The Comfort Kit

My mom had been found doubled over and non-responsive and when they put the oxygen monitor on her finger, her oxygen saturation was in the 70s, which if you're in the medical field, a sustained oxygen saturation in the 70s is not compatible with life. In fact, it's not very long until someone is brain dead. This is Rachel Waters. In July of 2023, she got a phone call from the Memory Care Unit at an assisted living facility where her 74-year-old mother Marsha lived. Marsha had advanced Alzheimer's and cancer that had stopped responding to treatment and had been on hospice care for the past seven months. Rachel says when staff from the facility found Marsha non-responsive, they'd gotten in touch with the hospice nurse. And when he got there and examined her, he declared that she was actively dying. My mom did have a DNR. I do not resuscitate order. So she did not want any resuscitation. And so in the absence of resuscitation, he determined that she was eminently dying and had hours to days to live. And so the staff called me and they got him on the line too because he was there and they said you need to get down here immediately because your mom may not be alive for you even to make it from New York. Rachel lives in Queens. The care facility was in Georgia, not far from her hometown. Rachel had been traveling to Georgia once a month to be with her mother and had known it was possible she might receive a call like this. When someone is on hospice care, it usually means they have six months or less to live and they receive care that focuses on comfort instead of treatment. Rachel and her partner David quickly looked up flights. Unfortunately, there was a really catastrophic storm with massive flooding that had grounded all flights leaving New York. We had three flights in a row canceled. So we had to take an amtrak the next morning to DC and then fly to Augusta and the whole time I'm texting the nurse like if she's still alive, if she's still there, even though she was not responsive, she was still hanging on. And by the time I got there, you know, it had been more than a day, non-responsive, no food, no fluids. She put on oxygen that brought her oxygen saturation up, but she never regained consciousness and basically looked paralyzed when we arrived. She couldn't move. And it was clear she was in the active dying process. So we set up a bed in her room and waited. Did she seem comfortable? No, she did not. She had two large bed sores that appeared. And the only responsiveness she had was when staff came to turn her her face, which just distort an agony, looked like a Greek theater mask. And it was clear to my husband that she was in an immense amount of pain when she was turned and sometimes she would try and make an utterance. But her eyes were unfocused and glassy. They were starting to dry out because she had had no fluids. It was really clear that whatever dying process she was going through was not comfortable. Rachel asked the care facility staff if they could give her mother something for the pain. Most of the people who worked there were AIDS, not doctors or nurses. It wasn't a medical facility. So Rachel asked if they had what's called a comfort kit, something that's often given to caregivers when someone enters hospice care. It can include medications like morphine and the razzapam that help manage pain, anxiety and other end of life symptoms like shortness of breath. And they unfortunately did not have a comfort kit on hand. And so I jumped into action requesting that hospice get one prescribed ASAP. The care facility consulted hospice nurses they worked with and they were like, well, we don't think she needs it. And they were like, she's comfortable and I was like, she has bone cancer and bed sores and she's clearly in pain. She's not comfortable and she is entitled to comfort care under law. According to Georgia state law, hospice services must ensure that patients and their families receive palliative care for persons with advanced and progressive diseases, when offered. In a manner that respects and protects their dignity and ensures all patients' rights to receive care that neither physically or emotionally abuses the patient nor neglects the patient's needs. Rachel says the hospice staff didn't explain why they believed her mother was comfortable and didn't need the comfort kit. Which was the source of conflict, right? Because we and my friend Allison, who was also a hospice nurse, was coming in and disamening her. And she was like, I don't know why they're declining to prescribe this. This is very unusual. This is not the standard of care. The care facility wrote in their logs that they consulted a family doctor who said she quote, will not start morphine at this point. And the logs noted that a hospice nurse quote, doesn't see any reason to start resident on morphine. And it seemed like when Rachel talked about morphine, it made this nurse really uncomfortable. Rachel's partner, David, remembers feeling confused about the nurse's reaction. She's at end of life and hospice's whole entire purpose is to ease people's pain as they pass. I mean, it must have been emotional time. You wrote watching Marsha clearly in pain and dying and then trying to speak with these nurses or speak with the workers at the facility. What were those conversations like? I can imagine it was probably not heated, but you were trying to