Dying by Mistake
updated 12/18/1995 AT 01:00 AM EST
•originally published 12/18/1995 AT 01:00 AM EST
Peter buried his wife in a tree-shaded spot she had chosen in a cemetery in Wauwatosa, Wis., just outside Milwaukee. Then, still numb with grief, he packed his bags and flew to Florida as he and Karin had planned—and as he knew she would have wished. "She did not want me to sit around and mope," says Peter, looking out over the dock in front of their lakeside home in Nashotah, 25 miles west of Milwaukee. "She once said, 'I have the easiest thing here, dying. The hardest part is being left behind.' "
Peter says his sadness is almost overwhelming at times—but so is his anger. Karin's official cause of death was listed as cervical cancer. The real cause, Peter insists, is medical incompetence. Karin was careful with her health and had regular Pap smears, which can detect possibly cancerous cells early on. But twice a medical technician misread her Pap smears, and by 1991, when her cancer was finally discovered, the disease was too far advanced for a cure.
"Had my cancer been properly diagnosed in 1988, when my very first Pap smear was misread, I would have had a 95 to 97 percent chance of survival," Smith told a House subcommittee investigating health-care fraud just months before she died. "However, due to gross incompetency and shameful errors, I am now dying." The $6.3 million civil settlement she received from her health-care providers seemed like small consolation. Says Peter: "Her dying wish was for someone to be held accountable for what they did, even if it meant jail."
No one will go to jail, but in February Circuit Judge David Hansher is expected to decide whether the Chem-Bio Corporation, the Oak Creek, Wis., laboratory that performed Karin's tests, was guilty of reckless homicide in her death, as well as in the death of Dolores Geary, a physical therapist aide whose Pap smears were also misread. On Dec. 4 Chem-Bio entered no-contest pleas to the two charges, which could each draw fines of $10,000. According to Smith's lawyer, Patrick Dunphy, this is the first case in which criminal charges were issued against a medical laboratory over allegations of malpractice. "It's important because providers of health care must realize that they will be held accountable like anyone else who commits outrageous acts," he says. Adds Keith Geary Dolores's husband: "A fine of $10 000 is very little for someone's life but at least in some way they're paying."
At the angry insistence of victims and their families, and to the considerable consternation of the medical community, prosecutors nationwide are following the lead of Milwaukee District Attorney E. Michael McCann, who brought the criminal charges against Chem-Bio. In a landmark decision on Aug. 8, a jury took less than 3 hours to find Dr. David Benjamin of Queens, N.Y., guilty of second-degree murder after he botched the abortion of 33-year-old Guadalupe Negron and allowed her to bleed to death. (The first doctor in New York State ever convicted of murder in the course of treating a patient he faces at least 25 years behind bars.)
Next year, Denver anesthesiologist Joseph Verbrugge Jr., who is accused of falling asleep during an operation, faces manslaughter charges in the death of 8-year-old Richard Leonard. And in Los Angeles, dentist Tae Joo Lee will be tried on a manslaughter charge in the death of 4-year-old Angela Noh, who stopped breathing after being given an overdose of a sedative. Says Queens District Attorney Richard Brown, who tried Benjamin for what he calls barbaric and brutal doctoring: "We can never allow a medical license to serve as a shield against criminal activity."
Frighteningly, the physicians and medical specialists facing criminal charges are but a handful of those who, through mixups and errors of judgment, harm patients under their care. Among the most shocking is the case of Willie King, the 52-year-old diabetic who checked into University Community Hospital in Tampa to have his lower right leg amputated by Dr. Rolando Sanchez in February and awoke to discover his lower left leg gone. (Later, Sanchez cut off another patient's toe without her consent.) This month the Florida Board of Medicine fined Sanchez $10 000 and suspended him from practicing medicine for six months. And such incidents are far from unusual: Nationwide, according to a broadly cited Harvard study some 400, 000 patients are the victims of negligent mistakes or misdiagnoses every year. Many of those cases involve relatively minor injuries, but 90,000 involve deaths.
