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City “Whitewash” for Botched-Op Doctors [2008-12-04]

Susan Edelman, Stefanie Cohen and Cynthia R. Fagen [New York Post]
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The city is covering up botched surgeries and other alleged malpractice at its hospitals by paying settlements only on the condition that physicians are dropped from lawsuits, The Post has learned. The city’s Health and Hospital Corporation – which runs 11 public hospitals and 80 clinics – routinely requires that victims agree to remove the names of the doctors accused of injuring them from suits before they can get a check, many plaintiff attorneys say.

The policy allows dangerous doctors to avoid scrutiny by the state Health Department, which launches a probe when a doctor is named in six malpractice payouts.

It also helps doctors avoid public scrutiny. The HHC is responsible for paying damages on behalf of its staff, but dropping the accused doctors from lawsuits means the malpractice payments won’t be posted on their “doctor profiles” on the state Health Department’s Web site.

Manhattan lawyer Peter DeFilippis recently reached a settlement with HHC for $675,000 for the family of Robert Asta, 54, who checked into HHC’s Coney Island Hospital in 2006 for gastric bypass surgery.

Asta’s surgeons performed the wrong type of bypass, and left behind a piece of stethoscope that ruptured stomach staples, causing poisonous bile to leak, the suit alleged.

Despite horrible pain after surgery, Asta was told he needed no further treatment, the suit says. He died six days later.

But before his family could get the payment, the HHC insisted they “discontinue” their claim against gastric surgeon Dr. Muthukumar Muthusamy and his assistant.

Muthusamy is named in 10 other suits, including several pending and at least five that settled charges he injured patients, according to records and lawyers. Only one malpractice case is posted on Muthusamy’s state profile, a recent $1.25 million settlement of a 2005 suit, which also named Coney Island Hospital and HHC, by a patient who needed numerous surgeries to fix his error.

“The HHC’s practice of requiring that individual doctors be released before settlement creates a loophole in the reporting system, and keeps patients seeking malpractice information about their doctors in the dark,” said DeFilippis.

In another case, gastroenterologist Dr. Basil Lucak perforated the colon of Lily Hernandez, then 79, during a routine colonoscopy at HHC’s Bellevue Hospital in 2005, court records show.

She had to undergo emergency surgery, and now must wear a permanent colostomy bag.

The HHC settled for $300,000, but only after Lucak’s name was dropped from the suit, Hernandez’ lawyer, William Cooper, said.

“You have to weigh accepting a fair and reasonable settlement with the caveat that the public won’t find out the doctor’s name,” said Cooper.

Lucak defended his professional record as “stellar” and said HHC told him it reached the settlement “for reasons unrelated to my care of the patient.”

The doctor said that in performing 9,000 colonoscopies over 30 years, he has “never been linked to another perforation — or any other complication” adding that on average, the risk of perforation is one per thousand colonoscopies performed.

But Arthur Levin, director of the Center for Medical Consumers in Manhattan, blasted the HHC practice of removing doctors’ names from settlements. He called it “an end run around the reporting requirements intended to protect the public from bad doctors” with multiple payouts.

The state Health Department said it will investigate whether the practice is deceptive, allowing some doctors with shoddy records to slip under the radar.

HHC paid out $144 million in malpractice cases in fiscal year 2008.

Agency spokeswoman Pam McDonnell denied the strong-arm tactics.

“We don’t ask for a discontinuance or removal of the doctor’s name unless it is warranted because the doctor wasn’t involved” or was “sued in error,” McDonnell said.

“Send me the names of the HHC lawyers who are alleged to have done it and the doctors’ names that were removed, and we’ll look into it,” she said.

But lawyers say it happens all the time.

“Every case we have against them, you discontinue the doctors and HHC will pay your check. It’s just a condition of settlement,” said malpractice lawyer Michael Ronemus.

“When the doctor is personally sued, the HHC lawyers will say, ‘Please remove the doctor’s name,’ ” said attorney Gerry Oginsky.

In another suit, two gynecologists, then residents at HHC’s Bronx Municipal Hospital, were accused of negligence by Sandra and Henry McIntosh in the 1993 delivery of their daughter, who suffered severe brain damage and is unable to walk or talk.

HHC finally agreed to pay the parents $20 million after doctors Tony Tsai and Trishit Kumar Mukherjee were dropped as defendants.

The McIntoshs’ lawyer, Michael Gunzburg, agreed to drop the doctors because the parents needed the money to give their child lifetime care.

But Gunzburg later put his foot down when HHC urged him to let a family practitioner at Elmhurst Hospital off the hook.

His client, Luz Opazo, 49, sued Dr. Frank Estrada for failing to tell an elderly radiologist, Dr. Jakov Ovrutsky, about a large lump he found in her breast. She also sued Ovrutsky, who told her a golf ball-sized tumor was “probably benign” when it was advanced cancer.

From the start, Gunzburg said, HHC pushed him to drop the younger Estrada, telling him: “It’s going to hurt his practice. It’s going to affect his insurance rates. It’s going to be reported.”

A jury awarded Opazo $2.3 million and the HHC paid, but both doctors had the malpractice posted on their state profiles. Opazo died soon after.

Link to actual online article: https://nypost.com/2008/12/14/city-whitewash-for-botched-op-doctors/

See also: https://nypost.com/2008/05/11/gov-aided-hosp-ailing/