Losing Patients

Kim Wayson is one of approximately three dozen neurosurgeons in Portland. These are the men and women who are paid several hundreds of thousands of dollars a year to do everything from brain surgery to back operations. They are the fighter pilots of medicine, operating with maximum dexterity in regions of the body where there is little margin for error.

For 15 years, Wayson has been a member of this elite corps--and, for the most part, his patients have done well.

However, he has also had a number of "bad patient outcomes," as they are referred to in medicine.

In the past 11 years, three of his patients died, one patient lost function in a portion of his left side and two others suffered serious complications. Most recently, for example, one of his patients--an otherwise healthy man--mysteriously died last August after going into St. Vincent's for a simple neck operation.

Most of these patients or the families they left behind believe Wayson was somehow at fault. As a result, he's faced repeated legal action; in some instances, he has settled cases and lost lawsuits, and his insurance company has paid out more than $750,000.

Today, he operates with full privileges at Providence St. Vincent and Providence Portland medical centers.

It's beyond the scope of a layperson to assess Wayson's competence. But peering into the circumstances of one surgeon's practice illustrates a larger concern about the medical profession: that the process for monitoring doctors--and, if necessary, revoking or limiting their licenses to practice--is secretive, complicated and, according to some observers, biased not toward the patient, but toward the physician.

Says Larry Wobbrock, a medical-malpractice attorney, "The culture is 'protect your own' and 'circle the wagons.'"

Neuroscience is one of the most demanding fields in medicine. The discipline focuses on the human brain and the disks, vertebrae and spinal cord that make up the spine, as well as on peripheral nerves, such as those in the face or arms, and all the electrical firings, which carry human thought, motion and sensation. Doctors who choose the field become familiar with everything from subdural hematomas and brain tumors to nerve axons, carpal tunnel syndrome and slipped disks.

If it has to do with the nervous system, it's neuroscience.

The field is split in two. Neurologists, the intellectuals of the field, diagnose and treat patients for everything from cluster headaches to tingling nerves. Neurosurgeons operate. They cut into brains and nerves. (Some also do diagnostic work; currently, Wayson does not.) The job requires superb eye-hand coordination and a taste for adrenaline. Many people in medicine say neurosurgeons are commonly among the most brash and egotistical characters in the profession.

Wayson, for his part, is even-tempered and gentlemanly, and speaks in a slightly gravely voice. He's 53 years old and a resident of Cedar Hills. As a young man, he took both a Ph.D. in Pharmacology and an M.D., finishing his studies at Oregon Health & Science University in 1978.

Today, he is a surgeon with Microneurosurgical Consultants, the largest neurosurgery group in the Portland area.

By all accounts, it's work he loves. Still, he knows that despite its lure, neurosurgery has its dangers.

"It's a high risk-field," Wayson says.

If a knee surgeon cuts one-eighth of an inch off target, it's probably not going to change anyone's life. But a neurosurgeon must be precise down to a millimeter or less. One false move and a section of brain could be disconnected.

The consequences of neurosurgery-gone-wrong are so high that the specialty ranks just behind obstetrics as a lawsuit magnet, according to Robert Dernedde, executive director of the Oregon Medical Association.

Many neurosurgeons get sued at some point in their career. Even so, Wayson has attracted more than his share of legal claims; since 1990, he has had legal action brought against him eight times.

Tim Graham, a senior vice president at CNA Financial, which insures Wayson and many Oregon doctors, says that, in his experience, legal claims have been filed against Wayson at a rate greater than what the average neurosurgeon experiences.

By contrast, Calvin Tanabe, a recently retired neurosurgeon and founder of Microneurosurgical Consultants, has been sued over his medical work only twice in 36 years as a doctor, according to state court records.

Wayson, who says he "didn't know" why he'd attracted so many legal claims, declined to answer questions about lawsuits that have been filed against him, citing confidentiality concerns.

The doctor's first suit came in 1990, three years after he began practicing as a surgeon. He was sued for medical malpractice in Multnomah County Circuit Court by James Dailey, a then-33-year-old welder from Southeast Portland. While none of the people involved would be interviewed for this article, the complaint states that Wayson operated on the young man at Providence-St. Vincent's Hospital, removing a section of tissue that he believed to be a tumor.

