Medical Convictions

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

Mark Crane from the May 1998 issue

(Page 2 of 3)

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.

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