2108 Acorn Court
Lebanon, Pa. 17042-5769
September 24, 2001
HONORABLE TOM RIDGE
GOVERNOR COMMONWEALTH of PENNSYLVANIA
225 MAIN CAPITOL BUILDING
HARRISBURG, PA. 17121
Ref (a): My ltr R Bachman to Gov. Ridge dated 05/21/01
(b): PA DOS Legal Office ltr R D Dunnewold SDCC of 06/08/01
(c): Commonwealth of Pennsylvania, Bureau of Professional and Occupational affairs vs. Robert Lester Barton; File No. 99-49-01928
Encl (1): Brophy v. Brizuela; Brannen v. Lankenua Hospital
Dear Governor Ridge:
In my previous letter to you, reference (a), I expressed concern that I was being denied due process in my complaint against Robert L. Barton, reference (c), due to apparent intentional efforts within the PA Department of State to deceive and to delay the process of bringing the case to a hearing. I had hoped to speak with you or one of your staff in regard to this matter. Instead, it appears my letter was given to Legal Counsel within DOS, along with the assignment to respond to my letter. I have received that response, reference (b), and find it completely unsatisfactory. Nothing has changed. It's the same dog and pony show, just a new signature at the end of the letter.
In order to bring my concerns into proper perspective; let me review the circumstances of the case. My mother had a heart attack and died March 1, 1997. According to her medical records, she complained of symptoms of coronary artery disease (CAD), a dangerous life-threatening condition, on February 23, 1996, more than a year prior to her death. This was the first time she had ever made such a complaint. Her physician was aware of her symptoms as well as her diabetes and family history of heart disease. His use of the terms "ASHD" which is an abbreviation for arteriosclerotic heart disease, and "angina" on her 02/23/96 chart and thereafter confirm it. On 2/23/96 he prescribed nitroglycerine to treat the angina, a symptom of CAD, but he did not initiate a referral for her for tests to determine the severity of the disease, not then or ever. My mother's conditioned worsened over the course of the following year, a period in which she saw her physician eight more times. She complained of ankle edema on 07/30/96. She complained of being short-of-breath on 10/08/96, and again on 01/07/97, and again on 02/05/01. During this period of time her cholesterol rose from 258 to 363 mg/dl and her triglycerides reached a high of 1419 mg/dl on 10/03/96. On January 7, 1997, with my mother complaining of being short-of-breath, Dr. Barton once again prescribed nitroglycerine to treat her angina. Finally, with rising blood pressure and concerns she was going to have a heart attack, my mother went to see Dr. Barton, on February 5, 1997, the date of my father's scheduled appointment, under a sense of urgency, concerned she might soon have a heart attack. She left that day finally with an appointment to the Lebanon Cardiology Center for tests scheduled for February 11, 1997. Unfortunately, the tests Dr. Barton prescribed, a non-stress echocardiogram and a Holtor monitor EKG, are inappropriate for detecting CAD. The tests were negative, and my mother died three weeks later.
I filed my complaint against Dr. Barton on April 5, 1999. By December 1999 the case had been forwarded to the PA Dept. of State Legal Office where it has been ever since. In a letter the prosecuting attorney assigned to the case claimed on March 31, 2000 he was unable to obtain an "expert" to review the case. He repeated that argument on April 4, 2001. Counselor Dunnewold (reference (b)) continues to make the same claim. The prosecuting attorney is alleged to be looking for a cardiologist to review my case. In the course of the last 20 months the DOS Legal Office has reportedly approached two cardiologists. The first one knows Dr. Barton and therefore disqualified himself from reviewing the case. The second one reportedly would not sign a contract with the Commonwealth. That's it, in a year and two-thirds that's all that's been done. Two cardiologists have been approached. That's an average of ten months each. Were this a civil matter and your case and you hired an attorney to pursue action on the case, what would you do if that's all your attorney did in that period of time. You'd fire him, of course. I doubt there are many people in my situation who would believe the PA DOS Legal Office has made a serious attempt to find a so-called expert to review the case. Some would suggest the effort to be typical of government inefficiency perhaps, but that's not what I believe. I believe the foot-dragging is intentional. I believe PA State Boards of Medicine statistics support my opinion. I don't believe there was ever any intention to bring this case to a hearing.
