By Sara Buscher
Editor’s note. Sara Buscher is a lawyer and Chair, Euthanasia Prevention Coalition USA.
On April 20, 2022 an Ohio jury acquitted former doctor William Husel of intentionally murdering 14 patients with extremely large and lethal doses of Fentanyl. Some claim his acquittal means doctors are free to deliberately overdose patients to hasten their deaths. Apparently, they are unaware he has lost his medical license and still faces civil suits brought by the patients’ families.
Husel worked in the Intensive Care Unit of an inner city hospital in Columbus, Ohio where he ordered lethal doses of Fentanyl (500 to 2,000 micrograms) be given to patients, all of whom died within 12 minutes. He was indicted by a Grand Jury for 25 counts of intentional murder.
The Prosecution went to trial on 14 counts after Husel refused a plea deal for up to ten counts of reckless homicide. Near the end of the trial, the Prosecution asked the judge to include charges of negligent homicide as “lesser included” offenses. The Defense would not agree, so the judge ruled it was too late to include them for the jury’s consideration.
In a May 10 People Magazine interview Husel said he would prescribe the same doses now for patients. After the trial the Ohio State Medical Board permanently and irreversibly revoked his medical license, which he agreed to surrender. In 2019, the Board had suspended his license after finding his extremely excessive doses of Fentanyl and painkillers created a public danger that clearly and convincingly violated the Ohio Medical Practices Act.
Lawyers for the families say, “It would be incorrect to assume that the criminal verdict means Husel cannot be held liable in civil court for his actions…. How did that work for O.J. Simpson?”
The law typically uses three different burdens of proof and all are at play here. To find a person guilty of a crime, the burden is “beyond a reasonable doubt” which you can think of as being 99% certain the defendant is guilty. The Medical Board used the “clear and convincing” standard or about 75% certainty and the civil suits use “a preponderance of the evidence” standard which is anything beyond 50%.
Reasons for acquittal relate to the elements of intentional murder that must be proven under Ohio law: having a purpose to cause death and actually causing the death.
Prosecutors typically overcharge because 90% of criminal cases are pleaded out rather than going to trial. So they overcharge and then plead the case down for an appropriate charge. In Husel, the prosecutor charged intentional murder, would have plead out for reckless homicide and would have given the jury the option of a guilty verdict on negligent homicide. Each degree of guilt is easier to prove and carries a lower penalty. By refusing to deal, Husel forced the Prosecution to prove Husel intended to kill his patients.
The Defense successfully confused the jury into believing the Prosecution had to prove Husel had a motive for killing his patients. Motive is the why– the reason a person commits a crime. It is never an element that has to be proven.
Intent is not the same as motive. Intent means the actor decided to purposely do something criminal. Here, Husel decided to give drugs that would cause deaths. We don’t know why he did it. He said he did it to provide comfort care, yet the Prosecution’s expert said Husel’s doses were 5 to 10 times the amount needed to provide comfort. So, he obviously didn’t do it to provide comfort. Maybe he gets a thrill from killing. Maybe he was trying to churn beds faster. Who knows? In any event, the jury struggled with “intent.”
In a May 10 interview with jurors, the Columbus Dispatch reported:
“A juror said ‘he believes Husel was guilty, but said the Prosecution failed to prove its case. The question of intent was just really hard to find beyond a reasonable doubt… and that was a hard, hard burden.’… ‘My honest opinion — that dude is guilty as hell. The Prosecution didn’t prove it…. Everyone in that [jury] room felt those (Fentanyl) doses (Husel ordered) were insane. We all said that. I believe in my heart that he was guilty of at least four or five that you could actually prove [the hospital’s initial investigation concluded five could have recovered with treatment], but what I feel isn’t what we had to go on. The Prosecution just didn’t prove intent.’”
Ohio’s intentional murder statute uses the strictest, hardest to prove definition of intent to kill: “the person’s specific intention to cause a certain result (e.g., death)”. Other states allow intent to be proven using a “knowingly” standard – “knows or is aware his or her conduct is practically certain to cause the result.” Here, Husel said his intent was to provide comfort to people who were already dying. And, here, the evidence was clear the doses he gave were practically certain to cause death. In my opinion, he would have been convicted under a “knowingly” definition of intent.
The Defense also raised doubts about what caused the people to die. Their expert testified all of these people died from their illnesses. The Prosecution did not call a rebuttal witness. All of the patients were on life support that their families had agreed to have withdrawn. All died in 12 minutes or less after receiving the Fentanyl.
The question that was left unanswered was whether they died from the withdrawal of life support before the Fentanyl would have killed them. Hopefully, the civil suits will shed more light on this.
Editor’s note. This appeared on the website of Euthanasia Prevention Coalition and is reposted with permission.