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Bad Medicine: Doctors with many malpractice payments keep clean licenses

Maribeth Chase's family wishes they'd known her surgeon had been sued repeatedly for malpractice. In fact, The Star found, state officials know of many such doctors but don't tell the public.

Updated: 2012-01-12T15:35:02Z

By ALAN BAVLEY

The Kansas City Star

Maribeth Chase didn't know that the neurosurgeon who would be operating on her had been sued at least 16 times for allegedly making medical mistakes.

She didn't know that former patients and their families contended in court records that he had botched treatments that left one patient dead, several more with paralysis and still others in need of remedial operations.

Or that a dozen years before, federal records show, a health care organization had denied him clinical privileges over concerns about the quality of his care.

Robert Tenny's Kansas medical license was in good standing. And even though state licensing officials had access to his history of malpractice claim payments, dating to the early 1990s, they had never taken action against him.

That's not uncommon. An investigation by The Kansas City Star found that Kansas and Missouri doctors like Tenny with significant histories of alleged malpractice often go undisciplined by the states' licensing boards.

And although the two states' boards have access to malpractice claims information from several sources, they don't make it available to the public — unlike the boards in many other states.

Chase, 77, never recovered from the relatively common procedure — draining a pool of blood from the surface of her brain — that Tenny performed four years ago at Shawnee Mission Medical Center.

She awoke from the surgery paralyzed on the right side of her body and unable to speak, the victim of a brain injury sustained during the operation. Over the days that followed, her condition deteriorated. She slipped into unconsciousness and died.

Tenny settled her family's wrongful death suit for $1,010,000. The settlement brought total malpractice payments made on Tenny's behalf since the early 1990s to roughly $3.7 million, federal records indicate.

Tenny's attorney, Charles R. Hay, said federal patient privacy regulations prevented Tenny from commenting. But in court filings and in a deposition taken for the lawsuit, Tenny denied wrongdoing and said he did not cause Chase's injury.

Although disciplinary proceedings against him are pending, Tenny's Kansas license remains untarnished to this day. And though Shawnee Mission Medical Center suspended his staff privileges, he's still practicing at other area hospitals in Kansas.

Tenny is just one of 21 doctors The Star found who have spotless Kansas and Missouri licenses even after lengthy histories of malpractice cases.

Some have been sued over patient deaths and serious injuries. Some allegedly operated on the wrong body parts, made incorrect diagnoses, delivered unnecessary treatment or left surgical materials inside their patients.

None of their records shows any kind of discipline by the states' medical licensing boards.

In 17 states, including California, Colorado, Georgia and New York, patients can go to medical boards' websites to find out about doctors' malpractice histories.

But not in Kansas and Missouri. That leaves sifting through court records as the only way to discover a doctor's malpractice litigation history. And because many settlements are confidential, there is no certainty that all of a doctor's malpractice payments could be found.

“I find it very disturbing that people can go into an emergency room and be treated by (Tenny) after all that has happened,” said Chase's daughter, Claire Chase of Lenexa.

Kansas and Missouri board officials say they do take doctors' malpractice case histories into account when initiating investigations. Doctors and insurance companies are required to notify the boards about malpractice payments. The information also is collected by a federal agency, the National Practitioner Data Bank, that makes it available to state boards.

“Certainly malpractice payments, when we receive those reports, are scrutinized. Any information that is concerning is scrutinized,” said Kathleen Selzler Lippert, executive director of the Kansas State Board of Healing Arts.

“But just because there's a (malpractice) payout doesn't mean there's grounds for disciplinary action,” Lippert said. “Some malpractice payments are a business calculation, a cost-benefit analysis of whether to go to trial.”

Some specialists, including neurosurgeons and heart surgeons, are sued more often than other doctors.

A recent survey by the American Medical Association found that most doctors will be sued for malpractice by the time they retire. But the majority will never face more than one lawsuit. And even when they are sued, doctors generally prevail, studies have found.

Doctors who are sued repeatedly and successfully are uncommon.

“If you're a doctor with more than two malpractice payments, you're in a rare group,” said Russell Aims, spokesman for the Massachusetts Board of Registration in Medicine.

Of the 34,000 physicians licensed in the state, fewer than 100 will make more than two payments on malpractice claims over the course of 10 years, he said.

