Legal Review & Commentary

Failure to respond to complaints about docs leads to suits, $19.75 million in settlements

By Leslie E. Mathews, Esq., MHA

Buchanan Ingersoll & Rooney

Tampa, FL

Grena Porto, RN, ARM, CPHRM

QRS Healthcare Consulting

Hockessin, DE

News: So far, 93 plaintiffs have filed lawsuits against a hospital and alleged sexual abuse by one of the hospital's endocrinologists. The doctor, the hospital's chief of endocrinology from the 1970s to the early 1990s, was accused of taking sexually explicit photos and recording videos of minors who were taking part in an alleged growth study the physician was conducting at the hospital. In May 2011, the hospital settled with 32 of the accusers for approximately $17 million. In July 2011, a jury found that the hospital was negligent in its supervision of the doctor and returned a verdict in favor of another victim for $2.75 million. There are approximately 60 more cases with similar facts awaiting trial.

Less than a month before the verdict above, a jury in another case found a pediatrician guilty of 24 counts of sexual abuse of minors, including 14 counts of rape. The pediatrician was later sentenced to 24 life sentences without the possibility of parole. Evidence suggests that he sexually abused more than 100 patients, some as young as 3 months old. There are at least 20 lawsuits pending against the hospital that the physician was associated with.

Background: The endocrinologist, in the first case discussed above, began working at the hospital in 1963. He was later appointed chief of endocrinology and continued in that position until 1993. While working at the hospital, the doctor enrolled hundreds of children in a "growth study." The study was once considered a significant component of the hospital's research effort. Colleagues who worked closely with the doctor have now admitted that the study was "scientifically irrelevant" and a "sham."

Many of the doctor's victims came forward as adults and detailed the abuse they had suffered as children. One victim filed a complaint with the state medical society 1970. Victims first filed complaints with the hospital regarding the doctor's misconduct as early as 1987. In 1989, another victim filed a complaint that claimed the doctor molested her when she was 14 years old. In 1993, the local medical association brought a complaint on behalf of another victim. The doctor's medical license and hospital privileges were suspended in July 1993. In 1994, hospital officials continued to defend the doctor in state medical hearings, where they claimed that the complaints were unsubstantiated and without merit. The doctor died of a heart attack in 1998, and his house was sold. In 2007, the new owners of his former home discovered thousands of slides and videos showing children in sexual acts and positions.

After the discovery of the slides and videos, victims began filing lawsuits against the hospital. The victims claimed that the hospital knew or should have known of the abuse and failed to provide the special duty of care they owed to the children who presented at the hospital. Evidence disclosed in court supported the victims' claims that the hospital approved and funded the doctor's research but failed to review it in accordance with the hospital's institutional policies.

The hospital did have a committee charged with approving and providing oversight to research conducted in the hospital. The committee was known as "The Committee for Protection of Human Subjects," and another endocrinologist was a member of the committee. Under oath, the second endocrinologist admitted that there was no systematic review of the study. The defense also presented evidence that the doctor ordered and processed substantial quantities of film himself for his work, rather than using the hospital's professional photography staff. The invoices for the orders were billed to a "Research and Education Fund." The hospital's director of medicine in 1977 testified that he did not recall ever hearing of that fund. He also denied knowing of the doctor's study.

Initially, the hospital and victims agreed to mediation; however, the mediation eventually broke down. A group of 32 plaintiffs reached a settlement with the hospital totaling more than $17 million on May 9, 2011. The plaintiffs included children recruited for the doctor's growth study, as well clinical patients he treated at the hospital. The defense argued that the case against the hospital was for negligent supervision. The judge in the case decided to call the hospital's key wrongdoing "corporate negligence." The jury deliberated for two days before the attorneys announced that they had reached the settlement. A plaintiff's attorney in the case was quoted as saying, "Our clients are very happy, and they feel that the settlement, the way that the case was resolved, makes them feel as though [the hospital] has taken responsibility or admitted responsibility for something they should have admitted responsibility for a long time ago."

In July 2011, a jury found the hospital at fault in a case filed by an individual victim and awarded that victim $2.75 million. (See case reference at end of article.) The victim was reportedly abused when he was 8 years old and had previously asked the hospital for $5 million as compensation for the abuse, which he blamed for depression, intimacy problems, and ultimately the collapse of his marriage. The jury found that the hospital failed in its duty to protect its patients from the doctor.

The pediatrician mentioned in the second case above has a story that is eerily similar to the endocrinologist's. He began his career as a pediatrician in 1984. The first complaint against him was filed in 1994, when the mother of a child reported to the state's Bureau of Professional and Occupational Affairs that he had improperly touched her child. At that time, the pediatrician told investigators "the mother and her live-in boyfriend were trying to extort him." Subsequently, licensing authorities dismissed the complaint, and the police decided not to prosecute because police believed the mother was not credible.

Two months later the pediatrician became licensed in another state. Although the state licensing board became aware of the complaint previously filed against him, it decided to take no action. He joined the medical staff of a local hospital.

