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Disregarding the symptoms

First of three parts

Maryland's vow to safeguard patients has been undercut by breakdowns in the state system established to oversee doctors.

Regulators who once checked every malpractice claim now ignore most of them, disregarding a possible warning sign of negligence. Investigators take years to evaluate a doctor's competence, delaying any discipline. And secrecy policies conceal the names of doctors associated with tens of millions of dollars in injury claims, an investigation by The Sun has found.

This wasn't what lawmakers had in mind three years ago when they created the Maryland Board of Physicians, giving it broad powers to enforce standards of medical care and the duty to tell the public about doctors' malpractice claims histories.

The board has failed to wield its authority to scrutinize dozens of physicians who have been the focus of unusually high numbers of malpractice claims or substantial insurance settlements. About 17,000 doctors practice in Maryland.

Malpractice claims and payments by themselves are not proof of substandard care, legal experts and doctors caution, and in some cases may reflect the risks involved in medical procedures.

But regulators in Maryland are out of step with their counterparts in a growing number of states that flag patterns of malpractice claims and payments for review. Several states also make public much more malpractice information.

"We've got to get more aggressive to do something about doctors who are not providing good care," said Nelson J. Sabatini, former secretary of the state Department of Health and Mental Hygiene.

In its investigation of how well the state protects and informs medical consumers, The Sun examined the Board of Physicians, the role played by the General Assembly, and malpractice claims going back more than 10 years.

Among the newspaper's findings:

  • While most Maryland doctors are sued for malpractice no more than once in a decade, about 120 across the state were the focus of five or more claims, an unusually high number. Among them are a well-known Baltimore-area surgeon who was the subject of 17 claims since 1993, including three cases in which patients died.

  • A cumbersome disciplinary process results in few stringent penalties for doctors who fail to meet standards. Investigations are taking longer. Board of Physicians records show that the cases closed in 2005 took more than four years.

  • Marylanders have limited access to doctors' malpractice records, undercutting their ability to make informed choices about medical care. Most lawsuits end in confidential settlements with no determination of fault; some don't name the doctors.

    Legislators established the Board of Physicians in 2003 amid criticism that doctors with extensive malpractice claims histories were escaping regulatory scrutiny by the panel's predecessor, the Board of Physician Quality Assurance.

    The Assembly set aside five positions on the new board for consumers and eliminated the role of the state medical society in the disciplinary process.

    Gov. Robert L. Ehrlich Jr., who appointed the board's 21 members after the legislation passed, said at the time that his administration is "committed to ensuring quality patient care for Marylanders." He declined to comment on The Sun's findings.

    Maryland lawmakers will get a chance to re-examine doctor oversight when the Assembly convenes next month. The legislation that created the Board of Physicians expires in 2006, requiring an evaluation of the panel's performance.

    A doctor's history
    Dr. John P. Kostuik, former chief of spinal surgery and chairman of the orthopedics department at Johns Hopkins Hospital, has had 17 malpractice claims filed against him since 1993 -- among the most of any Maryland doctor over the period. In each case, Kostuik denied any negligence.

    Court and state records show that 10 claims were settled confidentially, including three in which patients died. According to malpractice claims, two patients died as a result of blood loss during surgery, the third as a result of complications. Four other claims against Kostuik were dismissed, two are pending and one outcome cannot be determined from available records.

    By law, the Board of Physicians cannot confirm whether it investigated Kostuik, unless the investigation resulted in disciplinary or other action. Records show the board took no action against him.

    In a brief interview by phone, Kostuik said, "Ninety percent of the surgery I did came from other people who had failed. It was high-risk."

    He acknowledged that a relatively large number of claims had been filed against him but declined to elaborate, saying he had been "advised by Hopkins lawyers not to talk to the press."

    Kostuik retired from Hopkins in June 2004, the hospital says. His medical license remains active, and the 68-year-old surgeon now serves as chairman and chief scientific officer of K2M, a Leesburg, Va., company that develops equipment used in spinal surgery.

    Hopkins, citing confidentiality rules, refused to discuss malpractice claims involving Kostuik, who went to work there in 1991. A hospital spokesman said Kostuik "performed thousands of operations" and often dealt with difficult cases.

    "Throughout his long and distinguished career, Dr. Kostuik accepted a large number of very high risk and complex patients, including many for whom prior surgeries by other physicians had failed," Hopkins spokesman John Lazarou wrote in an e-mail.

    In a statement, Hopkins said Kostuik's record of claims "reflects a highly unusual situation, and should not be used to suggest that such experience is commonplace." Kostuik's practice "was comprised of some of the most complex cases and repairs of other surgeons' operations. He performed thousands of operations and was able and willing to attempt procedures that many of his peers would not," Hopkins said.

    Asked to comment on a doctor with such a claims history, the head of the Federation of State Medical Boards in Dallas said that 17 claims is "a lot."

