COLUMBUS, Ohio — Franklin County Judge Michael Holbrook has denied a motion filed by Dr. William Husel’s legal defense team which sought to stop prosecutors from presenting evidence that jurors could consider lesser offenses like reckless homicide in Husel’s upcoming murder trial.
Husel’s defense team also argued that the former Mount Carmel physician is immune from prosecution because state law provides immunity to doctors as long as they’re acting in good faith when providing comfort care.
Holbrook said that issue should be left up to what’s presented at trial, which is slated to start Feb 14th.
“As is the case with anyone charged with murder, whether the jury should receive an instruction on any lesser included offense depends on the facts adduced at trial. This is especially, true, here, where the application of…. Immunity may apply,” Holbrook wrote in his order Tuesday.
Judge Holbrook continued: “Thus, a pretrial decision cannot be made without evidence related to whether (Husel) was acting in good faith, providing comfort care and acting within the scope of his authority.”
Holbrook also ruled there will be no discussions of lesser offenses or physician immunity during the jury selection process. A special voir dire of more than 300 prospective jurors was expected this week.
Husel, a former Mount Carmel critical care doctor, stands accused of ordering potentially fatal doses of fentanyl to be given to patients under his care. All of them died.
Among the central questions at his upcoming trial will be: did the drugs hasten these patients' deaths? And is the doctor criminally responsible?
Initially, when Husel was fired by Mount Carmel Health System in December 2018, the hospital identified 35 patients who they said received “excessive” or “potentially fatal” doses of the powerful painkiller. Many of the patients were in the intensive care unit and said were given the doses around the time their ventilators were being removed.
The Franklin County Prosecutor’s Office – which in June 2019 was under the helm of long-time Prosecutor Ron O’Brien – focused its case on 25 patients who received 500 micrograms of fentanyl or more.
At the time, O’Brien said: “I have found no one, nowhere that says 500 micrograms of fentanyl is the appropriate dose of fentanyl for the treatment of someone being taken off a ventilator.”
But in recent weeks, prosecutors have changed their focus – now under the direction of Prosecutor Gary Tyack who unseated O’Brien in November 2020 election – prosecutors chose to dismiss 11 charges against Husel.
Most of the remaining 14 charges that make up the indictment involve patients who received 1,000 micrograms or more. Among the remaining patients who received less include Beverlee Schirtzinger, who received 500 micrograms of fentanyl.
Recent court records indicated that patients Schirtzinger, Nick Timmons and Troy Allison were among those patients whose conditions might have improved with additional medical care, according to their families’ attorney, who said he received the information from Mount Carmel’s attorney.
All three of those patients remain part of the criminal trial.
Husel has pleaded not guilty.
His attorneys have argued he was providing comfort care to patients in their final moments of life.