Q&A with Scott and Kathy Broussard, Part 2: Fighting to protect patients from harm

When your child dies because of mistakes made by a doctor, you can sue. Scott and Kathy Broussard did that when Dr. Andrew Rutland twisted their daughter Jillian Broussard's neck so severely that he separated her head from her spine. Most patients either lose in court or settle their cases. If they settle, they go silent. How many times have you called a patient's family to be told, "We can't talk under the terms of the settlement."? The Broussards settled their case, but that didn't stop them from talking.

When I tracked them down in 2001, the Broussards agreed to talk about what happened to them and what they thought should be done to fix the Medical Board of California. Rutland lost his license. But nine years later, Rutland is back in practice and accused of negligence in the death of another patient. His case is scheduled for a hearing in Los Angeles on Monday, March 15. The Broussards now find themselves coming forward again to talk about what a convoluted case like Rutland's signifies.

The first part of my interview with them ran last week. Here is the second half.

Q: What prompted you to report Jillian's death to the Medical Board of California?

Kathy: We were devastated and scared. Our Jillie was gone. We couldn't change that, but what about the next baby? What about the next patient of Dr. Rutland's who did not have that extra medical knowledge? If it happened to us it would happen again, and Dr. Rutland would let that poor family think that it was something they did or that their baby was ill. We knew we had to protect that next family. I wrote to Martin Luther Hospital, and nothing ever happened. We also started writing the medical board. Our first letter from the board said that our case was "not of priority" due to the large caseload they had.

Q: What had you expected to happen?

Kathy: I thought I would get a response within 30 days, but we did not. When I did get a response months later – and mind you we had kept writing – we got a letter stating that it was "not of priority" due to the huge caseload they had. We did get a call eventually from Kathleen Nichols, an investigator with the board.

Scott: I expected that he would lose his license or at least be prevented from performing procedures where he might harm someone.

Q: If he's not able to deliver babies or perform surgeries, isn't Dr. Rutland's current license restriction a reasonable solution?

Kathy: A partial restriction is not reasonable with Dr. Rutland. He has proven to have poor judgment. Please, can some judge just revoke his license? Please, can the medical board just do its job and protect us? Can we just finally get peace of mind knowing that no one else will be hurt? The system has told Dr. Rutland's victims that his rights are priority and that his livelihood to make a living is more important than his grief-stricken families, injured and dead patients. It is unfathomable to me that he can continue to practice.

Scott: In an ideal world, I have a hard time saying that the man can't serve a role. As long as he can't get into a place where he has someone anesthetized and he's performing some kind of procedure – which was the problem most recently – he probably can't hurt anybody. But that's in the ideal world. It doesn't work in this case. He's proven in multiple occasions that he doesn't make the right choices. Because of what he did with Jillian, it's hard to see things completely objectively, but let me try to step back from the situation. If you have a doctor who has been disciplined, has had problems and knows that people are looking over his shoulder, you would think the doctor would be careful. But if that doctor tries to carry out an abortion and has a crash cart that has medicines that are four or five years outdated and doesn't have the proper tools in the room and doesn't call the medics on time you have to wonder, even with all that scrutiny, how careful he is capable of being. He wasn't doing CPR when they got there. He says he had been doing mouth-to-mouth resuscitation, even though he had an Ambu bag on site.

Q: You're talking about the oxygen mask that paramedics use?

Scott: Yes. It's the one where you put the mask over the person's face and you squeeze to bring in the oxygen. Nobody does mouth-to-mouth in the year 2010. They didn't even do it in the year 2000. He had one at the clinic, but he didn't use it. When the paramedics got there nobody was doing anything. This poor woman was lying on the table, and the medics thought it was just weird enough that they should tell somebody. This isn't something I dreamed up. This is all from the medical board's own records. The problem is you can't have any faith that he's going to follow best practices. The medical board has shown that it is not going to handle a doctor like Dr. Rutland appropriately. He should be proctored by someone who has never had a disciplinary problem and who is well regarded by his peers, not by someone who went to the same college and who he handpicked and who has been accused some of the very same problems.

Q: At times the board must have done some things right. What are some of the ways the board, in your estimation, did the right thing?

Kathy: The only thing I feel the medical board has done right in the case of Dr. Rutland is revoke his license in 2002. In the larger context I wonder that if Dr. Rutland has gotten away with what he has and there were so many mistakes and oversights by the medical board, how many other Dr. Rutlands are out there? What does the medical board do for the California consumer? Can we really count on them to monitor our safety?

Q: Now that Dr. Rutland is being accused of wrongdoing again, how do you rate the medical board and the state justice department's efforts in prosecuting the case?

Scott: The fact that they weren't able to persuade a judge that he should not have his license back says a lot. He was being watched and yet he allegedly did something so haphazard as to operate without the meds on his crash cart being up to date. He says he gave the woman 100 grams of lidocaine and that he must have hit a vaginal vein. That's what killed her. I suppose that remains to be seen at the hearing next month. But here he has already been through so many trials and yet he takes these kinds of risks. That would be the reason why you would want to yank him all the way out of practicing medicine. At the hearing on Jan. 7, when the judge was considering whether to stop him from practicing until the medical board case was complete, Dr. Rutland's attorney had a response for everything the medical board threw at him. It was just his word against their word, and there really wasn't any evidence presented. It basically looked like Dr. Rutland's attorney, Peter Osinoff, was a pro, and the other attorney didn't make much of a case. Now, maybe it wasn't the venue for that, but you had to admire Osinoff. The judge must have thought there was enough probable cause to change his license somewhat, but, again, he fell back on this idea that he should be able to make a living.

