Transplant surgeon faces criminal charge for donor's quick death

A column analyzing the impact of recent court decisions on physicians

By Bonnie Boothis a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08. Posted May 12, 2008.

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A California Superior Court judge recently ruled that charges could move forward against a transplant surgeon for, in effect, hastening a man's death so his organs could be harvested more quickly. With this action, the judge authorized the first criminal charge related to an organ transplant procedure. What happens to the doctor he ordered to stand trial is likely to figure quite prominently in whether it also will be the last.

Superior Court Judge Martin J. Tangeman held that Hootan Roozrokh, MD, could be charged with one felony count of dependent adult abuse in the death of a patient at the Sierra Vista Regional Medical Center in San Luis Obispo, Calif.

But he dismissed two other related charges that focused on the administration of drugs to the patient. His mid-March ruling came after a preliminary hearing in which the prosecutors were required to show that their evidence was sufficient to take Dr. Roozrokh to trial.

The charges stemmed from events at the medical center on Feb. 3 and Feb. 4, 2006. Patient Ruben Navarro, who had adrenoleukodystrophy for several years, was admitted Jan. 29, 2006. Upon arrival, he was in a coma after a heart attack. His prognosis was diagnosed as poor.

On Feb. 1, 2006, Navarro's mother consented to withdrawing life support and to make her son an organ donor. Navarro was not brain dead, so doctors decided to use the donate-after-cardiac-arrest method for transplantation. This requires that the withdrawal of life support lead to death before organs can be recovered.

In his ruling letting the case go to trial, Tangeman acknowledged that Dr. Roozrokh did not participate in those decisions. Dr. Roozrokh was there because his employer, Kaiser Permanente, wanted him to perform the transplant surgery after the steps leading up to organ recovery had been completed. The felony charge is based on the prosecution's theory that Dr. Roozrokh ordered too much morphine to be given too quickly.

The judge based his ruling on the fact that the physician witnesses at the preliminary hearing all testified that the administered doses were clearly excessive; that they would have expected doses of that amount to cause Navarro to stop breathing; and that Dr. Roozrokh ordered the last three doses of morphine about 10 to 15 minutes apart after Navarro had been extubated while all the participants were waiting for him to die. Several witnesses also testified that there were no visible signs of distress or any other need that might call for "comfort care" medications.

M. Gerald Schwartzbach, Dr. Roozrokh's attorney, said the surgeon is prepared to fight the charge. At AMNews press time, Schwartzbach said he would move to have the remaining charge dismissed at the next court date, set for May 7. "People think that he is responsible for the death [of Navarro]," Schwartzbach said. "But he died of the same natural causes he entered the hospital with. [Dr. Roozrokh] did not cause him any harm. This was a young man who had a long history of pain medication and a long history of illness."

Criminal law put into medical practice

In a civil lawsuit where causation and injury figure prominently, such as whether a physician is held liable in a medical malpractice case, saying the defendant physician didn't cause the patient any harm might be enough to get the lawsuit dismissed.

And some experts believe that position should be enough to have the criminal charges against Dr. Roozrokh dropped as well. But the reality is more complicated -- as it often is when governments try to interject criminal law into medical practice.

In the December 2001 Journal of Legal Medicine, James A. Filkins, MD, analyzed several cases in which a physician was prosecuted for criminal negligence, had lost at trial and gone on to appeal.

The definition of criminal negligence is set by state statute. The California Supreme Court interpreted that statute to define it as "such a departure from what would be the conduct of an ordinary prudent or careful person under similar circumstances as to be incompatible with a proper regard for human life."

But Dr. Filkins, who is also a lawyer, noted that it is difficult to recognize criminal negligence. The law of negligence usually requires an objective standard, which applies to physicians as well. That would mean anyone judging guilt or innocence would look to what a reasonable physician would do in the same circumstances.

Dr. Filkins argued that this is true only up to a point. He said that when establishing a standard of care in a given situation is difficult, such as when complex medical issues are involved, the accused physician's state of mind could be "the touchstone against which the trier of fact will evaluate any acts or omissions in deciding whether the defendant physician's conduct rises to the level of a criminal offense."

In addition, he said, the judge or jury likely would stray from an objective standard and attempt to look into the mind of the defendant physician through the evidence to decide whether the conduct rose to criminal negligence. If a physician had "corrupt motive," he said, the trier of fact is liable to be more ready to find a culpable mental state.

From the way the San Luis Obispo District Attorney's Office has positioned the case as one in which the physician wanted to get the organs more quickly, it might be looking at the corrupt-motive line of reasoning to prosecute Dr. Roozrokh. San Luis Obispo County Deputy District Attorney Karen Gray declined to comment.

While it might seem like a good strategy for the district attorney, using a corrupt-motive theory is likely to taint a transplant community that already struggles for donors. Indeed, many people who refuse to sign up to be an organ donor do so because they are afraid that less-than-heroic measures would be taken to save them if their organs were salvageable.

At the time of Dr. Roozrokh's arrest, the American Society of Transplant Surgeons released a statement saying they couldn't comment on his arrest but that "the sensationalism of this case in the media will unfortunately result in a decrease in organ donation." Schwartzbach said the threat of criminal prosecution is likely to chill a physician's desire to practice transplant surgery as well.

After the arrest of a New Orleans physician for the murder of four patients during Hurricane Katrina, the American Medical Association renewed its efforts to get federal legislation that would protect physicians working during and in the aftermath of a disaster to ensure that physicians are comfortable providing their services during an emergency.

Observers could argue that Dr. Roozrokh was in a similar urgent situation.

For now, Dr. Roozrokh is still licensed in California and employed by The Permanente Medical Group. He is on paid leave while working on his defense.

Bonnie Booth is a longtime staffer and former editor of the Professional Issues section, left the paper to study law. She wrote the "In the Courts" column during 2005-08.

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