The Case of the Missing Physician
What can happen to a figure in the news when prosecutors drop accusations against him but the media never catches on.
March 2002 (eastbayexpress.com)
Dr. Rod Perry is a central figure in the most important legal challenge to California's regulation of health maintenance organizations. The Oakland internist was the physician who treated Margaret Utterback, a 74-year-old San Leandro resident who complained of abdominal pains in early 1996 and died following emergency surgery to repair a ruptured aneurysm. The disputed circumstances surrounding her death prompted the state to slap Oakland's Kaiser Foundation Health Plan with a $1 million fine -- the largest ever levied against a California HMO.
Perry's treatment of Utterback was initially central to the state's case against Kaiser. The state referred extensively to the doctor's actions and suggested that his treatment was lacking in various regards. In its first accusation against Kaiser, filed in May 2000, the state asserted that "Dr. Perry failed to follow even the simplest of standard [abdominal aneurysm] protocols, such as starting IVs and oxygen and/or administering pain medication to keep Utterback calm."
But the state later revised its view of Perry's treatment, significantly downplaying his role in later legal filings. The problem for Perry was that the news media never caught on to the state's new position during its extensive coverage of Utterback's death. Over the past two years, the conflict between the state and Kaiser has been covered by most of California's major media outlets, including the San Francisco Chronicle, the Contra Costa Times, the Los Angeles Times, the Sacramento Bee, and KRON TV, as well as a January 16 article in the Express. Most of this coverage included harsh criticism of Perry, and yet Perry's own account of events has never been included in any stories or legal filings.
The media's treatment of Rod Perry is a prime example of what can happen to a figure in the news when prosecutors revise a case without formally renouncing their earlier accusations, when media outlets rely solely upon the official account, and when the subject of coverage makes no effort to present his own side of the story.
Perry claims the state did not ever communicate with him before filing its initial accusation. Upon reading the accusation a few months ago as he prepared to testify in Kaiser's appeal of the fine, Perry said he was "really shocked at the inaccuracies, the distortions. Basically, they accepted the story of one of [Utterback's] daughters virtually verbatim. It strikes me as irresponsible on the part of these entities not to look at this a little more closely to see whether the facts bear out all this action that they've taken."
The case began when the state Department of Managed Care levied its fine against Kaiser two years ago. The agency accused Kaiser of failing to provide Utterback adequate access to care. In challenging the case, Kaiser has taken issue with the very basis of the state's scope of authority.
On January 26, 1996, Utterback spent eight hours working her way through Kaiser's phone scheduling system in an attempt to see Perry, her primary care physician. After five separate phone calls and various conversations with different medical assistants, Utterback finally secured an appointment. Upon examining her, Perry diagnosed Utterback's aneurysm and arranged for her transport to a Kaiser hospital for emergency surgery.
Utterback's youngest daughter, Terry Preston, who spent years convincing the state to launch an investigation, believes there were unreasonable delays at Perry's office. After arriving at the clinic early and begging to be seen by Perry, Preston says her mother was finally led to an examination room about fifteen minutes after her scheduled appointment. Once Perry diagnosed her mother, Preston says Utterback and another daughter, Barbara Winnie, sat in the patient room alone for twenty to thirty minutes while waiting for an ambulance, during which time Utterback was in serious pain. Preston also claims that Perry's decision not to establish an intravenous line at his office cost her mother precious time once she arrived at the emergency room, where ER nurses struggled to set up an IV.
Medical journals recommend IVs, oxygen, and pain medication as common medical practice in aortic aneurysm cases. But Perry defends his decisions not to use any of these methods in his treatment of Utterback. The IVs available in his office that day were simply too small to be of any good to her, he said. The physician also claims that Utterback needed large-bore IVs that could dispense massive amounts of intravenous fluid. Perry said he chose not to administer pain medication because it could have dramatically affected his patient's blood pressure and his office was ill-equipped to deal with the emergency procedures that could have been necessary as a result. The same goes for a cardiac monitor; Perry said it wouldn't have done any good, given that if Utterback had gone into cardiac arrest she'd have needed emergency equipment that wasn't available at his office. He said he felt it was safer to keep her stable and order transport.
Perry's conduct was reviewed in 1996 by the California Medical Board. Upon reviewing his account and Utterback's medical records, the board cleared him of wrongdoing in the case. However, a board representative did voice concerns about Kaiser's phone system at the time of its decision and recommended that the Kaiser system be further investigated, Perry said. The board also wrote to Utterback's daughter Preston, urging her to pursue the matter with state HMO regulators.
The evolution of the state's case against Kaiser coincided with the birth of the Department of Managed Care. The first accusation in the case was actually filed by the Department of Corporations while the Department of Managed Care was under establishment. The Department of Corporations was previously responsible for regulating HMOs, but the new Department of Managed Care was given much wider oversight. Two months after the first accusation was filed, the Department of Managed Care took over management of the case.
