A Medical Mistake or Murder?

A tragic collision of rural poverty, limited hospitals and mountainous isolation has left a baby dead and the emergency room doctor who failed to recognize the child’s lethal condition facing trial this month for murder.

Long regarded as a blue-collar Lake Tahoe, this rural outpost reached only by winding, mountain roads is a budget vacation spot for those who want to water ski, fish and guzzle beer. Many year-round residents are poor, and among the poorest are the Indians who live in reservations scattered about these wooded hillsides. They depend on two tiny hospitals with limited resources.

On a cold Friday evening in February 1996, Rhoda Thomas walked into the emergency room of one of the hospitals carrying Cody Burrows, her 11-month-old son.

A husky, energetic baby with a shock of thick, black hair, Cody had been vomiting, and his mother was worried. The pair had come from the Pomo reservation on the outskirts of town.

Within three days, the baby would be dead. A prosecution witness would tell a grand jury he died of dehydration, “the way a child dies in a Third World country.”

Dr. Wolfgang Schug, the emergency room physician who treated him, would be charged with second-degree murder. And the doctor’s horrified colleagues would be left asking themselves: When do medical mistakes--even malpractice--become murder?

Deputy Atty. Gen. Vernon Pierson, who is prosecuting Schug, does not believe the doctor intended to harm the baby. But he contends that the doctor’s treatment of Cody was such “an extreme departure from the standard of care” that criminal charges are warranted.

“This is not a doctor making a mistake in the emergency room,” Pierson said. “It is a series of mistakes, over a series of several hours, culminating in an attempt to cover it up.”

The prosecution of Schug, a well-liked local doctor, has rocked the medical community here and beyond this remote Lake County town, raising questions about how to punish a physician for making a judgment, or series of judgments, that cost another human being’s life.

Schug, who says he tried his best to help the baby, is one of three physicians in California being prosecuted on charges of murdering patients who died from alleged medical negligence. Such prosecutions remain rare. Schug is believed to be the first prosecuted by the state rather than a county prosecutor.

The American Medical Assn. estimates that about 10 doctors nationwide have been criminally charged for negligence in the past few years, a trend the organization strongly opposes. A decade ago, the AMA said, it was unheard of to press criminal negligence charges.

Medicine is not an exact science, and mistakes by doctors are not uncommon, said Dr. Jack Lewin, executive director of the California Medical Assn.

“No doctor would want to practice medicine if this became routine,” he said.

Schug’s colleagues contribute money to his defense and show up in court to support him. They do not dispute that he may have made mistakes in caring for the baby, that he may have grossly underestimated his patient’s illness.

But they are astonished that the case will be tried criminally rather than confined to a state medical board probe or to the malpractice lawsuit filed by the baby’s family.

“We are only human,” said Cathy Burkdoll, an emergency room nurse who worked with Schug. “We do make judgments, mistakes. We are not God.”

Career in Medicine a Longtime Dream

Schug, 45, seemed destined for a medical career. Born in Germany, he moved to California at 14 with his mother, a medical transcriptionist, and brother. At 15, he started working in a medical lab in the evenings and on weekends.

He went to high school in Anaheim and graduated with honors with a biology degree from UC Irvine. Public medical schools in California--the only ones he could afford--rejected his applications three times, assigning him to the alternate list.

“I always came close, but no cigar,” said Schug, who has thick, graying hair parted to the side and a scrubbed-looking complexion. “It was frustrating.”

After graduation, he worked at a laboratory on campus and then as a charter skipper and sailing instructor. He applied to a medical school in Munich, Germany and graduated in 1983.

As he was winding up his residency in Wyoming, the soft-spoken physician went to San Francisco for a conference and stayed to look for work.

On a map, he spied a hospital near a lake north of Napa and decided to visit.

“A country boy at heart,” he liked the clean air, the woods and cheap land prices. Although he was certified in family, not emergency, medicine, doctors are not required to practice in their specialty, and Schug preferred emergency work to the bureaucracy of a private practice.

He landed a job in 1987 in the emergency room of Redbud Community Hospital, a one-story, 40-bed, blue-trimmed building on a bluff above town.