Something went wrong with the surgery. Soon after, Dailey lost muscle control in his left arm and became unable to sweat on the left side of his body. In his lawsuit, Dailey claimed that Wayson negligently cut into his left sympathetic chain, an important series of nerves that controls glands and some muscles on the body's left side. In a pretrial deposition, Wayson acknowledged that the chain was not supposed to have been cut. In 1991, a jury found Wayson liable and awarded Dailey $165,000.

Three years later, Wayson operated on Cherylann Bunn, a 40-year-old Parkrose woman with a nerve problem in her right cheek. Called the trigeminal nerve, it connects the brain to other nerves in the cheeks and eyes.

The cause of trouble with trigeminal nerves is mysterious, but some medical researchers believe the problem is triggered when protective sheathing wears away from the nerve--much like insulation being stripped from electrical wire--and it begins to misfire.

On June 6, 1994, at Providence Portland Medical Center, Wayson performed a procedure on Bunn called a percutaneous glycerol trigeminal rhizotomy (he'd used the same procedure on her twice the previous year). For the procedure, the patient lies sedated on a surgical table while a neurosurgeon inserts a spinal needle up through the cheek to a small pocket in the patient's head. Then the pocket is filled with glycerol, which deadens the trigeminal nerve.

Surgeons advance the needle very slowly and take X-rays along the way to ensure that their placement is accurate. Otherwise, the needle might pierce brain tissue or an artery; piercing a cerebral artery could cause a brain hemorrhage.

Something went wrong: The next day, Bunn was dead. An autopsy determined that she died from a subarchnoid hemorrhage, or a bleeding into the brain causing irreversible brain damage.

As a general matter, trigeminal rhizotomies are not risky procedures, says Robert Rand, an emeritus professor of neurological surgery at UCLA Medical School.

Doug Bunn, Cherylann's widower, filed a medical-malpractice lawsuit against Wayson in Multnomah County Circuit Court in 1995.

His suit alleged that Wayson had used poor technique and had mistakenly pierced Cherylann's basilar artery, causing it to bleed into her brain. "Our lawsuit wasn't about money," says Doug Bunn. "I wanted Kim Wayson to have to say that on that day he hadn't done his job well."

In 1996, a civil-court jury found Wayson not liable for negligence.

That same year, Wayson was sued by the sons of another patient who had died under his care.

In 1995, Elvera Muro, an East Portlander, had neck pain and tingling in her hands. Ten years earlier, she had traveled to China and walked the Great Wall. Now, she couldn't tend her beloved garden or paint pictures of cats without experiencing severe pain.

Wayson talked with Muro about removing a disk in her neck and replacing it with a bone plug--a procedure called a cervical diskectomy with fusion, the second most common procedure performed by neurosurgeons. (The most common is lumbar diskectomies.)

It is performed approximately 100,000 times a year in the United States, according to the Centers for Disease Control, and is considered low-risk, straightforward surgery, according to neurosurgeons contacted for this article.

John Muro, one of Muro's three sons, says that Wayson told his mother he did as many as three of the procedures a week.

On April 17, Muro checked into Providence Portland Medical Center. At home, she had pre-cooked meals waiting for her in the refrigerator. She never got a chance to use them.

It was Wayson who broke the bad news to the Muro family in the intensive-care-unit waiting room, says John Muro. He kneeled before them and drew a diagram of the elder Muro's vertebrae on the back of a Kleenex box, according to John Muro. He conceded that he had drilled too far to one side of a vertebra, says John Muro.

Yet the doctor told them not to worry, says John Muro.

"He said they'd have her in rehab in no time, learning to put on her lipstick," says John Muro.

Within days, his mother slipped into a near comatose state. Two months later, she was dead.

John Muro and his brothers sued Wayson in Multnomah County Circuit Court in 1996 for wrongful death and medical malpractice.

During the 1997 trial, Wayson was accused of negligently severing Muro's left vertebral artery. The accusation was supported by Dr. William Brady, a pathologist who performed an autopsy on Muro and appeared as a witness for the plaintiffs.

For evidence, Brady produced dramatic photos of the 76-year-old's spine, which show that instead of drilling into the middle of one of her vertebrae to insert a bone plug, the drill penetrated her vertebral artery. At trial, Brady, a former state medical examiner, also testified that rupturing the artery caused a clot that blocked blood flow to her brain, causing multiple strokes.

There are two vertebral arteries running the length of the spine, one on each side of the vertebrae. While operating on a spine, a surgeon's goal is to never expose, much less cut into, these arteries, which provide blood and oxygen to the brain stem.

