Blind Eye: The Terrifying Story of a Doctor Who Got Away With Murder (44 page)

In the wake of Harvey’s confession, and a public uproar in Cincinnati, it emerged that Veterans Administration police had stopped Harvey in 1985 and searched his gym bag. In it they discovered a .38-caliber revolver, needles and syringes, books on the occult, a cocaine spoon, and various medical texts. Harvey was fined $50 for carrying a firearm on federal property and was allowed to resign quietly rather than be fired. Nothing was said to state authorities or prospective employers. No investigation was conducted by the VA hospital into Harvey’s contacts with patients. After Harvey’s arrest, former VA police officer John Berter charged that “they just wanted to get rid of him and push their problem off on someone else.” After the Harvey incident, Berter was fired himself, he claimed because he was a whistle-blower. The hospital said his claims about Harvey were nothing but speculation, and said Berter was dismissed because he had abused its sick leave policy.

After Harvey left the VA hospital, he moved to Drake Memorial Hospital. VA officials made no effort to monitor his subsequent employment or warn Drake officials. Harvey pleaded guilty to killing twenty-one people at Drake.

G
IVEN
the rise in serial killings generally, and in hospitals specifically, it seems inevitable that more Swangos will surface, and it thus seems all the more critical that criminal physicians be monitored and prevented from having access to patients. When Judge Cashman spoke to AMA officials after learning of Swango’s arrest, he
demanded to know how Swango could have been hired at two university teaching hospitals after being convicted of poisoning. He was assured that whatever the explanation, it couldn’t happen again, because a new national monitoring system had gone into effect in 1990: the National Practitioner Data Bank. But how then, Cashman wondered, could Swango have been accepted at SUNY–Stony Brook in 1993?

Neither at Stony Brook nor at South Dakota, of course, had officials checked with the data bank. Such a step was optional under the Wyden legislation, in any event, nor is it obvious that the data bank would have reported anything on Swango, since there’s no indication that anyone reported Swango to the data bank in the first place. When I called the data bank to find out if it had any information on Swango, I was told indignantly that any such information—even whether his name appeared in the data bank—was confidential.

Dr. Salem, who accepted Swango’s application in South Dakota, insisted to me that he was familiar with the data bank and its operations, but that medical residents were exempt from its requirements. But others, including administrators at Stony Brook, seemed to be only vaguely aware of its existence; some had never heard of it.

My suspicions about the ineffectiveness of the much-touted data bank were confirmed when I spoke to Alan S. Levine, an inspector with the U.S. Department of Health and Human Services. HHS conducted a study of hospital compliance with the reporting requirement in the Wyden bill over a three-year period, from September 1, 1990, when the data bank began operation, to December 31, 1993. According to the HHS report, a copy of which I obtained, “About 75 percent of all hospitals in the United States never reported an adverse action to the Data Bank.” In other words, three-quarters of the nation’s hospitals over a three-year period either took no disciplinary action against any physician—something that strains credulity—or failed to report to the data bank when they did, as required by law. In the case of South Dakota, an astounding 93.2 percent of the state’s hospitals failed to report any action. This compared with 51.7 percent in New Jersey, the state with the highest rate of compliance. The notion that the rate of medical malpractice would be so much higher in New Jersey than in South Dakota
also strains credulity. Finally, in 1989, it was predicted by the U.S. Office of Management and Budget that the data bank would be required to process 5,000 hospital reports a year. The actual average was only 1,000 per year.

The HHS report concluded that “our review suggests a sufficient basis for concern about the hospitals’ response to the Data Bank reporting requirements. The wide variation in reporting rates from state to state is in itself troubling.”

The AMA, offered an opportunity to comment on the HHS findings, attacked the methodology and the conclusions and continued to wage its rearguard action against any federal monitoring or reporting on incompetent or criminal physicians. “The AMA’s review . . . concludes that the report falls far short of its purported goal . . . . Our review has revealed important gaps in both accuracy and completeness of data, creating a misleading picture.” Furthermore, the AMA asserted, “it is universally recognized that punitive measures against physicians do not prevent adverse events from occurring and overall is [
sic
] not an effective patient safety/quality improvement measure.” The association insisted it was “premature” to even discuss strengthening the reporting requirements.

