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Changeable virus allows for nurse's plea deal

April 10, 2009

By By Chris Roberts / El Paso Times

EL PASO — Federal prosecutors agreed to let a nurse anesthetist charged with infecting 16 Beaumont Army Medical Center patients plead to one count of spreading hepatitis C because the changeable virus can be hard to track.

Jon Dale Jones, 46, pleaded guilty Tuesday to one count of assault on a patient and one count of drug diversion.

"Looking at the overall nature of the case, we went with what we believe to be the best case we could prove," said William Franklin Lewis Jr., the assistant U.S. attorney who prosecuted the case.

On the assault charge alone, Jones could be sentenced to a maximum of 20 years in prison, but the plea agreement states that an appropriate sentence for both counts would be between four years, three months and five years, three months without parole. The judge is not bound by that agreement.

Jones also agreed to pay restitution to all the alleged victims.

Jones, who worked at Beaumont from July 2004 to April 2005, admitted in the plea that he was stealing drugs to feed an addiction when he spread the virus to a patient who was having surgery to remove plaque from neck arteries.

But it would have been difficult to scientifically pin down Jones as the source of the other 15 patients' infections, said Jim Darnell, an El Paso attorney who represented Jones in the criminal case. Darnell said that was why prosecutors allowed Jones to plead guilty to two counts in the nine-count indictment because only that one patient had the same strain of hepatitis C that was found in Jones' system.

"This would have been a nightmare case to try," Darnell said.

Jones acknowledges in the plea that he took an empty vial, believed to be contaminated with hepatitis C, to work where he would store a powerful narcotic called Fentanyl that he stole during surgeries. The syringe he used for the transfer carried the virus, and the contaminated Fentanyl subsequently was injected into the surgery patients. On the hospital records, he would indicate the amount he had stolen was "waste."

Court records indicate that Jones might have contracted the strain found in the other 15 patients earlier and cleared the infection from his system before getting reinfected with the second strain, which was found in the patient he matched. Jones probably contracted the virus as well as spread it while stealing the Fentanyl, according to the records.

The records don't indicate when Jones realized he had the virus or whether he knew he was putting his patients at risk.

"We believe that the evidence would establish that his actions were reckless," Lewis said.

Jones' strain of hepatitis C was a 98 percent match with the victim identified only as "DH" in the plea agreement. A 100 percent match is virtually impossible because the virus constantly mutates as it reproduces, often in response to the environment, medicines and the host's immune system, according to court records.

"The hepatitis C virus is one of those that reproduces rapidly," said Miriam J. Alter, director of the Infectious Disease Epidemiology Program at the University of Texas Medical Branch in Galveston. "It can reproduce many thousands of times within a day within an infected person."

Nonetheless, strains of hepatitis C taken from different people can be matched, she said. And a source can be determined with a good amount of certainty if there is other supporting evidence such as the suspected source being in the right place at the right time.

The problem connecting Jones with the other 15 patients involved a different test administered by the federal Centers for Disease Control and Prevention. That test indicated Jones' system had been fighting the strain found in the group of 15, but he was no longer infected with that strain and there was no virus to test.

Darnell said that CDC test is not approved by the Food and Drug Administration and would have been challenged.

"There were significant issues there," he said.

Darnell also said there were problems putting Jones at the scene, including a lack of documentation.

"Somebody's got to remember it," he said. "How do you remember an anesthetist?"

But the court records refer to hospital documentation and statements from the students Jones was supervising who attended the surgeries.

"The records reviewed by that (Beaumont) investigation indicate that Jones was the (nurse anesthetist) that had contact with all those patients," Lewis said.

And the plea, to which Jones agreed, states: "Jones was the only person to have had contact with all sixteen patients testing positive for (hepatitis C)."

Chris Roberts may be reached at chrisr@elpasotimes.com; 546-6136.

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