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A Culture of Silence
S.D.'s secret system puts patients at risk
Kevin Dobbs
Argus Leader
3/28/2004
(c) 2004, Argus Leader
RAPID CITY - Diane Mousseau checked into Rapid City Regional Hospital expecting neurosurgeon Steven B. Schwartz to ease her festering back pain.
Instead, the 61-year-old woman says, she walked into a horror chamber of malpractice and emerged crippled.
Schwartz operated on Mousseau twice in 2001 to mend her injured back. She said the first surgery did not work; in the second, he operated on the wrong part of her back. Ultimately, the error caused irreversible spine and nerve damage, she alleges, sentencing a woman with treatable back problems to life in a wheelchair.
"The pain is so awful now," said Mousseau, who once delighted in walking her dog and cooking. "I can't walk more than a few steps. I can't do those things the same anymore. It makes you so angry."
Mousseau filed a complaint with the state board that investigates claims of misconduct by doctors. Several of Schwartz's other patients also complained about his work to the board or to the hospital. At least 14 have sued him.
In December, more than a year after Mousseau's complaint and nearly three years after the first alleged major mistake made by Schwartz, the South Dakota Board of Medical and Osteopathic Examiners decided Schwartz wasn't qualified to be in the operating room. Schwartz, 37, agreed to be placed on probation and complete 15 months of training before treating patients again.
The Schwartz case highlights the need for state medical boards and hospitals to efficiently ferret out sloppy doctors. But an Argus Leader investigation found South Dakota's system too often fails to protect the people it is supposed to serve - patients.
Among the problems: The state medical board charged with investigating complaints against doctors is run by doctors and, unlike in other states, it is hesitant to take action. In fact, records show that North Dakota, a state with a comparable population and almost as many licensed doctors as South Dakota, disciplines physicians three times as often.
South Dakota medical board members say the state's strict licensing requirements help keep the number of problems down. In addition, they say they have been hampered in aggressively pursuing bad doctors because of a state law that sets a vague standard under which physicians can be disciplined. That wording was changed by the 2004 Legislature to give the board more leeway.
The South Dakota board's investigations and the records they produce have been shielded from the public in a way unparalleled elsewhere. It is the only state in the country that refused to provide a list of disciplined doctors to a national consumer group. The Argus Leader obtained records of the past three years of disciplinary actions after three months of requests and a lawyer for the newspaper repeatedly citing state laws that indicate the records should be open.
"You have a state that has little meaningful oversight" over doctors, said Dr. Sydney Wolfe, director of health research for the independent consumer advocacy group Public Citizen. "If people really knew that, they wouldn't tolerate it."
The South Dakota board's executive secretary, Paul Jensen, said in order to treat doctors who face unfounded accusations fairly, the task of investigating doctors must be done in secret.
But Jensen and board members never cited a legal reason to explain why they stalled for months before late last week providing a complete account of actions taken against negligent doctors.
In many area states, medical boards have begun more aggressively studying doctor complaints and have improved reporting methods. In Minnesota, for example, consumers can simply go online to find disciplinary actions taken against doctors. North Dakota publishes a list of such actions in a newsletter. Iowa provides records upon request.
A lawyer for the South Dakota medical board said Friday that members on the panel decided to reverse their position because they now believe "it's in the public's interest." Charvin Dixon said not releasing lists had been the board's policy for nearly two decades and that the board did not want to rush into a policy change. The board's president did not return calls Thursday and Friday.
In neighboring states, the language detailing doctor disciplinary procedures is often more detailed, and most similarly sized states are more aggressive than South Dakota, records show. Wyoming, the most active on a per-capita basis, handed out serious disciplinary action to doctors 12 times in 2002, the most recent year for which national data has been analyzed to compare states. South Dakota recorded four such actions (one disciplinary action was against a physical therapist).
South Dakota hospitals, too, report relatively few adverse actions against doctors, according to health care analysts. The state's hospitals are the least likely of any state to report reprimanded doctors to a federal program designed to track actions against doctors. Nearly 80 percent of the state's hospitals have never reported to the National Practitioner Data Bank. The data bank does not list hospitals by name.
Compounding matters: Hospital medical staffs here, as in other areas of the country, are allowed to conceal information about how they investigate patients' complaints.
Hospitals such as Rapid City Regional - which denies wrongdoing in the Schwartz case but refuses to discuss specifics of the matter - are required to do an internal investigation after accusations of malpractice. But state law also allows the proceedings to be kept from the public. Officials never told Mousseau if they meted out discipline in her case.
