End-of-Life Care: Forensic Medicine v. Palliative Medicine

See generally Gorsuch N.M. , “The Right to Assisted Suicide and Euthanasia,” Harvard Journal of Law & Public Policy, 23 (2000): 599–710; see also Finucane T. , “Thinking About Life-Sustaining Treatment Late in the Life of a Demented Person,” Georgia Law Review, 35 (2001): 691–705.

See generally Baldwin D.C. Jr. , “The Role of the Physician in End-of-Life Care: What More Can We Do?,” Journal of Health Care Law & Policy, 2 (1999): 258–267; see also Porter R. , “Failure to Treat Pain is Elder Abuse,” Trial, 37 (September 2001): 87.

See Smith D.H. Veatch R.M. , eds., Guidelines on the Termination of Life Sustaining Treatment and the Care of the Dying (Bloomington, IN: Indiana University Press, 1987): At 129.

See Levine B. , “Palliative Pain Therapy at the End of Life & Forensic Medicine Issues,” The American Journal of Forensic Medicine and Pathology, 22 (2001): 62–64; see also Spitz W.U. , ed., Spitz and Fisher's Medicolegal Investigation of Death (Springfield, Illinois: Charles C. Thomas, 1993): At 175 (stating that a natural death is caused exclusively by disease).

See Gorsuch N.M. , “The Right to Assisted Suicide and Euthanasia,” Harvard Journal of Law & Public Policy”, 23 (2000): 599–710.

See Barnett J. Detzel T. , “Ashcroft Acts to Undo Oregon's Suicide Law: The Order: The Policy Bars Lethal Doses of Federally Controlled Drugs,” Portland Oregonian, November 7, 2001, at A-1.

“AMA Supports Laws Opposing Physician-Assisted Suicide, Regulating Drug Use,” Medical Malpractice Law & Strategy, 17, no. 2 (1999): 12:

Delegates to the American Medical Association's Dec. 5–8 convention in San Diego voted to support federal legislation that would prohibit physician-assisted suicide, while voting to support regulating the use of pain medication. The AMA is continuing to back the Pain Relief Promotion Act, which was passed by the House in October. The bill would require the Drug Enforcement Administration to revoke the medical license of and pursue criminal charges against any physician who prescribes controlled substances, such as morphine, to assist in the suicide of a terminally ill patient, regardless of state law. (The law would not be retroactive, so physicians who have assisted in suicides in Oregon would not be prosecuted.) The delegates concluded that their objection to physician-assisted suicide outweighed their concerns about excessive regulation proposed by the bill; a number of physicians had felt that the increased federal oversight would be an intrusion into state-regulated medicine.

See also Medical Board of California, Effective Pain Management — Legal Update, Action Report (October 2001), at 1.

See Barnett J. Detzel T. , supra note 6.

See Orentlicher D. Caplan A. , “The Pain Relief Act of 1999,” JAMA, 283 (2000) 255–258 (reviewing the potential problems that the Act may raise for palliative care).

See id.

See Barnett J. , “Bush Policy on Suicide is Cloaked in Secrecy,” Portland Oregonian, November 11, 2001, at D-1.

See Doyle D. Hanks G.W.C. Macdonald N. , eds., Oxford Textbook of Palliative Medicine (New York, NY: Oxford University Press, 1993): At 187:

The selection of an appropriate drug and the implementation of an optimal dosing regimen depend on a comprehensive assessment of the pain, medical condition, and the psychosocial status of the patient, followed by repeated evaluations during the course of therapy. The management of chronic pain with adjuvant analgesics, therefore must be viewed as a labour-intensive endeavor, in which frequent contact with the patient is necessary to ensure appropriate administration of the dmg.

See also Eguchi K. Klastersky J. Feld R. , eds., Current Perspectives and Future Directions in Palliative Medicine (Hong Kong: Springer, 1980).

