By MIKE McINTIRE And JACK DOLAN
The Hartford Courant
April 30, 2000

Locked on the fourth floor of a Fairfax, Va., office tower is a little-known government database whose secrecy is zealously guarded by the medical establishment.

Called the National Practitioner Data Bank, it lists disciplinary actions, practice restrictions and malpractice payments totaling $25 billion against more than 100,000 doctors ?? one of every six in the country.

Dr. Eric Scheffey sits at the defense table, head in hands, awaiting the start of another malpractice case against him at the 55th District Court in Houston last month. Scheffey tops The Courant's list of practicing physicians in the United States with the most malpractice payments. Hospitals and HMOs can use the data bank to screen out doctors who might pose liability problems. But it is a federal offense to let patients check for doctors who might kill or injure them.

Doctors like orthopedic surgeon Eric Scheffey, known among residents in one Houston hospital as "Eric the Red" because of his reputation for performing bloody operations.

Or Gary Hall, a Phoenix ophthalmologist who damaged a patient's eyes so badly she says she can't drive.

Or Emmanuel Amayo, a former plastic surgeon in Michigan who paid more than $4.3 million to settle lawsuits alleging botched operations - including an unnecessary breast removal.

They are among the dozens of doctors identified by a Courant investigation that, for the first time, has unmasked physicians with the worst National Practitioner Data Bank records. The Courant uncovered the names by obtaining a "public use" version of the data bank, with identifying information removed, and matching the anonymous data bank dossiers to state regulatory records, court files and other public information.

At the head of the list are eight doctors who among them have made 571 malpractice payments totaling $55.7 million - and half of them are still practicing.

The American Medical Association, which has fought successfully to keep the data bank closed to the public, argues that malpractice payments are an unfair measure of a doctor??s abilities. Physicians fear that knowledge of even the smallest malpractice payments would scare away patients.

Patients like Judy Fernandez.

In the market for cosmetic surgery in 1997, the 47-year-old Orange County, Calif., woman interviewed physicians, researched news stories and even consulted the state medical board to find a doctor with a spotless record. She came away believing that Dr. William Earle Matory Jr., educated at Yale, Harvard trained and board certified, fit the bill.

But federal law prohibited Fernandez from discovering what The Courant has since learned about Matory's data bank file: It showed he settled a malpractice case for $32,500 three years earlier in Massachusetts, where he had been sued four times. Although the settlement was relatively small, Ruben Fernandez says it would have been enough to send his wife to a different doctor.

Instead, she entered Matory's New You Plastic Surgery Medical Group for liposuction, a face lift and other procedures at 7:30 a.m. on March 17, 1997. Twelve hours later she was dead, her blood so diluted by liposuction fluid pumped into her to loosen fatty tissue that a coroner found she had bled to death.

Fernandez's death ultimately cost Matory his license, but his data bank file now contains 22 entries and $1.47 million in malpractice payments. Even with his license revoked, the extent of Matory?s problems has been shielded by the confidentiality of the data bank.

"The whole system lends itself to hiding problem doctors," said Ruben Fernandez. "You should have the right to take whatever information is available and question the doctor about it, to get his side of it, and then decide for yourself what to do."

"My wife never had a chance to do that."

Shielded From Public

As of January, the data bank contained 228,000 records of malpractice payments, state licensure actions and hospital restrictions affecting 146,000 doctors, dentists and other medical professionals. Doctors account for slightly more than 100,000 of all practitioners who have been reported to the data bank since it was started in 1990.

The vast majority of those physicians have just one report on file, most often a malpractice payment of some kind. But about 400 physicians in the data bank have more serious problems, each with 10 or more reports on file, and together they account for $525 million in malpractice payments.

The secrecy of the data bank conceals not only the identities of these problem doctors, but also weaknesses in the regulatory system itself. Among The Courant?s other findings:

Doctors who hold licenses in several states can often keep practicing in one place even after running into regulatory problems in another. In West Virginia, for example, Dr. Oscar Irisari is a licensed obstetrician, despite making $4.4 million in malpractice payments and being suspended in New York and reprimanded in New Jersey.

Although hospitals are required to check the data bank when doctors join the staff and every two years thereafter, many doctors keep hospital privileges regardless of negative entries. After Colorado authorities revoked Dr. Kenneth Burres' license in 1989, he moved to California and gained privileges at six hospitals.

Even in extreme cases, some problem physicians are allowed to practice for years. Dr. Henry Saiontz, a neurologist, racked up 15 malpractice payments totaling $3.8 million before surrendering his Florida license in 1998. He moved to Maryland, where he maintains a restricted license.

