Updated December 3, 2021, at 2:48 PM.
A Franklin County judge on Friday denied a request from former Mount Carmel doctor William Husel to dismiss the 25-count murder indictment against him. The ruling means the case is on schedule to go to trial in February.
The crux of Husel’s legal challenge was based on the assertion that former Franklin County prosecutor Ron O'Brien intentionally kept evidence from a grand jury as he pushed them to indict Husel for ordering what O’Brien called unjustifiable doses of the painkiller fentanyl.
In a seven page ruling, Franklin County Court of Common Pleas Judge Michael J. Holbrook stated that the evidence presented by the defense at Wednesday's hearing did not meet the threshold to show that O'Brien demonstrated prosecutorial misconduct.
"Thus, any failure by Prosecutor O’Brien to present [Tracie Young's] medical records, or any other records of Defendant’s patients receiving more than 500 micrograms of fentanyl, is not grounds for dismissal under the theory of prosecutorial misconduct," said Holbrook.
"Moreover, the surrounding circumstances still do not support a finding that it is probable the failure to disclose the grand jury testimony will deprive Defendant of a fair trial."
Gerry Leeseberg's Columbus law firm represents the families of 17 of the 25 overdose victims filing separate civil lawsuits against Husel. Leeseberg said he is not surprised by the judge’s decision.
“We think this was sort of a pro-forma motion filed by the defense, which is often filed to create a record for a potential appeal in the event of a conviction of a criminal defendant,” said Leeseberg.
Leeseburg's civil claims allege that Husel acted negligently in end-of-life care for the 17 patients. Eight of those cases have been settled; the nine cases that remain include a number that were set to go to trial this fall but have been rescheduled for the spring due to the pandemic. The criminal case scheduled for February alleges that Husel acted with intent to terminate the patients' lives by giving them excessive doses of fentanyl.
Leeseberg said Husel’s case is "incredibly unusual" because the conduct occurred over a long period of time and involved numerous patients, and, "involved rather egregious amounts of pain medication being administered to the patients, as Mount Carmel has said, without any therapeutic or medical justification."
In all of the 25 deaths for which Husel was criminally indicted, he ordered nurses to administer doses of fentanyl between 500 and 2,000 micrograms.
But in a 2020 hearing, Husel’s attorney Jose Baez pointed to another patient who received 2,500 micrograms of the painkiller and lived for another 10 days. In earlier reporting, WOSU identified the patient as Tracie Young, 46, of Grove City.
Her death was not part of the case brought by prosecutors.
"They lied, and they knew based off the science and the medical file that they had in their possession of Tracie Young who received 2,500 micrograms of fentanyl within 38 minutes after being taken off of her breathing tube, who lived for 10 days," said Husel's attorney Jamie Lapidus.
Young had a cardiac arrhythmia in late November of 2014, and by the time the ambulance reached her 20 minutes later, she had no brain activity. She was taken to Mount Carmel West, where she was put on a ventilator in the intensive care unit.
Kris Young is a retired nurse and said her sister had a high tolerance to pain medications because she was put on opioids after a bad back surgery years prior.
Kris said her sister wouldn't have wanted to live on a ventilator, so Tracie Young was extubated and given 2,500 micrograms of fentanyl to make her comfortable. But she did not immediately die after the dose – instead, she was transferred to the palliative care unit, where she died 10 days after receiving the dose. Kris Young said she didn't question the amount of fentanyl administered.
“We wanted her to be as comfortable as possible," said Kris Young. "We knew that she was going to pass away and I wanted her to die with dignity, without pain, comfortably.”
Prosecuting attorney David Zeyen said they didn't charge Husel with Young's death because the dose didn't kill her due to her high tolerance.
"Tracie Young had a very, very high tolerance to opioid pain medication because of her years of taking such medications under the care of a doctor to alleviate pain from her a failed back surgery," said Zeyen.
At the time of Husel's employment with Mount Carmel, the health system did not have any guidelines or a cap on pain medication during palliative ventilator withdrawals. Mount Carmel updated its guidelines in January 2019, after firing Husel.
This is a developing story that will be updated.
