Houston's Clear Thinkers

Isn't it interesting that a Gov't that was involved in one of the most egregious examples of public malfeasance in the history of the country, is arresting a physician who was at ground zero in New Orleans.

Sadly, although the irony is stark, it is not surprising in these days in which prosecutorial discretion has become but a figment of our past.

One other comment: According to the story in the New York Times, there were traces of morphine found in patient's tissues. Let's assume that morphine was injected by a physician as a pain relief medication to a patient in the terminal throes of agony. Not a pretty sight, but a realistic scenario in a natural disaster the size of the Katrina mega-disaster.

Does this mean every medic, or soldier who injects morphine on the battlefield to a severely injured colleague, is subject to an attorney general's review for murder?

What are the legalities of using morphine in this situation?

I have not studied the legal standard, but it would seem logical that a doctor's duty of care should be to use his or her best judgment in caring for the patient under the circumstances presented at the time. Thus, if a doctor administers drugs under emergency circumstances that are intended to make the patient comfortable but are beyond what had been previously administered to the patient, then the doctor's judgment should not be criminalized unless there is clear evidence of malicious intent. I'm highly skeptical that a person or Dr. Pou's stature working under those conditions was doing anything other than the best that she could do for her patients under the circumstances.

Will the paramedics who tried to transport patients also be prosecuted since some patients died in transit? This is that ethics question, "If you have the capacity to save 3 people, but there are 5 people who need to be saved, who do you save and why?". Well, Dr. Pou and 2 nurses faced this question after a hurricane, flood, power outage, and 3-4 days of minimal sleep. I think they did admirably well under the circumstances.

If this prosecution goes forward, how will that affect requirements for essential medical personnel to be available to staff hospitals during disasters? Will individual nurses need to carry litigation insurance?

Tom,

I am familiar with some of the legal and ethical ramifications of this *kind* of situation, though obviously not this situation in particular. Your intuition is generally correct, but the decision of whether to prosecute (and the ultimate questions of fact) turn entirely on mens rea. No one disputes the actus rea; the question is solely what did the physician intend.

(You can see how closely related all of this is to the doctrine of double effect, as well).

Unfortunately, this is not the first time charges have been brought against a physician for prescribing morphine that seemed to cause respiratory failure (which itself is much, much rarer than most people think). A similar incident (not contextually similar, of course) occurred in Fort Worth several years ago.

Of course, I entirely agree with you on the (de)merits of charging the physician with murder in such a situation. What a travesty.

Kenneth,

FWIW, my answers to your questions:

(1) unless there is evidence suggesting that it was the actions of the paramedics themselves that played a causal factor in the patients' deaths, there is no way they could be charged with anything, since they do not "do" anything (in an actus rea sense) that brought about the patients' respective deaths, any more than any other paramedics "do" anything to cause the death of a patient that dies in transit.

(2) Your second question is excellent. Such prosecution could indeed have a chilling effect on health care providers' willingness to man the fort, so to speak, during times of disaster. That is unwise public policy, to say the least. Nurses, as employees of the hospital, are typically insured under the facility's malpractice policy.

I'm not an attorney, but am greatly dismayed by the prosecution of Dr. Pou. I guess the Louisiana AG is up for re-election.

1. Yes, nurses often carry malpractice insurance. I just went to the NSO (professional nursing organisation). For a nurse, who works full time in critical care, the premium for 1-6 million of coverage is about 1100.00. For an Ob-Gyn nurse upwards of 1400.00/year. For my wife, who covers diabetes 620.00, but I bet more if the agent knew what she does.

2. I have been in practice for over 25 years. Although I am not in critical care, I have never seen an overdose of morphine administered. It is clearly not common.

However, I have never been in a battlefield situation, or a catastrophic hurricane power-outage flood situation. The 'tenets' of medical practice we learned in school are certainly not as clear in a disaster/battlefield situation as in normal practice. Rather than a 'murder' charge, this situation should be looked at for future ethics guidelines.

BTW, the study of 'ethics' is drastically changing. I am pretty certain my home town (pop 1500) doctor would be convicted of multiple ethical violations today since he tended to live with, talk with, and golf with his patients.

I am not an expert in insurance coverage, but my malpractice policy does not cover criminal charges related to my practice, nor does my "Umbrella" policy, nor did the hospital where I used to work as an employee. Malpractice insurance for physicians in my state is astronomical. It is senseless to give numbers here because coverage can vary. In addition medical specialty, geographic area of practice, and history of malpractice allegations all play a role in determining the cost of coverage. Pou, Budo, and Landry are probably on their own as far as footing the bill for their defense.

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