SMALL PERCENTAGE OF DOCTORS RESPONSIBLE FOR SURGE IN MALPRACTICE SUITS, RATES

MGH POLICY MAY STIFLE TESTIMONY

SERVICE ALERTS DOCTORS TO PATIENTS' PAST SUITS

Date: June 15, 1986 Page: 1 Section: METRO

Beatrice Higgins could still walk to the store for groceries when she was admitted to Hunt Memorial Hospital five years ago with arthritis. But her surgeon implanted an artificial knee that was the wrong size. When he removed it later, he fractured a bone and ruptured a tendon.

Today, the 73-year-old Higgins only leaves the Danvers nursing home in a wheelchair. A bindery supervisor at a California printing firm, Roger Lucas was stacking cartons in 1982 when he pulled a back muscle. Now the 33-year-old Lucas will never work again. He walks with a cane, and cannot sit or lie down for more than half an hour at a time. He spends $350 a month on pain medication and muscle relaxers. He and his wife have separated, in part because love-making is almost impossible for him. A court-appointed doctor has described his case as "the failed operative back at its worst."

Asked about the surgeon who operated on him after four days of conservative treatment, Lucas said, "If I can have one thing. . .it's five minutes alone in a locked room with the man, with a baseball bat."

Higgins and Lucas both sued the same doctor, Hyde Park orthopedic surgeon Frederick Huffnagle. They are not alone. A former Essex County medical examiner, the 50-year-old Huffnagle has settled five Massachusetts malpractice suits out of court, including one brought by Higgins, by paying for damages. Four pending suits, including Lucas', are the upshot of his one year of practice in California. One hospital required him to leave its staff, another voted not to accept him and he resigned from a third hospital where he had omitted information from his application for privileges.

Yet Huffnagle remains in good standing in Massachusetts. He has never been disciplined by the Board of Registration in Medicine, which oversees the state's doctors, or the Massachusetts Medical Society. He is a member of the staff at Massachusetts Osteopathic Hospital in Boston.

Huffnagle is one of a small number of doctors who are repeatedly sued and bear a disproportionate responsibility for the steady surge in malpractice cases and insurance premiums in Massachusetts. The resulting malpractice crisis this spring has spurred many physicians to temporarily stop delivering babies or setting fractures. It has also fostered a deep mistrust between lawyers and doctors that has stymied efforts at reform legislation.

According to data analyzed by the Globe Spotlight Team, three percent of the doctors covered by the Joint Underwriting Association, the state's largest malpractice insurer, accounted for almost one-third of its cases that were pending or settled out of court. The same three percent have accounted for an estimated $22 million in payments in an 8 1/2 year period. Studies in other states, from Florida to Pennsylvania, have had similar findings.

"It is apparent that a large share of the losses have been incurred by relatively few individuals," Ronald Birkenfeld, chief of neurosurgery at Carney Hospital, reported in the Massachusetts Neurosurgical Society Newsletter last July. Birkenfeld found that four of the 82 neurosurgeons insured by Joint Underwriting Association accounted for 64 percent of the company's paid losses in that specialty.

The same pattern holds true for other specialties. According to insurance data analyzed by The Spotlight Team for 1975 through June 30, 1983, 18 percent of the doctors insured by the company accounted for all of its payments to injured patients or their families, totaling $68 million. Even in the most suit-prone specialties, which include orthopedics and neurosurgery, one-eighth of the doctors were responsible for half of the settled or pending claims.

Like most other frequently sued physicians identified and contacted by the Globe, Huffnagle declined comment, saying through his attorney that the press has treated him unfairly in the past.

The state medical board claimed that Huffnagle has been under investigation since 1983, but declined to comment on the case.

Such repeat offenders as Huffnagle seldom suffer any permanent setback to their careers. Often, say those in the field, neither their patients nor the hospitals where they work are familiar with their histories of damaging mistakes and questionable risks. They persist because of medical, legal and political systems that fail to monitor malpractice and identify, let alone penalize, repeat offenders.

