The Medical Profession on Trial

One year ago few people outside of the Boston medical community had heard of Dr. Arif Hussain. A respected anaesthesiologist at the Harvard-affiliated Brigham and Women's Hospital (BWH), Hussain was less than a year from completing his residency and would undoubtedly have obtained a good position at one of the top medical centers in the nation. But last winter the doctor's anonymity was shattered, and since then he has been at the center of an increasingly bizarre rape case that has gained nationwide attention. In the subsequent months eyewitnesses have reversed their testimony, jurors have voted one way and later denounced their decision and a judge has pronounced a sentence which seemed unusually light But above all, the case has shaken the medical community's foundations, causing it to reassess its ethical guidelines and its methods of enforcing ethical codes.

On September 5, 1980. Dr. Jason Hyams held a party for members of the anaesthesiology department at BWH. It was a seemingly normal social gathering but one session of drinking and flirting got out of hand and what happened later that night triggered a chain of complicated events with far-reaching implications.

Shortly after midnight, three male doctors and one female nurse got in a car and drove north for an hour to a Rockport beachhouse, where they engaged in some form of sexual activity. On that, much all four agree. The nurse charged that what occurredearly that morning was rape, but all three doctors maintained they were guilty only of poor judgment. They will only admit to having taken part in mutually consented intercourse, albeit imprudent consent.

The three doctors' trial last summer was characteristic of many rape cases. It is easy to prove that a woman has had sex, and sometimes possible to prove with whom she has had it. But unless there are witnesses--and there almost never are--or the woman is seriously injured and has obviously been attacked, the charge of rape invariably becomes the word of one person against another. Or against three others.

The three doctors and the nurse described the events of September 6, 1980 very similarly, disagreeing only as to whether or not force was involved. Carol DiPietro, a recovery room nurse at BWH, said that the three doctors made sexual advances towards her at the party. When she tried to rebuff them they pinned her arms to her sides, pushed her out of the building and forced her into the car.

During the hour-long ride to Rockport. DiPietro sat with Hussain in the backseat of the car. She said that he kept a strong grip on her the entire time, while he testified that she sat quietly in his lap and at one time even kissed his neck.

At the beachhouse, DiPietro charged. Hussain carried her inside and after Dr. Alan Lefkowitz papsed around a pipe of marijuana the three men look DiPietro into the bedroom and assaulted her She testified that the three tried to rape her simultaneously but were unsuccessful and did, so individually while the other two backed off.

DiPietro said that during the actual rapes. "I was physically numb, I couldn't fight. I was humiliated and disgusted. I couldn't do anything." But the doctors have claimed repeatedly that" in no way did she indicate she was not a willing participant in what was going on" and that what went on was "entirely of her own volition."

Independent testimony at the trial was ambiguous. The only witness to the four's exit from the party changed his description between the time he was first interviewed by the state police and the time he actually testified. At the trial. Dr. Michael Shesky denied having told the police that he saw two of the doctors drag DiPietro from the apartment, adding that he only heard scuffing in the hall which he presumed to be horseplay.

The defendants also called DiPietro "extremely suggestive" and a friend of thers at the party said she was braless and wore a revealing dress. But the waitress who served her and the three doctors at a coffee-shop on the road back from Rockport said she dremembered the woman in the group as wearing a severe shift, the top half of which was rumpled and covered with tint.

Hussain Letkowitz, and three counts of rape. Conviction of kidnapping would have meant the jury believed the doctors forced DiPietro into the car and took her to Rockport against her will. The critical charge in the controversy that followed the verdictwas aggravated rape. Aggravated rape entails the use of excessive violence or cooperative action. The judge instructed the jury that in order to convict for aggravated rape, they would also have to find the men guilty of kidnapping and each others rapes.

After a day and a half of deliberation the jury convicted each doctor of three counts of rape and in doing so laid the foundation for the mens' appeal. By convicting the doctors of three rapes each their own and each others', the jury indicated that it believed the men were acting in consort But the issue was confused when the three were not convicted of aggravated rape.

