Physician cuts plea deal

By Steve Fry

THE CAPITAL-JOURNAL

Dr. John Toth, a Topeka physician charged with killing one patient and injuring a second, pleaded no contest Wednesday to reckless involuntary manslaughter.

In a plea agreement with the Shawnee County district attorney's office, Toth, 58, made the no contest plea in the April 20, 2006, death of Beverly A. Wunder, 47, of Topeka. Prosecutors dropped a charge of reckless aggravated battery of Bertha "Susie" Groves, and in exchange, Toth will surrender his medical license.

Toth originally faced a charge of reckless second-degree murder in Wunder's death.

Five members of Wunder's family watched as Toth was convicted. Wunder was an occupational therapist at the Kansas Neurological Institute for 15 years.

Wunder and Groves received intravenous infusions of a "heavy metal" known as bismuth, or bismacine, which is an "unauthorized, inappropriate and professionally unrecognized" treatment by the medical profession and isn't authorized by the U.S. Food and Drug Administration, District Attorney Robert Hecht said in a news release.

"I'm glad that his license has been surrendered and he's not going to be practicing medicine again," Linda Wolfe, Wunder's sister, said outside court.

"I'm glad he won't be able to do this to anyone else," said Melanie Bezner, Wunder's daughter.

Wunder became ill on April 18, 2005, after receiving at least a second infusion of bismuth, then died a year and two days later.

District Judge Jan Leuenberger said the projected sentence for Toth, who doesn't have any criminal convictions, would be 31 to 34 months in prison, but the sentence falls in a "border box," meaning Toth either can be imprisoned or placed on probation.

Deputy District Attorney David Debenham and defense attorney Mark Bennett recommended that Toth be placed on supervised probation for three years.

Toth is to be sentenced at 2 p.m. Jan. 2.

Hecht said the aggravated battery charge was dismissed at Groves' request and as part of the plea agreement.

Groves "has made clear to the district attorney's office that she does not desire any prosecution of Dr. Toth and is satisfied that overall, Dr. Toth's treatment of her was beneficial and substantially improved her health," Hecht wrote.

"I knew that there could be extremely serious, adverse effects up to and including death as a result of the treatment, and I chose of my own free will to accept the possible adverse effects when I authorized Dr. Toth to perform the intravenous bismuth procedure on me," Groves wrote in an affidavit. Groves was undergoing treatment for Lyme disease, she wrote.

Had the charges against Toth gone to trial, Groves intended to testify on the doctor's behalf, she wrote in a second affidavit. Groves said Toth "absolutely did not act recklessly in his treatment of me."

The manslaughter count Toth was convicted of is defined as the reckless unintentional killing of a person occurring during the commission of a "lawful act in an unlawful manner," according to Kansas law.

As part of the plea agreement, Toth will undergo a full "debriefing" by state and federal authorities about receiving, delivery or distribution of non-FDA approved drugs, Debenham said.

Toth's preliminary hearing on the charges was to have started Monday.

Steve Fry can be reached

at (785) 295-1206

or steve.fry@cjonline com.

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