THE CALIFORNIA CASE
Transferred from his nursing home to the hospital for the third time in a month, elderly patient Morris E. suffered from emphysema, severe cardiomyopathy, renal failure, progressive sensory-motor neuropathy and an inability to swallow. At the time of this final trip to the hospital, Morris E. was incoherent and had what his son called “a wicked cough.”
Both his son and the attending physician, Dr. Harold Luke, believed that Morris E. was “actively dying.” His two daughters were summoned from out of town. The family members at the bedside insisted that Dr. Luke follow Morris E.’s end-of-life directives. He had appointed his son to make health care decisions for him. He requested alleviation of pain, but no life-prolonging measures such as antibiotics or nutrition. Dr. Luke withdrew those treatments and continued intravenous morphine sulfate at the rate of 5 mg. per hour. Two days later, Dr. Luke increased the dosage to 50 mg. per hour. About an hour later, Morris E. died.
A nurse on duty questioned the higher dosage as soon as she knew about it. During her assessment of the patient, she had not observed signs of pain or increasing distress. None of the other nurses had noted signs of pain or distress that day. They described the patient as semi-conscious and withdrawn. There were no contemporaneous notes from Dr. Luke in the file.
After the death of Morris E., a complaint was made to the California Medical Board alleging negligence, dishonesty and failure to maintain adequate medical records in regard to Morris E. Although he didn’t create written notes that afternoon, Dr. Luke testified later that he visited the patient several times. Morris E. was “gasping for breath” at one point and “looking scared” later. No nurse was available, so Dr. Luke adjusted the infusion pump to give a ten fold larger dosage of morphine sulfate. Fifteen minutes later, the patient smiled at him, Dr. Luke said. In his discharge summary, Dr. Luke wrote that Morris E. received “terminal compassionate care” as requested by his family.
Experts testified before the board, offering varied opinions about how much morphine should be provided to a dying patient. The board was told that a physician caring for an actively dying patient has the duty to provide morphine sulfate or some other drug in an amount sufficient to ease the dying patient’s pain, even though doing so may have the unintended but foreseeable effect of hastening the patient’s death. California law permits this. However, the law prohibits the administration of excessive doses of potentially lethal medications when the primary intent is to bring about the patient’s premature death.
As the board put it, “there is a recognized ethical line between helping a patient die comfortably and making the patient die.”
According to the complaint against him, Dr. Luke’s actions negligently hastened the patient’s death. Dr. Luke testified that he doesn’t believe in “physician-assisted suicide or euthanasia.” At the time, Dr. Luke was board certified in Family Practice. He had been licensed since 1973 and had not been the subject of any other disciplinary action or malpractice claim. About half of his practice involved geriatric and hospice patients.
HOW OTHER BOARDS WOULD HANDLE THE CASE
The Ohio Medical Board Responds
“The Ohio Medical Board could not consider disciplinary action in this case scenario unless information obtained through investigation yielded reliable, probable and substantial evidence of a violation of Section 4731.22(B)(6) and/or (B)(10) Ohio Revised Code or other disciplinary statutes. Section 4731.22 (B)(6) permits the board to impose discipline if a physician’s actions constitute a departure from or failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established and (B)(10) allows discipline based upon acts constituting a felony. Additionally, it would need to be determined if the actions of the physician qualified for immunity from professional disciplinary action under Ohio Revised Code Section 2133.11. This statute permits provision of medication administered through judicious titration or in another manner to diminish a terminally ill patient’s pain or discomfort, but not for postponing or causing the patient’s death, even though it may appear to hasten or increase the risk of the patient’s death.”
The North Dakota Board of Medical Examiners Responds
Rolf P. Sletten, J.D., executive secretary and treasurer of the board, said, “The truth is that Dr. Luke euthanized this patient. Fifty milligrams of morphine per hour is far beyond the therapeutic range and far beyond the dose needed to make the patient comfortable during the last hours of his life. In other words, Dr. Luke clearly crossed the line from easing the patient’s pain to intentionally causing his premature death. That being the case, disciplinary action should be brought against him. It can be argued that intentionally causing the premature death of a patient is the worst of physician conduct and should always be met with the most severe sanctions the board can impose. Nevertheless, it is my opinion that the North Dakota Board of Medical Examiners would give great weight to the fact that, although this physician’s actions were misguided, he was unquestionably seeking to relieve the suffering of a patient who had only a very brief time to live. I believe this board would place Dr. Luke’s license on probation subject to the condition that he attend a number of courses on prescribing and ethics. The specific conditions might be less important than the message that another incident of this sort would unquestionably result in revocation of his license. In 2000 the North Dakota Board refused to license a physician whose Illinois license had been revoked because of an incident almost identical to Dr. Luke’s case. The two cases are distinguished by the fact that the Illinois physician injected his patient with potassium chloride, a non-therapeutic drug, while Dr. Luke administered morphine sulfate.”
THE CALIFORNIA OUTCOME
After a nine-day hearing, an administrative law judge found that Dr. Luke committed “gross negligence” in the case of Morris E. The Medical Board of California agreed and revoked his license in September 2005.
Dr. Luke appealed the decision. During the appeal, the family of Morris E. and various patient advocacy groups rallied to support Dr. Luke.
Karen Tucker, legal director for Compassion and Choices, said, “If an administrative law judge could, after the fact, second-guess what the intent of a physician at the bedside of a dying patient was, then no physician will feel safe in treating the symptoms of a dying patient.”
To clarify his state of mind, Dr. Luke provided the Medical Board with new information. He said, “I have, for the totality of my life, been a practicing Chinese Seventh Day Adventist. I am devout in my beliefs….As a practicing Chinese Seventh Day Adventist, I am incapable of intentionally taking or intentionally hastening the passing of any human life. To do so would violate the core beliefs that I have held throughout my life.”
In March 2006, after reconsideration, the board found Dr. Luke committed a “simple departure” from the standard of care when he made a sharp increase in the dosage of morphine sulfate. The board decided not to revoke his license, but to make a public reprimand of Dr. Luke for his failure to maintain adequate records of his care of Morris E. Also, Dr. Luke was sent to a course in medical record keeping.
When asked if there was a turning point in California’s reconsideration of the case, Executive Director David Thornton replied, “The panel members reviewed the complete record and on reconsideration believed the initial action of revocation was not warranted.”
