Mario Hernandez opened El Gallos Jiros in 1997 after working at a Chicago restaurant for seven years. Before that, he was employed at an aluminum-fabrication plant in California, where he also did a little yard work -- not the best of jobs, but better than selling eggs and produce in his native Mexico, which he left in 1984.
The Hernandez family lives across the street from the small but spotless restaurant. Expect to pay $5 or less for a meal -- taco fillers include asada, pollo, goat and beef tongue, with little more than cilantro, onion and lime wedges for garnish. There's not much English spoken here, and the jukebox is loaded with Mexican tunes that lend a festive touch.
El Gallos Jiros is clearly a family place, but something's missing.
Ask about Isabel, and Teresa Hernandez, Mario's wife, smiles sadly and points to an eight-by-ten photograph of the couple's eldest child that sits beside the cash register. Isabel used to help out here almost every day.
What happened to Isabel, who died nearly four years ago after a difficult childbirth, has spurred accusations and suspicions that have turned into lawsuits. On the advice of their lawyer, the Hernandez family isn't talking. Nor are officials at Touchette Regional Hospital in Centreville.
But court documents -- including affidavits, depositions and hospital records filed in lawsuits -- show what goes on behind the scenes at Touchette when things go horribly wrong. Allegations include poor quality of care, alteration of medical records and scapegoating between physicians and medical administrators.
Court files also show a hospital willing to cut a deal with a doctor whose skills have been called into question. And files show how much patients aren't allowed to know about the physicians whom they trust with their lives.
One thing is clear: No one wants to take responsibility for Isabel's death.
Isabel Hernandez was four months past her fifteenth birthday when her mother and a family friend drove her to Touchette. They'd never see her alive outside a hospital again.
Isabel was a typical patient for Touchette, a nonprofit hospital where many patients are poor and pregnant. Isabel was pregnant by the first boyfriend she'd ever had, according to her parents. She had visited Dr. Emeka O. Ekwulugo several times for prenatal care.
Now it was time for her to give birth.
Isabel was small, not quite five feet tall and less than 100 pounds. She went into labor at 8:30 p.m. on February 24, 1999. Twenty-six hours later, the baby still had not entered the world. He was too big for the birth canal.
With Isabel in her second day of labor, Ekwulugo took her to the operating room for a cesarean section. At 11:14 p.m. on February 25, 1999, Miguel Angel Hernandez was finally born. He weighed eight pounds, six-and-a-half ounces.
Most cesarean sections take less than an hour. That wasn't the case with Isabel's. After the C-section, her uterus wouldn't contract. Ekwulugo administered three different drugs over at least 40 minutes before her womb began to shrink. After childbirth, the uterus bleeds until it contracts, forcing blood vessels to close. Isabel lost a considerable amount of blood -- an estimated 1,200 milliliters, according to medical records.
Women who undergo C-sections are considered to be suffering postpartum hemorrhage, or excessive blood loss, after losing 1,000 milliliters, about one quart. But the 1,000-milliliter standard is conservative. And so Ekwulugo wasn't alarmed. Not yet.
An hour after Miguel was born, Ekwulugo ordered blood tests on Isabel. At that point, the doctor was still trying to make her uterus contract. A half-hour later, Ekwulugo ended the operation and called for the test results. They weren't good.
Isabel was anemic, with low blood counts showing reduced oxygen-carrying capacity in her blood. Before she gave birth, tests showed that her blood counts had dropped further. Ekwulugo says he ordered a blood transfusion, then sent Isabel to the recovery room at 1 a.m.
Isabel's condition crashed almost as soon as the girl arrived in the recovery room. She was gasping for air. Additional test results showed her blood counts were still dropping. Ekwulugo later said he'd never had such trouble with a patient. The stakes were clear: Isabel was fighting for her life.
The doctor called for a ventilator and asked for an anesthesiologist so he could return Isabel to surgery to make sure there was no internal bleeding. At 1:15 a.m., Isabel's blood pressure dropped to zero.
At 1:30 a.m., Isabel was given the first of three units of blood. Ekwulugo continued transfusions until 4:10 a.m., but she didn't improve. Though she had a pulse, there was still little or no blood pressure. And the anesthesiologist was nowhere in sight.
