Houston Cancer Clinic Trying Hard To Keep Under Wraps A Memo Criticizing It

Ed note: This story was revised August 20, 2010.

Buried within a convoluted Harris County District Court lawsuit over legal fees is a potential matter of public health -- a matter the public may never get to see.

At issue is an internal memo -- temporarily sealed by the court -- discussing alleged cover-ups of medical malfeasance, tax fraud, money laundering and mail/wire fraud at the Gulf Coast Cancer & Diagnostic Center, which provides radiation treatment to cancer patients. On March 22, the Houston Press asked the judge to unseal the memo.

And a former Gulf Coast contractor has also asked the court to unseal the memo, stating in an affidavit that Dr. Mark D'Andrea, the clinic's founder, attempted to cover up the fact that one of its patients "was overexposed to radiation." The former contractor alleges in her affidavit that the patient, James Rollins, whose treatment at Gulf Coast ended in early 2006, subsequently lost his colon and bladder.

Alicia Harris, a medical physicist, states in her affidavit that, "After I told Dr. D'Andrea...that a patient was overexposed, he expressed for Mr. Rollins for less than one minute. He then made statements in rapid fire, giving me orders on how to cover this up and 'fix' the treatment record, or he and everyone else would be held legally responsible....He devised a plan to alter [Rollins's] medical records."

Harris states that she had previous concerns about the physician's assistant who performed Rollins's treatment: "On numerous occasions, I warned Dr. D'Andrea and the management that the radiation treatment plans created by this individual and the frequency of mistakes was alarming and dangerous." (Rollins subsequently sued Gulf Coast; D'Andrea and related entities; the claim against Gulf Coast was dismissed and the remaining case was settled out of court. D'Andrea denies any wrongdoing.)

Harris also alleges she became aware of "other events and acts that bear upon the health and safety of patients," including performing "unnecessary diagnostic testing."

Harris, who states that she had not seen the sealed memo, believes unsealing it "could prevent further injury to patients."

The Texas Medical Board's website has no disciplinary actions listed for D'Andrea, who is listed as being a board-certified radiation oncologist. He received his license in 1989, after attending the Ponce School of Medicine in Puerto Rico and finishing an internship at Cabrini Medical Center in Brooklyn.

The memo in question was obtained by Gulf Coast's former general counsel Kirk Kennedy, who was fired from the clinic for allegedly misappropriating more than $400,000. In court documents, lawyers for the clinic argue that Kennedy knew he was about to be fired, so he asked the clinic's outside counsel for an opinion on misconduct Kennedy told the outside counsel he witnessed, suggesting he's holding onto the memo for leverage.

Lawyers for the firm of Epstein Becker & Green (EBG) then gave a summary of potential liability for the clinic's principals -- based only on what Kennedy fed to them. Gulf Coast's lawyers claim that Kennedy was technically fired by the time he received a copy of the memo; a lawyer for EBG claimed in court documents that the firm never would have given Kennedy the memo if its lawyers knew he had been terminated.

In November, Kennedy filed documents containing excerpts of what is called the EBG memo. When those records became publicly available on the Harris County Distict Clerk's website, Gulf Coast, in a word, freaked. Its lawyers argued that the EBG was a confidential document subject to attorney-client privilege.

Meanwhile, Kennedy showed the memo to some associates, including his criminal defense attorney Robert Scardino, who states in an affidavit that "it appears that a federal investigation of Mark D'Andrea and Gulf Coast may be currently away. This investigation may be centering on....fraud, tax fraud, illegal drug sales, money laundering, wire fraud and mail fraud."

Gulf Coast attorney Eugene Wilshire filed an objection to Alicia Harris's affidavit, claiming it wasn't technically an affidavit, but an "acknowledgment." Harris then filed a revised affidavit; Wilshire told Hair Balls he just got a copy of the revised document Tuesday and was working on a response to the court to be filed Wednesday. We'll update after that response has been filed. In the meantime, he told us that, in the Rollins case (the patient who lost his colon and bladder) Rollins never even complained to the clinic until two years after his treatment.

D'Andrea could not be reached at Gulf Coast on Tuesday. But he stated in a November affidavit that Kennedy had called him and "stated that unless a settlement was reached, he would never surrender what is known as the EBG memo until ordered to do so by the 'Supreme Court.' By the term 'settlement,' I understood him to mean compensation would need to be paid to him."

We're not sure what Kennedy's motives were in requesting the EBG memo, and frankly we don't care. We do care about its contents, and it sounds like anyone considering Gulf Coast for cancer treatment would probably care as well.

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