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UTAH'S TOP COURT REINSTATES CONVICTION OF KAYSVILLE DOCTOR

No one could fault Dr. David R. Warden for thinking the American justice system is capricious.

Since Warden was charged with negligent homicide in the 1986 death of a newborn boy, one jury couldn't decide if he was guilty, resulting in a mistrial; a second jury found him guilty as charged; one appeals court overturned that conviction; and this week a higher appeals court reinstated it.The Utah Supreme Court ruled this week that a Davis County jury did have enough evidence to find Warden guilty of negligent homicide, a class A misdemeanor.

Warden was charged in the Nov. 8, 1986, death of Joanne Young's dayold son. He now must begin paying a $3,100 fine, including $600 restitution to Young, said Davis County Attorney Brian J. Namba. A jury also sentenced Warden to one year in jail, but the sentence was suspended.

In an opinion written by Chief Justice Gordon Hall, the Supreme Court reversed a ruling by the Utah Court of Appeals that said the jury didn't have enough evidence to convict Warden. The appeals court was so certain of its decision that it refused to reconsider its ruling when asked to do so by the Davis County attorney's office.

The Supreme Court was equally certain. "The evidence was clearly sufficient to show that in the treatment of Joanne Young and her baby, Warden acted with criminal negligence which constituted the legal cause of death."

"We're very pleased with the ruling," Namba said. "We've worked on this case for four years. It has gone through just about every avenue of appeal available."

Namba does not expect Warden to appeal the Supreme Court decision to a higher court.

Warden practiced family medicine in Kaysville since 1968, delivering hundreds of babies. Because he did not have malpractice insurance, he could deliver babies only at home, the ruling said.

Warden delivered Young's premature infant at her home on Nov. 7, 1986. The baby was born six weeks before Young's estimated due date, yet Warden made no attempt to stop the labor or hospitalize Young, the ruling said.

Soon after birth the infant began experiencing respiratory problems, his color turning purplish-blue.

"Warden recognized that the infant was premature and showing symptoms of respiratory distress syndrome - a disease that Warden knew was progressive, linked to premature births and could result in death."

Yet Warden told the family that nothing was wrong with the infant "and positioned the infant in a manner which masked the symptoms of the disorder," the ruling said.

Hall suggested that Warden failed to hospitalize the child to protect himself from embarrassment. Warden left the Young home shortly after the baby's birth and waited more than 12 hours before checking on the baby again, the ruling said. The infant died during the night.

Hall concluded that the jury that convicted Warden had enough evidence to conclude that Warden's care of the infant was well below the standard of care that should have been given and ultimately led to the baby's death.

Justices Richard C. Howe, Christine M. Durham and Michael D. Zimmerman concurred.

Justice Daniel I. Stewart dissented.

The Utah Division of Occupational and Professional Licensing disciplined Warden in 1988. The state concluded that Warden's care of Young amounted to unprofessional conduct. It placed Warden's license on probation for five years. It ordered Warden to complete a state-approved program on obstetric and neonatal care before caring for pregnant mothers and newborn infants again.

Warden must tell patients that he does not have medical malpractice insurance and meet with state officials once a year during his probation. He cannot employ a physician assistant, nurse or midwife during his probation.