In fact, Mousseau thinks the only reason Schwartz was reprimanded by the state was because another Rapid City surgeon came across hers and other cases and publicly criticized the hospital for allowing the string of errors to happen. That whistleblower, in turn, was punished by the hospital. No public reason was given.
Though no one disputes that only a small number of doctors put patients at undue risk, South Dakota's medical oversight process allows doctors to operate far more secretly than in other states, depriving the public of protection against malpractice, patient advocates and lawyers say.
"It's a closed shop," said Glen Johnson, a Rapid City lawyer who has handled malpractice cases. "They feel a need to protect their own."
Conflict of interest?
Hospital administrators say the fact that South Dakota reports rarely to the federal data bank is a sign that it simply has fewer problems than most.
Doctors say they're working in a sue-happy climate and that forces them to work behind walls of silence.
Nationally, the number of payments in malpractice lawsuits far outnumbers disciplinary action handed down by the medical industry. Federal reports show that between 1990 and 2003, insurers made 273 malpractice payments in South Dakota. That's four times the number of serious actions reported by the state's medical board and hospitals in that time frame. In North Dakota, payouts are only 1.5 times greater than medical board and hospital actions.
The disparity in South Dakota indicates a state that is overly lenient, critics say, blaming the makeup of the medical board and its unwillingness to share information.
The board's executive secretary also heads the South Dakota State Medical Association, the physician advocacy group. South Dakota is among a handful of states known to house its physician lobby and the medical board, the state agency that disciplines doctors, under the same roof.
States typically separate the two, citing a conflict of interest: simultaneously lobbying for a profession and trying to police it. "They have two very different roles in life," said Ann Mowery, director of the Iowa Board of Medical Examiners, which has no administrative ties to the physician lobby in the state.
Diversity on the South Dakota board itself is minimal, too.
Five of six governor-appointed board members here are doctors, with one spot for a layperson. Most area states have at least two laypeople to make sure doctors don't favor covering for their own over finding the truth. Some, such as Iowa, also employ investigators with no ties to medicine.
South Dakota board members defend their system, saying since the state is sparsely populated, it's common for one person to take a leadership role in two organizations. And the board is small compared to other states - Minnesota's board, for example, is twice as big - giving one layperson a strong voice.
But others say it's not surprising that a Public Citizen analysis of the number of serious disciplinary actions taken by states - including revoked medical licenses and probations - ranks South Dakota as the nation's 39th-strictest state. It disciplined a third as often as top-ranking Wyoming, North Dakota and Alaska in 2002 - states with fewer doctors.
At the core of Public Citizen's health research is an analysis of 1990s state medical board data, which it used to compile lists of questionable doctors and how they've been disciplined. It recently updated its data bank with figures for 2000 and 2001 from every state except South Dakota, which would not release records.
"It's a preposterous, anti-consumer posture," Wolfe, of Public Citizen, said. "It's really disgraceful behavior."
When medical board President Dr. Robert Ferrell, a Rapid City doctor, initially refused to provide records of disciplinary actions to the Argus Leader, he said, "Providing a simple list does not serve the public's interest or the interest of the physicians."
Noting that finding a doctor is perhaps the most important decision a consumer makes, most states publish lists to make it easy for patients to research several doctors at once and to make state-to-state comparisons. More than half list disciplinary actions online.
"The public has a right to know," said Robert Leach, executive director of the Minnesota Board of Medical Practice.
Ferrell said that ranking states by how many punishments they hand out, as Public Citizen does, is flawed because it does not account for what's unique about each state.
For example, Ferrell said, South Dakota is among just a few states that require doctors to complete their residencies - post-medical school, on-the-job training - before getting a medical license.
"We're probably the most difficult state in the union, and for that reason, we don't have to revoke or suspend as many licenses," Ferrell said.
Other doctors insisted South Dakota's small size makes it relatively easy to monitor doctors, another deterrent. "I have to believe there is no whitewashing of problems," said Dr. Jim Reynolds, a Sioux Falls surgeon who is on the medical board.
Losing trust
Mousseau said she is unlikely to undergo surgery again, but if she ever had to, she'd want access to all public information about doctors she might consider to handle the operation.
In her lawsuit against Schwartz, she explained how things went so wrong in her case to illustrate why that's crucial. She found herself under Schwartz's care in the spring of 2001 after her back pain wouldn't go away.
