     The State
      Columbia, South Carolina
      Tuesday, June 18, 2002

Medical mistakes kept secret

By JOHN MONK
Staff Writer

Many malpractice settlements in South Carolina leave the public and patients in the dark

South Carolina Dr. 169186 botched a medical treatment so badly his insurance company paid $9.9 million to the victim.

He might be your doctor.

Chances are you'll never know.

Dr. 169186 is identified only by number in the National Practitioners Data Base, a federal registry that tracks doctors whose insurance has paid patients, or families of patients, who doctors accidentally killed or injured.

Federal law protects Dr. 169186's identity, as well as the identities of 36 other S.C. doctors whose insurers have paid more than $1 million each to victims of medical errors.

Secrecy about deadly and crippling medical errors is common in South Carolina. Public agencies, institutions and others - to varying degrees and in a variety of ways - conceal facts about medical mistakes.

A State newspaper investigation found:

• Doctors and hospitals routinely use the court system to make secret payouts to victims of medical mistakes. That practice may violate guidelines of the S.C. Supreme Court, which allows secret court proceedings only in rare instances.

• Hospitals don't always tell patients and their families about mistakes that injure or kill. Sometimes, hospitals don't tell coroners.

• Secrecy about medical errors may lead to more such errors.

Concealing medical errors can hurt other patients, experts say.

"A doctor is typically taking care of 1,000 or 1,500 patients," said Dr. Sidney Wolfe of Public Citizen, a Washington-based consumer advocacy group.

Those patients should know if their doctor is making mistakes, Wolfe said.

Secrecy also prevents the S.C. medical profession from studying on a statewide basis the kinds of errors that kill and injure patients.

"We have a health care industry that tolerates more errors than other comparable industries, such as the airline industry," said Lynn Bailey, a Columbia health care consultant who has studied the S.C. medical system for years.

"Unlike the airlines, we don't say, 'Wait a minute. Let's study this and see how we can make things safer.'‘"

As a result, if errors occur at one hospital, there is little or no sharing of information to benefit other hospitals statewide, she said.

TAXES SUPPORT COURTS, SECRET DEALS

Ordinarily in South Carolina, courts are open.

Taxpayers pay $39 million a year to operate the state's circuit and appellate courts.

But when doctors, nurses and hospitals are sued, judges often seal settlements and prevent public review.

Sometimes, the entire record - including the complaint - is put under seal once money is paid to a victim.

A skimpy file in Aiken County, for example, reads: "Epstein File Sealed by the Court."

Among the few facts open to the public about this case is its number, 98-CP-02-1019. There's also a notation the case was a malpractice action, the plaintiff was Peek and the defendant was Dr. Franklin Epstein.

An April 2000 order signed by 3rd Circuit Judge Thomas W. Cooper Jr. says if anyone discusses the settlement terms, "they will be in contempt of this court."

In an interview, Epstein did not describe the case. He said he is a good neurosurgeon, who has performed more than 5,000 operations and been sued a half-dozen or so times.

"I didn't spend 15 years of my life after college studying my head off, and always getting the highest grades I could get - I'm board-certified three times over - I didn't do that so I could harm people every day," Epstein said. "I did it to help.

"If I've gotten five, six suits with two or three settlements out of 5,000, I wish I could do better. But I don't know how much better one can do. I just don't."

One malpractice suit against Epstein went to trial and produced a jury verdict. Jury verdicts can't be kept secret.

In that case, the jury found Epstein negligent in the death of a surgical patient and awarded the patient's widow $6.9 million, court records said.

Epstein said the jury misunderstood the complex case.

In 2000, the $6.9 million verdict was upheld by the S.C. Court of Appeals. The jury had enough "clear and convincing evidence of Dr. Epstein's reckless culpability" to award such a high verdict, the Court of Appeals said.

In 2001, with the case pending before the S.C. Supreme Court, Epstein's insurers - the Patient Compensation Fund and the Joint Underwriters Association - settled the case for $8.3 million, according to records on microfilm in the Aiken County courthouse.

Epstein said he is suing his trial lawyer for legal malpractice. (The $8.3 million included interest since trial; it is unclear why lawyers allowed the settlement to remain public.)

SECRET PAYOUTS COMMON

Open trials with public verdicts aren't nearly as common as the hundreds of secret settlements in courthouses across South Carolina involving doctors, nurses and hospitals, malpractice lawyers say.

