Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 oB649 - A6d IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO CRIMINAL DIVISION STATE OF OHIO, Plaintiff, Case No, 19CR-2735 vs. Judge Michael J. Holbrook WILLIAM S. HUSEL, Defendant. STATE’S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF DR, JOEL ZIVOT Now comes the State of Ohio, by and through undersigned counsel, and hereby moves to exclude the trial testimony of Defendant's expert witness, Dr. Joe! B. Zivot, M.D., pursuant to Ohio Evid, R. 703 and State v. Boston (1989), 46 Ohio St.3d 108, 128-129, 545 N.E.2d 1220. Dr. Zivot impermissibly bases his conclusions on review of the medical records and “conversation with Dr Husel.” Evid. R. 703 prohibits an expert from ba: ig their opinion on inadmissible evidence such as hearsay. Further, the Ohio Supreme Court has made it abundantly clear that expert witnesses are not permitted to opine on the credibility of individuals, as this invades the province of the jury Pursuant to Ohio Evid. R. 104(A), prior to allowing Dr. Zivot to offer testimony to the jury, the Court must make a preliminary determination as to whether he is qualified to testify as an expert on this subject matter, and whether his opinions meet the requisite threshold of admissibility required by the Ohio Rules of Evidence and binding judicial precedent, In Daubert, the United States Supreme Court declared that the trial court is to serve as the “gatekeeper” with regard to the admission of expert testimony, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Ohio Supreme CourtFranklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 oB649 - Ael adopted this role for Ohio trial court judges in Miller v. Bike Athletic Co., 80 Ohio St. 3d 607 (1998). Trial courts do not have “discretion to abandon the gatekeeping function. In re Meridia Prods. Liab. Litig., 328 F. Supp. 24 791, 804 (ND Ohio, 2004) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 159 (1999) (Scalia, J., concurring) (emphasis added). The State does not believe a hearing is necessary, as it is clear Dr. Zivot relied on impermissible material to form his opinions for this matter.' However, if the Court feels a hearing is necessary, the State respectfully requests the Court conduct the hearing outside the presence of the jury prior to allowing Dr. Zivot to be called as a witness in this matter. The State was unable to bring this motion in limine prior to the start of trial, as the Court permitted Defendant to provide the State with his expert witnesses’ names and reports after trial had already begun. This however, does not obviate the Court’s gatekeeping function.. I. Dr. Zivot’s Proffered Opinions Defendant provided the State with Dr. Zivot's expert report on February 25, 2022, after the start of trial and well beyond the 21-day rule set forth in Crim. R. 16(k). In Dr. Zivot’ report, attached as State’s Exhibit A, Dr. Zivot wrote believe based on my review of the medical records and in conversation with Dr. Husel, the prescribing of Fentanyl and Midazolam were for the sole purposes of providing the relief of pain and anxiety to patients as they faced death because of concurrent critical illness. Such actions reflect the best of the bioethical principle of beneficence. Dr. Husel sough the relief of pain and anxiety for his dying patients in a way that comports with the standard of practice in the State of Ohio, inguishable from those in this matter where the State or Defendant employed an expert that has also been retained for the related civil matters. In those situations, the experts were permitted (and required) to base their opinions on different matter as required by the respective rules for the two cases. Dr. Zivot however, has not been retained in the civil matter. He spoke with Defendant specifically for the purpose of forming his opinions in the criminal case.Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 op649 - a62 State's Exhibit A, p. 7 (emphasis added). There is no question as to whether Dr. Zivot spoke with Defendant as the basis of his opinions in this report TH, Law and Analysis Admissibility of expert opinion testimony is govemed by Evid. R. 702 and 703. Evid. R. 702 requires that: (A) the witness’s testimony relate to matters beyond the knowledge or experience of a layperson; (B) the witness have specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony: and (C) the witness's testimony be based on reliable scientific, technical, or specialized information. Evid. R. 702 Evid. R, 703 requires “the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by the expert