Tony Protopappas was a dentist and oral surgeon in Costa Mesa, in Orange County, California. Between September 1982 and February 1983, three of his patients died after receiving general anesthesia at his clinic: Kim Andreassen, a young woman with serious chronic illness; Patricia Craven, a 13-year-old girl; and Cathryn Jones, 31. A jury found him guilty of the second degree murder of all three. Prosecutors did not say he wanted any of them dead. Their case was that he understood how dangerous his methods were and kept using them anyway, which California law treats as implied malice.
In 1988 the California Court of Appeal upheld the three convictions in a published opinion that drew the line between gross negligence and murder. Protopappas served 15 years to life. After more than 25 years in prison, his release turned into a three-way contest between the state parole board, the governor and the courts, and he was freed on parole by order of an appeals court.
Protopappas opened his clinic in Costa Mesa in 1974, according to the Court of Appeal. By September 1982 it was a sizable practice, with a staff of five dentists, many dental assistants and two office managers. His lawyers later described it as a successful business built over many years.
He was the only dentist in the office licensed to give general anesthesia. The court found that he set the standard drug doses himself. Each day his assistants prepared standardized preparations of the drugs, which the opinion calls "setups," and he alone gave the first injection. The other dentists received standard instructions for keeping patients asleep once he had started. The opinion describes the arrangement as one in which several patients could be under general anesthesia at once, all under his responsibility; on the day Patricia Craven was treated, three other patients also received general anesthesia, and as many as four may have been sedated at the same time.
At least two of the dentists who worked under those instructions held no license to give general anesthesia, the court found. One of them, an associate, received only a brief orientation from Protopappas, centered on keeping patients from waking up.
In a footnote, the appellate court remarked that nothing in the trial record stood out "quite so brightly as Protopappas's enthusiasm for making money."
Kim Andreassen was 24, according to the appellate opinion; KABC-TV later gave her age as 23. She lived with several serious illnesses, including lupus and kidney failure that required dialysis. The court found that her own physician, when the clinic's office manager contacted him, said she should not receive general anesthesia at all, even briefly, and authorized only limited sedation.
Protopappas knew the danger. The court found that he warned Andreassen that, because of her poor health, there was a very high risk she could die under general anesthesia, and that he told her, her mother and many of his staff that she probably would not survive it.
On September 30, 1982, he treated her at the clinic and gave her his standard preparation of drugs. The court found that when she later collapsed he did not immediately call paramedics or begin resuscitation. She was clinically dead when she reached the hospital. The coroner attributed her death to cardiac arrest from general anesthesia, with her lupus as a contributing factor. Two anesthesiologists and two oral surgeons testified for the prosecution that she had died of a massive drug overdose.
At trial Protopappas gave a different account. He said she needed a root canal, that he had used conscious sedation rather than general anesthesia, that he did not see her condition as an emergency, and that he had felt a pulse.
Patricia Craven was 13. The Court of Appeal described her as a healthy girl whose only notable condition was enlarged tonsils. On February 8, 1983, about four months after Kim Andreassen's death, she came to the clinic for extractions, fillings and a crown. Protopappas assured her mother that the enlarged tonsils would not be a problem and that her daughter would be watched more closely.
The court found that he gave her the standard drug preparation without adjusting it for her age or her size, and then left the work to the associate who had no license to give anesthesia. The court found that he did not watch over her himself and that she was allowed to leave the clinic before she had recovered. A prosecution expert, the chairman of anesthesiology at the University of Southern California's dental school, testified that releasing her in that condition was likely to prove fatal.
Patricia Craven never recovered. She died 11 days after her appointment, and the coroner attributed her death to the drugs she had been given. Afterward, according to the opinion, Protopappas told a staff dentist that her swollen tonsils had narrowed her airway. At trial he said that staff had handled her discharge.
Cathryn Jones was 31, according to KABC. On February 11, 1983, three days after Patricia Craven's treatment and while Patricia was still gravely ill, she came to the clinic to have teeth removed. Her physician had approved only a limited anesthetic. He testified that he would not have approved the much larger doses in the clinic's standard preparation, which he said had never been discussed with him.
The court found that during her treatment Protopappas angrily disputed staff warnings that she was in distress, and that paramedics were called only after an assistant had asked a third time, some seven to ten minutes into the emergency. Cathryn Jones never regained consciousness and died two days later. The coroner listed cardiac arrest following anesthesia as the cause of death.
California law defines second degree murder to include killings with implied malice. In the words quoted by the Court of Appeal, implied malice applies to "a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." The key question is what the defendant himself understood: a finding of implied malice, the court wrote, quoting the California Supreme Court, "depends upon a determination that the defendant actually appreciated the risk involved."
That made the prosecution's case one about knowledge. The evidence that Protopappas had warned Andreassen she might die, had been told by her physician not to put her under, and had then treated two more patients in the same way after her death, was central. The opinion describes the trial as centered on his own awareness of the risk.
The jury convicted him of second degree murder in the deaths of all three patients, and he was sentenced to 15 years to life in prison. KABC reported that the convictions came in 1984.
