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Wisconsin doctors who make mistakes often don't face serious consequences

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Wisconsin doctors who make mistakes often don't face serious consequences

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Wisconsin has long ranked near the bottom of states in taking serious actions against doctors, according to Public Citizen. In the group's latest report, the state ranked 46th, up from 49th the previous three years.

David Wahlberg wrote this series, Doctor Discipline, for the Wisconsin State Journal as a 2012 National Health Journalism Fellow. Other stories in the series include:

Medical Examining Board plans changes in response to State Journal investigation

Some doctors not disciplined, even following large malpractice settlements 

Medical Board says lack of money, authority ties hands and may attract subpar physicians to state

Wisconsin State Journal
Sunday, January 27, 2013

It was a routine procedure.

Dr. David Almasy used an electrified wire to remove abnormal tissue from the cervix of Nicole Johnston, a 35-year-old mother of four. To reduce bleeding, he injected epinephrine.

The consequences were anything but routine. Johnston's heart started racing, her blood pressure soared and her lungs filled with fluid, causing her to suffocate and die.

During the procedure at Upland Hills Health in Dodgeville in 2010, Almasy gave her at least 100 times too much epinephrine, records show.

The Wisconsin Medical Examining Board in 2011 reprimanded Almasy, required him to take two classes and fined him $1,200.

"He destroyed my family," said Jaimie Barnes, 18, of Madison, Johnston's daughter. "He should have had his license suspended. I'm baffled he didn't get a higher punishment to fit the crime."

But the medical board's reprimand of Almasy is typical, a State Journal analysis found. The newspaper reviewed all 218 cases leading to medical board discipline from 2010 to 2012, along with dozens of cases in which the board didn't take action.

More than half of the doctors disciplined received reprimands, warnings that go on their records but don't limit their practices.

In at least 50 of the cases involving reprimands, patients died or were harmed, leaving some to wonder why the board didn't order harsher penalties.

The board used the same discipline for doctors who wrote questionable sick notes for protesters at the state Capitol in 2011.

Medical board leaders defended their actions, saying they prefer to rehabilitate doctors rather than punish them, especially for mistakes.

But they also said limited money and authority sometimes prevent the board from taking more serious disciplinary action

"It would be nice to have revocations. It would be nice to have stronger suspensions," said Dr. Sheldon Wasserman, board chairman. "But that comes at a cost. We don't have the resources."

State ranks near bottom

Wisconsin has long ranked near the bottom of states in taking serious actions against doctors, according to the consumer watchdog group Public Citizen.

In the group's latest annual report, in May, the state ranked 46th, up from 49th the previous three years.

Wisconsin's medical board ordered 1.90 serious actions per 1,000 doctors from 2009 to 2011, the latest report found. That's about a third less than top-ranked states.

Wasserman and others say Wisconsin might have better doctors than most states. But Public Citizen said there's no evidence the prevalence of doctors deserving discipline varies substantially among states.

"It's a dysfunctional process," Dan Rottier, a medical malpractice attorney from Madison, said of Wisconsin's medical board. "We tell people never to expect them to do anything."

Rottier's lawsuit against Dr. Leonard Go on behalf of Shelbey Bomkamp led to a $17.3 million settlement in 2009.

Bomkamp — of Highland, northwest of Dodgeville — suffered a permanent brain injury at age 6 during surgery to remove her spleen, according to the lawsuit and medical board records.

During the surgery in 2007 at St. Mary's Hospital in Madison, Go used a blender-like device to chop up her spleen. He accidentally cut major blood vessels and her bowel, records show.

Go, of Dean Clinic, hadn't used the device before, nor had he been trained how to use it.

The medical board reprimanded him in 2011 and fined him $1,800. The fines are based on investigation costs.

Go declined to comment to the State Journal. In a letter to the medical board, he said he expected to "bear lifelong personal remorse" for what happened.

"I firmly believed the technique I was using in this procedure represented a safer option for the patient," he wrote.

But Rottier said the medical board's discipline wasn't enough.

"A child is permanently brain damaged, and he gets a reprimand? It's pathetic," he said.

Slaps on the wrist?

Wasserman said the board's limited budget makes it hard to fight doctors willing to spend large sums to defend themselves. The board is part of the Wisconsin Department of Safety and Professional Services.

