http://www.denverpost.com/Stories/0,1413,36~53~2001751,00.htmlBuried mistakes

The panel that monitors Colorado doctors works in secret. It can be harsher with doctors who fail in paperwork than with those who fail their patients. And it often doesn't warn citizens about doctors who may be hazardous to their health.

By Arthur Kane and Allison Sherry
Denver Post Staff Writers

The Colorado Board of Medical Examiners had investigated Dr. Jennifer Arnold twice before she treated Michele Dou- merc for her high-risk pregnancy.

But while warning Arnold about her "lack of attention to detail" in treating patients, the board with the power to revoke licenses or order remedial education did nothing more than send her two secret warning letters.

Doumerc and her full-term unborn son died after Arnold failed to properly treat a common pregnancy-induced hypertension, according to board records and a lawsuit filed by Doumerc's family. At that point, the board put Arnold, who denied wrongdoing in Doumerc's case, on probation and limited her practice.

"Shame on the system," said Doumerc's father, Roger Mangan. "Not only were there warnings, but the Colorado board slapped her on the wrist."

A Denver Post review of available board records and lawsuits filed statewide over five years found that the board regularly excuses or goes light on doctors who have made mistakes in their practices, reserving the most severe sanctions for physicians who use drugs, fail to fill out paperwork or have other problems not directly tied to patient care.

Court records and public board disciplinary actions compiled by The Post revealed numerous cases of doctors who received light or no punishment after patients died or were severely injured.

The medical board revoked no licenses last year and dismisses about 80 percent of the complaints it receives each year. The overworked, understaffed board is shrouded in secrecy, making it difficult for patients and lawmakers to hold it accountable.

Dr. Denise Crute of Pueblo has been twice accused in lawsuits of operating on the wrong part of patients' bodies. She agreed to pay a settlement in one case and is still fighting the other.

Six people accused Dr. Jay Law of Pueblo of paralyzing or injuring them in spinal surgery, prompting settlements in each of the cases.

The board has had repeated complaints about both doctors. Both have denied any wrongdoing. Neither has been disciplined by the board.

Even when the board acts against a physician who makes medical mistakes, it is more than three times more likely to use a secret letter of concern than to publicly admonish or restrict the doctor's license, The Post found.

Twenty-five other states do not use secret letters.

States that do use them use them far less than Colorado. California, with six times as many doctors as Colorado, issues between 14 and 37 secret letters a year for patient-care problems. Colorado's board, which oversees about 16,000 doctors, issues between 135 and 162 letters a year for questionable medical care, the board's president estimates.

Arizona also rarely uses secret letters for problems having to do with patient care, said Lisa McGrane, spokeswoman for the Arizona Medical Board.

"We want the public to know what exactly we're doing," she said. "We don't have the perception of hiding behind what we do here."

Colorado board members say the letters are useful in improving patient care without permanently placing a black mark on a doctor's record.

Colorado law does not give the board disciplinary guidelines for doctors' mistakes. In fact, out of a 49-page statute, only 14 words have to do with substandard care. Colorado law leaves everything to the board's discretion.

By contrast, Arizona's law sets up a five-part test to determine when and what kind of discipline is merited, even in a first-time medical mistake.

Colorado board members, most of whom are doctors, acknowledge that patient-care cases are harder to pursue and prosecute than such problems as using drugs or having consensual sex with patients.

"There's no doubt that the most difficult cases are the care cases," said former board president Dr. James Borgstede, who served on the board for eight years.

But board officials say they don't need written guidelines, or public scrutiny, to know when they're making the right decision.

"The public has to have some level of trust and confidence that the board is - within its powers - making good decisions," said board administrator Susan Miller.

Leniency has ripple effect

The board had investigated complaints against Greenwood Village family practitioner Dr. Jennifer Arnold since 1990, leading to a 1996 secret letter in her file.

In that letter, the board outlined four patient complaints, two of which prompted the board to remark about Arnold's "common theme of lack of attention to detail," in treating her patients. The other two were dropped. State law mandates that the board's proceedings occur in secret, so details of the cases remain sealed by the board.

The board's comparative penchant for secrecy and leniency, which it employed throughout its dealings with Arnold, would have lasting repercussions for three of her patients.

Three years after the first letter, the board sent Arnold a second letter after an investigation into the death of Shawn Freeman.

Freeman went to Arnold in December 1995, complaining of chest pain that spread out to his arms, difficulty breathing and nearly losing consciousness, according to a lawsuit his family filed. His mother said his family received a settlement from Arnold.

