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Medical Malpractice, Negligent Homicide or Failure to Discipline?

Posted by Andrew J. Barovick | Sep 07, 2009 | 0 Comments

When I was an assistant district attorney in Queens County (NYC), New York, my boss, Richard Brown, decided to charge a local OB/GYN with murder, based on a showing of “depraved indifference to human life,” after that physician's depraved actions during an abortion procedure in a storefront clinic left his immigrant patient dead.  The New York Times wrote about the prosecution after the doctor's conviction for second-degree murder.

The facts of the doctor's abortion procedure were difficult to hear.  Dr. David Benjamin left a 3-inch tear in the victim's uterus while performing a late-term procedure for which he was unqualified.  He left her to bleed to death on a table in his clinic while he performed another abortion on a second clinic patient.  He then tried to hide his mistake by telling paramedics that the patient had suffered a cardiac arrest. And, he lied to the trial jury about his knowledge of the gestational age of the fetus.

But even more disturbing was this practitioner's disciplinary history.  As reported by Lynette Holloway in the NY Times article:

“The incident came at [a] time when the doctor's license was in the process of being revoked.  His license was revoked in June 1993 [2 years before this conviction] for ‘gross incompetence and negligence' in five other cases.  During an appeal of the revocation, he was allowed to continue practicing, and Mrs. Negron, a Honduran immigrant, died during that time.”

Unfortunately, it doesn't end there.  Ms. Holloway learned that there had been additional suspensions:

“In 1986, as he practiced under the name of Elyas Bonrouhi, the state suspended his license for three months based on 38 counts of negligence and incompetence.”

So, here are my questions.  Why was the doctor allowed to continue practicing after he had been found to be grossly incompetent and negligent in five prior cases?  After all, this was not a case of a doctor with one or two unfounded accusations.  This was an OB/GYN–someone empowered to perform invasive surgical procedures that were potentially lethal if done improperly–with a history of negligence.  Why not order the direct supervision by a qualified OB/GYN over any significant procedures performed by Dr. Benjamin?  Why not impose supervised re-training and re-certification before allowing him to practice while his revocation was being appealed?  Where was The New York State Medical Society? The AMA?  The hospital with which Dr. Benjamin was affiliated?

Luckily, doctors like Dr. Benjamin are the exception and not the rule. But his case illustrates a sad reality that continues to this day.  Doctors and hospital executives do a terrible job of disciplining bad doctors, if they take any action at all.  And then they have the chutzpah to turn around and claim they are being victimized by greedy trial lawyers bringing frivolous medical malpractice suits.  And you tend to hear this chorus of moaning from OB/GYNs above all others, because their liability insurance rates tend to be much higher than those in most other specialties.  Some unsolicited advice: look within, and act ethically with regard to your incompetent peers. 

Dr. Benjamin was the first New York State doctor to be convicted of a murder based on his medical treatment of a patient.  Hopefully, he'll be the last as well.  But his prosecution is not an isolated case in this country.

 Three years after Dr. Benjamin's conviction, California prosecutors tried an ER physician for negligent homicide , using a “depraved heart” theory, after that physician saw an 11-month old child with signs of severe dehydration twice in a three-day period, and then did little more than suggest that the baby be driven to another hospital 55 miles away. The baby died en route.  The charges against the physician were dismissed during the trial.

Last year in Massachusetts, an OB/GYN who performed an abortion by himself, with no cardiac or blood pressure monitoring equipment, and no oxygen available for his patient, was charged with manslaughter after the patient's death.  When the doctor could not arouse the patient after the procedure, he delayed in calling 911, and then tried to cover up his negligence by telling his local disciplinary board that he had used oxygen, had monitored the patient's pulse and that his assistant had been certified in CPR, all of which claims were false.  He also misled state investigators about the room in which the prodecure had been performed, showing them one that contained equipment not used during the patient's procedure.

That doctor, Rapin Osathanondh, surrendered his medical license, and still faces his criminal trial.

Clearly, these physicians did not become dangerously negligent overnight.  Just as clearly, they had colleagues and co-workers who saw the quality of the medicine they were practicing.  Silence cannot be an option here.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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