Malpractice Assurance

A 4-year-old is dead, and the doctor who erred is still allowed to practice. No wonder liability insurance is driving up health care costs.

On May 1, Christine and Dylan Malone buried their 4-year-old son, Ian. Like much about Ian’s life, his funeral made the news, which recalled the national fame achieved by the handsome but heartbreakingly brain-damaged little boy. Four years ago, as his parents were battling their insurance company for the medical expenses Ian required, he attracted the attention of then– presidential candidate Al Gore, who adopted him as a poster child to press for a patients’ bill of rights. Gore sent a bouquet to Ian’s funeral.

What wasn’t remembered in the press coverage of Ian’s death, which had been expected sooner or later given his progressively worsening condition, was how he got that way—unable to sit or hold his head up without help, unable to talk to family members or possibly even recognize them, unable to eat without a feeding tube or to swallow his own spit. Ian’s birth is a tale of continual medical errors by a doctor and two midwives and involving the prescription of an inappropriate drug, the failure to recognize a dangerous labor complication, and the refusal to take his mother to the hospital. The Malones filed complaints with the state Department of Health about the three health professionals. Yet it is debatable whether the state adequately sanctioned these individuals and protected future clients. While it put the midwives on two years’ probation, it failed even to formally discipline the doctor, opting instead for narrow restrictions laid out in something called a “stipulation to informal disposition.”

The Malones felt the sanctions amounted to nothing. “The Department of Health is completely toothless and spineless,” says Dylan. “Even in the face of the most horrifying and outrageous malpractice, they take no action.” Having fought many aspects of the health care system related to Ian’s condition, he calls the state’s medi­cal disciplinary process “one of the last big uncharted areas,” one he and his wife say they remain determined to pursue.

They’re not the only ones. As the debate about proposed caps on medical-malpractice jury awards has heated up locally and nationally in the face of spiraling malpractice-insurance costs, some legislators and consumer groups have pointed to another source of the problem. If state disciplinary bodies did a better job of weeding out bad apples, they reason, there would be less malpractice and insurance rates would go down. Locally, advocates for disciplinary reform have made much of Washington state’s low ranking on a list compiled by the national nonprofit Public Citizen that compares every state’s rate of serious disciplinary actions per 1,000 licensed doctors. Washington came in 31st in 2003, which actually constitutes a big jump from past years. In 2002, the state ranked 41st.

The ranking is only a rough indicator. The per-licensee rate doesn’t take into account any state variances in doctor quality. Whatever the rate, mounting malpractice cases in Washington, like that of the Malones, evidence a problem in the health professions. “It’s shocking,” says state Rep. Tom Campbell, R-Roy, a chiro­practor who served on the state Chiropractic Disciplinary Board for four years. (The Department of Health oversees 16 boards and commissions regulating different health professions.) “It’s usually the most egregious things that are closed without action or acted upon with minor slaps on the wrists.” Campbell is one of several state legislators who tried to push disciplinary reform this past legislative session, but virtually all of their bills encountered stiff resistance by medical lobbying groups and died.

Five years ago, Christine Malone turned to the Cascade Midwives & Birth Center in Everett, where she lived, to handle her third pregnancy and birth. For the bespectacled, dark-haired woman in her mid-30s, who liked to be in control of herself and the situation around her, the birth center seemed like the next, natural step in her progression away from her first birth experience. She felt like the obstetrician who attended that birth had been “intolerant and bossy” and made her feel merely like “some kind of vessel” through which the baby would pass. With a midwife, she felt like she could rid herself of obtrusive medical intervention, and she developed a warm relationship with Darlene Curtis, one of two midwives who recently had opened the birth center.

As the Malones remember it, they questioned Curtis about safety in one of their first meetings. Her response, according to Christine, was that “if she felt the baby was in any danger or I was in any danger, or it got to the point where I felt like I could no longer do it without an epidural, she would administer [the drug] Terbutaline to slow down the labor and transport me to the hospital. . . . She told us, ‘Look, we’re no more than five to 10 minutes from the hospital.'” The birth center and the Providence Everett Medical Center both sit on Colby Avenue in Everett, only 15 blocks apart.

As Christine’s due date neared in late-August 1999, Curtis sent her to a Seattle obstetrician, Roger Andersen, to induce labor. There’s some dispute about the reason for the induction. The Malones say it was because the baby, after weeks of moving around inside the womb, was finally in a position that would allow a natural birth, with his head down. Curtis, in a deposition related to a suit brought by the Malones, said it was because Christine was tiring of pregnancy.

Alerted by her partner, Janine Walker, that Andersen was using a new drug called Cytotec to induce, Curtis called the doctor to voice concern. In her deposition, Curtis related that she didn’t like Cytotec because it created “intense, fast labors.” But according to Curtis, Andersen said, “It’s totally fine.”

It was not fine. The federal Food and Drug Administration has approved Cytotec for the treatment of ulcers. It is classified as “Category X”—never to be used in pregnancy. The Physicians’ Desk Reference warns that Cytotec can cause abortion and pregnancy complications resulting in maternal and fetal death. Amazingly, some obstetricians have used the drug anyway, in an “off-label” capacity, to induce or ripen the cervix, a first step toward induction. But Tom Easterling, an obstetrician at the University of Washington, says Cytotec should “never be used as an outpatient and never at a birth center.”

Marsden Wagner, a Maryland pediatrician who formerly headed the women’s and children’s health program for the European office of the World Health Organization, agrees. Hired by the Malones as a medical consultant, Wagner says there was a body of published research, including an article by him, available in 1999 testifying about com­plications that have arisen from a Cytotec induction. One such complication is hyperstimulation of the uterus, resulting in prolonged and overly frequent contractions. Because babies don’t get oxygen during contractions, hyperstimulation can result in oxygen deprivation.

