Lisa Zenzen Baker, 1961-2003

E-mail: answersforlisa@hotmail.com

Saturday, November 30, 2013

It happened again


Ten years ago this week and after 21 days in a coma, Lisa Baker died in the hospital where she had been found in her hospital bed with a blood glucose level near zero. Medical records showed that nursing staff had not followed the hospital's own protocol following a mild hypoglycemic episode a few hours earlier.

Seven months later, a second patient with diabetes died in Samaritan Hospital in Troy NY.  As was reported on this page in 2007, the lawsuit filed in that case made allegations that were almost identical to those made in Lisa's case.

Here is the story about the second case, followed by an editorial about a hospital management that appeared to have learned nothing from Lisa's death.



Hospital settles lawsuit
over death of diabetic patient

Nurses failed to check patient’s 
blood sugar, according to the suit


By David Baker
September 7, 2009

A lawsuit in which Samaritan Hospital in Troy was accused of causing the death of an 81-year-old man with diabetes by failing to monitor his blood sugar levels was settled in 2007 for $125,000.

The lawsuit was brought by the family of R. Alec MacKenzie of Washington County.

According to the suit, MacKenzie had been transferred from a nursing home to Samaritan Hospital in June of 2004 for management of his diabetes and specifically his glucose levels, and his condition, which required insulin and close monitoring, was known to the hospital.

“On a previous admission to the hospital he had experienced mismanagement of his diabetes and physicians orders and hospital protocol was implemented for him relating to his glucose assessment and management and were in place at the time of his June, 2004 admission,” a document filed in the case says. “Unfortunately, the hospital staff failed to consider the physician’s orders previously written for him or the protocols established and as a consequence he was not property monitored in conjunction with his insulin glucose and nutritional management. His blood sugar levels were not timely measured and determined at safe intervals.”

According to legal papers, at 10:42 on the evening of June 25, 2004, MacKenzie’s blood sugar was found to be at 99 milligrams per deciliter of blood. This, the suit says, was a significant drop from a reading taken six hours earlier.

“However, in the face of that reduction there was no further blood sugar testing done until June 26 at 6:27 in the morning at which time Mr. MacKenzie was found to be comatose and unresponsive,” the document says. “The blood sugar reading at that time was 48 and when repeated was found to be 38.”

The suit says MacKenzie never regained consciousness and died seven days later.

A search of local newspaper archives produced no indication that the case was reported.

The lawsuit was filed in October 2005 on behalf of MacKenzie’s relatives by Troy attorney E. Stewart Jones. It was settled in August 2007.

The hospital was represented by Scott Johnson of  the Albany law firm Thuillez, Ford, Gold, Johnson and Butler.

-------------

Hospital changed nothing
after Lisa’s untimely death

The alleged negligence that preceded the death of Alec MacKenzie in Samaritan Hospital is shockingly similar to what, according to medical records, happened to Lisa  Baker in the same hospital just sieven months earlier.

She, like Mr. MacKenzie, had previously been a patient at Samaritan Hospital and was known to have volatile glucose levels. She, too, had a specific written physician’s order in her chart, instructing nurses to use a printed protocol on treating hypoglycemia. She, too, had a low glucose reading during the evening before she was injured. She, too, had no check of glucose levels done for several hours prior to being found unconscious.

Mr. MacKenzie was  “unresponsive” when found but there is no indication in the records that he was not breathing or that his heart had stopped. His glucose level was said to be 38 mg/dL.  In Lisa’s case, the damage was so severe that she had no pulse or respiration, and was immediately placed on life support. According to a notation made in a medical record at the time, her glucose reading was 2 mg/dL.

After three days in a medically induced coma the ventilator was removed and she briefly became semiconscious, unable to speak but able to respond to simple questions with hand squeezes.  But after only a few hours she was struggling to breathe.  She was put back on the ventilator and lapsed into a into a deep, irreversible coma.

She died two weeks later.

Samaritan Hospital’s management clearly had learned nothing from Lisa’s excruciatingly painful and totally preventable death.  Mr. MacKenzie’s case suggests a breathtaking arrogance rather than any desire to acknowledge mistakes and prevent them from happening again.  It seems that with an insurance company ready to defend every claim, no matter how obvious the liability, and a local print media that for 10 years has kept virtually every malpractice lawsuit off its pages, the hospital’s management saw no reason to stop the devastating financial and emotional toll of deaths and injuries within its facilities.

That prompts the question: How many more Lisa Bakers and Alec MacKenzies are there hidden in Samaritan Hospital’s records? Cases which for many reasons did not result in a lawsuit and so are not accessible in county clerks’ offices. We know that doctors and hospital managers – and even state regulators – are very unlikely to volunteer information about an error. In fact the opposite is true; as the next post shows, the state Health Department refused to provide details of its investigation of apparent negligence, even to members of the Legislature.

