NYC NOW - Imminent Danger Ep 4: One Doctor and a Trail of Injured Women

Episode Date: October 28, 2023

After leaving the Oklahoma City area, Dr. Thomas J. Byrne started working at a new hospital a few hours away, in a rural area in the northeast corner of the state. It was there that Sue Ackerson came under his care for a hysterectomy and quickly noticed something wasn’t right after the surgery. She would be one of four women to file lawsuits against Dr. Byrne for incidents that occurred over the span of a year. Ackerson’s attorney would later discover that the medical director of the hospital was actively concerned about Byrne and kept a personal file on him. What is a hospital obligated to do with that kind of information? More than thirty years ago, Congress designed a system to help state medical boards and hospitals track physicians nationally but patient safety experts say that system is full of loopholes – including ones that may help explain how Byrne’s record may have avoided some red flags.Listen to our earlier episodes:Episode 1: Wrongful DeathEpisode 2: License RevokedEpisode 3: The Gatekeepers

Good morning and welcome to NYC Now. I'm Junae Pierre. Happy Saturday. We are now on episode four of our five-part series, Imminent Danger, one doctor and a trail of injured women, produced in partnership with the Pulitzer Center. Here's Christopher Worth, investigative editor at WNYC and Gothamist. In our last episode of Imminent Danger, we heard about a cluster of lawsuits filed against an OBGYN named Thomas Byr. while he practiced outside Oklahoma City.

I had absolutely no idea what he had done to me. I expected a hysterectomy, but I did not expect my stomach to be poached out like I was nine months pregnant. We also heard from the state medical boards that gave Byrne licenses to practice after he lost his medical license in New York. Do we hope that the doctors do the right thing?

Absolutely. But we also... also know that they're just like the general population, too. I mean, they can tell lies and be dishonest as well. In this episode, Loopholes. Our reporter Karen Chikurgy picks up where we left off in the last episode, at a new hospital in another part of Oklahoma. And we look at how the federal government actually identified this problem

of doctors with questionable track records bouncing from place to place in the 1980s and how it created a way to try to fix it. Here's Karen. While I've reported this story, I've spoken with some doctors who've worked directly with Byrne, who've told me he's a great doctor and takes good care of his patients. None of them agreed to be interviewed, unfortunately. They've also told me to be careful about what I say about his track record, that even if a doctor has been sued a lot,

that doesn't necessarily mean they're a bad doctor. In fact, I've been told it's the patients you might want to take a look at. The patients are just looking for a way to get some money, or the patients are unhealthy and high risk, so of course there's going to be some bad outcomes. Which is all to say, a lawsuit or even a settlement, is not necessarily confirmation that medical negligence happened. It's just one piece of a bigger picture. But in this episode, I want to tell you about something else I've found. Evidence that doctors overseeing Byrne along the way, not only his patients or nurses, questioned his work as a doctor.

One instance of this came to light after an attorney named Ken Underwood heard from some of Dr. Burns' former patients from a hospital near Tulsa called Craig General. I was contacted by several different women who had injuries that arose from surgeries that were performed on them at that hospital. Ken ended up representing two patients in lawsuits against Byrne, although he says he counseled even more of his former patients. This is the only time that I've had three or four people contact me with similar cases against the same doctor. So what did this attorney find? So Ken goes out to Venita to depose a doctor named Edward Allensworth for one of the cases. Allensworth was the medical director at Craig General at the time and oversawburn while he worked there. Allensworth died in 2020, but I did read a book about his life and work as a doctor.

He practiced in Veneta for decades, starting in 1963. He was celebrated as the Oklahoma family practice physician of the year at some point, and people I've spoken with have told me he was very well respected. What do you remember about the deposition? I know it was some time ago. You know, was there anything noteworthy that came out? Dr. Allensworth had personally been keeping a file or dossier on Dr. Byrne in his desk drawer. and that he maintained this file to monitor Dr. Byrne.

