Patient Safety Expert Says: ‘Tell Patients About Errors’

Additional developments in civil lawsuit filed about pathology error at university med center

CEO SUMMARY: As described in a civil lawsuit filed by a whistleblower pathologist in Kansas in July, a chair of pathology allegedly misdiagnosed cancer and the patient’s healthy pancreas was surgically removed. Court documents say that the pathologist then altered records to cover up the mistake and, when informed of this situation, the hospital did not conduct a formal investigation. However, recently, the patient, asking to remain anonymous, said he/she was now aware of the pathology error and alleged cover-up.

THERE ARE NEW DEVELOPMENTS in the civil court case in Kansas City that alleges an incident where a chair of pathology altered a cancer report after a patient’s essential organ was surgically removed and found to be normal.

The first development is that a lawsuit filed in this case has been withdrawn by the plaintiff, in part, because the patient involved has issued a statement reproduced in the court filing that he/she is aware of the alleged misdiagnosis and cover-up by the hospital. Second, a national patient safety expert has spoken out about the issues involved when a medical error occurs and the providers fail to be honest with the patient.

As described in the July 25, 2016 issue of THE DARK REPORT, Lowell Tilzer, MD, a staff pathologist and former department chair in the Pathology Department at the Kansas University Hospital, alleged on July 1 that the current chair of the department had misdiagnosed a patient’s tissue sample as cancerous. The result of the alleged misdiagnosis was allegedly incorrect surgery to remove a vital body organ or part of an organ, Tilzer said in a petition for legal review in the civil division of the District Court of Wyandotte County, Kan.

The petition did 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. The surgery was done in August 2015.

alleged Misdiagnosis

In court papers, Tilzer also charged that hospital administrators covered up the alleged misdiagnosis and changed the electronic hospital record as part of the cover-up. He also sent a letter about the incident to The Joint Commission.

Court documents said that, after sending the letter to the Joint Commission, Tilzer was reprimanded in a meeting by the hospital CEO Bob Page and said he feared he would lose his job.

“The patient was not told of the misdiagnosis, and was not informed that the essential body organ was not cancerous,” the petition for judicial review says. “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.”

Court Records in Kansas Allege Falsified Electronic Health Record Used to Cover Up Pathologist’s Error

TWO INTERESTING DEVELOPMENTS happened recently in the lawsuit that alleges a pathologist and a university medical center covered up an alleged medical error by the chair of pathology that led to the alleged removal of a healthy pancreas in a patient. The patient was told only that he/she was free of cancer following the surgery.

With little explanation, the whistleblower, Lowell Tilzer, MD, who is a staff pathologist and former head of the Pathology Department at Kansas University Hospital, asked that the court toss out his legal filing in the case. In the initial filing on July 1, Tilzer alleged that a misdiagnosis led to an incorrect surgery to remove a vital body organ or part of an organ. In his second filing made on July 29, Tilzer explained that the patient who was allegedly harmed by the error has come forward but asked to remain anonymous.

Tilzer requested that the court dismiss the case without prejudice because the hospital did not file an answer or motion for summary judgment. “Petitioner (Tilzer) believes further litigation of this claim is not necessary to protect him from retaliation at this time,” the most recent filing said.

Tilzer’s second filing also stated that, based on a statement from the unnamed patient, he believes the public interest will be protected adequately if the suit is dismissed. In his second filing, Tilzer included this statement from the patient:

“In September of 2015 I had surgery at Kansas University Hospital. I believe I am the anonymous patient referred to in the lawsuit filed by Dr. Lowell Tilzer against Kansas University Hospital. I did not know about the lawsuit until Tuesday, July 26, 2016, when my surgeon at KU called me and asked me to sign an affidavit about my surgery. The affidavit exonerated the hospital from any responsibility for the actions alleged in Dr. Tilzer’s lawsuit.

