Ignore doctors’ malpractice claims history? The U.S. did. 66 patients died. It cost $55 million.

ihs-300x197Although doctors, hospitals, and insurers may howl about the professional harms they claim to suffer due to medical malpractice lawsuits, research studies show that it’s just a tiny slice of MDs who  lose in court and must pay up for injuring patients. Further, the data show that the problem few doctors don’t rack up one, but two or three malpractice losses before they even start to see their work curtailed.

Common sense would suggest that if judges and juries find doctors’ conduct egregious enough to slap “frequent flyers” with multiple losing malpractice verdicts, these MDs might best be parted of the privilege of treating patients. Not only doesn’t that occur often enough, a Wall Street Journal investigation has shown the terrible consequences that can result for patients and taxpayers alike when it doesn’t.

The federal government, the newspaper reported, long has struggled to provide promised care through the Indian Health Service (IHS) to those who live on rugged, spare, and sprawling reservation lands. This obligation to provide such medical services is embedded in the Constitution and old treaties. But if it’s tough to get doctors to practice in rural America — where the hours may be extra long and the pay decidedly lower than cities — it had become a nightmare for the IHS to fill its many vacancies.

That’s when officials decided on a different strategy. They chose to ease up on the credentials and background checks that had existed to ensure the quality and safety of the medical care given to tens of thousands of native peoples across the country, the newspaper found:

“The Journal found that IHS managers didn’t always make basic inquiries about physicians’ work histories [checking, for example, readily available online databases of doctor complaints.] IHS officials hired doctors whom state regulators had punished for transgressions such as drug addiction or sexual misconduct. One doctor who was sanctioned by a state medical board after a patient accused him of sexually abusing her during a surgical exam found work with the IHS, records show.”

The agency also decided to give doctors with known problems elsewhere another chance. The agency “hired dozens of physicians with trails of medical mistakes and regulatory sanctions.”

That was a lethal mistake, as the newspaper reported:

“The Journal examined 163 malpractice claims against the IHS that the government settled or lost since 2006. One out of four doctors involved in those cases worked for the IHS despite a history that should have raised red flags by the agency’s own standards, the Journal found. At least 66 of the patients died as a result of the alleged malpractice, the analysis found. Insurance actuaries say U.S. doctors typically have one malpractice claim every 20 years or so. Surgeons and other high-risk specialists have twice that rate. The IHS was willing to hire doctors with many more lawsuits in their past, in some cases more than 10 in less than a decade.”

The results were ghastly when bad doctors treated the poor and chronically ill native patients. Among the cases the Wall Street Journal reported on:

  • “In 2016, the IHS hired obstetrician Bobby Ray Miller Jr., who reported on his application five malpractice lawsuits resulting in settlements totaling $2.7 million, an internal agency review says. Dr. Miller also was sanctioned by the California medical board after a patient bled to death following a caesarean section, records show. A baby died in the womb at the agency’s Crownpoint, N.M., hospital because Dr. Miller failed to treat the mother’s high blood pressure, the hospital’s medical staff found in the internal review. The review concluded that his history ‘foreshadows the tragic events that transpired in October 2017.’”
  • “Franklin Wolf, a surgeon who was sued for malpractice at least 11 times in Pennsylvania over an eight-year period. One patient claimed Dr. Wolf left a leak after a colon surgery, leading to a serious infection and a long hospital stay. The case settled for an unspecified amount without Dr. Wolf responding to the allegations, court records show. At least three of the lawsuits were either dropped or dismissed [for] Dr. Wolf. After being hired at an IHS hospital in Shiprock, N.M., he allegedly cut a tube connecting a patient’s liver to his stomach and punctured the man’s intestines during a 2008 gallbladder surgery. That led to a $170,000 settlement after the man died, court and Treasury records show. Dr. Wolf said in a deposition he didn’t believe he had caused the injuries.”
  • “When Annicol Marrocco was hired as a contractor at the Shiprock, N.M., IHS hospital in 2012, she had been disciplined by medical boards in Florida and New York for prescribing pain pills for her then boyfriend, board records say. On a single day, she prescribed 1,350 oxycodone pills, the records say. Dr. Marrocco later testified in a Drug Enforcement Administration proceeding that the man’s pet monkey had thrown some of the pills into the pool … At Shiprock, Dr. Marrocco sent home 18-year-old Lydell Begay, who was complaining of dizziness, with a diagnosis of pinkeye in March 2014, according to a later malpractice lawsuit. Within a week, he suffered brain damage from a stroke … Now 23, Mr. Begay is confined to a wheelchair and unable to speak. He communicates by pecking out texts on a cellphone … Dr. Marrocco disputed the malpractice allegations, saying Mr. Begay didn’t have ‘any kind of neurologic sign’ when she examined him. The government settled for $1 million last year. Hospital officials said in interviews that the doctor’s background made the case hard to defend.

The infuriating ineptitude of IHS doctors not only took an awful toll on patients, it has cost taxpayers at least $55 million in malpractice settlements, the Wall Street Journal reported.

Christopher Weaver, Dan Frosch, and Lisa Schwartz — who did the newspaper’s admirable deep dig — uncovered further indignities for IHS patients, who, the reporters noted, already are members of “some of America’s poorest communities, beset by high rates of diabetes, alcohol-related deaths and other chronic diseases.”

The agency that is supposed to treat native peoples and their needs, the newspaper found, also let problem doctors advance in the system sufficiently, so they could recommend colleagues — and, of course, these, too, were practitioners with big black marks on their records.

The newspaper said it launched its investigation after digging with journalists from the PBS series “Frontline,” finding the IHS had “long ignored complaints that a South Dakota pediatrician, Stanley Patrick Weber, sexually abused young male patients. Mr. Weber, who has been convicted in two trials and filed an appeal, was moved from one IHS hospital to another despite mounting allegations against him. In 2011, Mr. Weber, by then the subject of accusations, led the committee that vetted doctors for the Pine Ridge, S.D., IHS hospital, his résumé says.”

In my practice, I see not only the harms that patients suffer while seeking medical services, but also their challenges in pursuing claims in the civil justice system. Contrary to the myth that doctors, hospitals, and insurers spread, harmed patients and scrupulous lawyers file malpractice claims, not frivolously, but with great care and consideration. That’s because the stakes can be so high for patients, many of whom already are sick, injured, and debilitated. They know they may need significant support and medical care for the rest of their lives. But they seek not just financial compensation for medical damage. They also want a sense of justice and recognition that a wrong was committed against them and their loved ones — and that due measures will be taken to prevent others from suffering as they have.

That courage and sense of purpose should be saluted, not demeaned. And the medical establishment may wish to recalibrate its malpractice resistance, asking, for patients’ sake, what systemic or individual problems the cases surface and how these can be remedied to improve the practice of medicine. Malpractice cases can be beneficial to medicine.

It also is past time for the medical profession to step up the policing of its ranks, busting out bad performers who injure and kill patients — not due to freak or uncontrollable circumstance but with repeated negligence or professional failure.

We owe the people in the care of the Indian Health Service better treatment than giving them deadly and inept doctors, and the politicians in Washington, D.C., should fix problems in the agency. They also should take a huge lesson from the tragic mistreatment of native peoples, debunking forever the notion that poor performing medical retreads should, as an experiment, ever lay hands on patients again.

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