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But in New York City, there have apparently been no criminal convictions for harm caused by bad medicine since 1995, when David Benjamin, a Queens physician, was convicted of manslaughter for the death of a woman in a botched abortion. And during 2000, the last year for which statistics are available, the New York State Department of Health Office of Professional Medical Conduct (OPMC), which is responsible for investigating physician misconduct, took only 411 actions of any kind. In 144 of those, the doctors lost their licenses.
Why are the numbers so low? "There's a wall of silence," says Arthur Levin, director of the Center for Medical Consumers, a public-interest advocacy organization. "It's just like with the police. There's a brotherhood that doesn't feel comfortable most of the time reporting misconduct."
Doctors may be also getting off free because of the baffling system for patient redress, which consists of three disconnected entitiesthe civil courts for malpractice suits, the state's disciplinary board, and the criminal courts. "The process is so confusing for victims," says Ilene Corina, president of Pulse of New York, a nonprofit that's dedicated to supporting people harmed by the medical system. Corina experienced the confusion first-hand when her three-year-old son died after a tonsillectomy in 1990. Though Corina knew "the doctor had screwed up," as she puts it, she didn't know where to file a complaint. Health department authorities never investigated the incident.
Corina is now extremely familiar with OPMC. Since Pulse formed three years ago, she has gotten hundreds of callsat least 50 of which she estimates involved patients who died in New York State. Corina instructs many of these desperate callers how to file a complaint, but she says that those who follow her advice often get no satisfaction. "Three-quarters of the time they just get blow-off letters," says Corina, referring to the OPMC form letters that terminate cases by saying they didn't involve misconduct.
Indeed, bad doctorseven those who have been successfully sued for malpracticefrequently escape discipline by the state. "Negligence just doesn't get any sort of reaction from the board of medical examiners," says William Levinson, a malpractice attorney representing the estate of a New Jersey woman who died after a scientifically unproven treatment known as ultra-rapid opiate detoxification (UROD). Seven patients have died in the past five years after undergoing this unorthodox procedure, which is supposed to cure heroin addiction almost instantly. But though they've agreed to temporarily stop performing UROD, the doctors who provide it, Lance Gooberman and David Bradway, still have their medical licenses. (Adding to Levinson's outrage at the New Jersey board, Bradway, a former addict, obtained his medical license after having served prison time for manslaughter for injecting a lethal dose of a drug into a friend and then dumping his body in a ditch.)
Advocates say it's also remarkable that Manhattan doctor Nicholas Gonzalez can still hang out a shingle. After one of his former patients was diagnosed with uterine cancer, Gonzalez discouraged her from following through on her cancer specialist's advice, instead recommending dietary supplements and frequent coffee enemas. Though a jury awarded the patient $2.5 million in damages after the cancer spread to her spine and blinded her, Gonzalez never lost his medical license. Sentenced by the OPMC to two years of probation with a stipulation that he undergo retraining and do 200 hours of community service, Gonzalez continues to practice on East 36th Street in Manhattan, just 10 blocks from the old office of Dr. Watt.
"We do not hesitate to take action when we believe a doctor has committed professional misconduct," Kristine Smith, spokesperson for the state department of health, says in defense of the OPMC. In fact, OPMC took up Watt's case even before O'Brien filed a complaint. Less than two months after the incident, the regulators struck a deal with the psychiatrist, allowing him to keep his license on the condition that he never practice medicine in New York again. "We took the strongest action possible," says Smith. "What may be confusing," she adds, "is that the health department's authority is not as encompassing as many people might think."
It's true. State law forbids the office from sharing its information with prosecutors while it is investigating a doctor, permitting the office to talk to criminal prosecutors about a case only after it's over. The profession's disciplinarians have no say in getting even the worst cases into the criminal courts. District attorneys decide what rises to the level of criminality. In the vast majority of medical cases, however, the typical red flags for police investigators are missing.
Consider that, if a patient stops breathing in a doctor's office, emergency medical technicians may show up without police, who often begin criminal inquiries. And when she dies in the hospital, the autopsy is unlikely to be coded as a homicide. In Grove's case, both police and paramedics arrived after O'Brien called 911, and the district attorney did begin a criminal investigation. O'Brien can't prove it, but he suspects that Watt has been sheltered by an official presumption that as a doctor he was trying to do goodand that no matter how egregious, his mistakes couldn't be criminal.