ONE New York Times piece detailing the ordeal of a Houston doctor criminally prosecuted for giving COVID-19 vaccines raises serious issues of prosecutor misconduct and racism. The criminal case quickly collapsed, leaving the doctor with a potential choice about whether to sue for a malicious case.
The story of Dr. Hasan Gokal it seems too outrageous to be true: a doctor administered 10 remaining doses of the COVID-19 vaccine to individuals with serious health problems, instead of throwing those doses in the trash. (The doses “would expire in hours”, Times explained; instead of allowing scarce and precious treatments to be wasted, the doctor took action.)
Several officers and prosecutors were not satisfied.
When the doctor explained how he found patients who needed vaccinations, officials – apparently from Harris County Public Health – said there were many Indian names on the list.
Dr. Gokal was then criminally prosecuted, fired from his public health job and subject to public disgrace.
Additional facts reported by the New York Times do little to make Gokal’s charge reasonable.
Dr. Gokal was overseeing a vaccination event in late December in the Houston suburb of Humble, Texas. The event was the first of its kind and had little publicity, which led to the opening of 10 vials of vaccines without immediately available containers. In an effort to ensure that the vaccine was not wasted, Gokal consulted with event officials to see if they needed vaccines. They didn’t. He called a Harris County public health officer to inform them of the doses that would soon expire and explained that he would be looking for recipients. The employee said, “OK.”
Gokal then drove home with the shots while making several calls; as a result, he vaccinated several people who came to his home and several others he met in their homes. The people vaccinated by Gokal were elderly, people with health problems, health professionals and caregivers. Some were known and others unknown.
Gokal administered the final dose a few minutes before it became unusable for his wife, who suffers from pulmonary sarcoidosis. The next day, Gokal documented his actions and notified his supervisor about the use of doses of the vaccine. He was fired and then prosecuted.
Dr. Gokal’s criminal case did not go very far. Harris County Judge Franklin Bynum rejected the case for lack of probable cause, then wrote a blunt order criticizing the prosecutor’s “new theory” of equating vaccines with theft.
“In the number of words generally used to describe a allegation of shoplifting, the state is trying for the first time to criminalize the documented administration of vaccine doses by a doctor during a public health emergency,” wrote Judge Bynum. “The Court emphatically rejects this attempt to impose criminal law on a doctor’s professional decisions.”
The judge continued, separating the testimony that prosecutors used to accuse Gokal:
The statement describes county procedures as prohibiting “personal use” of the vaccine, but does not describe what “personal use” is under these procedures. The statement states that the defendant administered doses to several people who “may have” been off-site and that he documented those doses as required by Harris County Public Health procedures.
In addition, the court noted, “the statement is fraught with negligence and error” and “The credibility and reliability of the statements in the statement are never established by the unidentified declarant”.
Judge Bynum’s hard-hitting order did more for the doctor than simply close his criminal case: it prepared Gokal for a potentially strong civil case against Harris County for malicious prosecution. Under Texas law, a person whose criminal prosecution was dismissed for lack of probable cause can hold the prosecutor civilly liable for malicious prosecution if that person can prove that the charges (1) were made maliciously and (2) that they – the author – suffered “special damages”.
Gokal, who has now lost his job and incurred legal expenses, will have no problem proving the element of special damages. The term “special” distinguishes direct damage from the pocket from less quantifiable damage, such as pain and suffering.
The “malice” element is more difficult – but still potentially likely based on the reported facts.
In Texas’s main case of “malice” for purposes of malicious prosecution, “malice” is defined as “ill will or evil motive, or such gross indifference or disregard for the rights of others that amounts to unreasonable, wanton knowledge, and act intentional. ”As the Texas Supreme Court explained, malice does not require a grudge or personal ill will, on the contrary, it is sufficient if the defendant prosecutor acted with disregard for the victim’s rights and with indifference as to the resulting damage.
Certainly, prosecutors took aim at Gokal knowing that the criminal prosecution would cause significant damage to the doctor’s career and reputation. Whether your decision was made with “reckless disregard” and “indifference” would be issues for an investigator (a judge or a jury). Given that prosecutors’ theory of the case – that administering vaccines about to expire during a global pandemic is tantamount to theft under the law – was new, an investigator could well determine that the process was recklessly carried out.