advocate for someone who's on pain. Yeah, I mean, we were advocating Rachel's very direct, but she wasn't being agitated or anything. It was a very calm like direct. Like, oh, this is what she needs. And it was just kind of frustrating because they were not listening to her. And there wasn't any heated argument. It just seemed like this person had already made up their mind about what Rachel's mom needed. Rachel remembered that there was a comfort kit with morphine at Marsha's house, which was about a 30-minute drive away. Marsha had stayed in her own home for the first few months of hospice care, and Rachel had been given a comfort kit then, along with instructions. The nurse who came to the house for weekly visits at the time explained, you know, this is what these medications are for, especially if she begins to experience pain or respiratory distress during the dying process. Here's the emergency hotline number. This is what you call if you start to see these symptoms, and we can walk you through the administration of these medications. But you'll essentially be expected to administer them at home, especially in the event if your loved one can't administer themselves, and it's generally assumed that your loved one can't, if they're actively dying. When Marsha was moved to the memory care facility, Rachel says she was told it was fine, told on to the comfort kit. David drove to Marsha's house to retrieve it. And so I just picked it up and put it in the car, because we knew the care facility did not have anything on hand, and in the evening it was almost like skeletal personnel. There was a receptionist and maybe some orderlies, no medical real medical professionals. I knew there was a nurse on call, but in the evening when we were there by ourselves, we knew we're kind of on our own. And so we just wanted to be prepared. That night, Rachel and David set up an air mattress on the floor of Marsha's room. Very early the next morning, around 4 a.m., a noise woke them up. And that was my mom fighting for air. And I knew from a booklet that actually my hospice nurse friend, Allison, had given me about what to expect at the end, the explanation of Agonyl breathing. And this mandibular breathing where they sort of just thrust their and smash their teeth together in an effort to kind of gulp or swallow air. That is a sign of impending death. It usually happens anywhere from three or four hours to 20 minutes before death. It looked distressful to see, like it really distressed Rachel to watch her mom in that state gasping for breath. It's like watching a fish out of water, trying to breathe. And we knew that the comfort kit literally says on the bottle, the morphing bottle says for shortness of breath. Rachel remembers wanting to check one last time to see if the care facility would order a prescription. Which would enable the workers at the facility to administer the medications, right? We didn't want the responsibility for that because it is an utterly nerve wracking thing already to watch your parent die. Much less be responsible for their comfort care. So at that point, seeing my mom in this desperate Agony hungering for air, I ran all the way to the front. desk and said, "Please, please tell me that Comfort Kit prescription has come through with morphine because my mom needs it now." They went and checked and said nothing had come through. And at that point, my husband's like, "I can get it from the car and we can call the hospice hotline and see what we can do." And so that's exactly what happened as he went and he got the kit from the car. And I called the emergency hotline. And I explained her symptoms to the woman who was on the line and one of the things I asked, I said, "Even though she's in memory care, is it legal for me to give her medication here?" And she said, "Well, yes, of course, that's why we prescribed the Comfort Kit to the family. That's what this is for." David says while Rachel was on the phone with the hospice hotline, some of the aides came into Marcia's room. David remembers Rachel, told them that the hospice hotline had told her it was okay to give her mother some morphine from the Comfort Kit. She was trying to make sure she was doing things right, make sure everything everyone knew what was going on. But they said, "Oh, I don't want any of that." And just like walked out. Essentially, as if we, I don't know, like pull out a gun or something. This is the way they reacted. It was just seemed like a complete overreaction to something that's in a Comfort Kit. Like they were suggesting it was something illegal or something. Yeah, it's essentially. They were reacting as if we were committing a crime and they didn't want any part of it. Rachel asked the nurse on the hospice hotline, "How much morphine she should give her mother to ease her pain?" And Rachel says the nurse recommended one milliliter. I was so nervous. I was like, "You need to double check and make sure I'm drawing up the exact amount because my biggest fear was the idea of making something worse for my mom." But it's given sublingually under the tongue, just a couple of drops of liquid morphine. And unfortunately, probably because she was so advanced, it really made no difference whatsoever. She continued to gasp for air and smash her teeth together until she died about 36 minutes later. After she died, you know, hospice came and they declared her and they did all