'Mercy killings' and transplants: When are we dead?

A Pillar interview

Credit: Shutterstock.

An Ohio physician, Dr. William Husel, was acquitted in a murder trial this month; he was accused of murdering 14 patients to whom he had given lethal doses of fentanyl. The case raised questions about medical ethics, palliative care, and “mercy killings.”

Among expert witnesses in the trial was Dr. Wes Ely, a professor at Vanderbilt University Medical Center and the associate director of aging research for the Tennessee Valley Veteran’s Affairs Geriatric Research Education Clinical Center.

Ely, an expert in the treatment and ethics surrounding critical illnesses, is also the founder of the Critical Illness, Brain Dysfunction, and Survivorship Center, an organization devoted to research and ongoing care for patients and families affected by critical illness.

He talked with The Pillar’s Charlie Camosy about the Husel trial, the ethics of death, and the work of Catholic hospitals.

This conversation has been edited for length and clarity.

The two-month long murder trial of Dr. William Husel has come to an end. The jury found him not guilty on all 14 counts. You served as an expert witness in the trial, and among other things mentioned that Dr Husel gave his patients enough fentanyl to kill an elephant. 

In a recent email, you mentioned that the median time to death after the injections for the 14 cases in question was 12 minutes. What's your reaction to this verdict?

I have mixed emotions.

I want to trust the justice system and I want to know that in the United States, that a jury of our peers can make good and well informed decisions that we can live by and achieve justice in our society.

On the other hand, this is a physician who we absolutely know gave upwards of one to 3,000 micrograms of fentanyl to 14 people, actually 25 people, but only 14 were taken to trial.

That amount of medication completely stops the brain from sending signals to breathe so that we would stop breathing at all if we get that amount of a narcotic opioid. In addition to that, with high doses of fentanyl like that in the operating room, we see very tight chest wall muscles so that we physically can’t breathe, even if you want to.

So in your view this is killing?

I think that these doses did kill these people. They were very critically ill people, and, yes, they were dying, but we are all dying over time. The patients weren’t going to die in 12 minutes, which was the average time to death after the drugs were injected.

At the end of the day, these actions taken by Dr. Husel, and I testified very clearly on this, did shorten these people’s lives, I think, without any degree of uncertainty.

And so I have mixed emotions because my gut and instinct as a physician and as a person goes against the decision that was made by the jury. However, I will accept the decision, while at the same time hoping for some reforms to prevent this from happening again.

I’ll draw these topics together in just a few questions, but for now, let me ask you about something that might seem like a different issue: The clamping off of blood vessels to the brain to stop cell function in order to get more organs for transplant. Why is this practice so concerning to you?

This is normothermic regional perfusion (NRP), a practice being increasingly used around the world to increase organs for transplantation.

What happens to the patient in the operating room is that they take them to the operating room, remove the life support, let the patient “die,” and then immediately open the chest and clamp off vessels to the brain. And then they put the patient back on ECMO [a heart and lung bypass machine], so they start recirculating the blood to keep the vital organs as preserved as they can after “death.”

So what’s the precise problem there?

One of the reasons that the authors of an article on NRP in a transplantation journal stated for clamping vessels to the cerebrum, to the brain, is that they don’t want to have any chance that there’s ongoing neuronal activity.

This is a very precarious circumstance, because if they are worried that there's any ongoing neuronal activity, then we have to be very concerned about the breach of the “dead donor rule,” which states that we should do nothing to a human body to increase the harvesting of organs.

This means that the person should be absolutely dead, no question, no debate, and then we can retrieve whatever organs the patient has chosen to donate, or the family has chosen for the patient to donate. 

But in this case, I think more conversations need to be had about whether or not the dead donor rule is being upheld.

That's really interesting, especially in light of this next question I want to ask you, and I hope you can correct me on if I get some of the medicine or biology wrong. 

Several years ago,I was part of a hospital ethics committee meeting on the use of ECMO to circulate the blood of a pediatric organ donor. The goal was the same one you just mentioned: to keep the organs as healthy as possible to maximize the chances of a successful transplant. 

But in the discussion I learned that something like a balloon had to be placed in the donor's body to block the ECMO-circulated blood from reaching the donor’s heart. When I asked about why that was necessary, I was told that it was to make sure the heart didn't start beating again. 

And my question to the members of the committee at the time was whether we are sure the donor is dead if we are concerned that the heart might start up again?

I have to say that I’m not in the operating room any longer when these procedures are done. And so I have not personally been involved with recent DCD procedures for these organ retrievals.

But generally, and this is timeless, if we are worried that the heart is going to start up again, that, to me, is kind of the same gray zone of death. It is much like the situation in which we say: “Let's make sure no blood gets to the brain because we don't want any ongoing neuronal activity.” 

Now, if there’s absolutely no chance that the heart will start again and no chance that the brain has any functional activity, then I do believe that the human being is dead. But in either of these circumstances, that's where I think we need a lot more conversation, because I think we’re pushing the boundaries on the claim about death having occurred, if we are worried either that there's ongoing neural activity or that the heart might start back up again.

