Los Angeles Times

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Los Angeles Times; Part A; Page 1; Column 2; National Desk
May 19, 1992, Tuesday, Home Edition

   Gov. Bill Clinton, the presumptive Democratic presidential nominee, refused for several years to dismiss a state medical examiner whose controversial decrees included a ruling that helped Clinton's mother, a nurse-anesthetist, avoid scrutiny in the death of a patient, according to Arkansas officials and state records.

The medical examiner, Dr. Fahmy Malak, "was sort of protected by the governor and the (state crime laboratory) board," state Rep. Bob Fairchild, a Democrat from Fayetteville, told The Times. Fairchild is the author of unsuccessful legislation to reform the laboratory board, which has authority over the state medical examiner. Clinton appoints the board members.

Clinton, Malak and Clinton's mother, Virginia Dwire Kelley, 68, deny any connection between Malak's longevity in his job and his ruling involving Kelley. Malak, through his attorney, says he did not know that one of his findings had benefited Kelley until years after he issued the ruling.

The governor and his board declined to fire Malak despite more than four years of public criticism of Malak's work. The record shows that Malak testified erroneously in criminal cases, that his rulings were reversed by juries and that outside pathologists challenged his findings. In one instance, he misread a medical chart and wrongly accused a deputy county coroner of killing someone. In another, he based court testimony on tissue samples that DNA tests later indicated had been mixed up with other tissue samples.

Three weeks before Clinton announced his presidential candidacy last Oct. 3, he pushed Malak, who was appointed during his first gubernatorial term, to resign. But then the Clinton Administration found Malak another well-paying job in state government. It prompted renewed questions about a conflict of interest growing out of Malak's ruling in 1981 that involved Clinton's mother. That ruling, which came between terms when Clinton was out of office, helped Clinton's mother avoid legal scrutiny in one patient's death -- while she was defending herself in a medical malpractice lawsuit stemming from the death of another patient.

The conflict-of-interest questions have been raised by a county coroner, by Malak critics and by a writer for the Arkansas Gazette. The writer, Max Brantley, a columnist for the Gazette at the time and now editor of the weekly Arkansas Times, said about Malak's resignation and his new position: "We may never know why Malak enjoyed such strong support." He added that "critics will note, accurately, that Malak has made an autopsy finding helpful to Clinton's mother."

Clinton, in a written statement to The Times, responded:

"There has never been any connection between my mother's professional experiences and actions I have taken or not taken as governor of Arkansas, and I resent any implications otherwise. . . . In fact it was several years after the incident that I became aware, through the media, that the ruling made by Dr. Malak in this case was controversial. I do not have the professional knowledge necessary to judge the competency of a forensic pathologist. For several years prior to Dr. Malak's resignation as medical examiner, I requested that reviews of his performance be conducted and that appropriate action be taken by the Crime Lab Board and/or the Medical Examiner Commission. It was their decision to retain him."

Betsey Wright, a spokeswoman for Clinton's presidential campaign, said Clinton was not alone in supporting Malak. For much of his tenure, Malak was backed by influential officials in the state law enforcement community as well as by some leaders of the state Legislature. Wright said that Malak had a small staff and was overworked.

"With his workload he was bound to make some mistakes," Wright said. "The governor never said that no mistakes were made."

The case involving Bill Clinton's mother was hardly the only Malak ruling to come under serious question. Over the years, his rulings and his testimony became controversial in more than 20 additional deaths. When asked about the controversy, Herbert H. Buzbee, executive secretary-treasurer of the International Assn. of Coroners and Medical Examiners, called it "unusual, to a certain extent."

He suggested that Arkansas join the majority of states that empower one person to rule on the cause of death and another person or a coroner's jury to decide the "manner of death." Buzbee declared: "It does not work well to have only one person doing everything. That's giving too much power to just one person."

Malak's controversial rulings include:

* The Allbright case. On June 28, 1985, Raymond P. Allbright, 50, of Mountain Home was found in his yard dead of gunshot wounds. Allbright had been arrested the night before on charges of theft. Malak ruled his death a suicide.

But Allbright had been shot five times; all five shots were in the chest. The weapon was a high-powered pistol. "We think," says Maggie Hall, Allbright's ex-wife, "he was murdered."

Malak's attorney, Larry Carpenter, says the pistol was a semiautomatic capable of rapid fire and that the pattern of wounds "suggested the shots were fired in rapid succession."

* The Ives-Henry case. On Aug. 23, 1987, Kevin Ives, 17, and Don Henry, 16, were run over by a train near the town of Alexander. They had been lying squarely on the tracks. Malak ruled that they had been smoking marijuana and dozed off and had slept as the onrushing freight train bore down.

But a second autopsy indicated that Henry had been stabbed in the back, that Ives had been struck on the skull and that both boys probably had been placed on the tracks unconscious, maybe already dead.

A grand jury overruled Malak: The boys had been murdered.

