Children’s staff won’t be charged, but prosecutor critical of failure to report

A judge on Thursday sentenced former Dayton Children’s Hospital doctor Arun Aggarwal to spend six more months behind bars then return to India for improperly touching the breasts of two teenage female patients.

Aggarwal’s sentence from Montgomery County Common Pleas Judge Mary Wiseman was for 10 months, but he was given credit for the four months he has been in the Montgomery County Jail on a $500,000 bond. He will also have to register as a sex offender if he resides in Ohio, though as part of his plea deal he agreed to return to India; he is in the U.S. on a work visa.

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After the sentencing, officials with the Montgomery County Prosecutor’s Office announced they will not seek charges against hospital officials who didn’t immediately report complaints about Aggarwal to law enforcement.

“After thoroughly reviewing the results of the Dayton Police Department’s investigation, and interviewing many of the doctors involved in supervising the defendant at Dayton Children’s Hospital, the decision was made not to charge the individual physicians who failed to report suspected child abuse when they learned of the allegations against the defendant,” said Assistant County Prosecutor Leon Daidone.

“While the hospital was cooperative during the investigation and prosecution of the defendant, it is still very concerning that doctors who learned of the allegations against him by his patients never reported the matter to the police or Children Services.”

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A week ago, the Dayton Daily News published videos of the 2015 Dayton police investigation, which we obtained through Ohio public records law. The videos illustrate why some hospital administrators didn’t think they had to report allegations against Aggarwal to law enforcement.

Aggarwal pleaded guilty Dec. 21 to four counts of gross sexual imposition. The sentence was part of his plea deal.

Speaking on his client’s behalf Thursday, Aggarwal’s attorney Samuel Shamansky said, “(Aggarwal’s) main concern of course is getting back with his family, as well as…sparing the victims in this case further trauma of a trial. He has expressed to me his genuine remorse, his eagerness to get on with his life and rejoin his family.”

One of the victims was present in the courtroom Thursday but decided not to provide a statement. Daidone praised both victims’ courage in reporting Aggarwal’s actions.

“They decided to speak up so this would not happen to another teenage girl,” he said.

County Prosecutor Mat Heck has said that hospital officials are mandated reporters under Ohio’s law requiring certain professionals to report suspected child abuse to law enforcement. And in this case hospital officials opted not to report the complaints against Aggarwal; police learned of them when a hospital supervisor reported on her own.

Daidone said part of their consideration in not charging hospital officials is that they were acting on advice of their attorney.

“We understand and fully recognize our obligations concerning the reporting of suspected abuse or neglect,” hospital officials said in a statement after Aggarwal’s guilty plea.

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“In fact, we have strengthened our policies, procedures and processes as a result of this situation. As such, our commitment to children has never been stronger. Safety is, as always, our top priority and we will continue to seek ways to improve and better serve children and their families.”

Videos show detectives questioning doctors

Aggarwal was employed by Wright State University but practiced at Dayton Children’s under the supervision of physicians there.

Video-taped interviews of hospital administrators conducted by Dayton police investigators in May 2015 — before Aggarwal lost his job — show Dayton detectives repeatedly questioning Dayton Children’s administrators about why they did not report the allegations against Aggarwal. The videos, never before made public, can be watched at myDaytonDailyNews.com.

In their interviews with Dayton Police Detective Elizabeth Alley in May 2015, several Children’s administrators said they did not believe the allegations needed to be to reported, saying the attorney for the hospital, Chris Bennington, assured them that the hospital’s internal measures to discipline Aggarwal were adequate.

The first allegation against Aggarwal came from the mother of a 15-year-old patient in January 2014, who reported that Aggarwal touched her daughter’s breasts after asking the mother to leave the room, according to police records.

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Another mother complained in November 2014 that Aggarwal touched her daughter’s breasts on more than one visit, according to police records. He started seeing the patient when she was 17, though investigative records say he first examined her breast in August 2014, nine days after her 18th birthday.

