Blind Eye: The Terrifying Story of a Doctor Who Got Away With Murder (24 page)

State medical licensing boards are largely an extension of the peer review process. Though the boards may include at least token nondoctors, they are dominated by physicians. They suffer from all the problems of peer review boards in hospitals, not to mention restricted budgets, lack of time for contested hearings, and inadequate investigative staffs.

These problems all surfaced in Ohio. In April 1985, in the wake of the Swango case and the Ohio State Medical Board’s failure to take any disciplinary action against anyone at Ohio State,
Plain Dealer
reporter Gary Webb published an exhaustive seven-part series on the effectiveness of the Ohio board, which showed that the lapses in the Swango case were hardly exceptional. Among the series’ conclusions, all of them backed up with numerous examples:

• The Ohio board allowed doctors convicted of felonies such as drug trafficking, insurance fraud, forgery, theft, sexual assault, and drug abuse to remain in practice.

• The board allowed physicians with serious alcohol or drug problems to remain in practice—even perform surgery—while they were undergoing treatment, withdrawal, and psychotherapy.

• The board allowed doctors diagnosed as suffering severe mental problems to remain in practice for years while their cases wended their way through the board’s hearing process.

• The board routinely allowed doctors convicted of felonies to continue practicing for years while their cases dragged on in appellate courts.

• Even when a physician repeatedly violated the law, the board seemed loath to pull his or her license; board members worried that the physician would be unable to earn a living.

• While ignoring some physician crimes, the board kept its small staff of six investigators busy digging up evidence against nurse-midwives, physician’s assistants, health-food stores, chiropractors, acupuncturists, masseuses, manicurists, and others suspected of practicing medicine without a license.

The Plain Dealer
also chastised the board for the “use of secret hearings and deals negotiated privately with the offending doctor,” noting that virtually everything about the board’s procedures is confidential.
¹¹

The
Plain Dealer
series made clear, as have numerous academic and legislative studies, that “the effectiveness of state licensing boards at weeding out incompetent physicians has always been inadequate,” as legislative counsel Adler put it in a 1991 survey of the boards. Yet any congressional move to replace or modify peer review has been summarily dismissed because of opposition from the medical profession.

Doctors’ outrage over the Patrick verdict was rooted in the notion that a jury had slapped the Astoria physicians with a $2 million
verdict simply because they had blown the whistle on an incompetent surgeon. This was the view pressed on Congressman Ron Wyden, Democrat of Oregon, by doctors in Oregon and by the AMA. He echoed these concerns in a speech on the House floor: “Regardless of the guilt or innocence of the Astoria doctor, cases like this demonstrate that if this country wants physicians to come forward and prevent truly bad doctors from hurting people, there must be legal protection for them from the possibility of multimillion-dollar litigation, years in court and financial ruin.”

But while momentum to protect whistle-blowing doctors gained force, the actual facts of the Patrick case were ignored, as Wyden’s comment—“regardless of the guilt or innocence of the Astoria doctor”—makes obvious. A jury, the Ninth Circuit U.S. Court of Appeals, and the U.S. Supreme Court all eventually found that Dr. Patrick was competent, had not behaved negligently or recklessly, and was actually being hounded out of business by rival doctors’ vindictive use of the peer review process. The doctors had begun their campaign against Dr. Patrick only after he rejected their offer of a partnership in the Astoria clinic and set up a rival practice. The principal basis for the charge of incompetence, and the attempted revocation of his hospital privileges, was that Dr. Patrick had left a patient in the care of one of his colleagues. Even then, Patrick himself was only ninety minutes away, but no one had called him. The Court of Appeals noted that “there was a great deal of testimony that Patrick was quite a good surgeon.”

If anything, the Patrick case seems a glaring example of how doctors can manipulate and abuse the peer review process to further their own economic interests and prevent competition. It should have been grounds for questioning peer review. As the Court of Appeals noted, “There was substantial evidence that the defendants acted in bad faith in the hospital’s peer review process.”

Yet the case instead became a national symbol for the persecution of doctors trying to use peer review to root out incompetence. The case was cited by Congressman Wyden when he introduced legislation on March 12, 1986, to immunize physicians engaged in peer review.

