Thursday, 04/21/05State finds 18 instances of sloppy work by Harlan
Board to weigh more charges against medical examiner
Harlan attorney Dan Warlick counters that his client is an excellent pathologist whose current troubles stem from a conflict with the man who succeeded him as Metro's medical examiner, Dr. Bruce Levy.
Harlan operates a private business that offers medical-examiner services to several counties throughout Middle Tennessee. So does Levy, his competitor.
''This all came up so that we can get Dr. Harlan out of Dr. Levy's way,'' Warlick said, a contention Levy has heard often and denied every time.
Warlick told the panel during his closing arguments yesterday that for state investigators to have found only 20 cases worth bringing after Harlan's 30 years of practice was not that bad a record. ''Don't throw the baby out with the bath water,'' he pleaded.
Robert O'Connell, the attorney representing the Health Department, countered: ''The idea that 20 charges ... do not represent 'that bad of a record' is not an idea that I share. The state has proven the charges that remain before you.''
Indeed, the panel seems to agree. So far, at least.
It includes two physicians, Dr. Sam Barnes of Cookeville and Dr. Allen Edmondson of Memphis. Sitting with them is Nina Yeiser of Pickwick Landing. She is the panel's consumer representative.
Meeting roughly once a month for the past two years, the panel has heard testimony about the often gruesome and troubling details of determining how someone died: Malnourished children with maggots in soiled diapers. Suspiciously violent deaths. Infants with severe head fractures. Shackled prisoners burned alive in prison vans. A suspected criminal's corpse incorrectly identified, only to have the man turn up alive later in a traffic stop.
In all, the panel is considering 20 such cases.
Harlan has given testimony or been otherwise involved in hundreds of criminal cases over the years. Of the cases before the panel, those involving possible criminal prosecutions have long since been resolved in the courts.
The first case had to do with a fax that Harlan sent to officials at a Bank of America branch in Madison. They needed confirmation of a customer's death so that they could open her safe deposit box.
Harlan had already had previous discussions with family members, but the bank needed more.
So he wrote ''M.L. is dead'' on a blank piece of paper and faxed it over.
The bank asked for something more definitive, so an admittedly frustrated Harlan pulled out some letterhead and wrote ''M.L. is dead. She is green and has maggots crawling on her'' and faxed that.
''I believe that this constitutes unprofessional behavior,'' panel member Yeiser said. ''I don't want to discuss it. My mind is made up.''
Administrative Law Judge Tom Stovall told her that the panel would need to explain its reasoning on the record. That set the tone for a long afternoon.
Twenty feet away, Harlan, Warlick and O'Connell listened silently while the panel dissected case after case. Occasionally, Stovall would advise them on how to proceed.
Each case was different. Barnes, Edmondson and Yeiser frequently agreed, but they had to hash out whether a case was an example of unprofessional conduct, dishonorable conduct, a pattern of negligence, malpractice or a combination.
Several cases involved Harlan's frequent diagnosis of sudden-infant death syndrome. In the one SIDS case discussed yesterday, the panel noted that a review of Harlan's 1997 autopsy found that the child actually died of acute cocaine intoxication.
That led to a homicide charge. During that trial, Harlan testified that the sample he drew was contaminated by a dirty needle, causing the cocaine to be found by those who later reviewed the case.
Either way, panel members concluded, Harlan's speculation was not professional. ''And that violates the standard of care,'' panel member Edmondson said.
In another child death, Harlan diagnosed blunt-force trauma as the cause of death. He found the manner of death to be accidental.
But questions about potential child abuse arose, and the body was exhumed.
A second autopsy found multiple rib fractures, broken arms and an intentional skull fracture.
In 1997, the child's father was found guilty of first-degree murder and sentenced to life in prison.
''I think it was incompetent,'' panel member Barnes said of Harlan's autopsy.
''I think you would have to rule out child abuse,'' said Edmondson.
Earlier, Warlick had told the panel that Harlan's operations were underfunded because the state did not cover his autopsy costs adequately. Full-body X-rays and extremely meticulous autopsies, while certainly desirable, were not always something Harlan could afford to do.
''He's in trouble if he does,'' said Warlick, ''and he's in trouble if he doesn't.''
The board found Harlan guilty of nine counts of unprofessional or dishonorable conduct, two counts of violating Tennessee's criminal statutes, three counts of making false statements or representations, one count of fraud or deceit practicing medicine, one count of making or signing certificates known to be false, and two counts of malpractice.
The panel's decision on whether to allow Harlan to continue to practice could have implications on a number of Tennessee counties that contract for his services.
Chief Deputy Mike Billing of Cannon County said he was surprised to learn of yesterday's findings. Harlan has been that county's medical examiner for several years.
''We have never had any problem at all in using Dr. Harlan,'' he said. ''We don't know what we'll do now, but I guess we don't have a choice except to use Dr. Levy if Dr. Harlan loses his license.''
Other counties that contract with Harlan include Wilson, Franklin and Maury.Leon Alligood contributed to this report. Rob Johnson can be reached at 664-2162 or email@example.com.