What You Don't Know About Your Doctor Could Hurt You | Cover Story | Salt Lake City | Salt Lake City Weekly
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News » Cover Story

What You Don't Know About Your Doctor Could Hurt You

Why overburdened Utah regulators can’t keep the (bad) doctors away.



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Dr. B
What Teresa Law didn’t know about Dr. James A. Brinton cost her—and hurt her.

In July 2009, Law was looking forward to celebrating her husband’s 50th birthday on the beaches of Mexico. Before she left, she decided to have “smart lipo” done to smooth out fat deposits on the backs of her thighs. She said that Brinton, who worked at an Orem medical spa, told her a simple operation would take care of her problems. Law’s first impression of Brinton was that of a charming and competent doctor. Her first warning sign that he wasn’t, however, was the day of the procedure, when Brinton chose to multitask while operating on her: taking a hands-free cell-phone call on an unrelated business matter while he performed the liposuction. Plus, she didn’t receive pain medication for what she describes as one of the most agonizing experiences of her life. Leaving the Orem office, she was assured the pain would be only temporary.

“I had to travel the next week, and he said, ‘Oh, yeah, you’ll be fine, there are people who have even gone hiking the next day.’” Law wasn’t one of those people. “It drained and oozed blood for days and days,” she says. “My leg swelled up to double the size.” A miserable and embarrassed Law still went on the trip, keeping her legs under wraps. Law was assured that the scars that appeared on the back of her thighs would go away. After months of added therapy that she was offered for free, they didn’t.

Nearly a year later, Law discovered that Brinton had been indicted in federal court in 2008, a year before she sought treatment, for being involved in an online pharmacy scam where he and several other co-conspirators smuggled as many as 8 million diet pills from Mexico. Brinton and others sold them over the Internet to customers who could obtain the drugs without a prescription or receiving any medical evaluation. On May 19, 2010, Brinton pleaded guilty to the charges of conspiracy to distribute phentermine and one count of international money laundering; on July 2, Brinton was sentenced to three years in federal prison.

Had Law only bothered to check the status of Brinton’s license on DOPL’s Website … well, it wouldn’t have helped. Even though Brinton was indicted before she received treatment, DOPL had not posted any restrictions or suspensions on Brinton’s license. In other such pending discipline cases, DOPL has been known to place probationary modifications on a license if a licensee is charged with a crime, which can then be removed if the individual is not convicted. However, that didn’t happen with Brinton—a likely oversight, DOPL says. DOPL only took action on his license one month after Brinton had pleaded guilty to the federal charges, and then by simply denying a request for a renewal of Brinton’s license to practice medicine.

Law also would not have found out that Brinton had lost a malpractice case in 2002, where a woman’s face was badly burned in a laser-hair-removal procedure, since DOPL is not always aware of when doctors lose court cases. Nor would she have known that Brinton had lost all his hospital privileges from Intermountain Healthcare in 1989.

DOPL only has ever placed Brinton on probation—in 1996, based on allegations of his sexually harassing four patients throughout the late ’80s and early ’90s, when he worked as an OB-GYN. In the initial investigation, DOPL’s complaint alleges Brinton even had admitted to performing “sexual stimulation techniques” on his patients for the previous 15 years. In 2000, however, through his attorneys, Brinton denied all the allegations of harassment and insisted that he only performed sexual-stimulation techniques when patients requested it of him.

During this same period, Brinton was actually fighting IHC’s decision to revoke his privileges, taking his case to the Utah Supreme Court, which, in 1998, upheld IHC’s decision. In that decision, the court noted that Brinton “treated too many patients, provided substandard care, and took other inappropriate actions with respect to staff and patients.”

As an OB-GYN, Brinton averaged 45-60 baby deliveries a month, the Supreme Court decision reported—a staggering number compared to most OB-GYNs, who deliver about 24 babies a month.

A client of attorney Dustin Lance would later sue Brinton because of the doctor’s alleged botched operation. In researching the doctor’s background, Lance learned why Brinton lost his IHC privileges in 1989. An infant under his care died, allegedly because he failed to diagnose the baby’s gestational diabetes. Lance noted that Brinton fought the hospital’s decision tenaciously, arguing that a loss of IHC privileges would force a Utah doctor out of business. Soon thereafter, Lance says, Brinton’s new specialty was performing laser-hair removals and smart-lipo procedures in the spa business.

In 2001, Lance’s client, Toupta Boguena, then a 34-year-old international student at Brigham Young University and originally from the war-torn republic of Chad in Africa, received hair removal from Brinton’s clinic, only to suffer serious scarring on her face. Lance and the other attorneys working for Boguena successfully argued that Brinton’s staff had failed to realize the spa’s laser was not designed to be used safely on individuals with dark skin.

