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Trial by Video

Over the last six months, the Houston consumer protection office of the Texas attorney general has spent a lot of time, a lot of energy and a lot of money -- in the neighborhood of $100,000 -- investigating and suing a group of local surgical assistants for fraud. And after a half-year of work, what does the AG's office have to show for its efforts? A series of settlements, an irritated judge, a dismissed case and little else of worth to the general public. But for Attorney General Dan Morales, that might be okay, because the "little else" contains something of considerable worth to him: gushingly laudatory national news coverage.

Whether that coverage is deserved is open to serious question. What isn't open to question, though, is that the state's suit against the surgical assistants generated substantial attention for Morales when it was filed last September. And no wonder: He seemed to have uncovered a scandal in which people with foreign -- if any -- medical degrees and no state licenses were passing themselves off as licensed physicians and being paid for performing thousands of operations. Not only that, but genuine doctors, not to mention Houston's hospitals, were apparently in on the fraud. Furthermore, the AG contended, the Houston case was just the tip of the iceberg; this was a statewide, maybe even a national, scandal. In a press release, Morales said he had uncovered "one of the most horrifying charades in the medical history of our state." Such a story, if true, was scary stuff worthy of national notice -- even worthy last Sunday of a concerned piece on 60 Minutes.

But by the time 60 Minutes came to the issue, most of the fire had gone out of it. A Houston judge, David West of the 269th District, had made it clear that he wasn't happy with the way the AG was handling its case by dismissing it with prejudice -- a move lawyers term a "death penalty" sanction. On 60 Minutes, though, that wasn't mentioned; Ed Bradley instead depicted Morales as a crusading attorney general who stopped fraudulent doctors from practicing bad medicine. In order to do so, Bradley had to leave out some essential truths: that even before the dismissed case had made it to court the AG had settled with most of the 19 surgical assistants he called "frauds" and that after all the talk, nothing had really changed. After months of legal effort, Morales has now agreed to let surgical assistants continue performing the same services they've been performing for years: helping licensed surgeons by holding instruments, making sutures and otherwise acting as an extra set of hands in the operating room.

If these people were as dangerous as Morales had charged, why would he allow them to return to work? Has public safety been improved or protected by the attorney general's lawsuit? Apparently not -- but Morales's public image has certainly been buffed to a high sheen.

Ever since last September, when Morales denounced the surgical assistants as "criminals in surgical masks" who might be linked to the deaths of unwitting patients, the attorney general's case has been coming unglued. After launching a barrage of bold accusations about the case, on September 18 assistant attorney general Pat Tulinski of the AG's Houston office agreed to a temporary injunction allowing the surgical assistants to continue their work [see "Malpractice," September 26, 1996]. The injunction prevented the surgical assistants from using the title "doctor" and specified exactly how they should identify themselves and their services to patients and insurance companies, but otherwise changed little.

Most of the 19 defendants, including Jaime A. Olmo Jr., the man who ran Assistant Surgeons of Texas, the company that had been sued, would have been happy to make the temporary injunction permanent. But Tulinski refused to settle, instead pressing on with expensive trial preparations that included deposing expert witnesses in Chicago, Los Angeles and Philadelphia about insurance and operating room procedures.

Tulinski videotaped most of her depositions at a cost of $500 to $600 a day, running up bills totaling $5,700. That practice left defense lawyers scratching their heads, since such videotapes are rarely needed unless a witness is unavailable to appear in court. But they did come in handy for Morales's media campaign; 60 Minutes used excerpts of the depositions of Olmo and two other surgical assistants in which they testified that they weren't licensed to practice medicine.

There's no question that the hospitals and the surgical assistants were sloppy in their record keeping and credentialing procedures. And it is true that Texas, along with 48 other states, has no licensing procedures for surgical assistants. But the AG's office never managed to go beyond those facts to prove that surgical assistants shouldn't be in the operating room. The right of licensed physicians to use unlicensed assistants is clearly spelled out in state law, and common sense says that few surgeons will risk their practices by allowing incompetents to help them.

 

And if the surgical assistants were a sham, then Houston's hospitals and physicians were up to their necks in it. And yet the state wasn't suing the hospitals or the physicians. In the AG's scenario, it was as if the surgical assistants had been dropped from a spaceship into operating rooms.

Of course, the surgical assistants were an easy target. What Tulinski hadn't counted on was legal opposition from an adversary much more well-heeled than Olmo -- the hospitals in which the surgical assistants worked. In the end, Tulinski had her case tossed for defying one of the very laws she had accused the surgical assistants of violating: using patient records that are supposed to be confidential.

State law says that patient records are restricted to licensed health-care providers, which the surgical assistants are not. But the law also states that the records can go to other health-care providers as otherwise authorized by law. And when the issue got to Judge David West's court, he consistently ruled that since they had been designated as health-care providers by the surgeons and hospitals, the surgical assistants were entitled to receive patient records.