Md. Code Ann., [Health–Gen.] § 4–212 (1995):

A certificate of death regardless of age of decedent shall be filled out and signed by: The medical examiner, if the medical examiner takes charge of the body; or if the medical examiner does not take charge of the body, the physician who last attended the deceased. In the absence or inability of the attending physician or with the attending physician's approval, the certificate may be completed by: The attending physician's associate, the chief medical officer or designee of the institution in which death occurred, or the physician who performed an autopsy upon the decedent, provided the individual has access to the medical history of the case and death is due to natural causes. The person completing the cause of death and medical certification shall attest to the accuracy by signature or by an approved electronic process.

See id.

Id.:

Each individual concerned with carrying out this subtitle promptly shall notify the medical examiner if the deceased was not under treatment by a physician during the terminal illness, the cause of death is unknown, or the individual considers any of the following conditions to be the cause of death or to have contributed to the death: An accident, homicide, suicide, alcoholism, criminal or suspected criminal abortion or another external cause.

Md. Code Ann., [Health–Gen.] § 5–309 (1999) (“Medical examiner's cases to be investigated include deaths by violence, by suicide, by casualty or if the deceased was in apparent good health or unattended by a physician and in any suspicious or unusual manner.”).

Snyder v. Holy Cross Hosp., 352 A.2d 334, 342 (Md. Ct. Spec. App. 1976) (holding that where cause of death could not be determined without an autopsy, the interest of the state in ascertaining the true cause of death outweighed the interest of a Jewish Orthodox family that did not want an autopsy on the body of their son who died suddenly at age eighteen).

Md. Code Ann., [Health–Gen.] § 5–310 (2003):

When cause of death is established to a reasonable degree of medical certainty, the medical examiner who investigates the case shall file in the medical examiner's office a report on the cause of death within 30 days after notification of the case. If the medical examiner who investigates a medical examiner's case considers an autopsy necessary, the Chief Medical Examiner, the Deputy Chief Medical Examiner, an assistant medical examiner, or a pathologist authorized by the Chief Medical Examiner shall perform the autopsy.

See Sippio v. State 714 A.2d 864, 871(Md. 1998); see also Schlossman v. State, 659 A.2d 371, 381 n.5 (Md. App. 1995).

See id.

See id.

The Office of the Chief Medical Examiner has a computerized system, AS 400, that allows for search and retrieval based on codes used by the Maryland Department of Health and Mental Hygiene.

See Records of the Office of the Chief Medical Examiner, State of Maryland (on file at the Office of the Chief Medical Examiner, accessible with the permission of the Chief Medical Examiner).

See id.

See Spitz , supra note 4, at 175.

See id.

See Records of the Office of the Chief Medical Examiner, supra note 24.

See id.

See Adams J.H. Duchen L.W. , eds., Greenfield's Neuropathology (New York, NY: Oxford University Press, 1992): At 1001, 1345 (supranuclear palsy is a prototype subcortical dementia demonstrating diffuse symmetric neuronal loss).

See Records of the Office of the Chief Medical Examiner, supra note 24.

See notes supra 14–17.

See Records of the Office of the Chief Medical Examiner, supra note 24.

See id.

See Adams Duchen , supra note 30; Cotran R.S. , eds., Robbins Pathologic Basis of Disease (Philadelphia: W.B. Saunders, 1994): At 1333.

See Karch S.B. , The Pathology of Drug Abuse (Boca Raton, FL: CRC Press, 1993): At 266 (describing ten cases where death was attributed to methadone with findings consistent with respiratory arrest).

See Records of the Office of the Chief Medical Examiner, supra note 24. After giving her mother the methadone, the daughter successfully had the morphine prescription filled, after which she came home to find her mother unresponsive.

See id.

See id.; Md. Regs. Code tit. 10.07.02 § 15A (2003) (“Pharmaceutical services shall be provided in accordance with accepted professional principles and appropriate federal, State and local laws.”)

See id.

