A Harris County judge on Monday dismissed the case against a doctor accused of stealing doses of the Moderna COVID-19 vaccine and administering them after hours.
Dr. Hasan Gokal, a former Harris County Public Health doctor, was fired earlier this month after allegedly swiping a vial of the vaccine and administering doses off site on Dec. 29, according to the Harris County District Attorney's Office.
But in an order issued Monday, Harris County Court-At-Law Judge Franklin Bynum threw out the case for lack of probable cause, and slammed the DA’s office for its “novel theory” that administering the vaccines amounted to theft under Texas law.
“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,” the order said. “The Court emphatically rejects this attempted imposition of the criminal law on the professional decisions of a physician.”
Read the judge’s order below.
According to a sworn affidavit that Judge Bynum said was “riddled with sloppiness and errors,” Gokal was working at a vaccination site in Humble when he took extra doses of the vaccine to administer off site.
Gokal was allegedly told that leftover doses would be administered to at-risk front-line workers, followed by a secondary waiting list to make sure the doses do not go to waste, according to the affidavit. But on Jan. 6, another HCPH employee reported Gokal after the doctor allegedly revealed his plan, according to the affidavit. He was later fired, and last week, was charged with theft by a public servant, a Class A misdemeanor that carries a penalty of up to one year in jail and a $4,000 fine.
However, in Gokal’s telling, the vaccines were set to go to waste, and he was following guidelines from the Centers for Disease Control and Prevention when he hastily reached out to qualified recipients.
On Friday, Gokal's lawyer Paul Doyle said doctors had just punctured a new vial of the vaccine as the day began to wind down, starting a six-hour shelf life for the doses inside. Gokal was afraid the leftover doses would expire or be thrown in the trash, Doyle said, and so he began a search for people who met the criteria for vaccination under the state's Phase 1 plan — front-line workers, people 65 and older, and those with underlying chronic health conditions.
He was eventually referred by friends and neighbors to people who qualified, most of whom were acquaintances, Doyle said. He administered the vaccine to at least eight of those people after hours, and with just 15 minutes remaining before the vaccine was set to hit its shelf life he used one last dose on his wife, who had pulmonary sarcoidosis, according to Doyle.
The patients were then entered into a state database on Dec. 30, Doyle said.
In a statement, Doyle said an apology from the county “will not be enough,” and that the doctor planned to file a wrongful termination lawsuit.
“The agency disparaged this good public servant's name and took away his employment without cause. More must be done by those responsible to make this right,” Doyle said. “We also sincerely hope this incident doesn't deter other frontline medical personnel from doing everything they can to make sure vaccines are not wasted.”
Harris County DA Kim Ogg’s office did not respond to a request for comment.