"Lots of settlements are confidential. The biggest reason is so someone like you (a reporter) can't get out and report that Dr. So and So settled for $800,000," said Ed Bell, a Grand Strand attorney who has specialized in malpractice lawsuits for years.

But the widespread practice of secret settlements may go against the S.C. Supreme Court's efforts to have an open court system.

According to the high court's 1991 Davis v. Jennings decision, judges must state why records should be sealed. That rarely happens, malpractice lawyers say.

The Supreme Court said judges wanting to make a record secret must meet a high standard - such as determining that a witness would be harmed if something is made public.

The Supreme Court also said a judge may keep a record open if a case has a "public ‘.‘.‘. significance."

In medical negligence suits, the public interest would be served by allowing the public to learn the amount of money doctors pay victims in court settlements, said Ken Suggs, a Columbia attorney and past president of the S.C. Trial Lawyers Association.

The settlement's size indicates how valid a case was, Suggs said.

"It's one thing if a doctor has paid $25,000 because it would have cost that much in legal fees to fight the case," he said. "But it's another if he's paid $400,000 or $500,000."

Moreover, Suggs said, making public large settlements would focus attention on medical problems "that could be corrected if the public gets interested."

In South Carolina, court-approved secrecy even extends to public money.

In response to Freedom of Information queries by The State, the S.C. Insurance Reserve Fund confirmed it is keeping secret six settlement payments it has made to victims since 1999. The fund - a public body that insures state-operated medical facilities - operates under the Budget and Control Board.

These secret payments of public money could be up to $1.2 million each - the maximum allowed under state law for malpractice suits against state-operated institutions.

The secret payments are settlements with patients at public agencies, including the University of South Carolina School of Medicine and the S.C. Department of Corrections, among others.

Insurance Reserve Fund spokesman Mike Sponhour said judges ordered the settlements sealed.

"We would like to obey the Freedom of Information law, but when a court specifically orders a settlement closed, there's nothing we can do," Sponhour said.

OTHER STATES BAR SECRECY

Some states outlaw secret settlements.

In Florida, court settlements must be open. Doctors' payments to victims and their families are public record.

Moreover, the information about doctors' payments to victims is available on Internet Web sites run by the Florida departments of health and insurance.

"If you're shopping for a car, you want all the information you can get. If you're shopping for a doctor, you should have information too," said Bill Parizek, spokesman for the Florida Department of Health.

But in South Carolina, lawyers for doctors and patients say secret settlements promote justice.

Confidentiality encourages quick resolutions of lawsuits, said Dawes Cooke, a Charleston attorney who defends doctors. A doctor who knows his identity and the amount paid to a patient will be made public might be tempted to fight a case in court.

"I don't think you want to put a procedure in place that discourages people from settling cases," Cooke said. "Whatever allows them to settle their difference amicably, I'm for it."

Mostly, it's doctors' lawyers who insist on secret settlements, according to lawyers for physicians and patients. However, sometimes victims don't want their friends, family or churches to know how much they're receiving, malpractice lawyers said.

FAMILIES MAY NOT BE TOLD ABOUT ERRORS

The court system isn't the only way medical mistakes - and allegations of errors - are hidden from public view.

When medical errors happen, hospitals don't always admit them, critics say.

For example, when John Theodore, the older brother of former Lt. Gov. Nick Theodore, died in 1999 at Palmetto Richland Memorial Hospital, hospital officials told the family Theodore died of "complications," said Andrew Theodore, a nephew and family spokesman.

When the family heard rumors that negligence played a role in John Theodore's death, they sought a meeting with hospital officials, Andrew Theodore said
Andrew Theodore's version of the meeting is this: that only under questioning did hospital officials acknowledge that hospital workers had allowed John Theodore - who had breathing problems - to be without an oxygen monitor during an MRI procedure.

"I said, 'Had the monitor been there, you would have known he was dying and been able to save him?' They said, 'Yes,'‘" Andrew Theodore said.

The family has sued the hospital, alleging negligence on numerous fronts.

The hospital declined comment on Andrew Theodore's description of the meeting. In an answer to the lawsuit, it denies liability. The lawsuit is set for trial this year.

Coroners say families aren't the only ones kept in the dark when something goes wrong.

Hospitals don't always tell coroners when they've had a possible accidental death. Under S.C. law, coroners can investigate unexplained deaths of healthy people.

