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Missouri secretive, lax on doctor discipline

Missouri secretive, lax on doctor discipline

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A 5-year-old girl needed surgery to fix a muscle in her left eye.

But Dr. David E. Braverman mistakenly operated on her right eye. And then he tried to cover up his error.

He told her mother that the right eye was bleeding and also needed surgery. She consented. The girl had to be put under anesthesia again. A breathing tube was reinserted. Braverman went back in to do the intended procedure on the left eye.

Later, Braverman altered the girl's charts to justify both surgeries.

The incident went to the state Board of Registration for the Healing Arts, a panel appointed by the governor whose mission is to protect the public.

The botched surgery at Children's Mercy Hospital in a Kansas City suburb in 2003 was another mark on a career that has included at least $2 million in malpractice payments in nine cases, mostly involving diagnosis and treatment errors of children in Kansas and Missouri.

The board let Braverman, a pediatric ophthalmologist, keep practicing without missing a day of seeing patients. His penalty: a reprimand in his file for the Children's Mercy incident. The board won't say whether it investigated any of the other allegations of substandard care.

Leniency and secrecy are the rule when it comes to policing Missouri's 22,000 doctors, a Post-Dispatch investigation has found. The newspaper's findings include:

• Missouri's regulation of doctors is among the nation's most lax. Doctors who provide substandard care often can continue to practice without worrying that authorities will take any action or even that their names will surface in public records.

• The board's most frequent action is sending confidential "letters of concern" to doctors. They go in a doctor's file but carry no repercussions. Doctors can get more than one, and the public never knows. A survey of state medical boards showed other states send such letters sparingly.

• The board interprets state law narrowly to keep most of its proceedings and records closed to the public.

• The board has the power to immediately suspend the license of a dangerous doctor, but it never uses that power.

• The board's staff says board authority is restricted by state laws. But any proposals that would strengthen its power are run past doctors' associations first.

Neither the eight current board members nor Gov. Jay Nixon's nominee for the ninth position agreed to be interviewed for this story. Kevin O'Malley, a St. Louis attorney who is the only non-physician on the board, wrote in an e-mail that he was "enormously impressed with the physicians and staff of the board, the seriousness they attach to matters under our jurisdiction, and the care exercised during the investigations and deliberations."

Braverman, 63, walked away when a reporter approached him for comment outside his office in Lee's Summit, Mo., on Dec. 2. In an e-mail, he said: "The events of the day were fully disclosed to the family by me before the patient left the hospital."

The father of another Braverman patient said he can't believe the board didn't act on treatment errors that damaged the sight of several children, including his daughter.

"It makes me want to vomit to think that he has little kids in his office," said Rick Hartigan, the chief operating officer of St. Joseph, Mo., schools.

In 1989, Braverman diagnosed 4-month-old Kallie Hartigan with infantile cataracts. After successful surgery to correct them, he failed to notify her parents of the risk of her developing glaucoma, according to Kansas regulators.

Kallie saw Braverman again in 1999 with intense eye pain. Rick Hartigan said Braverman diagnosed it as a scratch. A second opinion in 2000 revealed she had advanced glaucoma. Kallie suffered severe vision loss.

The Hartigans sued Braverman. The doctor provided records suggesting that he had tested her eye pressure and found it to be normal. The Hartigans' expert witness testified that the records might have been falsified. The case was settled.

"Do these parents have any idea what they walked into?" asked Rick Hartigan.


Braverman was a rarity: a doctor who actually did get some form of discipline in Missouri after providing negligent care. A reprimand is the lightest penalty available: a public mark on a doctor's record. Doctors don't have to disclose a reprimand to patients. Patients have to know where to look for them - within the state Division of Professional Registration website.

Tina Steinman, the board's executive director, said Missouri laws made it tough for the board to seek discipline against a doctor.

The board typically has to wait for a pattern of problems to emerge with a licensee before seeking a public disciplinary action, she said.

Complaints about a doctor will stack up in the board's secret files without the public's having any way to know a problem exists, former board members told the Post-Dispatch.

Board staff pointed to a state law that says all "information" about Missouri licensees is confidential - including where they went to medical school.

Steinman said the board investigated about 1,000 complaints a year about doctors. Most are from patients concerned about the quality of care they received. The board also annually reviews patient records from about 700 malpractice cases. Those should have included Braverman's malpractice settlements.

Insurance companies are mandated to report physicians' paid malpractice claims to the National Practitioner Data Bank, maintained by federal regulators to help identify problem doctors.

An analysis of the public portion of the data, which does not include doctors' names, shows only 13 Missouri doctors have more malpractice payouts than Braverman.