Three Trips to Emergency Room

Thomas, 25, a Pomo Indian, took Cody to Redbud because it was the nearest hospital. Thomas and her companion of five years, David Burrows, live in the Elem Indian Colony in a rundown gray house. Cody was their only child, “a gift,” his grandmother said.

Schug examined Cody on the evening of Feb. 23, 1996, diagnosed an ear infection and prescribed the antibiotic amoxicillin, according to a review of medical records and more than 900 pages of transcripts from the Lake County Grand Jury.

Cody initially improved, and his parents even took him to watch a cousin play basketball the next day, a Saturday. But later that night, he grew sicker, prompting his parents to return to the emergency room before dawn on Sunday.

A physician on duty performed a blood test, diagnosed a gastrointestinal ailment, advised the parents to give him Pedialyte, an electrolyte solution to prevent dehydration, and told them to return if the baby didn’t improve. All sides agreed that the blood test results were not alarming.

Shortly before noon, the exhausted family rushed back to the emergency room. Thomas told the grand jury she was particularly troubled by her son’s eyes. They appeared to be “sinking in.”

For almost three days, Cody had been vomiting and had diarrhea and could not hold down food. Schug again was on duty.

Cody had a high fever, and Schug ordered a tepid bath and a chest X-ray. The baby also was vomiting something that looked like dried coffee grounds--blood, according to medical records and the grand jury transcripts.

“It was clear that the child was sick,” Schug said in a recent interview. “But I had no idea what was making him sick.”

The emergency room was busy. Schug said he probably saw 27 patients during the 8 1/2 hours Cody was there.

While in the bath, Cody put his mouth under the running faucet to drink the water. Schug recalled that a nurse called him over to see how cute the splashing child looked. Schug would write in the records that the baby had been “playful” in the bath.

A prosecution witness, a doctor, later would disagree: The dehydrated baby was instinctively trying to save his own life, the expert would say.

Delbert Thomas, Cody’s grandfather, told Schug that his grandson needed “some kind of intravenous or something.”

Schug told him to look at Cody’s tongue. It was wet, so he wasn’t dehydrated, Schug said.

Five hours after the baby arrived, Schug and the nurses began looking for a vein to draw blood and insert an IV, medical records show.

“Everybody and his brother looked at him to try and start an IV,” Michael Hegele, a hospital laboratory technician, testified.

Finally Schug obtained blood, but no one could get an IV into Cody, witnesses said. A prosecution expert later testified that Cody’s veins had probably collapsed due to dehydration.

Schug briefly consulted by phone with a Redbud pediatrician, who later said he had no idea how ill the baby was.

Cody by now appeared “totally lethargic, not conscious very much . . . zonked,” recalled Hegele. “I mean his head was rolling. . . . “

The blood test revealed three measurements that the technician called “panic” levels, a huge, unexplained deterioration from 14 hours earlier. A physician who later examined the records said Cody’s kidneys had shut down.

“The lab values were way out of line and were hard to believe,” Schug recalled, noting that some textbooks say such changes cannot occur so rapidly.

He said he knew the baby needed hospitalization and called a pediatrician at Santa Rosa Community Hospital, 55 miles away. Redbud has no pediatric ward.

How does the baby look? the pediatrician asked. He can sit up and drink from a bottle, the pediatrician said Schug told him. The baby had just drunk three ounces in the emergency room.

Then there must be something wrong with your lab, the pediatrician suggested, according to the grand jury transcripts. They decided Cody should go to Santa Rosa by car.

Schug did not ask for an ambulance or helicopter because he said he thought a private car would be fastest. During the prior three months, transfers had been delayed an average of 75 minutes each in waiting for ambulances, and helicopters were used only in extreme cases, Schug said.

“He certainly didn’t look critical or lethargic in the medical sense,” said Schug, “or like he was going downhill so rapidly that he didn’t even have an hour or two.’

Cody still had a fever and was breathing rapidly, medical records show. The emergency room nurse would testify she so feared for Cody that she considered telling the parents to lie to Schug and claim they had no car.

On the transfer form the nurse described Cody as lethargic and “mottled to the extremities,” evidence of extreme dehydration. “M.D. aware,” she added.