In response, Carpenter, Malak's attorney, says: "Dr. Malak has said he doesn't believe anybody laid a finger on those boys."

* The Malcolm case. On June 14, 1989, Andrew Smith, 59, who police said had shot himself, was declared brain-dead at University Hospital in Little Rock. Life support was withdrawn. A week later, Malak told officers that the order to end life support was given by a deputy county coroner, Mark Malcolm, who had not consulted Smith's family -- and that he would have to rule that "Malcolm killed him."

Police investigating Malak's accusation discovered that the attending physician had used a medical symbol on Smith's chart to show that life support was ended "after" the family had been consulted. The director of the state Health Department said Malak apparently had mistaken the symbol to mean "without" family consultation and apparently had misread the chart to mean that permission to end life support had come from Malcolm.

Carpenter says that Malak "apologized for his mistake."

* The Stephens case. On Aug. 18, 1990, Gregory Stephens, 25, of Hot Springs, was fatally shot while he was on the front porch of his home. Prosecutor Paul R. Bosson brought Ernest D. Lemons, 21, a parolee, to trial on a murder charge.

Witnesses said that Stephens had been shot from the street, 40 feet away.

When Malak took the stand, he said that Stephens had been shot point-blank. Deputy Prosecutor Bruce MacPhee was stunned. He knew his case was doomed -- and he asked that charges be dismissed.

Prosecutor Bosson, angry at being blindsided, sought an evaluation from three outside pathologists. Each said that Stephens hadnotbeen shot point-blank, and one said it seemed that Malak had studied the wrong tissue samples.

A DNA analysis confirmed that either blood samples or the tissue samples that Malak used had come from another corpse.

Carpenter says that Malak was "shocked" by the DNA results.

In the face of mounting evidence that Malak's performance was questionable, Clinton persisted in ignoring or deflecting criticism aimed at Malak and the job he was doing.

Interviews by The Times with Malak critics and state officials, as well as a review of Clinton's public statements, show that:

* After a grand jury overruled Malak in the Ives-Henry case, Clinton hired two out-of-state pathologists to review Malak's performance. They gave him high marks and said he should get a raise.

But the visiting pathologists were paid $20,000 from Clinton's discretionary fund. And one said at the time that he and his colleague agreed during meetings with state officials, including Betsey Wright, Clinton's chief of staff at the time, not to conduct a systematic review of Malak's cases.

* After Malak falsely accused Malcolm, the deputy county coroner, of killing the man who was taken off life support, Steve Nawojczyk, the Pulaski County coroner and Malcolm's boss, complained to Clinton. Clinton suggested only that Malak apologize.

Two months later, Clinton sent a proposal to the Legislature to raise Malak's salary by 41.5% -- to $117,875.

* At hearings on the proposed pay raise, Linda Ives, mother of Kevin Ives, and others who felt wronged by Malak's decisions began exchanging phone numbers. They formed an organization, Victims of Malak's Incredible Testimony, or VOMIT. They began collecting signatures on petitions seeking Malak's ouster. For three years, VOMIT says, Clinton's staff has refused to let it present the petitions to the governor.

Clinton's continued inaction caused suspicions about his motives.

There is no hard evidence, but "there has been a lot of speculation" that Malak's ruling involving Clinton's mother was a factor, declares Nawojczyk, the Pulaski County coroner.

That ruling grew out of an incident that began at 4:15 a.m. on June 27, 1981, in Hot Springs. Billy Ray Washington, 22, who is black, and his wife were walking home from a late-night bar and restaurant when a car full of young whites from rural Dierks, Ark., rolled past.

Someone in the car shouted racial epithets at the black couple.

Then, Washington says, someone in the car threw a beer can at him. In response, he says, he threw a chunk of concrete.

The car windows were open. The concrete hurtled through and slammed into the face of Susan Deer, a 17-year-old single mother, who was riding in the back seat next to a stack of beer cans, police say. Her friends took her to Ouachita Memorial Hospital, where she was found to be bleeding extensively -- but doctors did not think she needed immediate surgery.

Hospital records show that she talked with doctors and nurses and asked if her father had arrived. After several hours of waiting, she was taken into an operating room at 9 a.m.

She underwent surgery, described as non-critical, to repair teeth, her nose and her face, according to hospital records and doctors in attendance. During the early portion of the surgery, she was "stable, vital signs were excellent, blood pressure stable, and there (were) no abnormalities of cardiac rhythm," according to notes by Dr. William Schulte, chief physician in the operating room.

Susan Deer's parents, who had arrived from Dierks, were told repeatedly by nurses entering and leaving the operating room that "Susie was doing fine and would be out of surgery in a little while," according to the family's attorney, William Hodge of De Queen, Ark. "Then the nurses stopped coming out, and the next thing they knew, they were told she was dead."