the expected things. They came and changed her clothes. They cleaned her. They dressed her. And the funeral home was delayed and coming to pick her up. You know, she died very early in the morning. The funeral home couldn't get there to like 11, 10, 11 a.m. And so the funeral home said, "You guys can just go home and rest. She probably haven't had any sleep." Rachel and David started driving to Marsha's house. In the car, Rachel got a phone call from someone at the funeral home who said that there was a problem. They couldn't pick up Marsha's body because it had been taken to Atlanta, to the crime lab, at the Georgia Bureau of investigation. I'm Phoebe Judge. This is Criminal. We'll be right back to listen without ads. Join Criminal Plus. Have you ever wondered who invented rock and roll or why Fleetwood Mac fell apart or what it was like at Motown in the early years? Well, do I have a podcast for you? My name is Will Anderson. I'm a songwriter, a musician, and a huge music history buff. And I'm so excited to announce my new podcast the Monday Music Club. I teamed up to make this podcast with the Vox Media Podcast Network because ever since I was a kid, I loved hearing and reading stories about classic artists recording sessions and music history. And I wanted to have a place to be able to take what I've learned and share some of those favorites with you. Every Monday, I'll be releasing a new episode and deep diving into a new story with experts and special guests, and it's going to be a blast. So if you're a music history geek like me, or even just a casual music fan, jump in because I promise the Monday Music Club is going to be the podcast for you. Tell me a little bit more about your mother. What was she like? My mom was amazing. My mom was an brilliant engineer. She was in satellite communications, civilian personnel for the US Army. So she did all of their SAT comms. But she was also a great artist. She was a painter. She drew something she and I share in common. We both were very much into art. She did a lot of wildlife art for Audubon, for Docks Unlimited. And never mind art. She was an English teacher for a year before she went to work for Fort Gordon. So she was also super literary. She got a huge love of literature and poetry. And it was something that really deeply connected us. Rachel Waters says growing up in the small town of Harlem, Georgia, she always felt like kind of an outsider. I was a weird kid growing up. I didn't know it at the time. But I was later diagnosed with autism. So I was quirky. And my mom was always my steadfast defender, whether it was from school bullies or, you know, my father, or I had kind of a difficult childhood. You know, he didn't understand me as much. So my mom and I were extremely tight. And that carried through kind of all my life, you know, before I moved away to New York, we were together every day, whether it was running errands, running to the grocery store or hanging out in some capacity. And even when I moved to New York, we talked on the phone every day or texted. About five years after moving, when she was in her late 20s, Rachel did a 23 and me genetic screening test. Her partner, David, is an Alzheimer's researcher at NYU. And Rachel wanted to know if she had a kind of gene that put her at risk for developing the disease later in life. They would find that if you had the APOE4 variant, which is sort of colloquially known as the Alzheimer's gene. And I had a copy of it. And my mom hadn't done the test at the time. But as soon as I came up positive for a copy of the gene, I was really haunted by recollections of family stories of my maternal great-grandmother having senile dementia, as they called it in the early 1900s. And so I urged my mom to get a test. And sure enough, she also came up positive for the gene. And it was within literally a couple of months that I started noticing just some weird blips here and there. It was just pronoun reversal. So all he's were she's, all she's were he's. But it stayed like that for years. And when I say there was no other sign of decline, this was the woman who did everyone in the family's taxes, including mine and didn't make a mistake. So there was no real meaningful signal for cognitive decline. But it was a quirk that I sort of made a note of to kind of pay attention to. But when the pandemic came in 2020 and lockdown happened, I realized that something really serious was happening when her text messages to me became increasingly garbled, really screwing up her spelling and grammar in ways that were really unusual for my mom. And I knew then that she was probably on that downward slope into Alzheimer's. And we rushed down August of 2020. And when I got there, she had aged physically 20 years and eight months, which was when I had less senior in January of 2020. She had lost a lot of weight. Her entire spinal column had collapsed from osteoporosis. And I rushed her into a gerontologist and kind of immediately jumped into action to sort of stabilize her bones and hopefully get her on some medication that would slow the march of Alzheimer's. Rachel says that together with Marsha's doctor, they decided she could remain at home for the time being. And so we managed it initially by just kind of setting up her home in a way that would help her feel familiar and safe. And coming down, they're really frequently. So I was down there every six weeks. And I would