Why Wasn't He Stopped Sooner?

By Leslie Berestein/Los Angeles

For years, Raymond Hilson thought the infection that left him disfigured was just a stroke of very bad luck. Today he thinks it could have been worse. A school-bus driver from Colfax, Wis., Hilson, now 73, underwent heart-bypass surgery in 1994 at Luther Hospital in Eau Claire. At first the procedure seemed to have gone well. But Hilson contracted a severe staph infection. To treat it, doctors "kept cutting back the flesh and bone," he recalls, until his entire sternum was removed, leaving his beating heart visible just under the skin.

While there is no evidence that Hilson's surgeon was responsible for the infection, the hospital volunteered cash compensation to Hilson, which he accepted. And there are many things he knows today that he wishes he had known before his surgery. Only six months earlier, the physician operating on him, Dr. Michael McEnany, then 55, had resigned as chief of cardiovascular surgery at San Francisco Kaiser Permanente Medical Center after peers raised serious questions about his competencey. He had been forbidden to operate without another surgeon assisting. Hilson had no way of knowing that background, or that the medical board of California would later accuse McEnany of incompetence and gross negligence in eight surgeries that went awry during his time at Kaiser, or that McEnany would experience other complications, including sternal wound infections, among his surgical patients in Wisconsin.

You might think that McEnany would have had a hard time landing the Wisconsin job after his California experience. But as part of his resignation deal, according to California officials, Kaiser agreed to terminate McEnany's practice review and not file a report to the medical board of California, as the hospital was required to do. When officials at Luther Hospital ran a routine background check on McEnany, there were no red flags. Had a Kaiser whistle-blower not tipped off the California medical board in 1996, sparking an investigation that led to McEnany's surrender of his licenses in California and Wisconsin, he could still be practicing. Instead, he is fighting off the remainder of 28 lawsuits filed against him between 1998 and 2000. Although McEnany declined requests for interviews, one of his attorneys, Steven Sager of Fond du Lac, Wis., says, "I think that the doctor provided good care." He noted that several cases have been dismissed and McEnany has so far made no payments in Wisconsin.

For critics of doctor discipline, the McEnany case represents an extreme example of a familiar problem. While the vast majority of doctors perform with care and lose few, if any, legal judgments or settlements, a small number of negligent or incompetent doctors endanger patients and drive up malpractice-insurance costs for everyone. Since 1990, one-third of malpractice awards and settlements have resulted from just 5% of doctors making such payouts, according to the National Practitioner Data Bank (NPDB). Yet doctors and hospitals too often fail to discipline repeat offenders.

Hospitals are required to report to their state medical board and NPDB any revocation, suspension or restriction of a doctor's clinical privileges for more than 30 days. But hospitals don't always comply. By the end of 2001, 55% of all nonfederal hospitals registered with the NPDB had not reported a single disciplinary action against a doctor. (Two Kaiser administrators paid nearly $20,000 to settle with the state after failing to report McEnany, and the medical center says reporting procedures "are definitely different now.")

Hospitals face many incentives not to report a disciplined doctor--and not to discipline him at all. A hospital may want to limit its liability by not airing the problem. Or it may be afraid of a legal battle with the physician. And doctors are loath to report a colleague's bad behavior. Consumer advocates say that self-policing by doctors and hospitals is not sufficient and that patients need access to state medical board and NPDB records that are denied to them today.

That's why Raymond Hilson didn't know about the $200,000 settlement that Kaiser paid in 1992 to Richard Lord and his family for the loss of his wife Eleanor, who, according to the California investigation, bled to death while in McEnany's care. If Hilson had known more, he says, he would have gone elsewhere. Learning the surgeon's history has made him see things in a different light. Strange as it may sound, he says, "I feel lucky to be a survivor." --By Leslie Berestein/Los Angeles