This leads me to a remarkable 2009 Nature editorial which argued for a change in the requirement to have brain death clearly established in order to transplant vital organs. 

The editorial asks, “[W]hat if, as is sometimes the case, blood chemistry suggests that the pituitary gland at the base of the brain is still functioning.” 

Their argument was that this wouldn't mean that the individual "is alive in any meaningful sense." And therefore, "the law should be changed to more accurately and honestly describe the way that death is determined in our clinical practice." 

Most physicians hesitate to talk about their actual practices too loudly, the editorial said, for fear of public backlash. 

The practices we’ve discussed thus far seem quite consistent with the central  assumption of this editorial: namely, that some fairly significant percentage of physicians who work in these fields will tell dishonest stories about what is actually going on when it comes to death and killing. 

Is that an unfair conclusion on my part?

Thank you for bringing up this very challenging area, Charlie. 

The confusion in this area is understandable to me and I don't blame people for being confused and I understand the source of the disagreements. If you don't mind, I'd like to kind of just explain what I think has occurred. 

In olden days prior to a lot of critical care and life support, when somebody's heart stopped, they died. And so it was very easy to claim that death was due to cardiac death, but when we got much better with life support, especially intrathoracically with cardiovascular support and respiratory support with ventilators, what could happen is that the brain would “die” and we could keep the heart beating and the lungs getting oxygen. These changes in patient management in the 1960s complicated and expanded the way that we define death, as death by neurological criteria became defined by the Harvard commission.

Then many years later came the case of Jahi McMath, a young woman who was pronounced dead after which, for many years, she was kept on a ventilator and she went through puberty, which confused a lot of people: Could she possibly be dead and still go through puberty? 

What I learned was this, and this is the crux of the matter, is that the pituitary gland is a very unique portion of the brain. It is technically a portion of the brain, but it sits down in a little out-pouching of bone at the base of the skull called the sellaturcica. And although it’s in the brain, there are blood vessels that get to the pituitary that are outside the skull. I've worked with anatomists and seen the anatomy myself and there are articles written about this anatomy.The vessels can come from extra-cranial facial vessels that have collaterals that then enter the pituitary gland from outside the skull. 

When somebody gets profound brain edema and the whole of the brain dies, the pituitary gland can stay perfused and functional, because it has this very unique set of blood flows to the gland that the rest of the brain does not have. The entire brain can die, except the pituitary can stay alive. And then hormones can be produced by this endocrine gland that can allow people like Jahi McMath to go through puberty.

So do I believe that brain death is a reality? I believe that when the brain is overtly not receiving blood and oxygen for an extended period of time, say five to 10 minutes, the person is dead. 

There has not been a single person accurately described as dead by neurological criteria who has come back to life, cognitively and functionally. 

But there have been many, many people who have been declared brain dead erroneously, who weren't brain dead by the classic neurological criteria. 

There is an emerging literature on the poor job that we do enforcing strict application of these diagnostic criteria in clinical medicine. Thus, the public is subjected to erroneous calls in patients who ended up waking back up again, making it appear that brain death doesn't work.

In my final question I want to try to tie everything together in a Catholic context.

When you have people like Dr. Husel being dishonest about killing patients; when you have the clamping of blood vessels to artificially shut off brain function; when you put in a balloon to make sure a supposedly dead donor’s heart doesn’t start beating again; when you have a Nature editorial saying that the brain death law should be changed to make physicians more honest in their approaches; there just seems to be a failure to honestly deal with issues of death and killing. 

How can Catholic health care institutions more honestly face these admittedly difficult issues?

Catholic medical centers should uphold Catholic teaching, which is that life is sacred and of inestimable worth from the point of conception to the point of natural death. That's what's in common to all the scenarios you gave me that we've discussed today. And I think Catholic institutions must uphold that truth. 

The truth that human life is priceless and we do not have the right to take human life. Once a person is dead, pronounced by cardiac or actual neurologic criteria, if it’s accurately defined and not loosely defined, then I think the person is dead. They are no longer alive and that we can use their organs and the Church upholds this, the pope upholds this. And it’s a gift to use those organs to help other people live.

I do believe in transplant, without question, but I believe it has to be done ethically and the organs have to be procured appropriately.

The case of William Husel is a breach of our understanding of truth, in that I think Dr. Husel was giving lethal doses of medications in the name of palliative care. And when he was not found guilty by a jury of his peers, the worry that I have is that it will give other people license to go about giving these sorts of euthanasia style doses to other human beings, even when the patients haven’t asked for it.

The huge Catholic hospital systems must use this case of William Husel to reanalyze where we are in the world of palliative care, and to set up dosage boundaries and checks and balances so that we don't have future physicians thinking that they can do whatever they want.  

In short, we must follow the wisdom of Dr. Edward Trudeah: “Cure sometimes, heal always, and harm never.”