Department attorney Curtis Leavitt, who's been with the department for fourteen months and started working full-time on the case six months ago, speculates that the Department of Corporations didn't investigate Perry's side of the story simply because "that was the leadership under the Department of Corporations; that was just the way they did things." None of the lawyers involved in the first accusation were available for comment.
Once the Department of Managed Care took over, its lawyers reevaluated the case and dropped Perry's name. For instance, the state initially took issue with Perry's ambulance orders, noting that the ambulance didn't arrive for half an hour after Perry's diagnosis. But the agency has since dropped the emergency transportation issue from their case, along with the other details of Utterback's treatment by Perry.
An amended accusation in February 2001 broadened the charges against Kaiser with the inclusion of two other cases, and increased the fine to $1.1 million. But the state never called attention to its new view of Perry's conduct. "I feel sorry for Dr. Perry to the extent that he's been portrayed as part of the problem, when in fact I believe that Dr. Perry did everything right; all the problems were those that existed prior to Utterback seeing Perry," Leavitt said.
Even Utterback's daughter Preston says her qualms are with Kaiser, not Perry. "I tried very hard to keep Dr. Perry's name out of the public eye, because early on in this process I learned that doctors have become convenient scapegoats for the health care industry," she said. Leavitt also believes Kaiser has made Perry its scapegoat.
Kaiser's defense treads a thin line in this regard. The health care giant has challenged the Department of Managed Care not on the validity of its case, but on the scope of its authority. Kaiser says the department overstepped its bounds in imposing a fine in the Utterback case, because the case really involved Kaiser's doctors and not its HMO organization. Leavitt pointed out that Kaiser's attorney, Steve Madison, has referred to the case as a malpractice issue, knowing that the Department of Managed Care doesn't have authority over doctors. Madison did not return calls for comment.
"Kaiser has been playing it both ways," agreed Preston. "In one breath Kaiser tells the court that Dr. Perry committed malpractice. In the next breath they tell Dr. Perry that he gave my mother the care she needed. Their story changes according to who is in the audience and how they want to manipulate them."
Perry said he understands Kaiser's defense from a legal perspective, but said Madison's comments don't make him very happy. "I can only imagine he's saying that with the intent that if this were examined for malpractice, there is no malpractice," Perry said.
About a year ago, Kaiser's lawyers approached Perry and asked him if he'd discuss the case. He said it was only the second time he had communicated with Kaiser about the case since it was filed in 1998. Perry said he decided that he'd cooperate only if he was subpoenaed or paid $150 an hour. So he said Kaiser's lawyers agreed to pay him for his time -- both verbally and in a follow-up letter. A year later, Perry said he still hasn't seen the money. "That really kind of frosted me," he said. "I learned that if you want to get paid by lawyers, you have to get the money up-front."
This past January, when Kaiser asked him to take the stand, Perry got paid first. The Department of Managed Care also paid him for some of his time before they subpoenaed him. Perry said both parties tried to convince him that the other side was going to "screw him."
Taking the stand on January 7, 2002, Perry spent two to three hours answering questions from both sides. He said the state's line of questioning concerned Kaiser's phone system and written procedures. Perry said he testified that, had he known Utterback had repeatedly tried to reach him throughout the day, "it would have made a difference to me, because it would have indicated a level of concern on the part of the patient." He also admitted that he can recall no other instance either before or since leaving Kaiser in which one of his patients had to call five times in a given day before getting an appointment with him.
At this point, all the evidence in the case has been presented. The department and Kaiser will each have a chance to issue closing briefs during the next few weeks. The judge has thirty days to issue a ruling after the final argument on April 18.
Perry said he took no steps to present his side of the story to the state or the media because he "thought the whole thing would eventually blow over." He decided to come forward after reading the recent article in the Express (to which he has responded with a letter in this issue). "What really made me think I should speak up is that it's becoming this sort of urban legend thing, with me as a central part of it," he said.
The physician left Kaiser in 1997, and has since built a private practice in Oakland. He said his reasons for leaving weren't directly related to the Utterback case, but that the case highlighted Kaiser's cost-cutting move to keep doctors from being able to follow patients from their offices to the hospital -- which Perry believed was a bad decision.
Still, Perry doesn't believe there's bad blood between himself and Kaiser. "But it sort of pains me that Kaiser never issued anything more than terse comments that I was no longer with them, sort of implying that they'd gotten rid of me," he said. "There have been few expressions of sympathy from Kaiser for what I've been through." But Perry still proudly displays his 1995 Outstanding Kaiser Physician of the Year award.
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