Attorneys argued Monday over whether a San Francisco transplant surgeon should stand trial in the 2006 death of a potential organ donor at Sierra Vista Regional Medical Center in San Luis Obispo.

The sole charge remaining against Dr. Hootan Roozrokh, 34, in the death of 26-year-old Ruben Navarro is one felony count of dependent-adult abuse.

Monday, Roozrokh's attorney, M. Gerald Schwartzbach, argued to Superior Court Judge Jac Crawford that the remaining charge against his client should be dismissed because it's based on hypothetical testimony.

A trial has been tentatively set for Oct. 20, unless Crawford dismisses the charge against Roozrokh. Crawford said Monday that he plans to issue a written ruling within the next two months.

At the end of a preliminary hearing in March, San Luis Obispo County Superior Court Judge Martin Tangeman dismissed two other felonies - administering Betadine to a human knowing it would cause injury and administering controlled-substance prescriptions not used for legitimate medical purposes - from the original charges against Roozrokh. That left only the charge of abusing a dependent adult.

“I don't see how anyone can reasonably conclude with any likelihood that the amount of medication given (to Navarro) caused great bodily harm or death,” Schwartzbach said Monday. “It's absolutely clear from the record that whatever amount of medication was given, it didn't kill him.”

Navarro died at the hospital the following day, about eight hours after the failed transplant was called off. His death certificate lists the cause of death as natural, according to court records.

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Prosecutors allege that Roozrokh ordered huge amounts of the pain-killer morphine and sedative Ativan be given to Navarro Feb. 3, 2006, to speed up his death so his organs could be procured. Human organs are viable for harvesting only between 30 minutes and one hour after a person dies.

Schwartzbach also argued that the District Attorney's Office has failed to prove Navarro suffered great bodily harm at the hands of his client.

“They have a burden to meet, and they didn't meet it,” he said, adding if “the hypotheticals are gone, there's no testimony.”

Much of the defense's expert witness testimony given during the preliminary hearing focused on hypothetical situations, such as what would happen if a patient in Navarro's condition was given high doses of pain-killers and sedatives.

“He wasn't trying to kill anyone,” Schwartzbach added. “He was trying to do the best he could in a situation where nobody knew what they were doing, including himself.”

Deputy District Attorney Karen Gray argued that the hypotheticals weren't irrelevant and in fact they drew a reasonable inference that from Roozrokh's actions he was “trying to kill this patient ... to harvest his organs.”

“That's the criminally negligent state of mind - a total disregard for human life,” she said. “It was a very single-minded act. (Ruben) had a right to die when he was ready to die; he wasn't ready to die.”

Navarro, who suffered from a debilitating neurological disease, was admitted to Sierra Vista on Jan. 29, 2006, after suffering a massive heart attack.

Before the night of Roozrokh's surgery, Navarro's mother agreed for his kidneys and liver to be donated and for him to be removed from life support.

For a jury to find Roozrokh guilty, prosecutors must prove he acted with criminal negligence, willfully causing Navarro to suffer great bodily harm or death.

July 29, 2008