The Best American Crime Writing 2006 (24 page)

Yet none of his legal trouble seemed to deter Scheffey or make him change his behavior. His biggest problem was finding anyone to insure him at all. In 1993 he had appealed to the state Commissioner of Insurance to force the Texas Medical Liability Insurance Underwriting Association to suspend a surcharge they had imposed on him that would have required him to pay $537,931 in addition to his usual premium of $63,286. Such a surcharge meant that the insurance company would be charging $601,217 for what amounted to $600,000 of insurance. Scheffey lost the appeal. If state regulators had not quite figured out who Scheffey was yet, the insurance companies certainly had.

Where were the regulators? Why, with so many lawsuits filed, a track record known to a large segment of the medical community in Houston, and continual coverage in the press, was he allowed to continue performing surgeries in the state of Texas? In 1989 the state board had filed an informal complaint against the doctor based on a long list of patient injuries and other problems collected by Barrash, who by now was spending a good deal of time trying to expose Scheffey. But it was not until 1993 that the board mounted a full-scale, heavily-documented effort to revoke Scheffey's license in an administrative law court. Hearings in that case coincided with news of yet another Scheffey disaster: In 1994 his patient Ancel "Bud" Freeman, who had gone in for his third back operation, lost four quarts of blood and died after a seven-hour surgery. In 1995 a judge did what everyone expected: She recommended that Scheffey's license be revoked, not just for malpractice but also for excessive charges. But the board ignored that recommendation and voted instead to give Scheffey a five-year probation that would let him continue to practice but with some restrictions: To operate, for instance, he would have to have a written consultation from another doctor. "I was extremely distressed and disgusted at the board's action," says then-executive director Bruce Levy, whose staff mounted the case. "I came close to resigning."

Scheffey immediately appealed the ruling in a state district court and won a temporary injunction. Later, the court reversed the board's decision, allowing Scheffey to proceed as though nothing had happened. It was not until 1997 that an appeals court reversed the district court, but by then Scheffey's probation had less than three years to run. It is likely that Scheffey had started to believe, with good reason, that his medical license was legally invulnerable.

Thus began what amounted to a second professional golden age for Scheffey. In the late nineties he went to trial with five lawsuits and won them all, including one by the family of Freeman.The number of lawsuits filed against him dropped: From 1997 through 1999 only three suits were filed; from 2000 to 2002 there were only six. And he was making more money than ever. According to filings in one lawsuit, Scheffey's gross income from his practice in 1998 was $4,032,292. By 2002 it had risen to $5,453,361. Four entries from his 2002 profit-and-loss statement suggest the sort of life he was leading: Entertainment and meals: $238,927; Legal [fees]: $259,0l3;Travel and convention: $389,419; Charter expense [aircraft]: $448,260.

In the wake of all the bad press in 1994 and 1995, however, Scheffey had begun to lose friends in River Oaks, especially in the old-money set. "Oh, this guy was playing big, trying to date girls of the old Houston circle," says a woman who runs in those circles but asked not to be identified."The problem was that old Houston never liked him and was always suspicious of him." Says Houston Chronicle society columnist Shelby Hodge: "People absolutely stopped seeing him. People cluck-clucked all the time, especially in the medical community." But in 1999 Scheffey had done something that had greatly improved his social standing: He'd married a young society woman named Kendall Thomas, who was eighteen years younger than he was. She was pretty and well connected and part of the young social set in River Oaks. A year before he married her, he had moved into a $5.8 million, ten-thousand-square-foot house on Longfellow Lane, in Shadyside, near Rice University. The place was so spectacular that its landscaping and elaborate flower beds were featured five years later on the cover of Texas, the Houston Chronicle's Sunday magazine.

With Kendall there were parties and social invitations, even though many people wondered, as one acquaintance put it, "what she was doing with him." But he never quite made it back inside:"I went to a party at their house, one of those art groups," says the friend."I just remember that it was a big party with big money but kind of sleazy people. Girls with surgeries, like they might have had a background in exotic dancing.You know what I mean."