spend about a week at a time, just kind of evaluate where her function was, how she was doing. And at first, it's kind of a slow burn. But then when she was diagnosed with multiple myeloma, which also impacts people cognitively in 2022, she fell off a cliff quickly. And that was when we really had to rush into action to get in home care. Marsha began immunotherapy for the multiple myeloma, a rare kind of cancer. But after a few months, the oncologist told Rachel it wasn't working. Rachel remembers the oncologist said Marsha probably had about six months to live and suggested thinking about hospice care. The modern day hospice movement was led by an English physician and social worker named Cecilie Saunders in the 60s. She talked about the concept of total pain, which included not just physical pain, but also emotional, spiritual, and psychological suffering. She believed all of it should be addressed when caring for dying patients. Her idea is inspired the first modern hospice in the US, which was founded in 1974. The hospice movement kept growing throughout the next few decades, in part due to the AIDS epidemic. epidemic. One man who runs a hospice in California has said, "Many health care workers were afraid to take care of these people, but this was core to the hospice philosophy of care to deliver on compassion, dignity, respect." Today, around 2 million Americans receive hospice care every year, and many of their caregivers receive a comfort kit, like the one Rachel had. When Rachel got the call from the funeral home that her mother's body had been taken to the Georgia Bureau of Investigation, she remembers feeling shocked. I mean, did anyone explain to you why? Oh, I didn't need an explanation why. I knew the only reason a person's body would be taken to the crime lab is if someone had alleged that there had been a murder. And so my husband was like barely able to continue driving the car because, you know, I have this on speakerphone and he can't believe what he's hearing either because typically also you're told what to expect of someone dies in hospice. It typically do not have an autopsy because it is an expected death. So it's not standard procedure by any means. And so I called the first attorney I could find Robert Homler in the area. And he, after relaying my story, he said, "Yeah, you know, you're almost certainly correct. They probably are looking at you potentially as a murder suspect or felony murder." So I start googling, you know, what these potential charges are, what they carry. But also, you know, telling him the story, he and I both felt really reassured because every record showed the reason I was down there was because she was actively dying. She had a prescription for morphine. She had active Alzheimer's and cancer and had been dying for days. She was declared dying long before I arrived. And he, you know, said, "I think you're odds of ever being charged for anything like this." You know, just like it was good as getting hit by a meteor. So, you know, as long as, you know, you're really thoughtful and, you know, you know, that you have all these records, it should be resolved. Later that same day, police officers came to Marsha's house, looking for Rachel. To playing closed investigators showed up at the door, asked for my phone, asked to speak to me. And I said, you know, you can speak to my attorney and you can get a search warrant for my phone. They came back with the search warrant about three hours later and it had my name and the words homicide on it, which confirmed my fear. But the search warrant also included the comfort kit or the prescription for morphine. So I was like, oh, thank God, they're going to see that she had a prescription. They're going to understand that this is like a normal course of work for hospice. Did, did you ask your lawyer, you know, hey, is this, does this something that happens from time to time? You never heard of it in his life. It was one reason he and none of the other lawyers, because God knows I talked to a ton of other lawyers to say, you know, what can I expect? Like how long do these investigations take? Have you ever heard of a case like this? You know, should I have anything to be concerned about? But they did not know of anybody who had been under investigation after their very sick loved one died in hospice. Rachel spent hours looking for similar stories with no luck. One of the closest things she found was the story of a Philadelphia nurse, named Barbara Mancini, who'd been charged with assisted suicide after giving her father a vial of morphine. Her father had been 93 and in hospice care. According to local police, the hospice nurse said Barbara told her she, quote, gave him the morphine at his request so that he could end his own suffering. Barbara said she hadn't said that and that she had just been trying to help manage his pain. She was arrested and prosecuted on the felony charge of assisted suicide, but a judge dismissed the case. The judge said there wasn't enough evidence that Barbara had intended to help her father die and that the prosecution was relying on speculation and guess. Rachel was worried she could face even bigger charges. Her lawyer thought it was possible she could get charged with something called felony murder. You don't have to kill somebody or even intend to kill somebody, but if they die during the commission of a felony, you can be charged