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License to Kill?

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In Washington, D.C., a 16-year-old girl dies after a botched abortion. The doctor later serves time in a federal prison. In Florida, two patients succumb after undergoing face peelings at the hands of a plastic surgeon. In Milwaukee, an Air Force doctor is responsible for hooking up a heart-lung machine improperly and his patient becomes a speechless quadriplegic. In Texas, a physician removing a birthmark leaves a 10-year-old girl severely braindamaged.

All of these are dramatic examples of medical malpractice. But what is most disturbing is that in each case the doctor involved is still licensed to practice medicine. The examples are graphic, but hardly unique, demonstrations of the unwillingness or inability of authorities in the U.S. to lift the licenses of M.D.s who have been proven negligent, incompetent or even criminal. The result is that many patients, unwittingly, may be subjected to cures worse than their diseases.

How can such doctors continue to practice? The problem is that there is no central body policing the medical profession. Instead, licenses are regulated on the state level with confusing, often contradictory, standards.

In many states, for example, procedures for proving a physician “grossly negligent” are so glacially slow that it can take years to revoke a license. Since each state administers its own licensing program, a doctor can be barred from practice or even jailed in one jurisdiction, then move to another area where he still holds a license and open up shop again. In California, even if a jury finds a physician guilty of malpractice, judges can, and often do, order the information kept from the state’s licensing authorities.

Moreover, critics contend, the medical profession is loath even to invoke strictures less serious than license revocation. “Peer review pressures are not great enough to exert any control,” charges Samuel Shore, a California surgeon and trial lawyer. “The tendency is to look the other way.”

The following cases involve just a handful of the half-million physicians in the U.S. but illustrate a wider failure of the system.

Operating while eating a tuna fish sandwich

As Rita McDowell’s family discovered, patients can pay a high price when incompetent doctors are allowed to continue in practice. When the 16-year-old Washington, D.C. high school student visited Dr. Robert Sherman for a Medicaid abortion on Tuesday, March 4, 1975, the doctor had already been expelled from the local gynecological society, reprimanded and censured by the area’s medical society, and recommended for disciplinary action by the OB-GYN department of the Washington Hospital Center. Yet as far as authorities were concerned, he was still a physician in good standing, entitled to practice medicine at his Northwest Washington clinic.

Rita was in the second trimester of pregnancy when she went to Sherman. Witnesses testified that the doctor performed a suction aspiration abortion on her in his office. Standard medical procedure at the time would have been to suggest that she enter a hospital for a more complicated saline injection abortion. Lupe McDowell, 59, remembers her daughter’s reaction when she left Sherman’s office. “She cried, ‘Oh, Mama, I feel like I had one hundred needles in me,’ ” McDowell recalls. “She felt terrible.”

Three days later Rita began running a 102° fever. But when Mrs. McDowell called Sherman, she says, he wouldn’t come to the phone: “The nurse told me, ‘Bring her in Friday.’ ” That night Rita collapsed; her mother took her to D.C. General Hospital, where doctors removed a macerated fetus from her vagina. On March 8 Rita died of massive infection and shock in the intensive care unit.

Attorney Aaron Levine brought a civil lawsuit against Sherman for the McDowell family and won $51000 in damages. When he investigated, Levine found witnesses who said that Sherman regularly reused disposable instruments and nonsterile equipment. “He wouldn’t change the paper on the operating table,” Levine says. “He would operate with one hand and eat a tuna fish sandwich with the other and talk to his stockbroker on the phone. Sometimes he would start operating before the anesthetic took effect.” In 1978 Sherman was indicted for second-degree murder in the death of Rita McDowell, as well as 26 counts of perjury and subornation of perjury in connection with statements to the grand jury and the medical board. Government witnesses testified that he knowingly sent patients away after performing incomplete abortions, forcing patients to return for a second procedure, so that he could collect a double fee. After Sherman allegedly developed heart problems, a mistrial was declared. The next spring then Assistant U.S. Attorney Carl Rauh agreed to a plea bargain. He explains this was to spare Mrs. McDowell the agony of testifying again. The government dropped the murder charge, but Sherman pleaded guilty to all but one of the charges of perjury and subornation of perjury and was sent to federal prison. “We believe that these felony convictions will prevent the defendant from ever practicing medicine again,” Rauh told the court.

He was wrong. Sherman was released on parole May 20, 1981 after serving 22 months, and this year he surfaced in Boston practicing obstetrics and gynecology. Sherman, now 69, has held a license since he graduated from Boston’s Tufts University School of Medicine in 1938, and although Rauh informed Massachusetts officials of the doctor’s record, state authorities must conduct their own investigation before his license can be revoked. Massachusetts has only two investigators to police its 19,000 licensed doctors—as compared with seven who handle real estate complaints and four who monitor cosmetologists. Procedures to review Sherman’s Massachusetts license actually started in May 1980, when he was behind bars. They are still pending. “I can’t think of a more dramatic example of the failure of a medical board to take action,” says Carl Rauh, now a private attorney. “It’s outrageous.”