Ekwulugo had performed the cesarean section without an anesthesiologist. In an interview, he says that's customary at Touchette. A nurse anesthetist had assisted, switching from a local to a general anesthetic midway through the surgery when the uterus wouldn't contract, the doctor says. But Isabel's condition had become too grave for a second operation without an anesthesiologist.
Nurses and the hospital operator paged the on-call anesthesiologist several times after Isabel reached the recovery room, Ekwulugo says, but got no response. The doctor says he also asked for help from the emergency room. No luck. A recovery-room nurse was told "that as long as the patient had a pulse, the emergency-room physician, according to hospital policy, could not come and assist," Ekwulugo says in a sworn affidavit.
Ekwulugo was on his own.
At 4:30 a.m. -- more than four hours after Isabel lost blood pressure -- the anesthesiologist answered a page, the doctor says. He and his supervisor were at the hospital in twenty minutes, taking over from Ekwulugo to stabilize Isabel's condition so she could be taken into surgery. "[T]hey were managing the patient," Ekwulugo says. "I am just a general obstetrician. I don't deal with critical care."
At 5:30 a.m., a nurse reported that a "large amount" of blood had gushed from Isabel's vagina when her abdomen was gently pressed. Ekwulugo says that's normal for a woman six hours after giving birth -- just blood clots coming loose, he insists. By this time, Ekwulugo says, he was pretty sure that Isabel had sustained an amniotic-fluid embolism.
An amniotic-fluid embolism occurs when fetal cells, hair or debris from the amniotic fluid, which surrounds the unborn child, enters the mother's bloodstream and blocks vessels in the lungs. It's rare, unpredictable and usually fatal -- the mortality rate is between 60 and 80 percent.
Despite Ekwulugo's suspicions of an embolism, Isabel was wheeled into the operating room at 6:20 a.m. The doctor says he needed to rule out the possibility of internal bleeding, which would explain the decreasing blood counts and lack of blood pressure. Ekwulugo made the first incision at 6:27 a.m. Exactly 27 minutes later, the operation ended. So far as Ekwulugo was concerned, the mystery was over.
"I found out there was no bleeding," he says. "The uterus was dry and the abdomen was dry, so at that stage I was completely sure I have eliminated everything and the only thing remaining was the amniotic-fluid embolism."
It had been a harrowing night.
With Isabel in the intensive-care unit, Ekwulugo went home to take a bath.
Teresa Hernandez, Isabel's mother, has difficulty understanding English. But she didn't need a translator when she saw Ekwulugo come out of the operating room with the anesthesiologist.
Teresa says she was in a waiting room when a nurse brought out her newborn grandson and told her that everything would be fine. Then she spotted Ekwulugo. "Dr. Ekwulugo threw up his hands and said, 'I don't know what happened, I don't know what happened,'" Teresa says through an interpreter.
Teresa says it was her first inkling that something had gone terribly wrong with her daughter.
Dr. Darrell M. Ballinger, Touchette's head obstetrician, says Ekwulugo didn't mention Isabel when he called later that morning and said he wouldn't be coming in for his regular shift.
"He just said he had a tough night," Ballinger recalls in a deposition.
About an hour later, Ballinger received a call from a resident physician who was undergoing the final stages of her medical training at Touchette. The resident told Ballinger that one of Ekwulugo's patients was having trouble in the ICU.
"I said, 'Fine, I've got patients to see,'" Ballinger recalls telling the resident. "'I don't have time to talk about it. I will come over at lunchtime and find out about the situation.' ... I mean, I am busy. I've got my own schedule, got my own patients, and there is nothing I could do for the patient."
Ballinger says he didn't bother looking at Isabel's chart when he reached the ICU at noon. One look at Isabel told him that she was more than Touchette doctors could handle. "I could just look ... and see that they are pumping blood in her, they can't get a blood pressure up, they tell me her hematocrit [the percentage of blood composed of red blood cells, which carry oxygen] is dropping," Ballinger recalls. "I said, 'This lady is critically ill.'"