Police only became aware of the allegations in January 2015, when a hospital supervisor reported the incidents to the hospital’s social work office after becoming frustrated over the hospital’s response. After a nearly year-long police investigation, the Montgomery County Prosecutor’s office declined to move the case forward, citing a lack of evidence. However, the office reopened the case earlier this year based on some of the testimony presented at Aggarwal’s licensing hearing before the State Medical Board of Ohio.

Aggarwal made statements that “were very useful in both the depositions and in the medical board hearing when compared to other evidence that we had in the case,” Daidone said Thursday.

Aggarwal vigorously defended his actions before the board, saying everything he did was for medical purposes. The board disagreed, and in May of this year it permanently revoked Aggarwal’s license and criticized hospital staff for “dragging their feet” in investigating and disciplining him, according to medical board records.

After his indictment, Aggarwal was arrested at Dulles International Airport attempting to flee the country, according to prosecutors.

‘We would do things differently’

Bennington, who works for the Ohio-based law firm Bricker and Eckler, said he can’t comment due to attorney-client privilege.

But in a statement released this month, Dayton Children’s CEO Deb Feldman acknowledged mistakes were made in the handling of the allegations against Aggarwal.

“We are now viewing the situation with the benefit of hindsight, which makes matters much clearer now than they were at the time,” the statement says.

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“As I said previously, knowing what we know now, we would do things differently and in fact, we since have done things differently, changing and strengthening policies. We continue to seek ways to improve and better serve children and their families.

“Most importantly, safety is our top priority,” Feldman’s statement says. “We do not — and will not — tolerate any actions that could impact the quality of care the hospital provides or that would undermine the trust placed in us by patients, parents and the community. We believe passionately in our mission and protect children above all else.”

Video-taped interviews

In her 2015 interviews with Dayton Children’s administrators, Detective Alley sought clarification from each on why the incidents were not reported.

“It absolutely should have been reported because it is inappropriate touching,” she said to Dr. James Rick, Aggarwal’s supervisor. “And even if in doubt, it doesn’t hurt to report it just in case so you don’t have to carry that burden.”

Rick said it didn’t cross his mind that Aggarwal’s actions were possibly a reportable sexual abuse allegation.

“It seemed plausible that (Aggarwal) felt the need to do a breast exam on these patients,” Rick said.

The hospital’s Chief Operating Officer, Matt Graybill, told Alley he trusted the advice of the hospital’s attorney — Bennington — and Chief Medical Officer Adam Mezoff, both of whom didn’t feel the allegations needed to be reported to police.

“I asked (Bennington) if he was aware of the allegations. He told me he was. I asked him if he thought we were handling it appropriately (and) it did not need to be reported. He said that was the case,” Graybill said.

Mezoff told Alley that after the first accusation, he met in person with Feldman and administrators at Wright State.

“The sense was there was a misunderstanding,” Mezoff told the detective. “(Aggarwal) had been a physician in good standing and that it was very plausible that if you push somebody’s mid-chest that that could certainly have been the way that was perceived,” he said.

Aggarwal maintained in medical board testimony that he pressed on the first teenage patient’s sternum because she complained of chest pain. The second patient, he has said, had a surgical scar on her breast he was examining for infection; on another instance, he testified, he went under her shirt with a stethoscope to hear her breathing.

“When you got the second complaint, did you ever think, hey maybe there is something going on inappropriate?”Alley asked Mezoff. “Like maybe he’s not doing what he should be doing. Maybe we should be re-evaluating this. Was there ever anything like that?”

Mezoff said he consulted with Bennington and Dr. Lori Vavul-Roediger, a child abuse expert at the hospital. He said his impression was that Aggarwal was well-meaning but socially awkward.

Vavul-Roediger gave a statement to police saying Mezoff told her about one incident of an unnamed doctor performing a breast exam on a female patient.