or admitted in evidence at the hearing,” Evid. R. 703. “[T]he party offering a witness as an expert has the burden of establishing that the witness is qualified to competently give such testimony.” Buroker v. Pratt Indus., Inc., 10 Dist, Franklin No. 19AP-383, 2020-Ohio-2845, J 34 (quoting Beattie v. MeCoy, 10" Dist. Franklin No. C-17019, 2018-Ohio-2535, § 25 (citing Tully v. Mahoning Express Co., 161 Ohio St. 457 (1954), paragraph two of the syllabus, and Wright v. Hamilton, 141 Ohio app. 3d 296 (12 Dist. 2001))) (emphasis added) Dr. Zivot’s opinion is based on impermissible hearsay in violation of Evid. R. 703. “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by the expert or admitted in evidence at the hearing,” Evid. R. 703. As Dr. Zivot makes clear in his report, his opinion as to Defendant’s intent is based on review of the medical records and “conversation with Dr. Husel.” This is a classic hearsay problem While the State may elect to introduce Defendant's statements against interest as the statement of a party opponent under Evid. R. 801(D)(2), Defendant may not use theFranklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 oB649 - Aes same rule to introduce his own out-of-court statements. The Ohio Supreme Court has made this rule unquestionably clear. See e,g., In re Coy (“Simply put, Evid. R. 801(D)(2) has no application here. [The party] seeks to introduce her own statements through others. This is classic hearsay and is not admissible unless an exception to the hearsay rule is found, Accordingly, we find it proper and necessary to put to rest this clear misapplication of Evid. R. 801(D)(2).") Consequently, because Dr. Zivot had a conversation with Defendant and used that as a basis for his opinion, Dr. Zivot’s opinion does not satisfy the requirements of Evid. R. 703. Dr. Zivot is relying upon Defendant’s out of court statements to which no hearsay exception applies. Dr. Zivot’s opinions on Defendant's intent must therefore be excluded as a clear violation of Evid. R. 703. B. Dr. ivot’s opinions invade the province of the jury by endorsing Defendant's credibility. Even in the absence of the obvious hearsay issue, Dr. Zivot’s testimony on Defendant's intent is impermissible as it invades the province of the jury. This issue was previously litigated in response to Defendant's motion in limine seeking to exclude the State's experts from opining on intent. “Province of the jury” issues typically arise with regard to expert testimony in two separate and distinet areas. The first situation arises when experts testify on a topic that relates to witness credibility (or lack thereof) — e.g. experts testifying on eye witness reliabili fying on delayed reporting and behaviors in child sexual abuse . experts testi cases, and experts testifying on battered woman syndrome. Expert testimony on whether another witness's statements are truthful is improper, as it infringes “upon the role of theFranklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 op649 - aed fact finder, who is charged with making determinations of veracity and credibility.” State v, Boston (1989), 46 Ohio St.3d 108, 128-129, 545 N.E.2d 1220. The second situation where expert testimony may infringe upon the province of the jury arises when experts attempt to offer opinions that are based on common knowledge rather than some specialized knowledge or skill, “An expert witness must confine his opinion to matters within his specialty or scientific field of inquiry and may not express an opinion upon matters as to which the jury is capable of forming a competent conclusion.” Burens v. Indus, Comm, (1955) 162 Ohio St. 549, 124 N.E.2d 724, at paragraph two of the syllabus. In these situations, expert testimony would not comport with Evid. R. 702 and 704, and its admission would b proper. The State’s experts were permitted to opine on Defendant's intent as it was clear their testimony did not fall into either of the two objectionable categories above. The same cannot be said for Dr. Zivot’s opinions. Dr. Zivot’s opinions incontestably fall into the first category. He is opining on Defendant's intent, based on out-of-court conversations with Defendant. “An expert witness may not express his opinion based upon evidence which he has heard or read on the assumption that the facts supported thereby are true, where such evidence. . . consists of the opinions, inferences and conclusions of other witnesses.” Zelenka v. Industrial Com., 165 Ohio St. 587, 138 N.E. 2d 667, paragraph | of syllabus (1956). Expert testimony that in effect declares another witness to be credible is “not only improper it was egregious, prejudicial and constitutes reversible error.” State v. Boston, 46 Ohio St.3d at 128. “In our system of justice itis the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses.” Jd. at 129. Consequently, Dr. Zivot’s testimony must also be excluded for impermissibly invading the province of the jury.Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 OB649 - AGS ied to testify, the State will seek to cross examine him in accordance with Evid. R. 608, If the Court allows Dr. Zivot to testify, despite his opinion relying on hearsay and improperly invading the province of the jury, the State will seek to fully cross examine Dr. Zivot in compliance with Evid. R. 608(B). D. Boaston Issues In State v, Boaston, the Ohio Supreme Court set forth a bright line rule concerning expert testimony — “it is error to admit expert-opinion testimony when the expert's opinion was not set forth in a written report prepared in compliance with Crim. R. 16(K).” State v. Boaston, 160 Ohio St. 3d 46, 2020-Ohio-1061, { 1. In Boaston, the expert authored a written report as required by Crim, R. 16(k), Id. at §] 56. However, in her trial testimony, the expert offered opinions that were not contained in her expert report. Jd. The Ohio Supreme Court ultimately held “[tJhe trial court accordingly erred in allowing the opinion testimony that went beyond the scope of the supplied expert report.” Id. at ] 58. If Dr. Zivot is permitted to testify, the State will object to testimony conceming any expert opinions that are not specifically set forth in his attached report E, The exclusion of Dr. Zivot’s testimony is required under Ohio law and does not infringe upon Defendant's rights. While Defendant has a right to present evidence in his defense, “/iJn the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment, of guilt and innocence.” State v. Swann, 119 Ohio St. 3d 552, 2008-Ohio-4847, 4 14 (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). “[T]he exclusion of unreliable evidence is a principal objective of many evidentiary rules.” Jd. (quoting United States v. Scheffer, 523 US. 303, 309 (1998) (citing Fed. R. Evid. 702, 802, and 901, and 6ness — adganklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993))). “Chambers therefore does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence.”” State v. Swann, 119 Ohio St, 34 $52, 2008-Ohio-4847, 415 (quoting Scheffer, 523 U.S. at 316) In his retention of Dr. Zivot, Defendant blatantly violated Evid. R. 703 and years of Ohio Supreme Court precedent by speaking with Dr. Zivot as part of the basis for Dr. Zivot’s opinions. Whether this was done out of strategy or ignorance does not matter and does not make it any less improper. Defendant cannot now allege his rights are being infringed upon if Dr. Zivot is not permitted to testify. IIL ~~ CONCLUSION For the reasons stated above, the State respectfully requests this Honorable Court conduct a Daubert hearing and bar the expert testimony of Dr. Joel B. Zivot Respectfully submitted, G. GARY TYACK (0017524) Prosecuting Attorney David F. Zeyen David F. Zeyen (0068069) Janet A. Grubb (0017522) Taylor M. Mick (0095926) Paula M. Sawyers (0061175) Corinne M, Buker (0095172) Assistant Prosecuting Attorneys 373 South High Street ~ 14" FL Columbus, Ohio 43215 (614) 462-3555 Counsel for PlaintiffFranklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 oB649 - A6T CERTIFICATE OF RVICE ‘The undersigned hereby certifies that the foregoing notice was electronically filed and served via the Clerk’ electronic filing system on Jose Baez, Diane Menashe, and Jaime Lapidus, counsel for Defendant, on this day, March 23, 2022. Taylor M. Mick Taylor M. Mick (0095926) Assistant Prosecuting Attorneyopeag — agganklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 Affidavit for Husel v. State February 20, 2022 1, Joe! Zivot, being of sound mind and lawful age, hereby state under penalty of perjury as follows: 1. Tam an Associate Professor and senior member of the Departments of Anesthesiology and Surgery, Emory University School of Medicine, in Atlanta, Georgia. I hold board certification in Anesthesiology from the Royal College of Physicians and Surgeons of Canada and The American ‘Board of Anesthesiology. | am board certified in Critical Care Medicine from the American Board of Anesthesiology. I have a Masters of Bioethics and I am a Senior Fellow in the Emory Center for Bioethics. 