In May, Rajeswari Ayyappan, 59, the mother of Sridevi, one of India's most popular film stars, came to New York City to be treated for brain cancer at the renowned Memorial Sloan-Kettering Cancer Center. There the neurosurgeon brought another patient's X-rays into surgery and operated on the wrong side of Ayyappan's brain, damaging healthy tissue. (She was later treated elsewhere for her cancer and returned to India.) And in what has become a particularly notorious case, Betsy Lehman, 39 an award-winning health columnist at the Boston Globe, went for treatment of her breast cancer last year to Boston's world-famous Dana-Farber Cancer Institute, where her husband, Robert Distel was a staff research scientist. She died after being administered four times the normal dosage of a powerful anticancer drug, the result of a doctor's incorrect medication order. No criminal charges were filed in the case, and officials at Dana-Farber have assumed full responsibility for the blunder. In August the hospital reached a multimillion-dollar out-of-court settlement with Distel, who has returned to his job as a researcher. "You cannot be a more informed consumer than Betsy," says Distel. "We did everything right, and the system still failed us."
Who is to blame for such horrifying mishaps? What is fair compensation for the loved ones left behind? Though district attorneys are increasingly willing to try cases like those of Karin Smith and Guadalupe Negron, criminal prosecution for medical malpractice is still "as rare as a hen's teeth," says Dr. Sidney Wolfe, executive director of the Public Citizen Health Research Group of Washington. In most cases doctors and other professionals face state medical boards, which can suspend and revoke licenses—but whose findings are often sealed from public scrutiny Health-care professionals may also pay for their mistakes in civil courts, where the burden of proof is much lower than the criminal standard, which requires that deliberate indifference to a patient's well-being must be established. But even when an institution or individual concedes responsibility for an injury, the facts are often kept quiet. For instance, many civil court settlements awarding damages for negligence include gag orders bar-ring the victims from warning others about the people and institutions involved. Critics regard such enforced secrecy as just more evidence that the medical community is out to protect itself, not its patients.
Spokesmen for the medical community insist that isn't so. In 1994 the Texas-based Federation of State Medical Boards reported that state medical boards took action, ranging from restricting practices to revoking licenses, against 3,685 U.S. physicians—an increase of 11.8 percent over the previous year. Federation executive vice president Dr. James Winn cites this as evidence that the nation's 600,000 physicians will crack down on their own: "That's what we're after," he says, "to get the bad doctors out."
Few would deny that such a description should have been applied to Dr. David Benjamin, 59, whose Queens clinic catered to poor, often uneducated women. In 1993 the New York department of health revoked Dr. Benjamin's license, maintaining that he posed a "significant risk" to the public. He appealed the decision, which allowed him to continue to practice while the appeal was pending. Moreover, the state is forbidden to release information on any investigation or decision at is not final. Thus Negron could not have known of Benjamin's record when she went to him in 1993, 19 weeks pregnant, for an abortion.
According to court testimony, Benjamin knew she was in her second trimester and that she required a complicated procedure he did not have the skill to perform. Giving her only a local anesthetic, he performed an operation suitable for a first-trimester abortion instead. During the procedure he caused a 3½-inch tear, perforating Negron's uterus, then left her, bleeding, on the table while he went to perform an abortion on a second woman. When he realized Negron was in distress, Benjamin mistakenly inserted a breathing tube into her esophagus instead of her trachea. When paramedics arrived, he refused to give his name and insisted Negron had suffered cardiac arrest, for which he was not to blame. "Seldom, " says prosecutor Brown, "will there be another case of depravity like this. "
Tales like Negron's prompt critics of the medical community's self-policing policy to question its record—new, harsher sanctions notwithstanding. "Considering what we know about substandard doctoring," says Wolfe, "none of these disciplinary rates seem adequate." Even some members of the medical community are beginning to welcome—in extreme cases—the idea of criminal sanctions. "If a doctor covers up—puts his own welfare over the patients'—that could be criminal," says Dr Winn of the medical board federation. "When the intent is income and profit, there can be grounds for criminal action."
Still, Winn and others are alarmed by what they consider a dangerous trend that may force doctors to worry whether a simple error in judgment could lead to prison. "We can't reach a point where physicians who make mistakes, even bad mistakes, end up in jail I for it," says Kirk Johnson, general counsel for the American Medical Association. "Too much of medicine is complicated judgment calls. It is filled with uncertainty and outright mistakes by even the best."
