Removing doctors in settlements can deflect oversight
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A medical malpractice case in which UPMC Presbyterian was accused of covering up some of the circumstances of a death at the hospital was settled recently.
The family of Samuel Sweet, a 62-year-old Cheswick man who died while being treated at the hospital in 2009, got court approval last month to end the case without going to a trial in exchange for a $1.37 million settlement.
But the case was settled in a way that lawyers and advocates say may unfairly protect the doctors named in the case.
The Sweet family's attorneys spent more than two years building a case that accused four doctors of making a series of critical errors that led to Mr. Sweet's death on May 16, 2009, after he was admitted to the hospital with what was diagnosed as an easily treatable amount of bleeding on the brain. The family also accused UPMC officials of manipulating Mr. Sweet's electronic health record to cover up the events that led to his death, an accusation UPMC denied. The Post-Gazette detailed the case in a story on Sept. 19, 2011.
Yet, three days after the family signed settlement papers on Jan. 17 of this year, UPMC asked, and the Sweets didn't oppose, a request to remove all four doctors as defendants in the case: Amit Kaura, Penny Sappington, Raghavan Murugan and Matthew Rosengart. (The settlement wasn't registered with the court until April 3.)
What that meant was that when the case was finally settled the only named defendant, and the only one that officially paid any money, was UPMC Presbyterian hospital.
UPMC spokesman Paul Wood said in a written answer to questions that the four doctors were dismissed as defendants because "the issue in that case was not due to the actions of any one physician."
The Sweets' attorney, Deborah Maliver, said neither she nor the Sweet family were allowed to talk about the case because of a confidentiality clause in the settlement. But other medical malpractice attorneys who represent patients' families say that removing doctors as defendants has increasingly become a common negotiating tactic for hospitals' attorneys in reaching settlements in such cases in southwestern Pennsylvania -- particularly with UPMC. The patient or the patient's family often do not care who is named as long as they get what they consider fair terms in a settlement. But it can matter to the defendants.
"If a case is settled under the doctor's name, it has to be reported to the National Practitioner Data Bank," said Veronica Richards, a Pittsburgh medical malpractice attorney who represents patients and patients' families. "So [removing the doctors] is a way for the hospital to protect the doctor."
The data bank is a federally run register that is supposed to record all serious discipline taken against doctors and any payments made on behalf of doctors either because of a verdict or a settlement in a medical malpractice case.
The information in the data bank is then used by hospitals in assessing whether to hire a doctor and by state medical boards in deciding whether to discipline a doctor.
Removing doctors' names from cases to prevent them from being reported to the data bank "has been a known problem for a long time; it's called 'the corporate shield,'" said Robert Oshel, former longtime director of research and disputes at the data bank who retired from the post four years ago.
Nationally, "it happens quite a bit," said Sydney Wolfe, director of the Health Research Group, a policy group within the Public Citizen advocacy organization in Washington, D.C. "And we suspect that frequently [dismissing the doctors as defendants] is not on the merits."
It is virtually impossible to put numbers to how many cases have had doctors' names dismissed to shield them from being reported to the data bank, said Lisa McGiffert, a project director on health care issues at Consumers Union, an advocacy group that has studied the data bank.
"But we've heard anecdotally that this is becoming a more and more frequent practice," she said.
Cindy Grubbs, director of the data bank, said the data bank is aware that dismissing doctors before a settlement is a way to avoid reporting the payment on their record, "but we have no way of knowing how often it occurs."
The American Medical Association, the nation's largest organization representing physicians, does not believe filing more settlements to the data bank would help.
"The relevance of medical liability settlements is questionable, as there is no evidence that an act of negligence occurred," Peter W. Carmel, president of the AMA, said in a statement. "Given the excessive litigation faced by physicians, medical liability settlements are, at best, an incomplete and haphazard indicator of physician competence or quality."
Mr. Wood argues that UPMC's own recent statistics argue against the idea that more doctors are being dismissed from lawsuits to protect them because in 2011, "we reported more [doctors to the data bank] than we had in any of the past 5 years and nearly double of what we reported in 2010." He would not say how many doctors were reported in 2011 or prior years.
Over the years, to try to prevent shielding doctors from being reported to the data bank, advocates proposed that the data bank include the names of doctors responsible for a case, even if they weren't a defendant when the settlement was reached, "but it got shot down," Mr. Oshel said.
But a few years after the data bank began operations in 1990, the regulations were updated to include a clause that tried to address the issue.
The regulation in the data bank's guidebook says, with some bold-faced words, that "if the practitioner is dismissed from the lawsuit in consideration of the payment being made in settlement of the lawsuit, the payment can only be construed as a payment for the benefit of the health care practitioner and must be reported to the NPDB."
But, patients' lawyers say, that regulation still depends on the hospital, or the hospital's insurance carrier, admitting to the data bank that the doctors were removed as a condition of the settlement -- which almost never happens, they say.
In the early years of the data bank, dismissing the doctors from the case and having their corporate practice named as the last, paying defendant was an open part of a settlement process and "became something in vogue," said Dan Carroll, a medical malpractice attorney who has represented doctors in the Pittsburgh area since 1978.
Passage of the new regulation saying doctors should be reported to the data bank if they were dismissed as part of the settlement, changed that, Mr. Carroll said, but it didn't stop it.
"Now, if people ask, 'Did you not report it to shield them?' And they can simply say, 'No. They didn't pay and he was dismissed,'" he said.
That wink-and-a-nod approach troubles supporters of the data bank who see the bank as a crucial tool for rooting out bad doctors.
"It's logical why they" dismiss doctors from a case, Dr. Wolfe said. "But it's pretty much a menace that they do. It deprives people who need to know this information, including state medical boards."
Since doctors are their main revenue generators, hospitals are willing to let the physicians be dismissed to keep the doctors happy, said Jon Perry, a Pittsburgh attorney who represents patients in medical malpractice cases.
But there is a clear interest in going along with it on the patients' side, too, and they or their families typically don't oppose the removal of doctors before a settlement.
"I've had a number of cases where I know the doctor is responsible" for a death or injury and the hospital wants to dismiss him or her, Mr. Perry said.
But, he said, since plaintiffs such as Mr. Sweet's wife, Janet, often need the settlement money to pay for the lost income of a loved one or ongoing medical care, "how much do I want to fight?"
First Published May 20, 2012 12:00 am