But for the first five months of her son's life, Sharon Randel watched the healthy baby fat on her child's limbs waste away. For two years since then, she has questioned how his doctor--and the secretive, highly powerful board that governs the doctor's license--could have let this happen.
Little Gregory, born full-term on January 23, 1997, at seven pounds, eight ounces, had been a poor eater from his earliest days at the hospital. He had a strong sucking instinct, but tired easily when nursing. By the time he was two months old, Greg was in the bottom tenth percentile on the growth chart that doctors use to monitor a baby's weight gain to make sure it is consistent with other children of the same age. His older brother and sister had been large, robust babies.
Instead of growing stronger and more responsive, as a healthy infant would, Greg was lethargic, didn't seem alert and couldn't hold his head up. His cry was weak, startlingly weak.
During those first five months, Randel took Gregory to his pediatrician or one of his pediatrician's partners nineteen times, repeatedly expressing concerns about his low weight gain. His stools, once mucusy, had dwindled to nearly nothing at all. The pediatrician, Stephen Fries of Boulder, never ordered tests and noted in his records in March that "Greg is not eating too well and Mom continues to be worried about it...He looks like he is well-nourished and is nicely filled out. He is not a very big child."
By early June, when Greg was four-and-a-half months old, Randel again went to see Dr. Fries, who had been the family's pediatrician for more than twelve years. "I was still concerned about eating and constipation," she recalled in a hand-written synopsis of their visit. "Dr. Fries said he's okay. He said, see you at his six-month checkup.
"At home during this time, Greg was doing worse. He would just lay on the floor. Greg did not move much, even when I was holding him. My worry increased, along with worry from many neighbors and friends."
A week later, Randel's husband, Bill, a physicist and atmospheric scientist, once again took Greg to the doctor. Fries told him that Greg's mother was probably "suffering from some post-traumatic stress disorder due to the stillborn death of her other child" seven years earlier, "and I think that she is really having a hard time dealing with that," according to Greg's medical records. "The dad said that he is helping her through that, but they would really like to know if there is anything going on with this child."
A day or two later, Randel consented to a call from a psychologist at the Mental Health Center of Boulder County. The woman asked Randel how she was feeling. "I remember telling her I was upset and worried about my son Greg," Randel recalls. "I said he's not eating and can't hold his head up, and they think he's fine. I said, 'I am anxious and panicked.'" The psychologist advised Randel "to come in to see her and talk about these feelings. I said I am worried about my baby; if I am still worried after the second opinion, I will call her."
Randel contacted the family's health-insurance company to ask for another assessment of Greg's condition but was told that would require a referral from the baby's primary-care provider--in other words, Dr. Fries. Fries referred her to a partner in his practice but, unsatisfied with that visit (the doctor received an emergency phone call in the middle of the exam and had to rush off to the hospital), Randel asked for yet another referral. On June 14, Fries suggested calling the second-opinion clinic at Children's Hospital in Denver.
Three days later, Greg was seen by a medical resident and Dr. Barton Schmitt, director of general pediatric consults, at Children's Hospital. Moving his hand along the baby's belly, the resident found a hard mass ten centimeters long. Schmitt rolled a latex glove onto his hand and examined Greg's bottom; the anal opening was one-fourth the size it should have been for a baby his age. Greg actually suffered from anal stenosis, an abnormal narrowing of the anal opening.
On June 20, after tests to confirm the mass was not a tumor, Greg went into surgery and doctors pulled a large clump of hardened stool from his intestine, enlarged the anus and repositioned it over the rectum. The baby's intestine was found to be inflamed, Randel recalls, and doctors told her it was starting to break down.
Schmitt's report on June 19 noted that Greg was showing a "failure to thrive." The baby's placement on the growth chart--by now he was in the third percentile--"seems to be due to poor appetite and inadequate intake," Schmitt wrote. Children's Hospital also found that Greg had suffered "developmental delays with central hypotonia," or muscle weakness.
On June 23 Randel phoned the Boulder psychologist who had contacted her a few days earlier. "I am very concerned about the fact that you question a mom's worry without clinically checking out her baby," Randel recalls telling her. "I am very angry now! Do you want to help me with this new feeling?"
Today a smiling, tow-headed two-and-half-year-old, Greg still walks a bit wobbly and must take all of his nutrition through a tube inserted in his stomach, since he cannot yet eat solid foods. In and out of hospitals since his first operation, Greg now undergoes physical, occupational, feeding and speech therapy four days a week. His family sees him gaining strength and hopes his physical developmental delays will soon vanish.
