States Pharmacopeial Convention, Inc., Drug Information for the Health Care Professional (Rockville: USPC Board of Trustees, 18th ed., 1998): At 529.

See Hanks Cherny , supra note 9, at 347 (noting that the central nervous system “depressant actions of these drugs [opioids] can be expected to be at least additive with the sedative and respiratory depressant effects of sedative-hypnotics such as alcohol and the benzodiazepines”) (emphasis added).

See Tisher C.C. , “Structure and Function of the Kidneys,” in Bennett J.C. Plum F. , eds., Cecil Textbook of Medicine (Philadelphia: W.B. Saunders, 20th ed., 1996): At 539–40.

See Singer G.G. Brenner B.M. , “Fluid and Electrolyte Disturbances,” in Fauci A.S. , eds., Harrison's Principles of Internal Medicine (New York: McGraw-Hill, 14th ed., 1998): At 271–77 (discussing potassium chloride, hypokalemia, and hyperkalemia).

See Jones Thornton , supra note 7 (reporting that “Oklahoma prison officials said … they use a 50 cc injection [of potassium chloride] to ensure an efficient execution”). See also Lines A. , “150 Mile Drive to the Death House,” Mirror, Feb. 2, 1998, at 18 (reporting on the execution of Karla Faye Tucker, explaining that “[s]odium thiopentone is used as an anaesthetic, pancuronium bromide to stop her breathing and potassium chloride to stop her heart. Prison spokesman David Nunnelee said it would take about 20 seconds for the lethal dose to kill Tucker.”).

See Annas G.J. , “Killing Machines,” Hastings Center Report, 21, no. 2 (1991): At 34.

See Kjellstrand C.M. , “The Impossible Choice,” JAMA, 233 (1987): At 257.

See infra pp. 315–17.

See, for example, Slome L.R. , “Physician-Assisted Suicide and Patients with Human Immunodeficiency Virus Disease,” New Engl. J. Med., 417 (1997): At 336 (finding that 53 percent of 228 physicians surveyed who treat patients infected with the human immunodeficiency virus in the San Francisco Bay area have complied with requests for assistance to commit suicide).

See Meier D.E. , “A National Survey of Physician-Assisted Suicide and Euthanasia in the United States,” New Engl. J. Med., 338 (1998): At 1195, 1200; and Asch D.A. , “The Role of Critical Care Nurses in Euthanasia and Assisted Suicide,” New Engl. J. Med., 334 (1996): At 1374 (controversial questionnaire finding that 19 percent of critical care nurses have participated in euthanasia).

See Emanuel E. , “The Practice of Euthanasia and Physician-Assisted Suicide in the United States: Adherence to Proposed Safeguards and Effects on Physicians,” JAMA, 280 (1998): At 507 (finding as above but noting that physicians' confusion about what behavior constitutes physician-assisted suicide may lead to overreporting of the practice by as much as 20 percent).

The remaining conviction, that of Dr. Wood for involuntary manslaughter, is not ready to be appealed. Wood has yet to be sentenced. Following a final disposition of his conviction by the federal district court, he will have ten days to file a notice of appeal. See Fed. R. App. P. 4(b).

See Humphry D. , Lawful Exit (Junction City: Norris Lane Press, 1993): At 157–61.

See Cruzan, 497 U.S. 261 (assuming competent patients have a right to refuse life-sustaining treatment). The original criminal case against the physicians was eventually dismissed. See also Barber, 147 Cal. App. 3d 1006 (dismissing criminal information against physicians who discontinued nutrition and hydration at request of patient and family).

See Schoch E.B. , “Doctor's Emergency Room Actions Debated; Licensing Panel Weighs Charges in Patient's Death,” Indianapolis Star, Aug. 28, 1992, at B1.

See id.

See id.

See id.

See Telephone Interview with Cynthia Hedge, Prosecuting Attorney of La Porte County, Ind. (May 1, 1998).

See ‘“Angel of Death’ Indictment,” ABC Good Morning America (ABC News broadcast, Dec. 31, 1997).

See “Ex-Nurse Arrested in Deaths of 6 Patients,” San Francisco Chronicle, Dec. 30, 1997, at A2.

