Cover-Up Charged After Alleged Surgical Pathology Error

In legal filing, whistleblower says error led to incorrect removal of patient’s essential organ

CEO SUMMARY: In an explosive civil case, documents show a pathologist erroneously diagnosed a patient as having cancer of an essential body organ and that the organ was removed unnecessarily, stated an attorney for the whistleblower. The patient has not yet been told of the misdiagnosis or that the essential organ was not cancerous, said the attorney. When the pathologist-whistleblower decided the hospital was not acting to correct the error, he reported the issue to The Joint Commission, the lawyer said.

IN A WHISTLEBLOWER’S LEGAL FILING, a pathologist for the Kansas University Hospital Authority claims the head of pathology misdiagnosed a patient as having cancer, causing that patient’s essential organ to be incorrectly removed last year.

Submitted July 1, the lawsuit raises troubling questions for the hospital. Court documents show that the pathologist (a former chair of pathology at the institution) challenged the misdiagnosis, claiming the surgery was done in error. The head of pathology and other hospital administrators denied the charges, covered up the misdiagnosis, and refused to conduct a root cause analysis, the court documents show. The petition for judicial review was filed in the civil division of the District Court of Wyandotte County, Kan.

The whistleblower is Lowell L. Tilzer, MD, a pathologist in Kansas University Medical Center’s Department of Pathology. He charged that the depart- ment chair misdiagnosed a patient’s tissue sample as cancerous. The petition does not name the department chair but the current chair is Meenakshi Singh, MD,

the Russell J. Eilers, MD, Endowed Chair and Professor of Pathology of KUMC’s/KU Hospital’s Department of Pathology, said Joseph Colantuono, Tilzer’s lawyer. The surgery was done in August 2015, he added.

Report to Joint Commission

Tilzer also has reported his concerns to The Joint Commission, a hospital accrediting agency in Oakbrook Village, Ill. As a result of his actions, “…Tilzer has been retaliated against and his job has been threatened…” the petition shows.

“As a result of the misdiagnosis, the patient was erroneously informed that the patient had cancer, and the patient’s essential body organ (or a substantial portion of the essential body organ) was removed at the hospital,” the petition states.

Court documents further state, “The patient was not told of the misdiagnosis, and was not informed that the essential body organ was not cancerous. For months KUMC/Hospital withheld the correct diagnosis from the patient, and, to the best of Tilzer’s knowledge and belief, the patient is still unaware that the patient did not have cancer.” The petition does not name the organ removed, but Colantuono said cancer of that particular organ has a high rate of lethality, and “a patient should not live with the unfounded fear that he or she had a lethal form of cancer.”

Hospital Denies All Charges

In its response, the hospital released a statement, saying: “We are not in a position to provide detailed feedback at this time. However, just from a brief review of the allegations made, there is little to nothing in the petition that we believe to be grounded in truth. The patient to whom Dr. Tilzer’s petition references was fully informed of the diagnosis and treatment plan after surgery and prior to leaving the hospital and is pleased with the care and clinical outcome.”

In a telephone interview with THE DARK REPORT, Colantuono contested the hospital’s response: “KU states the patient was ‘quote fully informed of the diagnosis and treatment plan after surgery and prior to leaving the hospital unquote.’ They do not say that the patient was informed before surgery. Also, KU does not mention that the diagnosis after surgery—that the patient was cancer free—should have been the diagnosis before surgery also.”

In what may be the most damaging charges, the petition shows that after being informed of the misdiagnosis, the department chair examined the patient’s tissue samples. “The Department Chair did not recognize the difference between acinar cells and islet cells, and covered up her misdiagnosis by placing an addendum to her original report stating the original cancer diagnosis and the normal removed organ matched, thereby concealing her original misdiagnosis and perpetuating the patient’s mistaken belief that the patient’s removed organ was cancerous,” the petition states.

Who Looks Out For Patient? Accreditors Won’t Comment

EVENTS UNFOLDING IN KANSAS CITY demonstrate why the healthcare system is still struggling to cope with how to deal with episodes of medical errors that cause patient harm.

According to a civil lawsuit described in the accompanying story, a patient at a major university hospital had a healthy and essential organ removed because of a misdiagnosis of cancer by the pathologist. The lawsuit alleges this pathologist then changed health records to cover up the misdiagnosis.

The lawsuit’s description of the subsequent events alleges that the hospital did not respond to the complaint of the whistleblower pathologist The two accrediting bodies for this hospital, The Joint Commission and, for the laboratory, the College of American Pathologists, each told THE DARK REPORT that it could not disclose whether it received a complaint involving this patient’s care. Nor could it comment if either organization was investigating the care given this patient as a potential medical error.

According to the whistleblower lawsuit and press accounts of this episode, the patient—still unidentified—has yet to be informed of the facts of his or her medical care: that a pathologist wrongly diagnosed cancer in a healthy and essential organ, and it was only after that healthy organ was removed that the mistake was discovered, then covered up by that pathologist.

In such a case, who speaks for the patient? The hospital has a motive to not let the public know about such an alleged medical error. It also doesn’t want the liability of a medical malpractice lawsuit. Accrediting bodies, such as TJC and CAP, have concerns that any failure of their assessment teams to uncover incidents of medical errors would count against them with the Medicare program. Thus, who speaks for the patient in cases of medical errors?

“The Chair of the Pathology Department did not report her misdiagnosis to KU Hospital’s Chief Medical Officer, Risk Management Committee or Risk Manager,” court documents show. (See sidebar, “Kansas Court Documents Allege Pathologist Falsified Electronic Record to Cover Up Hospital Error.”)

