Doctor's battery conviction questioned

November 10, 1994|By Jonathan Bor | Jonathan Bor,Sun Staff Writer

ANNAPOLIS -- A leading cancer surgeon's efforts to restore his reputation reached the state's highest court yesterday as several judges questioned the rationale for his 1993 conviction on a charge of battering a female patient.

The long, murky legal battle of Dr. George Elias, chief cancer surgeon at the University of Maryland Medical Center, arrived at the state Court of Appeals 19 months after he was convicted of misdemeanor battery during a non-jury trial in Baltimore District Court.

Dr. Elias' case stems from a patient's complaint that he reached into her panties and touched her pubic area during a medical visit that she expected to consist only of a breast exam.

The 60-year-old surgeon denied the charge, saying she had expressed concern over a cluster of white spots on her upper thigh, prompting him to investigate the possibility of a dangerous skin cancer called melanoma. To be thorough, he felt her groin -- not her vagina -- to see if she had swollen lymph nodes, he said.

He said he was professionally obligated to examine her groin because swollen lymph nodes could have been signs of a spreading cancer. Both the spots and the lymph nodes turned out to be normal, he said.

In an effort to clear his name, Dr. Elias has spent over $125,000 in legal fees, discharged a lawyer and hired a new one and fought his way up the ladder of state courts.

After his conviction in District Court, he exercised his right to a retrial in Circuit Court. But he was convicted there, too. He is now represented by Anton Keating.

A state licensing board investigated but found no reason to limit Dr. Elias's right to practice medicine.

Now, the seven-member Court of Appeals is considering whether to overturn his criminal conviction.

Although a decision could be several weeks away, three judges indicated yesterday that they found inconsistencies in the remarks and verdict of District Judge Askew Gatewood, who acquitted Dr. Elias of a sexual offense but convicted him of battery -- "an offensive touching."

In lively discussions, the appellate judges focused heavily on Judge Gatewood's remarks that he found Dr. Elias and his patient equally credible and believed that the doctor had done nothing wrong "except to be so damn good as to be automatic in your examination."

If Dr. Elias had merely asked permission to touch the groin, Judge Gatewood said, he would not have gotten into legal trouble.

Chief Judge Robert C. Murphy questioned how the judge could have found the surgeon guilty beyond a reasonable doubt. "Gatewood first said both witnesses were perfectly credible," he said, addressing Gary E. Bair, chief of criminal appeals for the state Attorney General's Office. "He said he didn't do it. She said he did. Now, if you can get 'beyond reasonable doubt' out of that, you've really got something."

"Then," added Judge John C. Eldridge, "he goes on to say, the man did nothing wrong,"

Judge Robert M. Bell said the trial judge "compromised his verdict" -- splitting the decision in an effort to satisfy both sides.

But Mr. Bair contended Dr. Elias clearly went beyond the patient's request for a breast examination. "If you go into an examination for a sore throat and during that examination the doctor starts feeling around your genital area, I say that's clearly beyond the scope of the examination."

Judge Eldridge, however, said that examining the groin was "pertinent" to the doctor's concern that the spots could have signaled a dangerous cancer.

Reached by phone, Dr. Elias said he feels confident that his conviction will be overturned.

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