Posted on Sun, Nov. 16, 2003


Discipline process operates in secret
A lawsuit reveals how hospitals deal with alleged misconduct.

Inquirer Staff Writer

Delores Spraggans, a diabetic with kidney failure, arrived at Hahnemann University Hospital in October 1997 for her regular dialysis treatment - but the catheter in her thigh, used for the procedure, had clogged.

So, the 67-year-old woman was sent to the operating room to have a new catheter inserted - this time in her neck.

Although Spraggans had no way of knowing it, the surgeon in the case - Thomas B. Gain - had spent the previous 11 months under close hospital scrutiny.

Hahnemann medical officials had ordered Gain to consult with other doctors when performing gastrointestinal surgeries, saying that they were concerned about his medical judgment and its possible impact on patients.

Although Spraggans' operation was not among the type being monitored, its outcome proved disastrous and resulted in more oversight - and ultimately, limits on Gain's practice.

But all this happened behind closed doors, even as Gain operated on hundreds of patients a year until he stopped practicing medicine in 2002.

Such disputes between hospitals and doctors take place at least 900 times a year around the nation, according to information from the National Practitioner Data Bank.

Typically, a hospital believes that a doctor is endangering patients and limits his ability to practice, or fires him. The doctor, fighting for his livelihood, argues that the hospital is wrong and has its own financial agenda.

But laws keep such internal hospital investigations confidential, to protect the reputations and careers of doctors who might be unfairly accused.

In the case of Gain, only a lawsuit he filed against Hahnemann and its chief of surgery would bring the dispute over his competence to light.

Gain declined through his lawyer to discuss the case. The defendants also would not talk about it, though, speaking generally, James R. Kahn, the lawyer for Hahnemann and its surgeons, said that "patient safety is a primary concern at Hahnemann."

Gain's lawsuit and Hahnemann's responses - all public records - offer a rare glimpse into the steps that a hospital can take against a doctor in the name of patient safety.

In his lawsuit, initiated in 1999 and scheduled for trial in January, the 61-year-old surgeon defends his skills. He says the hospital wrongly questioned his medical judgment so that other doctors could take away his patients - and surgical fees of more than $200,000 a year.

His suit claims that Hahnemann's actions were "designed to humiliate and economically cripple" him and force him "to abandon his career."

Larry R. Kaiser, chairman of surgery at the University of Pennsylvania, who is not involved in the Gain case, says internal monitoring of doctors is a delicate but critical duty.

"One of the mandates on us is to protect the public from people we think are unsafe," Kaiser said.

"Unfortunately, with surgical privileges, it is someone's livelihood that is at stake, as well, and we recognize that."

The medical community also argues that confidentiality laws allow hospitals and doctors to openly and honestly discuss - and learn from - medical complications and errors without fear of triggering malpractice lawsuits.

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The problems between Gain and Hahnemann first surfaced in the fall of 1994, but the dispute reached the boiling point two years later, according to documents filed in Gain's lawsuit.

By then, Gain had spent his career at Hahnemann. He graduated from its medical school in 1967, did his surgical residency there, and joined the staff as a general surgeon in 1972. For nearly 20 years, he served as associate director of the hospital's general-surgery residency program, becoming its director in 1990.

In 1992, he was promoted to full professor of surgery.

In the fall of 1996, some of Gain's gastrointestinal (GI) surgeries were reviewed at the hospital's weekly "morbidity and mortality" conferences - meetings to study problem cases.

On Nov. 21, according to Gain's lawsuit, Joel Roslyn, then Hahnemann's chief of surgery, summoned Gain to his office.

Roslyn insisted that, for one year, he would review each of Gain's GI cases before the surgery.

Five months later, Roslyn went further. Saying that Gain had failed to consult with him, Roslyn temporarily restricted Gain from performing any GI operations.

"This action is necessary as an interim precautionary measure to protect patients and the quality of care they receive," Roslyn wrote Gain on April 3, 1997.

George J. Amrom, who took over as chief of surgery when Roslyn died in 1999 and also was sued by Gain, stated in a court filing that the suspension was temporary, "pending completion of an investigation" into Gain's GI surgeries.

In addition, Roslyn took Gain off the emergency room rotation, which, Gain's lawsuit argues, "prevented him from performing other surgery for which there was no suspension in effect."

The hospital commissioned an independent review of 22 gastrointestinal surgeries performed by Gain over 13 months. In May, it landed.

Lelan F. Sillin, professor of surgery at the State University of New York Health Science Center at Syracuse, reported finding "a significant number of instances in which there were lapses of or errors in surgical judgment and inappropriate management of gastrointestinal surgical problems."

Sillin criticized Gain's treatment of four patients, including a woman who arrived at the hospital in March 1997 with a complete bowel obstruction.