Dannyelle Greeley lost an eye after Braverman failed to treat a post-surgical infection in 1989, according to Kansas court records. The case was settled in 1992 for $850,000, court records show.

"It's not like I'm crippled," said Greeley, now 25 and living in suburban Kansas City. "I have a very low self-esteem. It's always been hard for me to look at people and make eye contact with people. I've been made fun of my whole life."

Nathan Wessley works at a doughnut shop in Wichita, Kan., but says he could have done more with his life. He blames his vision loss on Braverman's failure to diagnose his childhood glaucoma. His family's lawsuit against Braverman was settled in Jackson County for about $300,000 in 1996, according to an analysis of federal records.

"I was under the assumption that he didn't work anymore," Wessley said. "Maybe if people (knew what happened to me) they wouldn't go there anymore."

The Missouri board didn't take any public action after the malpractice cases.

The Kansas Healing Arts board referred to five malpractice cases in its complaint against Braverman for a pattern of negligent care, according to board records.

Kansas deactivated Braverman's license for five months and made him pay about $2,600 to cover the board's costs. It also placed restrictions on his license, although specifics were blacked out on documents obtained by the newspaper. In an e-mail to reporters, Braverman said the board "severely restricted my practice." He said his lawyer had advised him not to comment further.

Children's Mercy recommended suspending Braverman, who then resigned in 2003. Another hospital revoked his privileges to treat patients in 2005. He maintains privileges at other Kansas City-area hospitals.

In 2005, Braverman filled out an application with Blue Cross/Blue Shield, the Kansas City area's largest health insurance network.

But he failed to disclose his disciplinary history, and the insurer removed him from its physician network.

The penalty from the Missouri board? Another reprimand.


A recent study revealed that each year about one in seven Medicare patients will be harmed by medical errors in hospitals and 180,000 will die.

This year, a Post-Dispatch investigation has exposed a health care culture in which critical information on the quality of doctors and hospitals is kept hidden from patients making decisions about their care.

Without access to information, patients have to trust that a hospital can prevent errors such as wrong-site surgeries. They must count on the state's licensing board to eradicate dangerous doctors.

A Post-Dispatch investigation 30 years ago found Missouri was lax in its policing of doctors. Soon after, the legislature changed the board's makeup to include one nonphysician - a "public" member - to represent patients' interests.

By 1990, the consumer watchdog group Public Citizen called the Missouri board the toughest in the nation, with 9.3 serious actions per 1,000 licensees.

In 1993, Jean Mathews, a former state representative from Florissant, became the first nonphysician to become board president.

She was not on the board in 2004 when the Braverman reprimand was decided. "The board I served on would have dealt with it much more severely," she said.

She said that at the end of her term, newer physician members of the board felt "very sympathetic toward physicians." Some board lawyers did not want to admonish doctors even in confidential letters "for fear that a physician would take umbrage and, in turn, sue the board."

Today, the rate of serious actions is about two per 1,000, making it one of the least active boards in the nation, according to an analysis by the Post-Dispatch of data provided by a trade group for medical boards.

And about 60 percent of its disciplinary actions for 2007-2009 were those that required little or no investigation by the board.

They included automatic revocations for doctors who pleaded guilty to felonies or who were late paying taxes, and actions based on investigations conducted by other bodies, such as medical boards in other states.

Discipline related to quality of care amounts to just 6 percent of the board's public disciplinary actions, according to the newspaper's analysis.

Steinman said the board must operate within the confines of Missouri laws.

For example, Missouri is the only state in the U.S. that does not have the ability to fine doctors for negligence or misconduct, or even recoup legal fees and investigative costs. Doctors, on the other hand, can petition the state for their legal fees.

And while almost every state empowers its medical board to discipline doctors, Missouri often requires an extra step.

If the Healing Arts board can't get a doctor to agree to sanctions during secret negotiations, it has to petition the state's Administrative Hearing Commission to weigh the facts.

If the commission finds there is cause to discipline, the board can pick its penalty.

But the commission's proceedings can stretch for years, and a doctor can keep practicing during appeals. Board staff said that as a result, the board will often first try to settle a case. It files only about 15 cases a year with the commission.

Steinman said the board had been frustrated with the setup for a long time, and wished it had more power.

"The frustration is that they feel that this physician needs to be under some type of discipline," she said, "and yet we are going through a long, drawn-out process and we may not win the case, so then that physician is able to practice without any type of monitoring in place."

Dr. John Michael Hoja kept practicing despite at least eight malpractice payouts totaling about $1 million.

In 1989 and 1990, while working at Lucy Lee Hospital in Poplar Bluff, he was repeatedly late for surgeries - or missed them altogether - and failed to visit patients, according to board records. He was arrested for drunken driving and tested positive for cocaine. He got substance-abuse treatment. The board put him on seven years' probation.

