Doctors who err escape penalties

Dozens have benefited from the state's policy favoring remedy over punishment.

Linda Bruhn has filed a complaint in small-claims court against Dr. Patrick Carney because she wants corrective surgery for a 2010 tummy tuck. "It looks like a shark has bitten me across the stomach," she said. Carney declined to discuss her case.

Photo: Jeff Wheeler, Star Tribune

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All Susan Zwaschka wanted was a light chemical peel to smooth and cleanse her face before a family vacation to Chicago.

But minutes after Dr. Patrick Carney applied the solution, she winced in pain and pleaded with him to stop. Carney took several breaks but continued even after Zwaschka pushed his arm aside and sat up near tears. Days later, pain from the burns intensified. Open wounds on her swollen face oozed fluid and blood.

Devastated by what she saw in the mirror, the 44-year-old attorney, who had often defended physicians in malpractice cases, sued Carney over the 2007 incident and urged the Minnesota Board of Medical Practice to take action against him. The dermatologist argued in court records that Zwaschka was warned of the procedure's risks. In a deposition, he admitted he was to blame for a peel that "went wrong" and resulted in a "bad outcome."

In February 2010, Zwaschka won a $1 million jury award based on Carney's negligence. Five months later, she asked the board to investigate her case and those of five other patients who were allegedly harmed by Carney. So far, no one from the board has interviewed her.

"Where are you, board?" Zwaschka asked recently. "How many women have to be injured?"

The Minnesota Board of Medical Practice, responsible for protecting the public from physician errors or misconduct, often shies away from punishing doctors whose mistakes harm patients or who demonstrate a pattern of substandard care, a Star Tribune investigation has found.

Since 2000, at least 46 Minnesota doctors escaped board discipline after authorities in other states took action against their licenses for such missteps as committing crimes, patient care errors or having sexual or inappropriate relationships with patients, records show.

In addition, more than half of the 74 doctors who lost their privileges to work in Minnesota hospitals and clinics over the past decade were never disciplined by the Minnesota board, according to a federal database used by the health care industry to track actions against physicians. At least 13 of the 47 doctors who avoided discipline were flagged for incompetence, substandard care or inadequate skills.

Minnesota's board also has consistently declined to keep the public informed about problem practitioners by not publicizing malpractice awards and other adverse actions that are routinely disclosed in states from California to North Carolina.

Robert E. Oshel, a retired research analyst for the National Practitioner Data Bank, which tracks malpractice settlements and disciplinary actions against doctors, called the Star Tribune's findings "alarming."

"It suggests the Minnesota board isn't being as diligent in protecting the public as other boards might be," Oshel said. "It would make me a little concerned."

Board officials say they do everything they can to protect the public from bad doctors, particularly if a practitioner is considered a danger or has a history of substandard care. They don't dispute the newspaper's findings, but say the record reflects a regulatory philosophy that favors correcting problems over punishing misconduct or mistakes.

"I'm satisfied the public is protected in Minnesota -- very satisfied," said Robert Leach, the board's executive director. "And remember that part of public protection is ensuring an adequate supply of health care practitioners to the public. You can't take everybody out of practice just because they had a problem. That's why we're not in the business of removing credentials unless absolutely necessary. We want to be remedial."

A non-punitive approach

No state agency has more power over Minnesota's 20,000 physicians than the Board of Medical Practice, whose 16 members are appointed by the governor. Eleven of those members are medical doctors and five represent the public.

Funded entirely by licensing fees, the board can revoke or restrict licenses for doctors who fall short of state minimum standards. As part of its duty to protect the public, the board investigates complaints from fellow doctors, patients, nurses, and other sources. Investigations can be triggered when insurers pay a doctor's malpractice claim. Hospitals and clinics are also required to notify the board when a doctor's work privileges are restricted or suspended, but there are no penalties for failing to report and Leach suspects that some providers are not fully cooperating.

In the past year, the Minnesota board received 728 complaints against doctors. After reviewing those cases, the board initiated 32 actions, ranging from suspending a license to ordering a doctor to get more training.

That rate of discipline has consistently ranked Minnesota near the bottom in a closely watched report of state medical boards published annually by Public Citizen's Health Research Group, a consumer watchdog organization.

In 2010, Minnesota's medical board finished last - 51st - among all states and the District of Columbia, with a discipline rate of 1.29 serious actions per 1,000 physicians. A serious action is considered a license revocation or restrictions on how a doctor practices.

Minnesota's board is "consistently one of the worst in the country" at disciplining doctors, according to Dr. Sidney Wolfe, director of Public Citizen's Health Research Group.

Leach defends the record, saying Public Citizen's research doesn't reflect Minnesota's non-punitive approach.

"We don't discipline for a single issue usually," Leach said. "Docs make mistakes and when they do sometimes people get hurt. But we have to look and see if this is a pattern of practice. Is this an aberration?"

Records also show that the board typically avoids acting if a doctor's employer or another state board has imposed discipline. Altogether, the board acted in 31 out of 77 cases that originated in another state.