with murder and subject to the death penalty or life in prison just as if you had murdered them at right. Rachel says she tried for months to get the memory care facility to hand over Marsha's medical records. Finally, in February of 2024, seven months after her mother died, she received them. When I read through the record, I saw that on July 11, the day I had gotten into conflict with the nurse about morphine not being prescribed, she charted that I had requested euthanasia, put it in quotes. We'll be right back. Before we get back to the show, just a note to say this fall I'm going on the road with a big experiment. It's a brand new live show all about me and my family and secrets. It's totally different from anything we've done before. We're going to announce the full run of tour date soon, but first, we've got a couple of special shows coming up in just a few weeks. I'll be in Durham on September 16th at the first place we ever did a live show, Noterco, and in Portland, Maine on September 18th. We've never done a show in Maine. You can find out more at this is criminal.com/live. I hope to see you very soon. Rachel Waters says she was shocked when she read that the nurse that her mother's care facility had said that Rachel had requested euthanasia. I had never made any such request, and at that point I started to panic again, call my attorney and was like, what is going on? He's like, this is, you know, someone's hearsay. I'd still like stay calm because this is just highly unlikely for anything to come at this. And for a while, nothing happened. But in February of 2025, the day before Rachel's 42nd birthday, an anonymous Instagram account left a comment on one of her posts. Quote, "Why have you been indicted for murder in your mother's death? Shame on you." And then posted underneath that was a copy paste of a very official looking indictment number with Judge Barry Fleming, which I knew was the Judge in Columbia County's name there, and two counts of murder, felony murder, and malice murder, and my name. I was terrified. I wasn't like, this has got to be some kind of scam. Somebody's trying to blackmail you. I had a feeling it was not, so I took a screenshot. I sent it to the attorney I had consulted with, and I said, Robert, is this real? Am I about to be arrested? He replied, yes. Robert recommended that she hire another lawyer, named Brian Steele, would work on a couple of high-profile cases. Brian said to me that it was one of the most horrifying things he'd ever heard, and so he felt compelled to take it. And I think any attorney I spoke to was really shocked by this. They'd never even heard of it, never even conceived of anyone being charged with murder under these circumstances. Rachel says Brian Steele started planning right away. And he said, you know, one of the first things we're going to do is we're going to make arrangements for you to turn yourself in so you can make bond. Turning herself in meant going back to Georgia to be arrested. Because Rachel was facing murder charges, it was possible that she would not be granted bond and would have to wait in jail for trial. She'd been planning a party for her 42nd birthday the next day. As when asked me, it was like, do you want to go through this party? I said, yes, because I need to let people know what's happening to me and let them know what to expect. And so when people came over the next day, it was like 45 people came for the party. I gathered folks around and then told them what was happening. Rachel says most of her friends were in shock. Some of them started crying. Many of them volunteered to come down to Georgia to testify as character witnesses at her bond hearing. Early in the morning on the following Wednesday, Rachel turned herself in at the Columbia County jail. I was put in medium security, you know, showered sprayed with disinfectant. All your possessions taken away, put in a cell with your cell mate. Her bond hearing was later that day. Over 30 people showed up to be character witnesses for Rachel. Friends flew down from New York and her ex-husband from an earlier marriage was there. Her partner, David, remembers that the courthouse was so packed there weren't seats for everyone. Eventually the district attorney asked for a break. break and spoke with the judge. After that, Rachel was granted bond. The judge granted $200,000 bond. And my husband was able to pull together to pay that bond fee. It's like 15% and to secure my release at 6.30 that evening. Rachel was able to return to New York. And she and Brian Steele began preparing for trial. It wasn't long before they received the prosecution's evidence. When we got that evidence, we realized it was scant. There was almost nothing there except for two witness testimonies, only one of which implicated me negatively in any way. It was from the hospice nurse at the facility who said that Rachel, quote, wants Marsha to die. And she did not want Marsha living any longer. There was my Google searches for murder charges after my mom died. And there was the autopsy report. And it listed morphine toxicity along with a ton of other things that cause a death, like liver necrosis and kidney failure. And it has the morphine concentration, which stood out to us because we'd been looking at morphine concentrations in necrosis. And we noticed it was a lot lower than what we'd seen in literature. And that was it. There were other