At Ballinger's suggestion, Isabel was airlifted to St. Mary's Health Care Center in Richmond Heights that afternoon. St. Mary's doctors reported that her heart was racing between 140 and 240 beats per minute. She had a fever. She didn't respond to pain. Her pupils were unequal in size. Sometimes she recognized her relatives and could answer questions. At other times, she was completely unresponsive. Her lungs, kidneys, liver and central nervous system were failing, which doctors believed was being caused by hemorrhagic shock, a condition that results from heavy blood loss.
Unable to pinpoint any source of bleeding, St. Mary's doctors weren't sure what they were dealing with. Possible diagnoses ranged from retained placenta to postpartum uterine infection to various types of blood infections to pneumonia.
St. Mary's doctors also checked for evidence of an embolism but reported finding no sign of amniotic debris in blood they took from a femoral artery.
Diagnoses based on blood aren't definitive. Contaminants within the lungs are considered the surest sign of amniotic-fluid embolism.
But the lungs can't be thoroughly searched unless the patient dies.
Three days after arriving at St. Mary's, Isabel underwent computerized axial tomography -- a CAT scan -- of her abdomen. That same day, a Touchette nurse wrote a memo stating that a hospital phone directory didn't include numbers for the anesthesiologist and his supervisor. Meanwhile, Ekwulugo says, he got a visit from Ballinger.
The CAT scan revealed two hematomas, collections of blood within body tissue. But the computerized image didn't help doctors figure out exactly what was ailing Isabel. There's also no clear answer as to what Ballinger and Ekwulugo talked about. Each physician tells a different story in court documents.
In an affidavit and a deposition, Ekwulugo claims Ballinger demanded that he rewrite Isabel's medical chart to show that the anesthesiologist had arrived promptly. He also says the head obstetrician insisted that the second surgery wasn't necessary because Isabel had sustained an unpreventable, unpredictable and virtually untreatable embolism.
Ballinger, Ekwulugo claims, was worried about legal liability.
Complications from amniotic-fluid embolisms include internal bleeding and can look a lot like what happens after a woman sustains a hemorrhage. The diagnosis of amniotic-fluid embolism is a common defense when an obstetrician is sued after a woman dies in childbirth. When lawyers say a woman died as a result of a hemorrhage associated with childbirth, the accused doctor often says an untreatable embolism caused the bleeding.
"Dr. Ballinger [said] he knew of a maternal death resulting from an amniotic-fluid embolism and that no suit had resulted from that incident and that since Ms. IH [Isabel Hernandez] had an amniotic-fluid embolism it would not matter whether the anesthesiologist was there or not and so it was OK for me to write in Ms. IH's notes that the anesthesiologist was present in the early hours of February 26, 1999," Ekwulugo says.
In a deposition, Ballinger insists he said nothing of the sort.
The head obstetrician says he doesn't recall just when he met with Ekwulugo -- indeed, in a deposition, he claims he can't remember the first time he read Isabel's chart but believes it was more than two weeks after she left Touchette. He acknowledges suggesting that Ekwulugo change the chart, but he insists he didn't tell the doctor to do anything improper.
Ballinger concurred with the diagnosis of amniotic-fluid embolism, but Ekwulugo had done a poor job of documenting Isabel's care. There were no postoperative orders on her chart to indicate what instructions Ekwulugo had given nurses. There was no explanation as to why Isabel needed the second operation. There were also no transfer orders to show when other doctors had taken over from Ekwulugo. Without accurate records, malpractice attorneys could have a field day.
"The mere fact that that chart is incomplete leaves the hospital and himself open for anything anybody could throw at them," Ballinger says.
Ballinger also couldn't understand why Ekwulugo hadn't kept trying to reach other doctors after he couldn't get help from the on-call anesthesiologist or the emergency room. "He could have called me," Ballinger says. "He could have called general surgeons. He could have called anybody in the hospital.
"He said, 'When you are in trouble, you don't want to get anyone else in trouble.'"
Ballinger says he told Ekwulugo to write down what really happened. "I said, 'If this is what you did, then put it in the chart, and don't be afraid of it,'" Ballinger recalls. "I am not going to tell him to lie. I am not going to tell him to misrepresent himself, because that will only get you in bigger trouble than telling the truth."
Ekwulugo says Ballinger repeated his demands in two subsequent meetings. Ten days after Isabel left Touchette, Ekwulugo changed the records.