I was concerned about why I was being asked to sign the affidavit, and my subsequent research uncovered the existence of the lawsuit. I do not know who wrote the affidavit, but I did not give the hospital permission to share my medical information with the person who wrote the affidavit. I have no direct knowledge of the actions of the physicians alleged in the lawsuit, but I will not sign the affidavit and I am exploring my options regarding the circumstances of my diagnosis and surgery.

But for Dr. Tilzer’s filing of the lawsuit, and my receipt of the affidavit, I would never have known of the possibility that my surgery may have been [medically] unnecessary. I appreciate Dr. Tilzer’s concern for me and I wish him the best. I want to remain anonymous, but you may use this statement as long as my name is not disclosed.”

The next development in this case happened on July 29. In a second court filing, Tilzer asked that the court dismiss the case without prejudice because the hospital did not file an answer or motion for summary judgment. “Petitioner (Tilzer) believes further litigation of this claim is not necessary to protect him from retaliation at this time,” the most recent filing said.

Included in Tilzer’s latest court filing is a statement released by the patient, who chose to remain anonymous. The patient’s statement is reproduced on the sidebar on this page.

According to Lisa McGiffert, the Campaign Director of Consumer Union’s Safe Patient Project, there are several disturbing issues in this case of medical error, based on the court documents and published news accounts. “There is an arrogance in the medical provider community that they know best when the patient should and shouldn’t know about errors,” observed McGiffert, during an interview with THE DARK REPORT.

“Who knows what’s going to happen to that patient later because that patient might have adverse effects from that surgery?” she asked. Consumers Union is the policy arm of Consumer Reports.

For McGiffert, the patient has an absolute right to know about the alleged error. “It’s ethical and very important for that patient to know about the misdiagnosis,” she said. “Or, if the tissues were tested and not cancerous, and the tissues were removed, then the patient has a right to know that.

hospital Cover-Up alleged

The fact that Tilzer alleges a cover-up is a serious problem, McGiffert added. “Typically if a patient knows there was a misdiagnosis or some kind of error that’s caused harm, then that patient would have to find a lawyer to take the case,” she said. “So the burden is totally on the patient.

“This is a fundamental issue for patient safety advocates, like myself,” continued McGiffert. “Unfortunately this probably happens in every hospital every day. Everybody knows but the patient. And when patients are in the dark, what happens on their next visit to the doctor? How does that patient know what to say?

“Physicians and other healthcare providers make decisions about whether the patient should know about the medical error and those decisions are based on what the physicians or providers think the patient needs to know,” she said. “In other words, they take away that right from the patient.

“In this case, the patient was told that he or she is cancer-free and is probably happy about that,” added McGiffert. “So physicians or other providers could believe that, if the patient is happy, then why give that patient bad news.

“But the patient also allegedly has no pancreas or at least part of the pancreas is gone,” she said. “So, as stated in the court documents, that patient had surgery for a cancer that he/she did not have. Therefore, this patient has the right to know about this medical error.

Conflict of Interest For Docs

“The reason physicians don’t want to tell patients in such cases is that they have a conflict of interest and they’re taking the position that they have to protect themselves from lawsuits,” McGiffert explained. There are quite a number of hospitals that are in the United States and probably in other countries that are wrestling with the issue of how to talk to patients when a medical error has occurred, she noted.

Following the dismissal of Tilzer’s lawsuit, KUMC/Hospital released a statement. As reported by public radio station KCUR, the statement said, in part: “As we indicated from the start, there was no merit to the lawsuit. We are pleased it was voluntarily dismissed by Dr. Tilzer after it was clearly demonstrated the lawsuit had no factual or legal merit.”

The dismissal came following a court response by KUMC/Hospital arguing that the Kansas whistleblower statute exempts the hospital from the provisions of the Kansas whistleblower statute under which Tilzer filed his lawsuit.

The KUMC/Hospital statement also said it had “followed our routine practice for surgeons to fully inform patients of their diagnoses and treatments… In order to respect our patient’s privacy, it would be inappropriate for us to discuss specifics of any patient situation.”

Contact Michael McCauley at 415-431-6747 or mmccauley@consumer.org.

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