things like various search warrants, visitor logs. But we noticed that her medical records didn't appear to be there. We didn't see any of the records showing that I had been called down, that she was declared actively dying. And there didn't appear to be much context that they had for my mom's death. And upon seeing this, my husband, I call my attorney, and we're like, are we sure this is it? This is all they have. They don't have medical records. They don't have any of this. Because we have them. And he was like, yeah, I think this is pretty much it. And we realized then, my God, if these things weren't available to the medical examiner, we can provide boat loads of context. If we were able to get our evidence over to him and to the DA, we have a mountain of evidence, like thousands upon thousands of pages and documents and photos and text messages, far more from my phone than what law enforcement seemed to have pulled from my phone. And so we got on the line with Brian. And was like, would the medical examiner and the DA would they be receptive to seeing all our evidence up front? And Brian was like, yeah, it's worth a shot. Because there's no guarantee that it's going to change anything. But yeah, let's give the medical examiner and the DA an opportunity to look at your evidence. And we sent the medical examiner everything first. He reviewed it. And then in August, I got a call from Brian that he was revising the cause of death for it to no longer be listed as a homicide after reviewing everything. The medical examiner changed the cause of death to undetermined. Rachel and Brian also sent their evidence to the district attorney. And she spoke to the medical examiner. And it was less than an hour before she announced that she was going to drop request that all charges be dropped. We reached out to the care facility and hospice service for comment, but didn't hear back. What has life like been for you since the charges were dropped? Oh, man. It's been brutal. I had a career I loved. I had a life savings and a retirement. And that is all gone. I have not been able to find work. I've applied for jobs in my field. And I have not heard back. Rachel says, even though the charges were dropped, they could pop up on some background checks. And the first thing that comes up when you Google her name are headlines about the case. Over the past year, she spent a lot of her time talking with hospice workers and attorneys and has drafted a proposed law that would create more structure and protection around the use of comfort kits. There are no explicit laws, at least not in the state of Georgia. And almost certainly not in other states although we have not dealt as deeply as we have in a Georgia law, that explicitly protects caregivers who are given these medications, these control substances, and told to administer them to their loved ones as they're dying. And there's sometimes an assumption, especially in light of the opioid crisis, that if you have your hands on these medications and you're not a doctor or a nurse, that there might be something nefarious behind it. And because there's no explicit documentation of that or explicit protocols surrounding that, it kind of leaves it wide open where if someone alleges wrongdoing or foul play, then family caregivers are in a really tough position when their loved one inevitably dies. Rachel says she started hearing from other caregivers. Some of them saying that they've been under investigation after their loved ones died in hospice too. There's an ongoing investigation in Michigan into a woman who allegedly gave her sister, a hospice patient, an overdose of morphine. Just a few months ago on what would have been my mom's birthday, March 18th, I went back to Georgia and so I had a small ceremony with my husband, friends. Rachel invited people over to her childhood home and put out lots of Marsha's art. Marsha had requested some of her ashes be scattered on the property. And Rachel buried some at the edge of the pond behind the house right next to a bridge that her grandfather had built. For more on Rachel's story, you can read Madeleine Agler's article, "Oh my God, did someone accuse me of killing my mom?" We'll have a link in the show notes. Criminal is created by Lauren Spore and me. Nadia Wilson is our senior producer. Katie Beship is our supervising producer. Our producers are Susanna Robertson, Jackie Sajiko, Lily Clark, and Lena Silicin. Our show is mixed and engineered by Veronica Seminetti. Julian Alexander makes original illustrations for each episode of Criminal. You can see them at ThisIsCriminal.com and you can sign up for our newsletter at ThisIsCriminal.com/newsletter. We hope you'll consider supporting our work by joining our membership program, Criminal Plus. You can listen to Criminal This Is Love in February's Mystery without any ads. Plus, you'll get bonus episodes. These are special episodes with me in Criminal Co-Creator Lauren Spore talking about everything from how we make our episodes to the crime stories that caught our attention that week to things we've been enjoying lately. To learn more, go to patreon.com/criminal. We're on Facebook at ThisIsCriminal and Instagram and TikTok at Criminal_Podcast. We're also on YouTube at youtube.com/criminalpodcast. Criminal is part of the Vox Media podcast network. Discover more great shows at podcast.voxmedia.com. I'm Phoebe Judge, ThisIsCriminal.