Arnold ordered an electrocardiogram, which was interpreted as normal. Despite his pack-a-day smoking habit and family history of heart disease, Arnold diagnosed the problem as panic attacks. Arnold said in her response to the lawsuit that she also told Freeman to stop smoking and seek help for stress.

Three weeks later, Freeman felt sick after a martial-arts class. He went into the bathroom and died of a heart attack at 32.

Just as in the 1996 letter, the board determined that Arnold had not paid enough attention to her patient.

"Your care of patient (Freeman) also reflected a superficial examination and diagnosis," wrote panel chairman Dr. Louis Kasunic, who questioned her diagnosis of panic attacks. Arnold denied any wrongdoing in her treatment of Freeman.

There is no way Doumerc could have known about the multiple investigations and warning letters when she went to see Arnold for her pregnancy.

Doumerc and her husband had recently returned home from France and were ready to start a family.

She was looking forward to taking over her father's State Farm insurance business as Roger Mangan planned for semiretirement.

But she was having trouble with the pregnancy. She had gained a lot of weight, her face and hands were swelling, and she was having trouble breathing, according to a lawsuit her husband filed against Arnold.

Arnold gave Doumerc drugs to lower her high blood pressure. Doumerc saw the doctor several times between December 1999 and Jan. 22, 2000.

With each visit, Arnold noted high blood pressure but neither hospitalized her patient nor referred her to an obstetrician, court records say.

But Arnold told Doumerc, who was nine months pregnant, that everything was fine, Doumerc's father, Roger Mangan, said. "When the baby drops, Michele will be able to breathe," Mangan recalls Arnold telling Michele and her husband, Brice, on Doumerc's last visit on Jan. 22.

Three days after that visit, the 33-year-old collapsed in her kitchen. Her last words to her husband were, "Brice, I don't want to die," Mangan said.

She and her son died before making it to the hospital.

Arnold had not properly treated a condition known as pregnancy- induced hypertension, a lawsuit filed by Doumerc's husband alleged.

The condition, called pre-eclampsia, affects about 5 percent of pregnant women, according to the medical website WebMD.

The doctor denied negligence or substandard care in her treatment of Doumerc, and Arnold's attorney in the Freeman case said Freeman's death was just bad luck.

"It's just being in the wrong place at the wrong time," said attorney Kay Rice.

Mangan said a lawsuit filed by Doumerc's husband produced a large, but confidential, settlement.

Arnold's attorney in the Doumerc case did not return calls seeking comment. Arnold continues to practice and declined to respond to repeated phone calls and a visit to her office from reporters.

A year and a half after Doumerc's death, the board acted publicly, noting that Arnold did not hospitalize Doumerc or consult about her with an obstetrician.

The board considered suspending Arnold's license. Instead the board agreed to permanently ban Arnold from obstetrics and placed her on five years' probation. They also made public, for the first time, the two previous "letters of concern" they had sent Arnold in the preceding four years.

Freeman's mother, Cheryl Gibson, a nurse who lives in Wood River, Ill., said she thinks Arnold's actions in her son's case merited discipline by the board against the doctor.

"I think her license should be pulled and she shouldn't be able to practice anywhere in America," Gibson said.

But the board's president, Dr. Ned Calonge, said board members can take action only on information they have in front of them - not out of concern for what may happen later in the doctor's career.

"The board made its best decision," he said. "Only in this case the admonition didn't work, but we can't look into the future."

Michele Doumerc's father scoffs at the suggestion the board could not have known to act sooner and questions the secrecy surrounding Arnold.

"The system is severely flawed," he said, standing over his daughter's grave. "They said you need to do better than that, (but) no one could see those slaps on the wrist because you can't get to them."

The families of Arnold's patients are trying to get on with lives that have been permanently changed.

Freeman's mother, Gibson, said her granddaughter was 10 when Shawn died and has been unable to deal with her father's death. "It sure messed up our granddaughter," Gibson said.

Doumerc's father is also dealing with the loss of one of his two daughters and has put off retirement because his daughter is no longer there to take on the business as he had hoped.

"You try to patch your life up and move on, but it's hard because there's a hole," Mangan said.

State's process 'arbitrary'

The 13-member Board of Medical Examiners did not revoke a single license in the 2003 fiscal year from Colorado's roughly 16,000 physicians, dismissing about 80 percent of the complaints it received. Board members did allow 10 doctors to surrender their licenses or retire. Arizona, with about the same number of doctors as Colorado, revoked or forced the surrender of three times the number of licenses last year.

When Colorado's board does take action, the punishment is often too light, critics say.

