The bad news, Leilani Wilson’s doctor informed her in 1995, was that her son would likely be born prematurely. On top of that, Wilson’s low amniotic-fluid levels meant there was a risk of an infection in her womb. The good news was that the facility Wilson came to, Intermountain Healthcare’s Utah Valley Regional Medical Center in Orem, had an excellent track record for safely delivering premature babies. The doctor said that he would monitor Wilson for infection and perform a cesarean section, if warranted, since a vaginal delivery could be traumatic to her child. Then, Wilson said, he left on vacation.
Under the watch of the doctor filling in for her regular physician, Wilson’s child ended up being born vaginally in the breech position and was grossly infected. Jared, her first son, was no more than the length of a dollar bill. Today, 15 years later, he struggles with permanent physical and mental disabilities.
Mistakes happen in every profession and in every workplace—even with doctors who have devoted decades to the study and practice of medicine, and even in state-of-theart hospitals. But what troubles Wilson’s attorneys isn’t simply allegations of hospital screwups, but allegations of hospital coverups.
Attorneys for Leilani Wilson and her husband, Jerome, claim Intermountain Healthcare used its heft as Utah’s nonprofit hospital juggernaught to intimidate doctors who contracted with Intermountain to change their testimony related to Leilani’s care, forcing them to serve the hand that writes their paychecks before the patients to whom they’ve sworn the Hippocratic oath.
Ten years ago, a study by the Institute of Medicine estimated the number of preventable medical fatalities in the United States to be between 40,000 and 100,000 annually. An August 2009 report by Hearst publications estimates that number has grown to nearly 200,000 (see DeadByMistake.com). Some say this body count can be attributed, in part, to slipping standards in a health-care system where negligent care is swept under the rug by adept hospital lawyers.
In Utah, a number of attorneys worry that Intermountain’s tactics go too far in squashing legitimate claims. “The cost is so negligible for defendants [like Intermountain] that it’s in their best interest to do a scorched-earth defense and hope that the plaintiff just dies or gives up,” says attorney Kevin Sheff, who is currently facing Intermountain in a medical-malpractice case. He says it took years to pry loose documents from IHC that showed his client nearly died on the operating table.
In the malpractice game, patients who dare go “all in” against the deep pockets of Intermountain face putting everything on the table: thousands of dollars in legal costs and more in lost time away from their work, plus years of their life consumed by agonizingly slow court proceedings.
But for Intermountain, fighting long court battles hardly puts a dent in its chip stack. The most recently available 990 tax returns for IHC Health Services from 2007 show the hospital chain burning through more than $2.8 billion in expenses that year, of which only $7.9 million—less than 1 percent—was spent on legal fees.
Still, almost a year after their trial, the couple remains in shock over losing the verdict.
“It’s kind of impossible to explain how your life changes when you have a child like Jared,” says Jerome Wilson. Jared still suffers from his traumatic birth: partial blindness, mental disabilities as well as the inability to walk, talk or even eat solid foods. Caring for such a vulnerable child, Jerome says, is enough of a trial. “But to anticipate some justice in the process and then to have IHC and its attorneys do the types of things it did and then to have [these tactics] work, seemingly, in the short term, is beyond description.”
An Offer You Can’t Refuse
After a decade spent fighting the case on behalf of their son, Jerome and Leilani Wilson have become semi-fluent in both medicalese and legalese. They cite obscure Utah Supreme Court rulings like Barbuto v. Sorenson, a precedent-setting case that prohibits adversarial lawyers from meeting with a patient’s doctor without their consent, like it was common knowledge. Or terms like “interventricular hemorrhaging” when talking about the damage in Jared’s brain that required the installation of a shunt, inserted into his brain that siphons off spinal fluid through a tube that runs from above the right ear into his abdomen—as if it were something all parents deal with.
Jerome holds his wife’s hand over her knee at their kitchen table, talking with a distracted smile. Leilani is mostly quiet as she keeps a tissue wrapped neatly around her index finger. When a reporter asks how it all started, the couple quickly looks at each other with a short laugh, as if asking about the beginning of Jared’s life was a trick question.