Sherman refused to discuss his case. However, when a PEOPLE reporter called him, posing as a prospective patient, and inquired about his rates, the physician affably answered that an examination and urinalysis would cost $25. The reporter hinted that she might need an abortion, and Sherman was reassuring. “Don’t worry,” he told her. “I’m a father, too. I’ve been in practice for 42 years.” Then a woman came on the line to schedule an appointment for the next day and offered comforting words. “Don’t worry about Dr. Sherman,” she said. “He knows about these things.”

A ballyhooed clinic’s face-peels end in death

Few doctors actually face criminal charges arising from their medical work, but the case of Miami plastic surgeon Bernard G. Gross illustrates how often a doctor can be found negligent in civil trials without losing the right to practice. Gross, 48, has been sued for malpractice 23 times in eight years; he has lost or settled out of court in every case but one, which is pending. In 1976 a lawsuit revealed that Gross was injecting patients with liquid silicone. The substance had never been cleared by the FDA for injection into humans (very specific and limited testing has been allowed), but Gross kept a supply of it in a barrel in his garage. Plaintiffs in a series of lawsuits testified that Gross had injected the silicone into their hands, breasts, buttocks and penises, causing lumps, pain and crippling side effects. In 1977 the Florida medical board suspended Gross for six months.

His name may have been tarnished in the eyes of state authorities, but Gross was a godsend to Francis and Jacqueline Maschek. Francis, a former jockey, and Jacqueline, the mother of actor Sylvester Stallone, operate a North Miami “face peeling” clinic. In 1976 the Federal Trade Commission had ordered Maschek and his former wife, Myriam, to suspend their practice “until and unless they were supervised by a licensed physician.” They divorced; in 1977 Maschek married Stallone, also a face-peeling salon owner. They formed a partnership and found an accommodating doctor: Gross, “fresh from his suspension,” according to a Fort Lauderdale attorney.

Since Gross has teamed up with the Mascheks, two of their patients have died after face peelings. Peruvian hotel owner José Oshiro, 60, checked into their clinic in March 1980 to have some facial scars removed. Mrs. Oshiro and her attorney claim that although José suffered from emphysema and a heart condition, he was given a powerful painkilling drug, and that after the patient “suffered a cardiopulmonary arrest, he was not given adequate emergency treatment.” They also say that Francis Maschek had represented himself as a doctor, although he later told them he had only a high school diploma. Following the face peeling, Oshiro was unable to talk and had difficulty breathing. Four hours later he died of cardiac arrest. “The case damn near borders on manslaughter,” charges attorney Rick Gunion, who is suing Gross and the Mascheks on behalf of Oshiro’s widow.

In a 1978 case, Shirley Defede, 68, became ill in the midst of a week-long stay in the Mascheks’ clinic for a face-peel performed by Dr. Gross. She was hospitalized with a severe bacterial infection for three months, until her death. Gross and the Mascheks settled with her husband for $15,000, although their lawyer now insists they paid only to avoid the nuisance of a trial—and Jacqueline Stallone (the name she uses professionally) says she is a target for lawsuits because of her son’s fame.

Gross’ license was routinely renewed in December 1981. He continues to practice despite an April arrest for illegally selling more than 5,000 methaqualone capsules to Miami undercover cops; he was released on $10,000 bail. Citing secrecy regulations, Florida authorities refuse to comment on reports that they are once again looking into Gross’ credentials to hold a license.

A birthmark removal causes a coma

Even when they lose civil lawsuits, some doctors are able to escape the financial consequences of their actions. Three years ago Gerald Wayne Johnson, M.D., was “going bare”—medical slang for working without malpractice insurance—when 10-year-old Jill Newsome came to his plastic surgery clinic in a medical office building near Houston for the removal of a birthmark from her knee. Johnson, who had previously paid nearly $40,000 a year in malpractice insurance, thought his rates too high and let his coverage lapse. Although he had completed his internship and residency in plastic surgery, he had not taken the certification examinations administered by the American Board of Plastic Surgery. Yet Johnson was free, like every other M.D., to practice any specialty for which he was qualified by previous experience. Assisted by a nurse anesthetist, who administered an initial sedation, Johnson was removing Jill’s birthmark under the local anesthetic Marcaine when her heart stopped. They summoned an internist from an office upstairs, but by the time Jill’s heart was restarted, her brain was severely damaged. Today she lies in a coma.

