HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, May 6, 2008

Suregon's Criminal Case Continues

AmNews reports on the Dr. Roozrokh's criminal case.  He is the surgeon who has been charged with several felonies after allegedly hastening a patient's death to obtain that patient's organs for transplantation.  Bonnie Booth writes,

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.  . . . .

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. . . .

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. . . .

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.

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