South Dakota high court won’t force hospitals to disclose why they let a bad doctor operate on patients’ spines

SouthDakota-StateSeal.svgSouth Dakotans will need their state lawmakers’ help now to pry open physicians’ iron grip on secret decisions about which doctors get to practice in hospitals and why. That’s because the state’s Supreme Court ruled this vital information must be kept confidential, even if releasing it would serve a wider good of disclosing possible criminal or fraudulent conduct.

The high court ducked its potential role in helping more than 30 patients who claim they were mangled in excruciating, needless surgeries performed by Allen Sossan, an osteopath with an easily discovered criminal past and a checkered medical practice record in the area around Yankton, S.D. I’ve written about this case before.

Several South Dakota hospitals gave Sossan practice privileges after his credentials were reviewed by physician committees, which, since have fought mightily to keep secret what they knew and when they knew it about him. Sossan since has been indicted for providing false information to medical licensing authorities. The convicted burglar and check kiter apparently has fled the country and may be back in his native Iran.

A lower court judge had ruled that the hospitals and doctors could not keep secret their peer reviews, especially as numerous, fact-based lawsuits against Sossan indicated fraud or criminal conduct may have been involved. The hospitals and physicians are under fire because court cases already have shown they were concerned that Sossan operated too readily and poorly, even as they publicly praised him and positioned him as a skilled spinal surgeon. The hospitals, in particular, have been criticized for discussing their revenue potential from bringing on a doctor to perform highly lucrative back surgeries.

Sossan’s victims say he was brutal, inflicting, for example, multiple, complex, and major surgeries on one patient who also suffered infections and died in agony within a year of her care by him.

They wanted to force disclosure of why the hospitals granted operating “privileges” to Sossan to support their contentions that the hospitals were negligent and lax in bringing him on board.  If they could establish that in court, they would potentially be able to collect damages from the hospitals for the harm Sossan caused. His own malpractice insurance would likely cover only a small fraction of the harm he’s alleged to have inflicted.

The state Supreme Court, as it suggested in oral arguments, ruled quickly and unanimously that state laws exempted disclosure of physician peer reviews, and the only way this could be changed would be by South Dakota lawmakers. Other states have acted differently, and advocates noted that South Dakota’s high court carves out exemptions to laws in many other instances.

I know it isn’t easy for lawmakers to battle doctors. But this is an easy call for them to do the right thing. If there’s a worry that key information, not pertinent to a given legal dispute, might be disclosed when physician reviews are made public, judges can review the materials in private (“in camera,” as it’s known in the law). If these practices suffice for national security, they certainly could be applied here. If hospitals and doctors abet or commit fraud or crimes, they can’t be allowed to hide records that show this. Doctors’ groups in South Dakota say the Sossan case is an outlier, where bad facts shouldn’t create bad law. The extreme harm that he inflicted, as has been proven in court cases already, is indefensible—and medical leaders do themselves, their profession, their communities, and most of all their patients, an extreme disservice by not throwing sunshine on the wrongs and disinfecting a clearly nasty situation.

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