REASON * May 1998

Medical Convictions
How prosecutors are charging doctors with criminal malpractice--and why patients should be very scared.

By Mark Crane

Eight years ago, Gerald Einaugler stood at the bedside of a terminally ill 78-year-old woman in a Brooklyn nursing home. The patient, who was suffering from kidney disease, had accidentally been fed through a tube intended for dialysis, but she was in stable condition. Einaugler, the nursing home's on-call physician, had no idea that he could be sent to prison for choosing to hospitalize her in the afternoon instead of in the morning.

But after the patient died in the hospital several days later, what Einaugler thought of as conservative management was portrayed by publicity-hungry prosecutors as intentional neglect. He was convicted and sentenced to 52 weekends at New York's notorious Riker's Island. He spent six weekends there, until Gov. George Pataki commuted his sentence last summer.

Einaugler's ordeal is a frightening example of what can happen when prosecutors seek trophies instead of justice. Nurses who destroyed clinical records to cover up their role in the case were granted immunity. The state's key witness recanted his testimony and now says Einaugler is innocent. The trial judge allowed prosecutors to inflame the jury with irrelevant, emotional rhetoric.

Although they felt powerless to overturn Einaugler's conviction because of limits imposed by recent Supreme Court decisions, two federal judges who reviewed the case said the outcome was unjust. "I would not have brought this case if I were prosecuting it," said U.S. District Judge Edward R. Korman in a conference with the attorneys. "If I had the power to set aside the verdict in the interests of justice, I would. But I am not a substitute for the jury system. Nor for a...prosecutor who is good at issuing press releases instead of preparing cases!"

A doctor's error in judgment is traditionally a civil matter, unless there is intent to cause harm or blatant indifference to a substantial, life-threatening risk. But indicting physicians and other health care professionals makes for attention-grabbing headlines, and in recent years prosecutors around the country have begun to blur the distinction between honest mistakes and crimes. The American Medical Association, which filed a friend-of-the-court brief on Einaugler's behalf, has passed resolutions decrying the trend. Criminalizing honest mistakes only drives them underground. In this punitive environment, there's strong incentive to hide errors rather than examine them, argues Nancy Dickey, the AMA's president-elect. "Every doctor should be afraid," says Donald Moy, general counsel of the Medical Society for the State of New York. Patients should be worried, too. The criminalization of medical judgment is bound to distort doctors' decisions, which increasingly will be guided by fear of prosecution instead of the patient's best interests.

Examples from other states show that Gerald Einaugler's experience is not unique:

n In 1991, a Miami family physician was charged with manslaughter and "abuse of the elderly" after the death of a diabetic. Prosecutors sought an indictment based on an anonymous tip and a cursory investigation. An expert witness told the grand jury that the doctor's "neglect" caused the diabetic's death, but the expert later conceded that he'd read only a fraction of
the patient's chart. After reading the full record, he recanted his testimony. It turned out the doctor hadn't even been in the state when the death occurred. While the indictment had been front-page news--the prosecutors called a press conference--the doctor's vindication was barely noticed. His 30-year career was destroyed. "Who wants a doctor who's been accused of homicide?" he asks.

n Last year, three Colorado nurses were indicted for criminally negligent homicide when an infant died after being given penicillin. Due to a mixup, a pharmacist had dispensed a syringe containing 10 times the prescribed dose. The drug was supposed to be administered intramuscularly, but after consulting two drug reference books the nurses decided to give it intravenously, believing that would be less traumatic. Medication errors are common and can result in tragedies, but in this case it was hard to discern the callous disregard for life that is needed to justify a criminal prosecution. Two nurses agreed to plea bargains with no jail penalty. Criminal charges will be erased if there are no new "offenses" within the next two years. One nurse pleaded innocent and demanded a trial. A jury took 90 minutes to acquit her.

n Also last year, five New Jersey nurses were indicted for endangering the life of a nursing home patient who was bleeding internally. They allegedly didn't contact an on-call physician until it was too late. Subsequent investigation revealed that the nurses did call and that they attempted to help the patient on their own. Their attorney says they were made scapegoats for staffing cuts at the county facility. After getting front-page headlines, the prosecutor caved in. He allowed the nurses to enter a program in which they avoided a trial and jail time without admitting guilt. All of them lost their jobs.