2, completed my training of Anesthesiology and Critical Care Medicine at the Cleveland Clinic Foundation in Cleveland Ohio in 1995. I practiced Anesthesiology and Critical Care Medicine at Case Western Reserve University from July 1998 to October 2007. I have maintained professional medical contacts in the state of Ohio and am familiar with the practice of medicine within the State of Ohio. I have practiced anesthesiology and critical care medicine for 27 years and in that capacity, I have personally performed or supervised the care of over 47,000 patients. 3, Thold a medical license from the state of Georgia, and have held unrestricted medical licenses in Ohio, the District of Columbia, Michigan, and the Canadian provinces of Ontario and Manitoba. I hold a license to prescribe narcotics and other controlled substances from the US Drug Enforcement Administration (DEA). 4, [have reviewed the medical charts of the 14 patients who are at issue within this case. I have reviewed the 14 indictments against Dr. Husel, a lied anesthesiologist and intensive care physician, It is my contention that Dr. Husei’s actions as he sought to provide comfort at the end of life were in no way consistent with the statute under which he is indicted. His actions were entirely directed towards reducing the pain of dying and in no way was he seeking the death of his, patients using prescribed medical treatments. I hold this opinion to the highest degree of certainty.Franklin County Oh 3 opeag — aganklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 5. Upon review of the 14 cases, I note that in every instance, a decision was made by family members, acting in the capacity of recognized proxies of the patient, to withdraw ongoing medical ‘weatment in order to allow natural death. 6. Upon review of the medical facts, each of the 14 patients suflered from a variety of severe and unrecoverable illnesses. In each case, recovery to a normal state of health was not possible, In each case, the underlying medical state was the proximate cause of death when supportive and resuscitative treatments where withdrawn. 7.1m each case, Dr. Huse! prescribed the drug Fentanyl for the purpose of easing the pain of dying. Fentanyl is a synthetic compound classified as an opioid and can be administered as an intravenous injection, an intramuscular injection, as a trans-cutaneous patch, injected into spinal fluid, or delivered via inhalation. Fentanyl is a commonly prescribed medication to relieve severe pain ina variety of settings including the pain associated with dying. 8. Fentany! works primarily by attaching itself to the mu-opioid receptor within the central nervous system. Fentanyl has some effect on the delta and kappa receptors, but itis the activation of mu- opioid receptors that are responsible for producing pain control. Certain properties of fentanyl are noteworthy and require explanation. 9, As Fentanyl and other opioids exert their effects through attaching to receptors, an increased jection of larger and larger dosages to produce the population of receptors would necessitate th same pain reducing effects. Prior exposure to opioids like Fentanyl stimulate the production of additional opioid receptors. This phenomenon of a need to increase the dosage of Fentanyl or other opioids after being given opioids is called tolerance. 10. The degree of tolerance after opioid exposure varies and is not measurable or knowable precisely. Broadly, the longer a person has been exposed to opioids, the more likely it is for tolerance to be observed. Fentanyl and other opioids have a dose related effect on normal respiration. The drive to breath is related to the level of carbon dioxide in the blood stream, In circumstances where carbon dioxide levels are chronically elevated as can be seen in someFranklin County Ohi 2 opeaa — afganklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 respiratory conditions, the effect of carbon dioxide on the drive to breath is blunted. Additionally, the experience of pain will act as a strong stimulant to breath and when a person is in severe pain, the quantity of opioid needed to blunt the respiratory drive is greatly increased 11. The dosage of fentanyl to achieve a desired effect varies broadly. Common to all dosages is, the minimal effect on cardiac function, Fentanyl is considered a safe drug in this regard. As an example, patients undergoing heart surgery with current coronary artery disease, cardiac valvular dysfunction or a reduced cardiac muscle strength at baseline may be safely given 100 micrograms per kg of body weight over a few minutes, In an average 70 kg person (154 pounds), that corresponds to 7000 micrograms. Even at this dosage, Fentanyl has minimal to no effect on the blood pressure. 