Health Care

Kansas law offers little hope for patients who may have received unnecessary chemo

Kansas oncologist is the subject of a pending federal lawsuit

Despite an impending federal lawsuit against Kansas oncologist Mark Fesen for alleged Medicare fraud related to unnecessary cancer treatments, families have little legal recourse under Kansas law.
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Despite an impending federal lawsuit against Kansas oncologist Mark Fesen for alleged Medicare fraud related to unnecessary cancer treatments, families have little legal recourse under Kansas law.

When Joanne Clarke read the recent news that oncologist Mark Fesen was going to be sued by the federal government for alleged fraud, she started crying.

“It brought all of this back. Every bit of it back,” said Clarke, remembering the agonizing pain her husband had been through while taking what two other doctors said was unnecessary chemotherapy years ago.

While the federal government will get its day in court for the alleged Medicare fraud related to what it calls unnecessary cancer treatments, hundreds of patients and their families, like Joanne Clarke, have little recourse for potential medical malpractice claims under Kansas law.

In 2008, Joanne’s husband, Velven, was diagnosed with multiple myeloma after a routine test. The 70-year-old county worker in rural Jetmore, Kan., needed opioids just to sleep. He could barely walk.

But the pain wasn’t from cancer. It was from Velcade, a chemotherapy drug that his doctor, Mark Fesen, had prescribed.

After two months on the drug, Velven Clarke wanted to die. “We had to go downstairs and lock up all his guns,” Joanne said.

When they approached the doctor about the pain, Joanne Clarke said the only option they were given was for Velven to be admitted to the hospital for more pain drugs.

That’s when the couple decided it was time for a second and third opinion. The Clarkes were told by other doctors that because Velven’s cancer was in the early stages and he was asymptomatic, he shouldn’t have been treated with Velcade. He stopped taking the drugs, but for months continued to feel the effects.

Eventually, Clarke was back to doing what he loved best: riding his motorcycle across the country with Joanne. He died in 2012 from heart failure.

Last month, the federal government announced it planned to file a lawsuit against Fesen and the Hutchinson Clinic where he previously worked.

Fesen and the Hutchinson Clinic did not respond to requests for comment.

The vast majority of Fesen’s patients likely would not have the ability to file a malpractice suit because of two laws: the statute of limitations and the related statute of repose, according to Blake Shuart, an attorney with Hutton and Hutton law firm in Wichita.

Under the statute of limitations, a medical malpractice lawsuit must generally be filed within two years. That two-year period can be extended if a person did not know they were the victims of malpractice at the time. However, even with the possible extension, the state’s four-year statute of repose says that medical malpractice lawsuits have to be filed within four years of the date of the negligence.

Fesen has practiced in Kansas since 1993, and has likely had thousands of patients since that time.

“The first thing on people’s minds when they’re injured and hurting is not usually filing a lawsuit, and unbeknownst to them, they’re faced with strict time limitations that end up damaging or ruining their case by the time they have to take action,” Shuart said.

“Legislators have decided they want health care providers to have some degree of predictability regarding how long they might have exposure for mistakes they’ve made, even if that means barring some claims that lead to unjust situations. They’ve determined that overall these laws benefit society by furthering the ability of health care providers to practice medicine.”

Even though Kansas’ statutes on time limits to bring a lawsuit are mostly aligned with other states, other areas in malpractice law — such as low caps on damages and low insurance requirements — combined with the time limitations make it more difficult for patients to receive compensation, Shuart said. Kansas has one of the lowest caps on malpractice damages in the country.

Additionally, Kansas has a peer review law that Fesen and the Hutchinson Clinic could argue bars the admission of internal audits that the clinic commissioned while he was employed there. Those audits were meant to determine whether “health services rendered were professionally indicated or were performed in compliance with the applicable standard of care.”

Several families and patients who were treated by Fesen told The Star they didn’t feel like they had any options at this point because it had been years since the treatment, and at the time they didn’t know their cases were not isolated incidents.

“It’s tragic,” said Sen. Barbara Bollier, a Mission Hills Republican and retired anesthesiologist. “People deserve recompense from harm. We need to look at the law relative to the situation.”

Bollier said she was particularly interested in examining the state’s statute of repose, which puts the four-year time limit on a claim. It was enacted by the Legislature in 1976.

Rep. Abraham Rafie, an Overland Park Republican on the health and human services committee, who is a diagnostic radiologist, stressed that alleged systemic, fraudulent practices are not typical malpractice cases.

“There’s a difference between knowingly doing something and maybe in good faith doing something that has a bad outcome,” he said.

“Outlier cases can be a sentinel event. Now that this case has come out, it helps highlight that, if there are other similar situations, let’s address them. But we also have to ask the question, ‘Is the system broken?’ If yes, let’s remedy it. If no, let’s address the outliers and continue to refine the law as opposed to significantly alter it.”

Whistleblower suit

Fesen, who was the subject of an investigation four years ago by The Wichita Eagle, worked for the Hutchinson Clinic from 1993 to 2011, until he left to work for Central Care Cancer Center, which has offices across the state. The center’s website says Fesen currently works at its offices in Wichita and Great Bend.

A federal whistleblower lawsuit was filed by Frank Tra, a former clinical oncology pharmacist at the Hutchinson Clinic, in 2014. Some of those court records were recently unsealed at the request of U.S. Attorney Stephen McCallister, whose office plans to file its own lawsuit within 90 days.

According to the suit, Tra began in 2008 reviewing “denials” for Fesen’s claims by insurance providers, including Medicare and Medicaid. He alerted the clinic, which eventually asked an outside auditor to review Fesen’s practice.