Andersen could not be reached through his attorney for comment. But in his deposition, Andersen said that he had never seen complications like hyperstimulation with Cytotec, although he frequently dispensed it to patients, including those who gave birth with midwives outside a hospital. When Christine Malone came to his West Seattle office, he gave her a dose of Cytotec there and sent her home with further doses to self-administer.

Much of what happened next can be seen on a videotape that the Malones made of the birth. Laboring at the birth center in a hot tub by candlelight, Christine suffered severe contractions. For his report to the Malones, Dr. Wagner sat down with the tape and a stopwatch and timed the contractions. Usually, contractions come every few minutes. Many of Christine’s contractions, according to Wagner, came at intervals of only 45 seconds. They were also unusually long, two lasting over four minutes. Wagner concluded that “there was definite hyperstimulation.”

Curtis and Walker, who jointly attended the birth, didn’t appear to recognize the signs. Over and over, Christine told her midwives she couldn’t take the pain. “I can’t do this anymore,” she said plaintively at one point. “I need you to give me something to stop this and take me to the hospital. I need to do an epidural. I can’t do this. I can’t. I can’t do this. . . . I can’t, OK? Please, please, please, please, Darlene, please.” The midwives told her that by the time she got to the hospital it would be time to push. Though the hospital was only blocks away, they said that an epidural would be an hour away, maybe two.

Christine didn’t deliver Ian until almost an hour and a half later. When she did, he wasn’t breathing and had to be resuscitated. The midwives called 911. Should they have called 911 sooner? Wagner, when he looked at the tape, suggested so. He noted that in the last half-hour, the midwives appeared to be having trouble finding Ian’s heart rate, although Walker has said she heard it shortly before the baby’s birth. The medics took Ian to the hospital, where the extent of his neuro­logical damage eventually emerged. He was diagnosed with hypoxic-ischemic encephalopathy, a condition that results from prenatal oxygen asphyxiation.

When the state considered disciplinary action against Andersen, Curtis, and Walker in the Malone case, there had been more than one complaint filed against each of these providers. In fact, almost nine months before Andersen had treated Christine, the state had opened an investigation of the doctor, having been notified by Providence Seattle Medical Center that it had restricted his privileges. The hospital prohibited Andersen from accepting high-risk referrals from midwives, something he had commonly done before. Documents prepared by the state Medical Quality Assurance Commission (MQAC), which disciplines doctors, note that Andersen had also “been required by Providence to participate in monitoring and proctoring programs regarding his obstetrical patients.” Andersen, moreover, “was warned repeatedly about his failure to establish safety protocols for his midwife patient referrals.” In addition, the state had information at the time about at least three of five malpractice suit settlements related to Andersen, ranging in amounts from $40,000 to $436,000.

What’s harder to understand is why MQAC declined to formally discipline the doctor after the Malone case, given its severity and the doctor’s past. The decision over whether to pursue disciplinary action or a stipulation to informal disposition is made by an MQAC panel, usually consisting of about half of the full commission’s 19 members. Thirteen of the 19 members are doctors, which critics believe might be part of the problem. “It creates an inherent conflict of interest,” says Campbell, the legislator. He floated an unsuccessful bill this year that would have taken the decision of how to charge health professionals out of the hands of boards and commissions made up of their peers and put it into the hands of Department of Health staff.

After the commission decided on an informal disposition, one of its members, alongside a Department of Health attorney, probably negotiated the terms with Andersen, if the usual routine was followed. MQAC would not have considered his previous malpractice settlements when deciding whether to formally discipline Andersen or when considering restrictions on his license. The rigid legalistic process the Department of Health follows allows boards and commissions only to consider the specific case before it. That practice has come under attack, and the department is now considering whether to initiate legislation that would allow a policy change. The agreement they reached prohibited Andersen from accepting midwife referrals, or supplying midwives with Cytotec, for a five-year period.

MQAC’s executive director, Doron Maniece, says he can’t comment on the rationale behind the Andersen sanction, which he says lies with commission members in “closed-door deliberations.” But Karen Jensen, a top quality-assurance official at the Department of Health, speculates that a mitigating factor might have been an accident Andersen suffered soon after the Malone birth in 1999 that left him with an amputated leg. Because of that, Maniece adds in a joint interview, Andersen “is not delivering babies anymore.” But according to Seattle attorney Patricia Greenstreet, Andersen has delivered at least one baby since he was sanctioned. She is evaluating a birth he attended at Quincy Valley Medical Center in Grant County, in December 2002. Also, in Oct­ober 2002, a complaint came in to the Department of Health about Andersen from a woman who claimed that the doctor inappropriately operated on her for infertility problems, leaving her with complications including incontinence. The state did not investigate because the woman would not waive whistle-blower protection and allow herself to be named.

As for the midwives in the Malone case, their discipline fell short of a license revocation or suspension. It was, however, tougher than Andersen’s. There is no board or commission of peers that oversees midwives who are not nurses, so Department of Health staff handled the proceeding. The state looked jointly at two cases: that of the Malones and that of another woman, who delivered a stillborn. According to findings of fact, Curtis and Walker had in that case failed to adequately monitor the woman after she showed evidence of hypertension. The state fined the midwives $3,000 and required them to undergo a review of their practice and to hire a practice monitor who would review their cases. The state also submitted the birth center to random audits. There have been four so far.

Walker has left the state and allowed her midwifery license here to expire. Curtis continues to practice at the birth center. She declined to comment for this article. Paul Meyer, executive director of the Department of Health section that regulates midwives, observes that after the case, “Ms. Curtis seemed to be hypervigilant— to the point that she may have been overtransferring cases” to the hospital. “She was very sincere about being compliant [with the disciplinary order] and improving her practice.”