Doctors With Multiple Malpractice Settlements Face Little Discipline In Florida

Jul 27, 2017

When appendicitis struck a young mother vacationing in St. Pete Beach eight years ago, she was rushed to Palms of Pasadena Hospital. There, Dr. Ernest Rehnke removed her appendix.

In the night and morning that followed, the patient -- Dr. Sukunya “Susie” Dunphy, a physician from Chicago -- slowly bled to death in her hospital bed. Neither her nurses nor Rehnke noticed her falling blood pressure, rising heart rate and other symptoms before she died.

Rehnke settled the malpractice complaint for the limit of his policy, $250,000, records show. The hospital settled for $1 million.

This was just one of 14 times since 2000 that malpractice insurers have paid to settle complaints against Rehnke, according to a state database of claims. The settlements include six patients who died during or after surgery.

Yet Rehnke is still operating with a clear Florida medical license.  He had only one disciplinary case 10 years ago, in which he paid a fine. 

Dr. Earnest Rehnke
Credit YouTube

And Rehnke is not alone. He is one of 29 doctors in Florida with at least six malpractice complaints that resulted in insurance payments since 2000, according to an analysis by Health News Florida.

A review of state records shows that most continue to practice without discipline from the state system that oversees them. This means that either insurers pay to settle cases that have no merit, or the state hasn’t always followed up.

Doctors’ groups say a string of medical-malpractice settlements isn’t evidence of negligence and that insurers often pay to avoid litigation. On the other hand, plaintiffs’ lawyers argue that this type of lawsuit is so expensive to mount that even most legitimate complaints are turned away. 

Patient advocates say the state needs to thoroughly examine records of doctors with multiple paid claims to see whether there is a pattern of mistakes.

“Patients who interact with these physicians usually have no idea that there have been prior issues or problems, and they go into a doctor-patient relationship completely trusting,” said Julia Hallisy, founder of The Empowered Patient Coalition.

Health News Florida reviewed information from a Florida Office of Insurance Regulation website where members of the public can learn how many times their doctor has paid to settle malpractice claims.

The database is not complete – some doctors who self-insure have consistently failed to report documented payments -- but it provides evidence that doctors with a substantial number of medical malpractice claims continue practicing.

And research shows that the more settlements a doctor has, the more likely that doctor is to be sued again.

Health News Florida analyzed all reported claims insurers paid on behalf of medical doctors and osteopaths between 2000 and October 2016. The analysis did not include payments for institutions, such as hospitals, and payments of non-physician health professionals such as dentists and pharmacists.

Among the conclusions:

  • Twenty-nine doctors had at least six paid claims and 14 physicians had 10 or more paid claims.
  • Of those 29 doctors, most tended to be in the latter stages of their careers, and only one was a woman.
  • Eighteen of the doctors are still practicing, with little or no interference from the state. Only three had their licenses suspended or revoked by the Board of Medicine. 
  • Twenty-five of the 29 doctors are surgeons, including two OB-GYNs. A dozen orthopedic surgeons made the list.
  • Almost all payments come from negotiated settlements, with only 1 to 2 percent of cases being the result of a court trial.
  • Most of the roughly 50,000 Florida doctors have no paid claims reported in the state’s database. Of those in the database, most had only one paid claim.

‘This Is Not Normal’

Critics say Florida’s system is broken and it’s putting people’s lives at risk.

“The malpractice system obviously doesn’t work very well, because if it did, then you wouldn’t have a pattern of 6 or 8 or 10 or more malpractice payouts,” said Dr. Sidney Wolfe, founder of the Public Citizen Health Research Group, based in Washington D.C.

Wolfe, who has studied medical discipline nationwide for decades, said Florida’s Board of Medicine, which oversees the licensing of medical doctors, must intervene.

But as the case of Susie Dunphy shows, there’s a problem: The case did not make it all the way to the Board of Medicine.

After reviewing the medical records, Dunphy’s husband James filed a complaint about Rehnke to the Florida Department of Health. James Dunphy, who also is a doctor, was stunned to receive a letter from the agency saying it found no basis to file a complaint, he told CBS during a television interview.

“I thought it was unbelievable,” Dunphy said in the 2014 interview. “I teach medical students. This is something so basic I would expect my medical students to recognize, that this is not normal . . . “

Rehnke and his attorney failed to respond to numerous attempts by Health News Florida to contact them for an interview.