And wouldn’t  Samaritan’s  management have made big changes to the way a patient with diabetes is monitored if they knew that a lawsuit like that filed by Mr.  MacKenzie’s relatives would probably be reported in the newspapers?  Instead, it was right at that time that the huge number of Northeast Health advertisements in the Times Union prompted a letter to the editor and the publisher of the paper, asking them to explain the absence of any stories about lawsuits alleging medical malpractice filed against Northeast Health and other advertisers.

There was no response.

What exists here is an unconscionable culture of concealment. It has to end. That is why details of many of these lawsuits will soon be available on a new Web page  which – following  the discovery of the MacKenzie case – will start with those filed against the area’s largest healthcare provider, Northeast Health Inc.

In addition to Samaritan Hospital, Northeast also operates Albany Memorial Hospital, six adult daycare centers, five assisted living facilities, eight primary care offices and a home care organization.

And even if every lawsuit is revealed it would likely represent only a fraction of cases where there was negligence. Studies have indicated that as few as one in seven errors that cause death or serious injury result in a lawsuit.
***

Lisa died on December 2, 2003.  She was 42.

The web page referred to above is now online.  Its at: www.capitaldistricthealthclaims.com

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Monday, November 04, 2013

Doctor sues hospital


Disgraced doctor's losing
lawsuit over hospital job

Former gynecologist sued a Troy hospital for $1.5 million
 after he was fired for making a false entry in a medical record


By David Baker
Posted Monday Oct. 28, 2013
1,392 words

Correction appended 10/29/2013

Akiva Abraham, the former gynecologist who was sued in a now-settled lawsuit that alleged he performed an unnecessary and unauthorized breast surgery and who went to prison for insurance fraud stemming from an arson, had earlier filed his own lawsuit against another hospital after it fired him for making a false entry in a medical record.

Abraham’s suit, filed in Saratoga County in 2000, was against Seton Health Systems, the operator of St. Mary's Hospital in Troy, NY.  In it, he alleged that his dismissal was a violation of his employment contract.  He demanded $1 million compensation and $500,000 in punitive damages, and that Seton Health defend him and pay any damages in another malpractice lawsuit that named him, a group practice where he had worked, and Samaritan Hospital in which Abraham was alleged to have injured a woman during childbirth, causing a permanent disability.

Samaritan Hospital was later dismissed from the case.  The lawsuit is listed on the court system's web page as being ‘discontinued’ in June 2003, just before a scheduled trial.  It could not immediately be determined if there was a settlement.

Three years later, Abraham's lawsuit against Seton Health was dismissed on a motion for summary judgment – by the same judge who would later preside over a claim against Abraham and Samaritan Hospital that alleged Abraham left a patient disfigured while performing an unnecessary surgery, and that Samaritan Hospital was negligent when it granted and repeatedly renewed Abraham’s privileges.

That lawsuit – in which Susan Stalker of Waterford claimed she had been damaged when Abraham removed a large amount of tissue from her breast without her consent while she was sedated when he was scheduled to perform only a needle biopsy – was reported on this blog's sister web page exclusively in February 2012. The lawsuit, which also made the unusual claim against Samaritan Hospital of ‘negligent credentialing’ ended in August 2012 with a settlement on the first day of trial after a six-year legal battle.  By then Abraham, who had no malpractice insurance cover, was in prison and had filed for bankruptcy, making Samaritan Hospital effectively the only defendant.

Abraham's claim against Seton Health alleged that the hospital breached a contract of employment that was signed in June 1998. The three-year deal called for Abraham to be paid $175,000 a year, plus a signing bonus of $10,000.  An addendum signed in December 1998 required Seton Health to reimburse Abraham the cost of additional “tail” malpractice insurance at $5,313 a year.

“Tail” policies cover claims received after a period of insurance has ended for incidents that occurred prior to the start of the tail policy, by extending the reporting period.  In this case, the tail policy would have covered the time Abraham was with OB/GYN Heath Center Associates – from which had been fired – for claims received after he started work at Seton.  Abraham's complaint alleges that Seton failed to provide the tail policy.

This insurance cover would later become the subject of yet another lawsuit, filed in Nassau County by Physicians Reciprocal Insurers against Abraham.  The insurer claimed it was not liable to defend Abraham or pay any damages in the injured mother case once Samaritan Hospital was no longer a defendant.  The insurer was initially ordered by a state Supreme Court judge to provide the coverage but a Second Department Appellate Division decision reversed the trial court ruling.

In the decision that dismissed Abraham’s claim against Seton, Supreme Court Justice Stephen A. Ferradino said that Abraham had falsified a medical record.

