The Lufkin DaVita Bleach Murder Trial: What the Defense Must Prove

By Peter Laird, MD

As the defense rests and testimony ends today at the Lufkin DaVita bleach murder trial, comparing the agenda of the defense and the prosecution contrasts what each side must prove to prevail. In many ways, the defense aspects are easier in that the prosecution must prove that the defendant beyond a reasonable shadow of doubt is guilty of the charges as written. The prosecution case was handicapped from the beginning by the lack of any forensic test that is specific for bleach infusion. They didn't exist at the beginning of this trial and I believe it is abundantly clear that as this trial comes to its conclusion soon, it still does not exist.

On the other hand, the defense must only prove that there is a reasonable doubt that the defendant is guilty of all the charges. This is a circumstantial case without any direct physical evidence tying the defendant to the accusations with no fingerprints or DNA evidence reported. Instead, as mentioned in an earlier post, the prosecution case is burdened with the two eye witness accounts that the defendant allegedly infused bleach as they were watching but no direct physicial evidence linked directly to the defendant.

For the defense, the most compelling evidence is the lack of bleach injury on the two autopsies available or in any of the surviving patients. One study that illustrates what the prosecution must overcome is from a recent case report on intentional bleach infusion in a suicide attempt. In this case, the patient placed 20 ml of 5.2% bleach into a 500 ml saline bag and then infused the entire solution. Dr. Schwartz did mention this case in his testimony but he left out a very important aspect of the case report, that of the severe thrombophlebitis that this man developed at the infusion site in his arm:

Venous thrombosis following intravenous injection of household bleach

Abstract

Sodium hypochlorite (NaClO) is used extensively as a disinfectant or bleaching agent. Most studies describe ingestion or inhalation route of this product with rare complication and fatalities. Despite global daily exposures, data about bleach injection is limited. Here we report intentional infusion of 20 mL, sodium hypochlorite 5% diluted in 500 mL normal saline 1.5 h prior admission. Clinical manifestation included local pain and edema. There were no laboratory abnormalities in the patient. Doppler sonography revealed thrombosis in superficial (antecubital and basilic) veins. Limb elevation, warm compress, and ibuprofen relived pain and edema after 3 days

Case report 

 A 30-year-old previously physically healthy man was admitted to the emergency department (body- weight, 75 kg). He attempted suicide by infusion of 500 mL normal saline serum containing 20 mL household bleach (sodium hypochlorite 5%) into right cubital vein with intravenous (IV) line, one and a half hours before admission. He had a history of schizophrenia since 10 years and this was his first suicide attempt. On arrival, the patient was hemodynamically stable. Oral temperature was 37.5􏰁 C (99.5􏰁 F), pulse rate 103 beats per minute with a normal rhythm, blood pressure 135/80 mm Hg, and his respiratory rate was 18 breaths/min with no abnormal breath sounds. The abdomen was soft and flat with normal bowel sounds. The initial oxygen saturation was 95% (in room air). He was alert, awake, and in no apparent distress. He complained of painful swelling in his right upper extremity. In clinical examination, the arm was painful and relatively swollen. 

Dr. Gruszecki noted the lack of physical evidence, the lack of direct forensic evidence and the lack of any substantiated evidence of hemolysis or hyperkalemia in these patients in her reported testimony. We know from the medical literature that bleach reacts immediately with all non-epithelialized tissues. In several cases, the alleged onset of symptoms were up to two hours after the alleged infusion of bleach which is not medically sound or logical in my opinion.

The defense in this case did more than just dispute the prosecution allegations at the patient level, the defense found many serious procedural and professional deficiencies at the Lufkin DaVita facility that raise the case of reasonable doubt. Finding significantly elevated chlorine levels in treated water used for dialysate is a potential answer to the elevated 3-chlorotyrosine levels. The test itself cannot delineate between the two. The fallacy of this thinking is that they appear in my opinion to have put the cart before the horse and assumed her guilt as they built their case instead of seeking all avenues of investigation first before drawing any conclusions. In addition, they had samples from two and five days after the last dialysis which is enough time for the 3-chlorotyrosine levels to fall dramatically as noted in more than one of the alleged victims rendering 3-chlorotyrosine a poor marker of bleach with a very short window to apply its discovery.