Last May, for example, Lexington Medical Center didn't notify Lexington County Coroner Harry Harman that healthy 20-year-old Daniel Enter had died unexpectedly after a minor operation.

Enter's family is suing Lexington Medical, alleging he died because of a broken oxygen machine and hospital negligence.

Lexington Medical officials won't comment on why they didn't notify the coroner and decline to discuss the case, citing the lawsuit.

SECRECY HINDERS PROGRESS

For 2,500 years, doctors have studied diseases and things that hurt humans. Then they have publicized their findings.

Other disciplines routinely investigate and publicize findings of deadly problems.

For example, the S.C. Department of Transportation systematically gathers statistics to find out where car accidents happen.

With that information, transportation official Dick Jenkins identifies dangerous roads and intersections. The DOT then targets its spending to make improvements to save lives.

"The whole idea is to make everything you've got safer," said Jenkins.

But the S.C. medical profession doesn't do that on a statewide basis. And no laws require medical professionals to compile and share data on medical mistakes.

Hospital officials say medical professionals do investigate and study errors
Hospitals participate in national error prevention and alert programs, they say. Hospitals also have their own internal patient safety programs. And within each hospital, teams investigate internal errors and take action, they say.

However, officials acknowledge that if a crucial life-saving machine malfunctions and a patient dies as a result, there's no system to alert other S.C. hospitals to check similar machines.

Why not collect and disseminate more data on medical errors?

The medical community fears more lawsuits, is hamstrung by patient privacy laws, and is wary of competitive market pressures, said Dr. Ray Greenberg, president of the Medical University of South Carolina.

Asked why S.C. medical professions don't do more, Greenberg said: "That's a very fair question. I'm an epidemiologist, and my life blood is collecting routine surveillance information.

"It's part of my training and belief system - that if you really want to characterize and understand a problem, you have to collect data on it. That's the only way you'll make informed decisions about how to improve the situation."

Reach Monk at (803) 771-8344 or jmonk@thestate.com.

Posted on Tue, Jun. 18, 2002

-- SHROUDED IN SILENCE

Courts and hospitals play key roles in medical secrecy, but there are other players:

S.C. BOARD OF MEDICAL EXAMINERS

• This board receives complaints and investigates doctors.

The board last year took action in 52 cases, seven involving allegations of negligence. In four cases, the board shielded the names of doctors it acted against.

One doctor whose name was withheld was cited for contributing to the death of a patient. He was given a private reprimand and fined $1,000.

The unidentified doctor had "performed surgery that was not medically necessary, which led to patient's eventual demise," the board said.

Board chairman Dr. Roger Ray said state law prevents him from discussing the case. But, he added, the board's action was appropriate. Such cases are complicated and involve many hours of study, Ray said. "There is no desire to protect an incompetent doctor."

The board also gets a report from doctors' insurers on amounts paid for malpractice claims. State law requires the board to keep that information confidential.

DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL

• State law requires hospitals to report all accidental deaths to DHEC.

Most hospital deaths reported involve falls and suicides, not medical errors, according to a State newspaper review of agency records.

DHEC does not make public key details of hospital deaths, including the name of the patient. As a result, there is no way the public can independently check the accuracy of DHEC's information, which hospitals furnish.

INSURANCE FUNDS

• Most S.C. doctors, nurses and hospitals are insured for malpractice by two organizations: the Joint Underwriters Association and the Patients Compensation Fund.

They underwrite malpractice insurance for about 5,500 of the state's 7,000 doctors.

While they are public bodies, subject to the S.C. Freedom of Information law, the association and fund -- advised by their attorney, Ernest Nauful of Columbia --declined to make public the names of doctors responsible for malpractice awards and the amount paid.

Dr. Ed Catalano, the Compensation Fund's chairman, said legal claims against doctors can be very complicated. The amount of a malpractice award by itself is not enough for the public to make an informed judgment about a case, he said.

• The Insurance Reserve Fund insures the 1,500 doctors who work at state-run institutions, including the Medical University of South Carolina.

Much information about the state-run program's malpractice payouts is publics to victims of malpractice, The State obtained listings of the hospitals involved, the nature of the claim, the name of the victim and the amount paid.

However, the Reserve Fund initially failed to disclose five MUSC cases in which it paid out almost $4 million since last October. A spokesman blamed those omissions, in part, on paperwork delays.

The Reserve Fund is also refusing to disclose five secret payments it made to medical victims in state facilities since 1999. It says judges have sealed the payments.