Dr. Johnson, now 42, has admitted that he grossed between $60,000 and $80,000 a month. Nonetheless, although a jury awarded Jill $11.36 million, the Newsomes have yet to receive a penny. After gradually transferring title to much of his estate to his wife and other members of his family, primarily between June 1979 (after Jill’s surgery) and January 1982 (shortly after Jill’s trial began), and forming some medical corporations, Johnson filed for personal bankruptcy earlier this year, reportedly in an attempt to evade payment of the judgment. Last month a Texas judge ordered Johnson jailed for 30 days, holding him in contempt of court for refusing to appear at a scheduled hearing to determine his assets. Johnson was released on a $100,000 personal recognizance bond and has continued his practice.

An Air Force surgeon’s clipped wings

The inability to obtain malpractice insurance may actually dissuade some incompetent physicians from practice. In the last seven years, as lawsuits and awards, both valid and frivolous, have increased in number, insurance costs have risen accordingly. Some doctors in high-risk specialties in certain states can pay as much as $50,000 per year for coverage. But one class of doctors is unconcerned by costs for malpractice insurance—government-employed physicians. The federal government often answers for the negligence of its salaried physicians. According to a spokesman for the Department of Health and Human Services, “Any government physician sued for acts performed in the scope of his government employment will generally be defended by the Department of Justice and will not be held personally liable. If he is grossly negligent, the government might not defend him.”

Dr. William Stanford was appointed the chief heart surgeon of the Air Force in 1969 and chairman of the Department of Surgery at Wilford Hall Air Force Medical Center near San Antonio in 1975. His temporary transfer from Wilford Hall late in 1977 followed a year’s campaign by his subordinates to convince the Air Force that his mortality rate was excessive. Fewer than 8 percent of patients overall die during or soon after heart surgery; 43 percent of Stanford’s cases expired. The Air Force allowed Stanford to accept a fellowship to work with civilian heart surgeons in Milwaukee, without telling his new employer about his record. Five months later, during surgery on Takuye Green, then 54, Stanford hooked up the heart-lung machine improperly; the woman was left severely brain-damaged, a speechless quadriplegic living on a liquid diet. This year a federal judge awarded Mrs. Green close to $2.2 million in damages in a lawsuit brought by her husband. When the Green trial began in October 1981, Stanford, who now lives in Miami, voluntarily stopped doing heart surgery, and this year he stopped seeing patients. But, at 51, he remains a licensed physician free to perform surgery. The U.S. government filed an appeal of Stanford’s verdict last March.

Only peer pressure ends a misguided career

The medical profession is not always unwilling to recognize problems in its ranks. In December 1974 all 14 anesthesiologists in Cedar Rapids, Iowa refused future work with neurosurgeon Herbert Locksley, now 59. “It’s pretty hard to do surgery without anesthesia,” Locksley’s lawyer argued in a $9 million damage suit he filed in 1976 against the anesthesiologists. But in December 1980 a jury found against Locksley. His case is now on appeal. Evidence in the trial showed that he had twice operated on the wrong side of patients’ heads. In one of those cases, he testified, he had spent more than three hours looking for a weak spot in an artery. “I stopped and I looked at the X-rays and I said, ‘My God, we’re on the wrong side,’ ” Locksley admitted. “I sat down on the chair dumbstruck.” The case was settled out of court for $90,000.

Peer review committees, involving doctors at Mercy and St. Luke’s Methodist hospitals in Cedar Rapids, and a neurosurgical society panel met during a four-month period in 1974 and 1975 to consider Locksley’s cases. The anesthesiologists’ refusal to assist him (except in emergency cases) continued even after the boards decided to allow the brain surgeon to continue his practice. The panels did recommend some restrictions on Locksley, though. One of them: a requirement that before each operation he mark the surgical site with indelible ink.

Though he no longer practices, Locksley is still a licensed physician. He and his wife live with relatives in Philadelphia.

PEOPLE has discovered other equally unsavory stories of medical malpractice: an allegedly intoxicated surgeon who once opened a patient’s abdomen without administering anesthesia; an eccentric physician who reportedly administered a homemade cocktail of sex hormones to most of his patients, causing women to sprout facial hair and some men to grow breasts; a doctor with a history of mental illness who performed highly sophisticated surgery for which he had no special expertise and reportedly made hospital rounds at night dressed in outlandish outfits and garish jewelry. These physicians are still working.

Thankfully, incompetent M.D. are a minority. The American Medical Association guesses that 10 percent of all U.S. doctors are impaired, and other experts say that 90 percent of malpractice suits are brought against only 10 percent of the doctors. Some states have taken steps to crack down on the problem; under a new California law hospital administrators can be fined if they fail to report disciplinary actions against their doctors to a state board. But there is still no nationwide clearinghouse, and many doctors who have committed egregious abuses are still free to move from state to state, practicing their profession legally without restraint. Physicians remain as unwilling as ever to publicly denounce their colleagues. As long as this is the case, the entire profession is injured. As William Rial, M.D., the new president of the AMA, said in his inaugural address last month: “The physician who just tends to his or her practice is not doing nearly enough. To the extent such physicians ignore errant colleagues, they diminish our ethical and professional stature.”