Schug handed the parents a map and a bottle of Pedialyte for their journey and watched Thomas carry Cody in her arms into the night.

David Burrows, 27, drove fast over the mountain roads--but not fast enough to save his son. The drive took an hour and 20 minutes.

As Thomas handed Cody to a nurse, she suddenly realized her baby was not breathing. She became hysterical.

Doctors at two hospitals tried to save the boy, but his condition had deteriorated beyond all hope. Cody was taken off life support the following day.

A coroner attributed the cause of death to “anoxic encephalopathy.” The brain had succumbed because of lack of oxygen, “due to sepsis,” a massive infection and severe dehydration “due to otitis media,” the ear infection.

Dr. Kathryn Albin, a pediatrician and prosecution expert witness, told the grand jury that doctors at Redbud waited far too long to give Cody an IV. The baby died, she said, because of “dehydration, lack of fluid . . . “

“You know, we live in an urban society and we’re not used to the idea that children who have gastroenteritis die, but in Third World countries, without medical treatment, children die all the time from diarrhea and dehydration . . . “ she testified.

Prosecution Claims Doctor Panicked

His 24-hour shift over, Schug went home and prepared a four-page addendum to Cody’s record, declaring repeatedly that Cody had not been lethargic. He said he prepared such addenda routinely after his shifts.

The prosecution contends this was an attempt to cover up errors, and a state Department of Health Services investigator expressed similar suspicions.

Lawyers on both sides said nothing was deleted from the records, however. The additions were noted as such, although a nurse who made two of the inserts failed to initial or date them.

Eighteen months later, Schug received a call from his wife while he was in the emergency room. Investigators had been at the house and were en route to the hospital.

Schug, the only physician on duty, opened a back door of the emergency room and let them in.

A nurse listening in an adjoining room said she felt she “was in a dream” when she overheard an officer read Schug his rights and tell him the charge: A grand jury had indicted him for second-degree murder. Schug also was charged with involuntary manslaughter and child endangerment.

“I can’t leave here,” the stunned doctor told the officers. “I have to take care of my patients.”

Still clad in his blue scrubs, the physician was handcuffed and placed in a patrol car.

He is charged criminally under the “implied malice” murder theory, which means the defendant knew the risks, appreciated the danger and acted anyway.

A more typical “implied malice” murder charge would involve a death resulting from someone blindly firing bullets into the air. Intent to kill is not necessary for a conviction.

The prosecution suspects Schug finally realized he had horribly failed the child, and “in a state of panic,” transferred him without stabilizing him first. Prosecutor Pierson said it was “medically impossible” for Cody to have been alert when he left the hospital.

“We’re not saying he intended harm, but he didn’t care either,” Pierson said. “He was trying to protect his reputation and protect himself. . . . We don’t have to prove it was a rational decision.”

If Schug had inserted fluid into the bone marrow or summoned a surgeon to insert a tube into the baby’s ankle, Cody could have been saved, even that late in the day, the prosecutor maintains.

But Schug said those were resuscitation measures, and he did not believe Cody was in dire shape.

In contrast to the picture painted by the prosecution, nurses and doctors who have worked with Schug describe him as calm and methodical, and thorough to the point that nurses become irritated because they want to move patients through more quickly.

Dr. Marc Shapiro, an internist at Redbud, said Schug “did not just want to get by.” He said Schug would call him from the emergency room to discuss cases and seek advice.

“He was just a regular, good doc, one of the guys,” Shapiro said.

Schug has no record of discipline but settled a malpractice lawsuit in 1995 for $100,000 without conceding wrongdoing. The suit stemmed from the 1992 death of an intoxicated man who was bitten on the lip by a rattlesnake and went into shock 15 minutes after his arrival in the emergency room.

The man’s family alleged, among other things, that the hospital had too little antivenom serum. Schug said he settled after his malpractice insurer went bankrupt, with a backup insurance fund leaving him personally liable for any judgment over $100,000.

One of the other doctors charged with murder in California is an unlicensed cosmetic surgeon who performed an operation in a private home. The other allegedly botched an abortion and caused his patient to bleed to death.

