Opinion | Why I Defended William Husel in Court

A well-known proverb exclaims, “the law is an ass.” When we say “ass,” here we refer to the donkey variety. “Ass” is the origin of the word asinine, meaning stupid, foolish, and obstinate. To be fair to donkeys, this is not justified. Nevertheless, when it comes to the law, rigidity and obstinance are, on occasion, fair criticisms.

The recent trial of William Husel, DO, is an example of how the worst of the law can crush the most unlikely person. I was the lone expert for the defense in the murder trial against Husel. The prosecution called 53 witnesses. But before we delve into the specifics of the Husel case, I must offer some legal background.

A Fish Out of Water: Physicians in Court

It is natural for doctors to be uncomfortable in court. It is not our environment and the rules of engagement are distinct and particular. The court seeks an expert when it believes it requires knowledge on a subject outside of what the average person may be expected to know. An expert is the only sort of witness who can provide opinion evidence as opposed to facts alone. In exchange for the opportunity to provide opinion, the expert must also do so in good faith. Experts set their own fees, usually hourly, and the compensation can be significant. The challenge here is the potential conflict of interest risked through hefty remuneration. For my work on the Husel case, I did not charge any fee for my opinion. I did not want any suspicion of financial motivation.

Professions like medicine provide services to the public after physicians first obtain a license from a state medical board. The license informs the public that the physician has the necessary skills for the job, but more importantly, sets the standard of practice that is the basis of all legal claims of negligence. When the law considers a wrong, it classifies it as either a non-criminal wrong (tort) or a criminal wrong. A tort wrong is a case of one person against another that is usually the consequence of negligence and resulting in harm. In a criminal wrong, the state charges an individual who allegedly violated the criminal code.

When doctors are in court, it is generally the result of a tort claim of negligence. To prove negligence, two elements are needed. First, the physician’s practice must have been shown to have deviated from the standard of care. Second — and this is critical — the deviation of care must have resulted in a measurable harm. The remedy for a tort claim is money and the amount of money paid is determined by quantifying, for example, a loss of income and pain and suffering. When considering a negligence claim, a judge cannot look in a book like the criminal code. Instead, an expert must be identified who has specific knowledge of the standard of care and can compare it with the care in question.

A criminal wrong is handled much differently. It is highly unusual for a physician to be criminally charged as a consequence of actions performed on the job. Criminal action requires both actus reus, a guilty act, and mens rea, a guilty mind. The distinction between a negligent act and a criminal act speak to a state of mind. In a criminal act, the remedy is prison and the stain of conviction and incarceration is lifelong. In many instances, a criminal record is career ending as licensing after a criminal conviction is no longer possible.

The Husel Case

William Husel faced 14 counts of murder in the lawsuit against him. The prosecution has considerable latitude in what charges will be brought, and a murder charge in Ohio carries the possibility of punishment by execution. In the case of Husel, the charges against him did not carry the possibility of the death penalty, but if he was found guilty in just one of the 14 cases, he would have very likely been in prison for the rest of his life. In a criminal case, the prosecution has the burden to prove guilt and if they fail to do so, the defendant walks free and has immunity from being recharged. In a jury trial like Husel’s, all 12 members of the jury had to be unanimous. The alternative, a hung jury, would result in a mistrial, and in that case, there is no immunity and he could be recharged and face a new trial.

In Husel’s case, the prosecution claimed that during a series of planned and family consented palliative extubations, Husel used dosages of fentanyl in a sufficient quantity that could only be explained by mens rea. The prosecution claimed his actions were so far out of standard practice that only a person with the specific intent to kill could have done so. Further, the seeking of death in each patient must have been an act of malice aforethought. Some doctors advocate euthanasia. In this practice, death is sought out of compassion to reduce suffering and delivered in a fashion as painless as possible. Husel was not charged with practicing euthanasia in Ohio (currently forbidden by law) but was charged instead with seeking to kill patients by murdering them.

I am a practicing anesthesiologist/intensivist and am familiar with the clinical scenarios around care at the end of life that Husel faced. Husel was working the night shift, and in several cases, the decision to withdraw care was made by the day shift doctor. Husel was up front and open about his practice. He hid nothing. He had no pattern of cruelty and no one ever heard him speak with murderous intent. Physicians know the line that separates the desire to reduce suffering and the murderous mind. In short, the accusation of murder against Husel was not only entirely without merit but was itself an egregious overreach by the prosecutors against the self-governing profession of medicine.

Criminal prosecution against Husel may have been an anomaly or may reflect the legal zeitgeist that seems intent on seeking to practice medicine from the bench or transform civil negligence to criminal negligence. This was tragically demonstrated in the case of former Tennessee nurse RaDonda Vaught who was wrongly found guilty of criminal negligence. This decision was based on a foolish dismantling of the just culture initiative, an important system of shared accountability where the organization is accountable for the system it has put in place. Such prosecutor behavior will next charge pilots for murder when an engine falls off and the plane crashes. If Husel had lost, every physician in America would need to think very hard about giving a single microgram of fentanyl to a dying patient in order to avoid being accused of murder.

Legal decisions follow stare decisis, the principle of making decisions based on precedent. The profession of medicine has wisely navigated self-governance for much longer than prosecutors have existed. The jury saw through the prosecutorial malfeasance and found Husel innocent, which can benefit future patients at the end of life. For now, stare decisis will protect the thoughtful use of fentanyl by physicians. How durable are such protections? This remains to be seen.

Joel Zivot, MD, is an associate professor of anesthesiology and surgery at Emory University School of Medicine in Atlanta.