It was not until three hours into the surgery that Deer's condition grew critical, medical records show. Clinton's mother, Virginia Dwire Kelley, was her nurse-anesthetist. The records show that Deer's doctors asked Kelley to transfer oxygen tubes from her nose to her throat so they could proceed with nose surgery, and that Kelley had difficulty with the transfer.

After she had taken the tubes out of Deer's nose, she was not able to insert them into her throat, the records show. The records show that Dr. James Griffin, an ear, nose and throat specialist, took over and inserted them for her.

The records do not show how long Deer was without oxygen, but "immediately following the reintubation of the patient orally, she developed bradycardia," Schulte wrote, describing a slowed heartbeat, in his notes, "and within a matter of seconds (she) went into complete cardiac arrest." Schulte has since retired and could not be reached for further comment.

Griffin said in an interview with The Times: "Virginia was not able to do it (the reintubation), so I did it. She (Deer) had a terrible facial injury, she was bleeding from the nose and throat. It was a difficult case -- and Virginia couldn't get the intubation tube in."

Griffin and Schulte tried for an hour to revive Deer. But shortly after 1 p.m., hospital records show, she was pronounced dead.

Malak performed an autopsy on Deer. He did not question any of the medical care she received. Malak said her death was caused by blunt trauma and laid it at the hands of the person who threw the chunk of concrete that hit her.

He called it a homicide.

Based on the autopsy ruling, Washington was charged with negligent homicide. He was arrested by Hot Springs police on July 9, 1981. He told police he had thrown the chunk of concrete. He pleaded no contest to a charge of negligent homicide and spent 2 1/2 months in jail.

Dr. Griffin says Malak should have considered the possibility that Deer died because of inadequate care provided during non-critical surgery performed hours after the concrete-throwing incident.

"Then, as now, there are questions about Malak's ruling of homicide," Griffin says. He said Malak should have recognized, given the postoperative reports both he and Schulte submitted, which were turned over to the Garland County prosecutor's office, that questions about the matter existed within the hospital.

Schulte's postoperative report, for instance, concluded: "The cause of the initial cardiac arrest is not known at this time."

Little more than a month after Deer's death, Kelley's hospital privileges as a nurse-anesthetist were revoked, according to court records in a lawsuit she subsequently filed against the hospital. A year after the lawsuit was filed, Kelley dropped the action. She and hospital officials agreed to pay their own legal costs.

Her privileges were revoked, Griffin says, because of concern about the possibility of legal action alleging malpractice. At the time of Deer's death, Kelley was being sued in another case involving the death of another young mother, also from a lack of oxygen, following minor elective surgery.

In the lawsuit, filed in Garland County Circuit Court in Hot Springs in 1980 and amended in 1981 to include Kelley, the family of Laura Lee Slayton charged that her 1978 death at the same hospital, Ouachita Memorial, was caused by Kelley's negligence. The Slayton suit also accused the surgeon of failing to properly supervise her work.

At the time of Deer's death, the Slayton family's lawyers were in the process of seeking testimony under subpoena from physicians and nurses at the hospital. A month later, the lawyers took a deposition from Kelley. If Malak had raised questions about Kelley in his autopsy in the Deer case, it might have complicated her already existing legal problems.

The Slayton case was finally settled in December, 1983, court records show. In the settlement, the Gazette reported, the Slayton family received $90,000 in damages.

It was not until the spring of 1991, when Malak gave faulty testimony in the Stephens case, that Clinton began to take action against Malak.

Shortly after that testimony, Jim Clark, Clinton's director of the Arkansas State Crime Laboratory Board, which had been given jurisdiction over Malak, began urging Malak privately to start looking for another job.

Soon Clinton himself signaled a change.

He told the Associated Press that he had said to Clark: "If the credibility issue keeps coming up, maybe it's time we call it quits."

Clinton's final break with Malak came on the night of Sept. 4, during a call-in show on the Arkansas Education Television network.

The governor said that Malak "probably" should quit.

Carpenter, representing Malak, insisted publicly that his client had no intention of resigning. In an after-hours meeting at the Capitol with Field Wasson, the governor's chief legal counsel, Carpenter was prepared to defend Malak's performance. But it became clear to Carpenter that the Clinton Administration had no interest in rehashing cases.

It was now just a month before Clinton would announce that he was running for the Democratic presidential nomination. And Clinton's statements indicated that he wanted Malak out.

Carpenter threatened to sue if Malak were fired. He suggested that perhaps another position could be found for his client.

"I looked into it and told him about (a) job at the Health Department," Wasson recalled. And Dr. Joycelyn Elders, director of the department, hired Malak within days as a $70,000-a-year consultant on sexually transmitted diseases.

But if Malak -- or Clinton -- thought that the resignation would end the controversy, they were mistaken.

On Malak's first day on his new job, 11 members of VOMIT showed up at the Health Department to protest. Among the homemade placards they carried was one that said:

"Clinton for President, Malak for Surgeon General?"

Special correspondent Michael J. Goodman contributed to this story.

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