Joseph J. Balhro. Lefkowitz's attorney, called the verdicts an "obvious, blatant, and patent inconsistency." "Noting the related convictions, he added. "If that's not acting in consort. I don't know what is." In effect. Balhro and the other defense attormes are basing their appeal on the jury's decision not to convict the three doctors of as serious a crime as they could have.

After the trial two jurors said independently that they did not actually understand the judge's instructions concerning the sentences and based their vote on an interpretation of character Immediately after the trial. Deborah Badgett told Globe reporters that she had decided against the doctors because of her assessment of the nurse's character.

Six weeks later, a second juror released a statement saying that the jurors did not understand the legal definition of rape and based their decision on the belief that the doctors had not actually committed rape but had done something wrong for which they should be punished.

Judge Walter E. Steele's sentence in the case also caused controversy. Although they could have received a maximum sentence of 60 years--20 years for each rape--Steele sentenced the three doctors to serve only three to five years in prison and suspended all but six months of the sentence with a year's probation after release. The average sentence for a rape conviction in Massachusetts is 11 years and the minimum recommended is 19 months.

The light sentences drew criticism from women's groups, who contended that the doctors' status contributed to their short prison terms. It was "another case where the punishment fit the criminal, not the crime," a spokesman for a local rape crisis center said.

Free pending the appeal of his conviction. Hussain disappeared for a few months, but last September he resurfaced at the Buffalo Children's Hospital when two additional charges were brought against him.

Two women charged that Hussain assaulted them while they were patients at Waltham Hospital in 1978. Although the charges predate the DiPietro case, the women did not file their complaints until reading about the later case in the papers.

In testimony at a probable cause hearing last November, Lindsay Kilgore said that Hussain awakened her at 3 a.m. when who was in the hospital being treated for viral meningitis during October, 1978. She said that Hussain placed his hand on her stomach and began rubbing in a circular motion down towards her vagina. She also felt material and something hand being placed in her hand. Until this point she had pretended so be asleep but when she began to move about. Hussain left and she summoned the nurse.

Kilgore's doctor testified that she was being treated with powerful painkilling drugs the night of the alleged assualt and Hussain's attorney. Kenneth M. Goldberg, charged that the combination of the drugs and her very painful illness completely distorted her perception of Hussain's visit toher room.

As in the rape trail, last summer, Hussain does not deny having professional contact with the woman but has denied any impropriety.

Judith McDonalt, the second alleged victim, testified that shortly after midnight on March 26, 1978, she was in great pain from a backache and sciatic nerve injury and Hussain gave her a morplunie injection. After giving her the morpline McDonald said. Hussain placed her in restraints and moved her call bell our of reach. When the nurse who was assisting him left the room, he removed her pants and raped her, she charged. After the rape, she added, Hussain threatened to put her in pain for the rest of her life if she ever told anyone about the attack.

Both McDonald and Kilgore mentioned that Hussain had visited them during the night, but neither complaint was investigated. Kilgore told the nurse that Hussain "put his hands on me." The nurse said she reported the incident to her superiors, who relayed the complaint to the hospital administration, but apparently it was never mentioned again. McDonald complained that Hussain had awakened her to perform a series of tests including a rectal exam but--fearing reprisal--did not mention the alleged rape. McDonald's doctor said he was "not impressed" to learn that a doctor had performed a 3 a.m. examination, but he never discussed the matter with either McDonald or Hussain.

After hearing the evidence. Judge Kevin R. Doyle found no probable cause in the charge of assault with attempt to rape Kilgore but did bind the two remaining charges--assault and battery on Kilgore and rape of McDonald--over to a grand jury.

The grand jury hears only evidence from the prosecution in closed proceedings, and despite Judge Doyle's decision, assistant Middlesex Dist. Atty. William Kettlewell presented evidence on all three charges. On December 16, the jury indicted Hussain on all three charges.