Unfortunately for Tulinski, West ruled that she wasn't entitled to those records, at least not without the permission of the patients. In order to prove her case, Tulinski needed complaining witnesses, patients in whose operations the defendants had assisted and who had paid for the surgical assistants' services while believing that they were paying for the services of physicians. Tulinski had Olmo's records, but those were copies of the originals. She wanted those originals, and subpoenaed Memorial Hospitals System and West Houston Medical Center for all patient records in which Olmo and his contractors worked.

Hospitals, though, are required by law to keep the names of their patients confidential, and Memorial Hospital System's lawyer, Claude McQuarrie, proved recalcitrant when asked to cooperate with the AG. McQuarrie argued in a November hearing that to comply with the attorney general's demand and at the same time comply with confidentiality requirements, the hospitals would have to edit the names, addresses and phone numbers of all the patients out of the records. He said if the attorney general would identify specific patients, the hospital would provide their records -- though redacted, to keep their names from being made public.

In an oral order last November, West and the two sides agreed that patient records that had been used in the discovery phase of the case would be redacted, and those records would be coded with a key provided to the court and lawyers for all sides. The code would assure the privacy of patients who didn't want to be part of the lawsuit from being publicly named in the court records.

But redacted patient records were of little use to Tulinski; what she needed were names and phone numbers of patients so that she could find complaining witnesses. Using Olmo's records, she had kept an aide busy "cold calling" his firm's patients, telling them they had been involved in a fraud. Such cold calling could cost a private attorney her license, but whether it's allowable for representatives of the attorney general seems open to debate. McQuarrie and lawyer John Klug, who had come in to represent some of the surgical assistants who didn't want to settle, argued against the practice. West agreed with them, ordering the AG's office to stop the cold calling.

Tulinski did something else to raise the judge's ire. When Tulinski deposed a surgical assistant named Louis Patrone, she brought an attorney named William Fred Hagans along. Hagans is a plaintiff's attorney who represents Marge Poteet, a woman whose son died following an operation in which Patrone assisted. Poteet was considering suing Patrone and the surgeon who supervised him for the death of her son. 60 Minutes gave serious play to Poteet's accusation that Patrone had "murdered" her son; it gave no attention to the fact that the state had apparently been helping Hagans, a private attorney in a private case. Though Tulinski claimed to have had a release from Poteet for the use of her son's medical records, McQuarrie and Klug charged that it was improper for the state to subsidize discovery for private attorneys.

Tulinski did something else that could end up aiding plaintiffs' lawyers. Instead of using a coded document that would protect the privacy of patients, last December 13 she filed 1,295 patient names, addresses and phone numbers in the court records as a list of potential witnesses. An enterprising plaintiff's attorney named John Kim, who had been watching the case, copied the list and that weekend sent letters out to about a hundred of the named patients. By the time McQuarrie and Klug summoned an angry Judge West back from his Christmas vacation on Monday, December 23, Kim had filed a class action suit against Olmo's surgical assistants and the hospitals that had used them. Much of the language in his suit was lifted from the state's filing.

 

There were no video cameras in court to capture West excoriating Tulinski for defying his order to keep patients' names and records confidential. But the words of the transcript convey the judge's impatience.

"Let me tell you what I've already sensed," West told Tulinski. "That the attorney general has been a little bit, a little bit bo[o]rish about this thing. They walk in that room, and they say, 'I'm the attorney general, and I'll do what I darn well please.' ... I can see the pattern. I heard it the other day ... and I just brushed it off about the rights ... the attorney general had to publicize his cases .... And now I'm hearing this kind of thing. 'Well we don't have to follow the law like the other lawyers do in this state.' "

There would be no more cold calling of patients, and no more violations of his orders, West stated. At the first of the year he ordered Tulinski to return all the patient records she had acquired from Olmo.

In January, Olmo and several of the key defendants settled, agreeing to terms not much different from those they had been operating under since September. As part of the agreement, Olmo will pay a $5,000 fine at the rate of $100 a month -- hardly an onerous judgment. Four defendants who had little to do with billing practices held out for a trial. On February 18, the day before the trial was to begin, McQuarrie and Klug presented West with complaints from patients that they were being cold called again, this time by Ken Davis, an investigator from the Texas Insurance Department. Davis was the person who had originally brought the surgical assistants case to Tulinski, and he had worked with her all along. Tulinski insisted Davis was working on his own, but it didn't matter. West threw the attorney general's case out of his court, dismissing it with prejudice.

That may be just as well for Morales. He can say the hospitals obstructed his investigation and that an angry judge made a bad ruling. He can say that he will appeal, and eventually the case will dribble out of public consciousness. And what will be remembered won't be the private anger of a judge lambasting a representative of the attorney general. What will be remembered is the public anger of Dan Morales as he lambasted surgical assistants on 60 Minutes. Morales has won his case in the virtual, and highly selective, reality of television. And he has the video to prove it.


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