Feature Article

Innocence Is Irrelevant --- The Einaugler Case

Gerald Einaugler, MD

I am the first doctor in the history of the United States legal system criminally convicted for using medical judgment. My conviction in 1993 was for reckless endangerment and willful neglect (both misdemeanors and Health Code Violations) for ordering the transfer of a completely stable nursing home patient [to a hospital across the street] in the afternoon instead of the morning --- "a 10 hour delay" --- on Sunday, May 20, 1990. I was deemed negligent even though I examined the patient three times on that Sunday (7 a.m., 2:30 p.m. and 5:30 p.m.). One Federal District Judge is on record saying that my case should be reversed and if he had the power, he would have overturned it. Another Federal District Judge wrote a dissenting opinion stating that I was innocent (but he was overruled 2 to 1). Dr. Irving Dunn, a nephrologist and the State's linchpin witness against me, received immunity. The patient was admitted under his service and he did not even bother to examine her until the following day. He testified in front of a Grand Jury and said that she should have been transferred "immediately."

This story began on May 18, 1990 when the patient was transferred from Interfaith Medical Center to the nursing home (the Center for Rehabilitation in Brooklyn, N.Y.). She was placed on alternate level of care (ALC) that day. One witness indicated that the hospital violated the State Health Code Law by not waiting 24 hours before transferring her to the nursing home. The hospital is mandated by this law to wait at least 24 hours before transferring any patient whose bedhold has expired when ALC is ordered (as was the case with this patient). Mr. Edward Kuriansky's office apparently decided not to pursue this violation and thus, in my opinion, failed to protect the public.

The patient was 78 years old and had a history of organic brain syndrome, arteriosclerotic heart disease, diabetes and end-stage renal disease (treated by peritoneal dialysis). The nursing home also violated the State Health Code Law. The medical director of the nursing home (Dr. Albert Khaski) testified under oath that there was no protocol in place at the time of her admission for the identification, care and maintenance of the dialysis catheter. Mr. Kuriansky's office, in my opinion, did not pursue this violation. In fact, the Patient Review Instrument (PRI) which must accompany each nursing home admission, was not available when she entered the nursing home.

I misidentified the dialysis tube for a feeding tube and ordered feeding through it. I admitted my error from day one, but this was not the cause of my indictment or conviction. Once and for all, I finally want to set the record straight as to why this error occurred. 1) The patient was lethargic and did not appear capable of eating. 2) The tube was inserted to the right of the umbilicus and not in the lower quadrant of the abdomen where dialysis catheters are usually situated. 3) No oral diet was written on the transfer summary from the hospital. 4) The transfer summary stated that a dialysis catheter was placed. There were numerous surgical scars on the abdomen. I interpreted this to mean that a catheter was placed but may have become infected and removed as you will see from the next facts. 5) The transfer summary stated IPD (intermittent peritoneal dialysis). Since this patient was terminally ill, I understood this to mean that she was receiving the repeat puncture method of dialysis as needed since her prognosis was poor. 6) Her medications and Sustacal (I ordered Isocal since she was a diabetic) on the transfer summary were written b.i.d. (twice daily) and t.i.d. (three times a day) --- not "p.o." (by mouth).

The following has never been told before in print about my case. They are facts from sworn testimony. I will detail what Dr. Irving Dunn, Dr. Albert Khaski, Dr. Jonathan Arden and Ms. Clari Gilbert said under oath and you decide who was telling the truth and who was really guilty.

Early on Sunday morning, May 20, 1990, a nursing supervisor from the nursing home called me at home about my error. She assured me that the Isocal had been drained from the abdomen and the patient was completely stable. I was quite distraught about my error and immediately telephoned Dr. Irving Dunn and told him what had happened. He told me that since the patient was stable she could be monitored in the nursing home and transferred the next morning for dialysis. After my conversation, I then called the nursing supervisor and told her to document my conversation with Dr. Dunn in the nursing home chart.

When Dr. Dunn testified at the Grand Jury, his statements destroyed my life. When he was asked about our conversation, he answered, "I said the patient will require immediate admission." Perhaps, he realized what his testimony had done to me and my family, and, in my view, his testimony at the trial came closer to reflecting our actual conversation. When he was asked if he had directed me to send the patient to the hospital immediately, he answered, "probably...that day." He further testified, "if hospitalization had taken roughly ten or eleven hours, I would not tear my hair out. It was in the realm of the window that I had to work with."

At my hearing in front of the Licensing Board (I was unanimously found innocent of any egregious acts, misconduct or gross negligence), he testified, "I didn't have a firm time frame. Any time that day would have been fine. Hospitalization as late as Monday might have been appropriate if arrangements could not have been made Sunday."

Additionally, he has submitted a sworn affidavit in which he states, "I am certain that I did not tell Dr. Einaugler that hospitalization that day was necessary. I believe that Dr. Einaugler did everything that a responsible physician in that situation should have done. I saw no reason for me personally to come to the nursing home or hospital to see the patient that Sunday."

