Some doctors not disciplined, even following large malpractice settlements

Every three hours, even at night, Ken Plants dials up his morphine pump and rocks on his therapy ball.

Back and leg pain on his right side came from a work injury, he said. But similar pain on his left side came from surgery by Dr. Cully White, according to a lawsuit settled in 2009 for $2.9 million.

White was supposed to operate on the right side of Plants’ spine in 2004. But he did the procedure on the left side, according to the lawsuit and a complaint before the Wisconsin Medical Examining Board.

Yet, nine years after the surgery and four years after the medical board was notified about the settlement, the board has taken no action against White, who works in Milwaukee.

White is one of at least 21 doctors in Wisconsin who settled malpractice lawsuits for large sums or were found negligent by juries, from 2007 to 2011, who have not been disciplined by the medical board, a State Journal analysis found.

White’s case remains open, but most of the other cases are closed.

Plants, 56, a former carpenter from Bristol, near Kenosha, said his pain has kept him from working, hunting, fishing and playing with his children and grandchildren.

He and his attorney were so motivated to have the medical board discipline White that they took an usual step in 2010: filing a court petition seeking action. A judge dismissed it.

“To see him still practicing just kills me,” Plants said. “I accept human error, but you’ve got to admit it.”

White declined to comment, other than to say through a spokeswoman that he’s cooperating with the medical board’s investigation.

In 2009, a jury found Dr. Lorraine Novich-Welter negligent for causing brain damage to Dan Nelson in 2000. She had trouble clearing a clog in his tracheotomy tube at Froedtert Hospital in Milwaukee, depriving him of oxygen, according to medical board records.

The jury awarded $2.1 million to Nelson, who lives east of Lake Geneva, but the case was later settled without a judgment against Novich-Welter.

In 2011, the medical board decided not to discipline her because she was a resident, or doctor-in-training, at the time of the incident and had no other complaints. She works in Utah and declined to comment.

“I think she should definitely be censured in some form,” said Nelson’s mother, Jean Nelson. “The judgment of a doctor is essential in a crisis situation.”

Negligence but no discipline

Dr. Gene Musser, a medical board member and former board chairman, said the board handles complaints against doctors differently than courts do.

In court, lawyers must show that negligence caused damage with financial implications, he said.

“In our rule, you have to prove that the action created a danger to the patient, and that’s it,” Musser said. “The outcome is irrelevant.”

Autumn Worden was born in 2002 with cerebral palsy and other permanent brain injuries. During her delivery by Dr. Debra Stockwell at Saint Mary’s Hospital in Rhinelander, she suffered from a lack of oxygen, according to medical board records.

Fetal heart monitoring showed signs of distress, but Stockwell left the room to do another delivery, the records show. By the time she returned about 40 minutes later, the situation had become worse. She called for an emergency cesarean section but it wasn’t done for another hour.

During a trial in 2008, Worden’s mother, Nancy, said her daughter, then 6, couldn’t crawl, walk, speak or feed herself and would always wear diapers.

The jury found Stockwell negligent and awarded $4.6 million. An appeal led to a $4.5 million settlement last year.

In 2011, the medical board decided not to discipline Stockwell, in part because her license expired in 2005. The board sometimes acts in such situations, however. Stockwell, whose last known address was in California, couldn’t be reached for comment.

Daniel Tomas, of the Iowa County village of Plain, died four days after Dr. Theodore Parins removed his appendix at Sauk Prairie Memorial Hospital in 2003. Tomas was 45.

An autopsy found torn abdominal tissue and bleeding, apparently from the surgery, according to a complaint filed with the state’s Medical Mediation Panel.

In 2009, a jury found Parins negligent and awarded $1.7 million to Tomas’ wife, Doris. An appeal led to a confidential settlement.

In a statement to the State Journal, Parins said the autopsy was incomplete. Tomas likely died from a complication of his appendicitis, not from the surgery, he said.

At discharge, Parins said, he told Tomas to return to the hospital if he had increased pain. But Tomas didn’t, despite having bad chest pain the day before he died.

The medical board took no action against Parins. Jury awards and settlements are supposed to automatically generate complaints to the board, but a spokeswoman said the board never received a complaint against Parins.

Sarah Jewell, of Mineral Point, had neck surgery at St. Mary’s Hospital in Madison in 2005 on bone spurs that were causing neck, shoulder and arm pain.