Court documents don't show just what Ekwulugo wrote, but the doctor says his goal was to provide more details about the second surgery and "to be factually correct but not point fingers, which would create liability for the hospital because the anesthesiologist took over three hours to respond to his page."
The next day, Ballinger signed off on forms showing that he found Ekwulugo's care to be within hospital standards.
Unusual cases and ones in which doctors have provided questionable care are supposed to be reviewed, either in department meetings or in one-on-one sessions with department heads such as Ballinger. If care is substandard, department heads can refer the case to the hospital's medical executive committee, a group of high-ranking doctors with authority to launch investigations that can result in discipline.
Department heads are supposed to read medical charts before signing forms showing that a case has been reviewed. But Ballinger admits he may not have done that in Isabel's case. Nonetheless, he checked boxes marked "No further action necessary," indicating that he was satisfied with Ekwulugo's performance. He later said signing the forms was a mistake.
"I am trying to protect the doctor," he explained in a sworn deposition.
Protect him from what?
"From litigation," Ballinger answered in response to a question from Ekwulugo's lawyer.
Isabel started to improve the day before Ekwulugo amended her chart.
Doctors weaned her from her ventilator. Her fever went down. She was talking -- relatives say she often said, "Mama." She could smile, blink her eyes and squeeze hands.
But she was still very sick. Although she was partially paralyzed, she needed wrist restraints at night and was given a drug to control seizures. The day after Ballinger signed the forms, her fever returned. She had trouble breathing. By March 12, 1999, she was back on a ventilator. Surgeons opened her skull that day in an emergency operation to treat a hematoma that was pushing against her brain.
But Isabel was too far gone. She died the next day.
About two weeks after Isabel died, Ballinger says, he decided Ekwulugo posed a risk to his patients.
By then, the head obstetrician had reviewed Isabel's chart. In a meeting with hospital administrators, Ballinger said his concerns went beyond Isabel. Ekwulugo had provided questionable care in several cases, he says.
"In the interest of our patients, it was agreed that we must take some form of action," administrators decided, according to meeting notes.
Administrators told Ballinger to put together a list of cases in which Ekwulugo's performance had fallen short. One week later, they called Ekwulugo into a meeting and gave him a chance to resign. At the meeting, Ekwulugo was handed a letter from Ballinger to Dr. Jose G. Ramon, Touchette's chief of staff.
In his letter, Ballinger listed 24 women, including Isabel, who had received questionable treatment from Ekwulugo. The cases dated back to 1996, with allegations ranging from poor recordkeeping to downright bad doctoring.
Ekwulugo was given two days to respond to Ballinger's letter. Otherwise, there would be a full-blown investigation.
He didn't make the deadline.
Ekwulugo was granted an extension but still didn't respond -- he says he was busy with continuing-education classes. He also says the hospital wouldn't give him medical records so he could prepare a response to Ballinger's accusations. On April 22, 1999, Ekwulugo's privileges were suspended by the hospital's medical executive committee. The committee also voted to begin a formal investigation.
Suspension meant more than just not being able to practice medicine at Touchette. Federal law requires hospitals to report suspensions of longer than 30 days to the National Practitioner Data Bank, a list of physicians whose care has been found wanting or who have been defendants in malpractice lawsuits that were settled or won by plaintiffs. The databank is maintained by the U.S. Department of Health and Human Services in an effort to prevent substandard doctors from job-hopping. The databank is accessible only to employers and insurance companies.
The formal investigation could also spell trouble for Ekwulugo. Once a hospital begins an investigation, a doctor can't resign to avoid being reported to the databank, even if the investigation ends with the physician's resignation. Hospitals are also supposed to report physicians who resign in return for the hospital's not starting an investigation.
Four days after the committee suspended Ekwulugo, he met with Ramon.
Ekwulugo told Ramon that he hadn't been given a chance to respond to Ballinger's concerns. Ramon told Ekwulugo that he'd been given time to respond informally so that an investigation could be avoided. Now, the hospital had no choice but to begin formal proceedings that could cost him his job, Ramon said. He also suggested that Ekwulugo resign before an investigation reached any conclusions.
