Joel Zivot, MD, of Emory University in Atlanta, was the only witness called by the defense. Wes Ely, MD, of Vanderbilt University and the Nashville VA, was one of 53 witnesses called by the prosecution.

In this exclusive MedPage Today video, Zivot and Ely discuss the finer points of the case, such as the lack of guidelines on end-of-life opioid dosing, plus the intent of relieving pain versus the intent of shortening the dying process.

A transcript of the conversation follows:

Zivot: I think that the issues around the Husel case — there was a lot of focus on dosage, and I understand where the concern around dosage would be relevant. In medicine, we spend a lot of time thinking about dosage. Many other kinds of medications that we administer, of course, have an associated dosage with them.

Now what’s tricky about opioids is that, with respect to specific dose, we understand that there’s a variety of responses that can occur as a consequence of things like prior exposure, or the intangible problem of how much pain a person is actually having. If I’m giving a medication, for example for high blood pressure, I’ve got a very nice sharp target and I know when I’ve achieved that dose. On the other hand, the intangible problem of pain, especially around the time of death, is very difficult to measure.

And so the only thing that we can know is by engaging our empathy. We have to look at a person and imagine, if we were them, what it might feel like as we dose them.

I think that the practice reflects this in that if one looks at the literature, people are very careful not to say that one must only give dose “X” in every case. The American Medical Association, for example, when it talks about this really just specifies a quantity necessary to achieve the desired goal

Ely: Standard doses of analgesics opiates — opioids for relieving pain — really center around, for fentanyl, in the 50 micrograms to 100/200 microgram ranges as starting doses. We have to talk explicit numbers, but those numbers are not hard and fast.

The key is that if our goal, if our intent is to relieve suffering, we have to balance the risk and the benefit of the drug. So that’s why with fentanyl, for example, we would start in the 50 microgram to 100 microgram range, and then we would go up if the patient, as Dr. Zivot said, still exhibited signs of pain.

What we don’t do with these drugs is immediately jump to doses 10 or 20 times higher — that 1,000 to 2,000 micrograms — without first going with the lower doses, because the lower doses could achieve pain relief without the main problem of completely suppressing the drive to breathe. Because these drugs will suppress the drive to breathe of the brain, and fentanyl will also create intense chest stiffness that prevents someone from breathing, too. We see that all the time in the operating room.

So, the standard doses aren’t hard and fast, but the general idea is if your intent is to relieve pain: start low, go high. Don’t start way high because of the potential downsides. And as you move to the way high doses, that’s where you shift from intent [to relieve] pain to something like — for example, in countries that have legalized euthanasia — an intentional shortening of the dying process.

Zivot: Well you know, Wes, you and I of course go back in our relationship. And what I think is interesting is that you and I share some important views. So, for example, we both have grave concerns about the practice of euthanasia. We both have said publicly that we are against euthanasia. And I would stand by that now.

When I think about the Husel case, I think that when I reviewed the records, I thought that Husel was not practicing euthanasia. When you reviewed the records, perhaps that’s what you thought — that he was practicing euthanasia. And it is further, perhaps, your position — and you can correct me if I’m wrong — that euthanasia here equates with murder. Maybe that’s the place where we found ourselves at odds.

You know, the court is very limited in terms of how it can manage these sorts of things. In the conversations between physicians and in the house of medicine, we’re capable of having a more nuanced conversation. But the court is very specific as to what it means to murder, and murder, I think, was what was at stake here and murder was the problem.

Ely: Yeah. I like your answer a lot, Joel. And I don’t know what Dr. Husel’s intent was, I never claimed to know Dr. Husel’s intent, and euthanasia does pivot on intent. So, if I intentionally am doing something to shorten your dying process, that is wrong and it’s against the law. If I am intending to relieve your suffering, that is not against the law even if by double effect I do shorten your life with the drug.

Somebody who’s in the ICU is voiceless when they are in critical care, on a ventilator, and unconscious. And so we have to protect them, because the mark of a society is how do we speak for people when they are vulnerable and don’t have a voice. And so in this case, I think we have to ask ourselves the difference between palliative care and euthanasia.