She woke up paralyzed on her left side from a spinal cord injury, according to a Medical Mediation Panel complaint. Her lawsuit against Dr. Todd Trier, who performed the surgery, led to a confidential settlement in 2009.

In 2007, Trier operated at St. Mary’s on Dennes McCartney, 52, of Linden, northwest of Mineral Point.

Trier was supposed to remove an infected shunt in McCartney’s brain. The device had been placed years earlier when McCartney had a tumor removed.

During the surgery to remove the shunt, the device broke and Trier left part of it in, according to a Medical Mediation Panel complaint. A piece removed tested positive for staph bacteria.

Pus started draining from McCartney’s inflamed neck. Eventually another doctor operated and found a two-inch fragment of the shunt. After the doctor removed it, McCartney’s neck wound healed.

McCartney’s lawsuit against Trier in 2011 led to a confidential settlement last year. Trier’s shunt removal “conformed with the standard of care,” according to a statement by his attorney.

The medical board hasn’t disciplined Trier for the Jewell or McCartney cases. The board spokeswoman said the board didn’t receive complaints in either case.

In June, Dean Clinic announced that Trier had stopped working there at a neurosurgeon. He couldn’t be reached for comment.

No pulse for 11 minutes

Nelson, who won the jury verdict against Novich-Welter, was in a motorcycle accident in 2000. He broke several bones and suffered a traumatic brain injury. He wasn’t wearing a helmet.

He was taken to Froedtert, where he had several surgeries before going to the hospital’s rehab unit.

On his first morning in rehab, a nurse saw that his tracheotomy tube was clogged, according to medical board records. She called for Novich-Welter, who was unable to clear it. Though a replacement tube was on the wall, Novich-Welter didn’t try to change it, records show.

By the time an emergency team removed the clog and revived Nelson, he had gone without a pulse for 11 minutes, according to a Medical Mediation Panel complaint filed by his attorney.

The lack of oxygen caused an additional, permanent brain injury, the complaint says. Also, a condition in which bone develops in soft tissue allegedly was made worse because medications were stopped while he recovered.

“It definitely caused me to be in this wheelchair,” said Nelson, 52, who lives in New Munster, between Lake Geneva and Kenosha.

Nelson said he had started walking, with assistance, when he got to rehab.

Though Nelson is not paralyzed, the bone condition — called heterotopic ossification — makes him unable to walk, he and his mother said. His speech is slurred, and his mental capacity is reduced. Home health aides assist him.

Before the accident and the tracheotomy clog, Nelson owned a restaurant in northern Illinois. He and his now ex-wife, who have two children, were runners.

Jean Nelson said the medical board should have at least reprimanded Novich-Welter “so this is on her permanent record.”

Dan Nelson said the doctor learned a lesson, even without medical board discipline. “Unfortunately, I paid for it,” he said.

Wrong-side surgery

Plants said his pain gets worse throughout each day, though his morphine pump provides some relief.

He can’t sleep more than a couple of hours at a time, he said. It’s hard for him to sit on a chair or a couch for long. He curls over his therapy ball and rarely leaves the house.

“We don’t socialize with people anymore,” he said.

He started receiving disability payments in 2006 but also applied unsuccessfully for dozens for jobs, he said.

After White’s operation, Plants had three spine surgeries by two other doctors. Those procedures didn’t ease his pain much, he said. It’s not clear why.

His right leg and lower back initially started hurting after he lifted a heavy bucket at work in July 2003, he said.

White operated in February 2004.

“When I woke up, both legs were bad,” Plants said.

An MRI showed that White did the procedure on the left side, according to the complaint against White before the medical board. A doctor who later operated on Plants also said White hadn’t operated on the right side.

After the surgery, when Plants told White about his left-side pain, White said it was from how he had been positioned on the operating table, the complaint says. White sent Plants for physical therapy.

In a statement by his attorney, White said the surgery didn’t cause Plants any harm.

Plants said he could have received more money from White if he had agreed to keep his settlement confidential. But he wants others to know what happened.

“For him to sit there and lie to me, that’s not acceptable at all,” he said.

Additional Information:

Case Study: Reprimand didn't end Dr. Victoria Medloch's problems: In 2008, Waukesha Memorial Hospital investigated 23 of Mondloch’s patient records from 2005 to 2008 for concerns including inadequate medical skills and poor quality of care.

This story originally ran in The Wisconsin State Journal  on January 28, 2013.

Photo Credit: Amber Arnold/State Journal