The AMA has for years been trying to exclude the medical profession from antitrust liability, a move which, among other things,
would free doctors from the laws banning price fixing and restraint of trade and would all but certainly drive up the cost of medical care. The Wyden bill, cloaked in a concern for protecting the peer review process, was a significant step in that direction—and was quickly recognized as a Trojan horse by others in government. The proposed legislation attracted fierce opposition from the Federal Trade Commission, the Justice Department, the House and Senate Judiciary Committees, and the House subcommittee overseeing the FTC—all bodies involved with overseeing the nation’s antitrust laws—which saw it as a gambit to escape antitrust restrictions.

Wyden’s bill would have died quickly without the support of California representative Henry Waxman, a powerful Democrat who was chairman of the House Subcommittee on Health and the Environment. It so happened that Dr. Brody, who had been highlighted on
Nightline
, had surfaced in California, Waxman’s state. Wyden had added to his proposed law a provision that required doctors, in exchange for immunity, to report to a national clearinghouse actions taken against incompetent doctors. Hospitals would be required to check with the clearinghouse before they hired or extended hospital privileges to a physician.

The “Brody” reporting provision establishing a national data bank cost Wyden the support of the AMA. Testifying in a hearing on the bill, a member of the AMA’s board of trustees, Dr. Raymond Scalettar, complained that “the national clearinghouse would be duplicative and unnecessary. There is no need to create a new body and source of data . . . . Such data will include an extremely large amount of complex and possibly misleading information.” But Wyden defended his approach of addressing the problem of rogue physicians in the same legislation that granted physicians immunity from the kind of liability faced by every other profession.

“Well, I tell you, I think . . . it is in the public interest to tie the two together,” he said. “If we don’t tie the two together, it seems to me that we are setting up a situation where rights are being given in particular to physicians and to medical providers. I am very much in favor of doing this. It is something I have put in many, many hours behind. I am in favor of those rights. But I am not in favor of giving those rights without some responsibilities which are in the public interest.”

With vigorous lobbying from the medical profession, however, crucial elements of the national data bank on incompetent physicians were watered down. The penalty for failing to comply was minimal, nothing more than a “presumption,” in any medical malpractice action against a hospital, that the hospital had knowledge of any information available through the data bank. But the AMA still opposed the bill, largely because of the national data bank.

In essence, the final bill provided that persons engaged in peer review activities “[could not] be held liable for damages under any federal or state law” as long as they complied with the act. In return, the proposed bill required state medical boards to report to a national data bank each time a physician’s license was suspended for incompetence or misconduct. All “health care entities” were required to report actions “adversely affecting the clinical privileges of a physician,” as well as any instance in which they “accept[ed] a surrender of clinical privileges while the physician was under investigation.”

Thus, had the law been in effect in 1986, or made retroactive, the Ohio and Illinois state medical boards would have been required to report the suspension of Swango’s medical license to the national data bank.

The combined opposition of the AMA and virtually every governmental organization involved in antitrust enforcement seemed certain to doom the measure. But at the last minute, just four days before the Ninety-ninth Congress was due to adjourn, Waxman displayed the legislative dexterity for which he is renowned. By tacking the bill onto an omnibus piece of health care legislation that already contained eight other bills, he ensured that it would undergo minimal scrutiny.

The bill, titled the Health Care Quality Improvement Act of 1986, was passed by the House of Representatives on October 17. It was sponsored in the Senate, which held no hearings at all on the immunity or reporting measures, by then senator Al Gore, and was passed unanimously on October 18. When President Reagan voiced misgivings and indicated he might not sign the legislation, Representative Wyden took his case to the public in an opinion piece in
The Washington Post.
Although the establishment of a national data bank to keep tabs on incompetent doctors made up only a small
part of the legislation, and although it had been watered down because of opposition from the AMA, it was this provision that Wyden stressed.

