When lawsuits leave out doctors

Hospitals and lawyers settle cases, enabling physicians to escape scrutiny

By Fred Schulte
Sun reporter

December 20, 2005

Last of three parts

Lawyers who sue Maryland's elite hospitals for alleged medical mistakes often don't target the physicians involved, a practice that expedites such cases but can shield doctors from government regulators and the public.

The practice involves doctors employed by Johns Hopkins Medicine or the University of Maryland Medical System. When doctors are not defendants, it is easier to reach agreement, Hopkins and lawyers say.

In the process, the identities of doctors associated with malpractice claims can be obscured, an investigation by The Sun has found.

The doctors are not reported to the National Practitioner Data Bank, a federal program that tracks malpractice payments and is used by the health care industry to do background checks on physicians.

Neither are the doctors likely to be scrutinized by the Maryland Board of Physicians. The oversight board says it has little basis for examining the doctors' performance or making the outcomes of the malpractice cases public.

Dr. Habib A. Bhutta, a member and former vice chairman of the Board of Physicians, suggested that the practice is creating a double standard for doctors employed by the two medical teaching institutions.

"Everybody should be treated equally," he said. "We have to get hold of these cases."

About 2,500 doctors are employed by Hopkins or its affiliates, and 1,700 work for the University of Maryland Medical System.

The Sun documented the practice as part of an investigation into breakdowns in the state's system for overseeing the estimated 17,000 doctors practicing in Maryland. Regulators overlook dozens of doctors throughout the state who are the subjects of unusually high numbers of malpractice claims or payouts, the investigation found.

Doctors anonymous

When malpractice lawsuits are filed against Hopkins or the University of Maryland Medical System, doctors can remain anonymous as a byproduct of the process.

"If I have a claim against Hopkins, I know that the chances of settling are better if I don't name the doctor," said Towson lawyer Dennis O'Brien, who acts as a spokesman for the Maryland Trial Lawyers Association. "If you work for Hopkins or Maryland, this gives you protection against adverse publicity."

In some instances, the doctors are dropped because it becomes clear they were not involved in caring for the patient. In other scenarios, doctors' names don't appear because the hospitals prefer it that way. Plaintiffs' lawyers say hospitals encourage them to omit doctors as defendants.

Hopkins officials declined to be interviewed but replied in writing to some questions. They said that eliminating doctors from malpractice claims can result in more rapid settlement of legitimate claims.

"Because Johns Hopkins favors settlements where appropriate, it has tried to bring all sides together early to resolve differences and avoid prolonged litigation," spokesman John Lazarou said in an e-mail. "Dismissing physicians from the case often hastens resolution of the matter and allows prompt payment of a fair amount to claimants in a timely fashion."

The University of Maryland Medical System turned down requests for interviews. In a statement, Edmond F. Notebaert, the medical system's chief executive, responded to a reporter's questions but did not specifically discuss its handling of malpractice claims.

"We would suggest that you ask attorneys for plaintiffs about why they decide who to name as defendants on lawsuits that they file," he said.

Dr. Paul T. Elder, secretary-treasurer of the Board of Physicians and an anesthesiologist at Anne Arundel Medical Center in Annapolis, said lawyers target hospitals because they have "deeper pockets."

"Lawyers don't want to go after the doctor," he said. "They want the money."

Elder is among health industry observers who predict that the practice of omitting defendants will grow. More doctors may forgo the expense of running their own offices to enter into employment contracts with hospitals and other health care providers.

When a physician works for a hospital or other corporate entity that runs its own insurance plan, the employer is legally bound to take responsibility for the doctor's actions.

By contrast, most hospitals grant physicians privileges to practice and require them to have their own insurance. When patients are injured, doctors typically are sued along with the hospitals and use separate attorneys, according to claims records and lawyers.