Ghassan Bejjani, a University of Pittsburgh neurosurgeon and a spokesman for the American Association of Neurological Surgery, says it is very uncommon for a surgeon to cut into a vertebral artery; he could think of only one case similar to Muro's out of 11,000 performed at the University of Pittsburgh medical school over the past 20 years.

Robert Rand, the UCLA neurosurgeon, says that during his 35 years at UCLA (including teaching dozens of surgical residents), not once was a vertebral artery severed. Rand testified as an expert witness for the plaintiff. "I don't testify in a case unless I'm certain there has been practice below the standard" of care, says Rand.

Neurosurgeons contacted by WW describe the surgery as routine--certainly something from which patients do not commonly die, according to James Weinstein, editor of the medical journal Spine.

In November 1997, the jury found Wayson liable and awarded the Muros $358,000 in damages.

Last August, Harold Thornton died one week after having his neck operated on by Wayson. Thornton, who had developed problems using his hands, had worked for 18 years at St. Vincent's hospital.

Soon after surgery, he suffered paralysis from the neck down and was unable to breathe on his own. He was placed on mechanical ventilation.

On Aug. 22, he was removed from life support. He died soon after. On his death certificate, spinal-cord infarction was listed as a cause of death.

For a spinal cord to become infarcted, or deadened, it must have suffered an injury that would cut off its blood and oxygen supply, according to Larry Lewman, a deputy state medical examiner.

Asked about the case, Wayson acknowledged that Thornton had died in his care. He declined to answer further questions.

Denise Thornton, his widow, has retained a lawyer and declined comment.

The authority that is supposed to regulate and, if necessary, discipline, doctors is the state Board of Medical Examiners.

The BME, which is funded by license fees, is composed of two parts. One is the 11-member board itself, which is almost entirely made up of practicing doctors. Its job is to review cases brought to it by the agency's five investigators and decide upon discipline. The board also regulates and licenses MDs, podiatrists and physician's assistants. The other part is the $3 million state agency itself, which is headquartered in Portland and performs administrative duties for the board. The BME is given "very little scrutiny" by legislators, as state Sen. Tom Hartung puts it.

While the agency essentially acts as a police force, it isn't possible to measure just how intensely the board applies its power; still, some observers say the board is loathe to wield its baton.

"The system is very much pro-doctor," says Caroline Forell, a University of Oregon law professor and medical-malpractice expert.

"Most medical boards aren't protecting people in their states," says Dr. Sidney Wolfe, director of the Public Citizen Health Research Group, which watchdogs medical boards.

For each critic, however, there are people like Alan Bates, both a family practitioner and a state representative from Ashland, who see things differently. Bates says that doctors consider the BME to be very aggressive.

"Physicians feel that they've got this 800-lb. gorilla sitting on them, which means the board is probably doing a good job," he says.

Board members, who are appointed by the governor to three-year terms, are themselves rather ambivalent.

"I wouldn't consider us to be tough or weak," says James Scott, the board's chair and a Roseburg physician.

Medical-malpractice lawyer Charles Paulson says the BME is tough in certain areas. He says the agency is "super vigilant" when it comes to disciplining doctors who've improperly prescribed drugs or who have substance-abuse problems.

How the board handles what most people would consider medical competence is another matter.

Each court settlement, large malpractice jury award or malpractice case involving a death triggers a board review or investigation. Discipline follows if the board determines that a doctor committed gross or repeated negligence, or provided a standard of care that fell below the medical community's standard (a complex legality constituting normal, prudent medical practice).

Kathleen Haley, executive director of the BME, says the board has suspended or limited licenses (the most common approach) for substance abuse, for having sex with patients and for illegally prescribing drugs.

She says, however, there are no recent cases in which the board revoked a doctor's license for what amounts to incompetence.

"We work hard to keep physicians in practice," says Marica Darm, the board's vice chair and a Portland gynecologist. Her reason: Doctors are essentially natural resources not to be tossed aside, except for the most egregious errors.

WW has learned the BME has investigated Wayson at least once; however, it has taken no disciplinary action against the surgeon.

When it comes to finding fault, the BME and a civil court share the same standard: A preponderance of the evidence is the hurdle. Even so, Haley says the BME has a more difficult time making cases against doctors.

Larry Wobbrock, the medical-malpractice lawyer, disagrees. He says the board has the tools to investigate and press cases against doctors but doesn't use them--something he finds amazing in comparison to the state bar association's well-known ferocity in pursuing lawyers.