The budget was increased to $1.8 million in 2009 through a 33 percent increase in doctor license fees.

This year, the budget is $1.9 million. A $1.25 million transfer of reserve funds by the state to the general fund last year reduced money available for future years, according to the Legislative Fiscal Bureau.

"There's a push to just get it done with, get the plea bargain accepted and approved, rather than sometimes a harder line," Wasserman said.

The state Supreme Court has ruled the board is supposed to protect the public, deter wrongdoing and rehabilitate doctors — but not punish them, said Dr. Gene Musser, a board member and former board chairman.

State statutes say the board should investigate complaints of unprofessional conduct but don't authorize the board to launch its own probes of suspected wrongdoing, Musser said.

Also, Wisconsin doesn't routinely do criminal background checks when doctors apply for licenses, as most states do.

But a major reason Wisconsin ranks low is the medical board's frequent use of reprimands instead of harsher penalties. Public Citizen doesn't consider reprimands to be serious discipline.

"They are slaps on the wrist," said Dr. Sidney Wolfe, director of Public Citizen's health research group. "They don't have any effect on the doctor's practice."

But Musser said when doctors are reprimanded, the state's 23,000 licensed doctors are notified through a newsletter. Prospective employers find out. So can the public, by searching the medical board's website.

"The process a physician goes through to be reprimanded really wakes them up," Musser said. "It is a gigantic event."

Almasy "showed tremendous remorse" for the epinephrine overdose that killed Johnston, Wasserman said. In a letter to the board from his attorney, Almasy said he was "devastated" by what happened. He declined to comment to the State Journal.

Formerly with Dean Clinic, Almasy lost his privileges at the Dodgeville hospital for nine months and now practices in Sterling, Ill.

He said a nurse gave him the wrong concentration of epinephrine, according to medical board records.

But the nurse, in a deposition, said Almasy confirmed the concentration and dosage before injecting the drug. A surgical tech backed up the nurse's account.

An assessment ordered by the medical board said Almasy needed to work on his listening skills.

"He will live with this for the rest of his life," Wasserman said. "That's a tremendous punishment."

Disciplining doctors, whose work often involves life or death, is different from punishing criminals, Musser said.

"We have people in general who did not mean to do bad," he said. "They are meaning to do good."

An unwanted hysterectomy

Laurel Dean — of Spooner, in northwest Wisconsin — lost her ability to bear children at age 28 after Dr. Neal Melby performed an emergency hysterectomy.

Melby scheduled the surgery in 2005 at Baldwin Area Medical Center. It was needed to stop bleeding from complications of a routine procedure he had done to remove tissue from Dean's uterus, according to medical board records.

Dr. Marvin Klingler asked Melby to do the routine procedure — dilation and curretage, or D&C — after a pelvic ultrasound was "suspicious" for tissue in Dean's uterus.

But pelvic ultrasounds have a high rate of false positives in women who have recently given birth, the medical board said, and Dean had delivered her first baby seven weeks earlier.

Klingler should have considered nonsurgical options, the board said.

Klingler told the State Journal his recommendation for a D&C was reasonable, and he discussed the potential risks with Dean.

Dean's lawsuit against Melby, who works in New Richmond, led to a confidential settlement in 2008. Her lawsuit against Klingler, who worked in Baldwin until starting a new job in Hudson this year, went to trial the same year. The jury cleared him of negligence but found Melby negligent. Melby declined to comment.

In 2011, the medical board reprimanded both doctors, ordered each of them to take a class, and fined Melby $2,400 and Klingler $850.

Dean said she has a hard time seeing pregnant women and learning that her friends are pregnant. The emotional toll led her and her husband to divorce, she said.

She planned to have at least one more child. Her daughter is 7.

The medical board should have suspended Melby and Klingler and required them to take more classes, Dean said.

"The way it's impacted my life, I feel that it should also have an impact on their lives," she said. "I almost died."

Mad, sympathetic over reprimands

Elsie Nelson, of Two Rivers, went for surgery on the right side of her spine in 2002.

But Dr. Paul Baek operated on the left side, according to medical board records and a lawsuit by Nelson that led to a confidential settlement in 2007.

In 2003, Baek, a neurosurgeon with Aurora Health Care in Green Bay, made the same mistake with another patient, according to the medical board.