Even without the glaring Swango example, it is perfectly plain that the data bank is not protecting the public. I will not even address the broader and more complex issues raised by entrusting physicians to police themselves through the peer review process, or by the widespread failure of state medical boards to enforce statutory standards; the solution at the federal level cries out for some obvious reforms. The government must:

• Require hospitals to check with the data bank before granting hospital privileges to any physician, whether licensed or unlicensed, whether an experienced practitioner, intern, resident, or medical student.

• Require hospitals to report any adverse action against a physician, not just action resulting from a peer review process, and at the very least including all criminal charges and their dispositions.

• Provide meaningful penalties for failure to comply, such as a significant fine, and provide HHS with an adequate
enforcement capability. Public Citizen’s Health Research Group, in commenting on the HHS study, noted that “the current penalty . . . for noncompliance by hospitals may be insufficient to deter violations of the law . . . . We are unaware of any instance since the Data Bank’s inception in which a hospital was penalized for failing to submit records.”

• Make information in the data bank available to the general public. It is paid for by our tax dollars.

In short, the performance of the data bank to date, and its failure to warn of a Swango in our midst, is, as Judge Cashman put it, a “national scandal.”

A
T
times, Judge Cashman feels that it may be his life’s mission to monitor Swango’s career, and not just because the FBI has warned him that Swango might come after him after he’s again released from prison. Cashman’s ire is in large part directed at the medical profession. In his view, hospital administrators and doctors were so concerned about potential liability that they refused to acknowledge evidence of numerous wrongful deaths, and thus became Swango’s unlikely allies. In particular, Ohio State “did nothing,” Cashman told me. “He should have been prosecuted in Ohio. No one would cooperate. There is an unwritten rule in the medical profession: Inept doctors do not get reported. Just get them out of town.”

Even the most cursory glance at the medical profession’s treatment of Swango appears to support Cashman’s assertion. Swango performed poorly at SIU and was the subject of investigations both there and at Ohio State. Each institution made it possible for him to procure a licence to practice medicine in its state, and did nothing that prevented him from being hired in South Dakota and New York, let alone in foreign countries. Ohio State doctors actually
recommended
that Swango be licensed. Their myopia seems little short of astonishing. Repeatedly, doctors at respected hospitals and medical schools were willing to believe a fellow physician, even when they knew him to be a criminal. In some cases, they went so far as to recommend that he be hired elsewhere. How could a felon convicted
of poisoning, or even of a less sensational form of battery, be granted an interview, let alone obtain a position?

“Most doctors I know are fine, upstanding people,” Judge Cashman said as we discussed this question. But, he added, some consider themselves to be members of an elite, and treat one another accordingly. The loyalty among physicians makes police officers’ famous “blue wall of silence” seem porous by comparison. This loyalty, and the corresponding distrust of outsiders, have only been intensified by decades of personal liability and medical-malpractice litigation that has left doctors, as a group, feeling beleaguered, unappreciated, suspicious, and fearful of outside regulation. Many physicians, often with some justification, have come to view lawyers—and indeed, the entire legal system—with distrust, if not outright hostility. In such a climate, some physicians seem willing to take the word of almost any doctor rather than accept the rulings of the courts.

A
S
she pondered the Swango case, Cecilia Gardner, the assistant U.S. attorney in charge of it, faced a quandary. It was she who had thought of obtaining a warrant on fraud charges; she and the FBI now believed they had a murderer in custody, but the only crime they could prove against him was making a false statement. Under federal sentencing guidelines, perjury doesn’t carry a mandatory prison term. Gardner was convinced that as soon as Swango was out of custody, he would again find a position as a physician, probably in a foreign country. She either had to give the FBI time to develop a stronger murder case by delaying the trial, or she had to strengthen the government’s case by expanding the charges.

