by Shannon P. Duffy, U.S. Courthouse Correspondent
The lawyer for a women who is suing Abington Memorial Hospital over a botched appendectomy is asking court approval to add a claim for punitive damages now that he has uncovered evidence that the hospital routinely assigns a surgeon in-training to operate on patients who have no private health insurance.
Attorney Aaron J. Freiwald of Kline & Specter argues in his motion to amend that if Yoon Kyeong Lee had the financial means to get private insurance, “a fully qualified attending surgeon would have seen her in person even though it was in the middle of the night, and would have actively and directly, participated in her surgical procedure.”
Instead, Freiwald argues, “Ms. Lee became a practice case for a student surgeon, was not afforded by direct involvement by an attending surgeon at any point before, during or after her surgery.”
Freiwald argues that Lee’s treatment “Was not a one-time phenomenon, but rather was the result of a set of policies and procedures at Abington Memorial Hospital to assign uninsured patients and patients without private health insurance to the unsupervised care of unqualified surgeons.”
Attached to the motion is an expert report from Dr. Richard H. Pearl, the surgeon-in-chief of Children’s Hospital of Illinois, who opined that Abington Memorial’s policies “reveal a blatant form of institutional discrimination and second-class care for those unfortunate patients who are uninsured and without means.”
Pearl found that uninsured patients are offered a Hobson’s choice in which they can opt to be seen by a board-certified, fully qualified, experienced surgeon, but only if they agree to be billed for “out-of-pocket” payment.
The only other choice, he said, is to “volunteer” to be cared for by surgical residents who are neither board-certified, board-eligible, or even bonafide members of the medical staff.
“This is callous and dismissive behavior of the highest order,” Pearl wrote, “and the fault in this instance lies at the feet of the attending surgical staff, the department of surgery, and the hospital, all of whom either directly or indirectly allowed this discrimination by ability to pay occur.”
Pearl also faulted Dr. Robert Josloff, the surgeon who was the attending-in-charge at the time of Lee’s operation, for not being in the hospital at the time Dr. Valerie Dyke performed the operation.
“This conflicts with Abington Memorial policy which clearly states that he should be ‘readily available.’ I do not believe that readily available means to be able to be called from home if a problem occurs,” Pearl wrote.
Pearl also called the mishap in Lee’s surgery “clear surgical error” in which a patient with uncomplicated appendicitis ended up with a perforated sigmoid colon requiring a colostomy.
Colon injury is not a usual complication in appendectomy surgery, Pearl said, and “does not occur in the absence of surgical misadventure.”
Josloff violated the published principles of the American College of Surgeons in two ways, Pearl opined, first by failing to be an “active participant” in the operation when he delegated the task to Dyke; and second by failing to secure Lee’s consent to be operated on by a resident.
“Dr. Josloff did more than just ‘delegate part of the care’ in this case. He gave over entirely the care of this patient to a surgeon-in-training who lacked the minimum requirements of membership on his hospital’s medical staff,” he wrote.
Another expert, Dr. Martin Merry, a health management and policy professor at the University of New Hampshire, called Abington’s systematic delegation of surgical responsibility to unsupervised students “unacceptable and outrageous.”
Merry closed his report with a few unanswerable questions, including: “What patient would sign a hospital informed consent form for an emergency operation knowing that her surgeon was still in training, and would be assisted by even more junior physicians in training?”
Attorney Freiwald argues that with those expert reports, he can show the level of outrageous conduct necessary to recover punitive damages under Pennsylvania law.
Under court rules, Freiwald says, Lee still has the right to seek amendment of her suit and the defendants cannot claim to be prejudiced or disadvantaged since it is still well within the two-year statute of limitations.
Discovery is also complete now, Freiwald says, and the facts that gave rise to the claim for punitives became clear only through the depositions taken in April and May and the expert reports which were completed this month.
Abington Memorial’s lawyer, Carolyn D. DiGiovanni of White & Williams, could not be reached for comment yesterday.