Many former patients who pressed malpractice cases against doctors said in interviews that they never would have gone to those doctors had they known of their backgrounds. But confidentiality agreements that keep many malpractice settlements sealed, coupled with the secrecy surrounding the data bank itself, prevent patients from learning about their physicians?? legal problems.

Only government regulators and certain medical professionals can access the data bank, and the AMA has vigorously fought the occasional proposal in Congress to make the data bank available to patients.

U.S. Rep. Thomas J. Bliley, R-Va., chairman of the House Commerce Committee, championed legislation this year that would open the data bank to the public, but it already has been declared dead in the face of opposition from the medical lobby.

"Now is the time to open the data bank," said Bliley. "It is unconscionable that consumers have more comparative information about the used car they purchase or the snack foods they eat than the doctors in whose care they entrust their health and well-being."

Proponents of data bank secrecy argue that certain high-stakes specialties, like obstetrics, attract more lawsuits, and that some insurance companies settle groundless malpractice cases to avoid litigation.

AMA President Thomas Reardon said the data bank was intended to allow only regulators and hospitals to flag problem doctors who move from state to state, and the general public could misinterpret or overreact to the raw information contained within.

"Inclusion of malpractice settlement data in the data bank does not indicate that a physician has provided substandard care," Reardon said. "Even some of our nation's finest physicians who specialize in high-risk cases are involved in settlements."

"Unrestricted public access would lead to unfair scrutiny of some of our nation's most talented physicians," he said.

The few states that have moved to make malpractice information available provide disclaimers about its significance. In its online physician profiles, Massachusetts cautions that malpractice settlements "should not be construed as creating the presumption that medical malpractice has occurred."

Payments Pile Up

The debate over whether to open the data bank sharpens where small numbers of malpractice payments are concerned. The AMA, for instance, has proposed exempting physicians from the data bank who have just one malpractice payment - like Matory had when Judy Fernandez was checking him out.

Christine Hachey reacts with dismay after reviewing a list of malpractice payments made by her former eye surgeon, Dr. Gary Hall of Phoenix. The Scottsdale, Ariz. travel agent was unaware of complaints against Hall when she agreed to several eye operations, which a jury later found damaged her eyesight. Others believe all malpractice payments should be made available to public scrutiny. They note that physicians with a slew of payments started out at some point with only one or two. Dr. Sidney Wolfe, director of health research for the Washington-based watchdog group Public Citizen, said even one malpractice payment can speak volumes about a doctor?s competence.

The Courant's data bank analysis found that 3,600 doctors who had just one or two malpractice payments also had been disciplined in some way, indicating a recognized problem with their performance.

"Depending on the case," Wolfe said, "a single incident of malpractice can be very relevant in determining whether you want to go to that doctor.?"

Even if one or two malpractice payments could be written off as unrepresentative of a physician's competence, repeated payments over long periods are another matter, experts say. For instance, a pattern of smaller payments is probably more meaningful than a single large payment, said Thomas Croft, who administers the data bank for the U.S. Department of Health and Human Services.

"I think the frequency of the claims tells you more than the [dollar] amount," Croft said. "It's very possible that there are some very high payments in the data bank, where the physician absolutely met the standard of care. So I don't know that the dollar amount against any one doctor is so significant."

The Courant's analysis found a correlation between higher numbers of malpractice payments in the data bank and the likelihood that a physician has been disciplined. While only 4 percent of physicians with just one payment had been disciplined, 42 percent of those with 10 or more payments had a record of disciplinary action.

It is that kind of evidence that makes even defenders of doctors, like Hunter Allen, an Atlanta attorney who represents physicians and malpractice insurance companies, concede that" the abstract argument that malpractice payments don't mean anything doesn't hold up."

"I have spent my entire life defending doctors, health care providers and hospitals," Allen said. "Rarely a month goes by when I don't find myself reporting a good doctor to the data bank."

"But a doctor doesn't have eight, nine, 10 settlements in the course of a career without something being wrong."

Dr. Gary Hall in Phoenix had accumulated almost two dozen malpractice payments totaling $5.3 million before the Arizona State Board of Medical Examiners last year prohibited him from performing a certain type of eye surgery. The action came too late for Christine Hachey, a Scottsdale travel agent who won a malpractice verdict against Hall in 1997.

Hachey had no way of knowing it, but when she agreed to let Hall operate on her, he already faced complaints about eye surgeries that eventually resulted in four malpractice payments totaling $575,000, according to previously undisclosed data bank records.

Shown a list of Hall?s malpractice payments for the first time, Hachey studied it with the large magnifying glass she must use for reading.