See Md. Code Ann., [Health–Gen.] § 5–310 (1994) (detailing how the findings of the OCME are challenged):

Except in a case of a finding of homicide, a person in interest as defined in § 10–611(e)(3) of the State Government Article may request the medical examiner to correct findings and conclusions on the cause and manner of death recorded on a certificate of death under § 10–625 of the State Government Article within 60 days after the medical examiner files those findings and conclusions. (ii) If the Chief Medical Examiner denies the request of a person in interest to correct findings and conclusions on the cause of death, the person in interest may appeal the denial to the Secretary, who shall refer the matter to the Office of Administrative Hearings. A contested case hearing under this paragraph shall be a hearing both on the denial and on the establishment of the findings and conclusions on the cause of death. (iii) The administrative law judge shall submit findings of fact to the Secretary. (iv) After reviewing the findings of the administrative law judge, the Secretary, or the Secretary's designee, shall issue an order to: 1. Adopt the findings of the administrative law judge; or 2. Reject the findings of the administrative law judge, and affirm the findings of the medical examiner. (v) The appellant may appeal a rejection under subparagraph (iv) 2 to a circuit court of competent jurisdiction. (vi) If the final decision of the Secretary, of the Secretary's designee, or of a court of competent jurisdiction on appeal, establishes a different finding or conclusion on the cause or manner of death of a deceased than that recorded on the certificate of death, the medical examiner shall amend the certificate to reflect the different finding or conclusion under §4–212 and § 4–214 of this article and § 10–625 of the State Government Article.

Personal communication from Laurie Bennett, Administrative Law Judge of the Maryland Office of Administrative Hearings, to author (November 17, 1999).

See Patricia Drummond v. Office of the Chief Medical Examiner, Maryland Office of Administrative Hearings, No. 93-DHMH -CME-96-039786.

See id at 15–16.

See id. at 10.

See id. “Her care providers prescribed Roxanol (i.e. liquid morphine), 5 ccs every six hours, on the reasonable assumption that she was in considerable pain.” Additionally, the medication was increased and “As the appellant's pain intensified, Dr. Fieldson [the treating physician] increased the Roxanol prescription from 5 ccs every six hours to every four hours.” Id. at 11. Dr. Fieldson increased the Roxanol to five cc every three hours just before her death. See id. at 11–12. See also Mostofsky D.I. Lomranz J. , eds., Handbook of Pain and Aging (New York, NY: Plenum Press, 1997): At 89 (reporting few studies assessing pain in patients with dementia and stating, “As dementia progresses, direct assessment of the patient may become impossible”).

See Drummond , supra note 44, at 20.

See id. at 23.

See Drummond , supra note 44, at 25.

See id.; Ashburn M.A. Rice L.J. , eds., The Management of Pain (New York, NY: Churchill Livingstone, 1998): At 134 (contradicting the findings of the hearing and stating, “The development of tolerance is a slow process occurring over months to years. Studies in cancer patients have demonstrated that most patients reach a dose that remains constant for prolonged periods.”); Letter from John E. Smialek, Chief Medical Examiner, State of Maryland, to Mr. Leonard Collins (September 28, 1999) (on file with author) (reviewing the toxicologic findings of Natalie D. Eddington, Associate Professor of Pharmaceutical Sciences and concludes that the level of morphine “is not consistent with the accounts given by family members.”); Levine B. , “Palliative Pain Therapy at the End of Life & Forensic Medicine Issues,” The American Journal of Forensic Medicine and Pathology, 22 (2001): 62–64 (reviewing the literature and finding that morphine levels as high as 1000 ng/ml have rarely been reported for cancer patients receiving palliative pain therapy). In Drummond, the free morphine concentration was several times higher than the highest free morphine reported in multiple studies.

See Drummond , supra note 44, at 29 ([Bly a preponderance of the evidence … the findings of the Chief Medical Examiner as to the cause and manner of death were incorrect.”) See Records of the Office of the Chief Medical Examiner, supra note 24 (the Secretary of the Department of Health or designee may adopt or reject the findings in such a matter but the Secretary never reviewed the case to decide for himself how the Department should view the findings).