At the famed Mayo Clinic in Minnesota, a pediatric neurologist noted that Greg's problems were caused "if not completely, in part by the malnutrition caused by the GI [gastrointestinal] problem he has suffered since birth." Still, it's not absolutely certain that Greg's continuing inability to eat normally and other medical problems could have been avoided by earlier intervention by his pediatrician.
The Randels spent months convincing their insurance company to cover Greg's testing, treatment and therapy costs dating back to the start of his medical troubles. In August 1997, at the suggestion of a physician friend, the Randels filed a complaint with the Colorado Board of Medical Examiners, the government-appointed body that both licenses and disciplines physicians.
By December 1997, an inquiry panel for the board took the uncommon step of forwarding Greg's case to staff members for a formal investigation. Ten months later, the investigation results were sent to the Colorado attorney general's office "for the commencement of formal proceedings against Dr. Fries' license to practice medicine," according to a letter the Randels received from the board.
But in April--a full twenty months after they sent their original letter--the Randels learned that the complaint against Fries had been dismissed. "Dr. Fries has obtained three pediatric experts who are willing to testify on his behalf that his care of your son was not substandard," the board wrote. "In light of the fact that numerous physicians with impressive qualifications were willing to testify in this regard," the board's attorney decided to ask another "well-respected pediatrician" and previous boardmember to look into the matter. That doctor did not feel she could "testify under oath that it was substandard...The panel felt it did not have the necessary legal basis to go forward in prosecution of this case."
The letter also noted that "the Panel still has very strong and serious concerns regarding Dr. Fries' care and treatment of your son which have been directly communicated to him." However, as in all cases, it was the panel--not the attorney general's office--that made the final decision to dismiss the Randels' complaint.
Bound by the rules of physician/patient confidentiality, Fries cannot comment on the specifics of Greg Randel's case. But he reiterates that four pediatricians--including Dr. Schmitt--responded to the medical board's query on his behalf, stating that Fries's "care was appropriate and did not deviate from the standard of care," he says.
It's not uncommon for anxious parents to worry that their child is too thin or not growing fast enough, Fries explains; the physician must take into consideration both the child's weight and height to determine if they're proportionate. Some children--and adults--are simply destined to be smaller than others.
But the anger that Sharon Randel told the Boulder County psychologist about has not subsided. Although she had trusted him with her children's health for a dozen years, Fries "was clearly not listening to a mother," she says. "What concerns me was that I went to a pediatrician as a baby's caregiver. I go in with these observations and they're repeatedly dismissed. Greg was clearly going downhill and not a single test was done. Is this the type of care we want for our children?
"This is the most critical time in a baby's life," she adds. "Our child paid a very big price in his infancy."
Until now, only neighbors and close friends have known what the Randels went through. "It was traumatic for the family. You didn't know what condition you're going to find the baby in in the morning," says Randel, whose older children are now seven and fourteen. Randel has not resumed her job as a residential designer because of her son's medical needs. And although they are now seeing a new local pediatrician for routine health care, the Randels often consult out-of-state specialists for Greg because their confidence in Colorado doctors has plummeted.
"How are we going to prevent this kind of thing from happening again?" asks Randel. "That's why we went to the board with our complaint. And now--should I just get 500 moms to march in the streets?"
In American vernacular, the term "lawsuit" generally follows on the heels of "medical malpractice." But only one in eight victims of medical error even consults a lawyer, according to a 1990 Harvard study often quoted by attorneys and insurance companies. Just a tiny fraction of those will see their cases tried in court before a jury.
Most will lose.
Of approximately 230 medical-malpractice cases that have actually gone to trial in larger cities along the Front Range since 1983, nearly 90 percent were found in favor of the doctor, says Randy Paulsen, a plaintiff's attorney who has analyzed local trial outcomes. "Juries love doctors," he explains. "They want their kids to grow up and marry one."
Colorado's tort reforms in the mid-1980s drastically limited the amount of money a plaintiff could win in a medical-malpractice suit. Damages against a hospital or physician are capped at $1 million; of that, no more than $250,000 can be awarded for non-economic loss or injury.
But most victims of medical error don't sue for the money anyway, the Harvard study found. Three-quarters of those who file a lawsuit do so because they feel let down and emotionally abandoned (the doctor didn't express guilt or even regret), want to know the truth of what happened to them medically, or want to make sure that no one else experiences what they went through.