Nationwide, fewer than 2 percent of doctors have accounted for half the reported $67 billion paid out for malpractice claims in the United States since 1990, according to a study by Robert Oshel, a former analyst for the National Practitioner Data Bank.

“Taking that 2 percent of physicians out of practice would certainly make quite a difference,” Oshel said.

“I wouldn't necessarily recommend revoking the licenses of all the docs responsible for half of the payments. Some who have a single large payment are probably good, safe, doctors. But all of them, especially those with multiple payments, would be good candidates for investigation by the licensing boards.”

In Kansas and Missouri, the licensing boards are appointed by the states' governors and are made up mostly of physicians. They can discipline doctors for dishonorable conduct or professional incompetence by issuing reprimands, suspending their licenses or even revoking them.

A week after her mother died in March 2007, Claire Chase filed a detailed complaint about Tenny with the Kansas board.

Eight months later, the Chase family's attorney, Victor Bergman, sent the board copies of depositions taken for the lawsuit, along with a letter outlining his case against Tenny.

But according to documents obtained by The Star, the Kansas board did not start formal disciplinary proceedings against Tenny until June 2010. After more than a year of legal wrangling, the board's case against Tenny — based on his treatment of Maribeth Chase — is not yet scheduled for a hearing.

How many doctors?

To see whether other doctors with long malpractice payment histories are practicing in Kansas and Missouri, The Star analyzed thousands of records in the National Practitioner Data Bank.

The federal agency in 1990 began gathering information on payments to settle malpractice claims against doctors. It also collects reports of disciplinary actions taken against doctors by licensing agencies and hospitals and by the Drug Enforcement Administration.

State medical boards can use the Data Bank to review license applications or to initiate disciplinary investigations. For a fee, the Data Bank will even email boards within 24 hours when a report of a malpractice payment or disciplinary action is filed.

Data Bank files available to the public have fewer details and are stripped of information identifying doctors by name. The Star linked Tenny to entries in the Data Bank by comparing its public reports to information about Tenny contained in court filings.

The Star found about 200 doctors who have practiced in Kansas or Missouri since 1990 and have had five or more malpractice case payments made on their behalf, without ever being disciplined by the state's board. The number of malpractice claims against the doctors is unclear because individual cases may involve payments from more than one source.

Twenty-one of these doctors, including Tenny, have a record of at least 10 malpractice payments and as many as 19. Malpractice payouts for these doctors exceed $65 million. Their malpractice cases involved at least 10 patient deaths; at least 32 other patients sustained serious permanent injury.

In a handful of cases, these doctors also saw their hospital privileges revoked or suspended for substandard skills, malpractice or, as in Tenny's case in 2007, because the hospital considered him an immediate threat to patients' health or safety.

Kansas and Missouri aren't the only states where doctors with significant alleged malpractice histories have gone undisciplined by medical boards.

The advocacy group Public Citizen this year released a nationwide analysis of the Data Bank. It found 14 states, including Kansas and Missouri, with physicians who had at least 10 malpractice payments, plus at least one report by a hospital revoking or limiting clinical privileges, but who had not been disciplined by their state. One undisciplined doctor in New Mexico had 26 malpractice cases. A doctor in Indiana had 20.

Weighing the records

Patient safety advocates say boards should use malpractice records to their full advantage to ferret out doctors who may be doing harm. The boards themselves, though, aren't as confident about the records' value.

Boards commonly review malpractice cases, said Lisa Robin, chief advocacy officer for the Federation of State Medical Boards. But a history of malpractice payments is not the most reliable sign that a doctor should be disciplined, she said.

“We believe (previous) disciplinary actions against a license are much more significant than a malpractice payment,” Robin said.

Some states make it harder than others to file a malpractice lawsuit, Robin said. And even within states, juries in some court districts may favor patients, while in other districts they favor doctors.

Oftentimes, cases that lead to malpractice payments may not offer legal grounds for disciplining a doctor, Robin said. An insurance company may settle a case not because a doctor is at fault, but because a trial would be too expensive. In other cases, several health care providers may share responsibility.

“There may be whole systems that failed. Not just one person is to blame,” Robin said.

For reasons such as these, Lippert, executive director of the Kansas board, called The Star's findings about doctors' malpractice payment histories “very nebulous information” that doesn't indicate whether a doctor should be disciplined.