Gardner moved on both fronts. Since Swango had had access to drugs deemed narcotics—“controlled substances,” within the federal criminal code—she amended the indictment to include charges of fraudulent access to and distribution of controlled substances. Conviction on these counts carried a maximum prison term of three years. She also persuaded Swango’s lawyer, Randi Chavis, a court-appointed public defender, to agree to delay proceedings while Gardner traveled to Africa to seek evidence of similar “bad acts.” Such evidence would be admissible to prove that Swango’s actions on Long Island were part of a consistent pattern.

Gardner traveled to Zimbabwe in the fall of 1997; there she gathered evidence of the fraudulent representations Swango had made to the Lutheran church and to the health ministries of Zimbabwe and Zambia. These included a forged letter, dated May 19, 1994, from an executive vice president of the Federation of State Medical Boards, saying that Swango was “in good standing” with the federation. The document was notarized by Swango’s friend Bert Gee, as were all Swango’s application documents. Swango also said he’d been working as a “chemical soil analyst” with “Gee Enterprises,” which Gee later said meant Swango had “turned the soil” for a worm farm he maintained in his basement.

The résumé Swango used to obtain employment in Saudi Arabia maintained that from 1990 to 1995 he was an “emergency room physician” in the United States in “large urban inner-city hospitals” and that he was a physician with the U.S. government from 1984 to 1990, which includes the time when he was actually in prison. His employment application said he had never been convicted of a criminal offense, and his “solemn declaration” to the Zimbabwe Health Professions Council stated that he had “never been debarred from practice on the grounds of professional misconduct.”

Rather than face a trial that would include an extended inquiry into his activities in Africa, on March 16, 1998, Swango agreed to plead guilty and accept a prison sentence of forty-two months. But even after his plea, he tried to deceive the federal probation officer preparing his presentencing report. Though he was required to disclose all previous employment, he did not mention that he had worked at Aticoal in Virginia, where workers had come down with symptoms of poisoning, and at Photocircuits outside Atlanta, where he had access to the city’s water supply.

On June 12, Swango appeared in the federal courthouse in Uniondale, Long Island, for sentencing. He was wearing glasses, and his hair was cut short, not nearly as blond as it had been in Africa. He still looked younger than his forty-three years, though he could hardly have passed for a twenty-eight-year-old. There were few spectators. No friends or family members appeared. He took notes throughout the proceeding, as he had at his trial in Quincy thirteen years before. He conferred frequently with Chavis, his lawyer.

Chavis said that despite Swango’s guilty plea, her client wanted to lodge an “emphatic denial” of any poisoning deaths. She added that he denied having “any poison-making abilities.”

Judge Jacob Mishler pronounced the agreed-upon prison sentence of forty-two months, stipulating that while in prison Swango “shall not engage in any duties that directly or indirectly require the preparation or delivery of foods or dispensation of medication or pharmaceuticals.”

The judge asked Swango if he had anything to say. “I’m very, very sorry, Your Honor,” he replied, and then remained silent.

T
HERE
was no glimmer of satisfaction on Swango’s face as he left the courtroom, escorted by two federal marshals. But on some level he must have felt a sense of triumph, for despite the guilty plea, despite the dire hints of trouble in Africa, he had again evaded murder charges.

Cecilia Gardner resigned from the Justice Department shortly after Swango’s plea. Despite her efforts at delay, the FBI had failed to complete its investigation and was nowhere close to a provable murder case. The obstacles the Bureau faced were formidable. The deaths at SIU and Ohio State linked to Swango were now so old, and so much evidence had decayed, or been lost or destroyed, that the likelihood of finding admissible physical evidence was remote. Morgan, the prosecutor in Ohio, had tried and failed to do so more than ten years earlier. Officials in South Dakota and on Long Island had already rushed to proclaim that they had found no evidence of suspicious deaths of patients under Swango’s care, which hardly enhanced the possibility of finding evidence there. That left Africa. Zimbabwean officials conceded that the country lacked the technology and expertise to test for the sophisticated substances likely to have been used by Swango on his victims. In any event, even had Zimbabwe sought Swango’s extradition under a recently completed treaty between the two countries, the United States doesn’t extradite its citizens to foreign countries that, like Zimbabwe, have the death penalty (even though the U.S. may impose the death penalty itself).