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2 Polk doctors cleared State medical board finds no malpractice Monday, May 03, 1999 By Patrick Hernan
The state Board of Medicine has ruled that two physicians at Polk Center in Venango County did nothing wrong when they used a surgical stapler to repair wounds on mentally retarded patients without using anesthesia.
In another ruling, the board questioned the judgment of a third Polk physician accused of stapling without anesthesia, issuing him a written reprimand but concluding "those errors were not made with any disregard for the interests of his patients."
The board's findings were not uniformly good for Polk physicians. Although the board dropped its stapling case against Dr. Cesar Miranda, 68, of Butler, it ruled that Miranda had acted with "reckless indifference" in the deaths of two Polk patients under his care in 1996 and 1997 and suspended his medical license for two years.
Miranda's attorney, Michael Rosenfield, said he was pleased with the ruling in the stapling case but said his client would appeal the conclusion that his actions contributed to patients' deaths.
State Attorney General Mike Fisher's office plans to press ahead with criminal prosecutions of Polk doctors despite the rulings. Prosecutors will not drop charges pending against the doctors and may appeal a district justice's ruling last week dismissing some charges.
"After a thorough and complete review, we believe there was probable cause to file charges," Fisher spokesman Kevin Harley said yesterday. "We followed the evidence and are moving forward with the prosecution."
Dr. Louka Makkar, who was cleared of all charges against him by the medical board, said Fisher "has no case." Makkar, 50, of Youngstown, Ohio, said Fisher should have the "courage" to drop charges against him and his colleagues.
Dr. Samir Moussa, 47, of Meadville, Crawford County, who received a written reprimand from the medical board for stapling without anesthesia, said the ruling only partially vindicated him and that he would appeal and press for a complete victory.
"There is no reason to question my medical judgment," he said. "I should be complimented, not reprimanded. I don't think anyone else could have done better than I did."
Although the medical board ruled in the cases April 9 -- after preliminary hearings in the criminal cases against the doctors were under way -- it did not make a public announcement of its findings. The Pittsburgh Post-Gazette, however, obtained a copy of the board's 36-page report.
The Pennsylvania Department of State, which administers medical licensing matters through its Bureau of Professional and Occupational Affairs, brought civil charges against the physicians in December 1997. Hearings were held through October 1998. In each of the stapling cases, Dr. Joshua H. Bennett, a specialist in emergency and family medicine, testified as an expert witness for the Department of State.
Bennett, according to the medical board's report, testified that each of the Polk physicians had "breached the accepted standard of care" by not using anesthesia to numb the areas of wounds that required more than two staples or sutures to close.
According to the report, Bennett reasoned that two injections were needed to numb each wound. If a physician used three or more staples or sutures, he said, the physician would cause more pain than the patient would experience from the two injections.
According to the report, Bennett disagreed with the Polk doctors' assertions that they were sparing patients more pain by quickly closing the wounds of combative patients without using anesthesia and minimizing chances that a flailing patient could receive an even worse injury by jerking when injected with a hypodermic needle.
But Dr. John Jupin, a specialist in emergency medicine and pathology who testified as an expert for the doctors, said the overriding medical concern was: "First, do no harm." He concluded each of the Polk physicians had acted within the scope of acceptable medical practices.
The board agreed with Jupin's point of view in the cases against Makkar and Miranda, dropping all stapling counts against each. Both had been accused of stapling two patients without using anesthesia.
Although it also dropped a count against Moussa, the board said he provided substandard care in six other cases by not fully considering other options before stapling without anesthesia.
But in reaching its conclusions against Moussa, the board said he "acted with the best interests of his patients in mind, however flawed his judgment might have been." It imposed only a reprimand, the least severe action it could have taken.
Rosenfield, who represents Makkar, Moussa and Miranda, said Fisher should not have filed criminal charges before the medical board ruled and that the attorney general should now withdraw them.
Harley, who said he learned of the board's rulings when told by the Pittsburgh Post-Gazette yesterday, said the attorney general's office would press for criminal convictions in Venango County Common Pleas Court.
Though misdemeanor neglect charges were dismissed last week against Makkar and Moussa by Venango County District Justice Robert Boyer, each was held for trial on misdemeanor charges of simple assault in the stapling cases.
Felony neglect charges were dismissed against Miranda. He was ordered to stand trial for involuntary manslaughter and reckless endangerment in the death of one patient under his care and reckless endangerment in the death of a second patient he had treated.
Miranda also was held for trial on misdemeanor charges of simple assault in the stapling cases.
Two other Polk doctors, Donald Stitt, 84, of Greenville, Mercer County, and David Byers, 54, of Waldron, Ark., were held for court on misdemeanor assault charges. Neglect charges against both were dismissed. Byers also faces trial on a count of reckless endangerment in the 1995 death of a patient under his care.
Boyer dismissed the entire case against Dr. Hyunchel Shin, 65, of Upper St. Clair. He had been charged with felony neglect, involuntary manslaughter and reckless endangerment in the 1997 death of a patient under his care.
Responding to a prosecution request, Boyer ordered the five Polk doctors for whom charges remain to surrender their passports. Three of the physicians were born outside the United States and received parts of their medical training offshore.
Makkar said it was another example of a prosecution running amok.
"It's unfair," he said. "There's no sense we are leaving the country to escape. We can't escape. This just shows how the prosecution views the law against us."
Patrick Hernan is a free-lance writer based in Venango County.
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