See id.

See Drummond , supra note 44, at 28.

See Records of the Office of the Chief Medical Examiner, supra note 24.

See id.; Levine B. , “An Unusual Morphine Fatality,” Forensic Science International, 65 (1994): 7–11 (reporting that, “Next to ethanol, morphine from heroin use is the most frequently encountered drug of abuse on cases investigated by the office of the Chief Medical Examiner, State of Maryland (OCME)”).

See Records of the Office of the Chief Medical Examiner, State of Maryland.

See id.; see also Garland G. , “Differing Views on Discipline for Doctors: Legislative Report Recommends Changes to Streamline System,” Baltimore Sun, December 5, 2001, at 4B.

See Hirsch C.S. Flomenbaum M. , “Problem-Solving in Death Certification,” Check Sample, 8, no. 1 (1995): 1–31, at 8.

See id. at 18.

See id. at 8.

See id. at 21.

See id. at 29.

See Doyle D. Hanks G.W.C. Macdonald N. , eds., Oxford Textbook of Palliative Medicine (New York, NY: Oxford University Press, 1993): At 7.

See Smith Veatch , supra note 3.

See Thompson B.A. , “Final Exit: Should the Double Effect Rule Regarding the Legality of Euthanasia in the United Kingdom Be Laid to Rest,” Vanderbilt Journal of Transnational Law, 33 (2000): 1035–1077.

Sulmasy D.P. , “Commentary: Double Effect — Intention is the Solution, Not the Problem,” Journal of Law, Medicine & Ethics, 28, no. 1 (2000): 26–28.

See id.

See DiMaio D. DiMaio V.J.M. , Forensic Pathology (Boca Raton, FL: CRC Press, 1993): At 4.

See Spitz , supra note 4, at 177; Cantor N.L. Thomas G.C. , “The Legal Bounds of Physician Conduct Hastening Death,” Buffalo Law Review, 48 (2000): 83–173, at 111 (“When a terminal patient is given risky analgesics, causation is always an issue. It is very difficult to establish that analgesics hastened a dying process when critical natural pathologies were already afflicting the debilitated, terminally ill patient.”).

See Hirsch Flomenbaum , supra note 60.

See Orentlicher D. Caplan A. , “The Pain Relief Act of 1999,” JAMA, 283 (2000): 255–58.

After the administrative hearing, staff members of the Forensic Medicine Center were required to attend an End of Life Seminar on Palliative Care and Pain Management on May 24, 1999.

See Orentlicher Caplan , supra note 74.

See Cantor Thomas , supra note 71.

See id.

See id.

See Weiner R.S. , eds., Pain Management: A Practical Guide for Clinicians (Boca Raton, FL: CRC Press, 1998): At 705.

Bourguignon H.J. Martyn S.R. , “Physician-Assisited Suicide: The Supreme Court's Wary Rejection,” University of Toledo Law Review, 31 (2000): 253–72.

Id. at 264–65 (further describing the impact of the process as severe even if the investigation results in only a warning).

“Emerging Issues in Health Care,” Health Law, 12, no. 2 (1999): 21–23, at 22.

See Goodman E. , “A Doctor Taken to Task for Under-Treating his Patients' Pain,” Baltimore Sun, September 14, 1999, at A17.

Id.; The American Board of Medical Specialties, at <http://www.abanes.org/certification/sub_req.html> (last visited September 9, 2003):

Pain management is the medical discipline concerned with the diagnosis and treatment of the entire range of painful disorders. Because of the vast scope of the field, pain management is often considered a multidisciplinary subspecialty. The expertise of several disciplines is brought together in an effort to provide the maximum benefit to each patient. Although the care of patients is heavily influenced by the primary specialty of physicians who specialize in pain management, each member of the pain treatment team understands the anatomical and physiological basis of pain perception. …

See “Physicians Palliative Care Pain Hotline Update,” Maryland Board of Physician Quality Assurance, 9, no. 3 (2001): At 4.