After reviewing the Brody case, he wrote:

There are many other cases like this one. The House Energy and Commerce health and environment subcommittee heard testimony indicating that three to five per cent of the doctors in this country account for most of the malpractice. There are 450,000 physicians nationwide; in other words, a moderate estimate indicates there may be 18,000 doctors regularly malpracticing.

The need for legislation is clear. There is no effective national system for keeping tabs on doctors who are truly incompetent. Physicians have told the health subcommittee, on which I sit, that they are now afraid to speak out when a colleague malpractices. Hospitals can’t take action against physicians they know are incompetent because they fear the legal consequences. The result: the incompetent doctor continues to practice, inflicting poor care and soaring costs on the unsuspecting.

President Reagan signed the bill into law on November 14, 1986. The National Practitioner Data Bank was inaugurated in September 1990. Although the AMA had rather audaciously proposed that it be in charge of the data bank, it remains under the supervision of the Department of Health and Human Services, administered by a private company in Virginia.

D
URING
the summer of 1991, while he was still living in the Newport News area, Michael Swango enrolled in an advanced life-support course at Riverside Hospital. One day when he drove into the parking lot in his 1987 red pickup truck, he noticed an attractive young woman getting out of another red truck. He pointed out the similarity of their vehicles and introduced himself, using his real name. She said her name was Kristin Kinney. She was twenty-five years old, with beautiful long reddish-blond hair.

Kinney worked as a nurse in the intensive care unit at Riverside. She had recently returned from a stint as a “traveling” nurse in
Naples, Florida, where she had made some close friends and enjoyed the work. But she returned to Virginia because she was dating Dr. Jerome Provenzano, a medical resident there. Swango told her he was a chemist. The two spoke occasionally during the course, but otherwise had little contact. Kristin was soon engaged to Dr. Provenzano, and she wasn’t interested in dating Swango. Still, when the course ended and students filled out evaluations that asked for “the best thing about this course,” Swango responded “Kristin Kinney.”

Kristin had been living with her mother and stepfather, Sharon and Al Cooper, but moved into her own apartment that summer. Sharon was an emergency room nurse, and Kristin had followed in her footsteps. Using fake names to preserve confidentiality, the two often traded stories about their patients. Once, Kristin told her mother about a patient who had tried to commit suicide by shooting himself in the head. He hadn’t died, but would remain dysfunctional for life. The emergency room doctor had complained vociferously, Kristin had reported. “If you want to commit suicide, shoot yourself in the chest,” the doctor had proclaimed with exasperation. “Don’t shoot yourself in the head.”

Kristin had a lively, and at times wicked, sense of humor. Because of it and her reddish hair, her mother and friends sometimes compared her to comedienne Lucille Ball. She was especially irreverent toward doctors. Once she was giving mouth-to-mouth resuscitation to an emergency room patient while a group of medical residents stood by. After struggling to stabilize the patient, she turned to them and asked, “Does anyone here want to play doctor?”

Though Kristin initially resented her mother’s new husband, Al, a retired Navy pilot—she called him Alpo, after the dog food—she and her stepfather had developed a close rapport. She confided in him about her relationship with Provenzano, saying that she was having doubts about the engagement. Provenzano would come home from his long stints at the hospital too tired to pay much attention to Kristin. She complained that he’d turn on the stereo and ignore her. She wasn’t sure she wanted to marry a doctor. They seemed too consumed with their work to have much time left for a family.

Then one evening Kristin called her parents to report that
she’d met someone else, someone who promised “he’ll give me all his attention and take good care of me,” as she told the Coopers. The young man she’d met in life-support class, Michael Swango, now formally divorced from Rita, had been calling her, asking her to at least meet him for a cup of coffee. She’d finally agreed, even though one of her best friends, a nurse at Riverside, warned her to stay away from him. He’d applied to work at the hospital, but had been rejected because of “something in his past.” But the friend wasn’t any more specific, and Kristin, who could be stubborn at times, preferred to trust her own judgment. She met Swango for coffee. She learned he was a
Star Trek
fan and loved Tom Clancy novels. He was soon calling her every night, showering her with attention and begging her to call off her engagement to Provenzano. Now, Kristin told her parents, “I have a big decision to make.”