The Lufkin DaVita Bleach Murder Trial: The Evidence the Prosecution Didn't Present

By Peter Laird, MD

Having reviewed the majority of the case prior to the onset of the trial, there were many aspects that I had expected to see and evaluate further once the trial began.  However, after two weeks of testimony from the prosecution which has now rested its case, I am surprised at the many aspects of this case that the prosecution did not present that may have an impact on the entire case. These include the DaVita investigation conducted independently and prior to the full police investigation; the epidemiology study of the CDC investigators that won the 2009 Donald C. Mackel Award for the study: Cardiac Events and Deaths in a Dialysis Facility Associated with a Healthcare Provider —  Texas, 2008; autopsies for three of the five alleged murder victims and the lack of any hematology expert opinions on the issue of hemolysis.

The story inside of this murder case is that DaVita conducted it's own independent study on the events of their Lufkin DaVita dialysis unit. The news reports that Deaton has brought this up in court more than once. I suspect that many are interested in exactly what DaVita administrators related to their corporate headquarters on this entire case. This report and internal investigation is even more important given the eighteen day delay by the lead Lufkin detective before he conducted interviews with the DaVita Lufkin employees.

Week 2 of testimony in trial of former nurse accused of injecting dialysis patients with bleach

Deaton also argued that DaVita officials would not let police interview employees until 18 days after the initial investigation.

And, Abbott said the clinic was not avoiding police interviews. He claimed he didn't conduct the interviews immediately because he didn't request them immediately.

The defense further notes the elevated chlorine levels fifteen times higher than the allowable limits. The defense attorney did question DaVita personnel on the so called "ghost" carbon filters that DaVita changed shortly after the clinic closed for the criminal investigation. Nevertheless, the prosecution did not present any of the evidence gathered by DaVita in their own investigation and that is a large amount of evidence I would personally wish to review. What was the reason that prompted this company to change its carbon tanks that are responsible for removing chlorine from the water system?

Coworker testifies in day eight of capital murder trial

Deaton questioned Kaparek about the lack of documentation for new carbon tanks — used to remove bleach from water before it is used in dialysis — at the Lufkin clinic. The defense attorney asked Kaparek if he wasn’t “the top dog” for DaVita in his field; Kaparek responded that he doesn’t think of himself as a dog, but that he is the top person in his section of the company, and that he did not believe the “ghost tanks,” as Deaton called them, were a cause of any problems in the water treatment process.

Another missing study is the epidemiology study by the CDC headed by Dr. Melissa Schaefer looking at all of the adverse events for several months prior to April 2008 and in depth detailed evaluation of all of the adverse events in the dialysis unit during the month of April.

59th Annual EIS Conference (page 24 of pdf flyer)

DONALD C. MACKEL MEMORIAL AWARD 

Cardiac Events and Deaths in a Dialysis Facility Associated with a Healthcare Provider — Texas, 2008 

Melissa K. Schaefer, C. Lucero, M. Sochaski, R. Kleiman, J. Su, M. Arduino, A. Kallen, M. Schwartz, P. Patel for the Texas Dialysis Investigation Team 

These additional cases in the month of April appear to be outside of the confines of what will be allowed for the jury to hear as evidenced by an apparently sustained objection by the prosecution when the defense attorney tried to introduce this case for discussion on the first day of the defense case:

Defense takes its turn in bleaching deaths trial

Referring back to April 7, Deaton began asking the witness if she knew a Maria Lopez, but was interrupted by Herrington's objection. Deaton asked if test strips were always accurate and if the witness ever remembered a situation when it hadn't been accurate.

The most glaring aspect of the entire prosecution's case in my opinion is that there were only two autopsies conducted on the five alleged murder victims. Of these two autopsies, one of the principle CDC investigators who testified last week, Dr. Michael Schwartz stated that the autopsies did not confirm his suspicians of bleach infusion.

Witness descibes Yahoo! search for 'bleach poisoning'

"I reviewed an autopsy on Cora Bryant and Garlin Kelley," said Schwartz.

Schwartz said that he found the autopsies to be uninformative. The autopsies weren't able to effectively explain what Schwartz says his research on the effects of sodium hydrochloride have taught him.

Thus, for a murder trial, we have three alleged victims without an autopsy for conclusive forensic evidence gathering and two autopsies where the chief CDC witness for the prosecution could not find evidence of bleach infusion on these autopsies.  For a capital murder case, in my opinion, I find this unacceptable. I would expect more conclusive evidence at autopsy that a murder did occur.

According to Dr. Schwartz, the completed autopsies of two of the victims did not confirm the prosecution theories. That is the ultimate difficulty of this circumstantial case. The prosecution has a large circus of witnesses all stating that a murder occurred, but looking at the alleged victims, where is the evidence that a murder did occur? This glaring discrepancy would have loomed even larger had the prosecution introduced the CDC investigation report by Dr. Schaefer as part of their alleged evidence and allowing the defense an opportunity to discuss the other cases outside of the alleged victims she is accused of harming which the judge would not allow Deaton to explore as noted in one news report previously.

Lastly, I had thought that the central aspect of bleach induced hemolysis would include expert testimony from, of course, a well respected hematologist. However, the prosecution included evidence from the treating nephrologist, a toxicologist, a research laboratory investigator, but not from a hematologist expert in the interpretation of laboratory evaluations for hemolysis. The expected results of bleach infusion are hemolysis accompanied by elevated levels of potassium leading to an arrhythmic cardiac event.  