The search for a Cardiologist is unnecessary. Ditto for a general practitioner. The requirement for expert testimony stems from judicial concern that absent the guidance of an expert, jurors are unable to determine relationships among scientific factual circumstances, McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971). In reference (a) I stated, "Pennsylvania law requires expert testimony to establish the applicable standard of care in medical malpractice cases." I then said an exception applies "where the matter is so simple and the lack of skill or want of care so obvious, as to be within the comprehension of non-professional persons." I failed to mention the ruling. I apologize for that. There have a number of cases citing it, the two most recent are Brophy v. Brizuela, 358 Pa. 400,517 A.2D 1293 (1986) and Brannen v. Lankenau Hospital, 90 Pa. 588, 417 A.2d 196 (1980). I have enclosed copies of those cases.
The most serious charge in reference (c), namely medical negligence, fits the definition of "exception to the general rule" like a glove. Let's discover why. My mother had Coronary Artery Disease (CAD). CAD is a life threatening disease. I think we can all agree on that. She first displayed symptoms of CAD initially on 02/23/96. Dr. Barton diagnosed coronary artery disease on that date. His notes on that date contain the abbreviation "ASHD" which stands for arteriosclerotic heart disease. His notes on that date also contain the word Angina. According to the AMA, angina pectoris is "pain in the chest and arms or jaw due to lack of oxygen to the heart muscle." Its cause is " inadequate blood supply to the heart usually due to coronary heart disease, in which the coronary arteries are narrowed by atherosclerosis (fat deposits on the walls of the arteries). Atherosclerosis is the most common type of arteriosclerosis. Dr. Barton on 02/23/96 prescribed nitroglycerine to relieve my mother's Angina. According to the AMA, nitroglycerin is "a vasodilator drug used to treat and prevent symptoms of angina pectoris." Therefore, Dr. Barton, on 02/23/96 recognized my mother had CAD. He noted it in his records, he prescribed nitroglycerine to treat the symptoms, but he did not initiate any action to refer my mother to a cardiologist for tests that would likely have saved her life, not then or ever. Throughout the course of the following year her condition worsened. On 10/08/96 with my mother's cholesterol at 376 mg/dl, her triglycerides over 1400mg/dl, and with my mother complaining of being short-of breath, Dr. Barton did nothing to protect her life. On 01/07/97, with my mother's cholesterol at 363 mg/dl, her triglycerides at 991 mg/dl, and with my mother again complaining of being short-of breath, Dr. Barton noted an increase in my mother's angina, and once again prescribed nitroglycerine. But he did not take any referral action that might have saved her life. So here it is in layman's language anyone can understand. My mother had a life-threatening disease that could have killed her at any time. Dr. Barton diagnosed the disease, acknowledging it in his notes. He prescribed a medication to treat the symptoms of the life-threatening disease, but at no time over the course of a year did he initiate any action to refer her for tests that might ultimately have saved her life. She died of a heart attack a little more than a year after first being diagnosed with CAD. This is gross medical negligence. Everyone can comprehend it. Cardiologists can comprehend it. General practitioners can comprehend it. Governors can comprehend it. Attorneys can comprehend it. I can comprehend it. Teenagers overdosed on MTV can comprehend it. Certainly then, the jury of doctors and nurses that constitute the majority body of the State Board of Medicine can comprehend it.
