Jonathan Ellis, firstname.lastname@example.org
Hospitals in South Dakota that grant doctors privileges to practice medicine can be sued if they acted in bad faith or were unreasonable in granting those privileges, a circuit court judge has ruled.
The ruling by Judge Bruce Anderson also opens the door to lawsuits against the individual members of committees that granted those privileges.
Anderson’s ruling sets the stage for South Dakota becoming a state that allows lawsuits against health providers under a concept known as “negligent credentialing.” At least 30 other states recognize the tort that hospitals have an obligation not to allow health providers to practice.
“Based upon this court’s review of the law and the briefs presented in these cases it appears South Dakota has all the necessary legal precedents as ingredients other courts have found prerequisite to adopting such a claim including a hospital’s duty of care for patient safety,” Anderson wrote.
The ruling, which could be appealed to the South Dakota Supreme Court, is a significant victory for three dozen plaintiffs who are suing Dr. Allen Sossan, a spine surgeon who practiced in Yankton. The plaintiffs in the cases are also suing Lewis & Clark Specialty Hospital, where Sossan was one of the doctor owners, and Avera Sacred Heart, where Sossan was also credentialed to perform surgeries. The doctors on the credentialing committees are also being sued.
In addition to ruling that health providers can be sued for failing to properly credential doctors, Anderson also ruled that a statute allowing medical peer review committees to keep their findings and materials private is not an absolute privilege.
Under South Dakota law, medical peer review committees operate in secrecy, and plaintiffs in medical malpractice cases don’t have access to their materials. Peer review is supposed to foster greater patient safety by allowing medical professionals to speak freely and critique each other without fear that the conversations and materials generated by the committee can be used in lawsuits. But critics say the system enables doctors and hospitals to hide their mistakes, thus depriving justice to victims of medical malpractice.
But Anderson noted that other privileges – attorney/client privilege and spousal privilege – are also not absolute, and that they are subject to a crime/fraud exception. Anderson ruled that the medical peer review privilege should also be subject to a crime/fraud exception.
“These committees owe a substantial and important fiduciary obligation to the entire community, and in order for the public to be satisfied that they are properly carrying out that important fiduciary obligation, when the appropriate case arises, the plaintiffs should have access to the information to make sure the legislative intent as expressed in the statute is upheld,” Anderson wrote.
It’s a big victory for the plaintiffs because they are attempting to prove that Sossan was credentialed by the hospitals because of the profits he would bring them by performing lucrative spine surgeries. Sossan got credentials even though the medical community in Yankton knew that he had lost credentials at a hospital in Norfolk, Neb., and that he had past problems.
John Hughes, a Sioux Falls lawyer who tries medical malpractice cases, said that trial courts have typically ruled that the medical peer review statute is absolute and an “insurmountable barrier to any independent review.”
“Judge Bruce Anderson’s opinion is one of the most well-researched and well-reasoned judicial decisions that I have read,” Hughes said in an email. “He addressed all of the interests in a fair and balanced manner. I cannot recall exactly who said this, but the saying goes like this, ‘those who do not control themselves will soon find themselves governed by others’ or words to that effect. Plainly, that is what we have going here.
Jonathan Ellis, email@example.com 12:05 a.m. CDT September 6, 2015
A clinic that provides basic medical services for residents in southeastern South Dakota and northeastern Nebraska is withdrawing care to patients who are suing a former spine surgeon and the doctors who credentialed him.
The Yankton Medical Clinic is not a party to the lawsuits against Dr. Allen Sossan, but some of the doctors who work at the clinic were on the credentialing committee that allowed Sossan to practice medicine at Avera Sacred Heart. At least a half-dozen doctors who practice at the clinic are parties to the lawsuits for their role in granting surgical privileges to Sossan at Sacred Heart.
Patients who filed suit and who also go to the Yankton Medical Clinic were notified by letter late last month that the clinic and its more than four dozen health providers are severing their relationships. The patients were informed that the clinic will cease treating them after Sept. 23.
“This is due to the breakdown of the physician-provider/patient relationship, in particular, your filing a lawsuit against a YMC, PC physician-provider and/or YMC, PC,” the letter says. The notice also bars these patients from the Vermillion Medical Clinic and the Yankton Medical Clinic Pharmacy.