Other than the courts, the only way Coloradans can take action against a physician they feel has provided poor care is to file a complaint with the Board of Medical Examiners, made up of nine physicians and two members of the public (currently an attorney and a history professor). With support from a ten-member staff, the board is charged with granting licenses to Colorado's 16,000 physicians and osteopathic physicians and 800 physician assistants; it also writes physician guidelines on critical issues such as euthanasia and is responsible for deciding when and how to discipline doctors.
The board is part of the Colorado Division of Regulatory Agencies, which grants and oversees 221,000 licenses for more than thirty occupations, ranging from hearing-aid dealers and veterinarians to stockbrokers, manicurists, acupuncturists and plumbers. Midwives and nurses have their own boards, as do optometrists, therapists and dentists. Medical-board members are appointed by the governor for four-year terms; Governor Bill Owens will eventually fill two seats that expired in May.
The entire board meets in public session four times a year. Privately, it splits into two closed-door inquiry panels, A and B, to discuss the nearly eighty complaints against doctors that arrive in the board's mailbox each month. Boardmembers receive the grand sum of only $50 per meeting, but the position pays off in prestige. "This month's agenda was 1,200 pages," says Louis Kasunic, a family practitioner in Castle Rock who is serving his eighth and final year on the board. "That's 1,200 pages I have to go through after a full day's work and after my kids go to bed."
The board deals only with medical matters; complaints about a doctor's billing or fees go to the consumer protection section of the attorney general's office. Unlike a malpractice lawsuit, no money is involved in a consumer complaint against a physician.
Medicine has changed a great deal since the board was founded in 1881--but the nature of complaints has not. "It's just astonishing to me," says Susan Miller, administrator for the board. "The problems really haven't changed. You see instances of bad care and impairment problems" such as drug abuse. "Then, it was just different drugs of choice. What they viewed back then as the snake-oil salesman/quackery kind of stuff--well, today only the kind of quackery has changed."
When the board receives a complaint, it forwards a copy to the accused physician, who must return a written response within thirty days. The complaint and response--which is usually written by a lawyer and can't be seen by the patient--then go to inquiry panel A or B.
"At that point," Miller explains, "they can dismiss it and say, 'Even if these allegations proved to be true, it would not rise to the level of an action we believe warrants discipline of the physician.' Or they can say, 'Even if it was proven to be true, it doesn't in and of itself constitute a violation.' It's kind of a fine line there," she says. "The board might conclude that the patient didn't receive optimal care, but it wasn't substandard care."
Cases can be dismissed with a "letter of concern," seen only by boardmembers and the physician and kept confidential from the public. A letter of concern might explain that the boardmembers don't "believe that the doc provided the best care that they could have--and [boardmembers] want to put the physician on notice that they expect him to do better in the future. They try to use it as an educational tool to say, 'We think you could improve here, and we'd like you to assess how you're doing,'" Miller says. The board does keep tabs on these physicians. "If we're seeing a physician who got a letter of concern one month, and six months later we see them again for the exact same thing, the board's not very happy about that. And sometimes what we can do legally is bring that case back."
The board must enforce the state's Medical Practice Act, which makes some violations cut and dried: Any doctor with a substance-abuse problem will be forced to get treatment, for example, and a doctor who has sexual relations with a patient will certainly be disciplined. (Doctors are allowed to have consensual sex with a patient six months after terminating their doctor/patient relationship.)
But "standard-of-care" cases, where a doctor's medical performance is at issue, are far more subjective. "It's a very individual process," says Kasunic.
If the panel decides to pursue a complaint (which happens in about 20 percent of cases), it goes to a staff investigator, who will gather records, talk to witnesses and hire expert consultants. The investigation report then heads back to the panel, which can dismiss the case or issue a "letter of admonition" to the physician, leaving a public mark on his or her career record (the physician has twenty days to dispute this letter and decide to legally fight it). About 5 to 10 percent of the time, the case goes even higher--to the attorney general's office, where four attorneys are dedicated to the prosecution of medical board cases before an administrative law judge.
This is where the Randels' case ground to a halt. "The dismissal of this case should not be construed as an endorsement of Dr. Fries' care and treatment of your son," panel A chair Irene Aguilar wrote to Greg's parents. "Rather, it was a decision based upon the likelihood of being able to prevail at a hearing before an Administrative Law Judge."
