Mock Medicine, Mock Law

The first thing the coroner noticed was the bright pink blush of the cheeks—the artificial pink that only carbon monoxide gives its victims. And in Oakland County, Michigan, death by carbon monoxide poisoning suggests only one perpetrator: Jack Kevorkian.

As an expert in the management of cancer pain, I was called on by prosecutors in the first of this year’s Kevorkian trials in Michigan to review the medical records of one of the victims, obtained from a police search of the unlicensed pathologist’s home. I also reviewed the videotaped interview Kevorkian had made with the victim, shortly before his death by inhalation of poisonous gas.

I thought I had grown used to seeing death. But the other deaths I have seen were different from the images in this amateur videotape. The earlier deaths I have witnessed were almost always those of people whose pain was controlled, people surrounded by family as life slipped away. But this Kevorkian-assisted death was to be more like a veterinarian putting the family dog to sleep.

The videotape seemed to be filmed in a cheap hotel room. It showed a man with advanced myeloma (bone cancer) asking for assistance in suicide. He appeared to be a textbook example of depression in the face of medical illness and inadequately treated pain: the flat voice, the lack of eye contact, the moving description of how life no longer yielded any pleasure, and even the veiled contempt he expressed for his own disability. I have seen many such patients in my career. In every case, the request for suicide was a symptom of depression, a treatable complication of cancer. In every case, proper treatment of the patient’s pain, accompanied by emotional support and occasionally antidepressants resulted in reversal of the wish to be killed. As I watched the interview, I felt like shouting at the eerily jovial “doctor” on the screen, “He’s depressed, you idiot! Treat him, don’t kill him!”

But of course I knew that only a few hours after the videotape was made the myeloma patient had joined the long list of those who had died “in the presence of” Jack Kevorkian.

The encounter between Kevorkian and his victim was a simulacrum of a genuine medical interview. When Kevorkian asked the victim whether or not he had been experiencing pain, it was not with the intent to find a better medicine to treat it. It was to justify the use of the carbon monoxide he had obtained even before meeting him. When Kevorkian asked about the victim’s anguish and wish to die, it was not to assess or relieve the obvious depression. It was to document that his “assistance” was given only with the victim’s consent.

Consent is the key issue for euthanasiasts, for only consent separates euthanasia from homicide. The tacit, if not explicit, assumption of euthanasiasts is that suicide is a rational choice for those with advanced illness or disability. When life no longer yields adequate pleasure, they argue, it should be the individual’s right to end that life, and society’s duty to provide him assistance in doing so. Thus the desire to commit suicide, which psychiatrists worldwide recognize as one of the diagnostic criteria of a major mood disorder, is interpreted by the euthanasiast as a civil liberty that must be honored.

Yet this assumption of the rationality of suicide flies in the face of decades of research into suicide and its risk factors. Study after study has shown that the vast majority of cancer patients who commit suicide or seek assistance in suicide are in fact clinically depressed. That their depression has gone unrecognized as a disease and untreated should not surprise us. Depression, even in those without advanced illness, may be the most underdiagnosed and undertreated illness in America. And the general ignorance of the medical community concerning depression is compounded in the specific case of the gravely ill. At least in the case of otherwise healthy people, the recognition of depression, when it does occur, usually leads to treatment. But in the case of patients with advanced illness, on those rare occasions when depression is recognized, it is all too often erroneously thought to be “normal” and “appropriate,” and therefore not a proper object of treatment.

To what may this be compared? Imagine that a patient goes to a doctor complaining of back pain. The work-up reveals metastatic cancer in the spine as the cause of the pain. Now, no doctor will tell the patient, “Of course you have pain. You have cancer. It’s to be expected.” . . . and then do nothing to treat the pain! Yet it is commonplace for doctors and families and even patients to conclude that depression associated with serious illness is “to be expected,” and therefore cannot and should not be treated.

Pain, too, is woefully undertreated in cancer patients. Doctors, like laymen, seem unaware of the revolution in pain medicine that has occurred in the last few decades. While further discoveries in the treatment of pain will of course be welcome, we already know enough now to manage virtually all cases of malignant pain successfully. The widely held belief that pain can be relieved only by doses of morphine so high as to render the patient a zombie is a pernicious myth. In the presence of cancer pain, morphine and drugs like it are remarkably well tolerated in a wide range of doses. I personally have cared for patients who have gone snorkeling or who pump iron regularly—all the while on high doses of morphine to suppress their pain. What is so often referred to as untreatable pain is almost always simply untreated pain.