See Meisel A. Jernigan J.C. Youngner S.J. , “Prosecutors and End-of-Life Decision Making,” Archives of Internal Medicine, 159 (1999): 1089–95.

See Records of the Office of the Chief Medical Examiner, supra note 24.

See id.

See id.

See id.; Personal communication from Ann Dixon, former Deputy Chief Medical Examiner in Baltimore, Maryland, to author (February 25, 2000).

See id.

See id.

See id.

See Wilber D.Q. Youssef N.A. , “Son Spared Charges in III Mother's Death,” Baltimore Sun, March 5, 1999, at B-1.

See Hall M.A. , Health Care Law and Ethics in a Nutshell (St. Paul, MN: West Group Press, 1999): At 316.

See Thompson , supra note 67.

See Letter from Jack Schwartz, Assistant Attorney General and Director of Health Policy Development, State of Maryland to Ms. Becky Sutton of Hartley Hall Nursing Home (March 5, 1999) (on file with author).

See Sulmasy , supra note 68.

See id. at 28.

See Glauber B. , “Scarred by Evil, Haunted by What-Ifs,” Baltimore Sun, February 6, 2000, at A1.

See Vacco v. Quill, 521 U.S. 793, 807 n.11 (1997).

See Md. Code Ann., [Crimes & Punishments] § 27–416.

See Alpers A. , “Criminal Act or Palliative Care? Prosecutions Involving the Care of the Dying,” Journal of Law, Medicine & Ethics, 26, no. 4 (1998): 308–26, at 309:

Eight years ago when the Minnesota cases were investigated, lawyers and ethicists assured physicians that “Nobody has gone to jail for administering too much morphine to a dying patient.” That statement no longer holds true. In 1997, a Kansas jury found Dr. L. Stan Naramore guilty of attempted first-degree murder after he gave injections of fentanyl and Versed to a seventy-eight-year-old woman who was dying of cancer.

See Meisel Jernigan Youngner , supra note 88.

See id.

See id. at 1094.

See id. at 1091.

See id. at 1091–92.

See Schwartz J. , “Symposium: Trends in Health Care Decisionmaking,” Maryland Law Review, 53 (1994): 1041–43.

78 Op. Att'y Gen. 109 (1993).

See Gorsuch , supra note 5.

See Rogers J.K. , “Punishing Assisted Suicide: Where Legislators Should Fear to Tread,” Ohio Northern University Law Review, 20 (1994): 647–58, at 651:

Although one can mount a tenable argument that antiassisted suicide laws are unconstitutional, compelling public policy reasons are as important as constitutional concerns in rousing opposition to such bills. Upon examination, the bills do considerable damage to the doctor-patient relationship, and essentially ‘throw to the wolves’ people who seek relief from intense suffering. At the same time, they do not snare the intended culprit: Renegade doctors (if such exist) who recklessly dispatch patients to a premature death.

See “Prescribing Controlled Drugs,” Maryland Board of Physician Quality Assurance, 4, no. 1 (1996): 1–3.

See id. at 3.

See supra note 4.

See Siegel A.F. , “Judge Frees Teen Whose Girlfriend Killed Herself,” Baltimore Sun, September 23, 2000, at B-1 (discussing the first case applying Maryland's law banning assisted suicide, in which the court rejected the argument of a teenager accused of providing a firearm to assist in his girlfriend's death that the assisted suicide law should apply only to health-care workers).

Rogers , supra note 115.

See Alpers , supra note 106, at 308 (“Although the county attorney [in a 1990 Minnesota case] determined the deaths were homicides, he believed that he had little chance of conviction because the elements of the crime could not be proved beyond a reasonable doubt.”).

See Cantor Thomas , supra note 71, at 117 (“A reckless state of mind is sufficiently culpable to prove murder or manslaughter under the MPC. … Under a recklessness framework, the issue shifts from the physician's specific intent to whether the risk created by the analgesics is justified.”).