From July 1, 1997, to June 30, 1998, seven physicians actually had their licenses revoked by the board; another twelve agreed to surrender their licenses and retire. Thirteen were suspended from practicing; seventeen were put on probation and their practices limited; and eighteen received a letter of admonition. License revocations and letters of admonition are the only actions that become public record.
"Ninety to 95 percent of our cases settle before going to hearing," says Miller. The court writes an initial decision--but again, it's up to the powerful medical board to have the final say. "They really get to decide what happens to the doc," says Miller. "They may accept the judge's recommendation, or they may not." A doctor can appeal a board decision all the way to the state supreme court.
"More than likely," according to Miller, the physician will continue practicing medicine during this entire process--unless the board believes that the doctor poses an "imminent danger" to the public and decides to suspend him or her immediately. "The board does that on average eight to ten times a year--usually in impairment cases, where you discover a physician who has an active drug or alcohol problem and you need them out of practice until they can get their act together," Miller says. Only one or two doctors are suspended each year for giving substandard care--and those cases must be "pretty egregious" to warrant suspension.
Consumers can find out if a doctor has been formally disciplined by accessing the World Wide Web at www.docfinder.org or by calling an automated system at 303-894-7434. But unlike California's medical board, which posts all medical malpractice judgments and arbitration awards over $30,000 on its Web site, Colorado patients who want to know a doctor's legal track record have to sleuth out the information in every courthouse in the area. Out-of-court settlements are kept off the books altogether. A National Practitioner Data Bank--which records disciplinary actions taken against doctors across the U.S.--is accessible only to health-care providers, not the general consumer.
The insurance companies that cover doctors in malpractice cases are supposed to let the board know whenever a physician loses a lawsuit or settles a case out of court so that the board can decide whether to launch an investigation of its own. But just because a patient or his family has sued a doctor--and won--by no means guarantees that the board will take that doctor to the woodshed.
One year after she won a lawsuit against her doctor, Janet Laurel is still fighting on three fronts: for better cancer research, for political reforms and for her own life.
In December 1994, Laurel was taking a shower when she noticed a lump in her armpit. That same day she called her obstetrician/gynecologist, Dr. Pamela Kimbrough, and went in for a checkup. After her exam, Dr. Kimbrough told Laurel to come back in three weeks. Laurel did, and once again the doctor told her not to worry about the swollen lymph node unless it increased in size. Laurel was forty years old, although nine months later the doctor would note on her chart that she was only 34.
In September, Laurel went back to the doctor for her annual gynecological exam. Laurel pointed out that the lump was still there. The doctor responded that she didn't see "anything suspicious," by Laurel's account, "but by November, it was obvious something was going on with my breast."
Laurel had been seeing a chiropractor, Scott Storrie, for pain from injuries she had received in a car accident. She mentioned her concern about the lump to Storrie, who told her she should see a surgeon immediately. She went home and made an appointment.
During her visit, "The surgeon freaked me out," Laurel recalls. "She said, 'Do you know you have three more [swollen] lymph nodes up here?' At this point she's way up in my armpit." The surgeon did a fine-needle aspiration, which didn't conclusively show any cancer cells; even a mammogram didn't indicate any abnormalities. But an ultrasound indicated a shadow, and Laurel was given a full biopsy and told to wait for the results.
"I was at a winter retreat that I always go to," she says, "and my husband called me with the news." Laurel, it turned out, had a form of lobular cancer, which makes up only 15 percent of all breast cancers in the U.S. and often strikes younger women. Lobular cancer lays down sheets of cells between the ducts--as opposed to the majority of breast cancers, which lodge in the ducts and grow outward from there. Laurel underwent a modified radical mastectomy; eleven of her fifteen lymph nodes were found to be riddled with cancer. That made her a Stage IIIA patient, "which puts me in the highest-risk category," she says. Thirteen months had passed since she first felt that lump in the shower. "That year cost me a cure."
After three months of chemotherapy made her dreadfully ill, Laurel told her insistent oncologist that she would not consent to a bone-marrow transplant--often the treatment of last resort for women whose breast cancer has metastasized and spread to other parts of the body. After her earlier bad experiences with chemo, Laurel was afraid that the required high doses of radiation would kill her.
And she still had a lot of fighting to do.
After her second mastectomy, Laurel sued Kimbrough and won. Her malpractice case, decided on July 1, 1998, was one of only six last year along the Front Range in which a jury pronounced the doctor guilty. Kimbrough was found 60 percent liable for the advancement of Laurel's disease; the seven-person jury awarded her $250,000, but because of award limits, she actually ended up with $120,000--enough to cover the cost of a bone marrow transplant if she ever decides to get one.