“It is undisputed that (Abraham) made entries on the patient’s medical chart that did not accurately reflect the services he provided to the patient,” Ferradino wrote. “Most notably he indicated he conducted a full physical examination of the patient and took all of her vital signs when in fact he only palpated her legs and pushed on the patient’s belly.”

Ferradino said the patient had been brought to the hospital from a nursing home and was unable to speak due to a prior stroke, but that there were witnesses to Abraham’s actions.

“That examination was conducted in the waiting room in the presence of a receptionist and an ambulance crew member.  Additionally, an erroneous billing code was entered for the services at (Abraham's) direction.”

The billing entry was questioned by staff but Abraham refused to change it, Ferradino wrote.  It was later corrected after a nursing supervisor brought it to the attention of management.

Dismissing the claim, Ferradino said the wording of the contract Abraham signed was very clear.  It said he could be terminated by “(a)ny conduct or practice by Physician that, at the sole discretion of the Employer, does not comply with the highest ethical standards of the medical profession.”

In an affidavit filed in the case, Mark Donavan, who at the time was Seton’s chief executive officer, said: “The documentation of performing a physical examination when one had not been done is completely unacceptable.  It does not comply with any ethical standard in the medical profession.”

And the incorrect billing entry could have exposed the hospital to a charge of Medicare fraud, Donavan said in the affidavit.

In his own affidavit, Abraham claimed that the ‘level 5’ billing – the highest option – was justified because it reflected a combination of several different examinations of the patient.

“According to the paperwork I had, there were many different areas covered in the various charts and a single chart did not have her full history and physical all in one," Abraham wrote. "When I created the office chart, I  consolidated all of the information into a single chart.”

On the issue of the insurance coverage, Abraham said in a deposition that he expected the hospital to purchase the policy for him based on a verbal agreement, despite the wording of the addendum to his contract, which said that Seton would reimburse him for the premium only after he provided proof that the insurance had been obtained.

But despite that, a payment of $5,313 was made to Abraham without any evidence  of coverage, according to a legal document filed by Seton’s attorney.

“Although Plaintiff did not provide proof of having obtained the tail insurance policy from PRI, Plaintiff had asked Denis Laraway, Chief Financial Officer, for an advance for the premium as he did not have enough funds to make the first installment,” Colleen H. Whalen wrote in an affidavit.  “Although Plaintiff claims to have sent a check to PRI in February 1999 to purchase the tail insurance coverage, he never received any confirmation of PRI’s receipt of payment or of obtaining the tail coverage.”

Abraham was fired by Seton Health/St. Mary's Hospital in January 2000.  His lawsuit against Seton was dismissed in January 2004.  During that time he continued to have privileges at nearby Samaritan Hospital, operated by Northeast Health, Inc., (now a part of St. Peter’s Health Partners).  Two months after his lawsuit ended, he performed the procedure on Susan Stalker that led to her lawsuit against him and Samaritan Hospital.

In 2005, the state revoked Abraham's medical license for 34 counts of misconduct and gross misconduct, none of them related to the Stalker surgery or Samaritan Hospital.  One of the counts alleged that he falsified a medical record during his residency at Albany Medical Center Hospital.  He also was accused of having sex with a vulnerable patient in a waiting room at St. Peter's Hospital.

His appeal of the revocation was denied.  In 2010 he was convicted of insurance fraud and sentenced to 4 to 12 years in prison for telling an insurance company that he did not know the cause of a fire at a nightclub building in Colonie he had purchased two weeks earlier with a bogus $475,000 mortgage. An earlier trial on a charge of arson had ended with a hung jury.  During that trial, prosecutors said flame logs and four gallons of a fire accelerant Abraham had purchased three days before the fire were found at his home.

In 2011, the state Labor Department began proceedings against Abraham, claiming he had made improper deductions from the paychecks of people who worked for a nurse staffing agency he started after losing he medical license.  It ordered him to pay $331,000.

And earlier this month, arguments were heard in Abraham's appeal to the state's highest court, the Court of Appeals, of his fraud conviction.  A decision is expected in mid December.
***

Read the initial story on the Susan Stalker lawsuit HERE

Saturday, November 02, 2013

Missed red flags


Withheld or ignored information
preceded a doctor’s malpractice

Credentialing documents raise questions about the
process of granting hospital privileges to doctors

By David Baker
Posted Monday, November 4, 2013
934 words


Three doctors at Albany Medical Center indicated in response to a request by St. Mary’s Hospital in Troy, N.Y. for a reference for former gynecologist Akiva Abraham that they knew of no disciplinary action against, him, even though Abraham had been placed on probation by Albany Medical Center Hospital for making a false entry in a medical chart.

