Ten years on
Today this blog reaches a milestone. It was 10 years ago – on Aug. 28, 2004 – that the first item was posted here. The headline was “Why did Lisa die?”
By David Baker
Posted August 28, 2014
For the first four years, the blog chronicled my efforts to answer that question. It described my request to the state Department of Health for an investigation, and the decision by the department seven months later in a single paragraph that said hospital staff had not departed from the standard of care when Lisa’s blood glucose level dropped to the 2 mg/dL recorded in her chart. The blog reported on my two lawsuits against defendants who were involved in Lisa’s care at Samaritan Hospital in Troy, N.Y. in November 2003. Later it described how my attorney, Cynthia LaFave, abandoned the case without telling me, ignoring 12 discovery demands served by Samaritan’s lawyers over seven months that I learned of only after I became concerned and checked the case file at the county clerk’s office on the day the hospital’s motion to compel a response from LaFave was due to be heard.
Later posts described my attempts to find another attorney while I fought the hospital’s request to the court to throw out the lawsuit, and how the high-profile Albany lawyer Stephen Coffey of O’Connell & Aronowitz called me and offered to review the case that his firm had earlier declined – and then, in what can only be seen as a brazen attempt to get my case tossed out, stated in writing that the firm had asked the court for a delay of the hospital’s motion to dismiss when, as he later admitted, no such request had been made. The case was not dismissed – but only because, against the urging of Coffey’s associate, Brendan Tully, I filed my own affidavit opposing the hospital’s motion. The judge then ordered me to pay $100 to each of the three defense law firms toward their costs of motions they had filed because Coffey had not notified them as instructed by the court. Coffey stated in writing that he would reimburse me this money but he did not do so until I obtained a judgment against him in small claims court.
Subsequent posts described my complaint about Coffey to the Committee on Professional Standards, and how the committee allowed me to see – but not receive a copy of – Coffey’s response only after I had written to a judge on the Appellate Division, of which the committee is a part. Among several false statements Coffey made to the committee in a letter he evidently had been assured I would never see was that his firm did not and had never represented Samaritan Hospital. The letter was dated one day after the firm filed a lawsuit against the state Health Department on behalf of several plaintiffs – one of them Samaritan Hospital.
That and much more was dismissed out of hand by the committee staff member, who allowed me to read Coffey’s letter but not touch it or take any notes. Later I went back to the committee’s offices to view a letter from Brendan Tully, Coffey’s associate at O’Connell & Aronowitz, which the committee had neglected to tell me it had. Again, the same staff member blindly defended Coffey and the firm even as it became apparent that he hadn’t bothered to read the file. This time I had a small digital recorder in a pocket and a microphone under a sleeve and I recorded the entire conversation.
Many weeks later I received a letter from the committee, which said it had found no wrongdoing in Coffey actions. The wording was almost identical to the one I had earlier received in response to my complaint about Cynthia LaFave.
After the Health Department’s ruling that Samaritan Hospital’s care had not violated any state regulation I wrote to the chairmen of the health committees in the Assembly and Senate, Assemblyman Richard Gottfried and Senator Kemp Hannon, describing what had happened to Lisa and suggesting that their committees examine what appeared to be grossly inadequate regulations. I also asked if they could obtain the full report on the health department’s investigation of Lisa’s care, which the department had repeatedly refused to provide to me.
It took several months to get any response from either man. A member of Hannon’s staff told me each time I called that someone would get back to me, but no one did. Then, when I pointed out to her that she had been saying that for almost a year, Hannon told New York Post state editor Fred Dicker – who had mentioned my attempts to get Hannon’s attention on his radio show – that I had been rude to his staff. Dicker evidently believed it and dropped the matter.
I never did hear from Hannon, which might be because while chairman of the Senate Health Committee he had received almost a million dollars in campaign contributions, most of it from health care interests and some of it directly from Northeast Health Inc., the company that operates Samaritan Hospital.
Gottfried, who also had been mentioned by Dicker, eventually did try to help. He wrote to then-Commissioner of Health Antonia Novello, asking for a copy of the department’s report. Novello refused to give it to him and Gottfried, while acknowledging that I might not find it satisfactory, wrote in a letter to me that he would take it no further.
Meanwhile, on a Sunday in September 2004 I had become aware of something that was to take a considerable amount of my time and attention over the following 10 years. I was reading the Albany Sunday Times Union when I noticed that there were several advertisements for Northeast Health, which in addition to Samaritan Hospital, operates Albany Memorial Hospital and several nursing homes, assisted-living centers, rehabilitation facilities and clinics. Each ad was a quarter-page. There were four of them in that one issue. And then I realized that I couldn’t remember when I had last seen a story about a lawsuit against Samaritan or any other hospital in the area. A search of the newspaper’s online archive showed why this was; there hadn’t been any such stories in the previous five years. I wondered how the paper’s editor, Rex Smith, and its then-publisher, David White, would explain this so I wrote to them. Neither of them even acknowledged the letter.