But the trial cost Laurel, too. "When a doctor makes a mistake, the victim is the one that has to bear the brunt of that mistake--all the way down the line," she says. "If you confront the doctor on it [by filing a lawsuit], they ask for your tax records, they go through any medical record you've ever had with a fine-toothed comb. I was made to be the victim over and over and over again. The whole experience is like adding insult to injury--like it was my fault that my cancer went undiagnosed."
(Dr. Storrie, Laurel's chiropractor, was called before his own disciplinary board--for ostensibly treating Laurel for cancer. Storrie had to hire an attorney of his own to fight the charges; Laurel insisted that she had seen him only for her automobile injuries. Last month, the Board of Chiropractic Examiners sent a letter to the medical board--with a photocopy to Storrie--declaring that the chiropractor had done nothing wrong.)
And then came another blow. Despite her success in court, Laurel's case was dismissed by the Board of Medical Examiners. Laurel, a psychotherapist whose own profession is also governed by a state board, became suspicious: Kimbrough herself, she discovered, sits on the medical board.
Laurel fired off a four-page letter to the board, criticizing it for not reviewing her doctor's court testimony or having an ob/gyn on the inquiry panel to review her complaint. She was also angry about the possibility of a conflict of interest because of Kimbrough's presence on the board. "As things stand right now," Laurel wrote in her February 17 letter, "this has the appearance of a whitewash.
"What is more troubling for me," Laurel continued, "is that Colorado State law has been written in such a way that Dr. Kimbrough, rather than her victim, enjoys the protection of silence and secrecy. As a patient I have no right to know what the response from her attorney contained.
"Patients like me don't bring spurious lawsuits," wrote Laurel, whose brother and ex-husband are both doctors. "I am going to die; nothing you do here will help me. However, you have the opportunity to help other women and their families."
"It was a very moving letter," says Republican state representative William Sinclair of Colorado Springs, who along with dozens of other state legislators and the governor received a copy addressed and stamped by Laurel. Sinclair took particular interest in Laurel's case because his wife had also battled breast cancer; he's asked his staff to look at board policy, he says.
Marcy Morrison, a Manitou Springs Republican and chair of the House Health, Environment, Welfare and Institutions Committee, also received a copy of the letter. Morrison sent her concerns back to the board--and on May 28, Laurel received a letter saying the board had reopened her case, sent it to an investigator, and would contract with an independent ob/gyn expert to review the medical records. But last week, the board again dismissed Laurel's complaint.
Until recently, it was board practice to send complaints against sitting members to the opposite inquiry panel (in other words, a complaint against a physician on panel A would go to panel B). But at its May 20 meeting, at Miller's urging, the board voted to adopt a formal policy on how to handle this sort of uncomfortable situation. The policy, now in draft form, states that a complaint against anyone who is serving on the board, acts as an adviser to the board or has served within the past five years will automatically be sent to an outside consultant--usually another Colorado physician--for evaluation.
Miller admits the change will draw "scrutiny" but insists it didn't grow directly out of Laurel's case. "Quite frankly," says Miller, "it gives the board some protection from concerns that they're just trying to protect their own."
"I support the change," says Kimbrough, who has served on the board for three years. "We don't want the public to feel there has been any preference given to boardmembers or past boardmembers." Kimbrough has sat on an inquiry panel that handled complaints against her colleagues, "and no special consideration was given," she says.
"I believe I gave good care to Ms. Laurel," says Kimbrough, who adds that being drawn into court by a patient is a difficult experience. Even now, she says of Laurel's case, "It still is a difficult time."
"Being a doctor is a tough job--but it's a closed club," adds Randy Paulsen, Laurel's attorney in the lawsuit. "Doctors are sort of like buffalo. You wound one and the others gather around to protect it."
But Marcy Morrison, who's been involved in health-care issues throughout her seven-year tenure as a state legislator, says she rarely hears constituent complaints about the board. "I have been told the Colorado Board of Medical Examiners is kept to very high standards," says Morrison.
She has taken on the health-insurance industry in recent legislation and worked with the medical board to write guidelines for pain management, says the proof of the board's objectivity may lie in its reputation. "It's interesting to talk to doctors about the BME," she says. "They are terrified."
Indeed, each certified letter from the board reporting a patient complaint lands on a physician's desk with a horrifying thud. "This is a group that has the power to stop your career in its tracks," says board veteran Louis Kasunic. "The good news is that this is the same group that oversees my license. I believe it is made up of very reasonable people."
