Houston case reflects tough choices posed by the vaccine
Any physician who brazenly pilfers doses of the all-too-scarce COVID-19 vaccine for their own personal use should expect to hear from local prosecutors.
But there’s a difference between such an outright villain and a physician who simply runs afoul of state or local guidelines during the course of efforts to distribute the vaccine to as many people as possible, during this relatively early phase of the nationwide rollout.
Dr. Hasan Gokal, according to many observers, is an example of the latter case.
Gokal was fired earlier this month from his post at Harris
County Public Health after a colleague reported that he had taken a vial of the Moderna vaccine from a county vaccination site in Humble and given the doses it contained to a number of personal contacts, including his wife.
He was also charged, last week, with theft by a public servant.
“He abused his position to place his friends and family in line in front of people who had gone through the lawful process to be there,” Harris County District
Attorney Kim Ogg said in a Jan. 21 statement announcing the charges. “What he did was illegal and he’ll be held accountable under the law.”
Harris County Court-At-Law Judge Franklin Bynum, who dismissed the case on Monday, took a markedly different view of the situation. In a scathing ruling, he accused Ogg’s office of charging Gokal based on the “novel theory” that his administration of vaccine doses outside of the county’s procedures — “which are not described with any detail” — was tantamount to theft.
“The Court emphatically rejects this attempted imposition of the criminal law on the professional decisions of a physician,” Bynum wrote.
His ruling isn’t the final word on the subject; prosecutors plan to pursue the case.
“Right now, they anticipate presenting all the evidence to a grand jury so that a group of citizens in the community can
decide if they think a criminal charge is warranted,” Ogg spokesman Dane Schiller told me.
The citizens who serve on that grand jury will have to grapple with some interesting questions.
Gokal’s lawyer, Paul Doyle, says that Ogg’s summary omitted important context. In Doyle’s telling, Gokal found himself with a nearly full vial of the Moderna vaccine at the end of his shift, and didn’t want to see it go to waste; once the seal on the vial is punctured, the vaccine it contains has a shelf life of about six hours. To that end, Doyle says, Gokal scrambled to find eligible takers, first asking the health workers and law enforcement officers on site, then reaching out to someone at the health department, and eventually resorting to his own contacts.
It’s easy to understand how a physician could end up in such a situation — and to sympathize with their desire to act.
But worth noting is that while Doyle’s and Ogg’s versions of events cast Gokal in a very different light, they aren’t exactly in conflict.
By all accounts, Gokal did “appropriate” nine doses of the vaccine, as the charging documents put it. It’s just difficult to judge him harshly for having done so, if those doses would otherwise have gone to waste — or even if Gokal was simply under the impression that would happen.
Indeed, with the vaccines still in scarce supply and herd immunity as yet a far-off goal, we all have a vested interest in not seeing available doses go to waste. And the risk of that happening is real given the short shelf life of COVID-19 vaccines. In another case earlier this month, the staff at a northern California hospital scrambled to inoculate anyone available after learning that a freezer storing some 800 doses of the vaccine was on the fritz. With the clock ticking, they simply set aside the state guidelines; understandable enough.
California Gov. Gavin Newsom, for his part, has signaled that public health professionals in his state should have some latitude to use their judgment in such cases.
“The key is to make sure that, while we are enforcing the rules of the road, we aren’t enforcing against just common sense,” Newsom said.
Although Newsom has been criticized for mishandling other aspects of the pandemic response, this seems like a reasonable perspective and one our leaders should embrace.
“The district attorney places the entire medical community in the position of choosing between performing the public good and preserving their own careers,” said Doyle, after Ogg’s office announced they would continue to pursue the case.
Gokal, it is worth noting, has a track record in the Houston medical community. According to a 2010 Houston Chronicle article, the Pakistan native, who grew up outside New York and received his medical degree from Syracuse University, joined the staff of Memorial Hermann Katy Hospital in 2009 and served as director of emergency services. He traveled to Iraq in 2010 to help train doctors in advanced cardiac life support and critical care medicine.
Guidelines are necessary, obviously, to ensure some degree of transparency and equity in the vaccine distribution process — and we shouldn’t turn a blind eye if public health professionals flout the parameters that have been established. But to harshly penalize a physician who is simply trying to vaccinate as many people as possible would set a similarly bad precedent.