Few Complaints Make It

People who feel they or their loved ones have suffered from substandard medical treatment can file a malpractice suit through circuit courts. But it is difficult and expensive and lawyers say they turn away most callers, including legitimate cases.

Patients and their families can also file a complaint through the state’s regulatory agencies: the Department of Health, which investigates accusations against health professionals; and the Agency for Health Care Administration, which fills a similar role with hospitals and other health facilities.  

The Department of Health determines whether to bring the complaints to the professional license boards, including the Board of Medicine (for MDs) and the Board of Osteopathic Medicine (for D.O.s).

Insurers are required to report the outcome of cases that go through the legal system to the Office of Insurance Regulation once they are closed.

The Department of Health says it reviews all claims with payments over $50,000 and seeks administrative complaints when medically and legally warranted. Staff from the department declined to be interviewed for this story, but did respond to some questions via email.  Here’s how they describe the process:

Each time an insurer settles a claim and files the information with the state, the Department of Health is notified. The Consumer Services Unit reviews the notice to see whether it is “legally sufficient” – if it would be a violation of Florida statutes if proven – and meets other requirements, including the statute of limitations.   

Then, an investigator assigned to the case obtains medical records and sends them to a consulting specialist for a recommendation, the Department of Health said.  If the agency then decides to pursue an administrative complaint, it must get authorization from a subcommittee of the medical board called a “probable cause” panel.

Odds are against a successful journey through the process. The Department of Health’s annual report on licensee actions for 2015-16 lists 6,713 complaints and reports that flowed into the department about doctors. Only about 15 percent, or 1,018 of them were found “legally sufficient.”

Of those, 762 were taken to a probable cause panel, and three-fourths were rejected. The 188 administrative complaints filed that year represent less than 3 percent of the number of complaints and reports that came in.

For osteopathic physicians (D.O.s), who comprise only about 10 percent of actively practicing doctors in Florida, the process is similar. Of 612 possible cases that came in, the state filed just 25 administrative complaints.

Multiple Claims Merit Attention

Paying to settle a court case doesn’t mean that a physician has committed malpractice.

“I know doctors who didn’t do anything wrong, but settle for $1 million just because they don’t want to fight it,” said Tampa orthopedic surgeon Mike Wasylik, who serves on a council that advises the state’s largest malpractice carrier on which complaints are worth defending.

The doctor with the most paid claims in the state’s database may be an example. Anesthesiologist George Arcos, who now practices pain medicine in Melbourne, has 20 paid claims, all of which trace back to one incident at a former clinic. While operating the Pain Institute of North Florida in Tallahassee, Arcos unwittingly gave patients spinal injections contaminated with a bacteria called Staphylococcus aureus.  Twenty-five were hospitalized and 10 required surgery for abscesses.

Records show he reported the outbreak to the Department of Health as soon as he learned about it. The Leon County Health Department’s report on the investigation noted that Arcos’ clinic had some lapses in its infection-control practices, including using single-dose vials for several patients. But the health department filed no disciplinary action against Arcos.

Arcos said in an email to Health News Florida that the Department of Health’s expert advised that the situation was “outside of Dr. Arcos’ control.” 

“The Probable Cause Panel of the Board of Osteopathic Medicine concurred, and no action was taken against me,” he wrote. “The single most important indicator that this occurrence was an aberration was that in 30 years of practice, there have been NO other incidents.”

Tampa attorney Andrew Bolin, who defends doctors on behalf of insurers, said insurers sometimes settle cases where there was no mistake but the outcome would look bad to a jury.  Other times, insurers settle because the cost of defense is greater than the limits of the policy, usually $250,000.

“If your physician has been sued it absolutely means nothing about their competence or ability to practice,” Bolin said.

But a 2006 national study in the New England Journal of Medicine suggests that payment of claims when no medical error occurred happened less often than the reverse – nonpayment of claims that followed real errors.

A broader study last year in the same journal concluded that when a doctor has multiple paid claims, it deserves attention.

“Although payment does not necessarily indicate that a claim has merit,” the authors wrote, “paid claims are much more likely than unpaid claims to involve substandard care.”

The study drew on a database of 66,000 paid claims, which are collected by the federal government but not open to the public.  Lead author David M. Studdert of Stanford University reported that 1 percent of doctors were responsible for 32 percent of paid claims. Studdert told NPR last year that doctors who have been sued in the past are more likely to be sued in the future.