Like administrator Miller and other members of the board, Kasunic insists that the board puts patients, not doctors, first. "I don't think this is a sissy board," he says.
Stephen Fries, Greg Randel's former pediatrician, says that he dreaded going through his mail every day for a year and a half while the Randels' complaint was pending. "This is basically a guilty-until-proven-innocent situation," he says. "It's like an IRS audit. The onus is on the physician. You have to get an attorney, you have to notify your malpractice insurance carrier." No other profession is under such public scrutiny, he says.
"A common criminal has more rights in a criminal action than a physician does in a civil action," says Fries, "because these regulatory agencies can write their own policy and follow their own processes."
The board makes all disciplinary decisions behind closed doors--a policy that Kasunic vehemently supports. Many people in the medical community file complaints against their own, he says--and they would clam up if they knew their confidentiality could be at stake. "The complaint process is kept confidential," adds fellow boardmember Irene Aguilar, "because many times the complaints have inflammatory stuff that turns out not to be true."
Keeping the process confidential prevents doctors from getting into a "cover-your-butt kind of mode" and can help them learn from their mistakes, says Aguilar, an internist at a public-health clinic and one of the most outspoken members of the board in its public meetings. "We feel that physicians will be more honest with us if they feel they can be very candid when they respond."
But the board came under fire for its secretive process in 1996, when Beth Gray, an Evergreen parent, discovered that her son's pediatrician had repeatedly lied in his confidential response to her complaint. The board dismissed her complaint until Gray--who accidentally received a copy of the doctor's letter to the board--painstakingly sorted through her son's medical records to point out each contradiction. As a result, the board launched a pilot study to see how frequently doctors lie in their responses, and--with strong support from the Colorado Medical Society and Copic Insurance Company, which insures about 75 percent of the non-government-employed doctors in the state--concluded that the process should remain secretive.
Currently, however, the board plans to discuss whether to push for legislation that would penalize doctors for lying. And Gray is creating a nonprofit group called First Contact that will listen to victims of medical malpractice and act as a clearinghouse for resources. "We don't have help writing complaints--and the doctors have their lawyers," says Gray, who is building a network of volunteer physicians and nurses to help individuals decipher the relevant medical records. "A lot of the time people don't know what went wrong; all they know is, 'He was fine and now he's dead.' It just breaks my heart when people are going through something like this and they have to go through it by themselves."
According to the Journal of the American Medical Association, the annual number of deaths due to medical malpractice would equal the fatalities from three jumbo jet crashes every two days. But rather than openly discuss their errors and how they could have been prevented, doctors are often instructed by their insurance companies to hush up the facts because they could provide grounds for a lawsuit.
This culture of silence might be changing, however. In a recent newsletter, the American Medical Association describes a movement to create a "confidential, non-punitive system for reporting errors and near-misses in clinical care across the U.S. system"--similar to the process used by the Federal Aviation Administration to analyze aviation mishaps before they become disasters.
In the meantime, most Coloradans don't even know that a state medical board exists--or understand what it does. "I know about the Better Business Bureau," says Randel. "I think it has more publicity than the state medical board." Gray would like to see information about the board posted in every doctor's waiting room. But board administrator Miller worries that too much visibility would bog down the process with more and more petty complaints--from patients, for example, who had to wait an extra twenty minutes to see their doctor.
The board's staff is already stretched thin, Miller explains. "We have 60 percent fewer staff than medical boards of comparable size, and our statistics show we perform better than many of those boards." Funded by medical license fees, the board's $1.5 million budget must cover all administrative and legal costs. "We receive 42 percent less funding than an average board of comparable size," says Miller. "I'm very proud of what we're able to accomplish with the resources we have. But we need to do better in certain areas and we certainly try to do better."
"Boards aren't really the bad guys," says Jeni Dingman, the Pueblo-based spokesperson for PULSSE, a patient advocacy group. "We need laws changed to make things better for consumers."
Like other state bodies, the medical board is subject to periodic "sunset reviews" by the Office of Policy and Research with the Department of Regulatory Agencies to assess its performance. Prior to the last review, in 1995, discipline against a doctor's license had to be based on two or more acts of substandard care; now, just one will suffice. The board's next sunset review is not scheduled until 2015.
