A New York Times the piece detailing the ordeal of a Houston doctor prosecuted for administering COVID-19 vaccines raises serious questions about the prosecutor’s misconduct and racism. The criminal case quickly collapsed, leaving the doctor able to choose whether to sue for criminal prosecution.
The story of Dr. Hasan gokal it seems too outrageous to be true: a doctor gave the remaining 10 doses of the COVID-19 vaccine to people with serious illnesses, rather than throwing those doses in the trash. (Doses “would expire in a few hours”, Times explained; the doctor acted rather than allow rare and precious treatments to be lost.)
Various criminal officials and prosecutors were not happy.
When the doctor explained how he found patients who needed vaccination, officials – apparently from Harris County Public Health – told him there were too many Indian names on the list.
Dr. Gokal was prosecuted, fired from his public health position and subjected to public shame.
Additional facts reported by New York Times do nothing to color Gokal’s prosecution as reasonable.
Dr. Gokal was overseeing a vaccination event in late December in the Humble, Texas suburb of Houston. The event was the first of its kind and was published minimally, which led to the opening of 10 vials with vaccine dose without immediate availability of recipients. In an effort to ensure the vaccine was not wasted, Gokal checked workers at the event to see if they needed vaccinations. They didn’t. He called a Harris County public health official to inform him of the soon-to-be-expired doses and explained that he would look for recipients. The official said, “OK.”
Gokal then drove home with the cans while making several phone calls; as a result, he vaccinated several people who came to his home and a few others he met in their homes. The people who were vaccinated with Gokal were the elderly, those with health conditions, health workers and carers. Some were known and some were strangers.
Gokal administered the final dose a few minutes before it became unusable to his wife, who suffers from pulmonary sarcoidosis. The next day, Gokal documented his actions and notified his leader of the use of vaccine doses. He was fired, then prosecuted.
Dr. Gokal’s prosecution did not go very far. Judge Harris County Franklin Bynum he dropped the case for lack of a probable cause, then wrote a stingy order betraying DA’s “new theory” of equating vaccination with theft.
“In the number of words usually taken to describe a charge of retail theft, the state is trying, for the first time, to criminalize the doctor’s documented administration of vaccine doses during a public health emergency,” Judge Bynum wrote. . “The court strongly rejects this attempt to impose criminal law on a doctor’s professional decisions.”
The judge went on to select the statements the prosecutors used to charge Gokal:
The statement on the statement describes the county procedures as prohibiting the “personal use” of the vaccine, but fails to describe what the “personal use” is in these procedures. The affidavit states that the defendant administered doses to several people who “could” have been off-site and that he documented these doses according to Harris County public health procedures.
Furthermore, the court noted that “the statement on the statement is full of negligence and errors” and “The credibility and reliability of the statements in the statement on the statement are never established by the unidentified person”.
Judge Bynum’s harsh order did more for the doctor than simply put an end to his criminal case: he set up Gokal for a strong civil lawsuit against Harris County for prosecution. Under Texas law, a person whose criminal prosecution has been dismissed for lack of a probable cause may civilly prosecute the prosecution if that person can prove that the charges (1) were maliciously filed and (2) that they – the plaintiff – suffered “special damage”.
Gokal, who has now lost his job and incurred legal costs, will have no problem proving the element of special damages. The term “special” distinguishes direct damage from the pocket from the least quantifiable, such as pain and suffering.
The “evil” element is more difficult – but it is still potentially demonstrable based on the facts, as reported.
In Texas’ main case of “malice” for the purpose of prosecution, “malice” is defined as “ill-will or malice, or such gross negligence or reckless disregard for the rights of others, as to mean a lack of knowledge.” , unreasonable,, and deliberate act. “As the Texas Supreme Court explained, malice does not require personal harm or ill-will; rather, it is sufficient if the defendant prosecutor acted recklessly negligently of the victim’s rights and indifference to the resulting harm.