For example, Michigan City, Indiana's population is 33,822 (Dargis); St. Francis, Kansas's population is 1,495 (Naramore); Sebring, Florida's population is 8,900 (Pinzon); and Riverdale, Georgia's population is 9,359 (Carrizales). See U.S. Census Bureau: The Official Statistics (visited Aug. 13, 1998) <http://www.census.gov>.

For example, Dr. Ernesto Pinzon-Reyes was indicted ten months after he moved to Florida from Puerto Rico. See infra p. 323.

Carrizales Eva Dr. , a neonatologist charged with murder, said that her sex and Hispanic race made her vulnerable. See Ellis R. , “Revisiting Dr. Eva Carrizales,” Atlanta Journal & Constitution, May 3, 1996, at 2C (recalling that “that was a very important factor, being female and Hispanic. With the jury present you could just feel it.”).

Court TV reported that Orville Lynn Majors is “openly bisexual in a conservative corner of a conservative state.” Bonne J. , Indiana v. Orville Lynn Majors: Probable Cause Affidavit (visited Aug. 12, 1998) <http://www.courttv.com/legaldocs/newsmakers/orville.html>. Dr. L. Stan Naramore struck the conservative residents of Cheyenne Counry, Kansas, as a city person who drove a bright red car fast, drank alcohol, and gambled. See infra p. 318.

See Butler P. , “Racially Based Jury Nullification: Black Power in the Criminal Justice System,” Yale Law Journal, 105 (1995): At 677.

See Devine M. , “Suicide Brings Groups Together; Members Say Curren's Death Preventable,” Patriot Ledger, Aug. 27, 1996, at 9C.

See Humphry , supra note 76, at 157–61.

See id. at 157–59.

In the Naramore trial, prosecution witness Jim Leach explained that Naramore was trying to kill his mother. “It was the most terrifying experience you can imagine,” he said, Naramore “was killing my mother right before my eyes.” Miniclier K. , “Family Doctor a Murderer? Trial Could Spur National Debate Over Death and Dying,” Denver Post, Jan. 21, 1996, at A1.

See Bjorck C.L. , “Physician-Assisted Suicide: Whose Life Is It, Anyway?,” SMU Law Review, 47 (1994): At 379–82 (summarizing activities of Dr. Jack Kevorkian with details about seventeen individuals who received his help in committing suicide).

See Jones Thornton , supra note 7.

See Stone B. , “A Deadly Kind of Care,” Newsweek, Jan. 12, 1998, at 33.

See id.

See Lo B. , Resolving Ethical Dilemmas (Baltimore: Williams & Wilkins, 1995): At 73 (explaining that an intervention may be considered futile when it has been tried and failed in a patient or when it will not achieve the goals of care).

See Quill T.E. , “The Ambiguity of Clinical Intentions,” New Engl. J. Med., 329 (1992): At 1039–40.

See Arras J.D. , “Physician-Assisted Suicide: A Tragic View,” Journal of Contemporary Health Law & Policy, 13 (1997): At 378.

See supra pp. 310–11. Because it has no palliative function, potassium chloride's place as part of care for the dying has not undergone a change in legal status following the U.S. Supreme Court's decisions in Cruzan, Glucksberg, and Quill. See supra p. 309. Patients may refuse life-sustaining treatment and may consent to intense palliative care, but they may not consent to euthanasia.

See, for example, Jonsen A.R. Toulmin S. , The Abuse of Casuistry (Berkeley: University of California Press, 1988): At 221–313 (describing the doctrine's origins and referring to Thomas Aquinas: A single act may have two effects, one of them intentional and the other going beyond intention. The moral quality of the act depends on the nature of the effect that was intended.).

See id. at 221–23.

See Quill T.E. , “The Rule of Double Effect: A Critique of Its Role in End-of-Life Decision Making,” New Engl. J. Med., 337 (1997): At 1768–71.

See Cantor N.L. Thomas G.C. III , “Pain Relief, Acceleration of Death, and Criminal Law,” Kennedy Institute of Ethics Journal, 6 (1996): At 110.

See Ellis , supra note 87.

Fentanyl is a highly potent, semisynthetic morphine. It is approximately eighty times as potent as parenteral morphine in an acute pain patient who has not developed tolerance to opioids. It is useful for pain control before uncomfortable procedures and for management of cancer pain. See Hanks Cherny , supra note 9, at 340.

See Bavley , supra note 26.

See id.

Delano Patrick , a physician assistant, said, “He was good at what he did. Things he did in the ER saved lives.” See id.