In 1995, when the Wilsons learned that their unborn son might be born prematurely, their doctor allegedly told them a traditional delivery should be avoided since the vaginal walls would put too much pressure on the baby’s brain. The couple trusted this advice—but then, the Wilsons say, the doctor went on vacation.
The Wilsons say that when Leilani went into labor, the new care providers, instead of performing the recommended cesarean-section delivery, allowed Jared to be delivered vaginally.
“Rather quickly, Jared was born breech at the hands of a doctor we had never met before,” Jerome says. “He was covered in this thick, foul-smelling, stuff. Everything they said wasn’t supposed to be happening was happening. In fact, the doctor who delivered him repeated over and over again: ‘grossly infected.’” As a result of the negligent care the Wilsons claim Leilani received at the Intermountain facility, Jared now suffers numerous ailments. At the time of the trial, Leilani started her morning routine with Jared much the way she did when he was a newborn, carrying the child to the bath, changing his diaper and preparing baby bottles with liquid meal supplements— the difference being he now weighs more than 120 pounds.
Still, the Wilsons pride themselves on caring for Jared, boasting of having taught Jared how to ingest liquids so as to avoid having a feeding tube installed directly into his stomach.
“We were successful so, for now, he drinks from a bottle. But we’re hoping to transition to something more macho like a sippy cup,” Jerome says with a chuckle.
The Wilsons filed their malpractice case in the Utah County 4th District Court in 1998, only to lose to Intermountain in November 2008. Intermountain attorneys Joann Carnahan Bott and Charles Dahlquist II argued that the mental disabilities Jared Wilson suffered was a congenital condition, not the result of poorly treated infection, and that the medical care was proper.
The Wilsons’ attorneys, Roger Christensen and Joseph Steele, have taken their appeal to the Supreme Court, claiming the previous trial verdict should be overturned due to questionable tactics used by Intermountain’s contract attorneys. One allegation of several they allege (see other examples of malpractice tactics at CityWeekly.net) was that attorneys for Intermountain violated legal principles recognized in the 2006 Utah Court of Appeals case of Barbuto v. Sorensen, principles which were subsequently upheld by the Utah Supreme Court in 2008.
The Barbuto decision makes it clear that communications between a former or current treating physician and legal counsel opposing a patient in court are prohibited. The only way the parties can communicate is using traditional courtauthorized discovery methods where all parties may participate.
|Trusting the Trustee
Attorneys claim hefty Intermountain charitable contributions influenced witnesses at trial.
In the 2008 Wilson v. Intermountain Healthcare trial, attorneys for 15-year-old Jared Wilson claimed he was permanently handicapped by the negligent care during his birth at Intermountain’s Utah Valley Regional Medical Center. The attorneys knew that with so many local physicians employed by an Intermountain Hospital, they would have to shop around for an expert witness from out of state to help analyze the medical evidence of the case. They hoped one of those witnesses would be Robert Marshall, not realizing Marshall’s wife could present a conflict of interest.
For years prior to the Wilson trial, expert witness Marshall had planned to testify on behalf of Jared Wilson, according to the Wilsons’ attorneys. He never made it to the stand, however, and went on to repudiate earlier affidavits he had given supporting the evidence that Jared suffered from substandard care.
While Marshall did not speak, his words were read to the courtroom in the Wilsons’ trial in the form of a letter addressed to the Wilsons’ attorneys. He described how he had struggled with his participation in the case, given a very personal conflict: His wife, Elaine, a dean of nursing at Brigham Young University, was a member of Intermountain’s board of trustees.
Though Robert Marshall wrote about having strong feelings about “the validity of the Wilsons’ case” he also expressed concerns from his wife about his participation. While he noted that IHC administrators had spoken to his wife about his involvement with the case, Robert conceded he felt they had not influenced her opinion. “Her feelings arose solely out of her position on the board of trustees,” he said
Daily Herald reporter Niels Nokkentved wrote about Robert Marshall’s conflict in April 2005 after discovering Robert’s first affidavit in a records request from the 4th District Court. In that affidavit, Robert asserted that he had been told by his wife that an Intermountain risk manager had warned her about economic impacts for the nursing school based on her husband’s involvement in the case.
