Medical Convictions

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

Mark Crane from the May 1998 issue

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.