If Kevorkian’s interview seemed merely the simulacrum of medicine, his trial seemed merely the simulacrum of justice. Two years earlier, the presiding judge, Jessica Cooper, had thrown out the double felony case against Kevorkian, basing her ruling on her belief that the Michigan statute forbidding assisted suicide was unconstitutional. The state Supreme Court lost no time in overturning that decision. (This was not to be the last time that one of Judge Cooper’s decisions would be overturned.)

When the criminal case returned to her courtroom, she did not recuse herself as being biased in the matter. Yet the judge’s initial instructions to the jury were such a distortion of the law that an appellate court ordered her to change them even while the trial was still in progress. In a bizarre exercise of “judicial restraint,” she did not inform the jury that her instructions had been overturned by the appellate court, but simply read a paragraph from that court’s decision to the jury. The arcane language of the appellate ruling, unexplicated by Judge Cooper, led some jury members to send requests for clarification to the judge. But Judge Cooper did not give proper instruction to the jury until she was explicitly ordered to do so by the appellate court. Just to be sure, this time the appellate court wrote the full text for her to read to the jury.

The Michigan law forbidding assisted suicide had been written in response to the public outcry to “do something” about Kevorkian. The law formulated into statute what had previously been, and still is, common law in Michigan. It forbade assisting suicide, but left one loophole: if a medication were given a patient with the intent to relieve pain or discomfort, any death that might occur from such medication was not to be considered felonious. It was through this loophole that the defense attorney, Geoffrey Fieger, would ultimately slither.

In her initial instruction to the jury, Judge Cooper instructed them that the prosecution had to prove that Kevorkian “intended solely to cause death and not to relieve pain or discomfort.” Understandably the prosecution objected to this burden of having to prove a negative. The appellate court corrected Cooper: the prosecution only had to prove that the defendant had intentionally assisted in a suicide, whether or not he had other intentions as well. Because the facts of the case were essentially unarguable, that left the defense with the burden of showing that in giving carbon monoxide, Kevorkian’s intent was relief of pain or discomfort, rather than causing death.

During my examination by the prosecutor, I was asked when in my medical training I had learned that carbon monoxide was a toxic agent with no palliative benefit. I replied that I had learned that fact before I began my medical training. One would have thought that such commonplace knowledge would not need buttressing by an expert witness. But Mr. Fieger, whose rudeness to witnesses and arrogance had led some courtroom observers to liken him to an “overgrown schoolyard bully with a bad haircut,” argued with a straight face that Kevorkian’s purpose in supplying the poison gas had not been to kill, but rather to relieve pain and suffering. Of course, euthanasiasts always claim that only death can end the pain and suffering of their victims. If the Michigan legislature meant to allow relief of pain and suffering by the always—fatal administration of carbon monoxide, it is difficult to imagine what they intended to outlaw.

It is not as though some new legal concept must be created to understand that if an action has absolutely inevitable forbidden consequences, that action itself is forbidden. In the Talmud, this concept is called p’sik reisha v’lo yamut, “let his head be cut off but let him not die.” This legal principle was known to the rabbis of Babylonia over two thousand years ago. Nonetheless, the confused jurors in Judge Cooper’s courtroom, making no distinction between motive and intent, found Jack Kevorkian not guilty of the charges against him. It was a dismaying spectacle: it seemed like a search for justice, but—like Kevorkian’s medicine—it was a perversion of what it struggled to resemble.

Somehow all this facade and mimicry is perfectly appropriate for a trial that revolved around the question of euthanasia. For euthanasia, in its promise of “a good life, a good death,” does not put an end to burdensome treatment; it puts an end to burdensome people. It does not relieve pain and suffering; it eliminates the desperate people whose inadequately treated pain and depression have led them to want suicide. Euthanasia does not care for the disabled; it shows contempt for them by saying that their lives are not worthy of living.

With his choice of carbon monoxide as his agent of death, Jack Kevorkian has stumbled upon the perfect metaphor for the euthanasia movement. It has no odor or color; it appears to be simply so much air. But all it leaves in its wake is a pink-cheeked corpse.

Eric M. Chevlen, M.D., is a diplomate of the American Boards of Internal Medicine, Medical Oncology, Hematology, and Pain Medicine. He is Director of Palliative Care at St. Elizabeth Health Center, Youngstown, Ohio.