There was a beautiful paper published by Charlie Sprung in 2008 that involved 17 countries in Europe, over 30 ICUs, and they studied over 3,000 people. And the unique thing about this, Joel, was that doctors admitted in which patients they were intentionally trying to shorten the dying process. You couldn’t tell by dose, by the way, the doses were similar. But what the conclusions of the paper found were that there was a gray zone here which is very difficult to define, and we’ve got to talk about this more as a society and as medicine. As you went from palliative care to euthanasia on two different spectrums, what happened was palliative care is intent to relieve pain with doses that almost never could end a life, versus intent to shorten life with doses that almost always will shorten life.

The doses of 2,000 micrograms, 1,000 of fentanyl — that will almost always stop somebody from breathing. So those doses do fall into the category of almost always going to shorten somebody’s life.

Zivot: Look, I think that Thomas Aquinas, of course, spoke about the struggle of this in the doctrine of the double effect, and the distinction between what one intends and what one foresees. And I think to your point, what Dr. Husel intended, I suppose, cannot be known.

I can surmise his intent. I don’t think he had, you know, the history or the comportment of a murderer. Now, the issue of course for the court is the idea of how to gauge intent through action.

Normally as physicians, where we’re kind of engaged or interact with the law is through the concept of negligence, and negligence is something that we think of as a non-criminal wrong or a tort. What was unusual about Husel is that Husel was now charged with a criminal wrong, and a criminal wrong is constructed very differently than a non-criminal wrong.

In a criminal wrong, one needs two elements. It needs, first of all, the guilty act, which is referred to as actus reus. And then it also needs the guilty mind, which is mens rea. This is, I think, what you were alluding to, Wes, as to how to figure out what was his mind.

Now, where I think the court erred here is that they assumed that the act alone was where the guilty mind therefore must lie. It’s the same problem with this case in your state with the nurse, where an action alone was considered to be only the thing that a person with a guilty mind could possibly do. And that’s very troubling, that’s very troubling. I think the law here has really shown itself to be strikingly limited to navigate these very important end of life kinds of questions and practices that you and I are engaging in right now.

Ely: Excellent answer. And I’ll make a couple of comments. Actus reus and mens rea — I think in this case, there was actus reus. There was a dose given, as I said, which is almost certainly going to end up shortening someone’s life. A median time of death of 12 minutes is very unusual. Mens rea, I have no idea. I do not know what was in Husel’s mind, but I do know that the families were not informed that the patient was about to get a lethal dose of drug, and they did get what I absolutely consider a lethal dose of drug.

Again, I do not know his mind or his intent, but I will say this: in the circumstance of taking care of patients in the ICU, we have to always be aware that we do have the power to actus reus, to commit a harm against a person that can’t be reversed.

In this case, what was really striking, and this was a mind turner for me, was that the pain scores for many of these people were zero all throughout the day, meaning no indication of ongoing pain, until the moment that they received 1,000 or 2,000 mcgs of fentanyl and benzos. And then, all of a sudden they were at 10. That seems to me a very unusual thing, where somebody would out-of-the-blue go from zero to 10.

The most striking thing of all to me, and I didn’t even know this really until I reviewed these cases so in depth, was that — I’ve never seen this in 30 years of medicine — all 14 death notes were part of the DNR and the withdrawal of life support note.

Now, for the general public, usually as a doctor, I would write a note. I just conversed with the family and they believe the patient would want to not be resuscitated. Then hours later, we have now chosen to withdraw support, and then maybe hours or a day or two days later, the patient has now died. But in all 14 of these people, those three notes were in the same note. I’m making them DNR, I’m taking them off the vent, they’re dead.

That to me shows that these doses were part of an active shortening of the dying process. Whether he meant to do it or not, it happened. And that’s all I was speaking to. I never would want this guy to go to jail, but I do want us to protect society for vulnerable patients. We have to set the laws up and the rules within medicine so that we don’t take advantage of people who can’t speak for themselves.

Zivot: Well, I think that you and I agree on the importance of protecting vulnerable people. I think that’s the job of medicine. The people who are the majority need no protection. It’s always the minority and the vulnerable who require our protection.

Let me say a couple things. First of all, I think that actus reus — I would say that an act occurred, but whether that’s a guilty act, I think I would push back on. I just think that an act occurred. And I think that when we think about the conflict in bioethical practice, we can probably start with the very simple first two directives of secular ethics. The first being: do no harm. And the second one: do good. So non-maleficence and beneficence.

And I think, again, that was what Aquinas and others were kind of bumping up against — how can you do something that has two actions, where one action seems to be beneficial and one action seems to do harm? Around the bioethics table or at the bedside, we can discuss this. Where I think we got into trouble here is that the law decided it had something to say here in a way that I think was ultimately very problematic.

