News Briefs

Be careful when you give a letter of recommendation
By Vasilios J. Kalogredis, Esquire

A jury in the United States District Court for the Eastern District of Louisiana returned a fraud and negligent misrepresentation verdict of over $4 million against two physicians and a hospital for failing to disclose facts about a drug-impaired physician to a prospective new hospital/employer during the reference checking credentialing process. The case was Kadlec Medical Center, et al. versus Lakeview Anesthesia, et al.

The case was brought by Western Professional Insurance Company (“Western”) and Kadlec Medical Center (“Kadlec”) (a Richland, Washington Hospital) against defendants Lakeview Regional Medical Center (“LRMC”), Lakeview Anesthesia Associates (“LAA”), Dr. Dennis, and Dr. Preau (all from Louisiana).

In 2002, Kim Jones, then a thirty-one year-old mother of three, sustained severe brain damage at the hands of Dr. Robert Lee Berry. Dr. Berry was the anesthesiologist for Ms. Jones’ routine procedure. She is now in a persistent vegetative state. In the malpractice case that ensued, Dr. Berry and Kadlec agreed to an $8.5 million settlement. Western was Kadlec’s malpractice insurance company. During that malpractice case, it was learned that Dr. Berry had been diverting the narcotic pain killer Demerol from his patients for his own use. Ms. Jones’ injuries were tied to that drug usage by Dr. Berry. According to the facts, Dr. Berry had been asked to leave LRMC and LAA. Both LRMC and his colleagues (including Drs. Dennis and Preau) wanted Dr. Berry to leave the Louisiana Hospital and Practice because he had been suspected of diverting Demerol while working there. There were concerns about his reporting to work in an impaired state and endangering patients.

After much back and forth, Dr. Berry agreed to move on. In spite of their knowledge of Dr. Berry’s condition and the fact that they knew that Dr. Berry had been asked to leave LRMC and LAA for these serious reasons, neither Dr. Dennis nor Dr. Preau disclosed any of this to Kadlec. Not surprisingly, Kadlec would not have hired Dr. Berry if it had known about these problems. Instead of being forthright, Drs. Dennis and Preau provided Kadlec with glowing letters of recommendation for Dr. Berry without disclosing his substance abuse issues.

The jury in this case found from a preponderance of the evidence that the defendants had made a negligent misrepresentation to Kadlec and that the negligent misrepresentation was a proximate cause of the damages to Plaintiffs. The jury also found by a preponderance of the evidence that one or more of the defendants had made an intentional misrepresentation to Kadlec and that the intentional misrepresentation was a proximate cause of the damage to Plaintiffs.

In addition to the glowing letters of recommendation from the two physicians who had worked with Dr. Berry in Louisiana, LRMC sent a letter to Kadlec disclosing that Dr. Berry had been on the Active Medical Staff at that hospital. LRMC failed to disclose that it had investigated Dr. Berry’s excessive use of Demerol and that LRMC had taken steps to prevent Dr. Berry from practicing there. This extended to Lakeview’s Board of Trustees. They called Berry’s termination a “resignation for personal reasons” and “not due to any concerns” of the Hospital. It was not until this particular case was brought that it was learned the full extent of LRMC’s knowledge of Dr. Barry’s impairment and how LRMC misrepresented things to Kadlec vis-à-vis Dr. Berry.

This appears to be the first time that one hospital has successfully sued another for failing to disclose adverse information about a physician being considered by that “potential new” hospital.

This should cause hospitals, physicians and other healthcare individuals and entities to be extremely careful when providing letters of recommendation for impaired or incompetent doctors, nurses, or other professionals seeking to work at another institution. Unfortunately, up to now, many have rather casually handled these reference requests. This suit will hopefully bring about change for the benefit of improved patient safety and openness in the healthcare arena.

A decision such as this will have a chilling effect on if and how individuals will respond to requests for references and letters of recommendation. It is imperative that there be no intentional or negligent misrepresentation of the circumstances related to the termination of an impaired physician’s employment or staff privileges. This case raises the importance of not putting patients at risk if one has knowledge of serious problems and does not share it. There may be issues which could hurt patient care and one may be deemed liable for damages, as this Kadlec court determined.

>> back>>

Copyright © 2006 Kalogredis, Sansweet, Dearden and Burke, Ltd.