“A physician who has had four is four times more likely and so on,” said Studdert, a professor of medicine and law.

Risk Management

Of the roughly 50,000 practicing physicians in Florida, 8,050 have had at least one paid claim reported since 2000, the state database reports. Of those doctors, 96 percent had just one or two reported payments.

Six doctors had 12 or more claims: George Arcos (20), who unwittingly used a contaminated drug; Sean Orr (19), a neurologist in Jacksonville and Panama City accused of misdiagnosing multiple sclerosis in more than a dozen patients; the late Alfonso Sainz (17), an OB-GYN from Melbourne accused of performing unnecessary hysterectomies;  Asuncion Luyao (15), a Port St. Lucie internist who went through several criminal trials in connection with several patients’ drug-related deaths; and Rehnke (14), the St. Petersburg surgeon.

Rehnke’s only brush with the Board of Medicine occurred 10 years ago, in a case involving circulation problems in the leg of a 76-year-old man. Rehnke performed a blood-vessel graft, but the wound didn’t heal properly. For two months, the patient kept coming back to Rehnke, but got no better. Finally, according to Department of Health records, the patient resorted to the hospital emergency room.

A doctor there diagnosed cellulitis, a bacterial infection, at the operation site. Amputation of the man’s leg wasn’t enough to save him. He died in the hospital two months later.

In an administrative complaint, the Department of Health said Rehnke mishandled the case at the outset by operating before trying more conservative treatment and then failed to properly treat the ensuing infection.

The Board of Medicine accepted a settlement in the case in which Rehnke neither admitted nor denied the accusation of malpractice, but was given a letter of concern and ordered to pay a $5,000 fine, take a five-hour course in “risk management” and perform 50 hours of community service.

Whatever was covered in the risk-management course didn’t prevent further lawsuits. Rehnke’s insurers have settled 10 complaints since that 2007 hearing, records show.

Big Settlements Rare

While multimillion-dollar court verdicts draw headlines, they are rare. Most of the complaints never make it to a courtroom, and most settlements are in the range of $200,000 to $250,000.

Attorneys for patients and doctors say there are two reasons that so many settlements hover near the $250,000 mark.  In 2003, Florida’s Legislature imposed that as the cap on non-economic damages – a cap that has since been thrown out by the Florida Supreme Court as unconstitutional. And the most common insurance policy amount for doctors covers $250,000 per incident.

Physicians who get socked with eye-popping jury awards and eight-figure settlements aren’t the same ones who made the list of 29 doctors with six or more paid claims. It’s an entirely different crowd.

Those huge judgments and settlements tend to involve cases that tug at the heart strings, in which a patient was left alive but badly brain-damaged or physically disabled, requiring lifelong nursing. Obstetricians and neonatologists figure prominently in this group.

Early Warnings

In some cases involving doctors with multiple claims, records show the Department of Health received early warnings but took little or no action.

One of those cases was that of Dr. Michael Rosin, a Sarasota dermatologist who was doing a profitable type of office surgery to remove supposed skin cancers from the faces of patients who actually had benign lesions. The state database shows 11 of Rosin’s patients received payments between 2007 and 2009.

As the Tampa Bay Times reported in 2008, a patient of Rosin’s who became suspicious after seven such operations took her skin cells to an outside lab. It confirmed that Ellen Murray’s lesion was benign, and that Rosin had lied.

Murray first complained to the Department of Health in 2003 or early 2004, but the agency chose not to pursue the case. So she and Rosin’s office manager filed suit against the practice under the federal False Claims Act. The FBI raided Rosin’s office.

Rosin was convicted in March 2006 of defrauding Medicare of more than $3 million in a scheme that dated back more than a decade. He was sentenced to 22 years in prison and ordered to pay millions of dollars in restitution. Each of the whistleblowers received about $350,000 before taxes.

The Department of Health filed an emergency order in mid-2005, following the FBI raid and indictment, barring Rosin from doing any more surgery. The following year, as Rosin prepared for trial, the agency issued an emergency order, suspending his license. After his criminal conviction, the Department of Health revoked his license, according to state records.

Federal records show that Rosin, now 66, is at Otisville Federal Correctional Institution in Otisville, N.Y. He is scheduled for release in 2025.