In 1996, two years later, a nurse who worked at the hospital with him complained to her supervisor that he was performing too many catheterizations of girls, and that he would make older girls get on their hands and knees and catheterize them from behind. She also stated that he was improperly positioning them for vaginal exams, that he engaged in too much kissing, and that he made inappropriate remarks about women. The nurse also observed that girls he examined had to remove more clothes than boys. Finally, the nurse also reported that the pediatrician was photographing children without their parents' knowledge. The nurse provided the hospital with a list of names of parents who had complained, and she offered to provide additional names, but the hospital did not want the information.

The hospital did not report the matter to law enforcement or licensing agencies; instead, it referred the matter to its peer review committee. Soon afterward, the catheterizations stopped, according to the nurse. Three physicians were asked to review the information about the catheterizations and found them to be "medically appropriate." However, there is no evidence that any of the nurse's other allegations were investigated. The pediatrician resigned from that hospital in July 1997 and threatened to sue the hospital for defamation. The hospital settled the case in 2000 for a nominal amount.

The pediatrician stayed out of trouble until 2004, when his sister, who worked as his office manager, contacted the state medical society regarding his bizarre behavior. She expressed concern that he had psychiatric problems, that there had been allegations from parents of improper touching, that he was self-medicating with office samples, and that he had demonstrated violent behavior. The medical society discussed the case but decided to take no action.

In spring 2005, police investigated the pediatrician for excessive kissing. When they contacted the medical society, the president told the investigating officer that he had not followed up on the concerns of the doctor's sister because it was a "family matter" and that the doctor was "considered by the nurses at the hospital to be one of the best pediatricians on staff." Prosecutors subpoenaed complaint records from the hospital, but the hospital did not provide them. Investigators interviewed three more alleged victims of improper vaginal exams and a colleague of the pediatrician, who told police that he routinely referred to the doctor as a "pedophile." A number of inter-agency conversations ensued, and the end result was that the medical society did not think it was appropriate to take complaints from police, while police were frustrated in their attempts to advance the investigation. No further action was taken by prosecutors or the medical society.

In 2008, state police received three new complaints of inappropriate behavior by the pediatrician, including that he performed a vaginal exam on a 12-year-old girl whose chief complaint was a sore throat. A request for a warrant to search the doctor's office was not approved by the judge, who suggested an arrest warrant instead. Prosecutors decided instead to get expert opinions from two outside doctors, but the two did not agree about whether the exam was inappropriate. Again, the investigation stalled.

In December 2009, the parents of a 2-year-old contacted police to report inappropriate vaginal touching. At that time, police arrested the pediatrician, and upon searching his office found large volumes of photographic and video evidence of sexual abuse of dozens of patients. Some patients appeared to lose consciousness and stop breathing during the assaults. The hospital, which continued to allow the pediatrician to provide on-call coverage at their facility after his resignation in 1997, is being sued by at least 20 of the doctor's former patients for negligence and dereliction of duty.

These two cases do not stand alone. In April 2008, seven men filed a lawsuit against a doctor from the Northeast alleging that he molested them as boys. The children's hospital where he was chief of pediatrics had received complaints about him beginning in 1967. In October 2009, a pediatrician from the south was charged with raping a teen girl. The pediatrician had previously left two hospitals after abuse complaints were filed against him. Currently a child psychiatrist is awaiting trial for the second time after a jury at his first trial failed to reach a verdict on charges that he molested seven boys. Authorities tried for years to bring charges against him but were prevented from doing so by statutes of limitation. He finally was arrested in April 2007.

What this means to you: The two cases detailed above illustrate how inattention, inaction, a bias for believing physicians rather than complaining patients and families, and a motivation to protect hospitals and physicians from adverse publicity and litigation can have disastrous consequences for patients, especially vulnerable populations such as children.

In both cases, the hospitals involved failed to adequately monitor physician practice. When faced with evidence of problems, they chose to disregard patient complaints in favor of explanations offered by influential physicians. In both cases, the hospitals had information that something was amiss but failed to act. Diligent investigations, including interviews with complaining patients and parents, coupled with rigorous monitoring and supervision of involved physicians, could have mitigated the consequences and prevented further cases of abuse. Both hospitals engaged in a pattern of counterproductive actions designed to protect the hospitals and physicians involved at the expense of protecting patients. Over time, these actions exposed them to far greater liability and reputational loss. They served to prolong the abuse that ultimately ruined the lives of approximately 600 children.

First, both hospitals entered into relationships with physicians with a history of behavioral problems. The endocrinologist involved in the first case had had a history of sexual abuse of children dating to the 1950s. Some would argue, however, that credentialing systems in place in the 1960s were not sophisticated enough to reveal that the endocrinologist had a history of criminal behavior. The same cannot be said of the second hospital discussed, who hired the pediatrician in 1994. By that time, the pediatrician already had been investigated. Even though no formal charges were filed, the hospital could not assume that the charges were groundless and that its own patients were not at risk. At a minimum, the hospital could have carefully monitored the doctor's practice for a period of time to ensure that there were no problems with the pediatrician's behavior.