What was in this dossier, as he calls it? Allensworth tells Ken in the deposition that he kept copies of letters and correspondence with Byrne in it, as well as records of patients that he saw, where Allensworth thought there was something, quote, abnormal going on. And what does that mean exactly, abnormal? It's hard to tell exactly. Ken was never able to view the contents of the file himself,

but I was able to get a document that's basically an anonymized list of at least parts of that file. And it shows that Allen's Worth had information on at least eight patients. The list specifies mostly gynecological surgeries like hysterectomies, but also references procedures like C-sections. It was evidence that the hospital, through its medical director, had a clear understanding of the challenges that Dr. Byrne had while he was practicing there

at Craig General Hospital. I'd like to err on the sight of caution and believe that he was looking toward seeing Dr. Byrne make progress and become a better doctor. Yeah, I just wonder how to reconcile that with the need for good, safe, patient care. Well, I don't know that there's a way to reconcile it because patient care really should take priority over a kind heart. So if Allen's worth is tracking these cases like this, what does the hospital then do with that information? In the deposition, Ken asks Allen's worth about these, quote, abnormalities that he noticed from the surgeries Byrne performed.

Ken says, was Byrne given any type of reprimand or discipline or restriction of privilege? And Allen'sworth says no, that it wasn't, quote, necessarily surgical errors. But in the same breath, he then acknowledges that there were a couple of surgeries where there had been injuries. What Allen'sworth tells Byrne is that if there are, quote, further injuries, they should, quote, probably restrict his privileges to do those kinds of procedures. And according to the date Allensworth gives in the deposition for when he and Byrne had that discussion, there was another alleged injury about a month later.

Can you just talk me through, I mean, the signs that something wasn't right? I had just this almost like a heaviness feeling in my stomach, nausea a lot. Sue Ackerson is a patient that saw Dr. Byrne for a vaginal hysterectomy in 2005. She was one of Ken's clients. My belly was huge. And it wasn't like severe pain. It was just this continuous ache. After talking with Sue, I was struck by just how much her experience mirrored Marquita Bairds.

Marquita was the patient who saw Dr. Byrne in the town outside. Oklahoma City about six years earlier. And like Marquita, Sue also found herself back in the hospital within days of the hysterectomy, noticing some concerning changes in her body. I actually looked like I was about nine months pregnant. I thought my stomach was going to explode. It was like so tight. I knew we needed to get out of that little hospital away from that doctor and find somebody that could figure out what's going on. Sue's lawsuit, which also named the hospital, Craig General, claimed that Byrne had injured her uriders during the surgery.

The urators are the tubes that carry urine from the kidneys to the bladder. And just like in Marquita's case, another doctor at another hospital determined that urine was essentially collecting inside of her body with no way out. That's where they kept telling me I was like a septic tank. That's one of the things I remember. It's like you're a human septic tank. So this is two instances where very similar injury has occurred. How common is something like that? Studies show that this kind of injury is a known risk, but it's not common with this particular kind of hysterectomy. It happened less than 1% of the time.

Sue had to have a slew of procedures to recover that spanned several months, according to her lawsuit. In a letter to the hospital, Ken Underwood, her attorney, wrote that she'll, quote, be at risk for medical complications involving her bladder, ureters, and kidneys for the rest of her life. I was pretty sure my husband thought I was not going to survive. Sue's case eventually settled. Three other women filed lawsuits against Byrne for care they received. Two of them settled. Most also named the hospital. He had privileges there for about a year and a half. And just to be clear, these were four new lawsuits. And what I've come to think of as a second cluster of cases in Oklahoma, separate from the six that happened near Oklahoma City years earlier.

You know, I just knew I needed to move on. How did you kind of process all of this? I just wanted him stopped. I wanted him to lose his license and not be able to practice, which, you know, we checked to see where he was at. And I think, I don't know if they let him go, if they fired him, or if he just quit, or I don't know what the procedure happened there, but he left Vanita quickly.