For instance, the Minnesota board remained on the sidelines when a physician licensed in this state was reprimanded by Wisconsin regulators for failing to follow up with a patient on an abnormal PSA cancer screening test. The Wisconsin board acted after another doctor discovered the patient had terminal prostate cancer.

The Minnesota board also chose not to act against a state-licensed radiologist who mistakenly inserted a chest tube into the wrong lung of a patient during a procedure in Florida. In that case, 20 states, including Florida, followed with some type of action.

In dozens of cases, the board took no action when doctors lost privileges at hospitals or clinics in Minnesota. In 2005, for example, a doctor voluntarily surrendered his hospital privileges after his employer put restrictions on his practice. The doctor later settled a malpractice case for nearly $1 million over a 2007 incident at another hospital involving a patient who was left a quadriplegic with brain damage requiring lifelong care. Neither incident sparked board action.

Because the board cannot legally release details about investigations that don't result in public action, Leach cannot explain why the board chose not to act in some cases. But he said Minnesota regulators might defer action if board members believe a doctor has been sufficiently punished elsewhere or if a doctor isn't actively practicing in Minnesota.

"What's the point of piling on?" asked Ruth Martinez, supervisor of the board's complaint review unit.

Doctor gives up license

Despite its non-punitive philosophy, Minnesota's board has taken action against incompetent doctors and others who pose a threat to their patients. The board can impose discipline when it finds a "preponderance" of evidence against a physician.

Shorewood doctor Gregory L. Seifert caught the board's attention in March 2007, when he reported complaints about his practice while renewing his license. A committee review found "a number of concerns," board records show. Among the issues: Seifert failed to adequately interpret diagnostic tests, provide needed referrals to specialists and fully document his patients' medical histories. The board also cited problems with his prescription of pain medication.

After Seifert disputed the findings, the board asked him to take a skills assessment, which showed additional problems. Five months later, Seifert underwent a neuropsychological exam that revealed "significant health and cognitive concerns." In January 2010, after the board concluded his conduct warranted disciplinary action, Seifert, then 74, gave up his license.

Altogether, Minnesota's board has substantiated 363 cases involving medical mistakes and misconduct by state-licensed physicians since 2000, records show. Eight doctors had their licenses revoked, including four physicians whose right to practice medicine was automatically terminated because they were convicted of sexual crimes. One doctor lost her license because she continued practicing after the board suspended her for not paying taxes.

Dr. Jose Tori was reprimanded and ordered to receive psychological counseling after the board found he abused his position of authority and engaged in a sexual relationship with a vulnerable patient who had received electro-shock therapy for depression. Tori was the doctor who handled the woman's care at Fairview University Medical Center. He later allowed the woman to move into his home, where he began a romantic relationship with her less than a year after she left the hospital, according to the board order.

The board eventually concluded that Tori was "unable to practice medicine with reasonable skill and safety" unless his work was monitored by a board-approved expert. Among other restrictions, Tori was ordered to pay a $10,000 fine, work in a group setting and complete a course on professional boundaries. Tori no longer works as a doctor i Minnesota.

In most cases, Minnesota's board prefers to take remedial steps by imposing restrictions or conditions on a problem doctor's practice. That often means taking classes, working under the supervision of another board-approved practitioner or undergoing counseling. The approach is part of the board philosophy: keep doctors working, retrain and supervise when necessary.

While some states might publicly discipline an addicted doctor or one with mental or physical issues, Minnesota typically refers them to a confidential counseling program, Leach said. If a doctor needs retraining, Minnesota often will issue a "corrective action," which does not count as formal discipline and is not reported to the federal database.

More than 20 percent of 363 board actions since 2000 ended in a corrective action, according to the Star Tribune's analysis of board records. The vast majority of those cases involved substandard care and overprescribing pain medications.

Patients can check out a doctor's credentials by visiting the board's website, which contains information on disciplinary actions dating to the 1970s. But the site does not provide malpractice payouts or adverse actions taken by other states, the federal government or hospitals -- information routinely disclosed in more than a dozen other states.

Some attorneys contend that Minnesota's approach favors physicians at the expense of public accountability.

"There could be a doctor with 30 or 50 complaints, and you wouldn't know it unless the board chose to take some action," said Minneapolis attorney Chris Messerly, who represented Zwaschka in her lawsuit against Carney. In many cases, he added, "you can't find out who is a good doctor and who is not."

Prone to 'poor judgment'?

In the specialized world of chemical peels, Patrick Carney considers himself one of the best in the business.

"This is my baby," he said in a two-hour interview with the Star Tribune.

The dermatologist, who started in 1988 with a one-office operation in Robbinsdale, now oversees 46 employees at six locations in the Twin Cities. He said he has helped "hundreds of thousands of people."

Carney occasionally appears on local TV to talk about skin care, and he promotes his products and services with online videos titled "Nip/Talk" and "Dancing Without Scars." In recent years, he has expanded his services to include cosmetic surgery, offering everything from tummy tucks to breast implants.