n An emergency room physician in rural northern California faced murder charges because he allegedly failed to recognize the gravity of an infant's condition. The baby died of infection and dehydration. The doctor didn't intend to harm the child, but prosecutors argue that his errors were an extreme departure from appropriate care. The doctor's defenders say he was faced with a difficult clinical situation and used his best judgment. If he made a mistake, they say, the remedy lies with the civil courts, not a jail cell. Community leaders have raised thousands of dollars for the doctor's legal defense fund. After the prosecution rested its case in his trial, a judge dismissed the charges, acquitting the doctor. The judge said the evidence was insufficient to convict him of murder, involuntary manslaughter, or child endangerment. The physician still faces a civil malpractice suit from the child's family.

Physicians and nurses are inviting targets for ambitious prosecutors. Unfortunate outcomes, especially among patients in precarious health, happen despite the best of care. But prosecutors encourage jurors to reason backward and find a villain. By focusing on the outcome rather than the defendant's rationale at the time of treatment, prosecutors can persuade a jury to convict a health care professional who acted in good faith.

That's what happened to Gerald Einaugler, the only physician to be jailed (so far) because prosecutors playing doctor disagreed with his judgment. The case began on a Friday afternoon in May 1990 when a blind 78-year-old woman suffering from end-stage renal disease, cardiovascular disease, and other problems was transferred from Brooklyn's Interfaith Medical Center to a nursing home across the street. Einaugler handled the admission.

A catheter had been surgically implanted in the woman for peritoneal dialysis, in which blood is run through a machine that filters out waste products normally removed by the kidneys. Einaugler mistook the catheter for a gastrostomy tube and ordered liquid feedings through it. The hospital hadn't sent paperwork identifying the catheter or noting that the patient was to be fed by mouth. The state Office of Professional Medical Conduct concluded that the catheter's location near the abdomen and its resemblance to a feeding tube led to the error. Notably, the review board declined to impose any sanctions on Einaugler. Nor did he face a malpractice suit, though that could have been because the patient did not have any close relatives.

Einaugler was prosecuted not for the tube mistake but for delaying hospitalization after it was discovered. Nurses had been suspicious about the catheter, which did not have the right kind of end for a feeding tube. Instead of contacting Einaugler, however, they fiddled with it, snapping off the end and replacing it with a connector so that a bag of feeding solution could be attached. Thirty-six hours later, when they realized there'd been an error, they drained off most of the feeding solution, which had collected in the patient's abdominal cavity. The woman was in stable condition when the nurses called Einaugler at 6 a.m. that Sunday. Before leaving for the nursing home, he called her nephrologist, Irving Dunn, for guidance.

That conversation became crucial to the criminal trial. Prosecutors claimed Dunn had said immediate hospitalization was necessary. According to Einaugler, Dunn had advised him that there was no emergency, that the patient should be monitored until the next morning, when she would undergo dialysis and have her abdominal cavity washed out at the hospital. Einaugler examined the woman in the morning and the afternoon. A couple of hours later, when nurses said the woman seemed weaker, he ordered her transferred and met her in the hospital emergency room.

Now the patient was Dunn's responsibility. She didn't receive treatment until the next morning, when he performed dialysis. The patient died four days later. Of what, exactly, isn't clear. Although no autopsy was conducted, a city medical examiner testified three years later that the woman died of chemical peritonitis, a bacterial infection caused by foreign matter in the abdominal cavity--in this case, the feeding solution that was mistakenly administered through the catheter. The medical examiner never spoke to the woman's physicians or nurses, basing his conclusion on a review of the charts. Testimony by Einaugler's witnesses that the patient died of pneumonia and her other diseases was "far more persuasive," according to Korman, one of the federal judges who reviewed the case.

After the nursing home reported the catheter error to the New York Department of Health (as required by law), state prosecutors tried to indict Einaugler for manslaughter. Edward J. Kuri-ansky, then the lead state prosecutor for nursing home cases and now New York City's investigations commissioner, charged that Einaugler, attempting to cover up his mistake, had ignored Dunn's advice to transfer the patient immediately. "After Einaugler's grossly negligent conduct placed the patient in mortal danger," he wrote in a letter to The Wall Street Journal, "he prevented the treatment which he knew was necessary. His disregard of another human being was so reckless and so neglectful as to render him criminally liable."