Nokkentved noted in his articles that that same year, BYU’s nursing schooled received $800,000 from Intermountain—its largest donation from the hospital chain. Nokkentved covered the developments in the case until July 2005 when the court agreed to Intermountain’s request for a gag order on discovery regarding the possible conflict between the Marshalls and Intermountain.
When asked about the Marshalls, Intermountain’s Dahlquist tells City Weekly in an e-mail that counsel had no knowledge of the conversations between Elaine Marshall and Intermountain’s risk manager, but notes: “What is important is that at the Wilson trial and in her deposition, Elaine Marshall clearly testified that there was no pressure whatsoever by Intermountain or any of its employees on her or her husband to cause him to withdraw.”
The letter, which Intermountain attorney Dahlquist had Elaine Marshall read on the stand in 2008, concluded with Robert Marshall explaining that his recollection of what he heard from his wife was faulty. He even summarized his feelings by saying that he felt the Wilsons’ attorneys were using him just to hurt Intermountain. “My wife is a trustee of IHC. By attacking IHC, you have attacked my wife. By my providing you with the affidavit, I have enabled you to attack my wife. The reason that I withdrew as an expert [witness] was to protect my wife from the pain that might have arisen because of my participation.”
At the Wilsons’ trial, the judge allowed into evidence the testimony of Leilani’s physician even though he—unbeknownst to the Wilsons—had met privately with Intermountain attorneys. The testimony was allowed because the meetings had taken place in 2003—before the first Barbuto decision in 2006. During the Wilsons’ trial, only one physician’s testimony was not allowed, and this was because he had been contacted by Intermountain while the trial was in progress.
Intermountain’s senior counsel David Erickson says previous law allowed “physicians to give interviews and reports” to the other side’s attorneys. And a 1999 Utah Bar ethics opinion said it was OK for lawyers to interview treating physicians, although that opinion was overturned by the Supreme Court’s 2008 Barbuto decision.
Christensen says, however, the Barbuto decisions simply made official what had always been illegal in common law before. The Wilsons’ attorneys argued such meetings put pressure on doctors to change their testimony because Intermountain is a predominant health-care provider in the region.
In February 2003, Richard Boyer, a pediatric neuroradiologist who contracted with Intermountain, examined Jared’s brain scan and diagnosed periventricular leukomalacia, according to court documents. Boyer admitted under oath in the November 2008 trial that the condition was potentially consistent with the Wilsons’ interpretation of the case— that the injury was from the effects of an untreated infection.
At the time of this first report, Boyer testified he was unaware that the Wilsons were suing Intermountain. He also admitted that three months later, on April 9, 2003, and on the same day he met with Intermountain attorney Bott and an Intermountain risk manager, he read the scan again and decided to modify his February report and add an “addendum,” which allowed for other possible interpretations including Intermountain’s argument that Jared’s condition was genetic.
At the Wilsons’ trial, Boyer, who declined to comment for this story, defended the change he made, saying: “Once I realized that report was incomplete, I dictated an addendum. That was the appropriate thing to do to communicate with the physicians taking care of Jared.”
Christensen, representing the Wilsons, said: “And the changes just happened to help Intermountain in this case, right?” Boyer: “Perhaps that’s your interpretation. But if I’d met with you and found those findings, I would have done exactly the same thing.”
quickly, Jared was born breech at the hands of a doctor we had never
met before,” Jerome says. “He was covered in this thick, foul-smelling,
stuff. Everything they said wasn’t supposed to be happening was
happening. In fact, the doctor who delivered him repeated over and over
again: ‘grossly infected.’”
Christensen went on to cite Boyer’s conclusion to his addendum that “there is no need to implicate other causes of brain injury such as infection, neoplasm or external trauma”—this disclaimer now specifically refuting the Wilsons’ claim that Jared’s brain damage was the result of exposure to infection or improper care.
Christensen worries that since Intermountain contracts with the largest health insurer in the state (Deseret Mutual Benefits Association) and because it employs 30,000 in Utah and Idaho, it has too much monetary control over the potential testimony of doctors in the state. This is especially true in Utah County where, Christensen says, Intermountain owns 75 percent of the staffed hospital beds. “It’s difficult for a doctor to get at cross-purposes with IHC without having to worry that he may jeopardize his career,” he says.