    "I think most licensing boards would consider that a real warning, even in a high-risk discipline," said Dr. James N. Thompson, the group's president and chief executive. The federation promotes high standards for physician licensing and practice.

    Ardell McCarra, 53, a former clerk with the Baltimore County school system, filed a claim against Kostuik in September that is pending in Baltimore Circuit Court.

    He operated on her initially in 2002 to relieve pain caused by scoliosis, a curvature of the spine. The Freeland resident alleges that she sustained injuries, including a perforated bowel, that required further operations to repair.

    McCarra said she did not know of Kostuik's record of claims. "You put your life in their hands," she said.

    The first lawsuit against Kostuik at Hopkins was filed in 1993 by Judy Stevenson, a department store cashier from Canada with a rare bone deformity that had caused her to shrink three inches.

    Following surgery in 1991, Stevenson developed an infection that lawyers alleged Kostuik failed to detect and treat promptly. She needed a second operation, after which she could stand only briefly, according to court records.

    "She's been in a wheelchair ever since the surgery," her mother, Velma Stevenson, 85, said in an interview early this year. "It's not much of a life for her."

    Judy Stevenson died of a heart problem in March at age 51, her mother said.

    Court records show that the lawsuit was settled in 1998 but do not disclose terms.

    Some members of the Board of Physicians said they were surprised to learn from The Sun about the number of claims against Kostuik.

    "That blows my mind," said Dr. Frank Calia, professor emeritus at the University of Maryland School of Medicine. "This is a revelation to me." He said the board needs to learn as much as it can about doctors who are sued repeatedly.

    A former lawyer for Hopkins who handled malpractice lawsuits said he was surprised by the number of claims.

    "That number stuns me," said Richard P. Kidwell, who left last year to take a similar position at the University of Pittsburgh. "That's a lot of suits. Why isn't the board going after them?"

    A duty to inquire
    Nearly 600 malpractice claims are filed each year in Maryland by patients or their relatives. That number hasn't changed much over the past decade, undermining doctors' contentions that they're being targeted more frequently by lawyers and patients.

    All claims must be filed initially with the Health Care Alternative Dispute Resolution Office, which the legislature created in the hope that many complaints could be resolved by arbitration. In practice, that rarely occurs. Most claims are transferred to court as lawsuits.

    While most Maryland doctors seldom face a claim, about 200 were the subject of three or more from 2000 through 2004, according to The Sun's analysis of malpractice claims. Over 10 years, about three dozen had seven or more.

    Many experts say that doctors sued far more than their peers should be examined, because a pattern of claims, particularly within a few years, could indicate that a physician is practicing below standards.

    Thompson said many regulators believe that they have a duty to inquire. Their main objective, he said, is to protect the public.

    "The public wants greater accountability," he said.

    "If someone is sued over and over, it should be looked at," said Dr. Stephen Pollock, a Towson cardiologist who spoke last year at legislative hearings on malpractice insurance rates.

    "There should be an immediate investigation [of each claim] to see what is going on," said Harry L. Chase, a lawyer who directs the state alternative dispute resolution office where malpractice claims are initially filed. "Doctors can mess up a lot of people before they pull their license."

    But medical groups point out that nearly every medical procedure carries risk and that complications, even death, sometimes can't be avoided despite a doctor's best efforts.

    And there is broad agreement among experts that a lawsuit or two spanning years of medical practice does not brand a doctor as below par. Some malpractice insurers settle lawsuits, they say, as a business decision rather than on the merits.

    "A suit does not provide a good indicator of the quality of a practitioner and neither does a payout," said T. Michael Preston, executive director of MedChi, the Maryland State Medical Society.

    Doctors contend that patients file too many frivolous lawsuits. But lawyers say they winnow out weak cases.

    "We turn down 80 percent of the cases that come in our office," said Baltimore malpractice lawyer Stuart M. Salsbury. "I'm not going to take a case unless I have a reasonable prospect of winning. I'm not wasting my time on a case that is frivolous."

    A useful tool?
    Until 2003, state law required the medical board to review doctors with three or more claims in five years. But the legal requirement disappeared when the Assembly created the new board.

    And regulators, who for years had been going beyond the requirements of the law by looking at every claim, phased out that practice by 2003. The Board of Physician Quality Assurance couldn't keep up.

    C. Irving Pinder Jr., who was executive director of the old board and retains that role with the new one, said in an interview that his staff was "swamped" and that the routine review of claims wasn't worth the effort.

    "We concluded it wasn't a very good barometer of bad medicine," he said.

    But the board's records show that routine review of malpractice claims was a useful tool that over the past decade led to about half of the oversight board's disciplinary actions for substandard care.

    The chairman of the medical board, Dr. Harry C. Knipp, said he didn't know that some doctors have been the focus of unusual numbers of claims.