“It's a piece of information without context,” she said. “It's really hard to evaluate.”

Whether a doctor poses a danger to the public is a key factor in determining discipline, according to Lippert — not the number of malpractice cases.

“You can practice the best medicine in the world and still have tragic consequences” that lead to malpractice payments, she said. “You can practice bad medicine but not have bad results” that wind up in court.

But patient safety advocates say malpractice reports still are useful indicators of how a doctor practices.

“A better board should use all of its resources, whether it's a complaint against a doctor or an action taken by a hospital or a report of a malpractice payment,” said Sidney Wolfe, a physician and director of Public Citizen's Health Research Group. “And malpractice payments are the most common piece of data by far in the National Practitioner Data Bank.”

Investigating malpractice cases may be time-consuming, but often much of the groundwork already has been done by the lawyers who filed the lawsuits, Wolfe said.

“You start with the existing records and proceed from there,” he said.

Each year the staff of the Missouri Board of Registration for the Healing Arts reviews reports on about 700 to 800 malpractice claims made against doctors, board spokesman Travis Ford said. The claims reports, with information about the doctors and patients and the nature of the allegations, come in quarterly from the state insurance department.

The claims are more useful than reports of malpractice payments, Ford said.

“It's the allegation behind the claim that is serious,” he said. “Whether there's a payment or not wouldn't influence the board's action.”

About 90 percent of the claims lead to full investigations, with staff interviewing doctors and patients and witnesses, Ford said. But very few lead to discipline.

Before the Missouri board can take disciplinary action for malpractice, it must demonstrate that a doctor negligently failed to provide patients with the recognized standard of care, Ford said. And unless a doctor demonstrated a willful disregard for a patient's welfare, there has to be a pattern of repeated negligence before the board can act.

In Kansas, similar criteria apply.

And in both states, cases may go through an independent administrative hearing, similar to a trial, before the boards are authorized to take disciplinary action.

“It's easy for the board to decide that someone should be suspended or revoked, but the board isn't the ultimate decider,” Ford said.

'Something was dreadfully wrong'

No one knows exactly why blood welled up on the surface of Maribeth Chase's brain and made her a candidate for surgery.

In elderly people like her, even a minor bump on the head can tear small blood vessels and cause a slow bleed between the brain and the membrane covering it. The condition, called a chronic subdural hematoma, may not show any symptoms at first. Brains shrink with age, and that leaves room for blood to accumulate. Blood may build up over time, even for months, before it puts pressure on the brain.

Chase, a retired speech therapist, had moved from Iowa to Lenexa to be closer to family members. In February 2007 she started having headaches and found it hard to remember words. Her handwriting started to change.

On the way to a gym for aerobics one day, her vision blurred. Her doctor told her to go to the emergency room at Shawnee Mission Medical Center.

Surgery for a subdural hematoma like Chase's is often a routine procedure. The surgeon drills two quarter-size or smaller holes through the skull and drains the blood. Typically, the slow bleed doesn't damage the brain, and patients get better in a few weeks.

Claire Chase remembered Tenny saying her mother would make a full recovery; she would spend a day or two in intensive care, a few more days in the hospital and then go home.

After the surgery, family members said, Tenny told them the operation had gone well. But it soon became clear that wasn't the case.

“I didn't notice until the next day. She was paralyzed on the right side. She couldn't talk, but she was clearly there — she grabbed my hand,” Claire Chase said. “Obviously, something was dreadfully wrong, and it didn't go as planned.”

Maribeth Chase's son, John Chase, an orthopedic surgeon, had flown in from Florida to be by her side. He called a neurosurgeon friend for advice.

“You've had a major complication,” he recalled his friend saying. “A big problem. She may die.”

Tenny told Chase's son and daughter shortly after the operation that their mother had suffered a stroke, their lawsuit alleges.

But the family said they heard little more from the doctor.

“He would not give any information at the time, and I didn't realize I should have been grilling him, interrogating him because I didn't know what to expect,” John Chase said. “I took what he said at face value.”

Evidence gathered for the Chase family's lawsuit showed that on the day after the operation, Tenny had booked an operating room to perform additional surgery on Chase, but it was never done. He called his malpractice insurance company. And he phoned the hospital to have a do-not-resuscitate order added to Chase's medical records, the suit alleged.