The chairwoman who received this hyperbolic letter sat on the jury that convicted Naramore of second-degree murder and attempted first-degree murder.

See Brief for Appellant at 13, State v. Naramore, No. 96–77069-A (D. Cheyenne County, Jan. 1996) (No. 94-CR-8).

Kansas uses a typical brain death or cardiopulmonary death standard for determining death. See Kan. Stat. Ann. § 77–205 (1977) (“An individual who has sustained … irreversible cessation of all functions of the entire brain, including the brain stem, is dead”). In Kansas, the determination of death is a medical diagnosis that must be made by a physician, but that physician need not have personally examined the patient. Brain death (irreversible cessation of entire brain function) is a more sophisticated diagnosis than, for example, obvious decapitation, and may require the physician making the diagnosis to base it on personally acquired knowledge. All determinations are governed by the appropriate medical standard. See Kan. Op. Att'y Gen. No. 90–81 (1990), available in 1990 Kan AG LEXIS 82.

See Brief for Appellant at 14, Naramore, No. 96–77069-A.

See Bavley , supra note 26.

See Naramore , 965 P.2d at 216.

Chris Willt had one glass eye, so an examination of it would provide no information about whether brain death caused the pupil to be fixed.

See Miniclier , supra note 93 (reporting a statement of the hospital's chief executive officer Kent Kellersburger: “[W]e had a great number of complaints from the community and dissatisfied patients. They just didn't like his personality and were refusing to see him.”).

Id. (statement of Kansas Assistant Attorney General Jon Fleenor).

See “Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death,” JAMA, 205 (1968): 337–40. See also Capron A.M. Kass L. , “A Statutory Definition of the Standards for Determining Human Death: An Appraisal and a Proposal,” University of Pennsylvania Law Review, XX (1972): At 87. Naramore's and Ernest Cram's decision that Willt was brain dead was somewhat irregular. Clinical tests for cessation of brain stem function include testing pupillary, corneal, oculovestibular, and oropharyngeal reflexes. In addition, physicians would carry out an apnea test to determine respiratory function. The Harvard criteria call for these tests to be repeated twenty-four hours later with no change. See Halevy A. Brody B. , “Brain Death: Reconciling Definitions, Criteria, and Tests,” Annals of Internal Medicine, 119 (1993): At 520; and Pallis C. , “ABC of Brain Stem Death,” British Medical Journal, 285 (1982): At 1487.

See Naramore , 965 P.2d at 218.

See, for example, Brody , supra note 60, at 653 (arguing that neuromuscular blocking drugs should be discontinued not only because they have lost their therapeutic rationale of facilitating ventilation, but also because they prevent patients from showing discomfort and so thwart effective pain management).

See Grace Plaza of Great Neck v. Elbaum, 183 A.D.2d 10 (N.Y. App. Div. 1993); and McConnell v. Beverly Enterprises-Connecticut, 553 A.2d 596 (Conn. 1989).

See Barber , 147 Cal. App. 3d 1006.

See id. at 1011.

See id.

See Quill , supra note 104, at 1768.

See Solomon , supra note 15, at 14–23.

See Quill , supra note 104, at 1769.

See Wilson W.C. , “Ordering and Administration of Sedatives and Analgesics During the Withholding and Withdrawal of Life Support from Critically Ill Patients,” JAMA, 267 (1992): At 949.

See Barber, 147 Cal. App. 3d 1006.

Quill, 117 S. Ct. 2293 n.11.

See infra p. 323, discussing the Pinzon-Reyes case, in which a nurse misinterpreted a request for pain medication as a request for euthanasia.

See infra pp. 321–22, discussing Naramore, in which the family interpreted the physician's warning about opioids suppressing respiration as an invitation to perform euthanasia.

The guidelines for prosecutors state: (1) The prosecutor, based on a complete investigation and a thorough consideration of all pertinent data readily available to him, is satisfied that the evidence shows that the accused is guilty of the crime charged. (2) There is a legally sufficient, admissible evidence of a corpus delicti. (3) There is legally sufficient, admissible evidence of the accused's identity as the perpetrator of the crime charged. (4) The prosecutor has considered the probability of conviction by an objective fact-finder hearing the admissible evidence.

Oakes G.A. , “A Prosecutor's View of Treatment Decisions,” in Doudera A.E. Peters J.D. , eds., Legal and Ethical Aspects of Treating Critically and Terminally Ill Patients (Ann Arbor: AUPHA Press, 1982): At 197.