He didn't stick around after my issue. He was gone. I also wanted to know on what kind of terms Byrne left, because the terms in which a doctor leaves a hospital determines what information hospitals have to disclose to the federal government. And likewise, what information other hospitals, meaning future employers, should be able, to easily find out. I found a document that describes the terms of Byrne's departure, and it presents his time

at Craig General in a more favorable light than what court records say happened while he was there. Coming up, we take a close look at what hospitals are required to report about doctors

and what sometimes happens instead. How do I say this? You know, I think the public needs to recognize that the medical industry is an industry just like any other. We could have not given privileges, even though he had a license. The only people to stop being harassed. Karen, you've told us about how Byrne left that hospital, Craig General. What have you been able to learn about why he left? Well, according to the deposition we have of that doctor I told you about who was supervising Byrne at Craig General, Dr. Allensworth.

Things started to escalate for Byrne there after sue surgery. In the deposition, Allensworth quotes a letter that he sent to Byrne. This was still in 2005. He said, quote, Dr. Byrne, this will verify our discussion today. So they obviously just had a conversation. And he continues that you will do no more laparoscopic assisted vaginal hysterectomies at this hospital, the privilege of which you have voluntarily denied yourself. Voluntarily denied.

Yeah. What exactly does that mean? It essentially means that technically the hospital wasn't taking away his ability to do the kind of surgery he'd done ensue. Byrne gave them up. And that might seem like a small detail, but it's actually significant because if the hospital had restricted Burns' clinical privileges long-term in a case like this, they would have had to report it to this thing called the National Practitioner Data Bank. Okay, I've actually heard you talk about this. this is the thing that Congress set up. Yeah, so back in the 80s, the federal government started to pay attention to the very issue we're talking about in this story, doctors with concerning track records hopping between hospitals or states.

And to make that harder, Congress established this thing called the National Practitioner Data Bank. It opened in 1990. It's a database that collects and provides information about all kinds of. of stuff, a doctor's licensure, clinical privileges, what professional societies they belong to, and medical malpractice payment history across states and hospitals. And until then, there was this other source of information that's still around. It's run by something called the Federation of State Medical Boards, but they only hold information about a doctor's medical license or disciplinary action that's been taking against them.

none of the other stuff I mentioned. And are you able to view what's in that national practitioner data bank on Dr. Byrne? No, there's a version of the data bank that's accessible to the public, but to protect privacy, it's totally anonymized. So it's been around for 30 years, but obviously this kind of state hopping, hospital hopping, this is still something that happens. Yes, experts I've spoken with have told me that the database. Bank has helped a lot and that it essentially would be the solution to the issue of doctors hopping between hospitals or states if it was used correctly. The underlying issue with all of this is that the National Practitioner Data Bank is only

as good as the information that is put in it. So I found two kind of guides into the whole world of the National Practitioner Data Bank is, Databank. Nadia Suwiki is a law professor at Loyola University in Chicago, and Robert Oshall. He worked at the NPDB for 15 years. He set up a program there that analyzed the information that was submitted to the data bank. We sort of had the saying that everybody loves to get information from the data bank, but nobody wants to have to report it to the database. Both Nadia and Bob told me that one of the biggest problems is that hospitals don't feed the data bank with information like they're supposed to. So one obvious reason for underreporting.

If you are a hospital employing a doctor or if you are a colleague of a doctor who has done something shady, there are reputational disadvantages to reporting them. That's the most obvious thing. The other issue is that there's really no enforcement mechanism for these reporting requirements. In other words, as a practical matter, if a hospital fails to report a misbehaving doctor to the data bank, practically speaking, no one is going to catch that. This sounds to me like one of those classic policy failures, right? I mean, you set up something that sounds like a good idea, but that it doesn't necessarily do what it's supposed to do on the ground.

So do any of these hospitals actually do this? Yes. I did get some numbers from the federal agency that hosts the data bank, the health resources and services administration, about this. and they told me that in the 30-plus years that the data bank has existed, about 45% of hospitals have never submitted even one clinical report involving adverse actions taken to a doctor's privileges. Wow.