THE NATIONAL PRACTITIONER DATABASE

• All doctors who make insurance payouts to victims of medical error must be reported to this database, according to federal law.

Hospitals and insurance groups can access the database by a doctor's name and learn about his or her background.

However, a hole in the system ensures that about 1,500 S.C. doctors will never face being reported to the database. These doctors work for the state of South Carolina at institutions that include MUSC and the state prison system
Under a legal technicality, patients at state-run hospitals cannot sue individual doctors, only the hospitals. As a result, doctors at state-run hospitals will never be found liable for injuring or killing a patient. Consequently, they will never be reported to the database.

Posted on Tue, Jun. 18, 2002

-- LAWYERS: ON SUING, DEFENDING DOCTORS

About 30 of South Carolina's 10,000 lawyers specialize in suing doctors, nurses and hospitals.

Last year, they and a few other lawyers won more than $57 million in settlements and verdicts for those killed or injured by medical negligence.

These malpractice lawyers range from Marion Fowler, 45, of Lake City, who is both a lawyer and a physician, to Ellis Kahn, 66, of Charleston, who is considered the dean of the state's malpractice lawyers.

In interviews with a dozen malpractice lawyers, they said:

• For every malpractice suit they file, they turn down dozens;

• They only accept cases with strong evidence. Malpractice cases are expensive for lawyers, time-consuming and emotionally draining. As a result, lawsuits likely to win only a low award or lacking evidence are not likely to be filed;

• Doctors and their insurance companies usually fight hard when sued;

• Hospitals and doctors rarely volunteer information about deadly errors. As a result, the lawyers say, wronged patients must hire an attorney to win compensation for negligence;

• In-state doctors rarely testify against other S.C. doctors. This means to win their cases, lawyers for patients must hire expert doctors from outside South Carolina to explain technical matters to a jury. But, almost always, S.C. doctors testify for other S.C. doctors.

"There's a conspiracy of silence," says lawyer Gedney Howe of Charleston, who represents patients.

INCREASING ACCOUNTABILITY?

Lawyers like Howe say their work has made the medical profession more accountable.

A 1977 S.C. Supreme Court case, for example, allowed victims of medical negligence to sue charitable hospitals. Previously, such hospitals had been immune from negligence lawsuits.

Increased accountability means less medical negligence, the patients' lawyers say.

Attorney David Massey of Columbia, for example, recently took the case of a young mother whose doctor delayed investigating a suspicious tumor on her breast for two years.

Now, the woman has cancer and isn't expected to live long.

"I really want to teach ob-gyns and internists in this state that every lump is suspicious," Massey said. "You investigate it."

MORE PEOPLE LOOKING FOR JACKPOTS?

Doctors and the lawyers who defend them have less-generous views of lawyers who sue physicians.

Dawes Cooke, a Charleston lawyer who has defended doctors for 20 years, says some malpractice cases have no merit at all and, in most cases, the doctor isn't at fault.

"The vast majority of the cases I've defended, by the time the case is over, I feel like I would send a member of my own family to that physician," Cooke said.

Some doctors do make rare mistakes. But, he added, only a few were "what I would call bad apples."

Still, Cooke said, juries are returning larger monetary awards these days. That attracts lawyers with lightweight cases who want to win a huge verdict, he said.

The fee that a patient's lawyer charges can be up to 40 percent of a malpractice award.

"There seems to be more people hitting the jackpot, and more people willing to play the game," Cooke said.

Kahn, who has sued S.C. doctors since 1966, said it's easier now for patients to win malpractice cases if they go to trial.

The reasons? Changes in the medical profession that have resulted in a less personal, more business-like environment.

"In the old days, people would accept many missteps when there was a strong relationship between physician and patient," Kahn said.

"But when there is a relationship that is abrupt, where questions aren't answered, in which time is not spent, that can drive people to a lawyer -- where that wouldn't have happened before."

Posted on Tue, Jun. 18, 2002

-- LESSONS LEARNED

Secrecy is a fact of life when it comes to medical errors. Few involved want to publicize the mistakes.

• Doctors and hospitals make secret deals in S.C. courts to keep cases and the amount doctors pay to victims quiet.

• Hospitals don't always tell patients or their families when a harmful or fatal error has happened. Coroners also are not always told.

• Instead of studying medical mistakes to learn how to prevent them, the S.C. medical profession chooses to keep errors quiet, fearing lawsuits.