Once the hospitals had extended clinical privileges to these physicians, they had the duty to supervise and monitor their practice in a systematic way. In addition, the hospitals had a duty to investigate evidence of potential problems. With respect to the endocrinologist, there was compelling evidence that something was amiss. Although he was known to be conducting his "growth study," which was financed at least by hospital funds (photo processing charges), no attempt was made by the hospital to determine the nature of the study and what was involved. This lack of involvement was true even after the hospital established its institutional review board (IRB) and even after it became apparent that the study was yielding no results. Furthermore, after two patients complained, the hospital did not undertake to formally oversee his research.

With respect to the pediatrician, the failure to supervise and follow up on indications of problems was even more glaring. When the nurse reported her concerns, the hospital declined to interview patients or parents. Several aspects of the nurse's complaints appeared to have been ignored entirely. Instead, the hospital chose to narrow the scope of the investigation, perhaps motivated by a desire not to embarrass itself or invite outside scrutiny, or perhaps seeking to distance itself from any problems by maintaining "plausible deniability." Regardless of the reasons, the hospital adopted a course of action designed to protect itself rather than patients.

Another mistake that both hospitals made, and that is often made in cases of this nature, was failing to notify law enforcement agencies of allegations of criminal wrongdoing. Sexual abuse of minors is a crime in all 50 states, plus the District of Columbia and Puerto Rico. There is simply no justification for failing to take this information seriously and putting it into the hands of people with the necessary skills and training to conduct a thorough investigation and to act on the results. Hospital peer review committees and administrative leaders are ill-equipped to conduct a meaningful and objective investigation of criminal wrongdoing, and they have an irreconcilable conflict of interest in these situations. Yet many hospitals charge peer review committees with investigating and making judgments about conduct that is potentially criminal in nature. They take this action ostensibly to protect the hospital from liability exposure and to avoid adverse publicity, but in reality they create even greater danger for the hospital, and put patients in grave danger as well.

The peer review process failed in other ways. In both cases, physician colleagues of the doctors were aware of behavior issues and suspected but did not report problems to the hospital administration or to the state licensing authorities. This was glaringly true in the case of the pediatrician, whom one colleague routinely referred to as a "pedophile." It is unconscionable, and in many states illegal, to fail to report significant concerns about a physician's practice. In many states, this obligation extends to nurses and other licensed clinicians as well.

Another common thread in these two cases is the systematic failure of the hospitals to take patient complaints seriously and to discredit those making the complaints. In the first case, the hospital refused to believe the patients who brought complaints. Even after the state medical society took action against the endocrinologist, hospital officials continued to defend the physician and called the charges against him unsubstantiated and without merit. In the case of the pediatrician, the hospital declined information offered by the nurse about patients and families who complained about the pediatrician's behavior. Those conducting the investigation apparently did not believe the complaints and did not find it necessary to interview those patients and families. This obvious bias is further evidence that hospitals are ill-equipped to investigate complaints of this type.

Finally, the hospitals abrogated the most sacred duty of all: to protect children in its care. It has long been recommended that children be examined with a parent or other chaperone present. Indeed, this was recommended to the endocrinologist by the medical society in 1970 after it investigated a patient complaint against him. Despite this long-standing practice in the medical community, the hospitals took no action to ensure that children entrusted to its care were protected from abuse.

Despite the many failures and omissions committed by these hospitals in the handling of these cases, it must be said that even if the hospitals had acted swiftly to protect their patients, there is no assurance that these two physicians could have been stopped from ruining other lives. State and federal licensing agencies are notoriously inept at responding quickly and decisively, even when patients are at risk of imminent harm. The practice of reinstating a physician's license in exchange for concessions or admissions of wrongdoing and then allowing that physician to quietly retire, as was done in the first case, is commonplace and serves only to protect physicians at the expense of public safety. Likewise, the reluctance to act upon reports from the general public allows incompetent or dangerous physicians to continue to practice at the expense of public safety. In addition, requirements that physicians and other professionals report concerns about quality of care to state licensing boards are rarely, if ever, enforced. As a result, the public is left largely at the mercy of dangerous physicians and other clinicians, and only when a scandal erupts do state authorities finally take action.

In fact, this was the conclusion reached in 2008 by investigators assigned by a Congressional committee to massive fraud and quality problems at a California hospital. The committee concluded that "Oversight of the peer review process is so riddled with crippling flaws and the legislation governing the federal and state regulatory agencies so inadequate that prompt amendment of laws and regulations to protect the public is imperative. Without it, an indeterminate but undoubtedly large number of patients will needlessly suffer and die and the cost to Medicare and Medicaid will be exorbitant. The evidence for this grim assessment, some of which is provided below, is overwhelming." (Disaster Analysis Redding Medical Center. Congressional Report, p. 4. June 1, 2008).

REFERENCE

Superior Court of Connecticut, Judicial District of Waterbury, No. X02UWYCV085008121S.