Hospital shielded heart surgeon with 21 malpractice claims, probe finds

catholicmedicalcenter-300x123He cut a dashing figure in ads and billboards for a New England community hospital, which had an administration desperate for a lucrative heart care program in a region  with famous academic medical centers. Dr. Yvon Baribeau, a Canadian-trained heart surgeon, seemed a perfect fit for the Catholic Medical Center, a place where he told colleagues he practically lived because he became one of the institution’s best-paid and busiest specialists.

He earned more than $1 million annually, and just one of his many operations brought in $200,000 to CMS before Baribeau suddenly retired at age 63.

What patients and the public didn’t know about the much-promoted surgeon was his shocking mistreatment of patients in a variety of ways, a notoriously poor medical performance that the Boston Globe has reported made him the holder of “one of the worst surgical malpractice records among all physicians in the United States.”

The newspaper based that description in part on information from a national database on physicians with records dating to 1990. The records provide a harrowing view of this singular surgeon’s grim metrics. As the Boston Globe reported of Baribeau:

“He has settled 21 medical malpractice claims tied to his work at CMC, including 14 in which he is accused of contributing to a patient’s death. There is no U.S. physician with more settlements involving surgical deaths in the last two decades, and no physician in New Hampshire with more settlements of any kind, than Baribeau…”

The newspaper had these other measures of his patient harms: In one year, 2020, he settled “a group of 17 malpractice claims against him, covering surgeries over six years,” as he readied for retirement. Before he was forced out of cardiac surgery at CMS, Baribeau also was at the center of what colleagues at his hospital have come to refer to as “the summer of death,” when he “performed five surgeries in just five weeks that led to patient injuries and deaths — and malpractice settlements,” the newspaper reported.

Lapses in a basic: post-operative care

He harmed patients by refusing to answer pleas from nurses and families for him to return to the hospital, as most doctors willingly do, for post-operative care, the newspaper found:

“A retired Army officer, for instance, died after alleged surgical errors by Baribeau caused so much blood loss that she needed transfusions equal to nearly five times her blood volume. A construction contractor passed away after Baribeau, while on call that night, did not come to the hospital for hours despite repeated phone requests to deal with this life-threatening situation. And a garage owner whose sternum Baribeau allegedly sawed off-center at the start of an open-heart procedure suffered severe complications and spent months in the ICU.”

The newspaper also found this:

“Baribeau has also been accused of keeping some patients with little or no hope for recovery on life support for at least 30 days after surgery — perhaps, it is suspected, to improve his surgical metrics and avoid having the death blamed on his work. Baribeau kept alive one patient even though his chest cavity had turned ‘black and necrotic,’ said a doctor who witnessed this.”

Or consider this conduct, as the newspaper reported:

“[J]ust five years into his tenure [at the hospital] … he was sued for allegedly cutting a critical vein to a patient’s heart by accident and concealing the mistake, eventually leading to the man’s death.”

Bigger issues raised

Baribeau has defended his work over decades of medical practice, arguing in part that he took on huge volumes of patients and difficult, complex cases that other heart surgeons would not. The Boston Globe, which published a multipart series on the surgeon (other parts can be accessed by clicking here or here, explained that the outrages of Baribeau’s career underscore the need for significant reforms, not just in one hospital but nationwide:

“This case out of a little-known community hospital in New England reveals painful truths that apply far beyond its halls and operating rooms and point to some common realities in today’s health care world: Medical consumers — patients in need — are often kept in the dark about the performance history of their physicians, even when that history is grim. And hospital officials can in some cases evade accountability for years, even when confronted repeatedly by alarmed medical staff, as happened in this case. It is one hard edge of a helping profession.”

As the Boston Globe reported, nurses and doctors — including respected medical leaders of the hospital — threw themselves and their careers at trying to stop Baribeau. But administrators not only turned a deaf ear to a sustained wave of complaints from medical personnel, they also went out of their way to discipline dissenters and to protect the surgeon who had become a cornerstone of their institution’s best-known and most lucrative practice.

The newspaper series, rich in careful, horrifying anecdotes about injured patients and angry loved ones, paints a damning picture of medical licensing authorities — in New Hampshire but also generally speaking.

The news articles show how regulators, simply by pulling malpractice lawsuits, could and should have seen the scope and scale of Baribeau’s problematic medical practices. State officials scrutinized his cases, including when furious colleagues insisted. But a dated and unhelpful website for the New Hampshire medical licensing agency gave patients no clue and no way to discover that Baribeau or other doctors in the authority’s jurisdiction had any issues.

To be sure, malpractice lawyers who pursued and won cases against the surgeon also have their moment of reckoning in the deeply reported series. The lawyers, in retrospect, agreed that they mistakenly allowed case files to be sealed and their clients to be bound by nondisclosure agreements as part of medical malpractice cases. This practice, which the lawyers said became all too common in the region in which they worked, kept the public and other patients from knowing about bad doctors like Baribeau.

In my practice, I see the harms that patients suffer while seeking medical services and the great fortitude they require to seek justice in the civil court system for damages inflicted on them by doctors, nurses, and other medical personnel, as well as hospitals, academic medical centers, clinics, and other health institutions.

Malpractice myths abound

Contrary to the myths that doctors, hospitals, and insurers like to conjure, malpractice cases are rare and only a sliver of doctors ever become defendants in them. That slice of poor and dangerous practitioners, though, typically amass not one or two but multiple malpractice suits and judgments or settlements. Though patients and their families especially hope that their successful malpractice cases will compel doctors and hospitals to make desperately needed reforms so others do not suffer similar harms, this may not occur.

Instead, research shows that risky clinicians — as evidenced by the multiple malpractice cases and judgments or settlements — just keep moving. They do so to avoid regulatory consequences. They go from working in big practices and big hospitals to progressively smaller ones as their malpractice cases accrue. This, however, means that they also may be increasing their direct contact with patients and lessening colleagues’ oversight and capacity to help if they get in jams.

We have much work to do to ensure that health care is a right and not a privilege — and that patients enjoy medical services that are safe, affordable, accessible, efficient, and excellent. We can and must keep pushing, too, to improve malpractice litigation, so it appropriately helps injured patients get justice, the financial and other resources they may need for as long as a lifetime, and remedies systemic and individual problems that medical practitioners and institutions may otherwise fail to address.

Avoid secret settlements

My colleagues and I, and our law firm have long been outspoken about how secret settlements not only hurt patient safety but also harm the individual patients we represent, when we have them sign off on a settlement that silences them from talking about a life-changing event in their lives. You can read about our stand on our website and watch a video by me talking about the issue. 

We plaintiff lawyers do have weapons to fight back against demands by health care institutions for secrecy. I’ve given many talks to lawyer groups around the country about this. I explain to them that legal authorities in a growing number of jurisdictions say that overly broad secrecy clauses are unethical and violate Model Rules of Professional Conduct, especially Rules 3.4(f) and 5.6(b). Both Maryland and the District of Columbia now hold that it’s unethical for lawyers to agree to cover up the public record facts about a legal case.

My own practice in settling cases is to agree to keep the amount confidential, since that’s usually in my client’s best interest, but to insist that the public record facts of the case have to stay public. That’s the best balance for public safety and the rights of the individuals involved.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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