That is often not the case in claims stemming from care at Hopkins and the University of Maryland Medical System. The Sun examined records at the Health Care Alternative Dispute Resolution Office, the first stop for claims before they can become lawsuits. Doctors were not named as defendants in about half of the 105 claims that named Hopkins from Jan. 1, 2004, through Nov. 30, 2005. During that period, more than one-third of the 53 claims involving the University of Maryland Medical System did not name doctors as defendants.

Buried in the text

Sometimes plaintiffs' lawyers omit doctors as defendants but describe their alleged role in detail in the text of the claims.

That is what happened when a lawyer for Dr. Mary Beth Brady, a Michigan physician, filed a claim against Johns Hopkins Health Systems Corp. last December. The claim contains allegations against Dr. Donlin Long, a Hopkins neurosurgeon and professor, without naming him as a defendant.

Long operated on Brady's brain tumor at Johns Hopkins Hospital in July 2001. The surgery had disastrous consequences, Brady's claim alleges.

"During this surgical procedure, Dr. Long negligently caused a screw to be extended into Dr. Brady's mastoid cavity, causing a severe and significant cerebrospinal fluid leak," the claim states. "Moreover, during and after this surgical procedure, Dr. Long negligently failed to recognize, treat, and/or correct the cerebrospinal fluid leak."

Hopkins denied the allegations in pleadings in Baltimore City Circuit Court, where Brady's lawsuit is pending.

Her attorney, Andrew Slutkin, declined to say why Long was not named as a defendant. The claim contends that the treatment at Hopkins left Brady disabled at age 40.

Long, a former head of the Hopkins neurosurgery department, said he could not comment on the case because "it has not come to trial."

Hopkins said in a statement that "the faculty are asked not to grant interviews about ongoing or closed cases" and declined to comment further.

Doctors remain anonymous in some claims that describe them only by their specialty. They may be referred to as a "cardiologist," for example, or "operating surgeon." The Baltimore law firm of Schochor, Federico and Staton has done this in at least 22 malpractice cases filed against Hopkins in the past decade.

Managing partner Jonathan Schochor said the law does not require that doctors be named. His firm has no incentive to name them in cases against Hopkins, he said, because the hospital has a long history of "standing behind its doctors" and taking responsibility for their actions.

"The way it works for us now is that the doctor is not named," Schochor said. "We are assisting our clients in the most effective way possible."

As major teaching hospitals, Hopkins and the University of Maryland Medical System each has about 700 residents, who are training in their specialties. Some malpractice claims describe residents' actions without naming them or their supervising physicians.

That was the circumstance in a claim filed against the University of Maryland Medical System by the family of Dianne Stavrou of Fallston. Stavrou, 62, was admitted in late March 2004 for treatment and rehabilitation after a stroke. Just before midnight April 3, she complained of sharp abdominal pain and underwent a CT scan the next day.

A radiology resident found "no evidence of bleeding on the CT," according to the claim. She died the next morning, the claim asserted, before a more senior radiologist concluded that the test showed an "active hemorrhage." The medical system denies the claim's allegations. The family's lawsuit is pending in Baltimore City Circuit Court.

Doctors can be removed as defendants as a case evolves. Paul Bekman of the firm Salsbury, Clements, Bekman, Marder and Atkins said Hopkins has asked him to drop doctors as defendants. He said he is "more than willing" to agree, because doing so speeds up settlements.

In a claim filed in 2003, Bekman named Johns Hopkins Hospital and Dr. Mark A. Talamini as defendants, accusing the surgeon of accidentally cutting a hole in John T. Adrian's stomach during a nearly six-hour procedure to relieve acid reflux.

According to the claim, as Adrian was being wheeled into the operating room, Talamini said he planned to use a new robotic device for a "safer operation with fewer risks of complications." The claim contends that Adrian would not have consented had he known that Talamini had "limited experience" with the device.

Adrian, 53, of Arlington, Va., spent more than a month in the hospital recovering after the operation, according to the claim.

