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DOCTOR VS. DOCTORS

A PHYSICIAN IN TRAINING SUES AFTER GETTING THE BOOT.

When he was booted from school, Terry Hamburg did what any student these days would do. He sued his teachers.

Except that Hamburg was no ordinary student. At the time he was shown the door, he was in the final months of the family-practice residency program at Presbyterian/St. Luke's Medical Center--on the home stretch of an exhaustive eleven-year odyssey through his medical training.

In a trial that ended two weeks ago, Hamburg, 42, charged that his teachers' evaluations were overly harsh and motivated by a personal grudge. When those poor evaluations were communicated to various agencies, Hamburg claimed his professional reputation was irreparably harmed, that he was denied all-important malpractice insurance and that he lost hundreds of thousands of dollars in potential income. (He has since found a job.)

This is not the first time somebody has sued over getting a bad rap from his bosses. Yet it is rare for a physician to be fired from postdoctoral specialty training, for several reasons.

Hospitals receive federal money for each resident they employ; fewer residents mean fewer dollars. In addition, there is an understanding among program directors--generally sympathetic doctors themselves--that terminating someone after a decade of specialized training can be extremely harmful to a doctor's career.

As a result, programs are reluctant to give their residents the boot, particularly as late in the game as Hamburg's dismissal. It is even rarer for a physician to work himself up into a lawsuit. P/SL's lawyer, Frank Kennedy, says Hamburg's lawsuit represents the first time ever that a doctor of osteopathic medicine has sued for getting booted from his residency.

Apart from being merely unusual, however, Hamburg's firing from P/SL's raises uncomfortable questions about how hospitals prepare physicians for their careers. Hamburg says his superiors had too much control over his career. On the other hand, if Terry Hamburg was as lousy a physician as his supervisors claimed, what's he doing practicing medicine?

According to the lawsuit filed in Denver District Court last year, Hamburg, a friendly man with a Roman profile and salt-and-pepper hair and mustache, graduated with a medical degree from the College of Osteopathic Medicine of the Pacific in 1990.

He was admitted to the P/SL Center for Health Sciences Education's family-medicine residency program in the summer of 1990. Like most other family-practice residencies, the program consists of a one-year internship followed by two years of more specialized residency training.

Hamburg completed his internship--an intensive year of frantic, hands-on learning about general medicine principles--in 1991. Nothing in the lawsuit suggests that he had particular difficulty completing the work.

In January 1992, however, Hamburg ran into his first problem with P/SL's director of family medicine, Dr. Louis Kasunic. That's when it came to Kasunic's attention that Hamburg was, in fact, not eligible to become a licensed physician.

In order to get a license to practice medicine, physicians must pass a series of national tests. Parts one and two are taken during the third and fourth years of medical school. Part three is administered during the first year of residency.

When it came time for Hamburg to take part three, however, he revealed that there was a small problem: He had not yet passed part two, even after taking it twice. Worse, he hadn't told anyone in P/SL's residency program. (Hamburg explains that when he filled out forms for his P/SL residency, he misunderstood the question about his board exams; he disclosed the exams he had taken, not those he had passed.)

Kasunic opted not to boot Hamburg from P/SL, even though at least one member of the hospital's Medical Education Committee testified at the trial that the omission was reason enough to fire Hamburg right then. Instead, Kasunic placed Hamburg on academic suspension--with his full pay of about $2,500 a month--and confined him to the library to study for the test.

Hamburg subsequently passed parts two and three. According to the state Board of Medical Examiners, he received his license to practice medicine in Colorado on July 16, 1992.

In the meantime, however, the directors of P/SL's family-residency program say that Hamburg continued to give them headaches. Charles Stephens, a Capitol Hill physician and member of the hospital's education committee, testified that reports to the committee about Hamburg's missteps represented "a continuance of problems" and "seemed to be a matter of discussion many times more than most other residents."

Medical records and testimony presented by the hospital showed that Hamburg occasionally didn't show up for rotations through training programs and that his documentation of patient treatments was inadequate. In addition, he was way behind on the academic thesis paper that all residents were required to complete. And when the paper eventually was turned in, "it probably wouldn't be acceptable at the high school level," said P/SL's Kennedy.

Other problems cropped up as well. In early 1992 Kasunic discovered that Hamburg was self-medicating himself with a narcotic and referred him to the Colorado Physician Health Program (CPHP). A psychiatrist there determined that Hamburg's home use of Percodan didn't represent any ethical lapses and that he didn't have an addiction. But she did conclude that he was using the drug for a medical condition that it was not intended for.