Some of the board's most visible cases do scream from the headlines--like when it stripped the license of anesthesiologist Joseph Verbrugge Jr., who was accused of falling asleep during routine surgery on an eight-year-old boy, causing the boy's death. (Recently the boy's family lost its lawsuit against Verbrugge on appeal.) In January the board suspended the license of Gupta Kuna, a Pueblo pediatrician accused of unprofessional conduct in the cases of seven patients, including two children who died. But the following month the board reversed its suspension order, sharply dividing the Pueblo community. Kuna has since agreed to forfeit his Colorado license upon his retirement next year.
And now the board is a legal target itself: Colorado Springs physician Dr. Faisal Amanatullah has filed suit against the board, which revoked his Colorado license because of accusations that he ordered needless tests and X-rays to make more money while practicing medicine in Nevada.
"The board has no business in protecting careers," Miller insists. "I do think they have an obligation to be fair to the licensees, the physicians, but their primary concern has to be the public. And I do believe that is their first concern."
Sixty-eight-year-old Elizabeth Liechti had immigrated to the U.S. from Switzerland in her twenties and spent much of her life working in Denver-area bakeries and as a store clerk. Solid, healthy, an avid mystery-movie fan, "she was a very happy person, very religious," recalls Woodard, a Littleton house painter and father of four.
But Liechti suffered back pain and went to see Dr. George Frey, who suggested an operation that would correct the line of her spine and alleviate the pain. Liechti took to the orthopedic surgeon because both of Frey's parents were Swiss; she even brought the physician a gift of Swiss chocolate and cookies, Woodard says. On February 21, 1996, Liechti underwent nine hours of surgery at Centura Health-Porter Adventist Hospital.
Liechti never recovered. Instead, for the next three weeks she suffered debilitating pain--which didn't respond to even the most potent painkillers, such as morphine or Percocet. She lost sensation below the waist; her wounds oozed, her white-blood-cell count skyrocketed and she ran a fever. But after Liechti repeatedly called for help from her ICU nurses and screamed in pain, she was labeled as a complainer, according to her medical records. On the night of March 9, Woodard contacted Liechti's on-call physician--who answered his phone at a noisy Denver Nuggets basketball game--and asked if something couldn't be done. The doctor called the hospital and ordered more morphine.
In Woodard's view, no one took Liechti's pain seriously until the next morning, when she suffered myocardial ischemia, a form of heart attack where the heart is deprived of blood. Woodard received a call at around 3:30 a.m. but was assured his mother was stable and there was no need for him to rush in.
That morning, doctors appeared at Liechti's bedside, and lab tests revealed her wound was full of clostridium--an uncommon postoperative infection that Liechti probably acquired in the hospital. Later that day, she died.
Woodard was furious that during his panic over his mother's quickly declining condition, nurses pulled him out of her hospital room. He and his fiancee, Dea Wilhelm, were trying to convince the ICU staff to honor Liechti's request for a toilet; the nurses countered that she probably didn't need one and it would cost extra to bring up a portable toilet, which was on another floor. "That was the last time I saw my mother alive," says Woodard. "When we were pulled out of the room to argue about a toilet."
Later, Woodard and Wilhelm would send a twenty-page handwritten complaint to the Board of Medical Examiners, detailing everything from Liechti's symptoms to their outrage at the doctors' and hospital's behavior. Within a short time, Woodard says, they received a one-paragraph response stating that the board had dismissed the case. Wilhelm was so disgusted she crumpled up the letter and threw it in the trash.
In the three and a half years since, Woodard has lived with bitterness and regret. But the hospital denies it did anything wrong. "The nursing care at all our hospitals is outstanding," says Centura Health spokesperson Chuck Reyman. "I have no reason to believe Mrs. Liechti would've been treated with anything but the highest-quality care."
Under law, most medical-malpractice victims can only bring a lawsuit within two years of their injury. But patients and their families can often spend more than a year recovering, grieving--or being so angry they can't see straight or figure out what to do. Woodard did contact a lawyer and expert witnesses to pursue a case against Frey, but the lawyer dropped his client just before the statute of limitations was about to expire. Attorney Jerry Katz, who specializes in medical-malpractice litigation, concluded that Liechti's was not "an open-and-shut case."
"I had told the attorney he could have every penny we won," says Woodard. "This was not about money."
George Frey says he vividly recalls the three-page letter the board sent to him about Liechti's case. "The board did a thorough job of entertaining and evaluating the son's concerns," says Frey, who explains that he cannot discuss the particulars of his patient's case. In the end, however, the board took no action against him. "It's a very formalized process," Frey notes, "in a very neutral, unbiased environment.
