Standard of Care

When a childbirth went terribly wrong, the blame game began. Dodging responsibility was everybody's first order of business.

The hospital board now faced a choice.

If the board accepted the panel's recommendation, Ekwulugo would be back at work, with no report made to anyone outside Touchette. If the board chose stiffer discipline, the doctor might sue -- after all, a jury of his fellow physicians had found in his favor.

Administrators chose a middle course, negotiating with Ekwulugo in an attempt to secure his resignation with no lawsuits.

Emeka O. Ekwulugo
Emeka O. Ekwulugo
When Dr. Darrell Ballinger took a look at Isabel Hernandez, he knew her case was more than Touchette's doctors could handle.
Jennifer Silverberg
When Dr. Darrell Ballinger took a look at Isabel Hernandez, he knew her case was more than Touchette's doctors could handle.

They weren't successful.

Two weeks after Ekwulugo's colleagues recommended that he be reinstated, the medical executive committee appealed the decision to the hospital's board of directors.

Ekwulugo went to St. Clair County Circuit Court seeking an injunction to prevent the board from altering the peer-review committee's recommendation. He didn't get the injunction, but he did get an offer from Touchette.

The hospital would pay Ekwulugo $27,000, the balance remaining on his contract, if he resigned, according to a settlement agreement negotiated by attorneys for the hospital and the doctor. Furthermore, the hospital agreed to keep secret its misgivings about Ekwulugo, promising not to report him to the databank or discuss peer-review proceedings with anyone.

Mark Keaney, the hospital's attorney, says Ekwulugo's own lawyer recommended that his client sign the agreement. "The gist was that he wanted to resolve it in a way that wasn't reported in the National Practitioner Data Bank," Keaney recalls. "From the hospital's point of view, we were glad to accommodate him if we could do so."

But Ekwulugo refused to sign the agreement. He has since changed attorneys. Charles Douglas, one of several lawyers who has worked on the doctor's behalf, says Ekwulugo didn't sign because he still wanted to work at Touchette, where he was earning a base salary of $160,000 a year.

After negotiations collapsed, the board of directors approved a motion requiring Ekwulugo to take a course on documenting patient care before he could return to Touchette. Once he returned, the medical executive committee would monitor his medical recordkeeping for one year. Ekwulugo was still fighting for an injunction to prevent the board from altering the peer-review committee's decision, but he wasn't winning. After the judge informally indicated that he would rule against the doctor, Ekwulugo agreed to resign. In return, the hospital would tell prospective employers that Ekwulugo was still an active staff member whose medical documentation was subject to monitoring. No further information would be provided.

Five days after Ekwulugo and the hospital reached the agreement, Keaney recommended that Touchette report the doctor to the databank. Under federal law, hospitals that violate reporting requirements can lose immunity from lawsuits that arise from peer-review proceedings, typically from physicians who aren't happy with the results. The punishment is largely theoretical, however, given that no hospital has lost immunity in the twelve years since the databank was established.

Keaney says lawyers at Lewis, Rice & Fingersh, Touchette's law firm, determined that the hospital had a legal obligation to report Ekwulugo. Not so, say attorneys for Ekwulugo, who insist that the doctor's discipline wasn't serious enough to merit a report.

Ekwulugo discovered the listing eight months after the fact, when he tried to get a job in Texas. The doctor's attorneys asked the hospital to remove or amend the report because Ekwulugo would have trouble gaining privileges and a medical license in the Lone Star State. But the hospital wouldn't budge.

Ekwulugo filed a response with the databank stating that the listing was erroneous. But he still didn't get the Texas job.

After he couldn't find work as a doctor, Ekwulugo filed lawsuits alleging libel and breach of contract against the hospital, doctors and administrators who played roles in reporting him to the databank.

Ekwulugo has also sued Lewis, Rice & Fingersh, claiming the hospital's lawyers were part of a conspiracy to punish him for not covering up the anesthesiologist's absence.

"Initially they were telling Dr. Ekwulugo that it was an amniotic-fluid embolism and you couldn't do anything about it, to help the hospital and him," Douglas says. "But they were worried about this issue of calling the anesthesiologist and not getting any help. When he won't change the records to cover up, now he's a bad doctor and they're going to jump all over his butt. That's our whole case."

Douglas says the law firm was prepared to help the hospital fire Ekwulugo at any cost, then report him to the databank, regardless of whether he deserved it. "I think their motive was simply 'We're a big law firm and we win -- we don't lose,'" Douglas says. "'We know what our hospital wants, and we're going to say and do and help you in whatever way possible so we retain our reputation as a bigshot good law firm.' That's my opinion. My client and I think this law firm did wrong, and they should be punished for it."

The libel case hinges on whether the hospital followed the law in securing Ekwulugo's resignation and reporting him to the databank. Whether he provided appropriate treatment to Isabel is irrelevant, so far as Douglas is concerned.

"Frankly, I'm not even sure that Dr. Ekwulugo doesn't have some fault, but that's beside the point," Douglas says.

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