The audits found widespread compliance issues with the National Comprehensive Cancer Network guidelines, including issues with misdiagnosing patients, inappropriately treating patients, overtreating patients and “fractionated dosing,” where a physician splits the dosage of chemotherapy or related drugs and administers them over a period of days or weeks. This practice can make the drugs less effective, and allow for a physician to bill for multiple office visits.

The Wichita Eagle previously obtained copies of the audits, which included several case reviews that looked more in-depth at patient diagnoses. Patients’ names were redacted.

One patient was treated for more than four years as having lymphoma, a cancer of the lymphatic system. The patient didn’t have cancer, according to the auditor. An 86-year-old patient with a non-cancerous condition was “inappropriately” treated for nearly three years with the chemotherapy drug cyclophosphamide, according to a case review.

In another case, the radiological diagnosis of active lymphoma in an 83-year-old “is a fantasy,” the auditor wrote. That patient was given Rituxan, an antibody drug used with chemotherapy, almost continuously for eight years. The manufacturer says the drug should not be used for more than two years.

“A significant fraction of them are being unnecessarily treated — often too early, too much and too long,” the auditor wrote. “Dr. Fesen’s default is to treat, treat and treat some more.”

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Audits at the Hutchinson Clinic found some treatment issues with patients of oncologist Mark Fesen, who left the clinic in 2011. Kelsey Ryan The Wichita Eagle

At the time the audits began, the Hutchinson Clinic spent about $30 million annually on cancer drugs and had about 750 new cancer patients each year, according to internal documents.

“He made millions for the clinic,” said Linda Guieb, who was treated with the chemotherapy drug Rituxan for years under Fesen’s care after a diagnosis of non-Hodgkin’s lymphoma. “The whole third floor was his and that place was packed.”

In the 2000s, Guieb never went more than two years without the cancer recurring. She had several bone marrow biopsies done during that time.

“They’re excruciatingly painful. They take a needle and corkscrew device, drill it into the bone and they draw the marrow. It’s the deepest pain I’ve ever experienced. One time, I clenched my fists, and said, ‘Oh, God,’ and Fesen replied, ‘Yes?’”

After The Eagle’s article ran in 2014, Guieb got a second opinion from another doctor, who said he would not have done the Rituxan or all of those bone marrow biopsies. Now, at age 70, Guieb has been in remission for more than six years.

“I hope that people get justice. If they’ve been wronged, I’d like to see it righted. But how do you right something like that? It’s like the door’s shut.”

Court documents from the U.S. Attorney’s office say the Hutchinson Clinic never attempted to pay back government insurers for false claims payments and never informed Fesen’s patients of its findings. That’s the part that makes Joanne Clarke the most upset.

“They didn’t suspend him. They didn’t do a damn thing,” she said. “Basically he just resigned and went to another clinic. We didn’t know he was doing this. Nobody informed us. They can keep all this from you and you can’t do anything about it. I’m glad the government is coming down on him at least.”

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Velven and Joanne Clarke on their 50th wedding anniversary in 2008. Joanne Clarke Courtesy

Clarke said she considered going to an attorney at the time, but they had a relative who worked at the clinic and “didn’t want to cause a family feud.” When she saw an Eagle article about Fesen four years ago, she thought law enforcement would take care of it quickly.

“They failed. He’s still practicing,” she said.

Fesen is still licensed to practice in Kansas, and no action has been taken on his license. Several former patients and their families who spoke with The Star wanted to know why.

Kathleen Lippert, executive director of the Kansas Board of Healing Arts, said she cannot comment on specific cases. However, she said that if there are criminal charges filed against a physician, that triggers a review by the board. Administrative action can also occur without criminal charges.

“There are often multiple issues. One area would be standard of care, another area would be billing, another fraud,” Lippert said.

The board’s active investigations are not public record. About half of the investigations are resolved within nine months, but the rest take far longer, she said. Those cases are often more complex and involve more patients and multiple experts to assess whether a doctor gave the standard of care for each particular situation.

Additionally, while the board has the statutory authority to obtain peer review documents — like the audits the Hutchinson Clinic had on Fesen’s practice — it can’t base any decisions on the documents alone.

In 2013, Sherri Dixon and her husband, Bryan “Bud” Dixon, moved to Wichita from San Diego. Bud had been diagnosed with leukemia after enduring prostate cancer and his oncologist in San Diego had suggested not starting treatment yet.

“They said ‘There’s no sense putting your husband through all these treatments because it will just zap him,’” Sherri Dixon said.

The first doctor they saw in Wichita recommended chemo, and so did Fesen, who they saw for a third opinion.

“Fesen said it could give him a better quality of life and a little longer life if we start these treatments,” she said.

But that’s not what happened. Bud spiraled downhill from the very first treatment. He had blood transfusions and then heart problems. In May 2014, Bud said he didn’t want to do it anymore. They never heard from Fesen again.

“Every night when he would go to sleep he would say a prayer that he wouldn’t wake up in the morning,” Sherri Dixon said. “It wasn’t anything like what Fesen said.”

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Sherry and Bud Dixon enjoy their last vaction together in Hawaii. Courtesy

She said his office billed insurance $5,000 for every treatment.

“Our insurance carriers, Medicare and Tricare, paid thousands of dollars to Dr. Fesen’s organization. … I am convinced that Dr. Fesen saw a good opportunity to collect from excellent insurance companies.

“I guess I made a mistake choosing him. The outcome wouldn’t have been any different for Bud, but it might not have been as bad.”

Dixon didn’t immediately consider a medical malpractice lawsuit after Bud’s death. The statute of repose for Bud’s treatment would have ended last month. But she said she wishes now there was a way for families to have their voices heard.

“A lawsuit won’t bring him back,” she said.

The Star’s Andy Marso contributed to this report.
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