Had he not made the diagnosis, perhaps medical opinion would be necessary to determine if there was enough evidence to support the diagnosis. But he did make the diagnosis. Having made the diagnosis of a life-threatening illness, a physician is under obligation to take steps to protect the life of the patient. That goes without saying. Dr. Barton did not do that. It's obvious from his notes he did not do that. I have a list of medical term abbreviations acquired from "Public Citizen", the health research group. I have many times gone through the 9 charts that make up my mother's medical records over the last year of her life from the date she first displayed symptoms of CAD. I can confidently state Dr. Barton initiated no action to attempt to save my mother's life. It was only after she took the first step on 02/05/97, under a sense of urgency concerned she was going to have a heart attack, that he made a referral for cardiology tests, albeit improper ones. Anyone can do the same thing I have done. I mailed Attorney Greenwald a copy of those abbreviations, so now he can do what I have already done.
In reference (b) Counselor Dunnewold argues that "opinions as to whether a matter is so simple and lack of skill or want of care so obvious, as to be within the comprehension of non-professional persons may differ." Not in this case, remember, (1) Patient develops life-threatening disease, (2) Doctor acknowledges it, treats symptoms, but fails to order tests that could have saved patient's life, (3) patient dies. Please tell me who can't comprehend that. The court made the ruling available. I just laid it out for anyone with an average IQ to comprehend it. If I can do it, an attorney can do it, Presumably the court assumed a jury made up of individuals with a normal level of comprehension. In this case, the jury is the State Board of Medicine, some segment of it, or appointees thereof, all capable of the level of comprehension presumed by the court.
So why then do we need a cardiologist? To determine if there was enough evidence to make the diagnosis of CAD? No, Dr. Barton already did that. To determine if there should have been a referral to a cardiologist to learn the extent of the CAD? No, it goes without saying. Anyone competent enough to sit on a jury can comprehend the need for that step. Then what do we need a cardiologist for? We need a cardiologist in order to justify delay.
Pa. State Board of Medicine Statistics In reference (a) I cited uncomplimentary Board of Medicine data indicating the Board was failing badly in their assigned obligation to protect the public health and safety. In reference (b) Counselor Dunnewold responded with figures suggesting things were not so bad after all. The figures provided in reference (b) are of little value, however, other than to underscore the need to attempt to justify legitimacy by innovative presentation methodology, when the raw data does not support it. For starters, the summary figures from reference (b) are probably incorrect. In my initial letter I had referenced a PA State Board of Medicine Report (Winter 1998/99) that provided data on disciplinary actions taken by the Board from January 28, 1997 through March 24, 1998. Counselor Dunnewold reported Board data and statistics for the exact same time frame, but the numbers do not agree. If they were close one could overlook it, but they're not close. In her letter, Counselor Dunnewold reports 189 Board disciplinary actions in that time period, but the Board of Medicine Report lists only 132. Obviously they cannot both be correct. It appears to me that the PA State Board of Medicine Report is more likely to be correct. That's because the chart showing State Board of Medicine Disciplinary actions supplied as enclosure (1) to her letter does not correlate well with the numbers supplied in the main text. According to the chart, a total of 235 Board disciplinary actions, or a monthly average of about 9.8, were taken for all of 1997 and 1998. That average projects to 137.2 for 14 months. Even if I allow for average monthly differences due to slight differences in yearly totals, I still only get 140. Both figures compare unfavorably with the reported 189 in the text of her letter. However, both figures compare more favorably with the 132 disciplinary actions listed in the State Board of Medicine Report. I therefore conclude the State Board Report is more likely to be correct. I did not try to reconcile PA Board of Osteopathic Medicine figures because their Spring 1999 report covers a different time frame than the PA State board of Medicine Report and, thus, also the data provided in the text of enclosure (b).