Emphasizing the seriousness of the situation, Ramon told Ekwulugo that one patient had died and another had nearly died in the cases Ballinger brought to the medical executive committee's attention. Meeting notes do not specify which cases Ramon was talking about.
Ekwulugo wouldn't quit. The medical executive committee retroactively converted his suspension to a leave of absence, deciding that Ekwulugo should have a chance to review medical records. But less than two weeks after converting the suspension to a leave of absence, the medical executive committee recommended tough punishment after hearing from an OB/GYN hired to review Ekwulugo's performance.
"Based on this review, the MEC [medical executive committee] finds that you have demonstrated: 1) poor documentation of patient records; 2) poor judgment in your medical practice; 3) an inability to recognize when you are exceeding your capabilities and when you should request assistance from others; and, 4) standards of care deemed unacceptable by your peers and colleagues," wrote Robert Klutts, hospital CEO, in a letter to Ekwulugo.
Besides recommending that Ekwulugo's privileges be suspended for one year, the committee said the doctor should not be allowed to return to Touchette until he'd gone back to medical school, obtained a year of obstetrical training and produced a letter from a med-school supervisor stating that he was competent.
Ekwulugo demanded a hearing before a panel of five Touchette doctors so that he could present a defense.
The deliberations of the hearing panel and exactly what evidence it heard aren't part of the public record. Under federal law, such peer-review proceedings are secret. The panel voted not to consider eleven of the cases after a doctor hired by the hospital reported that Ekwulugo's care in those cases was within hospital standards. After four hours of testimony and nearly three months after Isabel died, the hearing panel unanimously voted to recommend that Ekwulugo's privileges be immediately reinstated, with the requirement that he take a course in documenting medical care.
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.
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.
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.
That may be the case with Touchette.
In a malpractice lawsuit filed the year after Isabel died, Thomas Q. Keefe Jr., lawyer for Isabel's father, Mario, says Touchette shouldn't have granted privileges to Ekwulugo because of incidences of negligence, substandard care and improper medical charting that were known to the hospital.
Federal taxpayers, not Ekwulugo, could be on the hook for damages resulting from the malpractice suit.
Ekwulugo has been dismissed as a defendant because he was technically an employee of the federal government, which paid his salary through a public-health grant. Mario Hernandez has demanded at least $12 million.
Assistant U.S. Attorney James Hipkiss, who is defending the case in U.S. District Court in East St. Louis, declined to discuss the case. Richard Roessler, attorney for Touchette, also wouldn't talk. Although no gag order has been issued, Keefe also declined comment, saying that a judge has made it clear that lawyers shouldn't be talking to reporters.
In court documents, Keefe writes that neither Ekwulugo nor anyone else at the hospital controlled Isabel's bleeding during childbirth, nor did anyone summon a physician who could have saved her life.
Pathologists at St. Mary's concluded Isabel "most likely" suffered an amniotic-fluid embolism. On the basis of that autopsy, the St. Louis County medical examiner's office found that Isabel died of "multiple complications following disseminated intravascular coagulation [a blood-clotting disorder] and hemorrhagic shock after cesarean section." The official cause of death established by the county isn't much help, says Dr. Steven L. Clark, a Salt Lake City OB/GYN who is one of the nation's leading experts on amniotic-fluid embolisms.
"To some extent, that's like saying they died of cardiac standstill, which everybody does," Clark says. "She can bleed to death from standard obstetric causes, or she can bleed to death from amniotic-fluid embolism. Bleeding to death can mimic amniotic-fluid embolism, and amniotic-fluid embolism can mimic bleeding to death. You really have to go to the details in the clinical chart."
In Isabel's case, the chart has serious gaps and inconsistencies.
During a deposition in the malpractice case, Ekwulugo admitted that the first time he mentioned amniotic-fluid embolism in Isabel's records was ten days after she left Touchette and after he says Ballinger urged him to change the chart. Furthermore, the autopsy report prepared at St. Mary's on the basis of Touchette records doesn't match Ekwulugo's recollection. According to the autopsy report, Isabel was immediately returned to surgery after an anesthesiologist had trouble waking Isabel in the recovery room. Yet Ekwulugo says there was no anesthesiologist present and that Isabel didn't go back into surgery until more than five hours after her condition turned critical.
