A Harris County judge on Monday dismissed a theft charge against a doctor accused of stealing nine doses of the Moderna COVID-19 vaccine he said would otherwise go to waste.
County Court-At-Law Judge Franklin Bynum criticized Harris County District Attorney Kim Ogg for attempting to prosecute Dr. Hasan Gokal and said the single misdemeanor charge of theft by a public servant lacked probable cause.
“In the number of words usually taken to describe an allegation of retail shoplifting, the State attempts, for the first time, to criminalize a doctor’s documented administration of vaccine doses during a public health emergency,” Bynum wrote in his order, adding the prosecutor’s affidavit was “riddled with sloppiness and errors.”
Ogg spokesman Dane Schiller said prosecutors will still pursue the case.
“Judge Bynum’s gratuitous observations call into question his fairness and impartiality; we anticipate presenting all the evidence in the matter to a grand jury,” Schiller said.
Gokal, who worked for Harris County Public Health, was supervising a vaccine distribution site on Dec. 29, when an opened vial of Moderna doses was left over at the end of the day, around 6:30 p.m. Since the doses would expire within six hours, Gokal through his attorney said that he offered the vaccine to health workers and police on site, but they declined or already had been inoculated.
Gokal said he called a supervisor at the health department, who knew of no available patients. He then used contacts in his cellphone and administered about nine doses off-site to eligible recipients: elderly residents or those with certain medical conditions. Unable to find any other recipient, Gokal said he gave the final dose to his chronically ill wife after 11 p.m.
Gokal said he entered all of the recipients into the state’s database the following day, as required. He was fired Jan. 8 when Harris County Public Health leaders determined he had violated policy by taking doses away from a vaccination site.
In a news release last week, Ogg accused Gokal of stealing doses to give to his family and friends. Gokal’s lawyer, Paul Doyle, alleged the health department fired the doctor to deflect attention away from a mismanaged vaccine rollout.
The government has an interest in ensuring doctors follow procedures in distributing vaccines, said Valerie Gutmann Koch of the University of Chicago’s MacLean Center for Clinical Medical Ethics. Those rules, however, must be clear and transparent.
“It’s very difficult not to feel sympathetic to the physician, and all the various steps he took in order to ensure the vaccine got into as many arms as possible,” Koch said.
The health department has yet to respond to a Chronicle request for its vaccine distribution protocols. A spokeswoman did not respond to a request Monday for comment on the dismissal of the case.
Doyle said Gokal is preparing to sue Harris County for wrongful termination.
“An apology by Harris County Public Health and the Harris County District Attorney’s Office toward Dr. Gokal and his family will not be enough,” Doyle said. “The agency disparaged this good public servant’s name and took away his employment without cause.”
Gokal, an emergency room physician, began working for Harris County last April.