Instead of manslaughter, a grand jury indicted Einaugler on two misdemeanor counts of reckless endangerment and neglect. But Kuriansky, who issued press releases after the indictment and after the conviction, continued to make public statements blaming Einaugler for causing the patient's death, an offense with which he was not charged. Einaugler turned down a plea bargain that would have resulted in no jail time. "How could I plead guilty when I didn't commit any crime?" he asks.

Dunn, the key prosecution witness at the 1993 trial, gave testimony that was ambiguous and hard to follow. Appeals court judges later disagreed about what he meant. He conceded that the situation on Sunday morning was not an emergency, but he said the need to hospitalize the patient was urgent, and he denied telling Einaugler that it could wait until Monday. On appeal, several judges said a jury could reasonably conclude that Dunn had conveyed the need for immediate transfer, even though his instructions were not explicit.

Peter A. Chavkin, the attorney who began representing Einaugler after the trial, says testimony about the patient's death prejudiced the jury. "Prosecutors intimated that Einaugler had caused her death, even though he wasn't charged with that," he says. "It became impossible to overcome the jury's desire to punish someone."

Judge Neil J. Firetog sentenced Einaugler, a first-time offender, to 52 weekends in prison--a harsher penalty than muggers often get. The sentence was stayed pending the doctor's appeals, which lasted almost four years.

Korman, the U.S. district judge, reluctantly upheld the conviction, but he challenged Dunn's veracity and blasted prosecutors and Firetog for bungling the trial. "It makes absolutely no sense that Einaugler would seek Dunn's advice only to ignore it," Korman noted, concluding that Dunn had been "less than truthful." Still, a witness's credibility is for the jury to determine. Though Korman found the case deeply troubling, he noted that Supreme Court decisions on habeas corpus review limited his authority to set aside an unjust verdict. "I hope I get reversed," he said in a conference with the attorneys. "Habeas law is a procedural morass. The one thing that everybody has succeeded in doing is making innocence irrelevant."

A divided federal appeals court also upheld the conviction, even though there was no expert testimony that the alleged delay in hospitalization posed a substantial danger to the patient. (Einaugler's expert witnesses, including the renowned medical examiner Michael Baden, testified that there was no such danger.) For a century, New York courts have required expert testimony before a civil malpractice case can go to a jury. One might think such testimony would be even more important in a criminal case. But the appeals court ruled that expert testimony isn't necessary under the reckless endangerment statute. In a scathing dissent, one judge said this means a physician can be jailed based on evidence that isn't strong enough to get him sued. He also likened the prosecution's cover-up theory to an Oliver Stone screenplay.

After Korman's decision in March 1996, Dunn signed an affidavit to "clarify" his testimony. He now recalled saying that hospitalization on Sunday wasn't necessary. He said Einaugler had acted responsibly. Last year, as Einaugler was about to enter prison, Dunn went even further.
He told me that prosecutors were out to get Einaugler from the start. "He's completely innocent," Dunn said. "He sought my advice and followed my instructions exactly. There was no emergency. I asked him to monitor the patient at the nursing home, which he did."

What accounts for Dunn's about-face? He was under tremendous pressure from prosecutors at the trial and probably worried that they might bring charges against him. But when he saw that Einaugler was going to prison, he could no longer stick to his initial story.

With Dunn's permission, I recorded our conversation and gave the tape to Chavkin, Einaugler's attorney. Chavkin presented it, along with the Dunn affidavit, as newly discovered evidence, seeking a new trial. Firetog, the trial judge, ruled that the new evidence was not substantial enough to have altered the outcome, and his decision was upheld by the state appeals court. Because of a statutory limit on the number of habeas corpus petitions a defendant can file, the federal courts refused to acknowledge the new evidence. As Korman noted, innocence is irrelevant.

Einaugler got strong support from his colleagues and from organized medicine. They pleaded with Pataki to intervene in the case. "We won't risk our reputation going to bat for bad apples," says Morton Kurtz, former president of the New York medical society. "We had 57 physicians review the charts and trial transcript. Einaugler didn't neglect his patient and didn't cover anything up. He made a judgment to treat her conservatively. If a prosecutor can charge, in hindsight, that conservative treatment is neglect, then every physician is vulnerable to an aggressive prosecutor looking for a headline."