Her family did not know about the do-not-resuscitate order, John Chase said.

Months later, Tenny would place an addendum in his hospital operative report that during the surgery he “noted a small piece of brain tissue draining out” of one of the holes in Chase's skull. His initial report made no reference to a brain injury.

As their mother's condition deteriorated, the family asked for a neurologist to consult on the case. Brain scans showed there was bleeding into Chase's brain and pockets of air that indicated the brain had been penetrated, John Chase said.

The neurologist reported the incident to the hospital. In her deposition, the hospital's risk manager said Tenny told her that a nurse in the operating room apparently injured Chase by using a bulb syringe to squirt saline solution into one of the holes. She said Tenny told her the nurse did this without his permission.

When the hospital investigated, it found that the nurse Tenny named had not even participated in the operation, according to court depositions and hospital documents.

“That's just so transparent,” John Chase said. “He couldn't even remember which wrong guy to blame here.”

The family's lawsuit alleged that Tenny intentionally kept from them the facts about Chase's post-operative condition. Had the family known what had happened, immediate surgical intervention may have “substantially increased” Chase's chances of survival and an acceptable quality of life, the lawsuit alleged.

“We never had the opportunity to make that decision” for emergency surgery, John Chase said. “(Tenny) knew there was a problem but he ... just let her sit there.”

In his answer to the Chase family's lawsuit, Tenny admitted that Maribeth Chase's death was, in retrospect, a result of trauma she suffered during surgery, but he denied that a follow-up operation would have changed her outcome. And in his deposition testimony, Tenny held steadfastly to his assertion that the nurse he had named was the person who had forcefully irrigated Chase's brain.

Asked why everyone else who was in the operating room contradicted Tenny about who assisted him with the surgery, Tenny answered:

“Well, I can't comment as far as their motives, or intentions, or their memory of the events; I can only testify to what I observed.”

Informing the public

The ordeal of her mother's surgery has shaken Claire Chase. “I certainly at this point wouldn't trust ... (a) doctor without checking their history,” she said.

But the limited information available on the Kansas and Missouri board websites doesn't offer much help to the average person trying to assess a doctor's background. Other states make some information about doctors' malpractice case histories public.

After years of study and legislative action, the North Carolina Medical Board started posting malpractice payment information about the doctors it licenses on its website in December 2009. A television news report on the postings caused a surge in web traffic.

“There has been a steady drumbeat from the public and the press for more information. This is the board's reaction to what the public expected,” board spokeswoman Jean Fisher Brinkley said.

The board doesn't report the dollar amounts of payments, nor does it list payments of less than $75,000. Some doctors were concerned that nuisance lawsuits settled for relatively small amounts would appear on their records.

“We had people boldly predict no one would want to settle a case again because they wouldn't want it to show up on their record,” Brinkley said. “As far as we can see, it's business as usual.”

Brinkley said the malpractice information might raise as many questions as it answers. She recently got a call from someone asking whether he should go to a particular orthopedic surgeon who had a report of a malpractice payment.

“I told him I can't say whether he provided substandard care. All I could say was he had a payment.”

But Brinkley has heard people say about the malpractice postings, “ 'If I had known that, I would never have gone to that doctor.' This allows patients to go in with their eyes open. The point is, we're being transparent.”

Lippert said the Kansas board has not discussed making malpractice payment information available in this way. In Missouri, the law was changed recently to allow the board to post information about doctors' education, discipline by boards in other states and practice limitations ordered by courts.

“To get this far is a dramatic step for transparency,” Ford said.

So far the Missouri board hasn't asked lawmakers for permission to disclose doctors' malpractice histories, Ford said, “but I think we're always reviewing possible legislation.”

John Chase serves as a reviewer of cases brought to the Florida Board of Medicine.

The Florida board investigates patient deaths and neurological injuries quickly, he said. “I know how this is supposed to work.”

Chase said he has never been sued for malpractice, but he worries about it with every patient he sees. And he believes insurance companies may settle malpractice lawsuits against doctors' wishes just to make cases go away.

“There can be a payout where there isn't negligence,” he said. “But again, where there's smoke, there's fire. It's (a medical board's) job to put the whole picture together.

“The best and most efficient way to discipline substandard physicians is through the board.”

To reach Alan Bavley, call 816-234-4858 or send email to abavley@kcstar.com.

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