See North Carolina v. Forrest, 362 S.E.2d 252 (N.C. 1987) (son who brought gun to hospital and shot terminally ill, pain-ridden father can be found guilty of first-degree murder).

See id. at 260 (Exum, C.J., dissenting) (“Almost all would agree that someone who kills because of a desire to end a loved one's physical suffering caused by an illness which is both terminal and incurable should not be deemed in law as culpable and deserving of the same punishment as one who kills because of unmitigated spite, hatred, or ill will.”).

Table 1 (citing Lieberman P. , “Inquiry Rejects Claim Doris Duke Was Murdered,” Los Angeles Times, July 25, 1996, at B1).

See id. (quoting Associated Press, “No Trial in Aided Suicide,” New York Times, May 23, 1994, at A13).

See Oakes , supra note 138, at 199.

See Naramore , 965 P.2d at 221.

Id. at 223 (citing In the Matter of Spring, 380 Mass. 629 (1980); Commonwealth v. Edelin, 371 Mass. 497 (1976); and Com v. Youngkin, 285 Pa. Super. 417 (1981)).

See Brief for Appellee at 3, State v. Naramore, No. 96–77069-A (D. Cheyenne County, Jan. 1996) (No. 94-CR-8).

See id.

See id. at 4. See also Bavley , supra note 26 (providing account of Naramore's treatment of Ruth Leach and conversations with Jim and Cindy Leach drawn from trial testimony and interviews with witnesses).

Brief for Appellee at 4, Naramore, No. 96–77069-A; and Bavley , supra note 26.

See Bavley , supra note 26; Brief for Appellee at 3–5, Naramore, No. 96–77069-A.

See Miniclier , supra note 93, at A1.

See Naramore, 965 P.2d at 218.

See Petterson J. , “Appeals Court Hears Doctor's Murder Case,” Kansas City Star, Feb. 4, 1998, at C3.

See Cleeland C.S. , “Pain and Its Treatment in Outpatients with Metastatic Cancer,” New Engl. J. Med., 330 (1994): 592–96.

See Von Roenn J.H. , “Physician Attitudes and Practice in Cancer Pain Management: A Survey from the Eastern Cooperative Oncology Group,” Annals of Internal Medicine, 119 (1993): At 125.

Jacox A. , “New Clinical Practice Guidelines for the Management of Pain in Patients with Cancer,” New Engl. J. Med., 330 (1994): At 654.

See Foley K.M. Arbit E. , “Management of Cancer Pain,” in DeVita V.T. , Cancer: Principles & Practice of Oncology (Philadelphia: Lippincott, 1989): 2064–87.

See Hanks Cherny , supra note 9, at 346. There is a difference in relative analgesic potency when the route of administration (oral, rectal, parenteral, or epidural) is changed. For example, the usual practice when converting from oral to subcutaneous morphine is to divide the oral dose by two or three. See id. at 338. In a survey of patients with advanced cancer, more than half required two or more routes of administration prior to death. See id. at 343 (citing Coyle N. , “Character of Terminal Illness in the Advanced Cancer Patient: Pain and Other Symptoms During the Last Four Weeks of Life,” Journal of Pain and Symptom Management, 5 (1990): 83–89).

Brief for Appellant at 27, Naramore, No. 96–77069-A (statement of Larry Anderson, M.D., President, Kansas Medical Society).

See Naramore, 965 P.2d at 219.

These cases are summarized in Table 1.

See Gianelli , supra note 10.

See Quill T.E. , “Palliative Options of Last Resort: A Comparison of Voluntarily Stopping Eating and Drinking, Terminal Sedation, Physician-Assisted Suicide, and Voluntary Active Euthanasia,” JAMA, 278 (1997): At 2103.

See Foley K.M. , “The Relationship of Pain and Suicide Management to Patient Requests for Physician-Assisted Suicide,” Journal of Pain and Symptom Management, 6 (1991): At 292.

See id. at 291–92.

See Landry S. , “Living Will Comes to Light in Trial,” St. Petersburg Times, June 25, 1997, at 5B.

See Palosky C.S. , “Doctor Suspended in Death of Patient,” Tampa Tribune, Oct. 24, 1996, at A1.