After Einaugler spent six weekends at Riker's Island, Pataki freed him, commuting his sentence to community service, consisting of treating patients at a homeless shelter. It's telling that the governor said Einaugler's service should be "as a physician." It's doubtful he would demand that if he thought Einaugler had neglected or endangered his patient.

In his own practice, Einaugler treats a few loyal patients, mostly for free. Because of his conviction, he was disqualified as a Medicare and Medicaid provider and lost his hospital and nursing home privileges. No health plan will touch a doctor who's been convicted of a crime. Einaugler is facing financial ruin. Chavkin and his law firm, Stillman and Friedman, have represented him pro bono for years, providing more than $450,000 worth of
legal services. "Governor Pataki showed tremendous courage in reviewing this case and commuting the sentence," says Chavkin. "But as long as the conviction stands, Jerry Einaugler can't earn a living and has a stain on his name. We're still seeking a new trial, and requesting a full pardon from the governor."

The precedent set by the Einaugler case is dangerous because it means that physicians are at the mercy of any overzealous prosecutor trying to make a name for himself. Predictability is fundamental to the rule of law. A law may be stupid or cruel, but if you know in advance what's legal and what isn't, you can decide whether to cross the line. If this verdict stands and other prosecutors take a cue from the case, doctors will no longer have that fundamental protection. The state will decide after the fact which clinical judgments should be punished.

As unfair as that is for physicians, the implications are more ominous for patients. Malpractice litigation already encourages extra tests and procedures, driving up health care costs and posing unnecessary risks to patients. The threat of prosecution compounds the tendency to make decisions based on legal concerns instead of sound medicine. How can a patient rely on a doctor who's worried that his best advice could land him in prison?

Unwarranted prosecutions may encourage doctors to be dangerously aggressive or dangerously cautious. If monitoring a patient rather than hospitalizing her is criminal neglect, what doctor wouldn't call for the ambulance at the first sign of trouble? Given the risks that transfers pose to the frail elderly, such incentives could easily do more harm than good. Prudent physicians may even shun difficult cases, making it more difficult for the very sick to receive treatment.

The problem goes beyond the elderly. It's not uncommon for an obstetrician to tell a patient in the early stages of labor to wait at home for a few hours before going to the hospital. Like any human being, he could be wrong. If the patient or her child is injured, he might be sued or hauled before a professional board. That's part of the uncertainty of medicine. But what happens if his good-faith decision is prosecuted as criminal neglect? Once obstetricians realize their risk, pregnant women may be hospitalized at the first sign of labor, whether or not it's clinically indicated.

Or consider appendicitis, which is often difficult to diagnose. Since surgery and anesthesia always carry risks, we don't want doctors to start cutting up everyone with a bellyache. It's not unusual for doctors to take a "wait and watch" approach, and sometimes they wait too long. If the appendix bursts, the patient could get peritonitis, which is potentially fatal. In such a case, a patient or his family might sue for malpractice. They'll get an award only if they can prove that the physician's actions deviated from the accepted standard of care. But with the added threat of criminal charges, physicians might be more inclined to perform exploratory surgery rather than wait.

Breast cancer raises similar issues. When women have lumps, physical exams and mammograms are often equivocal. Based on the patient's history and his own clinical experience, a physician might say, "I think it's a cyst, not a tumor. Come back for another exam and mammogram in six months." Physicians already know they can be sued if a patient decides that her breast cancer should have been diagnosed sooner. But what would happen if prosecutors began charging such doctors with criminal neglect? More biopsies would be performed, causing needless fear, pain, and disfigurement.

As these scenarios suggest, the option that is least likely to attract a prosecutor's attention is not necessarily the one that's best for the patient. And while cases such as Einaugler's are still unusual, that fact makes them even harder to predict. Physicians can't know what conduct is illegal until the mug shots are taken.

Medicine is often as much art as science, and competent physicians disagree all the time. But prosecutors paint cases as black and white. If there's an unhappy result, a jury is asked to punish the bad guy. No doctor should be immune from paying for mistakes. But the distinction between honest errors and crimes must be based on a standard higher than a prosecutor's lust for publicity. Physicians should be allowed to practice without the threat of criminal liability lurking behind every decision.

Mark Crane is a senior editor at Medical Economics magazine.