During the deposition, Keefe grilled Ekwulugo about clues pointing to a hemorrhage. Isabel's uterus wouldn't contract after she gave birth, which is the most common cause of postpartum hemorrhage. She was anemic before delivery, which meant she couldn't withstand the same level of blood loss as a normal patient. Blood gushed from her vagina five hours after she gave birth. Nursing notes show that Isabel was returned to surgery for repair of postoperative bleeding. And the autopsy showed Isabel had no amniotic debris in her lungs, which came as a surprise to Ekwulugo, who notes that a chart entry made at St. Mary's shows doctors found cells "possibly indicative of amniotic-fluid embolism" in a blood sample before she died. Isabel's autopsy report mentions no such finding.
Doctors are divided on whether an embolism is an appropriate diagnosis if pathologists find no amniotic debris in the lungs.
Dr. Kris Sperry, chief medical examiner for the state of Georgia, sees a bright line. "The absence of fetal squames [skin cells] and hairs and other amniotic debris would tend to make me look for other causes of deterioration and death, such as massive blood loss," says Sperry, who wrote an introduction to the 1986 republication of a landmark study of amniotic-fluid embolism in the Journal of the American Medical Association. Sperry, who has testified in malpractice cases involving amniotic-fluid embolisms, says he won't conclude an embolism has occurred unless there's proof that amniotic debris has entered the maternal bloodstream.
On the other hand, Clark says, the most exhaustive autopsy can come up empty, even when there's no question about the diagnosis. "We now know that depending on how many special stains you do and how many slices and cuts of the lungs you do, you can find a few of these things [debris] in just about anybody," Clark says. "By the same token, in at least a quarter of the women who die of what is indisputably amniotic-fluid embolism -- classic amniotic-fluid embolism -- even a carefully done autopsy doesn't find it."
Dr. Michael Benson, a Chicago-area obstetrician who has researched amniotic-fluid embolisms, says that a patient who lives for sixteen days after sustaining an amniotic-fluid embolism could metabolize debris so it wouldn't be found at autopsy. "There's a little bit of a debate as to whether you always need that material in the lungs to make that diagnosis," he says.
Like Clark and Sperry, Benson isn't familiar with Isabel's case or with Ekwulugo. But Benson says that physicians can't be trusted to police themselves.
"There is no meaningful peer review," Benson says. "We're not -- at this point, in my judgment -- capable of self-judging, period. The bias, in my judgment, is to kind of cover up or bury booboos. Interestingly enough, when it doesn't bury booboos or cover up, it doesn't treat the doctors fairly.
"The system is random and capricious."
Ekwulugo won't be delivering babies anytime soon.
He is working in the family-practice division of Hamot Medical Center in Erie, Pennsylvania, as a second-year resident, meaning he can't provide medical care without supervision. According to the hospital's Web site, second-year residents earn $41,455, about a quarter of what Ekwulugo was earning at Touchette. In an interview, the doctor says he no longer wants to be an obstetrician.
"I want to be a general practitioner," he says.
Future patients may have a tough time learning about Ekwulugo's disciplinary troubles. State-licensing databases accessible to the public in Ohio and Illinois show that Ekwulugo's medical licenses in those states have expired, with no record of disciplinary action.
The nurse anesthetist who assisted Ekwulugo during the cesarean section was fired shortly after Isabel left Touchette. Citing advice he's gotten from attorneys, the nurse won't discuss the reasons. His state nursing license remains in good standing, with no record of any discipline taken by the state of Illinois.
There's no indication that any anesthesiologist was disciplined as a result of Isabel's case. "Nobody complained to me about the anesthesia department, in this or any other case," Ramon says in a deposition. As with the nursing anesthetist, Illinois licensing records show that the state has never disciplined the anesthesiologist who couldn't be reached.
Meanwhile, Teresa and Mario Hernandez are raising Miguel, who will be four years old in February. They say they haven't seen their grandson's father in at least two years and don't know where he lives.
In a deposition taken last year, Teresa Hernandez says that Miguel looks at pictures of his mother every day.
She says she tells her grandson that his mother is in heaven.
When she does that, he hugs his grandmother and calls her Mom.