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Liability For Medical Examiners

Court ruling imperils immunity for physicians in public service

Tanya Albert Henry, via AMA Wire

Darshan R. Phatak, MD, a Texas medical examiner, followed the standard of care in compiling an autopsy report for a woman who had died from a gunshot wound. He reviewed investigator reports, photos of the scene and toxicology reports. He also reviewed the gunshot residue testing and the woman’s psychiatric history. Among other things, he talked to law enforcement about the case. His report concluded that the woman had died from a homicide.

The woman’s former husband, Noel T. Dean, was then tried for his wife’s death. This trial concluded with a hung jury. Dean was then retried. Following Dr. Phatak’s cross-examination in the second trial, the medical examiner’s office changed the autopsy report conclusion to indicate the cause of death was “undetermined.” The charges against Dean were abruptly dropped.

Dean then sued Phatak, along with several other government officials and agencies, for violation of his federal civil rights. Phatak moved for summary judgment, arguing that he was entitled to immunity from suit because he had fulfilled his duties as a medical examiner in good faith. However, the U.S. District Court for the Southern District of Texas said that Dean could proceed with his civil rights lawsuit against Phatak. The lower court said qualified immunity did not apply, analogizing Dr. Phatak’s case to ones in which medical examiners intentionally fabricated evidence.

Dr. Phatak is asking the 5th U.S. Circuit Court of Appeals in New Orleans to overturn the lower federal court decision in Dean v. Phatak that allowed the civil rights lawsuit to proceed. The Litigation Center of the AMA and State Medical Societies, along with the National Association of Medical Examiners, College of American Pathologists, Texas Medical Association and Texas Society of Pathologists filed a friend-of-the-court brief asking the court to apply qualified immunity in Dr. Phatak’s case. The amici are “greatly concerned” the lower court’s ruling will have a “significant chilling effect” on forensic pathologists and other government-employed physicians.

Qualified immunity protections are important because they allow medical examiners and other publicly employed physicians—including those in prisons and publicly owned health care facilities—to fearlessly render medical opinions and the 5th Circuit should uphold those protections, the amicus brief states.

The brief argues that the district court improperly relied on the “plaintiff’s alleged version of the facts rather than on the actual evidence.” For example, Dean alleged that Dr. Phatak didn’t properly weigh the likelihood of suicide, even though records show that the physician did consider the possibility. As another reason for why he filed his civil rights lawsuit, Dean pointed to Dr. Phatak’s reliance on law enforcement as a reason for filing the civil rights lawsuit, even though that is proper and encouraged protocol, according to the amicus brief.

“Dr. Phatak’s actions reflected careful consideration of observations to form a medical opinion and not cunning and calculation to pin a murder on the plaintiff,” the brief states. “As with any other differential diagnosis, Dr. Phatak weighed factors and followed protocols to arrive at an informed medical opinion. One may disagree with a physician’s medical opinion by arguing that the physician should have weighed some factors differently. One may also contend that the physician erred and was, perhaps, negligent. But it is something else entirely to conclude that the physician acted in bad faith and arrived at an opinion through baseless or falsified premises.”

If Dr. Phatak had any misstep in his diagnosis, it would rise to no more than ordinary negligence, not a civil rights action, the friend-of-the-court brief argues.

“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 interest,” according to the amicus brief.

For medical examiners, this fear of liability could play out in two ways.

“An examiner may practice defensive medicine and perform needless tests before classifying a death as a homicide or an examiner may avoid classifying anything as a homicide at all,” the brief states. “Both ways hurt medicine and thus harm the public, medical professionals and the integrity of the justice system.”