The Fairfax County grand jury met again last week and still heard nothing about the case of Rhea E. Henson. Henson, a critical care nurse at Inova Fair Oaks Hospital, flashed through the news three months ago when she was suspended from her job after two critically ill patients died under her care, apparently after receiving high doses of morphine.
While police continue to investigate, a state health department report released this week provides more details about what might have happened to the two patients, both comatose men with "do not resuscitate" orders. But the report reaches no conclusions about whether Henson--whose nursing license remains suspended--caused their deaths and provides little new information for investigators.
Henson, a contract nurse who had been assigned to the hospital for two years, has not been charged with any crime and has denied any involvement in the two deaths. Her attorney yesterday described her as "a fine nurse," adding, "This is not a case of murder."
If police and prosecutors decide to press charges, they will face many hurdles, legal experts say, including levels of morphine in the two patients that weren't fatal by themselves; disagreement over whether the two men were already legally dead under state law; and establishing criminal intent by a defendant with an otherwise unblemished record who apparently has the support of the two patients' families.
"It's real hard to prove a medical homicide," said George Annas, a bioethicist and professor of health law at Boston University. "Especially where there's a medical purpose for the drug, like morphine. The U.S. Supreme Court has said you can't kill a patient, and you can't help them commit suicide, but you can give them everything to keep them out of pain."
Even Nina Alexander, an Indiana prosecutor who this month won six guilty verdicts against a nurse for fatally injecting patients, noted that she had considerable evidence--far more than prosecutors in Fairfax do--and, even so, was still "shocked" she was able to win a conviction.
Henson's nursing license was suspended July 14 after state health officials said she had admitted administering overdoses of morphine, a narcotic painkiller, to two terminally ill men a month earlier.
The report issued this week by the state health department said Henson told another nurse on June 30 that she had given a large amount of morphine to an 80-year-old patient with brain damage after a heart attack. When the man did not die by the end of Henson's 12-hour shift, the report says, she "got panicky and filled the morphine IV bottle with saline to the level it should have been." The patient died about 16 hours later.
The other nurse told state investigators that Henson told her that "her [own] father's death was not easy, that he died without drugs, as his doctor would not give him morphine."
According to the report, the other nurse then asked Henson whether she had done this to anyone else, and Henson responded that she had, on June 24 injecting a 50-year-old man who had suffered a brain hemorrhage, "and that shortly after the last one [injection], he stopped breathing and died."
Henson's attorney, Peter D. Greenspun, noted yesterday that the state report is not evidence, only the result of a preliminary investigation "without any input on behalf of Mrs. Henson." Greenspun described Henson as "a fine nurse who is a credit to her community" and said: "This is not a case of murder. It's not a circumstance of that nature."
The names of the two patients were deleted from the report, but family members have confirmed that one was Azim Mohammed, 50, who, according to his brother, was visiting from Trinidad when he suffered a massive stroke.
Nazim Mohammed said that he had met Henson at Inova Fair Oaks and that "she seemed like a real professional person, a real nice person." Told that Henson was suspected of hastening his brother's death, Nazim Mohammed said, "It might be better for him."
After police were called in, detectives obtained blood samples from both deceased patients and had them analyzed by the state lab. Neither contained a fatal level of morphine, according to sources close to the investigation. Fairfax police are awaiting further testing of the samples by the FBI.
If prosecutors decide the toxicology results won't support a murder case, they could file attempted-murder charges. Either way, one of Henson's former attorneys said he believes that the "do not resuscitate" orders in effect declared the patients legally dead already and that therefore Henson could not have killed them.
"When that DNR order is signed, legal death occurs," said Dale M. Race Jr., who represented Henson last summer. "You can't kill someone who's dead."
Virginia Hackney, a Richmond lawyer who helped craft Virginia's legal death statute, disagreed, saying: "If a patient's still got brain waves, you're still providing comfort care. It's still unlawful to hurry the process."
If Henson is charged, those issues likely will end up before the jury. And if the past is any indication, prosecutors will have an uphill fight.
Patricia Kirby, a former Baltimore homicide detective and FBI agent who has studied so-called mercy killings, said: "Where the patients are otherwise dying, in most cases [it] ends up with a hung jury at best. People rationalize that--'Are you just putting someone out of their misery? Were they, in fact, acting out of kindness?' They often think this isn't really killing."