He has been disciplined once. In 2000, the Minnesota board accused him of engaging in "inappropriate conduct" with a female patient. Board records show he met the woman four times outside his office and accepted several gifts, including candy and cologne.

As punishment, Carney was reprimanded, fined $18,355 and ordered to practice with various restrictions, including having a female chaperone present during physical examinations of all female patients. He also was required to undergo a psychiatric assessment, which revealed a depressive disorder and a personality disorder with "narcissistic features," according to the 2000 board disciplinary order. He was found to be "prone to exercise exceeding[ly] poor judgment" and ordered to undergo individual psychotherapy.

The board reinstated Carney's full privileges in 2002, finding he met the state's requirements.

At least five patients have either sued Carney or pursued financial compensation for alleged harm under his care.

"Physicians unfortunately may have some patients that are unhappy with the outcome of their care," Carney said in a written response to questions. "Thankfully, I have hundreds of testimonies in cards and letters from patients that I have been fortunate to be able to help over the years."

About 40 percent of all physicians are sued at least once for malpractice in their career, but less than a quarter are sued twice or more, according to a recent survey by the American Medical Association. In Minnesota, the average malpractice award since 2000 has been $145,000, according to the newspaper's analysis of the National Practitioner Data Bank.

In 1998, Carney was sued by the family of Krista Vignali, who began taking the powerful acne drug Accutane while she was a 19-year-old college student. At issue was whether Vignali's acne was serious enough to justify Carney's prescribed treatment of the drug and whether he did enough to emphasize potentially dangerous side effects. Patients using Accutane are supposed to avoid getting pregnant because the drug can cause birth defects. Vignali became pregnant about the time she started the drug and later gave birth to a baby with birth defects.

"I felt very strongly that my responsibilities were met as a physician before prescribing the medication," Carney said in the interview.

In 2001, while Carney was working under board restrictions, the parties reached an out-of-court settlement of nearly $1 million. Carney said he reluctantly agreed to the settlement because a negative jury verdict "would have been devastating" to his business.

Sometimes, other doctors were called in to fix Carney's alleged mistakes.

Dr. Richard Tholen, a plastic surgeon in Minneapolis, removed a breast implant from one of Carney's patients in 2009. Carney had performed the surgery more than a week earlier, but the procedure was stopped because the patient was in so much pain, Tholen said. Tholen told the patient to contact the medical board about what had happened.

"I had to correct the half-completed procedure by not completing the procedure, but by undoing the problem he had created for her," Tholen said.

Carney declined to discuss the case, citing patient privacy laws. But he said pain management is "always a top concern," and he said it is standard to halt a procedure if a patient's "pain threshold is determined to be an issue."

Linda Bruhn, who picked Carney in 2010 because he offered a $500 coupon for a $5,000 tummy-tuck operation, recently filed a complaint against him in small-claims court because she wants surgery to correct his work.

"It looks like a shark has bitten me across the stomach," Bruhn said. "It's higher than my jeans, so no way I could hide it."

Carney declined to discuss Bruhn's case, citing patient privacy laws.

In 2010, Zwaschka contacted the board. She told regulators that the second-degree burns she suffered from Carney's work were so bad that she required more than two years of treatments from a plastic surgeon to reduce scarring.

Carney stated in court documents that Zwaschka was aware that scarring could result from the procedure. An appeals court upheld the jury award and its finding of negligence.

In her letter to the board, Zwaschka also provided details about five other patients, including a former employee who claims Carney was "reading out of a medical book" while performing a tummy-tuck on her in 2008.

The woman, who asked not to be identified because she works in the medical field, said a plastic surgeon repaired damage from the initial procedure and treated a post-surgical infection. She reached a confidential settlement with Carney, said John Dornik, her attorney.

Carney would not confirm or deny the settlement. He said the employee "was aware that I would be performing this procedure for the first time. I have no recall of using the text as a reference, however substantiating information by reviewing relevant reference materials either before or during a new procedure can be regarded as prudent."

Carney said he was contacted by the board in January about Zwaschka's complaint. "I am looking forward to meeting with them to provide factual information regarding the complaint," he said. Regarding the allegations in her complaint, Carney dismissed them as "just that, allegations."

Zwaschka said she has not heard from the board since last March, when a board investigator told her in an e-mail that her letter "raised a number of concerns and those concerns are being evaluated."

"I understand physicians do make mistakes -- they are human," said Zwaschka, now 48. "But I always felt if there was a pattern of behavior exhibited by a physician that that was the type of stuff the board should look at. I think in my case, there was a pattern of behavior."

howatt@startribune.com • (612) 673-7192 richm@startribune.com • (612) 673-4425

MINNESOTA BOARD OF MEDICAL PRACTICE

The board oversees physicians, acupuncturists, physician assistants, respiratory therapists and traditional midwives.

Board: 16 volunteers appointed by the governor, of which 11 are physicians

Number of licensed physicians: 20,036

Employees: 23

2011 fee revenues: $5.4 million

2011 expenditures: $3.9 million

2011 complaints against doctors: 728

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