Establishing conclusively that hemolysis did occur as evidenced at autopsy and by clinical laboratory measures should have been a key part of the prosecution's expert testimony in my opinion. Instead, not one hematology expert was called to testify that I am aware of by reading the news reports daily since the trial began. Perhaps the lack of documentation of hyperkalemia (elevated potassium) and the soft, nonspecific reliance on elevated LDH levels alone would have been difficult for a hematologist to conclusively state hemolysis had occurred. Diagnosis hemolysis is specific and many of the usual steps on diagnosing hemolysis have not been reported in any news reports leaving me to wonder how the high LDH levels were confirmed as only from hemolysis. 

I also did not see any evidence presented in the news of the DaVita staff that after hearing of the allegation of bleach infusion, that they performed a bedside test for hemolysis which is standard protocol whenever hemolysis is suspected. The suspicion of hemolysis could have been answered directly by performing a very simple "pink test" immediately for both alleged victims of bleach infusion on April 28, 2008. Instead, the physician sent one of the alleged victims that day to the ER where he allegedly "diagnosed" hemolysis by the nonspecific LDH levels.

An immediate bedside evaluation is mandatory whenever there is any suspicion of hemolysis. A small venous sample is collected while the patient is on the machine and then spun down. Pink or cherry colored red plasma indicates direct evidence of active hemolysis with free hemoglobin in the spun plasma. Once again, this is the standard of care whenever their is reasonable suspician of hemolysis. The accusation of bleach infusion is definitely a reasonable suspician for hemolysis and should have been the first test performed instead of breaking into sharps conatainers and possibly contaminating valuable evidence.

Multistate outbreak of hemolysis in hemodialysis patients traced to faulty blood tubing sets

Hemolysis was defined as discolored, pink serum visualized in a spun serum sample (that is, "pink test") collected from the dialysis patient or noted by the hematology clinical laboratory personnel. 

To date, these are the most glaring discrepancies of this case of testimony that I would have expected from reviewing the news reports of the prosecution case presented during the first ten days of the trial. If the jury is to be able to draw conclusions on a capital murder case, in my opinion, they should hear not only the truth, but the whole truth as well. I guess not being a lawyer, perhaps the reasons the judge ruled in this manner on some of the evidence are beyond my limited understanding of the law. Perhaps he has simply been too restrictive, perhaps it was appropriate. If convicted, the appeals court will likely decide those issues.

Comments

[Roberta Mikles BA RN]

Opinions of Roberta Mikles BA RN
Dialysis Patient Safety Advocate

Peter, once again, you bring light to this case and a feeling of 'fright' that a nurse might be put to death because certain evidence was not introduced that could clearly show 'there is more to this than a nurse being accused of injecting bleach'..

What is even more frightening is that it appears there might be a coverup!!! Truly scarey.

When I continue to read surveys (inspection reports) from Davita facilities, here in California, ( www.qualitysafepatientcare.com )I note that staff in many units did not follow their own policies and procedures, therefore, I have to ask if these deaths were not a result of OTHER incorrect practices implemented by OTHER staff (not Saenz)...

Although I have been extremely critical of delivery of care in diaysis units, there is too much here that doesn't make sense and I would, again, hate to see an innocent (innocent until proven guilty beyond a shadow of doubt)person be put to death.

This case, any way you look at it, should send a message to EVERY person who works in dialysis that unless you follow facility policies/procedures, know what you are doing and truly care about patients, you too could be a scapegoat. (if this is the case)... we might NEVER know what really happened, considering much evidence is not being brought into the trial, as Peter states.

OPIINIONS OF Roberta Mikles

[Michael Fraase]

\\ The expected results of bleach infusion are hemolysis accompanied by elevated levels of potassium leading to an arrhythmic cardiac event.

No simple pink test and no autopsy.

Wow. Just wow.

[Peter Laird, MD]

Roberta, thank you for your comments and all that you do to police the industry through the public inspection reports. People truly need to know the story of our American dialysis centers. I am sure that you are holding yourself waiting for all of the evidence to come forth so that you can speak openly as well. Little by little, the details are coming out. There is much more to come in the next few days as the defense will soon enter their expert witnesses as well.

[Peter Laird, MD]

Dear Michael, I believe that in the next couple of days some further evidence will open this case wide open which I would love to be able to talk about right now, but I will likewise have to wait until it is discussed in court. I would only state that people need to see all of the evidence before they form an opinion of this case. That hasn't happened yet, but hopefully will in the next few days.

[Roberta Mikles BA RN]

Peter, I am now, in between writing this and doing some advocacy work, reading more of the California surveys (our state)...I just read where a patient received Renalin. As I have stated, there are problems with the survey process -- for example, one surveyor will cite a certain deficiency as an IJ while another will just write a deficiency. Either way, the surveys Still have a voice of their own and show the REAL day to day care. Unfortunately, those at the top of the almighty food chain are not paying attention to what is happening in their units. I am reminded of when I asked about the infection rate at the unit my father went to.. I was told, "OH, we have no infections'.. Come to find out, when I went to ProPublica's tracker that the unit had 41% access-related infections while 63% of the patients had an access (fistual/graft). My father's experience with staff retaliation was the result of his speaking out (and, mine) to remind staff that they needed to implement correct practices. Perhaps, this is why he did not acquire an access-related infection -- because he made staff do the right thing, but he paid a price for it. It just amazes me the types of deficiencies cited and no consequences for such. So what if the facility has a good rating with the new QIP if patients are having negative outcomes due to not implementing correct practices. It is truly frustrating that no one sees what is reallly going on.
ABOVE ARE OPINIONS OF
ROBERTA MIKLES BA RN
WWW.QUALITYSAFEPATIENTCARE.COM