Medical Malpractice: Are medical procedures being done for financial incentives or for medical necessity?

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Medical Malpractice: Are medical procedures being done for financial incentives or for medical necessity?

Was it a medical mistake or a chronic condition that killed a St. Petersburg man back in 2013? At this point, no one knows but many are determined to find out.  His heart, preserved in formaldehyde, has traveled more than 1,000 miles to be studied by pathologists in three states. None of the experts can figure out what the cause of his unexpected death three years ago.  There is a lawsuit that has ensued where the gentleman’s wife filed suit against St. Anthony’s (the hospital where he died) which is part of BayCare Health System; a cardiology group connected to the hospital; and three of the group’s doctors: Shalin Shah, John Finn  and Amit Srivastava


The deceased (Kenan) was a 56-year-old saxophone player and freelance pastor who had a heart muscle disease called cardiomyopathy. The cardiomyopathy had been an issue long enough that his heart had become too large and tests showed the amount of blood it pumped was lower than normal.  Also, Kenan had some shortness of breath, in part because of the lower oxygen rate in the blood and because liquid in the sac surrounding his heart was putting some pressure on the lungs.   Kenan initially met with Dr. John Finn at the Bay Area Heart Center on Jan. 8, 2013. Finn consulted with his colleague Dr. Shalin Shah and then directed Kenan to go to St. Anthony’s that afternoon to have fluid drained from the space around his heart the following day by Dr. Amit Srivastava. It remains unclear why Finn ordered Kenan to be admitted through the emergency room, since he was reportedly in no distress.  According to his wife’s attorneys, the test results bolster the allegations that Kenan was stable, in no pain and in no immediate risk of a fatal heart event. So they question Finn’s decision to send Kenan for a procedure called “pericardiocentesis,” in which a tube is inserted into the chest so the liquid can drain.

According to Alice Kenan’s attorney’s, the emergency admission could be a maneuver to get around an HMO requirement for pre-authorization for elective procedures, an attempt to gain legal protections in case of a lawsuit or a way to pad the hospital bill.  The hospital’s attorney defend the ER admission arguing doctors routinely admit through the ER to get tests and reports back more quickly.

On Jan. 9, 2013, Srivastava did three other procedures at St. Anthony’s before tackling Kenan’s. When it was completed, Srivastava left St. Anthony’s, having been summoned to Northside Hospital to treat an emergency.  The lawsuit alleges no cardiologist saw Kenan after that, even after an alarm sounded, indicating his blood-pressure had plummeted.  Nurses received instructions over the phone, according to the complaint, but delayed carrying them out for more than an hour.

Plaintiff argues the key step should have taken to transfer Kenan to a hospital that was licensed and equipped to do emergency open-heart surgery.  This step was never taken.  At least two local hospitals had that level of care, the suit states, at that time. Srivastava rushed back to St. Anthony’s, the complaint says, but by then Kenan’s heart had stopped and resuscitation attempts were under way. They weren’t successful.

Alice Kenan requested an autopsy, which was carried out less than a week after her husband died. But it didn’t end the questions.

The lawsuit and battle of the experts:

As noted above, since Mr. Kenan’s death a heated medical malpractice case has ensued.  The lawsuit  has led to many twists and turns and many surprises.  There have been additional autopsies and, as noted above, the heart has traveled around the southeast, for experts to examine it.  The amount of pathology reports and autopsies are unusual for a medical malpractice case.  Three pathology reports – two for the hospital, one for the Kenan’s wife — have been filed or described in the court record. They drew radically different conclusions:

Dr. Kern Davis, who acted as laboratory director of St. Anthony’s at the time, conducted a “torso autopsy” of Kenan on Jan. 14, 2013.  His preliminary report, which is in the court file, did not identify a specific cause of death. It does mention Kenan’s pre-existing diagnoses of pericardial effusion and cardiomegaly.

The second pathology report described in the court file is from forensic pathologist Dr. Kimberly Collins, who was hired by Kenan’s widow in Nov. 2015. Collins, of Newberry Pathology Associates in Charleston, S.C. does autopsies for county coroners as well as private next of kin. She is a director of the National Association of Medical Examiners.

Collins reported finding a puncture wound and two pieces of metal in the heart, in the same area where a needle and guide wire would have been inserted prior to draining the chest, court filings say. A puncture wound to the heart is a known risk of a pericardial tap, according to WebMD.

