Last week I noted that Kansas pain doctor Stephen Schneider and his wife, Linda (who worked as a nurse in his practice), face sentences of 20 years to life for painkiller prescriptions the government says were medically inappropriate. The 20-year mandatory minimum was triggered by convictions for illegally dispensing a drug when "death or serious bodily injury results from the use of such substance." Prosecutors tried to implicate the Schneiders in 68 patient deaths, of which they were directly charged for 21. But as Reason contributor Maia Szalavitz reports in a recent Time piece, attributing deaths to painkiller overdoses is a very tricky business:
The mechanics of that determination are poorly understood—sometimes even by the toxicologists, pathologists and medical examiners who make the call. Circumstances of death surrounding drug use are also often difficult to untangle: In the Schneider case, virtually all the patients who died were found to have multiple drugs in their bloodstream, often including illegal drugs; in addition, many of the patients were known sufferers of chronic pain with chronic, life-threatening diseases such as heart disease and high blood pressure — conditions that can cause death on their own, without drugs….
Several scientific factors conspire to complicate the issue: First is the widely acknowledged question of tolerance. Patients who take pain medications over the long-term will necessarily build up some amount of tolerance to the drugs. That means that a dosage of a painkilling opioid such as methadone or fentanyl that would be therapeutically appropriate for a pain patient could be enough to kill a person who has never taken them before; in a methadone patient, an extremely high dose might not even be enough to address withdrawal symptoms….
A second complication in cause-of-death findings is what medical examiners call "postmortem redistribution," the shift in detectable drug levels that occurs after a person dies, according to Fred Apple, medical director of clinical laboratories for the Hennepin County Medical Center in Minnesota. Many drugs that may be contained in fatty tissue in a living body are released into bodily fluids after death, which confuses the analysis of substance samples taken postmortem.
Furthermore, it's not clear what it means to say a death "results from" the use of a particular drug. In January the U.S. Court of Appeals for the 7th Circuit ordered a new trial in the case of pharmacy burglars who had been convicted of drug distribution that resulted in four deaths. In an opinion by Judge Richard Posner, the 7th Circuit ruled that the jury instruction did not properly explain the law:
The instruction began by stating that the jury had "to determine whether the United States has established, beyond a reasonable doubt, that the [victims] died, or suffered serious bodily injury, as a result of ingesting a controlled substance or controlled substances distributed by the defendants or by a defendant." But then it added that the controlled substances distributed by the defendants had to have been "a factor that resulted in death or serious bodily injury," and that although they "need not be the primary cause of death or serious bodily injury" they "must at least have played a part in the death or in the serious bodily injury." The defendants' lawyer asked that the addition, suggested by the prosecutor, be stricken as a confusing gloss on "results from." The district judge refused.
The appeals court concluded that the instruction muddled the point that conviction requires "but for" causation: "The government at least must prove that the death or injury would not have occurred had the drugs not been ingested." But that is not enough, Posner said:
Suppose a defendant sells an illegal drug to a person who, not wanting to be seen ingesting it, takes it into his bathroom, and while he is there the bathroom ceiling collapses and kills him. Had he not ingested the drug, he would not have been killed. But it would be strange to think that the seller of the drug was punishable under [the statute].
Posner suggested that the relevant consideration is deterrence: "We want drug dealers not to kill their customers inadvertently." He expressed "misgivings" about reading the statute as imposing strict liability, meaning that defendants are held culpable even when a death is neither intended nor forseeable, which he said "could lead to some strange results":
Suppose that, unbeknownst to the seller of an illegal drug, his buyer was intending to commit suicide by taking an overdose of drugs, bought from that seller, that were not abnormally strong, and in addition the seller had informed the buyer of the strength of the drugs, so that there was no reasonable likelihood of an accidental overdose.
Prosecutors have successfully argued that doctors like Schneider are culpable for a patient's death in precisely this situation. As Posner notes, "the cases are unanimous and emphatic that [the statute] imposes strict liability." He grants that strict liability can serve deterrence: "Strict liability creates an incentive for a drug dealer to warn his customer about the strength of the particular batch of drugs being sold and to refuse to supply drugs to particularly vulnerable people." But it's not clear how that rationale applies in the context of a medical practice where drug strength is consistent, instructions about proper dosage are routine, and the patients include many people suffering from chronic pain—not the happiest bunch, but not necessarily suicidal.
Putting aside the scientific and legal complications, the moral issue is clear: It's outrageous to hold a doctor criminally responsible, let alone imprison him for the rest of his life, based on the choices of his patients, whether they are suicidal, reckless, or simply deceitful.