Dr. James Young, a dermatologist and president of the Yankton clinic, signed the letters, which were dated Aug. 24. Young said he didn’t know how many patients were affected, putting the number at a “few.” There are approximately three dozen lawsuits against Sossan, but not all of them include the doctors who credentialed Sossan at Sacred Heart.
Young said the decision to terminate relationships with the patients follows a longstanding policy at the clinic. He added that it’s not unusual for medical facilities to have such a policy.
“Sir, all I know is those people filed suit against our doctors,” he said.
But Steve Johnson, a Sioux Falls lawyer with decades of experience trying and defending medical malpractice suits, said he is not aware of a situation in which a medical facility cut off services to patients.
“I think it’s a little unusual and rare for sure,” Johnson said.
Typically, he added, patients are the ones who pull the plug on a physician-patient relationship.
“Generally speaking, doctors practice medicine and they let the lawyers handle the legal part of it,” Johnson said.
The decision means that the patients who are being cut off will have to find new medical providers. In rural South Dakota and Nebraska, that could require patients to have to travel long distances for basic medical care.
Tim Bockholt, and his sister Judith, were among the patients who are being banned by the Yankton Medical Clinic. The Bockholts’ mother died after undergoing more than a dozen surgeries by Sossan in a year.
Tim Bockholt sees a cardiologist and a family practice doctor at Yankton Medical Clinic. None of the doctors who are being sued for credentialing Sossan provide care to either he or his sister, he said.
Bockholt now faces the prospect of traveling 50 miles to Norfolk, Neb., or 70 miles to Dakota Dunes. The travel will be harder for his sister, who suffered a stroke three years ago.
“She’s not that good at driving into those big cities because she can’t distinguish lefts from rights very well,” he said.
In a motion filed in court last week, Mary Weibel, another patient who is being released by the Yankton Medical Clinic, accused the clinic of using intimidation tactics because she is also suing Sossan. The motion noted that Weibel filed her lawsuit in February, and it accuses the Yankton Medical Clinic of violating a state law that bars corporations from interfering with physician treatment of patients.
Weibel, through a brother, declined to comment.
Health providers have been known to end their relationships with disruptive patients and patients who have not paid bills. At other times, they will sever their relations with patients who don’t take medicines or follow treatment instructions.
The American Medical Association has an ethical code dictating that physicians have an obligation to support continuity of care for patients. “While physicians have the option of withdrawing from a case, they cannot do so without giving notice to the patient, the relatives, or responsible friends sufficiently long in advance of withdrawal to permit another medical attendant to be secured,” the code says.
Jonathan Van Patten, a law professor at the University of South Dakota School of Law, said that someone suing a doctor in a medical practice might be reason enough for the entire practice to part ways with the patient.
“That seems to be enough of a reason to say no,” Van Patten said.
“You don’t have a right to do business with a professional,” he added. “It’s a two-way street.”
Randy Bury, the chief administrative officer for Sanford Health’s health services division, said in a statement that Sanford tries to work with patients even if they have a legal action against the system. Sanford also follows state and federal regulations on terminating patient relationships.
“It is uncommon for physicians to terminate a relationship with a patient,” Bury said. “In those unfortunate situations where it happens, we have policies/procedures to ensure that every effort was made to maintain continuity of care for the patient. At Sanford, we do everything possible to work with the patients regardless of the situation, including those difficult circumstances where legal action is underway.”
Lindsey Meyers, a spokeswoman for Avera Health, said in an email that the issue of terminating patient relations depends on the situation, the facility and the provider.
For Tim Bockholt, the decision to terminate his care means he and his sister have a daunting task of finding new providers. Both of them have health problems, and for Bockholt, who was born in Yankton 64 years ago, he now has to go outside of the place where he has always received basic medical care.
“They’re discriminating against us and we’ve never had anything to do with them,” he said. “We’ve never hurt them in any way I know of.”
More about Sossan
Dr. Allen Sossan began performing surgeries in Yankton in about 2008 to 2012. He practiced at both the Lewis & Clark Specialty Hospital, where he was an owner, and Avera Sacred Heart. Dozens of former patients or their relatives have filed lawsuits alleging he botched their spine surgeries. Last month, a judge unsealed an arrest warrant and grand jury indictment for perjury and filing a false document. The indictment stems from Sossan failing to disclose felony convictions for burglary and bad checks on his application for a South Dakota medical license. Sossan, who went by the name Alan Sossan before the convictions, is currently residing in Iran.