To be clear, hospitals are legally obligated to report certain issues, but what Nadia and Bob explained to me is that there are loopholes. hospitals can use to avoid that requirement. So, yeah, it's effective. It's doing what it's supposed to be doing. It could be more effective if these loopholes were closed. I want to tell you about three specific loopholes I learned about, three that when I looked at the court records may help explain why

there were some concerning events in Burns' career that likely did not. get reported to the data bank. Again, the data bank is anonymized. First, the 30-day rule. Hospitals only have to report doctors when something happens that affects their ability to practice for more than 30 days.

So sometimes, if there's a disciplinary action against the doctor, the hospital will make sure that that discipline is under the 30-day reporting threshold. So, for example, when Dr. Byrne was working at Seminole Medical Center, the hospital near Oklahoma City, they did suspend his privileges and open an investigation on him. But after completing it, the hospital decided to lift the suspension. Because the matter was resolved in less than 30 days, that's something that doesn't need to be reported. And actually, the hospital explicitly points that out in a letter I had.

that they wrote to burn. It says, quote, because these matters were able to be resolved within a 30-day time frame, there is no reportable event to the National Practitioner Databank. In the second loophole? The second one is about malpractice payments.

Any malpractice settlement that is paid out on a doctor's behalf, so either by a hospital or an insurance company are supposed to be entered into the data bank. But what I've learned is that sometimes, even if a doctor is named as a defendant in the lawsuit,

they won't be named in the settlement. So that doesn't make it in. And that's actually what happened in the lawsuit regarding Amy Lamb's death at Harlem Hospital that I told you about at the start of the series. According to Sue Carton, Amy's family's attorney, even though five doctors, including Byrne, were named in that law.

lawsuit, only New York City Health and Hospitals was included in the settlement. So that malpractice payment wouldn't get reported to the data bank for any of the doctors. Bob told me this loophole is referred to as the corporate shield. And even worse, the plaintiffs were told that if you sue just the hospital, don't even name the physician in the first place, we'll be much more likely to settle this case. And so the physician never gets. today. And finally, and to me, this one seemed the most significant in some ways. Number three, it has to do with resignation. And just to be clear, I don't know if this is what happened in Burns case specifically, but if a doctor voluntarily resigns from a hospital when a problem

arises versus a hospital taking away their privileges, that is not reportable to the data bank unless there's an official investigation going on. In that case, a resignation is supposed to be reported. So what can happen is that the physician will be tipped off quietly before the investigation begins, says, we're going to start an investigation on you tomorrow. You might want to resign your privileges today that he does, there's no report to the data. It's not something that an ethical hospital does, but it happens a lot. I learned that there's even a caveat that says, if a doctor resigns just to avoid an investigation, that should get reported. But, you know, Bob told me that's a hard thing to prove because these conversations are happening sort of behind closed doors in the first place.

It's so confusing because you would think that hospitals would want to be honest about what is going on with physicians as a way to like, maybe this is a little naive, but as a way to save another hospital from potentially dealing with a bad situation. How do I say this? You know, I think the public needs to recognize that the medical industry is an industry just like any other. Hospitals, even nonprofit hospitals, want to stay in business. They want to have a good reputation. They don't want to be sued. And they are going to act to further those interests. which may sometimes come at the expense of patients and the general public.

While I was trying to figure out the terms on which Byrne's time at Craig General ended, I found a footnote in a document filed by a plaintiff in one of the Oklahoma lawsuits that refers to some letters that were exchanged between Byrne and the hospital, resignation letters. According to the lawyer's description, Byrne resigned voluntarily a few months after Sue Ackerson's surgery, and he negotiated terms with Craig General as to what the hospital would say if it's ever asked to provide a reference for him. And according to the lawyer's description, what they agree on is that Craig General would, quote, promptly report that that Dr. Byrne had active medical staff privileges in good standing from initial date of privileges

through voluntary resignation. And if they were ever asked about surgical outcomes, they would say, quote, there was one post-op case in which a patient was referred for repair of urators, which, again, just to be clear, does not match up with what actually happened. according to the records we have. In his deposition, Allen's worth, the medical director at the hospital at the time, says Byrne gave up clinical privileges to do a specific type of surgery, and he refers to more than just one case.

