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Lewis, Rice & Fingersh says it hasn't done anything wrong. "The suit is without merit," says Keaney. "I think the belief is it will be dismissed promptly."
Regardless of merit, Ekwulugo's lawsuit has opened a window into the inner workings of Touchette and splashed substantial mud, both on the doctor and his targets.
The lawsuit has forced Ballinger to admit that he signed forms showing that he approved of Ekwulugo's performance because he was trying to protect a doctor he later claimed was a risk to patients. The lawsuit also reveals that Touchette officials offered Ekwulugo a deal that would have allowed him to leave the hospital without alerting other employers about proceedings against him. The lawsuit has also put parts of the secret databank into the public arena, raising questions about its accuracy and its effectiveness in flagging questionable doctors.
During a deposition, Ballinger admitted that he has been listed in the databank at least twice.
Before Touchette hired him in 1994, a Georgia hospital reported Ballinger after three of his patients suffered postoperative bleeding in one month. As a result, he was required to have another physician monitor him during elective surgeries for four months. Ballinger says the listing was expunged after he hired a lawyer, who convinced the hospital to remove the report. He was also reported for not revealing on an insurance form that his surgical privileges in Georgia were limited to gynecologic procedures. He says that, too, was removed from the databank. Ballinger says that he believes he was listed again as a result of a 1996 malpractice case brought after a baby born at Touchette died of sepsis.
Under federal law, hospitals must check the databank before granting privileges, and they must check each physician with privileges at least once every two years. In a deposition, Ramon, Touchette's chief of staff, says he didn't know that Ballinger had been listed before he started work at the hospital.
Ekwulugo had also been reported to the databank at least twice before he ever saw Isabel.
A hospital in Ohio reported Ekwulugo in 1993 after suspending his privileges "due to ongoing quality of care concerns." The action was classified as "incompetence/malpractice/negligence." Five months after the first listing, the hospital made a second report stating that Ekwulugo disputed the suspension and that no final decision was made on the substance of the concerns after the parties reached "an amicable resolution." Like Ballinger, Ekwulugo began working at Touchette in 1994.
In an interview, Ekwulugo says the hospital never expressed concerns about the Ohio report. Klutts, Touchette's chief executive, did not return a phone call.
Ekwulugo was also reported to the databank in 1996 by Group Health Plan in St. Louis, a health-maintenance organization, after his application for privileges was rejected (under federal law, denial of privileges is grounds for reporting). According to the databank, Group Health reported him because of the 1993 report and after checking with the Ohio hospital, which would provide no further information about Ekwulugo.
Ekwulugo didn't dispute the decisions to report him. In an interview, he says he was reported in Ohio after he refused to work in the hospital's clinic because the hospital didn't honor a promise to give him money to establish a private practice. "That was retaliatory, too," Douglas, his attorney, says. "When he started bitching, they started this thing. I think that this stuff happens a lot."
The databank contains the names of more than 100,000 physicians. Besides listings of disciplinary actions, the law says that physicians must be reported if malpractice suits against them are won or settled. Listings of malpractice cases account for about 80 percent of the databank. The American Medical Association has lobbied Congress to keep the list secret, arguing that it isn't an accurate gauge of medical skills. For one thing, physicians who are listed as a result of malpractice settlements may not have done anything wrong. Insurance companies may choose to settle cases for relatively small amounts rather than pay lawyers to defend physicians in court.
The U.S. General Accounting Office two years ago found several problems with the databank, including inaccurate information in 30 percent of the cases in which doctors had been reported after their privileges were restricted. Underreporting is also a concern. When the databank was formed, the AMA estimated that 10,000 physicians each year would be reported because their privileges had been restricted. In the first nine years of the databank's existence, 8,600 physicians had been reported for having their privileges restricted. Sixty percent of the nation's hospitals haven't reported any physicians to the databank.
Dr. Sidney Wolfe, director of Public Citizen's health-research group in Washington, D.C., believes that hospitals often tailor disciplinary actions to avoid listing doctors. Still, the databank is better than nothing and should be made public so that patients can learn as much as possible about physicians with whom they trust their lives, Wolfe says.
Wolfe notes that doctors can't check the databank before referring a patient to another physician. He also says hospitals that hire doctors listed in the databank are taking a chance.
"Any hospital that checks on that and says, 'Oh, we don't care about that' is a hospital that may be in some serious trouble if the person does the same kind of thing," Wolfe says.