With LaFave gone and no attorney willing to take over my lawsuit, I became what the British call a litigant in person. I responded to seemingly endless discovery demands from the three law firms representing the defendants, sat for a deposition and deposed a nurse and a doctor. I asked the judge to compel Samaritan to produce key pages missing from Lisa’s medical chart. But despite evidence that the documents existed, state Supreme Court Justice Stephen Ferradino refused to grant the order. Later, Samaritan’s lawyer, Kathleen Ryan, said that the hospital was willing to settle. But she said that the insurance carrier wanted a final review before making an offer. I waited; weeks went by. Finally, during a hearing in Ferradino’s chambers, Ryan offered $25,000.
The medical bills for the three weeks Lisa was in a coma in the ICU from when she was injured to when she died came to $81,000, of which Samaritan had received $74,000. Even if Medicare had settled for only a third of that, the remainder after deducting the fee and costs that LaFave wanted wouldn’t even have paid for the funeral. I turned it down. And soon the reason for the long wait for an offer became clear; it was so that a doctor at Albany Medical Center Hospital, Matthew Leinung, could put his name to an affidavit supporting Samaritan’s motion. One of his statements was that failing to treat hypoglycemia with not just quick-acting glucose, such as orange juice or dextrose via and IV, but then with a longer-acting carbohydrate – crackers, bread, etc. – was not a departure from the standard of care – even though that is the universally accepted treatment. It was spelled out on the Web page of the American Diabetes Association – of which Leinung then, and as recently as 2013, was an active member.
Leinung also appears to be a coward; his resume, a copy of which was submitted to the court, said nothing about the 15 years he had then been working at Albany Med. He evidently thought he could remain anonymous. Not so. Twenty minutes after seeing his name I had his home address, his phone number, a photograph (from Google Street View) of his house in Menands and even, from an online mortgage document, the name of another doctor who appeared to be his live-in partner.
Defeating the motion would have required an expert who, even if he or she survived the certain challenge, would likely have cost as much as the $20,000 that was probably paid to Leinung. And Ferradino could simply have dismissed my claim, just as he had refused to grant me an order for the medical records. Samaritan’s lawyers had evidently calculated that I would not risk that much money even if I could come up with it. They were right; I did submit an affidavit but the outcome was predictable; the motion was granted; my lawsuit was dismissed.
With the lawsuit over, I turned my attention to all those claims that the area’s newspapers were ignoring. To do this, first I search the online database of the state’s court system. Then, armed with the index numbers of cases against medical providers, I go to the offices of the county clerks, get the files and look for claims that were newsworthy. With copies in hand, I head home to write a story.
The procedure for obtaining records varies by county. In Albany County, the documents are all on paper. The staff pulls files on request and there’s a limit of five files a day. Rensselaer County has moved forward since 2008; many documents have been scanned and can be viewed and printed from terminals in the office. Saratoga County – where my biggest story so far, Susan Stalker vs. Akiva Abraham and Samaritan Hospital was filed – is already in the future; almost all files can be accessed and printed from anywhere.
The final step before posting each item is to check the newspapers’ online archives and Google to see if the lawsuit had been mentioned. In six years, I have found none. If a case involved a death, I would also look for an obituary that might provide details of the person’s life that could be added to the piece
By early 2011, details of many lawsuits had been posted here and I decided I needed a ‘front page’ and a place where links to stories on the blog and longer, more significant articles – such as the first one on the Stalker case and my account of Lisa’s last three weeks – could be placed. So I launched a web page and registered ‘northeasthealthclaims.com’ as its address. Seven months later I was in the records room at the Rensselaer County clerk’s office using the words ‘Samaritan Hospital’ in a computer search when I saw my own name. It was a lawsuit, not against the hospital, but filed by it. And I was the defendant. It alleged that my use of the words ‘northeast health’ in my domain name was damaging the hospital’s reputation. It demanded an injunction and an unspecified amount in damages and costs.
Once again I was a litigant in person, filing and responding to discovery demands and other documents. I served a counterclaim for the pages from Lisa’s medical records that I believe were withheld during the wrongful-death case. I filed a motion asking the judge, Andrew G. Ceresia, to recuse himself due to his previous employment at a firm that represented Samaritan Hospital in the earlier case. Samaritan filed an objection to my motion. Ceresia stayed. My demand for the allegedly withheld documents was denied. I filed a demand for details of Northeast Health’s spending on advertising and public relations.