The best, however, is not how anyone would describe anesthesiologist Joseph Verbrugge Jr., 55, on the morning of July 8, 1993. Moments before 8-year-old Richard Leonard was scheduled to undergo a routine ear operation at 7:30 a.m. at St. Joseph's Hospital in Denver, says Leonard's mother, China, "Verbrugge came roaring in" to the hospital conference room where physicians consult with patients. "He seemed really harassed, like he just woke up," she says. "He was very abrupt with me."
Unfortunately, Verbrugge's dubious bedside manner was just the beginning. A member of the surgical team in the operating room that day would later tell the Colorado State Board of Medical Examiners that Verbrugge's "substandard" and "grossly negligent" behavior began when he neglected to calibrate the oxygen analyzer on the anesthesia machine. Later, according to the board report, Verbrugge was noticed "slumping in his chair with his head on his chin, his eyes closed and his arms crossed in front of him."
Why this team member—or the nurses who witnessed similar behavior throughout the operation—did not alert someone that Verbrugge seemed to be sleeping is unclear. "Perhaps the nurses were frightened of crossing him," suggests Leonard's father, Jay, who with his wife owns a computer software company near their home in Superior, Colo. In any case, Verbrugge, seen apparently dozing at 10 a.m., was awake about 30 minutes later when the doctors noticed trouble. Richard's temperature had shot up to 107 degrees. Another half hour later, Verbrugge summoned two other anesthesiologists to help, to no avail. By 4 p.m., Richard was pronounced dead.
Both China and Jay were astonished to learn during Verbrugge's state medical board hearing in February that Verbrugge had already been reviewed by peer boards in Colorado six times for infractions that included falling asleep during operations, but that this information had previously been available only to state board members. Says Jay: "You don't have to be Ralph Nader to figure out that the system that failed you is the peer review." Throughout the hearing on Richard Leonard's death, Verbrugge maintained that he had merely closed his eyes to better hear the pulse oximeter, a machine used to detect when the level of oxygen in a patient drops too low. But after his license was revoked by the Colorado board in December 1994, he expressed his remorse. "My role in Richard Leonard's death will always be part of my existence, more than I can say," he says. "The loss of any patient, and this patient specifically, is any physician's nightmare."
Verbrugge can no longer practice medicine in Colorado, but he is free to hang out a shingle in any other state that will grant him a license. But if Denver Chief Deputy District Attorney Diane Balkin has her way, the doctor will spend six years in prison and pay a fine of up to $500,000, the maximum sentence for manslaughter. "Richard was a living, breathing little boy," Balkin says. "He is gone. Gone forever. We can't lose sight of that."
Nor can Keon and Un Noh forget that their 4-year-old daughter, Angela, was a living, breathing little girl—until a routine trip to the dentist in 1992. The Noh family had immigrated from South Korea to Las Vegas three years earlier and had traveled to L.A. for a family dental checkup with Dr. Tae Joo Lee, who had been practicing in California for 15 years. Angela's aunt Kay Han, who accompanied the family, was concerned when she saw Lee's assistant—not a dental hygienist but a bookkeeper—administer oral chloral hydrate to sedate Angela before she was treated for mouth abscesses. But she raised no objection. "It was our first time in an American doctor's office," says Han. "We trusted the nurse. We trusted them all."
That trust was misplaced. Angela received approximately 4½ times the maximum recommended dosage of chloral hydrate for a child, and while Lee was working on her she stopped breathing. Lee tried unsuccessfully to revive her with CPR and neglected standard procedures to establish an airway for oxygen. She was then carried downstairs to an internist's office, where paramedics were called. Some 25 minutes later, Angela was on her way to Cedars-Sinai Medical Center in Los Angeles, but by the time she arrived she was virtually brain-dead. Two days later her heart stopped beating and she died.
L.A. Deputy District Attorney Brian Kelberg, who was also involved in the O.J. Simpson prosecution, based his decision to charge Lee on several factors: the grossly excessive amount of chloral hydrate administered by a person unqualified to monitor the child after the drug was given, Lee's failure to recognize the signs of impending respiratory distress, his failure to properly resuscitate the child once she stopped breathing, and his later attempt to falsify her medical charts to show a lower dosage of chloral hydrate than was actually given. Said Kelberg last December when he charged Lee with manslaughter: "This was not simply a case of negligence "
Lee's attorney Alan Baum concedes the dentist was negligent—but nothing more. "Dr. Lee did not intend to do any injury," says Baum, whose client could face up to four years in prison if found guilty. "He is responsible for the conduct of his employees, and he should answer to that, but that is not a criminal charge."