Until recently, when the Globe obtained access to state board of medicine records through a Freedom of Information Act request, no one inside or out of government had analyzed malpractice patterns among Massachusetts doctors.

The Globe's study punctures a number of widely held myths about malpractice. For example, it is often said that doctors at teaching hospitals are sued the most, because they handle difficult cases that require advanced techniques.

However, by reviewing license renewal forms for 1986, which asked doctors whether they had been sued for malpractice in the past two years, the Globe found that a disproportionate number of those with lawsuits work at community hospitals.

Community hospitals, say experts in the field, see more suits because they have less stringent supervision of patient care. Unlike teaching hospitals, most community hospitals do not have salaried chiefs of services to oversee doctors.

Many doctors vehemently dispute the significance of malpractice cases. They say most suits are filed not because the medical care was inadequate, but because the outcome was unfortunate. Attorneys and juries do not understand that medicine is at best an imperfect science, which cannot succeed every time, they contend, and that the physician should not be held responsible when nature takes its course in the form of infections or complications. "The courts are trying to hold doctors to a standard of zero error," says Charles Lipson, a surgeon who practices in New Bedford and serves as an expert witness for both plaintiffs and defendants.

Still, the Globe found that most malpractice cases involve basic mistakes -- missed diagnoses, botched procedures, perfunctory post-operative care. Such things as:

> A Brockton obstetrician delivers a baby and leaves a sponge in the mother's uterus. Two weeks later, in such pain that she can't walk, she sees another doctor, who discovers and removes the sponge.

> A Springfield teen-ager loses 30 pounds in 20 days, has an insatiable thirst and urinates constantly. His doctor does not test his blood sugar level. The boy dies of diabetic shock.

> A Quincy man goes to his doctor to have wax cleaned out of his ear, and ends up deaf, with a permanent imbalance problem that gives him "a tendency to fall down."

"What else can you do but sue? The doctors don't police themselves," said Jonathan Kurker, 23, of West Roxbury, who sued his doctor five years ago when his throat was permanently damaged after surgery. Last year, he received $264,000 in an out-of-court settlement.

"There's no deterrent for doing it again and again. They all get insured no matter what, the bad and the good.. . .And I guess the state and the hospitals don't do much about malpractice either. There's just no public accountability," said Kurker.

A three-month Globe Spotlight examination has found:

> The legal system hides most egregious malpractice cases from the eye of the public and the medicine board.

When a patient is disabled or dies because of an obvious blunder, the insurer usually prefers to settle out of court rather than risk a huge award from an emotional jury. At the request of the doctor's attorney, such settlements routinely include secrecy agreements that bind both sides not to discuss the case. Some even require that the plaintiff not file a complaint with the board of registration.

"Hush money" is Boston malpractice attorney Andrew Meyer's term for settlements that include secrecy agreements. "One of the natural questions from my clients in all this is, 'What's going to happen to the doctor?' " Meyer said. " 'Is somebody going to look into this?' The answer is nobody. . .The settlement is difficult. You have to decide to risk it all at trial or swallow hard and keep quiet."

> Far from accomplishing its self-described goal of the "elimination of substandard physicians from practice," the Massachusetts Board of Registration in Medicine has been one of the nation's least aggressive boards in disciplining doctors. When the board does act against a doctor, it is more likely to be for drug or insurance wrongdoing than for malpractice. The board, which for ten years has complained of being underfunded and understaffed, has a backlog of several hundred cases. It may know about a doctor's errors for years before it takes action and, in the meantime, the doctor is allowed to continue practicing.

> Hospitals rarely deny staff privileges to repeat offenders. Most hospitals do not check malpractice histories with insurers before granting staff privileges to doctors.

A recent study by the Joint Underwriters Association obtained by the Globe found that only 15 percent of the 116 hospitals it insures have a thorough system for evaluating doctors seeking admitting privileges or reappointment to the staff.