    "We are certainly interested in those," said Knipp. "We should look into that."

    Still, he noted that the board must be circumspect in judging such doctors because some may practice in fields of medicine that pose a higher risk of lawsuits. "You have to look at every case on an individual basis," Knipp said.

    Board officials say they take seriously their duty to investigate and discipline doctors who practice poor medicine. Pinder says a doctor's malpractice claims history still plays a role, but only when claims result in significant payments.

    "I think it's best to wait until there are significant payouts," he said, because they may be evidence of serious mistakes.

    The Board of Physicians decided in 2003 that it would investigate automatically only when doctors settle three cases for $150,000 or more each over five years. Pinder said the formula is consistent with that in the law for determining which malpractice settlements should be made public. He said the board now also reviews any doctor who resolved a claim about care in the past five years with a payment of at least $1 million.

    The Sun's analysis of board data shows that only a tiny number of doctors meets the criteria for review.

    There were 11 payouts of at least $1 million reported to the board last year. Over the past five years, four doctors now practicing in the state settled three cases, each for $150,000 or more. That is just 15 doctors who would qualify for review. Whether they were in fact reviewed cannot be determined because board investigations are confidential.

    Many others with multiple payouts would not qualify. Among them are 92 doctors who generated two payments in the past five years, some for several hundred thousand dollars. Sixteen other physicians had at least three payments, with one or more below the $150,000 threshold.

    Three payments
    Dr. Milton G. Yoder, an ear, nose and throat specialist, would not be reviewed under the board's policy.

    In four years, his insurer made payments involving three claims, according to court and state agency records. In each case Yoder denied the allegations.

    The family of one woman who died claimed that the Lutherville doctor failed to detect a throat cyst. In another lawsuit, he was accused of botching a nasal operation, costing a patient his senses of taste and smell. In a third, a woman alleged that Yoder accidentally poked a hole in her windpipe, causing severe nerve damage that left her barely able to speak and habitually gasping for breath.

    Each of the three payments made on his behalf exceeded $150,000, and all occurred within five years. But the board's policy applies only to malpractice settlements. Two of the complaints against him were settled, a process under which defendants do not admit liability. The third was decided by a jury. Yoder's insurer paid $350,000 in each settlement and $400,000 in the case resolved in court.

    It cannot be determined whether Yoder has ever been investigated, because investigations are kept confidential unless they result in a disciplinary order. According to records, he has not been disciplined by the board.

    The Sun learned of Yoder's malpractice claims history from Maryland Insurance Administration records. Yoder appealed to the state agency after his insurer informed him in October 2004 that it would not renew his policy because of the claims history.

    Yoder did not respond to repeated phone calls to his offices in Lutherville and Fallston or a letter seeking comment on his malpractice claims history.

    In other states
    Some states have more aggressive policies for examining physicians.

    "We're interested in the early detection of problems," said Dr. Martin Crane, chairman of the Massachusetts Board of Registration in Medicine, which reviews any doctor who has paid three claims in a decade. "We find that it is a small group [of doctors] that is fraught with problems and has to be looked at carefully."

    Other state medical boards are stepping up reviews of malpractice cases. Regulators in Nevada and Pennsylvania investigate every claim, for instance, and starting this year, Georgia will investigate a doctor's "fitness to practice" after two settlements.

    Douglas Cooper, chief of investigations for the Nevada Board of Medical Examiners, said the process, while time-consuming, is worthwhile because about half the reviews reveal problems that warrant further investigation. "We are finding an increase in cases that seem to have merit," he said.

    Three other states, including Virginia, require action against doctors sued repeatedly for mistakes that cause injury.

    Under a law that took effect July 1, Virginia's medical board must "assess the competency" of doctors with three malpractice payments in a decade and develop a "plan of corrective action" or other "appropriate resolution."

    "My guess is that more states will follow," Thompson said.

    A lengthy process
    Even though Maryland's board pays limited attention to malpractice cases, Pinder says it does look into about 1,000 complaints a year from patients, hospitals, health insurers and other sources. Among the most common -- 349 last year -- are those alleging substandard care. They range from formal written complaints to anonymous calls and letters.

    Most are dismissed without any action.

    Asked why the board gives greater credence to an anonymous call, for example, than a malpractice lawsuit, Knipp, the panel's chairman, replied, "I see your point."

    Each complaint goes to a physician consultant who determines whether it merits the attention of the Delmarva Foundation for Medical Care, an organization that assesses quality of care. The foundation selects two physicians certified in the same specialty as the doctor being critiqued.

    If the outside experts find that the doctor's work fell below standards, the Maryland attorney general's office must review the case. A doctor can contest the administrative charges in a hearing and later in an appearance before the board, which decides any penalty.

    The process can take years.