When asked about Intermountain having too much influence over the medical caregivers of the state, Intermountain’s counsel Erickson writes: “There is no merit or evidence to that claim.”
Erickson also notes that Intermountain’s meetings with Boyer were “presented to the jurors in the Wilson trial, who found in Intermountain’s favor.”
While such meetings in the Wilson case may have occurred before the Utah Court of Appeals 2006 Barbuto ruling or the 2008 Supreme Court affirmation of the 2006 ruling, other attorneys worry inappropriate meetings are still going on.
With more than 20 years in the medical-malpractice field, Eisenberg says Intermountain is not the only hospital defendant to skirt the Supreme Court’s rulings by stealthily meeting with patients’ doctors. Still, the Davis case troubles him.
Eisenberg filed a motion to compel Intermountain to allow him to interview the hospital’s risk manager. In a memo to the court in support of his motion, Eisenberg wrote that Intermountain had denied him access to the risk manager—who had allegedly met with Jessica’s doctor at least 20 times without the family’s knowledge or consent—several meetings even taking place after the Supreme Court’s 2008 Barbuto ruling.
“They’re taking the position that their risk manager could talk to my patient’s doctor, without my input, but that I could not talk to those doctors without their consent,” Eisenberg says. “This matter can’t just be explained away by saying this was before Barbuto, because they are contending Barbuto should not apply to them. They are saying, ‘We can always talk to our own employees.’” When asked about these meetings, Intermountain attorney Dahlquist writes in an e-mail to City Weekly that such meetings were always fully disclosed to the patient’s counsel regarding date, time and subject, adding they were insubstantial conversations meant simply to “coordinate appointments, schedule depositions, etc.”
As of press time, Intermountain had filed a protective order to bar the patient’s lawyers from interviewing the risk manager. The court is waiting to hear arguments before ruling. “They’re taking the position that their risk manager could talk to my patient’s doctor, without my input but that I could not talk to those doctors without their consent.”
Stop and Go
The Wilsons could not imagine that the decade they spent waiting on the sidelines as their attorneys fought to push along a paper shuffle of pleadings, depositions and discoveries would result in a verdict in favor of Intermountain.
The Wilsons’ attorneys complain that Intermountain legal tactics unfairly dragged out the proceedings.
“IHC’s ability in Utah to get the plaintiffs’ own doctors to join forces with IHC in fighting the plaintiffs added years of delay to this case,” Christensen says, “and enormous expense.”
Due to Intermountain’s dominance in the market, Christensen says patient’s lawyers have to get virtually all of their expert witnesses from out of state—such as the witness flown in just to confirm what the Wilsons’ own doctor, Boyer, had diagnosed before he met with Intermountain counsel and a risk manager.
Some attorneys say that stall tactics in general are just par for the course for corporate defendants like Intermountain.
Tricks of the Trade
The Religion Card
King of Diamonds
My Clients! Mine!
Go to the Media
“The more [corporations] drag their feet, the less they have to pay in the long run,” says Charlie Thronson, a veteran medical-malpractice attorney and president of the Utah Association for Justice, the state’s 435-member trial lawyers lobby group. Thronson says that Intermountain, like other corporations, undoubtedly employs a corporate strategy known as “opportunity cost.”
If a hospital or an insurance provider realize they might lose a case, and a settlement might cost them hundreds of thousands, if not millions, in damages, then they can treat the amount they might pay almost like an investment. Instead of just paying that amount to the injured party upfront, they take the amount and invest it—in stocks, bonds, etc. As those investments prosper, it pays to have attorneys drag out legal proceedings until it is necessary for the hospital or insurance provider to fork over the damages.
“The longer they don’t have to pay the money,” Thronson says, “the longer they earn interest and dividends and the more they earn on the money.”
He also says such a strategy can even lead to smaller payouts. “Sometimes, people die, so there goes that case,” he says. “Sometimes, the attorneys run out of money. I know there’re lots of one- or two-man shops that just say, ‘I can’t fund this case.’” Amid the national health-care debate, Thronson says one reform for streamlining the medical-malpractice cases would be to make mediation hearings mandatory. Using impartial mediators to determine damages upfront would take years off the process.