In 2000, he removed a 30-year-old woman's healthy ovaries without her consent during a hysterectomy. Hoja and the board agreed to a reprimand.

Hoja, 56, said in an interview that "in older training, we were told what we did with ovaries didn't matter." He said he had since learned that he had to "catch up with current times."

"Admittedly, they did not have to come out," he said. "She was displeased because she had not specifically indicated that she wanted that. I can understand that."

In 2003, a patient developed complications after he failed to see her after a surgery. He got another reprimand. In 2006, he failed to follow up with two more patients after surgery, including one who had complications because he had perforated her bile duct.

The board reprimanded him again - and ordered him to stick to surgeries related to gynecology.

Hoja said he was an asset to rural southern Missouri patients. "They don't talk about the many hundreds of cases where you did well ... all the hundreds and thousands of babies that were born," he said.

"I'm a good doctor. I've got a lot of good cases under my belt. I've had some complications like anyone else. Mine just smelled up the place when they looked at them."

Mike Ponder, a lawyer who has represented plaintiffs in three cases that Hoja settled, said the board did not use its power to protect patients.

"Once you've destroyed someone's health," Ponder said, "there is no rebuilding it."


Missouri board staffers argue it is very difficult to punish a doctor for a single incidence of negligence.

But they have when another state took action first.

In 2003, Dr. Harvey Mirly performed the wrong surgery on a woman at Memorial Hospital in Belleville.

She came to Mirly for a trigger finger release surgery on her thumb. Mirly performed carpal tunnel surgery and then performed the thumb surgery, according to Illinois' complaint against Mirly.

The woman developed scar tissue and pain in her wrist and required additional therapy and treatment because of the unnecessary carpal tunnel surgery, according to state documents and a lawsuit.

Illinois reprimanded Mirly in March 2009. That August, Missouri followed with its own reprimand based on Illinois' action.

The board disciplines doctors after one offense in other states because otherwise the doctor would "just move into Missouri and continue practicing," said Mark Tucker, who served as the board's public member from 2003 to 2008.

But if a doctor commits the singular offense in Missouri, he can't be disciplined.

It's "one of the downfalls of the system," Tucker said.

At DePaul Health Center in 2007, Dr. J. Perry Lovinggood removed a 55-year-old patient's sole healthy kidney and left the diseased one in place.

The patient was to have his right kidney removed after X-rays turned up a suspicious mass. But records from Lovinggood's office noted the mass was on the left kidney.

The pathologist who tested the kidney that was removed discovered it was healthy.

The hospital notified federal health investigators of the wrong site surgery. The Post-Dispatch was unable to learn details about this case until it obtained the hand-written investigator's notes through a Freedom of Information Act request.

The notes show that Lovinggood said he could not see the X-rays during the procedure because they were on a small screen 10 feet away and he did not walk over to examine them.

The investigator's notes say the healing arts board would be alerted.

One of Lovinggood's colleagues at DePaul, Dr. Daniel Scodary, served on the board at the time. Scodary told reporters the issue didn't come up before the board.

The patient declined to comment.

A claim against Lovinggood and his practice was settled confidentially for about $1.7 million, according to an analysis of state and federal data.

"Dr. Lovinggood is a tremendous surgeon," said his attorney, Mayer Klein. "I bet he's done thousands and thousands of these surgeries."

The board also would have been alerted about another malpractice case filed in 2008 involving Lovinggood. In September 2006, he removed the left testicle of a 25-year-old man after it twisted on the spermatic cord and choked off blood supply.

Months later, the patient lost his right testicle in the same way. He sued Lovinggood's practice, alleging that the doctor was negligent in failing to suture the remaining testicle to protect it, as is the standard of care. The lawsuit was settled.

The medical board has never disciplined Lovinggood.


Other states can discipline a doctor for a single incidence of negligence.

Two years ago, after disclosures that the Kansas board was waiting for physicians to harm at least three patients before initiating a public action, the legislature there amended the law to make it easier for the board to discipline a doctor after a single case.

"Now we take every complaint as potentially hurtful to the public," said Kansas board spokeswoman Lisa K. Corwin.

Missouri board staffers said they didn't advocate any change to state law.

"It seems like a cop-out, but our position is that we enforce the laws that are on the books and the policymakers need to look at the quality of those laws to see if any changes are needed," said Travis Ford, a board spokesman.

Kallie Hartigan, now 22, Braverman's patient who developed glaucoma after cataract surgery, says the state should make whatever change is necessary to empower patients. She wishes the board had raised red flags on any of Braverman's malpractice cases.

"Patients should be able to see what their doctors have been doing," she said. "One case of malpractice is all it takes to mess someone's life up."

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