    This year, according to the board's most recent report, 313 complaints alleging substandard care were closed, taking 4.2 years each on average.

    "We have a terrible, terrible" backlog of these cases, Pinder said during a board meeting in April. Some complaints have languished for so long that he jokingly dubbed them "moldy oldies."

    A reprimand
    One case that took years to resolve was brought against Dr. Abdol Hamid Ghiladi. The Towson internist came under investigation for his care of Paul Levine, a diabetic Bethlehem Steel worker he treated for more than two decades until his death in 1999 at age 61. The board began investigating in March 2000, after receiving a copy of a malpractice claim filed by Levine's widow, Patricia. At the time, the board was reviewing every claim.

    The claim accused the doctor of failing to perform routine tests for colorectal cancer until Levine complained of blood in his stool. He was found to have advanced colon cancer. The disease "would have been easily discovered" earlier had the doctor performed the proper exams, according to the claim. Ghiladi denied the allegation.

    However, the medical board's consultants said Ghiladi erred in not screening for the disease after Levine turned 50.

    "A physician who enjoys the benefits of medical licensure in the state of Maryland must also shoulder all of the ensuing responsibilities, one of which is the obligation to meet appropriate standards for the delivery of quality medical care," the board wrote in its order, posted on the agency's Internet site.

    It took until October -- more than five years after the investigation began -- for the board to act. It reprimanded Ghiladi and imposed a two-year probation that requires him to undergo further review after a year.

    "The matter is closed as far as I'm concerned," Ghiladi said, declining to comment further.

    The malpractice claim was settled confidentially, according to Patricia Levine's lawyer.

    Pinder said cases involving an alleged breach of standards are difficult to resolve because reviewers often cannot agree that a doctor failed to provide proper care or conclude that an error cannot be proven.

    "It is a very long, drawn-out process," he said. "These are the most difficult to prove."

    Pinder blamed some delays on the attorney general's office, which can take nine months or more to process disciplinary charges, and attributed others to staffing problems. Although the board has the authority to hire more staff, several vacancies remain unfilled, officials said.

    Timothy Paulus, who handles board cases for the attorney general's office, said the office must review each case to make sure it is provable, but acknowledged that "the process has to speed up. There's no doubt about it."

    When the board confirms that standards of care have been breached, it typically takes steps to prevent mistakes from recurring, rather than punishing the doctor.

    In the past decade, only eight doctors in Maryland surrendered licenses or had them revoked after being investigated for such violations. Typically, such cases, including at least 23 in which a patient died, result in a reprimand or probation, The Sun's analysis found.

    The board is tougher when dealing with other types of misconduct. Over the same 10-year period, the board took the licenses of 23 doctors for drug or alcohol abuse, or improperly prescribing narcotics; 11 who were caught having sex or engaging in other unethical relationships with patients; and 18 others convicted of crimes, such as Medicaid fraud, which require revocation.

    Knipp, the medical board's chairman, said that in deciding cases, panel members must consider a physician's "overall track record" as well as "gut feelings" about whether a doctor who comes before them poses a threat.

    "I don't feel that anybody has gotten away with anything," said Knipp, a Baltimore County radiologist. "There's nobody that's a homer for the profession."

    Negligence claims
    As the board's disciplinary review of Dr. Joseph H. Cutchin shows, new malpractice claims can be filed against physicians as investigations drag on.

    During the four years the board investigated the Salisbury obstetrician, three claims were filed, bringing to 11 the number brought against him from 1986 through 2004.

    The board investigation, which began in June 1999 as a result of a routine review of malpractice claims, eventually focused on three. Each asserted that negligence contributed to a baby's death, allegations that Cutchin denied.

    The first was filed by an overweight 29-year-old with a history of diabetes. The board's consultants, both obstetricians, concluded that Cutchin should have hospitalized the woman to control the disease. By the time she was told to go to the hospital, she couldn't feel her baby move. The next day it was delivered stillborn, board records show.

    In the second case, reviewers found that Cutchin failed to interpret "ominous" fetal heart rate problems that should have led him to deliver the baby sooner. In the third, brought by a 16-year-old whose baby was stillborn, reviewers said that Cutchin failed to evaluate a "serious heart rate abnormality" before leaving the hospital.

    The investigation ended in June 2003 when Cutchin agreed to stop delivering babies, state records show. By then, three more claims had been filed, one involving a stillbirth.

    Cutchin, 70, said in an interview that he accepted the sanction not because he believes he did anything wrong but because he is nearing retirement. "If I was 40 years old, I would have fought this tooth and nail," he said.

    The doctor said he had been sued "a lot" over his 38 years of practice. Some claims were settled for $75,000 to $100,000, he said, suggesting that they didn't have much merit.

    "Some of us are in the trenches taking care of high-risk patients," Cutchin said. "I don't have a Johns Hopkins to send the high-risk patients to."

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