Once hired, doctors are almost never fired. Hospital officials usually allow unwanted doctors to resign, even giving them recommendations that help them to find positions elsewhere. "Standing up and being counted is real hard.. . .I'd be amazed at any chief of service who would turn anybody in," said Daniel F. Creasey, president of the Risk Management Foundation, which insures 4,668 doctors at 12 hospitals affiliated with Harvard Medical School.

> The Joint Underwriting Association has never adopted a merit rating plan for repeat offenders, unlike neighboring Rhode Island and New York. Since the JUA is legally prohibited from discontinuing coverage for any licensed physician, merit rating would be the only way it could penalize suit-prone doctors.

 Doctors in the same specialty pay identical rates, no matter how much they have cost the company in jury awards and settlements. Officials of the firm dismiss merit rating on the grounds that surcharges on bad doctors could not be set high enough to result in reduced rates for other physicians. Says general manager Gerald J. Cassidy: "If a doctor faces a malpractice award for $3 million, what do you surcharge him? One grand?"

Yet some doctors in high-risk specialties are beginning to warm to the idea of merit rating as a deterrent to malpractice. Said Birkenfeld, who is a member of the Joint Underwriting Association's board: "Maybe it is a good idea to have some suit-prone guys worry about their work more, have it hit them in the pocketbook as one safeguard for the system."

Companies in other states are adopting merit rating. Doctors covered by New York's Medical Malpractice Insurance Association pay a 200 percent surcharge if they have at least four settled or eight pending suits. One Nassau County neurosurgeon with a lengthy malpractice history pays more than $300,000 per year. Starting in July, all malpractice insurers in New York must institute merit rating and give credits to doctors who have not been sued. Rhode Island will begin merit rating this summer.

> The legislative commission assigned to monitor medical malpractice ignored the budding crisis. Created in 1975 after the drying up of private insurance caught everyone by surprise, the commission periodically issued reassuring reports, like a doctor soothing a dying patient.

As late as 1983, after two years of sustained increases in claims, the commission saw "no signs of increased claims incidence and few signs of increased claims severity." Just weeks before the Joint Underwriting Association proposed a 163 percent hike in premiums, the commission declared itself "very pleased with the moderation in rates that has predominated in recent years."

One legislative leader said that the commission used to be "a place to hide some bodies," although "it's better now."

In the last five years, there has been a stunning rise in successful malpractice suits. From 1980 to 1985, the number of cases settled out of court by the Joint Underwriting Association, and the average pay-out per settled case, both tripled.

Although doctors continued to win most malpractice trials in Massachusetts, the number of verdicts for the plaintiff rose from three a year to 14, and the average jury award increased from $75,000 in 1980 to $458,000 last year. As a result, the underwriter's total pay-out jumped from $5.3 million in 1980 to $42 million.

Since the number of suits filed per year more than doubled in the five-year period and is expected to continue growing, the assocition has found it necessary to reserve hundreds of millions of dollars for future settlements and awards. To maintain this reserve, it has sought permission from the state for huge increases in premiums. The state insurance commissioner has granted more modest but still substantial hikes. For example, an orthopedic surgeon who paid $6,289 in 1976 and $15,322 in 1983 now pays $29,912, with another increase on the way.

Despite the premium increases, Massachusetts' malpractice insurance rates are only slightly above the national average. And, contrary to claims by the Massachusetts Medical Society, doctors have not been fleeing the state to avoid its malpractice premiums. The number of physicians in Massachusetts has increased from 18,000 to 21,000 in three years. Even in suit-prone specialties, such as obstetrics, the number of doctors setting up practice in Massachusetts has been increasing substan tially in recent years, according to state Blue Shield data.

In addition, medicine is not the only enterprise where a surge in lawsuits has driven up insurance rates. Insurers are withdrawing coverage or boosting premiums across the range of American enterprise, threatening everything from ski resorts to bars to toxic waste disposal firms. Bills have been introduced in every state to limit liability awards or regulate coverage.