What I do know about these cases is that in every case a conversation took place. In every case, the family agreed that the patients would be made DNR, and most of the time, as we know in intensive care, patients die because we stop. That’s the normal way to die in intensive care. It’s an unusual action that people die in intensive care in the midst of chest compressions. That’s more uncommon than common.

So, now it might be claimed that the conversation was manipulated in some way, like in the Sprung paper that you referred to — are you talking about the Ethicus Trial? Is that what you’re talking about?

Ely: Yes.

Zivot: So in the Ethicus Trial, what was noteworthy is that if you look actually just from the physician’s perspective, they looked at three end endpoints — withdrawing, withholding, and active shortening — in that study. And what was noteworthy was that depending upon the geographic location within Europe and the religion of the particular physician, the practice varied.

Now, the thing about the ICU of course is that in a normal doctor-patient relationship, a patient can pick their doctor. In the ICU, the patient doesn’t pick their doctor. So, depending upon which week it happens to be, you’ll get one doctor or another. And what’s noteworthy too, is that doctors’ practices do vary. One doctor may practice one way and another doctor may practice another way. Patients, again, have no control over this. And it may in fact be that the week you happen to be in intensive care and, depending on which doctor you have, your outcomes could be quite different.

That’s a striking kind of problem. Now, none of that is murder. So, I want to keep coming back to that. You know, what Husel did I think is worthy of conversation, and it’ll be interesting to see if Husel returns to the practice of medicine and what he himself has learned from this. But I think that in terms of the variation of physician practice, our relationship with dosage, the way that we bring in our empathy, how we talk to patients and families — these are all very important subjects.

Ely: Sure. Let me close by saying that in no way do I know or surmise whether or not any conversations were manipulated by Dr. Husel. I have no idea. What I do think is that when people sign for their loved one to get DNR orders, they don’t sign on to get a dose of drug that will stop them from breathing. And that did happen, even though the families didn’t know it.

Now, importantly, you brought up the variation of physicians. We actually know from the New England Journal of Medicine, in Flanders, Belgium in the year 2013, a paper was published that showed that of times when people were given medicines to provide palliative care, 27% of the time (and this did not get brought up in the trial) doctors were deliberately giving a dose in Flanders, Belgium to end the patient’s life. The families were not told that they were getting that dose. The doctors did intend it, and that is considered a crime in Belgium. It’s considered murder in Belgium, but they weren’t criminally prosecuted.

And what I hope happens from the awareness that came about with Dr. Husel’s situation is that we all reconsider — and I know this actually is happening at the Society of Critical Care Medicine because people contacted me yesterday and said we’re going to review this for the upcoming guidelines of pain, anxiety, and delirium — that we’re going to address and what are reasonable doses. We can’t skip steps and jump to these high doses that cause chest restriction and lack of breathing without further first going through very low doses.

Also, let’s have a system of checks and balances so that we can calibrate one another and inform one another from within medicine, rather than having to go into the courtroom to do this, which I don’t even believe in. I’d rather this be done within the context of us within medicine.

Zivot: I think that the law struggles, and I think that the law here struggled greatly in trying to navigate an important subject that really should be under the purview of medicine. And it’s our job here, I think, to make sure that we are trying to engage this subject and do a better job of conveying to the public and to each other what we intend to be, so we can draw the distinction between the reduction of suffering, active euthanasia, and even in the most extreme, unusual example, the intentional killing of a person with malice.

Ely: I think we have to ask ourselves the question of where are we going and how are we gonna get there? And I think that the answer to the first question of where we’re going is that we should proceed in medicine to do a better job of relieving human suffering while staying within the boundaries of avoiding intentionally shortening someone’s life.

The way that I think we can do that is for doctors and nurses and bioethicists to have a system of checks and balances where when we deliver palliative care, we agree that the doses we’re giving are not likely to cause more harm than good, but rather to relieve pain, relieve anxiety, shortness of breath, et cetera. That we start at the lowest doses and then watch ourselves gradually increase so that we avoid this large jump towards doses, which are then on the spectrum of very likely to shorten somebody’s life, which then leaves us in an area that we don’t want to be in.

We don’t have the right to take someone’s life, but we absolutely have the intent and the vocational calling to relieve suffering.