Through all this tumult, both social and professional, there is no evidence that Scheffey altered even a small part of the work behavior that had caused him so much trouble. It seemed that Scheffey's practice had never operated quite so efficiently, relying upon an elaborate network of enablers that included fellow surgeons, nurses, radiologists, anesthesiologists, and a system of insurance and workers' comp approvals that was easily gamed. The TWCC, which, in effect, controlled 90 percent of his revenue, not only allowed him to continue but failed to challenge him when he was asking for approval (in one case, for the fifteenth surgery on a patient). Once the TWCC approved it, there was little anyone could do.

Scheffey had also found the perfect home for the sort of work he did: a facility in Pasadena called Vista Medical Center Hospital. Vista was owned by a publicly traded Houston company called Dynacq Healthcare, whose main line of business was high-volume surgery. Dynacq, in fact, made both the Forbes and Fortune lists of the one hundred fastest-growing companies in 2002 on the strength of its astounding 47 percent annual growth rate over a three-year period. In a 2003 article in Barron's, company spokesman Jim Baxter boasted that "a very active surgeon might be able to do five spinal surgeries in a day." It is unclear if he was referring specifically to Scheffey, but he may as well have been. In one deposition, a Vista nurse said that Scheffey would often have two operating rooms going at the same time. So dependent was Vista on Scheffey that when his license was later suspended, in 2003, his absence led to dropping profits, which had a direct impact on Dynacq's bottom line.

Vista was also remarkably undiscriminating in whom it allowed to use its facilities. In 2001 Vista became the last hospital in Houston (of twenty at one time or another) to let Scheffey operate. According to a 2004 report by the Texas Department of State Health Services, Vista not only failed to check on its doctors' records and on lawsuits against them but also knowingly allowed Scheffey to perform surgeries in 1999 and 2000 as the main surgeon and without a monitor, in violation of his probation. In response to a detailed and lengthy written query from this magazine, Dynacq spokesperson Christina Gutel would say only: "Dr. Eric Scheffey was licensed by the Texas State Board of Medical Examiners during his tenure at Vista Medical Center Hospital. As soon as that board suspended his license, his surgical privileges were revoked at Vista Medical Center Hospital."

All the while, of course, the list of Scheffey's victims only grew longer. In 2001 he'd operated on Thomas T. "Buddy" King after King had injured his back in a truck accident. Instead of the four hours the operation was supposed to have lasted, it took fourteen hours. King lost large amounts of blood.When it was over, he had severe pain in his legs. On the third day after the surgery, on his way to the bathroom, King dropped dead of a blood clot. Another patient, Jennifer Springs, was a fast-food cashier who had injured her back in a fall in 1995. Scheffey had operated on her back eight times between 1996 and 2001, telling her that if she did not have the operations, she would eventually be unable to walk. She got worse and worse, at one point staying in the hospital for three months. She now has severe leg and back pain, far more intense than when she started out. She can walk only short distances. Patient Mary Garcia lost a large amount of blood in a 2002 operation on her back. Now she too has severe pain in her legs and back, can't sleep because of the pain, and can walk only short distances.

She will never be able to work again. She sued Scheffey last year. "I try not to take too much pain medication," she says. "I prefer to cry."

With such a constant flow of patient complaints, Scheffey ought to have attracted (yet again) the attention of the state board. But the lesson of 1995 was that even if the board mounted a large and competent case, it was still impossible to get rid of Scheffey for reasons of malpractice. In 2002 Dallas Morning News reporter Doug J. Swanson published a sweeping indictment of the medical board as an incompetent, do-nothing agency. "It has refused," wrote Swanson, "in the last five years to revoke the license of a single doctor for committing medical errors." Nothing was different at the workers' comp commission either:The agency still resolutely refused to throw out bad doctors.

Things finally began to change at the state board under president Lee Anderson and new executive director Donald Patrick. In 2002 the number of informal "settlement conferences"-where doctors come before the board to defend themselves against complaints-rose from 172 to 477, the number of disciplinary actions jumped from 187 to 277, and the financial penalties more than doubled. Budgets increased. Government funds flowed. Bad doctors had their licenses taken away for standard-of-care violations. "We, the agency and the board, began to see our mission differently," says Patrick."There is a lot of fearlessness, because we've got nothing to lose.We said,'Let's do as good a job as we can to try to protect the people of Texas,' because we were aware that we had not been doing that."The same thing was happening, at a much slower pace, at the TWCC, where medical adviser Bill Nemeth had instituted an "approved doctor" list, prompting howls of protest from the Texas Medical Association, the doctors' trade association.