Finally, in a taped interview with Mark Crane from Medical Economics he said the following, "the fact that the patient didn't get in until later that day was of no consequence. If indeed she didn't get in until the next morning, it would be of no consequence." He also added, "I think Einaugler did everything correct."

Why did Dr. Dunn testify at the Grand Jury that the admission should have been "immediate?" If the admission really had to be "immediate," then why did he change his statements? In my view, truth and honesty are constants!

Dr. Albert Khaski, the medical director of the nursing home, was also a witness for the prosecution and received immunity. He testified at my trial that when he was given the patient's chart to review, he did not bother to read the nursing notes since it was a "nursing matter," even though he was obliged to report this incident to the Department of Health (DOH) for possible violations. He knew that the nursing home did not have any protocol to care for such a tube which violated the State Health Code Law.

Are we to believe that a doctor would not read a patient's chart inside-out that was going to be investigated by the DOH? By the way, these nurses admitted under oath that certain statements they made to the DOH were inaccurate. They admitted that they destroyed and rewrote parts of the patient's chart to give the impression that they never fed her through the dialysis catheter. Also, the charge nurse on the evening the patient was admitted (i.e., Mr. Agani, who could not be found for my trial), ripped off the cap of the dialysis tube (which had a leur lock) because he was unable to connect the universal feeding catheter to the dialysis catheter. I was never told of this until my trial. Do you really believe that nurses on five different shifts decided by themselves to destroy and rewrite parts of a chart and risk their careers without the knowledge and approval of their superiors? By the way, all of these nurses also received immunity.

Ms. Clari Gilbert, the nursing administrator of the nursing home, testified at my trial that the chart (with all of the altered notes) was reviewed by her on May 21, 1990. Ms. Bernice Washington, an agency nurse who worked on the evening shift of May 18, 1990, was located and flown to New York from Decatur, Georgia. She testified that Ms. Gilbert called her numerous times to fill in her note in a space that was left open in the nursing notes. She stated that she wrote this note on May 23, 1990 --- two days after Ms. Gilbert testified that she saw this note! How could Ms. Gilbert see a note that did not exist on May 21, 1990 according to the person who actually wrote it? Ms. Gilbert also received immunity from the prosecutor.

Dr. Jonathan Arden, the medical examiner who testified at my trial, stated that the patient died due to chemical peritonitis. He had the audacity to say this in front of a jury when he did not even perform an autopsy, did not examine the body, and did not interview one single doctor or nurse who cared for this patient. He said his opinion was based solely on the hospital record which he had reviewed. When he was asked if he knew the patient had pneumonia, he answered that he did not know. The x-ray report and resident's note regarding the pneumonia were on the same hospital record he said he used to make his diagnosis. Ask yourself if any competent pathologist would have known the patient had pneumonia if the record was reviewed thoroughly. In fact, the New York State Society of Pathologists, in an amicus brief to the Court, criticized Dr. Arden in his handling of my case. Also, medical experts at my trial testified (uncontradicted) that chemical peritonitis would have been evident within 24 hours after the Isocal was introduced into the abdomen. I examined this patient 36 hours after the introduction and Dr. Dunn examined her 60 hours after the introduction of the Isocal, and there was not one hint of any peritonitis by record fact!

On the hospital chart (i.e., the same chart that Dr. Arden relied on for his cause of death), a resident noted that one of the patient's pupils was sluggish and dilated the day before she died. The last test ordered on the hospital chart was a CAT scan of the head! There is no medical textbook in the entire world that states this test is appropriate for diagnosing peritonitis! Yet, Dr. Arden (who testified that he read the hospital record) stated the cause of death was peritonitis. The x-ray of her abdomen was negative. The laboratory results were negative for any peritonitis, and the culture of the peritoneal fluid was negative for any bacteria!

I was convicted for a notion, which in my view, only existed in the minds of the prosecutors and a medical examiner.

This injustice has forever changed my family's life. None of you know what it is to go to sleep every night and wonder if there is enough money to pay for food. This has destroyed me financially, emotionally, and physically. The conviction itself mandates that Medicare and Medicaid must exclude me until 1999. I cannot survive until then. What will happen to my wife and sons? Even if I were issued a pardon by Governor Pataki, who is going to give my family back the last eight years of our lives? These scars will remain with us forever. What is saddest of all, in my opinion, is that fellow physicians testified in direct opposition to the record facts of the nursing home and hospital.

My life has been destroyed by lies! Please, do not think that any of you are immune to what happened to me. As long as this case exists, it is precedent setting and gives any ambitious and vicious prosecutor carte blanche to prosecute doctors for what they deem to be "criminal." Fellow physicians and concerned citizens, wake up, before it is too late!

Dr. Einaugler resides in Hewlett, New York, with his family.

Originally published in the Medical Sentinel 1998;3(4):136-138. Copyright © 1998 Association of American Physicians and Surgeons (AAPS).