The board reprimanded Baek, fined him $2,500 for both incidents and required him to attend a two-day patient safety workshop. Baek declined to comment.

"I would yank his license for six months," said Robert Nelson, Elsie's husband.

Elsie, 83, said another doctor later operated on her right side but she still has pain.

"It makes you mad that doctors screw up more than once and the population at large doesn't know that," she said.

Roger Schwartz is more sympathetic.

In 2003, he suffered a stroke that left him permanently disabled on his left side, according to medical board records and his lawsuit against Dr. Joel Stoeckeler. The suit led to a confidential settlement in 2008.

Stoeckeler, who works in Baldwin, failed to adequately monitor Schwartz's blood thinner levels, putting him at risk for the stroke, according to the medical board.

Stoeckeler told the State Journal he didn't have access to important home health data for Schwartz, and at least six other doctors were involved. "This was a health information failure, not an individual failure," he said.

The board reprimanded Stoeckeler in 2011, fined him $1,900 and required him to take courses in blood thinner management.

"He shouldn't have cut me off (the blood thinner drugs) like that. ... I've got to live with it," said Schwartz, 71, a resident of Wisconsin Veterans Home at King, near Waupaca.

But Schwartz said the reprimand was appropriate. "Other people think he's a good doctor," he said.

Epinephrine overdose

To Jaimie Barnes, Almasy's reprimand was insufficient for her mother's epinephrine overdose.

"It's nothing," she said. "He killed my mom."

Johnston, of Barneveld, was working at Madison Family Dental Associates in April 2010 when she had an abnormal Pap smear.

She had also tested positive for HPV, putting her at greater risk for cervical cancer. After another test found abnormal tissue, Almasy recommended a loop electrosurgical excision procedure to remove it. Johnston agreed.

During the low-risk procedure, doctors usually inject epinephrine mixed with lidocaine or Marcaine, drugs that reduce pain. The concentration of epinephrine in such mixtures is 1:100,000 or 1:200,000.

Almasy asked for 20 milliliters of epinephrine to inject into Johnston.

Nurse Brenda MacKinnon asked if he wanted "just epinephrine," according to her deposition. She said she also asked if he wanted 1:1,000.

According to her, he said, "Yes. I use this in the clinic for all my cases in the clinic."

Almasy said he didn't recall MacKinnon specifying 1:1,000.

Education vs. accountability

After Almasy injected the epinephrine, Johnston had a toxic reaction. She was taken to UW Hospital in Madison but could not be revived.

The state Board of Nursing didn't discipline MacKinnon after an investigation found insufficient evidence of wrongdoing.

A lawsuit against Almasy led to an $885,000 settlement last year for Barnes and her three siblings, now ages 14, 9 and 3. The four children have three fathers, and with Johnston gone, "now we're all separated," Barnes said.

Musser, the former medical board chairman, said medical errors — especially system errors like Almasy's appeared to be — call for re-education, not harsh discipline.

Almasy had no other complaints in Wisconsin.

What happened to Johnston is "horrible," Musser said but the board looks at whether doctors endanger patients and have problematic track records, not at the severity of the outcome of a mistake, he said.

"We could all be revoked if you revoked for error," Musser said. "None of us work error free."

Madison attorney Keith Clifford, who filed the suit against Almasy, said it "shocks the conscience" that the medical board issued its least serious discipline for the most serious harm.

"It's just woefully inadequate," he said. "The health care system is almost rendered unaccountable."

Additional Information:

Case study: Dr. Michael Dehner's career in state plagued by mistakes, lawsuit, deaths: Dr. Michael Dehner's career in Wisconsin started on a sour note in 1999, with a restricted license because of drug prescription problems.

Five doctors lost licenses over crimes, drugs: Murder, child pornography and improper prescribing of pain medications are among the reasons the Wisconsin Medical Examining Board revoked the licenses of five doctors from 2010 to 2012.

Doctor discipline records: This database contains details of all 218 cases for which the Wisconsin Medical Examining Board disciplined doctors from 2010 to 2012.

Other cases where patients were seriously harmed but doctors were only reprimanded: Here are summaries of five other cases in which patients died or were seriously harmed and their doctors received reprimands from 2010 to 2012, based on court and Wisconsin Medical Examining Board records.

This story originally ran in The Wisconsin State Journal on January 27, 2013.

Photo Credit: M.P. King/State Journal