The appellate opinion summarizes the evidence on both sides. For the prosecution, anesthesiologists and oral surgeons described massive overdoses and slow responses. For the defense, Protopappas testified that he had acted properly, that the clinic's standard methods had been used on many patients without earlier deaths, and that anesthesiologists disagree about what amounts to an overdose. His lawyers argued that Andreassen's and Craven's cases were isolated and unusual and did not show that his general procedures were dangerous.
The appeal was heard by the Court of Appeal of California, Fourth Appellate District, Division Three. Justice Wallin wrote the opinion; Acting Presiding Justice Sonenshine and Justice Crosby concurred. The court first affirmed the judgment; the California Supreme Court then granted review and sent the case back for changes to the citations, and the court refiled its decision. The final opinion was filed on May 13, 1988, and certified for partial publication.
Protopappas attacked the jury's finding of implied malice on several fronts. He argued that the standard jury instruction on implied malice was ambiguous; the court agreed it could be misread, but held any error harmless beyond a reasonable doubt because the prosecution had tried the case on his subjective awareness of the risk. He argued that another instruction allowed the jury to convict on ordinary negligence; the court held that the instructions read together, and the jury's finding of malice, made any error harmless.
He also argued that 1981 and 1982 amendments to Penal Code section 188, which say that awareness of a duty to obey the law is not part of malice, had wiped out the difference between second degree murder and involuntary manslaughter. The court rejected that claim, finding the statute neither vague nor open to that reading.
Finally, he argued that the evidence of implied malice was too thin to support the verdicts. Here the court went patient by patient. For Andreassen, it held that the jury could find she was in grave danger from the dose and that he knew it, and that his failure to act when she collapsed supported the finding. For Craven, it pointed to his knowledge of her airway problem and of how deeply she was sedated, and found that he had abandoned her by allowing her to be released without proper monitoring. For Jones, it relied on the large doses given against her physician's advice and his slow response, adding that after what had happened to Andreassen and Craven, this was substantial evidence of implied malice.
The court concluded that his conduct was "more than gross negligence." He had been, it said, habitually slow in reacting to the overdoses his methods produced. "It was not a question of whether a fatality would occur, only a question of when," the court wrote, adding that in the end there had been three. The judgment was affirmed.
In 2004 Protopappas, then a state prisoner, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of California, naming the warden of his prison as the respondent. A district judge denied the petition on its merits on August 14, 2008, and he appealed. After the Ninth Circuit ruled in 2010 that prisoners challenging parole decisions needed a certificate of appealability, the appeals court sent the case back for that decision, and on June 4, 2010, the district court denied a certificate, finding he had not made a substantial showing of the denial of a constitutional right.
KPCC, the Southern California public radio station, reported at the end of 2010 that Protopappas said substance abuse had contributed to the deaths.
The state parole board approved his release in the summer of 2010, after he had served more than 25 years, KPCC reported. By the end of 2010 the outgoing governor, Arnold Schwarzenegger, had reversed the board, saying Protopappas "poses a risk of recidivism and violence" if released. His lawyer went to court to challenge the reversal.
The challenge succeeded. Justices of the Fourth District Court of Appeal granted him parole in a June 22 ruling that overturned the governor's 2010 decision, KABC reported.
The parole took effect on a Thursday, but Protopappas was not released until the following Tuesday, according to KABC. His lawyer then asked that prosecutors be held in contempt of court for the late release. KABC described him as a former dentist who had served more than 25 years. The outcome of the contempt request was not reported.
Accounts differ on the ages of two patients. The 1988 appellate opinion gives Kim Andreassen's age as 24, while KABC gave it as 23. KPCC's December 2010 report described one of the three patients as a 9-year-old girl; the appellate opinion and KABC both give Patricia Craven's age as 13.
The descriptions of the deaths also differ in tone. KABC's 2011 report said he "accidentally" gave the patients lethal doses. The jury and the Court of Appeal did not find that he intended to kill, but they did find more than an accident: that he knew his methods endangered life and went on with them in conscious disregard of that danger.
Protopappas's own account changed over time. At trial he defended his care of each patient. By 2010, KPCC reported, he said substance abuse had played a part.
1974: Protopappas opens his dental clinic in Costa Mesa, California.
September 1982: the clinic has five staff dentists; he is the only one licensed to give general anesthesia.
September 30, 1982: Kim Andreassen is treated at the clinic and is dead on arrival at the hospital.
February 8, 1983: Patricia Craven, 13, is treated at the clinic; she dies 11 days later.
February 11, 1983: Cathryn Jones, 31, is treated at the clinic; she dies two days later.
1984: a jury convicts him of three counts of second degree murder; he is sentenced to 15 years to life.
May 13, 1988: the Court of Appeal, Fourth Appellate District, Division Three, affirms the convictions (People v. Protopappas, 201 Cal.App.3d 152).
2004: he files a federal habeas corpus petition in the Eastern District of California.
August 14, 2008: the district court denies the petition on its merits.
June 4, 2010: the district court denies a certificate of appealability.
Summer 2010: the parole board approves his release.
Late 2010: Governor Arnold Schwarzenegger reverses the parole grant.
June 22, after the 2010 reversal: Fourth District appellate justices grant him parole, overturning the governor.
Soon after: he is released on parole several days after the grant takes effect; his lawyer seeks a contempt finding against prosecutors over the delay.