Until then, he says the patient’s lawyer has got to be on top of his game. “As a plaintiff’s attorney, your job is to move the case, to push them,” Thronson says. “Because if you don’t, there’s no incentive for defendants to settle.”
Attorney Kevin Sheff is not content to just push his case; he’s willing to shove in his case against Intermountain Healthcare. He’s recently alleged Intermountain actions constitute racketeering, or a pattern of illegal behavior.
Sheff, a New York native and relative outsider to Utah’s “med mal” legal community, has earned himself a firebrand reputation. His notoriety doesn’t bother him much, which is why he went so far as to allege racketeering—the kind of charge usually reserved for the Mafia, not hospital chains.
The racketeering charge alleged a pattern of Intermountain withholding evidence. But it didn’t get far: Third District Judge David Faust dismissed the claim in 2007, saying it lacked “particularity,” which is to say, it couldn’t allege sufficient facts to back up Sheff’s claims of Intermountain withholding evidence. Still, Sheff believes his case illustrates that Intermountain’s stall tactics have gone too far.
In 2003, his client, Aruna Shah, checked into Intermountain’s LDS Hospital after suffering back injuries in a minivan rollover that occurred in Utah while she was traveling on a family vacation. With a burst fracture of the T-6 vertebrae, Intermountain doctors allegedly convinced Aruna she would be wise to undergo an elective surgical procedure to place stabilization hardware into her back to ward off additional injury while being transported back to her home in Aurora, Colo.
When Shah awoke from this operation, the first thing she noticed was the large cut running the length of her left arm and her hand unnaturally bent inward like a claw.
The staff allegedly informed her family that she’d had an allergic reaction to a drug administered during surgery and complications ensued. Puzzled by this, husband Ghanshyam Shah asked for a copy of her complete medical chart when they left—a chart that turned out to be 483 pages thick.
The Shahs assumed the boxful of records they were given was more than complete, but they eventually started to have their doubts, especially when the couple never received discharge instructions or documents disclosing the exact drug that caused the allergic reaction—seemingly vital information for Aruna Shah to pass on to her physicians in Colorado.
When attorney Sheff took Aruna’s case in the summer of 2006, he realized many documents referred to other documents—tests and reports—that were not in her file. After six months of requests—on Dec. 4, 2006—Sheff finally received almost 500 pages of new documents from Intermountain.
The “missing” documents, Sheff says, showed evidence of undisclosed complications from the elective surgery, which resulted in major organ failures. The evidence included an Aug. 4, 2003, nutritionist report citing Aruna’s levels of albumin protein as “severely depleted,” allegedly leaving her in poor condition for the surgery scheduled for Aug. 8.
The surgery went forward even as Aruna’s proteindeficient body struggled to maintain blood pressure, resulting in “myocardial infarction,” “vascular collapse,” “respiratory failure” and “complex regionalpain syndrome” a condition that, to this day, sends shooting, electric-like jolts of pain through her left arm. In other words, it appears Aruna had suffered heart and other organ failures and had nearly died without anyone telling her.
Aruna only learned about what occured during her surgery after Sheff and his team obtained her records, more than three years after the procedure.
“The patient first asked for copies of the medical record several days before she was discharged from the hospital,” writes Brinton Burbidge, one of the attorneys representing Intermountain in the Shah case. “The timing of this request would naturally result in her not receiving copies of any records which had not yet been created,” Burbidge writes in an e-mail to City Weekly. He added that the other records may simply not have been gathered into a single file. Burbidge likewise says Aruna likely never received discharge instructions because “she was being transferred to an inpatient facility in Colorado.” “But to anticipate some justice in the process and then to have IHC and its attorneys do the types of things it did ... is beyond description.” —Jerome Wilson
Burbidge also writes that “despite careful searching, no patient discharge instructions have been located.” This is unusual, Sheff says, since by definition, discharge instruction should be given to the patient the day they are discharged from the hospital. Not years later, or never.