• While a federal database keeps track of doctors whose insurance pays claims to victims of medical errors, it keeps the doctors' names secret from the public.

   Posted on Tue, Jun. 18, 2002

If the S.C. medical community wants to lower death and injury rates from medical errors, it has a model to follow

For years, the nation's anesthesiologists -- doctors who put patients to sleep before operations -- have been trailblazers in preventing errors.

Once, anesthesiology was among medicine's most danger-filled specialties. Now, it is among the safest.

About 20 years ago, anesthesiologists began to systematically study how their errors killed and injured patients.

Among their findings:

• Machines in operating rooms were hard to use and operate.

• Breathing tubes, supposed to be put down a patient's windpipe, sometimes were put down the esophagus.

• The attention of anesthesiologists sometimes waned during long operations, producing a dangerous situation.

After studying their errors, anesthesiologists moved to make things safer.

They bought new, standardized machines and began to use a device to detect if breathing tubes were inserted incorrectly.

"In a decade, the overall death rate (from anesthesiology errors) dropped to just one in more than 200,000 cases -- less than a 20th of what it had been," writes Dr. Atul Gawande in his 2002 book, "Complications," about the U.S. medical profession.

   Posted on Tue, Jun. 18, 2002

-- DOCTORS SPEAK OUT ON SAFETY

• Dr. Victoria Samuels, a Lexington brain surgeon, says she never takes safety for granted.

"If you don't question yourself, if you think you are the ultimate and can't possibly make a mistake, then you have just made your first mistake," she says.

Samuels operates on patients for everything from herniated disks to brain tumors and blood clots on the brain. She starts with an extensive patient interview.

"You need to take their history. Is your pain a sharp pain? A burning pain? Exactly how does it feel? And on and on and on. You have to almost peel it out of people because some people don't come in with the ability to tell you where and when and how."

• Dr. Vincent Degenhart, a Columbia anesthesiologist, is proud of his profession, where a tiny mistake may mean death.

In an operation -- he's done thousands -- Degenhart hooks up numerous tubes and needles to a patient. He uses intravenous drugs to put most patients into medically-induced sleep, then switches to a mix of oxygen and another gas to keep them under.

During an operation, he monitors high-tech machines that track how a patient is doing. He also uses centuries-old techniques: checking with his eyes a patient's skin color and breathing.

• Dr. Kenneth DeHart, an emergency room physician at Grand Strand Regional Medical Center in Myrtle Beach, handles everything from delivering babies to gunshot wounds to burns to puncture wounds.

DeHart says he takes nothing for granted. "Mother Nature can be tricky. A healthy 38-year-old male with no history of heat problems who says he has indigestion may be having a heart attack."

He said other tricky areas include:

• Nonspecific abdominal pain. In rare cases -- less than 1 percent -- there can be a perforated bowel or broken major blood vessel.

• Fever in children. In rare cases -- again less than 1 percent -- this can be meningitis.

• Retained foreign bodies. If someone wearing a tennis shoe steps on a nail and the nail pierces the foot, the nail can carry foam rubber into the wound.

An emergency room doctor has to weigh the evidence all the time, he said. "Mistakes can and do occur. Anything of the complexity of medicine will have a bad outcome occasionally."

• Dr. John Evans, a Greenville orthopedic surgeon who operates on shoulders, hands and knees, says one key to safety is never rushing.

"You do things deliberately. You follow procedures," says Evans, who operates on up to six people a day, depending on the complexity of the procedure.

"Operations these days are much safer than they were 20 to 30 years ago," Evans said.

He said safety techniques include:

• Writing "yes" with a marker on the site to be operated on.

• Constantly checking to ensure the patient gets the proper fluids and medication.

• Slowing down his writing to make sure his instructions for blood or fluids are legible.

• Counting aloud the number of knives and sponges before an operation and before a surgical site is sewn up.

• Dr March Seabrook , a Columbia gastroenterologist, says that when a patient comes to his office with an abdominal complaint, there are dozens of possible explanations.

"A change in bowel behavior -- that can mean a lot of things. Anything from dietary problems to taking new medications to colitis or diverticulitis to colon polyps or even colon cancer," he says.

Diagnosing is like detective work, and the most obvious solution isn't always right, he says.

"If you hear hoofbeats, you think of horses, not zebras. But it might be zebras. If you don't find horses, you have to go looking for zebras."