In addition, Gokal told the press that no one from the district attorney’s office ever contacted him before starting a criminal case. When his lawyer asked for documents demonstrating the vaccination protocol for individuals on the waiting list (as alleged in the criminal complaint), prosecutors told the lawyer that there were no such protocols. In other words, prosecutors were speaking on both sides of their collective institutional mouth. What Judge Bynam observed as “sloppy” could certainly equate to “recklessness” and “indifference” when contemplated by a fact-finder.
Then there is the question of race. According to Gokal’s report, officials who accused him of violating the protocol questioned the lack of “equity” among those the doctor had vaccinated. In New York Times ask (the “employees” mentioned here are hospital employees):
Authorities said he had violated the protocol and should have returned the remaining doses to the office or thrown it away, the doctor recalled. He also said that one of the employees surprised him by questioning the lack of “equity” among those vaccinated.
“Are you suggesting that there were many Indian names in that group?” Dr. Gokal said he asked.
Exactly, he said he was informed.
Kim Ogg, the Harris County district attorney, did not respond to a request for comment from Law & Crime.
Houston criminal defense attorney Paul Doyle, who handled Dr. Gokal’s case, referred Law & Crime’s questions to a spokesman who did not respond.
Law & Crime also contacted the New York and New Jersey attorney William Healey to analyze Dr. Gokal’s chances of winning an employment suit. Here’s what Healey said:
From the point of view of labor law, Dr. Gokal’s legal remedy against his employer in Texas may be limited. He claims to have been warned by state officials that no dose should be missed, which justifies the dose he administered to his wife. However, her employer insists that the protocol has been violated by failing to return the remaining doses or by not throwing them away. For Dr. Gokal to have an unjustified termination complaint in Texas, it is my understanding that he would need to establish that it would have been illegal to follow his employer’s instructions to discard good doses. For that reason, unless the illegality of that instruction can be established (which seems doubtful), Dr. Gokal would not have a viable unlawful dismissal claim – even though he may have been morally or ethically justified for not wasting any dose and give one to your wife.
If, in fact, Gokal violated the protocol and was dismissed for that violation, an incorrect termination claim would fail, unless the protocol itself was illegal. While some may discuss the morality or sensitivity of a protocol for discarding doses of vaccine, the protocol that requires such a discard would almost certainly be legal. That being the case, the doctor’s decision to use the doses in another way would probably prevent him from succeeding in a case of undue termination.
THE New York Times reported that Elizabeth Perez, a Harris County Public Health spokesman, said the department was unable to comment on its protocols.
Dr. Gokal’s case may be a harbinger of things to come in other jurisdictions, Healey said:
We are likely to see more of these situations as other difficulties of Dr. Gokal’s type inevitably arise. Employees who are dismissed in these situations may claim that the productive use of good doses, instead of discarding them, is conduct that is (or should be) protected by public order considerations; because such conduct is likely to save lives, or at least better protect them. In those states that have a broad policy-based view of wrongful termination claims (and Texas does not appear to be one of them), this could provide legal protection for those facing these extremely difficult dilemmas.
In some states, juries decide whether a dismissed official ‘did the right thing’, so to speak, as a matter of public policy; if the jury rewards the conduct chosen by the dismissed employee as being something that “public policy” should encourage, the employer can be held responsible for damages. In New Hampshire, for example, “public policy” need not be expressly contained in a law or regulation; “Non-statutory [public] policies ”can – and sometimes are enough. Therefore, in such states, any claim made by someone like Dr. Gokal would stand a better chance of being successful. The underlying state law is highly determinative.
Healey ended his thoughts with another look at the DOA criminal case:
Finally, the Court’s emphatic rejection of the criminal charge against Dr. Gokal, which appears to have been frivolous, may provide him with unrelated labor lawsuits against his former employer. If the former employer was the complaining party to the criminal matter, it is conceivable that he may have a complaint of abuse of process.
[screengrab via CBS DFW]
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