In September 2015, Tilzer urged hospital administrators to correct the errors and inform the patient of the misdiagnosis, but hospital officials did not do so, the petition shows. “KUMC’s and KU Hospital’s administrators resisted Tilzer’s efforts to thoroughly investigate the matter and conduct a review known as a ‘root cause analysis;’ and KUMC and KU Hospital did not take corrective action,” it says.

What’s more, the petition says, the department chair continued to sign off on cytopathology cases despite being told not to do so. Also, the chair of pathology continued to make mistakes on these cases, causing actual and potential harm to patients, the petition states.

Failing to get a response from hospital officials, Tilzer sent an email complaint to The Joint Commission in March of this year, Colantuono said. In that complaint, Tilzer explained the issues about the misdiagnosis and the failure to inform the patient, he added.

A Focus on Process, Policies

The commission’s Office of Quality and Patient Safety responded by email on April 1 to Tilzer’s report of his concerns, saying, “The Joint Commission does not assess specific care of an individual patient, thus we are unable to tell you if appropriate medical care has been provided. Instead, our evaluation focuses on processes and policies that are required within our standards.”

The Joint Commission also said it needed Tilzer’s written permission to release his name and share his correspondence with hospital administrators. Tilzer has granted that permission, confirmed Colantuono.

After the surgery, other pathologists in the department examined tissue samples from the removed organ and, “established that the patient’s essential body organ was essentially normal and was not cancerous,” court documents show. “After the post-surgery examination determined that the patient’s essential body organ was not cancerous, the pre-surgery tissue sample was re-examined.

Post-Surgery Examination

“The post-surgery re-examination of the pre-surgery tissue sample established that the pre-surgery sample was not cancerous, and that the pre-surgery tissue sample had been misdiagnosed by the chair of the KUMC/KU Hospital Department of Pathology. The removed essential body organ, in fact, was normal, and should not have been removed,” the petition states.

Dan Margolies, a reporter for NPR station KCUR, reported that Tilzer was the pathology department chair for more than six years until he left that position last year and has been a staff pathologist at the hospital for 25 years.

The petition goes into some detail about a meeting Tilzer had with KU Hospital President Bob Page on May 31. During that meeting, the petition says, “Page reprimanded Tilzer and attempted to intimidate Tilzer by:

  • “Asking Tilzer if Tilzer wanted to resign (to which Tilzer stated that he would not resign),
  • “Berating Tilzer for contacting the Joint Commission,
  • “Accusing Tilzer of lying to the Joint Commission (to which Tilzer responded that his statements to the Joint Commission were truthful),
  • “Saying that he (Page) was irritated that Tilzer had contacted the Joint Commission,
  • “Asking why Tilzer had ‘done this alone’ (to which Tilzer responded that others in the department were too scared to act), and,
  • “Describing Tilzer’s report to the Joint Commission as ‘pitiful’ and ‘despicable’ behavior.”

Kansas Court Records Allege Pathologist Falsified Electronic Health Record to Cover Up Hospital Error

IN A PETITION FOR JUDICIAL REVIEW, Joseph Colantuono, the lawyer for whistleblower Lowell Tilzer, MD, explained how administrators at the Kansas University Hospital have attempted to cover up a pathologist’s misdiagnosis and incorrect surgery.

“The Chief Medical Officer stated that the [pathology] chair’s original diagnosis was correct because two other pathologists signed the report; but the two other pathologists did not agree with the original diagnosis, and the chair simply wrote their names in the electronic medical record,” the petition states.

“The Chief Medical Officer refused Tilzer’s requests to talk to any other pathologist. The Chief Medical Officer’s failure to interview other pathologists perpetuated the cover up of the misdiagnosis by the hospital,” court documents show. A root-cause analysis was never done, it adds.

“In early 2016, the chair of the pathology department instructed others to alter hospital records regarding the chair’s misdiagnosis, and to remove from records any reference that a root cause analysis was necessary,” the petition adds.

As of July 1, Tilzer believed the patient had not been informed of the misdiagnosis or that it was unnecessary to remove the patient’s essential body organ, Colantuono said.

The petition adds, “Tilzer justifiably perceives Page’s May 31 reprimand and attempted intimidation as a serious threat to Tilzer’s employment and as an attempt to prevent Tilzer from further reporting to The Joint Commission. On June 4, 2016, KUMC inquired whether Tilzer wanted to take a sabbatical.”

Request for Discovery

In the petition, Tilzer seeks to “conduct discovery,” which Colantuono said would allow Colantuono to confirm the name of the pathologist who signed off on the diagnosis and would reveal the names of two other pathologists who signed the report and whether they confirmed the diagnosis or not, he said. “To our knowledge, approval of the other two pathologists was noted incorrectly,” he said.

In addition to The Joint Commission, the Kansas State Board of Healing Arts, which is the licensing and regulatory board for physicians, could review the underlying issues in the case if it became aware of it, said Kelli J. Stevens, the board’s General Counsel.

“I don’t know if our board members are aware of this particular issue,” she said. “And, we can’t confirm or deny if an investigation is ongoing on that particular issue. Those go directly to our investigative department.

“If an investigation reveals a violation of the Kansas State Board of Healing Arts Act, then a disciplinary petition against that physician’s license would be filed and that physician would have an opportunity for a hearing to contest allegations and present their own evidence,” Stevens explained. “Then the board makes a determination if disciplinary action is warranted against the physician. Disciplinary action could include a suspension or revocation of the physician’s license, or sometimes a limitation on the license,” she added. “It depends on the specific findings as to what degree of discipline would be warranted.”

Contact Joseph Colantuono at 913-345- 2555 or jc@ksmolaw.com.

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