Taking out Scheffey was one of the reformers' top priorities. In 2003, after the death of Cecil Viands, Scheffey's license was temporarily suspended by the state medical board. The following year, the board brought a second case against him that was based on twenty-nine surgeries on eleven patients and the testimony of six surgeons. On the recommendation of that court, Scheffey's license to practice was revoked in February 2005. He has appealed it, though it seems unlikely that he will win reinstatement.

Though Scheffey would not comment for this story, his longtime lawyer, Ace Pickens, said he felt that there was no basis for either the revocation of Scheffey's license or for the $845,000 fine. "If you look at the Board of Medical Examiners' records for administrative penalties over the last five years," Pickens says,"[and] you add them all up, it would not amount to this one case." He also pointed out that almost all of Scheffey's surgeries had been supported by second opinions: "They took eleven patients, ten of whom had been subject to second opinions, and said that second opinions by board-certified orthopedic surgeons were no good and that the surgery should not have been performed. Even if that is so, at least he went through the system and should be given the benefit of the doubt. He did not go about maliciously performing surgery. He got a second opinion for everything he did." Pickens, who has known Scheffey for more than twenty years and says the two are friends, also vouches for Scheffey's character. "Dr. Scheffey has absolutely been a lightning rod because he is an advocate for patients," says Pickens. "He is a good man. I don't believe he is an ogre or that he is evil."

Scheffey now appears to be completely out of business.Two months after his license was revoked, a corporation he owned called Harris County Bone and Joint Clinic Association pled guilty to a third-degree-felony charge of "securing execution of a document by deception"-fraudulent billing-and paid penalties of $25,599. He sold his mansion in Shadyside and moved back into the smaller mansion in River Oaks, where he still officially resides and where he was served with litigation papers as recently as April. According to Harris County records, he still faces roughly twenty malpractice suits, all filed since 2000. Though he was recently investigated by the FBI for workers' comp fraud, the agency says that that investigation is now complete. It produced no indictments. In its 2004 complaint, the state medical board also charged Scheffey with practicing medicine with a suspended license, a third-degree felony punishable by up to ten years in prison. According to the complaint, Scheffey had continued to practice medicine even after his 2003 suspension, using his partner Dr. Floyd Hardimon as a front.When the board temporarily suspended Hardimon's license later in 2003, it did so in part because it found that Hardimon "associated with and aided and abetted [Scheffey] in the practice of medicine after [Scheffey's] medical license had been suspended."

In the absence of any criminal charges, Scheffey is, remarkably, free to do everything but practice as a doctor. There is little doubt that he has an enormous amount of money. The talk among the Scheffeys' old social crowd in River Oaks is that Eric and Kendall have purchased a home in Geneva, Switzerland, where they have moved with their two children. "One day Kendall called me and said, 'We are moving to Geneva. Here is my number. Please call,' " says one friend who asked not to be identified. "She said, 'People are so mean-spirited. We are sorry we are leaving on such a negative and sour note.' " But very likely not as sorry as patients like Mary Garcia and Ed Gonzalez. Indeed, one of Scheffey's hallmarks is his ability to move blithely through his life, as though there were not an enormous trail of human wreckage behind him. And he feels no apparent need to hide or disappear into anonymity. Friends say that he and Kendall rented a big house for the summer in one of the richest and most celebrity-filled resort towns in America: Aspen, Colorado.

S. C. Gwynne joined Texas Monthly as an executive editor in June of 2000. Prior to that, he was Austin bureau chief for Time magazine, responsible for its coverage of Texas, Louisiana, Arkansas, and the Mexico border. He moved to Austin in 1994 from Time's headquarters in New York where he was a senior editor in charge of the business section. He first joined Time in 1988 as a correspondent in the Los Angeles bureau covering California and the western states. He was later Detroit bureau chief and national economics correspondent in Time's Washington, D.C., bureau. Gwynne was co-author of Time's first cover story on George W. Bush. Subjects of his Texas Monthly stories include Tom Craddick, Karl Rove, terrorism in Houston, and Big Bend. Gwynne is a 1974 graduate of Princeton University and received a master's degree from Johns Hopkins University in 1977.