"This really makes me angry," she said. "I never knew any of this. I can't believe the system is so secretive. How are you supposed to know whether your doctor is any good?"

On The Road Again

When state authorities finally do act, there's little to stop a doctor from moving on.

Dr. Jack Blum surrendered his California medical license in 1990 after authorities there concluded he had "self-administered" codeine and powerful anti-anxiety drugs.

Blum, a general practitioner, picked up and went to Texas, then to Georgia, then back to Texas, and finally to Canada, each time maintaining a license and hospital privileges before running afoul of licensing boards. Blum left an Ontario clinic in 1998 after administrators questioned 47 prescriptions for anti-anxiety drugs he wrote out to relatives, according to Canada?s Royal College of Physicians and Surgeons. His whereabouts today could not be determined.

Blum's data bank file is unusual only in its length. Many doctors who get into trouble in one state simply resume practice somewhere else, even though the main purpose of the national data bank is to prevent questionable physicians from moving state to state.

The Courant's analysis found that 1,079 physicians who lost their medical licenses in one state during the last 10 years retained a license in at least one other state. Sometimes, another state would react to the revocation with a less severe action of its own.

Hospitals - which are required to consult the data bank before hiring a physician and again every two years thereafter - are even less likely to restrict or report questionable doctors. Sixty-one percent of all U.S. hospitals have never reported a physician to the data bank, and there is anecdotal evidence that some disregard the information it provides.

"The data bank is a joke," said Hartley Hampton, a Houston trial lawyer who has sued several notorious Texas doctors. "The hospitals have access to it, and are fully aware of these guys" records, and yet they continue to extend privileges."

Consider the case of Dr. Kenneth Burres.

Burres packed up his belongings one night after work in 1987 and slipped out of Denver without telling his partner or patients. Colorado authorities revoked his license, accusing him of performing a back operation "with insufficient medical justification" and, in another case, removing the wrong spinal disc.

Today, Burres practices in California, where he enjoys privileges at a half-dozen hospitals, sits on the medical-legal committee of his county medical society and serves as an expert witness in malpractice trials. He has been sued by about a dozen patients who claim that, among other things, he performed or took part in needless back operations.

His data bank file now includes 19 entries, and Burres' malpractice insurance carrier has paid out $2.9 million to settle claims related to his California practice - settlements that are kept secret from the public by confidentiality agreements.

"I had no idea about any of those problems in Colorado before I went to him," said one patient, who said her settlement agreement with Burres prevented her from talking about the case.

The inconsistency in how physicians are treated state to state is evident not only in how licensing boards respond to allegations of malpractice. Even criminal accusations against doctors are sometimes handled differently from one state to the next.

New York and Connecticut, for instance, had starkly disparate responses to the arrest of a Southington pediatrician on a charge of fourth-degree sexual assault in 1995.

Dr. Arthur Blumer, a former town health director in Southington, was accused in 1995 of rubbing his groin against a young mother and touching her breast while examining her child. After being charged with fourth-degree sexual assault, he accepted a year of accelerated rehabilitation, which does not require a guilty plea, and the charge was dropped.

The Connecticut Department of Public Health ?? which heard complaints from other mothers, including one who said Blumer "entered a closed private shower room while she was taking a shower at a hospital facility" - put his license on probation for five years and required him to undergo therapy. He was allowed to continue practicing.

But across the state line in New York, where Blumer also maintained a medical license, health officials reviewed the same set of facts and voted to revoke his license. In so doing, the New York State Board for Professional Medical Conduct overturned a lower committee's suggestion that Blumer's license be put on probation.

Dr. Sidney Wolfe, the director of health research at Public Citizen, said a study by his organization in 1998 found that 45 percent of doctors with histories of sexual misconduct allegations maintain active licenses. But inconsistent discipline by state licensing boards and hospitals is not limited to certain types of cases, he said.

"States are really all over the lot when it comes to disciplining doctors, and there just is no excuse for it," said Wolfe.

"Licensing boards historically have not distinguished themselves when it comes to policing the medical profession."

Ruben Fernandez couldn't agree more.

After California authorities declared that Matory and his anesthesiologist, Dr. Robert Hoo, were "grossly negligent and incompetent" in the death of Judy Fernandez, her husband, Ruben, sent copies of the state's 66 page decision to every state medical board in the United States. He said he felt the need to do that because he could not be sure Matory would not find work someplace else.

Fernandez - who has settled his own malpractice case against Matory for $860,000 - said it should not have taken the death of his wife to force the details of her doctor's past into the open.

"Here was a case of someone going out of their way to investigate their doctor's background, and still information was kept hidden," he said of his wife. "She did everything right. And look what happened."