Sheff says, however, there still is no excuse for not releasing documents created before and during the surgery—like the report of a cardiologist, who allegedly noted immediately after the surgery that Aruna had suffered “global heart failure.”
While Sheff cites three other cases alleging Intermountain withheld evidence in his defeated racketeering complaint, the one, he says, that draws striking parallels to his own is the 1997 Williams’ case. This case purportedly awarded plaintiffs $9.7 million, the largest medical-malpractice verdict in Utah. It was also one where key evidence was only turned over to the defense years after the alleged injury.
Shauna and Gar Williams, a Murray couple, charged that hospital staff failed to recognize a lack of amniotic fluid had allowed their unborn child, Desarae, to rest upon the umbilical cord, cutting off oxygen to her brain—a condition that calls for an immediate delivery. As a result, Desarae Williams was born a quadriplegic in need of constant care, unable to speak and having to consume her meals from a latex tube inserted into her stomach.
“Based on that [continuance request], we would have to retool all of our expert witnesses,” says James McConkie, one of the Williams’ attorneys, “which is not an inexpensive proposition,” considering added delays and costly expert-witness fees.
Intermountain’s request for a delay to the pending trial was denied by 3rd District Judge Sandra Peuler.
Intermountain’s counsel Erickson adamantly denies any kind of records manipulation:
“Intermountain responds to thousands of requests each year from patients and attorneys for medical records with little or no complaint.” Contract attorney Burbidge echoes the sentiment, arguing that clerical mistakes resulting in misplaced documents do not equal evidence tampering. Burbidge says attorneys like Sheff just lob such claims “to gain leverage in the litigation process.”
“In every instance,” writes Burbidge, “when the court has ruled on the merits of the claims, the court rejected the claims.”
But what about when the court hasn’t ruled on the claims? “In the other instances, Intermountain Healthcare was not able to fully represent its response because the matters were settled out of court,” Burbidge answers.
Proving that evidence has been withheld is no easy task. Thronson, for one, has not experienced situations of evidence being withheld in his dealings with Intermountain. He believes that proving withholding of evidence in the medical-malpractice field would likely require a whistleblower from within to produce any decisive evidence.
Such difficulties come with the terrain of representing patients in medical-malpractice cases, Thronson says. “We have to prove our entire case through [patients’] medical records, their nurses, their doctors,” he says. “Our people go in and either die or have no idea what happened to them. And so, our entire case to be proven through them and all their witnesses. It’s a difficult business.”
though the court’s never made concrete rulings on the merits of Sheff’s
failed racketeering claims, Sheff wonders if Intermountain has learned
anything since its defeat in the 1997 Williams case. “Have they learned
in its litigation that you don’t treat another human being that way,
that you don’t deny them access to medical records which are important
to understand what happened to their body? That’s basic human decency,
that’s Golden Rule stuff we all learn when we are kids,” Sheff says,
with a shake of his head. “IHC, it escapes them.”
Advocating for the public health in the legal arena is a tough game. Attorneys like Sheff, however, worry the deck is stacked too high against victims of medical negligence in a torturously long and costly legal process.
Intermountain’s Erickson, however, says that clear-cut cases of fault are resolved quickly. “Medicalmalpractice cases with merit are resolved simply and without a lot of work on the attorney’s part,” he writes.
It is not easy to track medical settlements across the United States. A 2006 study by the Harvard School of Health that followed 1,452 claims found that trials, with merit or not, from injury to settlement, averaged five years to resolve. Furthermore, “nearly 80 percent of the administrative costs of the malpractice system are tied to resolving claims that have merit.”
For the Shahs, their battle is just beginning. As they continue to gather evidence for their 3-year-old case, a trial still likely years away.
The Wilsons now are selling their “nice” home and, as of September, had to place Jared in a care facility because Jerome couldn’t keep up his productivity at work and continue to give Jared all the care he needed. The couple had hoped a judgment in their favor would allow them to hire extra help to keep Jared at home.
look forward to the day of accountability and have what we think are
these shenanigans happen to us that worked—it’s a real blow,” Jerome
says, quietly squeezing his wife’s hand. “But we’re very hopeful that
the process will work. Ultimately, we will prevail.”