Prosecution in organ harvest case faces hurdles at trial

Although neither the prosecution nor defense has shown its entire case, the unusually long eight-day preliminary319roozrokhruling_2
hearing for transplant surgeon Hootan Roozrokh revealed considerable details about what happened during Ruben Navarro’s final hours and the hurdles both sides must overcome at trial.

San Luis Obispo County prosecutors jumped their final pretrial hurdle March 19, when a judge ruled that a jury would decide whether Roozrokh committed dependent adult abuse Feb. 3 and 4, 2006, at Sierra Vista Regional Medical Center in San Luis Obispo.

Never before in the United States has a transplant surgeon been tried criminally under similar circumstances, and the transplant and medical communities have followed the case closely. No trial date has been set, but if the preliminary hearing is any indication, the trial likely will be lengthy with many witnesses and substantial expert testimony.

Originally, prosecutor Karen Gray charged Roozrokh, 34, with three felonies, alleging he prescribed excessive amounts of medication in an attempt to hasten disabled man Ruben Navarro’s death in order to harvest his organs. The judge dismissed two charges for lack of evidence and failure to apply to this case.

The circumstances surrounding the attempted organ harvest are extraordinary, Roozrokh’s attorney, M. Gerald Schwartzbach, said in court. "What happened on Feb. 3 and 4, 2006, has never happened in this world before that night."

Navarro was dying of a debilitating neurological condition he’d suffered from since childhood. He was taken to Sierra Vista in late January in a coma; doctors determined he had irreversible brain damage, though he was not legally brain-dead.

His mother agreed to donate his organs. The Oakland-based California Transplant Donor Network dispatched a transplant team to Sierra Vista that included Roozrokh, surgeon Arturo Martinez and nurse Carla Albright.

Navarro qualified for a rare type of organ donation known as cardiac death donation, in which organs are harvested within minutes after a patient’s heart stops beating. The hospital had no practiced protocol for the procedure. Roozrokh and Albright had seen one such donation, but no one else in the operating room that night had been trained in or participated in one.

One area the defense is likely to pounce on at trial, and which Schwartzbach repeated during the preliminary hearing, is that there is no evidence any of the medication allegedly given to Navarro hurt him. Navarro died about eight hours after being removed from life support, and his organs were never used. The coroner’s investigation concluded Navarro died of natural causes.

Also, the records of Navarro’s vital signs during the hour he was in the operating room are missing. Transplant nurse, Albright, said she lost them.

Schwartzbach (who successfully defended Robert Blake in 2005 against charges he murdered his wife) argued at the preliminary hearing that Navarro was tolerant to pain medications, which is why he never died from the high doses alleged, and those doses saved him from pain and discomfort.

"(Roozrokh) was trying to make sure the patient died without pain and suffering," Schwartzbach said in court.

Prosecutor Gray disagrees. She argued that the circumstances clearly show Roozrokh’s intentions were to get Navarro’s organs before time ran out by giving him drugs to stop his breathing.

Nurse Diana Stevens testified she gave Navarro 130 milligrams of Morphine and 60 milligrams of Ativan at Roozrokh’s order in less than an hour. She said she gave an additional 50 milligrams of morphine and 20 milligrams of Ativan at Albright’s direction.

Albright hasn’t been charged with a crime, and prosecutors granted Stevens immunity in exchange for her testimony.

Among the prosecution’s expert witnesses was Dr. Clarence Foster, director of UC Irvine’s historically troubled kidney transplant program, . He testified at the hearing about the standards transplant surgeons are expected to follow during donations after cardiac death.

Gray argued that Roozrokh, as the surgeon in charge, was responsible for what happened during Navarro’s final hours. At trial, though, she must prove he did more than violate his professional standard of care. She must prove that he was criminally negligent and willfully caused Navarro to be in a situation that endangered his health.

It’s difficult to prove criminal negligence in health care settings, said Dr. Brian Liang, a law professor at San Diego’s California Western School of Law.

"The jury might think she’s stretching the concept of abuse," he said. "And that’s going to be a significant hill for them to climb, because there is no clinical bad outcome."

Another area that likely will be explored in considerable depth at the trial by expert witnesses is whether Navarro could feel pain and whether the prescribed medications allowed him to die peacefully.

At the preliminary hearing, two experts testified that Navarro was in an irreversible coma and could not feel pain. Nurse Stevens also said Navarro showed no signs of suffering to indicate he needed medications.

In court, Schwartzbach pointed to several instances in Navarro’s medical records during his final hospitalization that show he responded to painful stimuli.

The defense didn’t call its own witnesses to the preliminary hearing. Schwartzbach said his side was only "counterpunching" at the preliminary hearing, but at trial, will "throw punches of its own." That includes bringing its own medical experts.

At trial, the prosecution must overcome numerous inconsistencies among statements from witnesses about who did what and said what to whom during the attempted donation. For example, none of the preliminary hearing witnesses agreed on the amounts of medication given to Navarro.

In most instances where witnesses directly contradict each other, Stephen Crawford, the lead sheriffís investigator in the case, testified he had no way to determine who was telling the truth.

Also, witnesses said no one present that night tried to stop the medication administration. That includes Navarro’s attending physician, Laura Lubarsky, who said she thought she was there as an "independent observer," and transplant surgeon Martinez, who has 17 years of experience and was the head of the San Francisco Kaiser Permanente kidney transplant program.

Just because others didn’t intervene, though, does not make Roozrokh less culpable, Gray argued. Roozrokh "is the one who ordered it," she said. "He’s the one who’s responsible for what he did."

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