He advised surgery to alleviate pressure on parts of her spine, her lawyer said. So on June 6, 2001, Schwartz operated at Rapid City Regional. After the surgery, Mousseau's pain worsened, spreading from her back deep into her left leg.
She tried medications but later went back to Schwartz, who told her that something in her vertebrae had slipped and caused more problems. He advised another operation to stabilize her vertebrae - this time at the Black Hills Surgery Center, a specialty hospital in Rapid City.
Mousseau alleges that Schwartz operated on the wrong level of her spine, failing to treat her problem. She claims the procedure further weakened her spine by cutting in an area that didn't need work, placing more pressure on her original injury.
She is now too weak for a corrective operation, and pain has spread to her right leg. "It's like a piece of dead wood," she said.
Worse, she added, it wasn't until August of 2002 that she learned the cause of her problems might well have been malpractice. And that
didn't come from the hospital or Schwartz. Instead, the surgery center had come across cases of Schwartz's and suspected errors.
Dr. Larry Teuber, a surgeon and partner at the surgery center, said he told Mousseau and other former Schwartz patients that X-rays and follow-up exams showed they were victims of bad surgeries.
Teuber said the medical board and hospital staffs rely on physician-produced records for their investigations. But some doctors, leery of discipline, choose not to document mistakes, leaving investigators with only a partial version of what happened.
Teuber and patients such as Mousseau see a closed society unfettered by public scrutiny, one that hides behind laws that allow doctors to dismiss patients' complaints and hospitals to keep nearly anything related to their internal investigations, called peer reviews, confidential.
State law allows hospitals to keep peer reviews secret so that medical staffs can freely discuss problems without fear of being sued. After an alleged mistake, doctors study records and talk with staff involved to determine what went wrong. In turn, they are expected to weed out troublemakers and prevent mistakes from being repeated.
Many doctors defend the system.
"The only way to get people to talk is to tell them that everything they say is confidential," said Dr. Tim Frost, medical staff chief at Rapid City Regional. "If you tried every doctor in the public's eye, you wouldn't have any" doctors.
Medical directors from Sioux Valley, Avera McKennan and other hospitals agreed.
Dr. Dave Kapaska, senior vice president of medical affairs at Avera McKennan, called peer review vital because only a group of surgeons, for example, have the know-how to determine if another surgeon made a mistake.
"Most of medicine today is shades of gray, and determining which shade is right and which is wrong is a difficult call. It's not a perfect system ... but every doctor could experience a negative outcome and not be at fault, so protection is needed," he said.
Difficult to fix
Teuber, though, argues that the secrecy of the system makes it more difficult for medical boards to identify and discipline bad doctors.
There are other examples in South Dakota:
• A Day County woman is suing Avera St. Luke's Hospital in Aberdeen, claiming that it did not identify and discipline a surgeon who performed unnecessary surgery on her.
• A Martin couple settled a lawsuit that claimed their son died because hospital staff did not take standard steps to treat him for dehydration, and the hospital never acknowledged mistakes.
Though hospitals deny it, critics say they are too vested in the doctors and the revenue they generate, especially surgeons in lucrative areas, to find fault with their work.
A neurosurgeon such as Schwartz could bring in tens of thousands of dollars on a single case for Rapid City Regional. Mousseau and others argue the hospital looked at Schwartz and saw dollar signs, not red flags.
"For financial reasons and perhaps otherwise," Mike Loos, Mousseau's lawyer, said of the Schwartz case, Rapid City Regional "failed to do what a reasonable institution would have done at a time when it should have known action needed to be taken."
Regional's president, Dr. Charles Hart, said that couldn't happen and instead said lawyers, eager to sue, make doctors' and hospitals' right to guard information paramount.
He said when "litigation is one of the first things that starts to go on, you don't get frank and open discussion" without secrecy.
But Mousseau notes that at least a half-dozen of the suits filed against Schwartz involve cases that happened after hers. Some of the former patients also sued the hospital. Even if the hospital couldn't protect her, it should have warned others about Schwartz, she said.
Patricia Kostel, 46, musters a caustic smile at that thought. She went to Schwartz in March 2002 and alleges in her lawsuit against the doctor and Regional that the hospital knew months earlier that Schwartz had made mistakes in surgeries but did nothing about it.