Since the number of Board disciplinary actions as cited in reference (b), is likely to be incorrect in total, it is also likely to be incorrect at the sub level. However, I would like to go over the figures anyway because they reveal the difficulty any respondent to my letter has in attempting to justify PA Board of Medicine data in light of the Boards apparent abysmal record in regard to protecting the public health and safety. According to Counselor Dunnewold, 57 of the 189 disciplinary actions were cases involving elements of what the Legal Office considers being the most serious offenses: incompetence, malpractice/negligence, unprofessional conduct and sexual misconduct. However, in the next paragraph she admits 33 of the cases originated in other states. She goes on to justify the Board's reasons for taking such actions. By acting in this way, the Board is preventing potential future problems. Counselor Dunnewold also points out by acting on other states litigation, these cases do not have to be relitigated here. I have no problem with that. I agree with the action the Board has taken on these cases. However, I don't believe those actions should be summarized with other counts without notation that these actions originated in another state. Whether these out-of-state doctors would try to practice in this state is conjecture. Perhaps some would, but certainly not all and probably not most. Certainly, these actions do not usually have an immediate impact on the public safety in Pennsylvania. They are reactionary in nature, and do not represent much in the way of initiative on the part of the PA State Board of Medicine. Out-of-state cases appear to present a nice way to pad the count without inconveniencing practicing physicians in Pennsylvania. Perhaps they would be more meaningful if the Board also produced respectable numbers of disciplinary actions initiated by the Board to improve the health and safety of residents of the Commonwealth.
So after eliminating out-of-state cases, we are now left with 24 disciplinary actions involving issues of incompetence, malpractice/negligence, unprofessional conduct and sexual misconduct. These charges according to Counselor Dunnewold represent the Legal Office's assessment of the most serious offenses. I am not exactly sure what is meant by unprofessional conduct, but in the PA Board of Medicine report, I see it used in the same sentence as immoral conduct. I therefore conclude it is more closely related to sexual misconduct than to either incompetence or malpractice/negligence. I would not include unprofessional conduct and sexual misconduct with incompetence and malpractice/negligence. Why? Incompetence and malpractice/negligence are responsible for many more deaths and injuries than the other two. In my mother's case, her doctor acted both negligently and incompetently and she died as a result. Loved ones are irreplaceable. On the other hand, fondling is usually not fatal. While unprofessional conduct and sexual misconduct are undesirable, in regards to the public health and safety, they are not on the same level as incompetence and malpractice/negligence.
Counselor Dunnewold does not provide a further breakdown of the 24 cases, but I can get an idea of the approximate breakdown by looking at the PA Board of Medicine Report. Remember that the figures from that report would by definition make up at least a substantial portion of the counts from reference (b). The Board report shows 4 cases indicating indecent assault or sexual misconduct, 5 cases reflecting nonprofessional conduct and 1 each containing the terms incompetence, malpractice, and negligence. That's 12 in all with only 25% involving incompetence, and malpractice/negligence. If we project those figures against the remaining 24 cases, we end up with about 6 out of 189 disciplinary actions initiated by the Board involving incompetence, and negligence/malpractice. That's if one assumes the data from reference (b) to be correct. However I've already concluded reference (b) data is probably not correct, which then leaves us with the PA Board of Medicine Report which shows 3 out of 132 disciplinary actions over a 14 month period initiated by the Board involve charges of incompetence and negligence/malpractice. That's pathetic. With either set of figures it's pathetic. Worse, review of the negligence case documentation at the Prothonotary's office reveals the case involved repeated prescription of a controlled substance, which is more likely the driving force behind the case. Negligence in that case appears to be a charge of convenience. There's a wide chasm of reality between the PA State Board of Medicine's mandate to protect the public health and safety and the evidence that it is doing so. Counselor Dunnewold's reference to "generally increasing numbers of disciplinary actions over the past ten years" is without substance since the foundation for those statistics is fluff.
