Doctor's conviction reversed on appeal

July 19, 1995|By Jonathan Bor | Jonathan Bor,Sun Staff Writer

Maryland's highest court reversed the conviction yesterday of a leading cancer surgeon who was accused of improperly touching a woman during a medical exam, apparently ending a two-year court battle.

In a 4-3 decision, the court found no evidence that Dr. George Elias either intentionally or recklessly battered a female patient when he examined her groin during an office visit Jan. 5, 1993. The surgeon said he felt the area for swollen lymph nodes to rule out cancer.

"This is big stuff because I've never been accused of such a thing in my life," said Dr. Elias, who has practiced for 36 years. "To treat me like a criminal, it's unbelievable. I felt the truth would come out in the end, that someone would realize what was going on."

Dr. Elias, 61, said he spent $250,000 in legal fees to fight his case through three courts, even though the conviction resulted in no jail time and only a $5,000 fine. He said he wanted to save his reputation and erase emotional scars.

Dr. Elias still faces a malpractice suit filed by his accuser. Neither the woman, whose name is being withheld to protect her privacy, nor her attorney could be reached.

In overturning the verdict, the Court of Appeals did not order a retrial. Gary E. Bair, chief of criminal appeals for the attorney general's office, said he probably will not ask the court to reconsider.

Dr. Elias, who wrote a textbook on cancer surgery, was chief of surgical oncology at the University of Maryland Medical Center when the incident occurred.

The case inspired scores of doctors and patients to write letters and to throng a courtroom on his behalf. Many described him as an honorable if sometimes temperamental man.

Many physicians said his conviction sent a chill through the medical community because a doctor had been convicted of criminal wrongdoing while pursuing a medical diagnosis in a sensitive part of the body.

"I feel this is a proper decision because I can imagine myself in a similar situation," said Dr. Harold Ramsey, a Baltimore tumor surgeon who testified that Dr. Elias was obligated to make sure the patient did not have swollen lymph nodes.

"I just feel that if you malign a good person, in a situation where there is no good evidence to support anything, then you're opening the profession to many bad things."

Dr. Bruce Bolling, a surgeon who trained under Dr. Elias, said he and other doctors were ecstatic over the court ruling: "We all thought it was a terrible injustice. It's unfortunate that it had to go this far in the judicial system for him to be vindicated."

The state Board of Physician Quality Assurance conducted an investigation but issued no sanctions.

"Speaking for myself, I thought that what was alleged was part of a normal examination," said Dr. Israel Weiner, chairman of the disciplinary board. "I thought there was a misunderstanding and an overreaction on the part of the patient.

"And I was surprised that the lower courts found him guilty."

The saga began when a 31-year-old social worker with the medical center asked Dr. Elias to examine her painful breasts for signs of a malignancy. He found no evidence of breast cancer. What happened next was a matter of dispute.

Dr. Elias said she expressed concern that white spots on her upper thigh might be melanoma, a deadly skin cancer. He said he examined the spots, and determined they were a vitiligo, a harmless condition. He said he examined her groin just to make sure. If the spots had been cancerous, the malignancy first would have spread there.

But the patient testified that Dr. Elias called attention to the spots. After examining her groin, she charged, he slipped his hands inside her underpants and touched her vagina. She said the intrusion was over in an instant, but it so shocked her she filed criminal charges.

District Judge Askew Gatewood cleared the surgeon of a sexual offense, but found him "guilty in the least most way" of misdemeanor battery -- touching her offensively and without her consent.

Dr. Elias appealed. But in a second trial, Circuit Judge Clifton J. Gordy again found him guilty. Next, Dr. Elias fired his lawyer and hired attorney Anton Keating, who took the case to the Court of Appeals.

In the majority opinion, Chief Judge Robert C. Murphy rejected the prosecution's claim that Dr. Elias' search for melanoma was a pretext " 'to hide behind whatever it was that he was doing at this time.' "

"The record demonstrates that Dr. Elias' concern . . . that [the patient] might have developed melanoma in the groin was justified by her existing medical history," Judge Murphy wrote.

If Dr. Elias shocked her by touching a sensitive area without her express consent, this did not constitute a criminal act, the judge wrote.

In a dissent, Judge Howard S. Chasanow wrote: "What I trust this case does not stand for is the absurd proposition that a physician, a masseuse or any other person who may have permission to touch a woman near an intimate area of her body may reach beneath her underwear and fondle her with impunity.

The surgeon said the ordeal has taken a toll. He said it opened a rift between him and officials of the University of Maryland Medical Center who placed him on administrative leave during his legal battle and cut his staff. In May, he moved his practice to Franklin Square Hospital Center, taking about three-quarters of his 800 patients with him. A week later, he suffered a heart attack and was successfully treated with angioplasty, a procedure that opens clogged blood vessels.

Yesterday, his wife, Mary Ellen Elias, said she was relieved.

"It just seems like it's been such a long haul," she said.

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