And you tried to ask Dr. Byrne about all of this and get his take on it. Yes, I have. He hasn't responded to several requests to talk with me about his time, specifically at Craig General or any other aspects of his career. We have tried to reach him by phone, text, email. We sent questions via certified mail. WNIC's Health and Science editor, Sikkan, Akpan, went to visit him at the clinic he works at in the Bronx. Yeah.

We're with WNYC. It's a radio station here in New York City. We're trying to speak with Dr. Thomas Byrne. The last time he was here was probably June. He does everything virtual because he works in another stage. The nurse attendees said that he only comes in once a month maybe and that the last time he was here was, what, three months prior to now. I also reached out to St. Francis Health System, which bought Craig General Hospital in 2016.

They said they're not able to comment on activities or operations related to Craig General before they acquired it. It was wrong for him to have been practicing in Oklahoma. It was wrong for him to have been practicing in our facility. It was wrong. This is Robin Kemp, again. She was the director of nursing when Byrne was at Craig General Hospital. And I want to be clear, just because somebody has had a bad outcome,

or maybe they've had a couple of bad outcomes, that doesn't make a bad provider or bad physician. But when you have a pattern, then there's a problem. She told me she feels like the hospital failed to make the right call about him before even giving him

privileges in the first place. It should have came up in their credentialing process. The number of cases for him and in the specialty he was in, that was a definitely big red flag, in my opinion.

If Oklahoma would give him a license, we could have not given him privileges. The only people to stop. were us. All of this did make me think of something that Robert Oshall told me that sometimes, even when hospitals see reports in the data bank or find out about concerning history some other way, they'll still move ahead and hire the doctor.

For instance, if you're in a small rural hospital trying to recruit a hard-to-recruit specialty, you might overlook problems in the physician's record that wouldn't be overlooked by a hospital that has an easier time recruiting somebody. So is it better to have a questionable physician or no physician at all? That's the dilemma they have in some cases. You know, health care in rural America,

you know, they need providers of all different kinds that we have. I have to stop and think, we can't just take anybody. And I, you know, but this was, this is my community. We're a small hospital. We take care of our families and our neighbors, and we're supposed to protect them for people like that. And you think, had someone been louder or more forceful,

could we have prevented something? But then if he leaves and he still goes, someplace else and does it all over again. It's heartbreaking. So, Byrne voluntarily resigns from Craig General in 2006. Where does he go after all this? He returns to New Mexico, this time to another small city, not too far from the Mexican border. Five more patients file lawsuits against him, cases that involved more alleged injure.

a perforated colon, a damaged urator, a damaged bowel, and yet another instance where Byrne allegedly left an object inside a patient's body after surgery, a sponge. And then in 2010, while the lawsuits continue to unfold, Byrne submits an application to restore his medical license in New York, the very one he lost about, 20 years earlier in 1991. Coming up, in our last episode of the series, Dr. Byrne returns to New York. I was lied to. I thank everybody that was involved in that case was lied to. They even said he will never practice medicine again in New York State.

Don't we both wish you had more information? I'd love to have more information. Yeah. there seems to be more to the story than we're able to read so far. You have the Reader's Digest Version, but not the deep version. Imminent Danger. One doctor in a trail of injured women was reported by Karen Shakurgy and edited by me, Christopher Worth. It was produced in partnership with the Pulitzer Center. Our executive producer is Ave Corrie. We had additional editing by Sikon Akpan,

Stephanie Clary, and Sean Boutich. Ethan Corey is our researcher in Facture. Checker. Jared Paul is our sound engineer. He also wrote our theme music. We had additional reporting and producing from Jacqueline Jeffrey Willinsky, Owen Agnew, and Catherine Roberts. Special thanks in this episode. Go to Amber Bruce, Ann Carr, Robert Campbell, Rob Christensen, Dr. Benedict Landren, Nick Oxford, Maggie Stapleton, Pam Prater, Wayne Schulemeister, and Gina Voste. Thanks for listening. Be sure to check out NYC Now next Saturday morning to hear the conclusion of imminent danger. I'm Jenae Pierre, and we'll be back with the local news and headlines first thing Monday morning. Until then, have a great weekend.