If the PA Board of Medicine were really interested in protecting the public Health and Safety, it seems to me it would want to know why Dr. Barton allowed my mother's acknowledged life-threatening condition to go unchecked for more than a year. It seems to me if the PA Board of Medicine were really interested in protecting the public health and safety, it would want to know why, on February 5, 1997, after my mother took the initiative, he sent her for cardiology tests inappropriate with his diagnosis of Coronary Artery Disease. On February 23, 1996, the date on which Dr. Barton first prescribed nitroglycerine for my mother's angina he made an entry in her records stating "Most recent Stress Thallium 1992." Yet when one looks back in the records to 1992, the only cardiology tests he prescribed for her were the same inappropriate combination of Holter EKG and non-stress echo he prescribed for her on February 5, 1997. Is that what Dr. Barton believed a Stress Thallium to be in 1996 and again in 1997? Or is there some other kind of explanation as to how or why that entry is there? Does the Board know? The Board's "Probable Cause Committee" appears to be hot-to-trot and a consent agreement in the offing when there is a criminal or controlled substance case. Why not one involving incompetence or negligence that has a more direct relationship on the public health and safety of the citizens of this state. More than two and one-third years after submission of my complaint, the Board still does not know the answers to these questions. If on February 5, 1997, Dr. Barton did not know of an acceptable cardiology test for an elderly CAD patient unable to exercise, presumably he did not know it before that date. It stands to reason then, that any of Dr. Barton's elderly and debilitated patients needing a pharmacologic stress test before February 5, 1997 did not get one. Did anyone else die as a result? Does the Board know? Does the Board care?
If the PA Boards of Medicine were serious about protecting the public health and safety, it seems to me the Boards should be looking for ways to improve it. Perhaps whomever you designate to answer this letter could inform me (be specific, no charts please) as to what the Boards have done to improve the public health and safety since the beginning of your first term in office. For future consideration, let me offer some suggestions. (1) Peer review or a patient advocacy program for the very young and elderly. Had I been privy to any of my mother's blood lipid reports in the last year of her life, this tragedy would not have taken place. Privacy issues can be resolved by approval of the patient. (2) Basic written health care standards to which doctors could be held accountable. Is there a better organization than the already mandated State Boards of Medicine to provide those standards? (3) Protecting health care consumers from alteration of records by doctors. The technology exists to accomplish this now. The costs for that technology have never been lower. Because information contained in medical records is crucial in legally contested medical claims, once individual patient charts are completed, they should be treated as public domain and not the property of doctors.
After dissecting the Board of Medicine's record of disciplinary actions against doctors, I suspect few if any originated as a result of private citizen complaints submitted to the Bureau of Professional and Occupational Affairs, the greatest potential source for primary (as opposed to convenience) claims of incompetence, malpractice, and negligence. It's doubtful the malpractice case cited above in the PA State Board of Medicine Report, while a primary malpractice case, came through the BPOA Complaints Office. The voluntary surrender of licensure under consent resulted from the death of a patient at Polk Center, a facility for the mentally retarded run by the state Department of Public Welfare. If the truth could be derived, it would be interesting to know how many of the 132 disciplinary actions taken by the PA Board of Medicine against doctors from January 28, 1997 through March 24, 1998 originated as private citizen's complaints (file numbers please) to BPOA. Secondly, if the count is greater than zero, specifically which categories those numbers fit into? Could it be few complaints against doctors were received from the general public? Shortly after I filed my complaint against Dr Barton in April of 1999, I received a letter from BPOA confirming receipt of my complaint and stating BPOA could not provide me with "regular status due to the number of cases." I understand BPOA provides administration services for other occupations as well. According to the BPOA brochure I was provided, BPOA administers to 25 additional occupational boards besides Medicine. So against which occupations are the bulk of those voluminous BPOA cases being registered if not Medicine? Is it Auctioneers? Barbers? Real Estate Appraisers? Land Surveyors? Delaware River Navigators? Unfortunately, it should be obvious to any discerning party that despite the mandate, the State Boards of Medicine have shown little interest in protecting the public health and safety when it conflicts with maintaining the self-serving interests of doctors, physician organizations, and the lobbyists that represent them.
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