Nonetheless, discipline over incompetence does occur after a fashion. One outcome for doctors facing investigation for competence issues is that they will either forfeit their medical license or surrender it while the investigation is taking place. Last year, six doctors followed such a course.

Another backstop for public safety is hospital peer review, which is effectively required by state law.

At hospitals like Providence Portland and OHSU, each adverse outcome is examined by a peer-review committee. Committee members pore over charts of cases and interview personnel, trying to determine what went wrong and how to prevent it in the future. Also, the committee plays an important role in discipline. It advises the hospital to either do nothing, restrict a doctor to performing only certain procedures or recommend that the doctor's privileges be revoked. It is then up to the hospital to act.

But it's not something hospitals are interested in talking about. Officials at OHSU, Legacy Health Care, Portland Adventist and Providence Health Care either did not return calls or declined to comment about their peer-review systems.

Not even lawyers can break through the secrecy. Ordinarily, when lawyers sue someone, they can get their hands on even the most confidential material as part of pre-trial discovery. That's not the case with the results of hospital peer review. By state law, no one other than medical personnel can be privy to the information.

That may have a downside.

"You can't even find out if Joe Blow who was drunk in surgery has ever had similar accusations in other cases," says Paulson, a medical-malpractice attorney.

But Thomas Cooney Sr., a lawyer who often represents the Oregon Medical Association, says that without the protection of state law, doctors would be afraid to speak candidly about the work of colleagues for fear that it would end up in the media.

While the deliberations of peer-review committees are highly secretive, it is clear that only rarely does a hospital choose to pull a doctor's privileges, according to a lawyer familiar with the peer-review process. Both Legacy Health Care and OHSU declined to say how often doctors have had privileges revoked in the last five years, claiming confidentiality.

Kim Wayson says that at no time has Providence-Portland or St. Vincent's taken steps to pull his privileges or to modify what procedures he may perform.

Providence Health Care did not respond to written questions asking whether it was comfortable having Wayson operate at its hospitals or if it had ever revoked a doctor's privileges over competence issues.

All Providence would say, in a written statement, is this: "There have been numerous national studies and reports that have noted that improving patient safety will only be accomplished through open processes of review that do not vilify the providers."

The Dailey, Bunn, Muro and Thornton lawsuits are not Wayson's only legal cases.

* In 1991, a woman named Elizabeth Henderson came under the care of Wayson and Dr. Bradley Fancher, an internal-medicine doctor. Her face was twitching, she suffered from difficulty breathing and she experienced severe headaches, according to court records in a case brought against Wayson, Fancher and St. Vincent's Hospital.

Allegedly, Wayson and Fancher failed to detect her symptomology. She later suffered an acute hemorrhage and neurological deficit, according to the plaintiff's complaint.

Wayson was dismissed from the suit after his insurance company, CNA Financial, paid a $150,000 settlement to Henderson, according to records of the state Board of Medical Examiners. (A Multnomah County Circuit Court jury in 1995 ordered Fancher and St. Vincent's to pay $1,431,202 to Henderson, who later died.)

* In 1994, a pregnant woman named Mercedes Rodriguez experienced heightened intra-cranial pressure. While she lay ill, Wayson allegedly did not come to the hospital to treat her, according to the plaintiff's complaint. Rodriguez later died. A lawsuit was filed, naming Wayson as one of the defendants. He was later dismissed from the case, and Tuality Community Hospital and other defendants paid the Rodriguez family a $75,000 settlement, according to a settlement order in the case.

* In 1999, Wayson allegedly put a bone plug in the wrong vertebra on one of his patients. Before a civil case brought by the patient came to trial, Wayson's insurance company settled the case for $100,000, according to records of the Board of Medical Examiners. --PD

Kim Wayson became a practicing neurosurgeon in 1987, joining Microneurosurgical Consultants, a local group of neurosurgeons who operate principally at St. Vincent's, Providence Portland and Legacy Emanuel hospitals.

Wayson also taught at OHSU. From 1987 to 1989, he was a clinical assistant professor of neurosurgery; from 1989 until 1996 he was a clinical associate professor of neurosurgery.

Wayson has been president of a physicians' group for Providence Portland and is currently a trustee of the Medical Society of Metropolitan Portland.

Public Citizen, a Washington D.C.-based consumer-advocacy group, ranks Oregon's Board of Medical Examiners as the 15th toughest in the nation for 2001. The most aggressive state is Arizona.

WWeek 2015