Yet malpractice insurance is a special case, and not only because a critical service -- health care -- depends on it. What is different is that a small, readily identifiable group of the insured population has caused a large proportion of the rise in rates nationwide.

In Pennsylvania, a recent study found that 1 percent of the doctors accounted for 25 percent of the pay-out by that state's liability fund in the past decade. And in Florida, 3 percent of the doctors were responsible for 48 percent of claims paid.

One orthopedic surgeon insured by Joint Underwriting who is facing multiple claims is Huffnagle, who obtained his MD from Thomas Jefferson University in Philadelphia in 1961. He moved to the North Shore in 1968, and received staff privileges at Beverly Hospital and Hunt Memorial Hospital in Danvers. He was board certified in orthopedic surgery in 1970.

That year, Beverly Hospital placed him on probation after he scheduled experimental surgery for a patient without prior consultation, according to court records. Huffnagle had never performed the hip replacement technique before, and it had never been tried at Beverly, which lacked the proper equipment for it, according to an affidavit by Craig S. Slater, then the hospital's chief executive director.

In 1971, due to this incident and "other serious continuing difficulties," the executive committee of the hospital's medical staff recommended that Huffnagle's privileges not be renewed. He submitted his resignation, then changed his mind and fought the decision in court for the next eight years without success, while practicing at Hunt. His work at Beverly and Hunt generated five malpractice suits that resulted in payments to patients. Higgins, for example, received $115,000.

In 1981, Huffnagle left Hunt and moved to California, where he gained staff privileges at Westminster Community Hospital in Orange County. His malpractice problems persisted. Four suits are pending from his year at Westminster.

While in California, Huffnagle shared an office with C. Anthony Shen, another orthopedic surgeon. They had a falling out over office revenues and sued each other. According to Shen's complaint, Huffnagle "was not an experienced and competent orthopedic surgeon." Shen claimed that Huffnagle misrepresented his past by assuring Shen that he had never been denied staff privileges at a hospital.

Westminster Hospital officials would not comment on why Huffnagle left in 1982. However, a copy of Huffnagle's application for staff privileges, obtained by The Globe, shows he omitted Beverly Hospital when asked to list all present and past hospital affiliations. Asked whether his privileges at any hospital had ever been suspended or not renewed, and whether settlements had ever been made against him in professional liability cases, he answered "no" on both points.

When Huffnagle returned from Westminster, he reapplied for privileges at Hunt Hospital. In the spring of 1983, the medical staff voted overwhelmingly against him. He could have appealed the decision to the hospital's board of trustees, but chose to withdraw his application.

After being rejected by Hunt, Huffnagle joined the staff of Mass. Osteopathic. William J. Trifone, administrator of Mass. Osteopathic, said Huffnagle has "done a good job" there. He said Huffnagle helped introduce a promising, if controversial, treatment for back injuries known as chemonucleolysis to Boston.

Another new technique championed by Huffnagle has its share of skeptics. Considered a diagnostic tool by its adherents, thermography measures heat in different regions of the skin; a pattern of hot spots may indicate pathology. Thermography has been in vogue in courtrooms, lawyers say, because it purports to prove the existence of otherwise undocumentable pain.

Huffnagle, who advertises himself as a neuro-muscular thermographer, occasionally serves as an expert, for a fee of $100 per hour, in motor vehicle and workers' compensation suits. In one case, he testified that thermography has an "extremely high degree of accuracy."

Not everyone agrees. A 1984 article in the Defense Law Journal said thermography's "potential for abuse and relative ease with which a false reading may be obtained" are "of great concern." Says Edwin Wyman, an orthopedic surgeon at Massachusetts General Hospital: "A lot of people feel thermography is of very little use at all. I'm of that group.

Anew Massachusetts General Hospital policy is arousing concern among attorneys -- and even some insurance executives -- that one of the nation's most prestigious hospitals may be seeking to stifle malpractice testimony by its doctors.