Only one of 35 doctors disciplined after patients died lost a Colorado license between 1998 and early 2003, a Post analysis of board records shows. Twenty-eight, or 80 percent, received letters of admonition, a letter made public that represents the board's lightest discipline. (A letter of concern is not considered disciplinary.)

Dr. Sidney Wolfe, director of Public Citizen's Health Research Group, said a letter is not enough punishment if a patient dies.

"If there's a death and any kind of (doctor) negligence, I wouldn't send out a letter of reprimand," said Wolfe, whose advocacy group ranks the effectiveness of state medical boards. "There need to be terms and conditions."

Public Citizen has consistently ranked Colorado in the top third for the number of serious disciplinary actions the board takes. But those rankings do not reflect that Colorado's board inflicts its harshest punishments on nonmedical infractions.

In July 1997, a baby girl was rushed to the emergency room when Breckenridge Dr. Patricia Duletsky failed to quickly diagnose and treat air in the space surrounding the baby's lungs, medical board records show. And three years later, a baby died after Duletsky used a suction device longer than the recommended 30 minutes, board records show.

The board decided in 2002, after both incidents, that Duletsky deserved a public letter of admonition.

She also currently is battling a lawsuit accusing her of missing a blood infection resulting in the death of a Breckenridge woman and her unborn baby, court records show.

Reached at her home in western Colorado, Duletsky said that she did nothing wrong in any of the cases and that it was happenstance that all her problems occurred in a short time span.

"I have many years of ... good practice besides these issues," said Duletsky, who is taking some time off to build a house with her husband but expects to return to medicine. "I felt that I might have had grounds to appeal (the board's letter), but I didn't want the expense."

The family members involved in the incidents declined to comment. Members of one family cited a confidentiality agreement signed after they received a settlement. The other has an ongoing court case.

Board members defend their actions.

"We could have acted ... (but) babies die," Calonge said of the case. "Does that mean the doctor can't learn to use the suction correctly? Something more has to happen before we see a pattern."

But doctors can receive severe punishment for problems having nothing to do with patient care.

More than 40 doctors have lost their licenses since 1998 for having drug problems, behavioral issues not tied directly to a patient injury, or other conduct, according to The Post's analysis of board records.

Dr. Willis H. Lawton agreed not to renew his Colorado license in 1999 for filling out patient charts late, board records show.

Except for his paperwork problems, repeated complaints against him, sparked by a competing clinic, were dismissed, he said. Board complaints are secret, and he declined to provide the documents, citing patient confidentiality.

After giving up his Colorado license, Lawton got a Kansas license "no questions asked" in 2001 so he could continue his traveling missionary work, he said. Kansas records show he has had no discipline or malpractice complaints.

Board members insist that out-of-practice conduct, and even paperwork issues, can be signals that a physician is headed for trouble in his or her medical work too.

But Lawton, who lives in Texas, said the Colorado process was arbitrary. "It drags you down, and you get bitter," he said.

Multiple-lawsuit surgeons

Complaints come to the board from hospitals, from patients and as a result of lawsuit settlements.

Since 1988, state law has required doctors or their insurance companies to report all monetary settlements or court judgments to board members.

In settlements of more than $100,000, board policy gives doctors 30 days to write a letter explaining the lawsuit. If a doctor or insurer pays out more than $250,000, the board staff usually subpoenas court records.

But those records are no guarantee that a doctor will be disciplined.

A Denver Post review of lawsuits in every Colorado county found a half-dozen Colorado doctors have paid out judgments or settlements in multiple malpractice and wrongful death lawsuits since 1998. Twenty-two other doctors statewide have paid settlements in one lawsuit that alleged serious medical treatment problems.

The Board of Medical Examiners has not disciplined any of those doctors.

Among them are Pueblo neurosurgeons Denise Crute and Jay Law.

Crute has settled four lawsuits in the past eight years and is fighting two others. Plaintiffs dismissed several other lawsuits they filed against her.

One person was left mostly blind after Crute allegedly cut into the wrong part of the brain, according to a settled lawsuit. Another person was injured during spinal surgery; Crute admitted in court documents in a pending lawsuit to operating in the wrong place.

Dr. Jay Law's insurer paid settlements in lawsuits after six patients were paralyzed or hurt during surgeries over a seven-month period. Some of those lawsuits contain documents showing that Law was treated for a substance-abuse problem - but he denies ever performing surgery under the influence or that substance abuse affected the level of care his patients received.

Between them, Crute and Law or their insurers have settled medical malpractice cases involving 10 patients, according to court records and interviews.