The hospital had said it was ready for trial. But the prospect of eventually being compelled to turn over the ad-spending information apparently had an effect. There was no trial. Almost two years after it was filed, the case was resolved. And my web page continued with a new address: capitaldistricthealthclaims.com.
Ten years after I wrote to Times Union editor Rex Smith about his paper's suppression of news, and six years after posting the first lawsuit stories on this blog, the TU is still ignoring claims of malpractice filed against its advertisers. Now its current publisher, George Randolph Hearst, III, sits on the governing board of St. Peter's Health Partners and chairs fundraising committees that have raised millions for the organization.
Meanwhile, patients in the area's medical facilities (most of them now run by St. Peters Health Partners) continue to be victims of serious but totally avoidable injuries. Some of them or their families file lawsuits – and then spend years battling defense lawyers who are funded by an immensely wealthy insurance carrier.
And thanks to the newspapers' silence, almost no one knows about it.
This means that the providers can fight virtually every claim, even when they know they are liable, while maintaining a public image of being competent and caring. In one such case an anesthesiologist and a nurse both admitted to state investigators that they separately gave a patient, Joseph Bartoski, a large dose of a blood thinner that caused him to bleed to death. But despite these admissions the defendants continued to fight the claim until settling just before trial for $350,000.
That money – as well as the legal fees on both sides – was ultimately paid by the public in the form of medical costs increased in part by the ever higher malpractice-insurance premiums that providers and insurance carriers claim are destroying the country’s healthcare system.
And its not that the area’s newspapers ignore all claims of medical negligence. In 2005 a lawsuit filed on behalf of the estate of Laura Woolsey got lots of media attention; the Times Union published several stories and an editorial. But another case with very similar allegations, filed on behalf of the estate of Joan Clark a few months earlier, was ignored. Not a word, then or when it settled three years later.
The difference? Woolsey was in the Schenectady County jail and her claim was against the county and a prison medical-services contractor. The Clark suit was filed by former Rensselaer city councilman Fred Clark against Albany Memorial Hospital, which was and still is part of an organization that is one of the TU’s biggest advertisers.
But the most glaring evidence of the newspapers’ corruption is the coverage that was given to – and not given to – former doctor and now state prisoner Akiva Abraham. From 2007, numerous stories were published in the newspapers about the gynecologist: “Board revokes doctor’s license”; DA investigates doctor’s conduct”; Physician loses bid to regain license”; “Owner held in club fire”; “Club arson suspect is released on bail”; “State: Boss shorted wages”; “Hung jury in arson trial”; “Jury deliberates in club arson club retrial”; “State moves to seize assets of ex-doctor”; “Ex-doctor files for bankruptcy”, and in 2013, reporting a decision by the state’s highest court, the Court of Appeals that affirmed Abraham’s 4-to 12-year prison sentence: “Fraud conviction in nightclub fire upheld”.
During the time these stories appeared there was an active lawsuit that accused Abraham of performing an unauthorized and medical unnecessary procedure on an unconscious patient without her knowledge or consent that left her disfigured. The case went on for six years, ending with a confidential settlement in August 2012.
And the newspapers never published a word.
Why? Because the suit also named Samaritan Hospital. It alleged ‘negligent credentialing’: that Samaritan knew or should have known each time it granted Abraham privileges that he was medically and morally unfit to practice.
Also ignored was the suit Abraham had earlier filed against another advertiser-hospital after it fired him for falsifying a medical record. And one naming him that ended with a $1.6 million settlement for a woman who died during childbirth. And one against him brought by an insurance company that claimed it should not have to pay for his defense of yet another case – also not reported by the newspapers – filed by a woman who was injured while giving birth.
Add to that the dozens of other cases that have been suppressed by the area’s newspapers since 1998 and you have a insidious conspiracy that benefits all those involved but harms the public. The secrecy means providers have little incentive to stop the harm; evidently they consider it cost-effective to let it go on and have the public pay for the damage. The law firms – on both sides – receive a continuing stream of revenue that would disappear if the newspapers were holding the providers accountable. The insurers, of course, simply hike their premiums to pay for the legal battles and settlements. And the providers pass those costs on in higher medical bills which the pubic pays for, either directly or in higher premiums for health insurance.
It’s a conspiracy of silence. And the area’s newspapers are the enablers. Without their willingness to censor news for profit this unhealthy alliance against the public interest could not exist.
Ten years after I started seeking ‘answers for Lisa’ I still don’t have any. But very soon now a lot more people are going to be asking the questions.
A lesson not learned: Another patient dies