Alice Kenan’s attorneys, Straw and Emerson, filed an affidavit from a metallurgist attesting that the pieces left in the heart were consistent with the medical guide wire used in the procedure. Photos of the pieces were attached.

After the second autopsy was complete, St. Anthony’s lawyers requested a third review by Dr. Louis DiBernardo, assistant professor of pathology at Duke University Medical Center, in Durham, N.C.

His opinion disputed almost all of Collins’ findings; he wrote that he didn’t find evidence of perforation and that it would have been “extremely unlikely” at the location she cited, given its distance from the entry point of the needle.

DiBernardo wrote that if the heart had been punctured, Kenan would likely have bled out within minutes, not three hours. And the pathologist at St. Anthony’s would have found a large clot at the initial autopsy, DiBernardo wrote.

He said in his opinion Kenan suffered “sudden cardiac death” triggered by the stress to his heart imposed by the procedure, an event he called Pericardial Decompression Syndrome (PDS).

Financial incentives:

Apart from the heart, the medical-malpractice case has another unusual feature: A claim that the doctors’ errors were caused in part by “financial incentives” between the hospital and cardiology group, Bay Area Heart Center. Federal and state laws say hospitals can’t give doctors money or perks as an inducement to get more patients admitted or more procedures done, which is what the lawsuit claims happened.   The attorney for the estate alleges that the deceased and his widow are the victims of the business of medicine.

St. Anthony’s rebuts such arguments by telling the court that the Plaintiff is trying to allege “baseless conspiracy theories” to distract the court from focusing on what should be a simple medical negligence case.  Health News Florida, where we found this story, tried to interview the defendants and their attorneys, but they were denied.  Instead, they were referred to BayCare, the parent company of St. Anthony’s, which said that the company does not comment on ongoing litigation, although St. Anthony’s did state in a recent court filing, that it did nothing wrong in providing money to the cardiology group to help recruit a new specialist, because that’s a “safe harbor” — an exception — that the law allows.  According to one expert interviewed by Health News Florida “Those safe harbors exist so hospitals can recruit talented clinicians to serve the community who might otherwise be unable or uninterested in coming.”

Even if Kenan had needed emergency drainage, the Heart Center doctors should not have sent him to St. Anthony’s to have it done, the plaintiff’s attorneys said. Three hours after the procedure, records show, Kenan died. The lawsuit says St. Anthony’s didn’t have the staffing at the time to provide safe backup.

Those arguments over Kenan’s treatment, however, have taken a backseat for the past eight months as St. Anthony’s attorneys battled to keep the hospital’s contracts with Bay Area Heart Center from becoming public. Under Florida law, the hospital said, they are confidential trade secrets.

In a pretrial hearing that Health News Florida attended recently, Pinellas-Pasco Circuit Judge Jack Day revealed the amount of money contained in the recruitment agreement. St. Anthony’s paid the Heart Center more than $300,000 for the first-year salary and costs for an interventional cardiologist to do cardiac catheterization and other profitable blood-vessel procedures.  Srivastava, the interventionist who was hired, is the doctor who performed the procedure on Kenan.

St. Anthony’s attorney said at a hearing that such hiring agreements are legal as long as the recruited doctor can practice at other hospitals, as well. Srivastava has privileges at five hospitals.

Also, this is not the only area case where such agreements have been called into question.  An unrelated whistleblower case pending in federal court claims that physicians based on the St. Anthony’s Hospital campus – the Heart Center and Suncoast Medical Clinic — were given sweetheart deals on leases as an incentive to admit more patients.  Bingham v. BayCare Health System was brought by real estate appraiser Thomas Bingham, based in Nashville.  In August 2015, U.S. District Judge Steven D. Merryday denied BayCare’s motion to dismiss the case. It is still pending.

At a July 5 hearing, which Health News Florida attended, Judge Day, was clearly taken aback by the wildly different autopsy reports. He said he wants an explanation of how the metal pieces photographed by the plaintiff’s pathologist were not found by the hospital’s pathologists.

“This is a very disturbing case in a lot of ways,” the judge said, warning defense attorneys that they had better not be overconfident: “You have a perfect storm of items that would support (claims of) medical negligence.”

If you or a loved one has been the victim of medical malpractice, contact us at Edwards & Ragatz for a free consultation.  (904)399-1609 or (866)366-1609.


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