The CDC testimony further failed to identify many of the practice variations that has been revealed in this trial such as running the bleach cycle in the dialysis machine between the first and second shift, the fact that the bleach in the blood lines had to be placed after the machine had stopped from Dr. Neidigh's testimony, as well as the widely used syringes to measure bleach for cleaning the machines noted by at least two former employees.

In addition, the defense may have added another layer of reasonable doubt by uncovering the many DaVita actions that bring into question whether they have altered, destroyed or contaminated much of the physical evidence. In the final analysis, it quickly became evident that there is no incontrovertible evidence that any murder or assualt had taken place with any of the patients in this unit. If the prosecution does not prove that the patients were absolutely murdered or assualted with bleach, the eye witness testimony and circumstantial evidence is rendered moot.

This trial shall always generate doubt and uncertainty as to what truly happened at the Lufkin DaVita facility, but there is also much that is now openly revealed by the reported testimony. It remains a complex case where the verdict will remain in doubt until the jury speaks and perhaps even after they speak. Viewing the news and comments, there appears to be a diverse opinion about this case in the public.

Comments

[KATHIE MIZE]

DID THE DEFENSE LAWYER PULL THE WATER CHECK LOGS FOR THE CLINIC? THAT SHOULD TELL YOU THE STORY RIGHT THERE. IF CHLORINE LEVELS ABOVE ACTION LEVEL AND HAS BEEN FOR HOW LONG. THERE IS YOUR SMOKING GUN. THE DOCTOR OVER THE CLINIC AND MANAGEMENT OF THAT CLINIC SURE DID KNOW ABOUT THE WATER QUALITY TEST IF THEY WHERE OUT OF RANGE. BUT ANOTHER THING IS IF THIS NURSE WAS A LPN OR RN AND WAS SHE THE CHARGE NURSE THAT IS SUPPOSE TO CHECK THE WATER CHECKS BEFORE CLINIC STARTS ANY PATINETS ON DIALYSIS AND EVERY 4 HOUR WATER CHECKS. WAS SHE THE ONE THAT WAS IN CHARGE OF MAKING SURE THE WATER CHECKS NUMBER ONE WAS DONE AND NUMBER TWO IF THEY WHERE OK TO START DIALYSIS ON ANY PATIENT. MANY MANY MANY QUESTIONS AND WAS ALL OF THIS BROUGHT OUT?

[Peter Laird, MD]

The defense did have a water purification expert named Peter Cartwright who did testify that the Carbon filters were not functioning correctly. Even on the "normal" water tests, Chlorine was detectable when it should have been undetectable. That in his opinion is the smoking gun of this case, but the jury failed to consider many of these data in their deliberations if we look at their outcome.

There are many aspects of this case that remain very troubling. Hopefully the appeals court will consider what the defense put forth and the discordant verdict from the evidence that the defense presented. There was plenty of reasonable doubt in this case. What logic the jury used to find their decision is something I would like to hear, but there is no requirement for jurors to disclose this information.

[roberta mikles]

It would be interesting to hear what the jurors based their decision on e.g. did they only take into account the background of this nurse presented by the prosecution? In a small town, e.g. Lufkin, can one really be unbiased? And, again, that which you pointed out, Peter, detectable Chlorine,to many of us presents as reasonable doubt. Also, will this case and deficient practices identified in court e.g. detectable chlorine, and other statements from witnesses,FINALLY AWAKEN our oversight agencies, legisltors and providers, to the fact that facilities, in spite of mandatory dialysis technician certification and the revised ESRD Conditions, CONTINUE to have the same types of deficiencies cited during surveys? Has anything really changed? When the same types of deficiencies are cited, basically over the last five years, or more, something is greatly amiss. One unit, with five deaths within a six month period, were all determined to be natural causes---(not Lufkin Davita unit) --when the state inspected, the medical director stated all natural causes....some felt there was more to the picture than met the eye.... e.g. faulty practices.. this leads us to look further into practices of staff e.g. do technicians report symptoms to RNs in order to have an efffective assessment? Is the RN fully trained in order to identify problems, pending or actual? Is the RN an experienced dialysis nurse? Alot of questions when events occur
opinions of Roberta Mikles
www.qualitysafepatientcare.com .