Today they practice together in Pueblo, but a patient checking up on them at the board's website would find that they have clean records.

Doctors on and off the board say the civil court system should not be used to judge the quality of patient care. "You can't equate malpractice with the medical board," said former board president Borgstede.

Insurance companies often urge doctors to settle lawsuits to avoid lengthy and expensive trials, doctors argue. They also agree to settle some cases - even when they believe they've done no wrong - rather than face the risk of a multimillion-dollar jury award that could exceed insurance coverage.

But a consultant for COPIC, the nonprofit insurance company that covers most Colorado doctors, and watchdog groups say a pattern of large settlements can indicate a problem. "You start seeing $200,000, $300,000 settlements, it is relatively safe (to say there) might be standard-of-care issues," said a former COPIC vice president George Dikeou, who is now a consultant.

Crute's troubles started in 1997, a year after she received her Colorado license. She released Dennis Mindenhall, who had been in an automobile accident, without evaluating an aneurysm another doctor had alerted her to, according to a lawsuit she settled with the Mindenhall family. That aneurysm burst, destroying Mindenhall's brain. He died two years later.

Before releasing him from the hospital, Crute told him to see a doctor if his headaches continued, and family members conceded in an interview that they did not find a doctor in the Front Range to treat him.

But a lawsuit Crute settled said she should have treated the man while he was at St. Mary Corwin Regional Medical Center. Mindenhall's family said the board should have disciplined her for the mistake.

"There are people out there who don't know what they're doing," said Dennis' brother Michael Mindenhall. The board "should police them (doctors) a lot more closely."

Surgery in the wrong place

A year after Mindenhall's accident, Monte Vista resident Cynthia Hart went to see Crute for a brain tumor. But the operation left her blind in one eye and partially blind in another, Hart claims in a lawsuit.

"Dr. Crute negligently excised (normal brain) tissue from a location different from the location of either the pituitary or the tumor," the lawsuit said.

Crute denied that she operated on the wrong place but cited patient confidentiality in declining to explain why she believes it was not a wrong-site surgery.

The medical board asked Hart's lawyer for the complaint and disclosure statements from the lawsuit in January 2003, the same month the case settled. There has been no disciplinary action since then. None of the board members would explain why. State law mandates that board deliberations remain secret. Members shred their board agenda packets at the end of each meeting.

The same year as Hart's surgery, Crute operated on the wrong part of the spine on Cañon City resident Charles Fortman, court records show.

She was planning to remove a herniated disc at one level of the spine but initially ended up removing the material at a different level, records say. At first, Crute's attorney said the court case was "frivolous and groundless," but then she changed her answer in May 2002, conceding that there was a "technical error."

"Defendant admits that the removal of the herniated intervertebral disk material at L3-4 intervertebral spaces was not an intended surgery," the filing said.

Fortman's wife caught the mistake after Crute came out to tell the family that she successfully removed the disc at level 3-4, his attorneys said.

Crute apologized to the family, took Fortman back to the operating room to perform the correct surgery and offered not to charge for it, according to medical records filed in the lawsuit.

Fortman is resigned to living with lifelong pain. "It was an inexcusable error," said his attorney Tom Helms.

Crute said her patients are so sick and the surgeries are so complex that she is likely to have some bad outcomes. She declined to discuss specific cases but said she doesn't believe there is a problem with her surgical technique.

The board investigated two settlements and found no mistakes, Crute said.

We "are often dealing with a subset of patients who are neurologically impaired, injured, extremely ill and/or who have life-threatening medical conditions before we become involved with them," Crute wrote in a letter responding to The Post's inquiry. "Even in the best of hands, complications occur in a certain percentage of neurosurgical cases."

Dr. Mark Chassin, chair of the health policy department at Mount Sinai School of Medicine, said operating on the wrong body part is typically the result of a series of mistakes by several hospital workers. Medical records filed in the lawsuit maintain that the X-rays were left in her office during Fortman's surgery.

But most Colorado board officials believe that this kind of error is clearly wrong.

"Wrong-site surgeries are one of the cases that are black and white," said board administrator Susan Miller.

The board members either refused to discuss Crute's case or could not remember either her or Law, despite repeated cases coming before the board.

A cluster of bad outcomes

Over a seven-month period, six patients who alleged in lawsuits that they were paralyzed or otherwise injured in surgeries performed by Law received settlements.

Kim Williford, 47, moved to Boulder County from Kansas because she liked hiking. She took a job at a magazine subscription company and wanted to go to nursing school.