12, In circumstances where death is sought, opioids like Fentanyl are not used owing to the safety parameters seen with the administration of fentanyl. Animal and human euthanasia do not use opioids as the primary chemical in which to cause death. In Capital Punishment, the use of lethal injection does not use opioids like Fentanyl for the purpose of causing death, Dr. Husel would be aware of the difference between euthanasia and pain relief in dying and this explains the choice of Fentanyl in these cases. 13. Accidental death from the illegal ingestion, injection, or inhalation of opioids such as Fentanyl by itself or mixed with other chemicals cannot be compared to the injection of Fentanyl for the purposes of pain relief associated with dying by e skilled and licensed physician with expertise in anesthesiology and critical care medicine. Accidental overdose by drug seeking individuals may be the result of mixing unknown quantities of unknown chemicals not under the supervision of a physician and for the purpose of achieving a state of delirium and to mitigate the pain of opioid withdrawal among the opioid addicted, Death in this circumstance may occur because of unmonitored opioid side effects mixed with the injection or ingestion or inhalation of other noxious chemicals 14, Anesthesiologist with a sub-specialty in critical care medicine such as myself and Dr. Husel are experts in the administration of fentanyl as a clinically important and useful drug. FentanylFranklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 op649 - ATL enjoys a unique therapeutic niche in the perioperative period and in the care of eriticaly il patients owing to its minimal effect on the strength of heart muscie contraction even in the setting of extremely large dosages. Critically ill patients are particularly sensitive to reduction in the strength of heart muscle contraction when exposed to a variety of drugs other than Fentanyl when used for control of pain and agitation. 15. In 10 of 14 cases, Dr. Husel also prescribed the injection of the drug Midazolam. This drug is, in the class known as benzodiazepines. Drug of this class have a variety of indications and are used here chiefly to reduce anxiety. These drugs also can be used to prevent or treat seizures and to create a general state of sedation, Midazolam is known to create amnesia but, in these cases, where death is near, such an action would be of ne value, Midazolam has no direct effect on respiratory drive and does not relieve pain in any dosage amount. Midazolam dosage depends on the perceived degree of anxiety when used to block anxiety. In common clinical practice, dosages between 1-10 milligrams as a single injection may be used for this purpose. Midazolam can also be used as a constant influsion, Midazolam is a safe drug, particularly in the dose range under consideration in these cases, and fatal overdose with Midazolam is very rarely reported 16, The combination of Fentanyl and Midazolam are commonly used prior to and during surgical procedures, In these cases, the amnestic properties of Midazolam are more important, Midazolam is also used as an agent for the purposes of palliative sedation. In these cases, one may use a Midazolam injection followed by a constant Midazolam infusion titrated to the desired degree of anxiolysis and sedation, 17, Fentanyl and Midazolam both benefit from the ability to be reversed with specific drugs designed for that purpose. Fentanyl can be reversed with the use of the drug known as Naloxone. Midazolam can be reversed with the use of the drug known as Flumazenil. The capacity to reverse the effects of both drugs provides an added degree of safety in the circumstance when one believes an excess dose has led to an untoward response. In the case of palliative sedation, the purpose is to create pain control combined with the reduction of anxiety as the patient approaches death. In pailiative sedation, the target sedation/pain relief level is high as recovery is not possible. The withholding or reversing of Fentanyl alone or Fentanyl/Midazolam in the circumstance ofFranklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 op649 - A72 palliative care at the end of life might lead to the highly undesirable experience of excessive pain and anxiety prior to death, 18. In the circumstance when critical illness will lead to death, the focus of treatment transforms from seeking cures or protonging life to the reduction of pain associated with dying. One way this is achieved is by administering opioids. Drugs of this class can reduce generslized pain and reduce air hunger that is a common event prior to death, The medical specialty of palliative care is primarily dedicated to the control of symptoms associated with dying, Intensive Care is a common place where the principles of palliative care are utilized, and Intensive Care doctors commonly utilize palliative care principles when patients are dying. As a practicing intensive Care doctor, T utilize palliative care treatment principles at the end of life under the obligation of « patient advance directive or by the request of a patient proxy. 