When he operated on Kostel, she said he did so on the wrong area of her back. She went into surgery with persistent pain but fully capable of walking on her own. The errant operation further aggravated Kostel's problems, she said, and now she needs canes to walk. She had to quit her job and worries she'll lose her house.
"I just feel betrayed by the system," she said. "I have the right to know why this happened. ... But the system doesn't allow that."
Schwartz, who started practicing in Rapid City in 2000, did not respond to interview requests after Mousseau and Kostel filed suit. He has since left South Dakota and could not be reached.
He has settled at least one case out of court but is defending himself against the others, which might go to trial later this year. Lawyers representing Schwartz did not return calls.
Isolated problems?
The medical board cautions that cases such as Schwartz's rarely surface. The board members say they do everything they can to expose the few doctors who are a threat.
Anyone with direct knowledge can file a complaint to the board - including doctors - but the "vast majority" of complaints concerning incompetence come from patients or their families, said Dixon, the board's lawyer. The board does not routinely interview alleged victims and doesn't always notify them about its decisions.
But Dixon, along with one board member and Jensen, reviews written complaints and records. If there's a problem, they either ask the doctor to agree to a punishment or make a recommendation to the full board, which then reviews the evidence, Dixon said.
Other states rely more on doctors to expose the bad physicians among them. In 2003, North Dakota officials disciplined doctors 17 times, and none of the cases started with a patient complaint. Iowa and Minnesota medical board officials said they also act often on complaints originating from hospitals or their staffs.
Rolf Sletten, director of North Dakota's medical board, said doctors are in the best position to know and document bad medicine and also to know how to report it. It's a matter of establishing a culture of openness, in which citizens expect candid explanations about mistakes - whether it comes from doctors or an aggressive medical board, Sletten said.
But Dixon said South Dakota's medical board overall is comfortable with how it operates, and he emphasizes that the kinds of problems the state faces often do not require formal action. Dixon did not provide specific numbers, but he said the majority of cases the board sees involve behavior such as a doctor with a drinking problem. Such doctors usually agree to seek treatment.
In many severe cases, doctors are often facing legal troubles as well, and they forfeit their license, simplifying the medical board's role. That's how it worked with Dr. Marden Brown of Chamberlain, who in January was sentenced to 30 years in prison for sexual contact with children.
The medical board concedes that it might have fallen short at times in trying to pinpoint incompetent doctors. But it blames a vague state law and says this year, it remedied that problem.
The board has until this year had to prove "gross incompetence," a legally ambiguous term that gives doctors plenty of room to challenge rulings.
One act of malpractice might open a doctor to a lawsuit; however, under state law, aside from particularly egregious cases, the medical board has to see a pattern of trouble before it can act.
Medicine, after all, is complicated work, and mistakes do happen. Dixon said that explains why South Dakota "very rarely" prosecutes for incompetence.
A measure passed by the 2004 South Dakota Legislature aims to soften that barrier. The bill, crafted by the medical board, alters the law so that the board can revoke or limit a doctors' license if "a preponderance of the evidence" shows "professional incompetence."
Jensen described it as making a solid system stronger, and he cited it as evidence that the medical board does not sit idly by as reckless doctors harm patients. "No matter how we do it, our main job is to protect the public, and we do that job," he said.
Critics aren't so sure, noting that the change doesn't address the larger issue of loosening doctors' grip on information. When doctors conceal information, victims of malpractice might unwittingly return to the source of their problems.
Conversely, Teuber said, doctors who are upfront with patients about mistakes typically find that people simply want to find a way to correct the problem and have no interest in litigation. But if a patient, and by extension jurors, believe a doctor is lying, "then they want a pound of flesh," he said.
Harvard University researchers found that only one in eight medical mistakes result in a legal claim. The low rate is attributed in part to the typical victim not wanting to sue and to the medical industry's ability to cover up mistakes.
Schwartz, meanwhile, has sued Teuber, claiming he simply set out to ruin a competitor.
Teuber's response: "Medicine is a tight fraternity. I call it the medical mafia in this state. But if I had to do it over again, I would. ... Something had to be said, or this guy Schwartz would've kept messing up people's lives."
Thoughts of that happening leave Mousseau's stomach hollow. Physical therapy has not worked, and she's resigned to a crushing reality: Odds are she'll never walk on her own again.
"That first surgery, I had complete trust in him," she said of Schwartz. "Now I don't trust anyone. He cast a shadow on all doctors, I think. ... The whole system did, and that's a shame."
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