Kathy: I still can't believe that the same body of government that revoked his license in 2002, reinstated him in 2007 and now is trying to revoke it again in 2010. Shame on them, they're the ones that gave it back to him in the first place. I really hope that they are successful, but nothing surprises me anymore. Just when I think, given all the evidence against him, the only decision a judge could make would be to fully suspend his license, the judge doesn't do it. I'm floored. The medical board has made so many mistakes in following up with Dr. Rutland's probation and now the most recent revelation with Dr. Dotson. Is Mr. Osinoff going to use that information against the medical board? Will that end up working in Dr. Rutland's favor?

Q: Does it make sense that a doctor should be allowed to make a living or should they be forced to switch careers essentially?

Kathy: I definitely think some doctors can be rehabilitated but Dr. Rutland is not one of them. With his record, he has shown he cannot be rehabilitated. He should pick a new career.

Scott: If I wasn't able to do my job, and there had been significant events that caused the county or a fire captain to think I was making decisions that put people in peril, they could completely remove me or demote me. It's about making good decisions. If you can't make good decisions when the pressure is on, then maybe a different career is necessary. If people can be hurt and killed by your decisions not being sound, you shouldn't be in that career. I'm sure Dr. Rutland is able to make good decisions in thousands of routine deliveries. As long as it's routine, he seems like he does well. He only seems to have trouble when something becomes problematic. That's when he seems to make the wrong decisions.

Q: How would you characterize the way the board has kept you informed over the years about the status of Dr. Rutland's case, both while your complaint was active and since then?

Scott: They really haven't. If we don't pursue it, we won't get a phone call. We've been more informed from you and from Courtney Perkes at the Register. That's how we found out about the most recent things that have been going on.

Kathy: The medical board has a lot of work to do when communicating with complainants.  We hardly had any communication the first year after we filed our complaint.

Q: Dr. Rutland was able to request his own practice monitor. How should that process work?

Kathy: I can't believe that Dr. Rutland was able to request his own monitor. Didn't the medical board look at their own site to check on that doctor? The medical board needs to have a panel of sworn-in physicians with clean records. Maybe retired physicians would want to work part-time. They should be appointed to monitor probationary physicians with the power to conduct random visits and chart audits.

Scott: There are more than 100,000 doctors in California. I'm sure you could find a few of them who are willing and able to help doctors work through their problems. But they would have to be allowed to act as probation officers. They could make unplanned visits to the doctor's office. They could call or visit any patient at any time for any reason. "How were you treated? How did everything go?" It can't be something that is scheduled quarterly and done by the doctor's friend from college. That looks like a polluted tank. But most people don't even know that. Would anybody send their daughter to a doctor who has had problems and who is being monitored by a doctor who has had some of the same problems? No. But the board doesn't make it easy for people to find out that's what's going on. Now that it has come out, this has to be embarrassing for them. I hope this radically changes things on the board. It's probably the best thing that ever happened to the medical board that Dr. Rutland was overseen by Dr. Dotson. They cannot return to business as usual after this.

Q: If you could improve the medical board's processes for handling complaints, investigating doctors and disciplining them, what steps would you take?

Kathy: I would like to see the medical board respond to a complaint within two weeks, but I know realistically, with their furlough days especially, that within 30 days is probably reasonable. And, if they are going to investigate, they should launch the investigation within weeks after that. I would like to see the medical board communicate every two weeks whether it be written or verbal so that the consumer making the complaint knows what is going on at all times. Once the physician is being investigated and depending on the type of infraction and the resulting investigation, I feel that if the medical board suspects gross negligence there should be an immediate request to a judge for an interim suspension until further investigation. Look what happened to Dr. Rutland when he was supposed to have a practice monitor? He injured another patient.  Before any of this is done though, I would like to see a thorough audit of the board and maybe a complete restructuring.

Scott: They started to do this when Dr. Rutland first had his license taken away. They needed to rebalance the board so it wasn't dominated by doctors, so they added some people who weren't doctors. They didn't go far enough. You still need doctors on the board, of course, but they need to split the board with other people, credible people from the business community. Then below them would be this structure of the folks who would be proctors to the problematic doctors. That would make the whole system credible so the consumers can know that it was fixed. If Dr. Rutland had been walked through his probation by the right doctor, he might have had a different course in his career. Just steer him back to the center. Make sure he goes to the right classes and proves that he's changed the way he's doing business. It has to be terrible for him, too. I'm sure he didn't want any of this to happen. If someone ran a business like the medical board, they would be sued for millions and not have a single customer.

Q: When the Los Angeles Times and ProPublica reported last year about serious problems with the California Board of Registered Nursing, Gov. Arnold Schwarzenegger threw most of the board out. If you had a chance to tell Gov. Schwarzenegger directly what should be done with the board, what would you say?

Kathy: I would call on the governor to audit and completely change the medical board so that history does not repeat itself.

Scott: I met him actually when I was about 17 years old. I lived near Bill Drake, who had helped Arnold when he first came to the US. And he came over to Bill's house, and I met him a few times. My sister actually mentioned that when she wrote a letter to the governor about Dr. Rutland.

Q: What did you think of him?

Scott: I thought he was young and cocky and, of course, huge. He'd won a few Mr. Olympias by then. He was bigger than life and funny. I was working out once at Bill's house, and he just started joking with me. I still remember some of the things he said.

Q: So what would you ask him?

Scott: I would ask that he reconstruct the board. It has to be shameful for him to have the board working the way it is under his tenure. It's not protecting the consumer, and he should work to change that. He should do the same thing that he did with the nursing board.

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Q&A with Scott and Kathy Broussard, Part 1: Feeling called to demand better doctor oversight