In most incidents of negligence, there is no clear intent to do harm, and it may fall to untrained juries to determine whether a doctor's mistakes can fairly be characterized as criminal. In a case that still angers the medical establishment, Dr. Gerald Einaugler, 51, former staff physician at the Jewish Hospital and Medical Center of Brooklyn nursing home, was convicted in 1993 of reckless endangerment and willful neglect. According to court testimony, he had mistaken a dialysis tube for a feeding tube in 78-year-old patient Alida Lamour, who suffered from kidney failure, and ordered that an intravenous feeding solution be administered. About 36 hours later, a nurse noticed the mistake and notified Einaugler, who called Dr. Irvine Dunn, Lamour's physician at nearby Inter-faith Medical Center, and informed him of what had happened.
Though Lamour seemed unharmed, Dunn says he instructed Einaugler to bring her immediately to Interfaith, where she could be closely monitored and have her abdominal lining purged of the feeding solution. But Einaugler delayed. Ten hours later, having twice checked to make sure her condition was stable, Einaugler moved Lamour to Interfaith. Four days later, Lamour died, a result a medical examiner attributed to Einaugler's initial mistake.
Prosecutors Beth Morgenstern and Michael Berlowitz told a Brooklyn jury that Einaugler's negligence was criminal, not because of his initial error, but because of the 10 hours he took to remedy it. Einaugler protested, saying his delay was simply a judgment call. The jury did not agree. His sentence—52 weekends in jail, to be served consecutively at New York's notorious Riker's Island—was delayed by U.S. District Court Judge Edward Korman of Brooklyn, who began a review of Einaugler's conviction in July. But Einaugler has lost his privileges to practice at two nursing homes and a hospital and has been disqualified as a Medicaid provider.
As Einaugler and his peers see it, his initial mistake was a tragic error, but the aftermath was a travesty of justice. After reviewing the facts of the case, a panel of the New York Board for Professional Medical Conduct declined to revoke Einaugler's license and concluded that while he may have been negligent, his conduct was not "egregious." The American Medical Association, the Medical Society for the State of New York and other professional groups have pledged to raise $500,000 to help pay for his defense. "The entire situation is so unfair, unjust and cruel that the reason why cries out for an answer," Dr. Morton Kurtz, past president of the New York State medical society, told Medical Economics magazine.
Doctors fear that zealous lay people—officials and jury members alike—are passing judgment about medical complexities they are ill-equipped to understand. "[Einaugler's conviction] totally undermines whatever professional review there is of physicians' conduct," his former attorney, James D. Harmon Jr., has said, "and permits a prosecutor's judgment to supersede medical expertise."
Of course, "medical expertise" is a phrase that rings hollow to those who have suffered in its name. Were she alive today, Karin Smith might rely on a new computer Pap smear reading system. But in 1988 all she could count on was the competence of June Fricano, the technician at Chem-Bio, who misread two out of three of her Pap smears. According to court papers, Fricano had been processing about 80,000 slides a year (more than double what is now the federally recommended number) and was overworked. Records also show that Dr. Robert Lipo, the lab's medical director, did not adequately supervise her by randomly rescreening 10 percent of the tests with negative results, as mandated by federal law.
Milwaukee DA McCann chose not to prosecute Fricano or Lipo because of a common insurance provision that precludes payments to parties injured by criminal conduct. That decision disappointed the families of Smith and Dolores Geary, who died of cervical cancer at age 40 in 1993, six years after the first of her Pap smears was misread at Chem-Bio. The survivors had hoped the doctor and the technician would also be charged.
The tragic fact is, nothing—not a $10,000 fine or even a stiff jail sentence—can ease the pain of knowing that in October, Dolores Geary missed the wedding of her oldest child, the 22-year-old daughter who bears her name. "If just one of the people who were taking care of her did their jobs right," says her husband, Keith, "she would be here still. Someday" he softly adds, "they will pay. They will have to stand up to what they did, to face God and explain it to Him."
KAREN S. SCHNEIDER
GIOVANNA BREU in Wisconsin, VICKIE BANE in Superior, DANELLE MORTON in Los Angeles, LORNA GRISBY and JANE SUGDEN in New York City, DON SIDER in Tampa, SUE AVERY BROWN in Boston and bureau reports