Throughout the court proceedings. Hussain's case has proved difficult to defend. In a surprise move at Hussain's arraigement in December, his attorney, Kenneth Goldberg, cited time pressures and said he will be unable to defend Hussain when the Waltham charges come to trial this spring. Goldberg will still represent the doctor at the rape appeal later this summer.

It appears that Hussain's defense strategy has also changed. At the end of December the doctor called his first news conference to discuss the case.

Hussain's wife and infant daughter were also present for the first time. (His wife had been noticeably absent from the probable cause hearing after she made several vocal outbursts during last year's trial.) She has said several times in the last month that she believes her husband to be innocent and will stand by him during the upcoming court action which is scheduled to begin with a pre-trial hearing February 28.

The entire case has had serious repercussions for the medical community. Because of a backlog of cases in the state licensing board and a regulation that permits doctors to practice while their cases are under review. Hussain was able to obtain a job at Buffalo Children's Hospital even after his conviction.

The medical community in Boston seems to think that DiPietro's rape was an unfortunate incident which damaged the entire profession and had no bearing on the three doctors' ability as physicians. "Some very, very fine people have been unnecessarily hurt, people who have important jobs to do and all this attention is interfering with their work," a colleague of Hussain. Letkowitz and Sherry said.

The largest controversy within the national medical community crupted when it was revealed after the train that three Harvard affiliated doctors wrote flattering letters of recommendation which Hussain used to obtain a position on the staff of anaesthesia at the Buffalo Children's Hospital. None of the letters mentioned his prior rape conviction.

After lengthy investigations both the Medical School and the Massachusetts Medical Society recently released reports dealing with the letters of recommendation. In early January the Med School released a "golden rule" policy which stated that letters must include comments about both a doctor's strengths and weaknesses. The policy was called a statement of common sense but still a somewhat needed affirmation of principles. "The whole medical community was really shaken [by the Hussain recommendations]." r. Curtis Prout, assistant clinical professor of medicine, said last week.

Earlier this month the MMS officially censured and placed on probation Drs. Benjamin Covino, head of the anaesthesiology department at BWH. Aaron J. Gissen, professor of anaesthesiology, and John A. Wark, a former anaesthesiology staff member at BWH, for writing the recommendations. The censure is the harshest disciplinary action short of expulsion the society can hand down. Although the MMS is not directly involved with issuing licenses, it will inform the state board of their action. However, Dr. William B. Munier, the society's executive vice president, said recently he did not think the letters were a serious enough action for the doctors to lose their licenses but admitted it would have a serious effect on their careers.

Although the medical community has seemed somewhat unsure about how to deal with the DiPietro rape and letters of recommendation, it has been clearer on the implications of the latest charges against Hussain. The universal feeling is that any kind of assault on a patient is a most serious matter and definitely does affect his ability to practice.

"When you talk about a physician you are talking about more than a technical competence. There is a whole system of caring and trust that goes along with being a doctor." Thomas Sullivan, a spokesman for Buffalo Children's Hospital said. Dr. Marshall A. Falk, executive vice president and dean of the School of Health Sciences. University of Chicago Medical School, agreed: "You are dealing with public trust. The relationship with a doctor is different than the one you have with a plumber."

The Hussain case has forced the medical community to evaluate itself and although not everyone agrees on the exact action that should be taken, much attention has been given to the question of whether or not a doctor convicted of a crime of violence not directly related to his profession should be treated the same way as once who commits the same crime in the course of his work. Perhaps more importantly the medical community is beginning to consider what doctors responsibilities are to each other and how the profession should monitor itself.

As Bernard L . Towers, co-director of trhe CCLA program in Medicine, Law and Human Values, said recentrly, "There is ano question that the medical profession is remiss in policing itslef. There is a lot that goes on that people turn a blind eye to and a great many people don't want to get involved" At least some leaders of the medical profession are tryhing to change that now.