Legal Examination: Case Tests Lawsuit Immunity For Medical Examiners
By Joey Berlin Texas Medicine October 2018


Forensic pathologist Randall Frost, MD, chief medical examiner for Bexar County, says doctors in his position get lawsuit threats all the time.

“We’re lightning rods. Nobody likes our determinations,” he said. “No matter what we say, the chances are very good that someone is going to take exception with it. And it’s also very easy to find a so-called expert who will disagree with us. So you get into differing opinions by experts, and depending on which way a court leans, it’s very easy to find someone taking issue with a medical examiner’s determination and saying that it was made in error or something.”

The Texas Medical Association believes physicians who determine cause of death should be able to use their medical judgment without looking over their shoulders, and without bracing themselves for a lawsuit that could follow any second-guessing. Federal protections for government-employed physicians like medical examiners help: So-called qualified immunity shields examiners from lawsuits if they follow protocol and meet the standard of care.

That immunity is under attack in a federal appeals court, and TMA is fighting to preserve the protection it believes is essential.

“The nature of a medical opinion is just that: it is an opinion, albeit one informed by years of experience and rigorous education,” TMA said in a friend-of-the-court brief filed in Dean v. Harris County et al. in the 5th U.S. Circuit Court of Appeals in New Orleans. “Physicians may disagree with another’s medical assessment, and sometimes medical opinions may change. But medical examiners and even other publically employed physicians are able to fearlessly render medical opinions because of the protections of qualified immunity.”

TMA filed the brief to support Darshan Phatak, MD, an assistant medical examiner with the Harris County Institute of Forensic Sciences. The physician has been sued by a man who twice stood trial for murder based on Dr. Phatak’s initial evaluation of his wife’s cause of death. After charges were dropped in the middle of the second trial, the husband, Noel Dean, sued Dr. Phatak claiming he had written a biased autopsy report and violated Mr. Dean’s civil rights.

Dr. Phatak denies that allegation and claims he has qualified immunity from a lawsuit like this one.

Charges dropped, suit filed

According to court documents, Noel and Shannon Dean hosted friends at their Houston home on the night of July 29, 2007. The party continued into the early hours of July 30. After it ended, Noel Dean read a text message on his wife’s phone suggesting marital infidelity, prompting an argument, court documents say. Noel Dean claims his wife eventually grabbed his gun out of a dresser drawer and fatally shot herself with it, according to court filings.

Dr. Phatak performed an autopsy on Shannon Dean the following day and prepared a report stating her cause of death was a homicide, according to court records. Noel Dean was then arrested and charged with murder. According to a Houston Chronicle report, the statement charging him noted Dr. Phatak’s finding that “the angle and bruising around the wound were consistent with someone standing over (Shannon Dean) and firing the gun into her head.”

Mr. Dean’s first trial resulted in a hung jury. During Mr. Dean’s second trial, Dr. Phatak changed his testimony, the Chronicle reported, saying the bruising on Shannon Dean’s head could have been caused by her putting the gun to her own head. The medical examiner’s office changed its cause of death from homicide to “undetermined” after a defense-hired forensic pathologist showed the wound could be interpreted differently, according to the Chronicle. Prosecutors later dismissed the murder charge against Mr. Dean.

In 2013 he sued Dr. Phatak, as well as Harris County, the City of Houston, and others involved in the investigation, alleging violations of his civil rights. He claims Dr. Phatak performed a biased autopsy “intentionally and/or with deliberate indifference,” and allowed a police detective (whom Mr. Dean also sued) to attend the autopsy and influence its conclusions.

In court filings, Dr. Phatak denies that he conducted the autopsy in an unconstitutional manner or issued a police-influenced or false autopsy report. He also says state law shields him from such lawsuits. 

In 2017, a district court partially sided with Mr. Dean, writing that he had “presented enough evidence from which a reasonable juror could conclude that [the physician] performed his autopsy report in a manner that was tantamount to falsification of evidence.”

Chilling effect

Dr. Phatak took the case to the 5th U.S.  Circuit Court of Appeals, where TMA got involved along with the American Medical Association (AMA), the College of American Pathologists, the National Association of Medical Examiners, the Texas Society of Pathologists, and the Litigation Center of the AMA and State Medical Societies. 

In its friend-of-the-court brief, medicine says the district court improperly relied on the allegations Mr. Dean made, rather than the actual evidence. The district court should have “examined Dr. Phatak’s actions for objective reasonableness,” TMA and the others wrote. Instead it measured his actions based on Mr. Dean’s “unsupported conclusions,” the brief argues, despite substantial evidence Dr. Phatak abided by the standard of care.

“The result of the court’s failures reaches further than just subjecting Dr. Phatak to unwarranted personal liability; the court’s holding hinders the practice of medicine more globally. Specifically, the district court’s holding will have a chilling effect on medical examiners and other physicians who will, unable to reasonably anticipate what actions will subject them to liability, act to avert liability rather than act according to medical science and their patients’ best interests,” the brief says.

If a medical examiner can’t reasonably anticipate liability, the medical groups say, his or her judgment can be compromised in one of two ways: the examiner may practice defensively and perform needless tests before classifying a death as a homicide, or the examiner may avoid classifying anything as a homicide at all.

“Both ways hurt medicine and thus harm the public, medical professionals, and the integrity of the justice system,” TMA and the others wrote.

In a statement to Texas Medicine, Jack Resneck Jr., MD, chair of the AMA’s Board of Trustees, said the appeals court should have distinguished between a difference in medical opinion and an intentional fabrication. 

“It is against the public interest for the legal system to persecute honest physicians for conveying a carefully considered medical opinion. … The AMA firmly believes that a disagreement with Dr. Phatak’s medical opinion is no reason to unjustly conclude he acted in bad faith,” Dr. Resneck said. 

Every medical examiner in the state is probably aware of the Phatak case, says the Bexar County examiner, Dr. Frost. He suspects that without immunity, it would be hard to find anyone who would want to be a medical examiner.

“I don’t see how anyone could deny us qualified immunity in the course of our job,” he said. “It would be a very chilling thing to find out that we’re all subject to federal civil rights charges or something along those lines. Because frankly, none of us have the means to fight such things, and we’re [more or] less at the mercy of our employers in defending ourselves against such charges. I think even some counties might find defending against such things to be pretty daunting.” 

The appeals court heard oral arguments in the case in December 2017. At press time, the court’s decision was still pending. 

Mary Baker, a Harris County attorney representing Dr. Phatak, declined comment for this story. Texas Medicine’s efforts to reach Jerry Galow, an attorney who represented Mr. Dean in oral arguments, were unsuccessful.

Tex Med. 2018;114(10):26-27
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Last Updated On

December 21, 2018

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Joey Berlin

Associate Editor

(512) 370-1393

Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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