Prosecutors certainly targeted Gokal knowing that the prosecution would cause significant damage to the doctor’s career and reputation. If their decision was made with “reckless disregard” and “indifference” would be questions for a researcher (a judge or a jury). Given that prosecutors’ theory of the case – that the administration of vaccines that soon expire during a global pandemic is theft under the law – was a new one, a data researcher could very well establish that the process was reckless. .
Moreover, Gokal told the press that no one in the prosecutor’s office ever contacted him before initiating the criminal investigation. When his lawyer asked for documents proving the vaccination protocol for people on a waiting list (as alleged in the criminal complaint), prosecutors told the lawyer that there were no such protocols. In other words, prosecutors spoke on both sides of their collective institutional mouths. What Judge Bynam observed as “negligence” could certainly equate to “recklessness” and “indifference” when contemplated by a de facto finder.
Then there is the issue of race. According to Gokal, officials accusing him of violating the protocol questioned the lack of “fairness” among those the doctor had vaccinated. From New York Times piece (the “officials” referred to here are hospital officials):
Officials claimed he violated the protocol and should have returned the remaining doses to the office or discarded them, the doctor recalled. He also said that one of the officials surprised him by asking about the lack of “equity” among those he vaccinated.
“Are you suggesting there were too many Indian names in that group?” Dr. Gokal said he asked.
Exactly, he said he was told.
Kim Ogg, Harris County Attorney, did not respond to a request for comment on the law and crime.
Houston criminal defense attorney Paul Doyle, who dealt with Dr. Gokal’s case, sent Law & Crime questions to an unanswered spokesman.
Law & Crime also contacted the lawyer in New York and New Jersey William Healey for analyzing Dr. Gokal’s chances of winning a hiring process. Here is what Healey said:
From a labor law perspective, Dr. Gokal’s legal appeal against his Texas employer may be limited. He claims that he was advised by state officials that doses should not be wasted, thus justifying the dose he administered to his wife. However, his employer insists that the protocol was violated by his failure to return the remaining doses or by not throwing them away. In order for Dr. Gokal to have a wrong termination application in Texas, I understand that he should have established that it would have been illegal for him to follow his employer’s instructions to dispose of good doses. For this reason, unless the illegality of that instruction can be established (which seems questionable), Dr. Gokal would not have a viable request for unloading – even if he may have been morally or ethically justified by it. that he wasted no dose and gave it to his wife.
If, indeed, Gokal violated the protocol and was dismissed for that violation, an unfair termination request would fail if the protocol itself is not illegal. While some might argue the morality or sensitivity of a vaccine dose elimination protocol, the protocol requiring that elimination would be almost certainly legal. In this case, the doctor’s decision to use the doses differently would probably prevent him from succeeding in a case of illicit termination.
New York Times reported that Elizabeth perez, a Harris County Public Health spokesman, said the department could not comment on its protocols.
Dr. Gokal’s case may be a harbinger of what will follow in other jurisdictions, Healey said:
We may see more of these situations as other Dr. Gokal-type sermons inevitably occur. Employees who are fired in these situations may argue that the productive use of good doses, rather than throwing them away, is conduct that is (or should be) protected by public policy considerations; because such behavior will probably save lives or at least protect them better. In those states that adopt a broad public policy-based view of illicit 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 an employee who is discharged “did the right thing,” so to speak, as a matter of public policy; if the jury rewards the chosen conduct of the dismissed employees as a “public policy” that must be encouraged, the employer may be liable for damages. In New Hampshire, for example, “public policy” does not have to be expressly contained in a law or regulation; “Unstable [public] policies ”can – and sometimes do – be sufficient. Therefore, in such states, any statement pressed by someone like Dr. Gokal would be more likely to succeed. The law of the basic state is extremely decisive.
Healey ended his thoughts with another look back at the DOA criminal case:
Finally, the Court’s eminent rejection of the criminal charge against Dr. Gokal, which appears to have been frivolous, may give him unrelated claims against labor law against his former employer. If the former employer was the plaintiff in criminal matters, it is conceivable that he could have a request for abuse of process.
[screengrab via CBS DFW]
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