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Leslie Brueckner
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Patients v. Profit: Landmark Case at South Dakota Supreme Court

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Robert Trzynka and Michael Bornitz of the Cutler Law Firm, LLP,  Sioux Falls South Dakota, Public Justice Senior Attorney Leslie  Brueckner, and Tim James of James Law PC, Yankton South Dakota

Robert Trzynka and Michael Bornitz of the Cutler Law Firm, LLP, Sioux Falls South Dakota, Public Justice Senior Attorney Leslie Brueckner, and Tim James of James Law PC, Yankton South Dakota

When a patient’s doctor is found to have repeatedly, and brutally, performed unnecessary surgery after surgery, does the patient have a right to know why that physician was ever allowed inside a hospital’s doors in the first place?

That’s the central question at the heart of Novotny v. Sossan, a case filed on behalf of more than thirty plaintiffs who claim they were victims of a scheme by two South Dakota hospitals to commit fraud by subjecting those patients to unnecessary and dangerous spinal surgeries that left many of them permanently injured.

On Tuesday, the South Dakota Supreme Court heard oral arguments in the case. Public Justice was honored to be invited to join the expert legal team by lead trial counsel Michael Bornitz and Robert Tryzynka of the Cutler Law Group, LLP in Sioux Falls, ND, and Tim James of Yankton, SD, who have been fighting for years to obtain justice for the victims of Dr. Sossan.

The central legal question in the appeal is whether the Court should create a “crime/fraud” exception to South Dakota’s medical peer review privilege. If the court does so – as I argued on Tuesday that they should – our clients would finally have access to the hospitals’ peer review materials, which we believe will show that those same hospitals knowingly hired a dangerously unethical surgeon and allowed him to perform unnecessary surgeries . . . and that they did it for profit.

Here’s just one example of what Dr. Allen Sossan, a convicted felon who changed his name to hide his crimes and has since fled the country pending felony charges, unleashed on his unsuspecting patients:

On March 17, 2010, Frances Bockholt had the first of many back surgeries. According to the Argus Leader, “She had two additional back surgeries within a month. Then another in May and another in July when she was opened up from the front. Infections developed in her spine. The surgeries caused a hernia, which required more surgery, which created additional complications.
All told, she underwent more than a dozen surgeries.”

Ms. Bockholt died “in agony” in a nursing home less than one year later.

“The guy has a lot of blood on his hands,” Dr. Daniel Wik, a pain management doctor in Norfolk, Neb., where Sossan lived and practiced, told the Argus Leader. “I’m talking dead people that had things done that never should have been done.”

The hospitals, however, are fighting to keep patients from knowing whether Sossan’s penchant to bill for repeated, and expensive, surgeries played any role in their decision to hire him or to keep him once his penchant reemerged. They are claiming those conversations are privileged as a way to keep their reasons shrouded in mystery.

What isn’t a mystery, however, is Dr. Sossan’s reputation among the medical community. Sossan practiced in Yankton, South Dakota from 2008 to 2012 before losing his privileges at Avera Sacred Heart and Lewis & Clark Specialty Hospital. “During his time in Yankton,” the Argus Leader explained, “he was accused of performing unnecessary surgeries and other medical procedures, including complex and dangerous spinal surgeries.”

One doctor at Avera told the paper that “hospitals have a ‘backdoor communication system,’ and Avera’s doctors had heard about Sossan, who [also] had practiced at Faith Regional Hospital in Norfolk, where he eventually either lost or surrendered his privileges” there.

Counsel for the hospitals, however, insist that the South Dakota Supreme Court has no power to craft an exception to the peer review privilege that would shed light on whether hospital officials really did know about Sossan’s track record, and whether they ignored that information in the pursuit of profit.

The defendants’ lawyers asserted during Tuesday’s arguments that it is up the legislature to determine whether criminal or fraudulent acts can be concealed by a privilege. It was further suggested that, while doctors can discover peer review materials to protect their interests, patients who are injured by criminal or fraudulent acts of a doctor or hospital have no right to discover what the hospitals knew and when they knew it.

All that despite the fact that it appears the hospitals knew Sossan posed a “danger to patient safety.” The suits allege that the hospitals allowed Sossan to practice in Yankton, where he generated massive profits for them by performing numerous unnecessary surgeries on their patients, which was confirmed by numerous individuals at the hospitals. The hospitals also held Sossan out to the public as one of the finest surgeons in the country, even though internally they had discussions about his unnecessary surgeries, his extensive complication rate, and other problems that would typically require suspension or termination.

As we explained in our arguments on Tuesday, the Court does have the power to create exceptions to statutory privileges to prevent wrongful acts. Criminal or fraudulent behavior is inconsistent with the purpose of the peer review statute, which was designed to promote patient safety, not allow hospitals to commit fraud. And so we urged the Court to allow access to peer-review materials in cases where the plaintiffs have made a prima facie showing of crime of fraud.

“Money in medicine talks, especially if you’re a hospital or surgery center,” Dr. Wik told the Argus Leader.

On Tuesday, we were honored to give voice to Frances Bockholt and the countless other patients Dr. Sossan so cruelly and unnecessarily harmed, by asking the South Dakota Supreme Court to put patients’ well-being ahead of hospitals’ profit.

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  1. Lars Aanning MD says:
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    Evans and Sudbeck’s argument that if privileged peer review were to have a crime-fraud protection the SD Legislature would have created such an exemption is totally unrealistic. Peer review immunity was pushed by corporate healthcare (hospitals) to prevent further lawsuits resulting from biased and unprofessional credentialing and privileging. Peer review essentially became proprietary and not discoverable – like “trade secrets.”
    There were no patient advocates pushing for any such exemption, and even if they did, their efforts would have been stiffed by corporate healthcare.
    Evans and Sudbeck need to be reminded that Dr. Patrick in the index case, Patrick vs. Bruget, that led to HCQIA legislation and peer review immunity, actually proved his case of biased peer review and was awarded more than $2M by SCOTUS…
    And no study has ever shown that 1) without immunity physicians won’t engage in peer review activity, and 2) no study has shown that patient safety has improved with peer review immunity…

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