During the trial and proceedings, it was established that most procedures were conducted by Brinton’s staff. Boguena’s procedure was done by an assistant who, prior to being hired by Brinton, was a homemaker with no medical experience. She testified that Brinton showed her how the laser worked and left her a magnetic guide sheet stuck to the side of the machine that gave basic instructions to the laser. She also testified that “Dr. B” as she knew him, supervised a number of procedures but generally only personally performed hair removals of women’s bikini areas and that it “normally would be after-hours and the staff would be leaving to go home. We had certain hours that we worked, and he was still seeing patients,” the assistant testified.

Despite repeated attempts to contact Brinton and his attorney for this story, neither could be reached for comment.

While a jury found Brinton’s actions to have fallen below the standard of care in awarding Boguena $150,000 in damages in 2002, DOPL was never made aware of the decision and placed no restrictions on his license. This type of oversight unfortunately occurs, a DOPL representative says, because there is no requirement for such cases to be reported to DOPL.

According to the Drug Enforcement Administration, within a year of Boguena’s case being decided, Brinton and others had begun smuggling Mexican pharmaceuticals into the country for sale over the Internet, according to the 2008 federal indictment.

DOPL often determines to hold back on its investigations if other agencies are building a case against a licensee. DOPL was likely made aware of Brinton’s federal investigation, which may explain why the state agency took no recent action. But it still doesn’t explain why no restrictions were placed on Brinton after the Boguena verdict, or why no restrictions were placed on his license after indictments for smuggling pills were handed down in 2008—a year before Teresa Law visited Brinton.

For Law, however, it’s just too late. With the scars she now has, she feels too ashamed to show her legs in public and is looking to plastic surgery to repair the damage. “[My legs] look a million times worse than they originally did.”

White Coat Conspiracy?
DOPL Director Mark Steinagel recalls accompanying an investigator to a case that shows just how difficult it is to prove malpractice or standard-of-care cases. The case focused on a woman who claimed she had received poor care by a nurse that resulted in her losing her entire stomach.

“What we know is this woman is sitting here without a stomach,” Steinagel says. “What we don’t know is anything beyond what this person says happened and what [the nurse] says happened. The only record is this nursing-home record that says she did it the right way.” In a situation like that, investigators know they’ll have to investigate more rigorously than they would a case where other law enforcement finds evidence of drug problems or criminal sexual harassment—situations that make up the clear majority of DOPL disciplinary actions.

“Compared to other states, we have fewer staff,” Steinagel says. “Most other states have a board that functions independently; we’re unique in that we have an umbrella agency, with lots and lots of professions underneath it.” With 25 investigators for all licensees, Steinagel says the workload is divided mostly between construction trades and medical professions, with about 10 to 11 investigators focusing on construction cases, and 13 to 15 looking at medical professions. That leaves, at most, 15 investigators to look at all the nearly 10,000 physicians and surgeons in the state, along with all nurses, cosmetologists, pharmacists, dentists, physical therapists and other professions that fall into the medical category.

While Utah’s system is different, Steinagel believes there are a few upsides because there are more checks and balances. For example, when the physician advisory board that works with DOPL to recommend discipline for doctors renders a decision on a licensee, Steinagel gets final approval. In a recent case that Steinagel cited, the board wanted to give full privileges back to Louis Bedell, an anesthesiologist who was charged with two counts of felony sex abuse in 2005. Bedell beat these counts but was still convicted of misdemeanor sexual battery in May 2007. In an e-mail obtained through DOPL, Bedell even complained to the Governor’s Office over DOPL’s treatment, but Steinagel rejected the board’s recommendation to give all privileges back to Bedell, and instead placed Bedell’s medical license on probation for two years as of May 2010. Bedell could not be reached for comment.

“I had been here only a year, and they said they wanted to give [Bedell] his license back. I said ‘I’m not giving a doctor who’s just been convicted of sexual battery his full license back,’” Steinagel says.

Still, he says, standard-of-care cases present a fiscal challenge to the division. “Our attorneys get nervous on standard-of-care cases,” Steinagel says, because of the higher burden of proof involved, which may mean hiring expert witnesses. “I’ve said, ‘Are you telling me that on every standard-of-care case, we need an expert? Because I can’t afford to hire one every time.’”

Charles Thronson, a Salt Lake City medical-malpractice attorney with Parsons Behle & Latimer (a firm that also does legal work for City Weekly), says that finding unbiased medical experts is a unique challenge for DOPL in standard-of-care cases. “Historically, there has been this code of silence among physicians to protect other physicians—even if they’re negligent,” Thronson says.