An unprecedented case about end-of-life care has put the ethical and legal implications of high-dose painkillers front and center.
“Clinicians are concerned about triggering investigations from healthcare licensing boards, the DEA, and their own administrators. Since this fear may chill appropriate symptom control, it is a critical time for targeted investigation,” asserts Thaddeus Mason Pope, JD, PhD, HEC-C, professor of law at Mitchell Hamline School of Law in St. Paul, MN.
An Ohio critical care physician was accused of killing 14 patients with opioid overdoses over a four-year period.1 Recently, the physician was acquitted of 14 counts of second-degree murder. Prosecutors had to prove beyond a reasonable doubt not only that the drugs were the direct cause of the critically ill patients’ deaths, but also that the physician intended to kill the patients.
Ultimately, the jury decided the state had not proven the physician deliberately ended the patients’ lives. “This case illustrates the doctrine of double effect, an almost universally supported ethical and legal doctrine,” Pope says.
The physician administered extremely high doses that may have caused his patients’ deaths, and he probably knew those doses could hasten his patients’ deaths. “But none of that is criminally culpable, so long as [his] intent was to alleviate suffering,” Pope explains.
Pope notes the physician was tried only for murder and attempted murder. “He was not tried on lesser charges, such as reckless homicide, because they do not require intent to kill and are precluded by the doctrine of double effect,” Pope says.
Reckless homicide would have required the state to prove only that the physician acted in reckless disregard for the patients’ safety. “Ohio law codifies the doctrine of double effect, affording legal immunity for acting consistently with the doctrine of double effect,” Pope says.
Reckless homicide basically charges that the physician did not want to cause the deaths, but knew it was probable. “Yet, that is consistent with the doctrine of double effect. Knowledge that one’s conduct will hasten death is OK, so long as the intent was pain control,” Pope says.
Withholding or withdrawing life-sustaining treatment with informed consent “is a well-settled patient right,” Pope says. Still, some clinicians remain concerned such deliberate conduct (e.g., deactivating an ICD) constitutes euthanasia or murder.2
Similarly, some clinicians are wary of administering high doses of painkillers at the end of life that could hasten death.
“The doctrine of double effect immunizes such conduct. Clinicians should not be afraid to administer the types and amounts of pain medication the patient needs,” Pope says.
Indeed, such medication might cause an earlier death. “But this is not euthanasia or murder, so long as the clinician’s intent is to relieve pain and suffering,” Pope says.
Clinicians can demonstrate this intent by documenting the intractability of pain to lower doses before administering higher doses.
Despite the acquittal in the criminal case, the physician still could face a wide range of other sanctions, including termination of employment, medical board suspension of his license, and medical malpractice lawsuits.
“This could chill some clinicians from administering higher doses of painkillers, even when indicated,” Pope offers.
Even if clinicians are unconcerned about criminal liability, they may be worried about triggering regulatory investigations. Pope suggests ethicists use this case as a jumping-off point to educate clinicians on ethical use of painkillers. “Ethicists can assure clinicians that administering drugs for symptom treatment is not euthanasia, assisted suicide, or murder,” Pope suggests.
It also is a good time for hospitals to ensure clarity in their policies and procedures. “Ethicists can clarify that higher doses of painkillers can be appropriate, even when they risk hastening the patient’s death,” Pope adds.
REFERENCES
- Dyer O. Ohio doctor is acquitted of murdering 14 intensive care patients with fentanyl overdoses. BMJ 2022;377:o1051.
- Goldstein NE, Cohen LM, Arnold RM, et al. Prevalence of formal accusations of murder and euthanasia against physicians. J Palliat Med 2012;15:334-339.
Some clinicians are wary of administering high doses of painkillers at the end of life that could hasten death.
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