"It was this physician's understanding that neither the patient nor the parent had complained about the exam, and the patient's family had not filed a report of maltreatment regarding the incident," she wrote in the memo, which was obtained by the Dayton Daily News.

Alley said in a hearing held by the state medical board that her understanding from talking to Vavul-Roediger was that Mezoff “didn’t provide all the information about what the allegation was.”

The hospital declined to make the employees available for an interview.

COO unaware of hospital reporting policy

Police became aware of the allegations involving Aggarwal after Karen Braun, the hospital’s then-director of ambulatory services, reported them to the hospital’s social work division, the body that typically considers whether to report to law enforcement.

Asked this month why she took that action, Braun said, “I reported because I had a legal and ethical obligation to do so.”

Graybill, in his 2015 interview with Alley, acknowledged that Braun did not agree with how top administrators handled the allegations against Aggarwal.

“I think she (Braun) continues to believe that it should’ve been reported and continues to be uncomfortable that we did not, that the hospital did not report it,” Graybill said in the police interviews.

“Are you aware that the (hospital) policy actually says that mandated reporters have to report to social work?” Alley then asked. “Are you aware of that?”

“No, I’m not,” answered Graybill, the hospital’s second-in-command.

“(Hospital policy) actually says mandated reporters are to report directly to social work when they learn of an alleged sex abuse or physical abuse, that that’s the children’s hospital policy,” Alley said. “You’re not aware of that?”

“No,” Graybill responded.

The hospital’s current policy, established after the Aggarwal allegations, refers all such incidents to child abuse experts to report to authorities, and includes what they call one of the most extensive chaperoning policies in the country. The newspaper was unable to obtain a copy of the previous policy to determine if Alley was portraying it accurately.

‘If we were concerned, he wouldn’t be working here’

When the Dayton police detective interviewed Children’s administrators, Aggarwal was still working in the hospital. Graybill said if police have evidence that Aggarwal did anything wrong, they should let hospital officials know, so they can respond.

“If we thought that this doctor was a risk to our patients, he wouldn’t be working there,” Graybill said.

“I understand that, but you get one allegation and then you get another one that is fairly similar,” Alley responded. “These two kids don’t know anything about each other. They’re not siblings. They don’t know each other. They are seen on different days. Certainly I think it rises to the level of lots of concern.”

“If we were concerned, he wouldn’t be working there,” Graybill said, “and if you guys know something from parents, the kids or anything else that we should know about, then I think you have an obligation to let us know so that we can do what we need to do.”

Aggarwal was placed on administrative leave in June 2015, roughly a month after the interviews. He was fired from Wright State three months later after his admitting privileges at Children’s lapsed. He sued Wright State and an arbitrator last month awarded him $91,799, ruling that WSU did not give the physician due process, according to court records. The university can appeal the decision.

‘That’s how you find the bad guys’

State law requires health care professionals to contact law enforcement or child welfare agencies if they have “reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect” that a child under 18 years of age has suffered or faces the threat of suffering abuse.

Prosecutions for not reporting allegations of sexual abuse are rare in Ohio.

The State Medical Board of Ohio has disciplined two doctors in the last decade for failing to report allegations, including a Lancaster doctor whose license was suspended 180 days after he was convicted on misdemeanor charges. The doctor failed to report the rape of a minor who came to his office with complaints stemming from sexual abuse, according to the medical board.

In another case, a Summit County doctor had his license revoked in March 2016 for not reporting repeated allegations that his business partner improperly touched sedated patients, board records show.

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Dan Frondorf, Cincinnati leader of the group SNAP, which was created in the wake of the Catholic priest sex abuse scandal but now advocates for other types of sex abuse victims, said there should be consequences for mandated reporters who refuse to report.

“I’d be disappointed if somebody clearly should have reported and they didn’t (and) they weren’t prosecuted,” Frondorf said last week before Aggarwal’s guilty plea and Thursday’s sentencing. “It undermines the whole point of why the law is there. That’s how you find out about the bad guys.”

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