Bekman said he agreed to drop Talamini from the claim in the early stages, at the request of Hopkins' lawyers. That left the hospital as the sole defendant. The case is pending in Baltimore City Circuit Court. Hopkins has denied any negligence.

Talamini, now chairman of the department of surgery at the University of California, San Diego School of Medicine, did not respond to requests for comment.

Oversight avoided

There are other reasons lawyers don't list doctors as defendants. Some say jurors are more inclined to blame a faceless institution for malpractice than an accomplished physician who might make a favorable impression.

"It's easier to yell about bricks and mortar than about a flesh-and-blood human being," said lawyer Richard P. Kidwell, who formerly represented Hopkins in such cases. "The jury will think that Hopkins has money, so let's give it to them."

The strategy of omitting doctors as defendants undermines the way the state oversees doctors and informs the public.

Under the policy of the Maryland Board of Physicians, doctors with three settlements in five years, each of at least $150,000, are subject to investigation. By law, the information is posted on the board's Web site. The board also examines cases in which an insurer pays a settlement of $1 million or more on behalf of a doctor.

State law requires insurers to report this information. But board officials say Hopkins and the University of Maryland Medical System, which act as their own insurers, seldom report the outcomes of malpractice cases involving salaried doctors.

"We get things piecemeal, and we don't get the whole picture," said the oversight board's executive director, C. Irving Pinder Jr.

Hopkins said it does tell the board about cases in which doctors are initially named as defendants but are dropped prior to settlement. "Hopkins does such reporting in the expectation that the board will monitor these reports and initiate any investigations or other actions it deems necessary," the hospital said in a statement.

Hopkins acknowledged, however, that it does not report another group of doctors - those who aren't named as defendants but whose alleged actions are described in claims. Hopkins said it "could support" changes in regulations requiring that reporting.

Officials at the University of Maryland Medical System did not respond to questions about what they report to the board.

Both hospitals emphasize that they have long-established systems for evaluating doctor performance, including reviews of malpractice claims.

"Excellent patient care is a top priority," Notebaert said in a statement to the newspaper. "We thoroughly investigate all claims to assure that people, policies, procedures and systems are in place and working properly in order to provide top patient care. We take corrective action when they are not."

Pinder said he raised the issue of self-insured hospitals with lawmakers last year during deliberations of a Senate special commission on malpractice. In its report last December, the commission said: "In such instances, the hospital effectively shields the physician involved in the alleged wrongdoing." The report did not name any hospitals.

Tightening the reporting requirements, the commission said, would be "in the best interests of the public." But the commission's recommendation was not incorporated in malpractice reform legislation passed in a special session late last year.

Legal maneuvers that shield doctors from responsibility for malpractice awards can have effects well beyond Maryland.

Self-insured hospitals are not required to report doctors dropped as defendants from a malpractice claim or who were not named at the outset to the National Practitioner Data Bank. It was set up by Congress to prevent doctors with past disciplinary action and malpractice awards from moving from state to state undetected.

Hopkins officials confirmed that they do not file reports in such cases. Officials at the University of Maryland Medical System declined to comment.

Federal officials who oversee the databank made a futile effort to collect more names. In December 1998, they announced their intent to require reports about "each practitioner whose acts or omissions were the basis of the action or claim," even if they weren't named as defendants.

Officials estimated that tightening the rules would prompt at least 200 hospitals and other employers of doctors nationwide to start reporting and would double the number of malpractice cases logged.

But the proposal drew strong objections from insurance companies, groups representing doctors and some teaching hospitals, including the University of Maryland Medical Center.

Reporting all of the doctors would "cast a wide net" by capturing the names of many "innocent practitioners, including those who were eventually dismissed from a suit because of the absence of liability or culpability," Dr. Depriest W. Whye Jr., chief executive of the university system's insurance program, wrote in comments.

The national databank "will be reduced to a repository of superfluous and useless information," Whye wrote.

Federal officials withdrew the proposal in April 2000.