Given the patient's history, she should have been operated on quickly, but was not, he said. "Consequently, the patient developed a small bowel perforation and ultimately succumbed to the resulting sepsis [infection]."

He added: "The failure to recognize the significance and severity of this patient's problems at the time of admission and to deal with them expeditiously, in my opinion, represents a serious error in judgment."

Sillin suggested two options: limiting Gain's surgery or requiring that he get a second opinion on his patients from a "qualified academic" GI surgeon.

Hahnemann's medical executive committee chose the second option. Gain would have to consult with other surgeons before, during and after his GI operations.

Gain argued that such monitoring served only to disrupt his relationships with patients. An expert he retained called the monitoring "entirely inappropriate."

"A monitoring process that routinely forces the patients to come under the care of another physician is absurd and not in the best interests for furthering quality health care," wrote Garry D. Ruben, associate professor of surgery at the George Washington University School of Medicine in Washington.

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Delores Spraggans knew none of this when, in October 1997, Gain and a surgical resident operated on her neck to insert the catheter into her jugular vein.

Instead of being inserted into the vein, the catheter was threaded into her carotid artery - a vessel that looks and feels very different from a vein and is a major source of blood to the brain.

Later that day, Spraggans was given dialysis. She suffered a stroke and, according to a lawsuit her family would later file, she was left unable to walk, talk or breathe on her own.

Spraggans' case came up at a weekly "morbidity and mortality" conference. In December 1997, Roslyn temporarily barred Gain from performing vascular surgery, pending a review.

The next month, two experts - from medical schools at Emory University in Atlanta and the University of Rochester in New York - examined 31 of Gain's vascular surgeries.

Of Spraggans' case they said: "It is difficult to comprehend how the carotid artery could be mistaken for the jugular vein when the vessel was surgically exposed."

"In our opinion," they said, Gain did not meet "the standard of care in vascular surgery" in 19 of the 31 cases.

They concluded that, at their hospitals, Gain "would not be allowed to continue to hold full vascular surgery privileges."

Gain submitted a 24-page rebuttal, saying the reviewers erred in their analysis and conclusions.

"In summary, two operative complications occurred in the thirty-one cases reviewed: one major [Spraggans] and one minor," Gain wrote.

"Surgical privilege suspension is the most severe penalty imposed on a surgeon," Gain added. "It is a career-ending penalty... . To continue the suspension based on this review would perpetuate this reckless abuse of power."

In January 1998, the hospital's credentials committee voted to take away Gain's vascular surgery privileges except for varicose vein procedures, amputations and catheter insertions.

This was a major decision.

When a hospital suspends a doctor's privileges for more than 30 days it must, under federal law, report it to the National Practitioner Data Bank.

Although the information is kept secret from the public, hospitals must check with the data bank before hiring doctors or granting them staff privileges. A hospital also must check the data bank every two years for all doctors on its staff.

The hospital also reports the doctor to the state medical board, where the information remains confidential unless the board acts against the doctor's license.

Gain sought a "fair hearing" from Hahnemann - a last-ditch appeal on peer-review sanctions that he was entitled to under hospital rules.

A panel of five doctors, including a vascular surgeon from the Hospital of the University of Pennsylvania, met five times before unanimously backing the limits on Gain's vascular surgeries.

After he again appealed, the hospital's board affirmed the limits.

In his lawsuit against Hahnemann, Gain argues that the suspension was part of a "conspiracy" to "prevent [him] from practicing surgery at the hospital or anywhere else."

In response, the hospital and its surgeons say that their decision "was based upon an objective and reasonable belief that it was necessary to preserve patient quality health care."

Eventually, the hospital also decided to limit most of his GI surgeries.

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Spraggans died seven months after her surgery, having spent almost all that time on a breathing machine in the hospital.

In 2001, her family won a $2 million jury verdict against Gain and Hahnemann. Her family's lawyer, Thomas R. Kline, said that he never knew about any of the peer-review actions that Hahnemann had taken.

"The peer review process is something that is kept secret from patients and even from their lawyers after a lawsuit is filed," Kline said.

In 2001, the hospital reported Gain to the National Practitioner Data Bank, saying it had limited his surgery because of "poor clinical judgment."

Although Gain has active medical licenses in New Jersey and Pennsylvania, he has not practiced medicine since early 2002.

Today, a patient turning to the Pennsylvania Board of Medicine would find no hint of any concerns about Gain.

"There are no disciplinary actions or anything against his license," said Allison Hrestak, a spokeswoman for the Pennsylvania Department of State, which oversees professional licensing. "He is in clean standing with us."


Contact staff writer Josh Goldstein at 215-854-4733 or jgoldstein@phillynews.com.




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