"When you look at things from the inside, it may be very different from what the family sees from the outside. They're grieving and may feel nothing was done," says Frey. "But when you're talking about a complex medical environment, you need to make sure the people reviewing it have the proper experience to make a reasonable assessment of what went on."
Last month Woodard read a newspaper article about Debra Malone, an intensive care nurse fighting the Colorado nursing board's dismissal of a complaint regarding her father. Sixty-eight-year-old Karl Shipman, a physician for more than thirty years, died from a staph infection in Presbyterian/St. Luke's hospital two months after surgery for a broken wrist ("Doctor's Orders," March 25). During the most critical night of his illness, Shipman had been treated by an inexperienced nurse and an unsupervised medical intern in the ICU. (The medical board could not discipline the intern because she does not hold a Colorado license; it is now considering to push for legislation that would require licensing of all medical interns and residents.)
Woodard was struck by the similarities between Shipman's case and his mother's. He contacted Malone, who has since gone through Liechti's medical records for the most pertinent information so that Woodard can focus and resubmit his complaint to the board.
There is no statute of limitations for complaints to the medical board, but if a case is dismissed, "there really isn't any appeal per se," Miller explains. "When I talk to individuals who are very unhappy, what I advise them to do is write back to the panel and try and specifically articulate what really has them concerned. Sometimes, quite honestly, we never satisfy the complainant. They may go to a legislator, to the director of our department, those sorts of things."
"Often," explains Sinclair, the state representative with concerns about Janet Laurel's case, "it is only the person who has the perseverance and the will who gets some modicum of justice."
There are no personal horrors greater than seeing a baby wither away before one's eyes, or watching a parent suffer needlessly, or finding oneself suddenly faced with the prospect of a preventable death in the prime of life. Modern medicine, filled with daily miracles, makes patients want to believe that a cure is always within reach, if only their doctors knew where to aim their grasp. But when medicine fails to heal, human nature drives many to find someone or something to blame.
"Medicine is an art, not a science," explains boardmember Aguilar. "We probably make more mistakes than we ever care to admit--not just doctors, but nurses or anyone [in the medical field]. People aren't machines. Yes, there are things that are errors, but making them does not mean someone is a bad doctor."
Although most patients and their families are simply too grief-stricken, too baffled or too exhausted to get to the bottom of a medical tragedy, a few are driven to find an answer.
Even after her complaint against her son's pediatrician was dismissed by the medical board, Sharon Randel got back on the phone to the attorney general's office--which has taken the "extraordinary" step of looking into the case again, says Ken Lane, spokesperson for the office.
"It seems that we had to work too hard," Randel says. "For parents of a sick child, we just had to work too hard."
Scott Woodard is resubmitting his complaint--but this time his letter will be more concise and medically explicit. "I just want to make sure this time around I do it with proper help," he says.
Having lost two battles with the board, Janet Laurel has now turned her attention to other struggles. In her pink-walled office, where she sips a cup of warm water to quell a persistent cough, she points to the pin on her dress--the figure of an angel, sculpted from Spanish moss and Hawaiian iauhala grass, and sold for $15 each to raise funds for a nonprofit organization she's founded to explore the common medical and environmental history of all breast cancer survivors. Laurel named her group the "Cherubim Foundation" after the second order of angels, known as the "seekers of knowledge"; once she's recruited boardmembers, she hopes to survey 100,000 breast cancer survivors through the mail and on the Internet and hire a statistician to sift through the findings.
In May, Laurel flew to Ireland for a prescription for Anvirsel, an anti-viral drug made from the oleander shrub that's used for breast cancer patients by some Irish doctors but has yet to be approved by the U.S. Food and Drug Administration. Since then she has been put on an FDA "compassionate use list" to continue taking Anvirsel while enrolled in a Montana doctor's study. But she recently learned that she may still have to resort to more chemotherapy after all.
She summons her energy from a deep spirituality, from wishes for a cancer cure for the sake of her eleven-year-old niece--and from sheer will. "Statistically, I should have been dead a long time ago," she says. "There's something I'm doing that's working."
Laurel insists that she didn't want her ob/gyn to lose her medical license. "I have really only wanted two things in regard to this lawsuit," she wrote to the board after it initially dismissed her case. "First, that Dr. Kimbrough be more careful, caring and diligent when she is faced with another woman with...a possible diagnosis of breast cancer. Secondly, a display of sympathy, empathy, compassion or an apology."
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