See Palosky C.S. , “Lawyers Seek to Block Testimony,” Tampa Tribune, June 14, 1997, at A1.

See Palosky C.S. , “Sebring Doctor's Trial Starts Today,” Tampa Tribune, May 27, 1997, at A1.

See Palosky , supra note 168.

See Palosky C.S. , “Pinzon Defends Actions in Death,” Tampa Tribune, Sept. 10, 1997, § 1 (Metro).

See Palosky C.S. , “Potassium Injection Worried Nurse,” Tampa Tribune, June 13, 1997, § 7 (Metro).

See Fla. Stat. Ann. § 766.101 (West 1997).

The use of peer review, quality assurance, or administrative hearing materials differs from state to state. For example, in the LaDuke case in New York, records from the institution's quality assurance committee, which are also privileged from civil discovery, were made available to the grand jury.

See Palosky , supra note 169 (citing statement of Dr. Howard R. Abel, an oncology expert and consultant to the Florida State Board of Medicine).

Palosky C.S. , “Doctor Charged in Patient's Death,” Tampa Tribune, Nov. 22, 1996, at A1.

See Palosky C.S. , “Trial Evokes Torrent of Compassion,” Tampa Tribune, June 12, 1997, at A18 (reporting that Pinzon-Reyes's supporters created Internet sites in both Spanish and English so that computer users worldwide could learn about his case. The Hispanic community, especially Colombian-American professionals, provided strong support for Pinzon-Reyes and raised significant amounts of money for him). In contrast, Naramore had almost no support from organized medicine or professional organizations or the community during his trial. Fellow osteopaths bought him a suit to wear at his trial; however, during the trial, Jerry Slaughter, executive director of the Kansas Medical Society in Topeka, which represents about 4,000 physicians, said he knew nothing about the details of the case.

See Palosky , supra note 169.

See Heery B. , “Legal Maverick,” Tampa Tribune, Nov. 1, 1997, § 1 (Polk County).

See Landry S. , “Florida Doctor Not Guilty in Death of Man with Cancer, Lung Disease,” Rocky Mountain News, June 28, 1997, at 56A.

See Palosky C.S. , “Pinzon Jurors Discuss Acquittal,” Tampa Tribune, June 29, 1997, § 1 (Metro).

See Palosky C.S. , “Ruling May Let Pinzon Practice Again,” Tampa Tribune, Oct. 22, 1997, at A1.

See Lima P. , “Doctor Wins Back License,” Tampa Tribune, Dec. 7, 1997, § 1 (Metro).

See supra p. 317, for cases in addition to Pinzon-Reyes.

See Palosky , supra note 183.

See Personal Communication with Graber Martha L. , M.D., Clinical Chief, Nephrology, Department of Medicine, University of California, San Francisco (Aug. 10, 1998).

See Ellis , supra note 87.

“Grand Jury Indictment,” Tampa Tribune, Nov. 22, 1996, at A10.

See Friedman , supra note 33, at 32 (noting that oxygen pumped through a ventilator was lowered and the patient was given morphine; potassium chloride was administered when the patient's heart stopped beating but then started again and continued beating for fifty minutes).

See Orentlicher D. , “The Supreme Court and Physician-Assisted Suicide: Rejecting Assisted Suicide but Embracing Euthanasia,” New Engl. J. Med., 337 (1997): At 1236. See also Quill , supra note 104, at 1769–70.

Jury nullification occurs when a jury disregards the evidence presented at trial and acquits an otherwise guilty defendant because it objects to the law that the defendant violated, or to the application of the law to that defendant. See generally, Butler , supra note 89, at 700–04.

See Schopp R.F. , “Verdicts of Conscience: Nullification and Necessity as Jury Responses to Crimes of Conscience,” Southern California Law Review, 69 (1996): At 2049–65.

See Finkel N.J. , “Right to Die, Euthanasia, and Community Sentiment: Crossing the Public/Private Boundary,” Law & Human Behavior, 17 (1993): At 495.

See Naramore , 965 P.2d at 223.

See id.

See id.

See id. (Brazil, C.J., dissenting).

See Scanlon C. Letter , New Engl. J. Med., 344 (1996): At 1401–02 (noting that even critical care nurses may confuse the distinctions between appropriate care that may cause death and inappropriate hastening of death). See also Emanuel , supra note 74, at 510 (noting physician confusion about what behavior constitutes assisted suicide).