Prosecutions of doctors for medical errors alarm the American Medical Assn., which adopted a policy in 1995 condemning a recent “trend” in criminalizing medical negligence.

Attorney James Costello, a former San Francisco prosecutor who is defending Schug, said he lies awake at night trying to figure out what triggered the criminal probe against Schug.

The attorney general won’t say, but the civil lawyer representing Cody’s family also lodged a complaint with the state Department of Health Services, a process that could have alerted prosecutors.

“When Wolf got up that morning, he put on his pants and his shoes and went off to save lives,” Costello said. “To have this kind of thing happen to someone who has literally dedicated his life to helping people is distressing beyond belief.”

‘Ice Cold Stares’ From Boy’s Relatives

Schug lives with his wife, Cheryl, and her 15-year-old son in a Tudor-style home on five acres with horses and goats in Lakeport, about 30 minutes from Clearlake.

Dressed in black jeans and a short-sleeved plaid shirt, Schug sat stiffly on a couch, his hands clasped on his lap, during a recent interview in his living room.

“The thought of malpractice . . . you can live with it,” he said. “But the thought of going to jail for 15 years to life: That is very, very scary.”

Death in the emergency room is not uncommon. But Schug said the passing of a child is particularly hard on staff, especially if the cause is obscure. “We tried,” he said.

His trial is scheduled for Tuesday in Lakeport. Schug said he expects to be exonerated and wants to get it over as soon as possible. Another battle is looming with the state medical board, which wants to revoke Schug’s license.

He has not practiced medicine since his arrest, working on his case and working his land. He said he has gone into debt to pay his lawyers and fears going bankrupt. He used the equity in his home for bail.

The hardest times for Schug are court days, when he is struck by how little control he has over his future and feels “ice cold stares” from Cody’s relatives.

Among the physicians supporting him is Dr. Mark Freeman, chief of staff at Redbud.

“If Wolf did make some errors, it should be handled in a civil arena,” he said. “There is universal outrage and dismay at the way he is being treated . . . “

Asked about the reservation where Cody lived, Freeman frowned.

“It’s just a slum,” Freeman said. “It’s not a nice place.”

Some Happy Memories in the Face of Grief

The Elem Indian Colony is a world apart from where Schug lives. Situated on the scenic shores of Clear Lake, the reservation is scarred by burned-out buildings from a riot a few years ago.

The colony is less prosperous than the nearby town of Clearlake, which has a per capita income of $11,692. Beat-up mobile homes dot the landscape, and dilapidated houses with drawn shades line the streets. Dogs roam loose.

Thomas, Cody’s mother, greeted a visitor shyly. Unemployed at the time of his death, she works as a medical receptionist at the Indian Health Service.

“Cody was wild,” she said, beaming at the memory of her son. She recalled that he had a funny expression that always made her laugh, even when she was trying to discipline him.

He died a month before his first birthday. His parents already had bought him gifts: little trucks and a black plastic pickup he could sit in and drive with his feet.

They decided to have his birthday party anyway, and Thomas made spaghetti and cake and invited the neighbor children. “He had a nice birthday,” she said. Other children received his toys.

“He is still with us, though,” she said, trying to steady her voice. “And I have faith I am going to see him again.”

Other tribal members and her family accompany Thomas and Burrows to court. To Betty Thomas, the baby’s grandmother, the nurses who sit with Schug look “snobby,” and he wears a “smuggy smile.”

“Sitting there in court and just watching them, it irritates me,” she said. “I think he should be in prison, I really do.”

Cody’s body was handled according to tribal customs. A dance ceremony was held in the reservation’s roundhouse, and tribesmen adorned the boy’s body with a headdress, a dancing belt, feathers and a necklace.

He was buried on the reservation with a headstone that bears his photograph: He is wide-eyed, surrounded by Christmas presents and trying to put a ribbon in his mouth.

Children come to visit the grave and leave little presents: a pumpkin, plastic figurines, some coins. Standing over Cody’s grave, Betty Thomas said she and her husband are haunted by feelings that they should have intervened more strongly when Cody was in the emergency room.

“Why didn’t we just pick him up ourselves and take him out of there?” she asked. “But you trust doctors.”