Adopted quietly in February, the policy requires staff members to consult their chief of service before testifying in court. Previously, MGH staffers were at liberty to testify in malpractice cases without permission from their superiors, who often did not know which doctors were giving expert testimony for plaintiffs. Mass. General physicians work in 15 clinical services, each headed by a salaried chief of staff.

The policy "gives the impression that we're trying to recreate the old conspiracy of silence," said Daniel Creasey, president of the Risk Management Foundation, which insures most of Boston's teaching hospitals and their doctors against malpractice. MGH adopted the policy on its own after Risk Management decided against instituting it throughout its system.

"Clearly, a memo like this has got to have a chilling effect on someone who's borderline, on someone thinking about testifying, particularly if he's a relatively junior member," Creasey said.

Other health care experts see the policy as a reaction to complaints within the medical profession about the willingness of physicians at Boston's teaching hospitals to testify for malpractice victims.

"These chaps go off to court and none of the rest of us know what they've said," said MGH neurosurgeon William H. Sweet, who frequently testifies for doctors accused of malpractice. "They pocket their $10,000 and go their merry way. Now we're starting to pay more attention to who testifies against whom on what."

According to a memorandum obtained by the Globe, MGH general director J. Robert Buchanan, the chief of service should "counsel the staff member on the appropriateness of his/her participation, taking into account. . .qualifications and clinical experience." The chief should also notify the hospital's general counsel and risk manager, who monitor malpractice insurance losses. MGH spokesman Martin Bander said physicians who repeatedly testify against their chief's wishes could lose their staff privileges.

Bander said that MGH administrators did not intend to stop staff members from serving as expert witnesses for plaintiffs. But, he said, they wanted to make sure that staff members only testified on medical issues within their specialties, in order to avoid embarrassing the hospital.

New England Medical Center is considering adopting a policy similar to Mass General's. "Some people in the profession have made a living out of testifying in malpractice cases," said general counsel Larry L. Smith Jr. "We don't think that's appropriate for a member of our staff."

You are new to Boston and need a doctor. You make an appointment with a physician recommended by a friend, trek to doctor's office and fill out the forms.

Before seeing you, the doctor dials a Chicago-based service called Physician's Alert and gives it your name. Within seconds the doctor is told whether you have ever brought suit against anyone -- against another doctor, a manufacturer, a neighbor.

If the doctor finds you have never sued anyone, you are accepted as a new patient. But if you've gone to court before, you may not be. After all, the doctor worries, if you sued before you may sue again. You look like a risk, so you are sent elsewhere.

An unlikely scenario? Not any more. The Physician's Alert service is already operating in major cities around the country, and is scheduled to arrive in Boston before the end of this month.

Once it arrives, doctors will have no lack of information about patients, but patients may still find it difficult or impossible to find out if their doctor has been sued.

"We have a tremendous amount of interest in and around Boston, and we're very excited about bringing the service to the Boston area," says Michael Eckstein, president of DocketSearch Network Inc. of Chicago, which markets Physician's Alert.

"We do have a backlog of Boston area physicians who have in fact said that when the service is available to let us know, and they will sign up at that time." He declines to be specific.

Not everyone is enthusiastic about Physician's Alert.

"It's really poor, poor taste; it's a blackball system," says William McDermott of the Massachusetts Medical Society. "I don't think anybody should blackball a patient based on action they have taken which may or may not have been justified." McDermott says that if local doctors want to buy into the system, the medical society can't stop them, but it does not support the effort.

The marketers of Physician's Alert maintain that only in a few cases -- maybe two or three percent of the time -- will a doctor refuse to see a patient because of the profile provided by Physician's Alert. More often, the doctor will simply treat the litigious patient more carefully, Eckstein says.

The service, which was started in 1983 and obtains its information by combing court records, will initially require a day to provide physicians with a patient's courtroom past. By the end of the year, the information will be computerized and available in a matter of seconds.

Eckstein declined to discuss many details, like how much the service will cost. But he acknowledges it will be about the same as the fee charged in other cities: $150 for a yearly subscription plus $10 for each telephone inquiry.