19, The use of opioids to reduce the pain of dying are justified under the bioethical concept known as the doctrine of the double effect. This doctrine was first elucidated by St. Thomas Aquinas and broadly states that an action is permissible if it is intended to produce « “good” effect even though it might produce an unintended “bad” effect. The doctrine has been further refined by bioethics practice and applies if certain conditions are met. These conditions are as follows: i. All reasonable and less risky alternatives have been exhausted. ii, There is one action with at least two foreseeable effects. iii, The act itself is good (or at least neutral) iv. One effect is bad while the other is good. v. The good effect is the discrete event towards which one is aiming (Le., one’s intention- in-acting or the end of the act), not one’s further intention (ie., the end of the agent). vi, These good and bad effects are not mediated by intervening agents, but flow immediately from the act. vii. One foresees the bad effect but intends only the good effect. viii. The bad effect is not the means by which the good effect is accomplished. ix. The act is proportionate in these two senses: The means employed are proportionate to the end (means-end proportionality)Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 op649 - A73 ~The potential benefits are proportionate to the potential harms (end-end proportionality) 20. When we consider the actions of Dr. Husel in the care of these 14 patients, we note a concordance. i, The use of Fentanyl was the most reasonable method to provide pain control at the end of life, ii, The use of Fentanyl provides effective pain relief at the end of life. In some circumstances, the injection of Fentanyl will result in a reduction in respiratory rate, iii, Dying can be painful and therefore pain relief with Fentanyl at the end of life is a good. iv. As dying may be painful, reducing pain with the injection of Fentany! would be beneficent and be in accordance with the principle of beneficence within current bioethical practice. Fentanyl induced respiratory rate reduction might result in an earlier death than that would otherwise naturally occur as the result of disease, but at a price of more pain. vy, The use of Fentany] is discrete and solely for the purpose of pain relief, Fentanyl has no other purpose in this case. vi. No intervening agents are at play beyond the good of effect of pain relief. No additional interventions are done to exaggerate the respiratory reduction that might result, vii, The good effect of pain relief is intended; the bad effect of respiratory reduction is foreseen but not intended. viii, When Fentany! is injected, respiratory reduction is not the mechanism that leads to pain relief. ix. The use of Fentanyl is proportionate to the circumstance because: ~The pain of dying can be severe, and the use of an opioid is therefore proportional as Fentanyl is used to treat severe pain, -Dying without pain relief would be terrifying and in opposition to the ethical practice of medicine.Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Mar 23 1:21 PM-19CR002735 op649 - A74 21, I believe based on my review of the medical records and in conversation with Dr, Husel, the prescribing of Fentanyl and Midazoam were for the sole purposes of providing the relief of pain and anxiety to patients as they faced death because of concurrent critical illness. Such actions reflect the best of the bioethical principle of beneficence. Dr. Husel sought the relief of pain and anxiety for his dying patients in a way that comports with the standard of practice in the State of Obio. Dr. Husel did not deviate in any way from the standard of practice. The administration of Fentanyl and Midazolam for relief of pain and anxiety while dying is utilized by physicians throughout the United States and internationally. Joel B. Zivot, MD, FRCP(C), MA bioethics Associate Professor of Anesthesiology and Surgery Emory University School of Medicine Senior Fellow, Emory Center for Ethics