New legal questions in case involving former Cleveland Clinic surgeon accused of rape
Jayne O'Donnell
The grand jury that declined to indict a former Cleveland Clinic surgeon accused of anal rape was given the results of a polygraph the doctor passed, which is so rare that it could justify releasing the proceeding's transcripts, according to Cuyahoga County Judge Michael Donnelly.
The Ohio Supreme Court adopted a new rule to promote transparency where transcripts can be obtained when the public's interest to know outweighs grand jury secrecy. Donnelly says he's never heard of polygraph evidence being introduced by a defendant in a grand jury proceeding in his 25 years in the legal profession.
Judges in this county, which includes Cleveland, preside over grand juries on a rotating basis.
"The science behind polygraphs is suspect," says Donnelly. "That’s why it’s not admissible in court."
In very rare cases, parties will agree to allow such evidence at trial, but he says he has never heard of it being presented by a defendant in a grand jury proceeding, he says.
The surgeon, Ryan Williams, was put on paid administrative leave by Ohio State University Wexner Medical Center in December after USA TODAY asked about the rape allegations. He left Cleveland Clinic last July after his contract wasn't renewed for reasons unrelated to the accusations, according to Cleveland Clinic spokeswoman Eileen Sheil.
Williams told USA TODAY he "vehemently" denied the allegations.
While the proceedings of grand juries are secret, what happens in them and whether physicians are indicted has great influence over medical boards' decisions on whether to sanction or even investigate doctors. The Williams' grand jury is particularly important as it influenced the favorable treatment he got from his employer — one of the highest-rated hospitals in the country — from Ohio's medical board and from subsequent prosecutors. His medical license was blemish-free for almost a decade until he moved to Ohio State last summer.
Along with being possibly "unprecedented," Cleveland criminal defense and civil rights attorney Terry Gilbert says the grand jury's consideration of Williams' polygraph results smacks of special treatment.
"That's not offered to the common person under investigation in a grand jury indictment," says Gilbert, who has been a lawyer for 44 years. "If they really think a polygraph is credible information that could shed light on whether or not this event happened, then it should be offered to everyone, including people who are indigent."
Donnelly agrees: "It goes to a public confidence issue. Who is permitted to do this and who isn’t?"
Gilbert, who often represents victims of police shootings, says police in Cleveland "get extra attention and favors unlike regular shooting or homicide cases." That's also true of Ohio's biggest employer, he says.
"No one wants to be on (Cleveland Clinic's) bad side, including prosecutors and politicians," says Gilbert. "There’s a certain deference afforded those associated with the clinic."
Cleveland attorney and former prosecutor Rob Glickman, however, says that while he agrees the submission of polygraph evidence to grand juries is "very unusual," he believes that's "only in Cuyahoga County."
"There's nothing wrong with results being presented at grand jury," says Glickman, who says his family's name is on the urology department but he does sue the hospital occasionally.
According to Ohio rules governing its medical board, if a doctor is found guilty of a felony, a misdemeanor in his or her work or a misdemeanor of "moral turpitude," it's grounds for discipline by the Ohio medical board.
"If the courts find someone guilty, then we can bring an action based on that conviction," says medical board spokeswoman Tessie Pollock. "If the courts have not gone forward with a conviction, law enforcement may or may not share their evidence with us."
There's no statute requiring them to do so in Ohio, she says.
After the grand jury declined to indict Williams, the alleged victim filed a civil suit against the doctor that was settled confidentially. The case was expunged, so it's as if it never existed, although USA TODAY obtained a copy of the police report detailing the alleged rape.
Less than a year after the first alleged rape, Kristin Fehr says she experienced a near-identical assault. Unlike the first woman, who was given only a local anesthetic, Fehr says she was unexpectedly pushed to take pills right before her procedure that she believes were sedatives. That led her to have piecemeal and long-delayed memories of the alleged assault, which she wasn't able to reconstruct entirely for six years.
Cleveland Clinic chose not to discipline the surgeon beyond the chaperone he was required to have with female patients during the first investigation.
"I got a pretty clear indication, they (the medical board) were not doing anything until there was a guilty verdict in place," says Fehr. Instead, prosecutors "were the ones preventing the guilty verdict from being possible."
About a dozen other former female patients of Williams’ have reached out to Cleveland attorney Brian Eisen, and he says some have contacted the Ohio Medical Board, which is investigating Williams. Medical boards can and do often investigate doctors for rape allegations without criminal charges, but in Williams' case, neither the Cleveland Clinic nor the medical board reprimanded Williams once the grand jury declined to indict him.
More:
Ohio medical board investigating former Cleveland Clinic surgeon over rape allegations
Patients sue Florida doc accused of sexual assault during colonoscopies
Timothy McGinty, the chief prosecutor when Williams was being investigated, lost re-election after he came under fire for his oversight of the grand jury considering charges against the Cleveland police officer who killed 12-year-old Tamir Rice in 2014. McGinty, now retired, declined to comment.
Sheil says Williams hired his own lawyer for the criminal investigation and that Cleveland Clinic was not involved with the polygraph. The attorney did not return calls seeking comment.
The burden of proof in a criminal case is "beyond a reasonable doubt," which is the highest level required. In a civil case, such as medical malpractice, it's "preponderance of the evidence." In states including California, the burden of proof in a medical board disciplinary matter is "clear and convincing evidence," which lies somewhere between that required in civil and criminal cases, says attorney Julianne Fellmeth, who heads the Center for Public Interest Law at the University of San Diego.
In August 2016, McGinty reviewed Fehr's police report, along with the police report in the earlier case, and declined to send the cases together to a new grand jury. Westlake, Ohio, Detective Patricia Weisbarth wrote in Fehr's report that prosecutors told her the cases would be stronger presented together to a grand jury but that a judge would require them to be separated. That's far from certain, however, Donnelly says.
Ohio's medical board is allowed but not required to share information it receives during investigations with law enforcement agencies, says Pollock. Even when the medical board isn't required to report possible crimes, however, she says it does so.
Have a tip about a doctor or hospital? Email jodonnell@usatoday.com