One of those doctors was Myron Gordon, who was chairman of the OB/GYN department at Albany Medical Center during Abraham’s residency there in the mid 1990s.

One of the questions on the form filled out and returned by Gordon asks: “Are you aware of any instances in which the applicant ever had privileges revoked, suspended, reduced or denied or any circumstances in which disciplinary measures were directed or contemplated against the applicant at your facility or any other medical facility?”

Gordon checked “No.”

Another question on the form was: “Has the applicant been involved in any professional misconduct proceedings?” Again, Gordon checked  “No.”

Two other doctors then at Albany Medical Center, Donald Swartz and Robert Lobel  – who Abraham had listed as references – also indicted that they knew of no disciplinary actions against Abraham.

But despite these responses, St. Mary Hospital did know when it decided to hire Abraham he had been disciplined.  In a letter dated June 1998 to then St. Mary’s president and CEO Edward G. Murphy, Dr. Anthony Levatino, who was assistant residency program director at Albany Medical College, wrote: “Dr. Abraham was placed on probation at one time during his residency for entering information on a medical record that was not verified by personal observation.”

However, other legal documents say that Abraham wrote in a medical record that he had examined a patient when another physician had done the examination.

Abraham’s application to St. Mary’s and the responses from the doctors are among confidential documents that were a part of the hospital’s credentialing process.

Abraham was fired by St. Mary’s Hospital for writing in a medical chart that he had done a full examination of a patient when he had not done so.

Another reason given for his termination was a false statement on his application.  In response to the question “Have you ever been denied membership or renewal thereof, or subject to disciplinary action in any medical organization?” Abraham checked a box marked “No.”

Abraham was appointed to the staff at St. Mary’s in June 1998.  In January 2000, he was fired.  As is reported in the previous post on this page, he then filed a lawsuit against the hospital, claiming $1.5 million for breach of his employment contract.  The suit was dismissed on a motion for summary judgment in January 2004.

At the time he was fired from St. Mary’s Hospital, Abraham also had privileges at nearby Samaritan Hospital.  These privileges were last renewed in 2002.  In 2006, Samaritan Hospital was named in a lawsuit in which in was alleged that in 2004 Abraham performed an unnecessary and unauthorized surgery on a patient without her knowledge that left her with a disfigured breast. The suit also alleged that the hospital was negligent when it granted and renewed Abraham’s privileges. In its defense of that lawsuit, Samaritan Hospital claimed it had carried out all the required checks on Abraham, which included verifying information provided by him, and had found no reason not to renew his privileges.

But other documents suggest a less then rigorous check.  During Abraham’s lawsuit, St. Mary’s Hospital served a subpoena on Samaritan for a copy of its credentialing file on Abraham.  It produced a response from a Samaritan Hospital lawyer, objecting to the disclosure of the file.

The subpoena, which made Samaritan Hospital aware of Abraham’s lawsuit relating to his termination, was served in August 2001, several months before Samaritan renewed Abraham’s privileges.  An examination of publicly available legal documents would have revealed that Abraham had been accused of falsifying medical records at two different hospitals.

Also, at the time of each renewal of Abraham’s privileges, the hospital was a co-defendant with Abraham in an active lawsuit in which Abraham was alleged to have injured a woman during childbirth, and from 2001, in another lawsuit naming him and the hospital over the death of a woman during childbirth that was settled in 2004 for $1.4 million.

Samaritan Hospital’s credentialing file on Abraham is protected from disclosure by state law so it cannot be determined if Abraham acknowledged the existence of these lawsuits, his firing by St. Mary’s or the disciplinary action imposed by Albany Medical Center in any of his applications to Samaritan for privileges. But in a legal document in the negligent-credentialing case, lawyer William C. Firth with Thuillez, Ford, Gold, Butler and Young, which was representing Samaritan, stated that the hospital had checked with all the facilities where Abraham had privileges and those checks “…failed to unveil any issues concerning his medical care and treatment.”  Regarding any pending lawsuits, Firth wrote that “Dr. Abraham provided the required information.”  The lawyer also stated that during the time Abraham had privileges at Samaritan, “…his privileges were not restricted or suspended by any other facility.”

He was fired for misconduct by St. Mary's Hospital during that time.

In August 2012, Samaritan settled the claim alleging Abraham’s unnecessary breast surgery for an undisclosed sum.  By then Abraham – who had no malpractice insurance for his defense and no lawyer – was serving a 4- to 12-year prison sentence for insurance fraud stemming from a fire that destroyed a commercial building he had purchased with a bogus mortgage.  His appeal of that conviction was denied by a mid-level appeals court.  A decision on his further appeal to the state’s highest court, the Court of Appeals, is expected in mid December.