Williford was on workers' compensation leave with carpal tunnel syndrome when she developed reflexive sympathetic dystrophy. The disease causes immobilizing pain that shoots from her back to her limbs. Her daughter, Nikki Martinez, described RSD as feeling like "getting run over by a car."

Like four of the five other patients who sued Law, Williford declined to talk to The Post because of confidentiality agreements signed after malpractice settlements. The fifth could not be located.

Williford, then 40, was referred to Law for help because of his renowned use of spinal-cord electrical stimulators as salves for chronic pain.

She liked a temporary stimulator enough to get a permanent one placed near her spine in February 1997. During the surgery, which Williford was partially awake for, she begged Law to stop because it hurt so much. But Law kept going, court records allege. Law denied any wrongdoing.

After Williford had lost all feeling in her legs, Law tried to reposition the stimulator the next day to return feeling to her legs. It didn't work, according to Williford's claim.

Williford can move her arms but is paralyzed from the chest down. She battles recurring bladder infections and painful leg spasms.

Williford received a $1 million settlement from a malpractice lawsuit she filed with three other Law patients, according to the settlement documents in the court file.

Pointing out that Law performed about 1,500 operations with few problems over 15 years, Law's attorney called Williford's case, as well as the five other patients injured starting in 1996, a "cluster effect" of bad outcomes. They are simply a group of injuries that statistically could have been expected during his career but happened all at once, said Law's attorney Gary Blum.

Patients suspect another reason for the problems, lawsuits allege.

Months before the surgery problems, nurses at Swedish Medical Center reported to the medical director of the emergency department that Law smelled of alcohol, court records show. He was treated for depression and substance abuse in the months before most of the surgeries had occurred, according to his medical records, included among documents in a lawsuit filed against him.

Martinez, Williford's daughter, smelled alcohol on Law's breath during two appointments she went to with her mother, according to an affidavit.

"I told her that I smelled alcohol, but she was in so much pain," the Broomfield resident said in an interview. "She wanted to believe in him."

What medical records tell

Law, who declined an interview but replied to allegations in a letter, denied that he was ever under the influence during surgery.

"I was always in an appropriate, even unusually focused frame of mind for treating these unfortunate persons, and did my very best to help them," he wrote. "The Board of Medical Examiners thoroughly reviewed these actions against me including medical records and expert reports, and after such review no discipline resulted."

Law told his psychiatrist that he had not consumed alcohol for a year and a half before the spate of surgeries that sparked lawsuits against him, according to the medical records filed in the lawsuit. Officials at the Colorado Physician Health Program, which helps doctors with substance-abuse problems, determined that his depression was in remission and that he showed no signs of substance abuse before approving Law to continue his medical practice before the problem surgeries, court records show.

Along with Williford's case, Law settled a case for $600,000 with Paul Stewart, and $125,000 with Edward Shapiro, according to a side lawsuit over legal fees between the plaintiffs' attorneys. The rest of the settlements are confidential.

Though Crute, Law or their insurance company had to report paying settlements to the state, several of the patients' family members said the medical board has not contacted them to get their sides of the story.

In a few cases, the board asked for medical records or legal documents, but no public action was taken.

Board members say they can often dismiss a case by looking at medical records, and they do not want to bother patients who have been injured.

But critics say doctors are unlikely to document mistakes that can lead to lawsuits or discipline.

"Medical records are the physician's version of what happened," said James T. Ball, a Chicago lawyer, who represented a patient of another doctor who had multiple settlements but no discipline. "Unless and until medical boards work in conjunction with plaintiffs' lawyers after a verdict or a settlement, significant cases of incompetence are going to be overlooked."

Board officials point to an internal study that shows doctors rarely lie in their medical records.

The board, however, has other evidence that the medical records often do not tell the whole story. The board accuses about six doctors a year of falsifying or submitting incomplete records.

A review of medical records in several cases shows doctors often do not include errors in the paperwork. For example, Crute's report after she operated on the wrong level of Charles Fortman's spine says, "There were no complications." That chart also does not say that she operated on the wrong place.

Miller concedes the board might someday revisit its reliance on medical records and doctors' responses.

"I can't sit here and tell you the process is perfect," she said. "I think it's a good one."

Contact Arthur Kane at akane@... or Allison Sherry at ASherry@... .

COMING MONDAY:

Its comparatively small budget and lack of investigative help make it inevitable that members of the Colorado Board of Medical Examiners will eventually be called to rule on doctors whom they know.

All contents Copyright 2004 The Denver Post or other copyright holders. All rights reserved. This material may not be published, broadcast, rewritten or redistributed for any commercial purpose.

Terms of use | Privacy policy