Hamburg concedes that his use of the drug "was ill advised--I'm not going to argue that point." But he adds that he has not self-medicated himself since.

Because of the difficulties, Hamburg's supervisors ordered him to stop moonlighting--a common practice among medical trainees who work outside their residency, usually in urgent-care centers or emergency rooms, for extra money. Hamburg explains that he continued the extra work because he needed the cash to pay for a series of infertility treatments for him and his wife.

Worst of all, at least according to P/SL's administrators, Hamburg just didn't seem to be getting family medicine. According to evaluations presented at the trial written by Kasunic and Stephen Blythe, the residency program's interim director for several months, Hamburg's performance in his family-practice rotations was consistently "average" or "marginal." "This is the lowest evaluation I've given a resident," Blythe testified.

On January 27, 1993, the hospital's Medical Education Committee met in a special session to discuss Hamburg. Members were given a long list of instances which purported to show that Hamburg's knowledge of clinical medicine was inadequate. (In one, he examined a forty-year-old man complaining of impotence and quickly asked the nursing staff to order injectable testosterone shots--even though, Blythe testified, such shots are not called for 90 percent of the time. Later, an intern examined the man and determined that high blood pressure and other factors were responsible for his impotence.)

The committee voted unanimously to terminate Hamburg from P/SL's family-practice residency program for "failure to progress"--less than six months before he was to graduate. Hamburg says he was outraged. "It just doesn't happen," he says. "You just don't go ten and a half years in your medical training and then get told you're not qualified."

Two days after canning Hamburg, Kasunic sent Copic Insurance Company, which was carrying the P/SL residents' liability insurance, and the American Osteopathic Association (AOA) notice of Hamburg's dismissal. Later, when Hamburg applied for insurance from Copic on his own, a physician representing the company called Kasunic to ask about Hamburg.

According to notes the physician took, Kasunic didn't give Hamburg much of a recommendation. He told Copic that the former resident was less informed than other residents, had no clue of his limitations, had been referred to CPHP for a drug evaluation and treatment, and was narcissistic. The company denied Hamburg's application for malpractice insurance.

Since then, Hamburg has found an insurance company willing to cover his work. And because physicians can still practice medicine if they don't complete a residency (the one-year internship and a valid license are all that's required), he eventually found work in an Arvada clinic with Dr. Robert Simon, where he says he enjoys a bustling practice.

Still, Hamburg claims that Kasunic has continued to attempt to scuttle his career. For instance, he says that Kasunic eliminated Simon's office as a rotation site for P/SL residents after the Arvada physician hired Hamburg. Kasunic responds that he wouldn't want someone who'd flunked out of his program to supervise other trainees.

In October 1993 Hamburg filed suit against P/SL, Kasunic and Blythe (who lives down the block from Hamburg and who in the past hired Hamburg's daughter to babysit). In it, he claimed that they had breached his residency contract, defamed him by giving inaccurate progress evaluations to the AOA and to Copic, and cost him hundreds of thousands of dollars in lost income because he could not now become certified as a member of the American College of Family Practitioners--a credential that is a bargaining chip for physicians looking for work.

During the trial, Hamburg's attorneys charged that Hamburg's supervisors had it in for him. "Dr. Kasunic did everything he could to destroy Dr. Hamburg's career," Debra Smith, one of Hamburg's two lawyers, told the jury. As evidence, Hamburg presented several evaluations from other supervising physicians during his residency who found his work above average and, in some cases, "exceptional."

The hospital's lawyers countered by arguing that those evaluations were not from rotations involving the work of family practitioners. Rather, they said, the glowing report cards were from medical specialists overseeing work necessary to the residency program yet not directly applicable to generalists. "The important thing is family practice, because that's what we're trying to train here," Kennedy said. "If you want to be an ER doc, go to an ER residency."

Last week, the jury cast their votes for Kasunic, Blythe and P/SL, and without too much trouble. It took them less than two hours to find that the hospital and its residency program supervisors had not defamed Hamburg when they communicated his poor evaluations to Copic and the AOA.

Still, in winning the case, the defendants indirectly raised the question of how someone unqualified to practice medicine at P/SL is still able to work. In his summary to the jury, Kennedy observed, "Everyone wants not just average medical care. They have a right to expect someone who is not just marginally qualified."

During the trial, Blythe struck an emotional chord when he told the jury that he brought his family into the P/SL family medicine clinic and that he didn't want someone like Hamburg treating them.

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