Quick settlement in Zarkin case won’t clear liability for New York hospital
Doctor carves initials in patient’s abdomen
A physician in New York admits that he carved his initials in the abdomen of a patient who had just delivered a baby, leading to a $5.5 million lawsuit against him and the already troubled hospital where the incident occurred.
State officials have penalized the hospital severely, but some observers are saying the case raises questions about how the health care industry screens out dangerous providers and whether an investigation by the Joint Commission on Accreditation of Health care Organizations really leads to any meaningful changes.
Though the patient initially sued the hospital and the doctor, she soon dropped the suit against the hospital and accepted a settlement of $1.75 million from the doctor. From a risk manager’s perspective, that outcome is perhaps the most surprising part of a truly bizarre case.
The case is so outrageous that even seasoned health care risk management professionals are dumbfounded. Allan Zarkin, MD, 61 years old and until recently a respected obstetrician, admits through his lawyers that he used a scalpel to carve the letters A and Z into the abdomen of a 31-year-old patient, directly above the cesarean incision he had just closed. The letters are 3 inches high by 1.5 inches wide.
Zarkin’s attorneys say he suffers from a frontal lobe disorder that caused him to disfigure the patient. The Manhattan district attorney, Robert Sullivan, JD, charged Zarkin with felony assault and vowed to continue investigating Zarkin’s treatment of other patients. At his arraignment, Zarkin pleaded not guilty to the criminal charge.
This is the second scandal at Beth Israel Medical Center in New York City since November 1997. In the first incident, a woman died following what should have been a routine hysteroscopy, and there were allegations that an equipment salesperson actually performed part of the procedure. (See story, p. 32, for a recap of that incident.)
The hospital underwent a major investigation and had to prove itself worthy of accreditation again. But as proof that lightning can strike twice in the life of a risk manager, the same facility is now facing a barrage of investigations and the real possibility that the public will forever associate Beth Israel Medical Center with outrageously bad treatment of patients. The hospital still was facing such problems from the hysteroscopy incident, with those issues far from settled, when the Zarkin incident occurred and compounded the damage exponentially.
Hospital gets off the hook financially
One risk manager who was troubled by the hysteroscopy incident now tells Healthcare Risk Management she is shocked and perplexed by the way this case was settled. Margaret Douglass, MPH, RN, director of risk management at FPIC, a physicians’ insurance company based in Jackson ville, FL, says she expected a quick settlement, but one that included a huge payout by the hospital.
"This is a risk manager’s nightmare," she says. "The only thing you could do is get them [the plaintiffs] in there and write them a check as quick as possible and try to get them not to talk to the press."
The $1.75 million settlement might be explained by the doctor’s malpractice limits and everyone’s desire to end the ordeal, she says. But she says she can’t imagine how the hospital avoided paying damages. The doctor’s reported friendship with the victim and her husband may have something to do with how the case ended, she says. The doctor was not employed by the hospital, but Douglass says she does not think that would help its case much.
"It’s a very strange result," she says. "The hospital would have been an ideal deep pocket, and they had no hope of really defending themselves. You’d never let this kind of thing go to trial. I can’t understand why the patient would let the hospital off the hook unless there’s something here that we just don’t know about."
Even the amount of the doctor’s settlement seems small for such an egregious case, she says. "We wouldn’t have gotten away with a settlement like that in Florida," she says. "We may never know the truth. There really are a million stories in the Naked City, I guess."
The hospital won’t get off scot-free, however. The carving incident could irreparably damage the reputation of Beth Israel, Douglass says. The incident goes far beyond any typical malpractice case, she notes. "It certainly will not be easy to save their reputation," she says. "That first incident made it hard for the public to develop a level of trust, and now this one is so outrageously bad."
Hospital had warning signs
The hospital’s situation worsened when it became known that there were warning signs of Zarkin’s strange behavior, that Zarkin immediately got another job after leaving the hospital, and that hospital officials were still working cooperatively with the doctor two months after the carving incident. Hospital officials met with him to discuss sending nurse midwives to work at a clinic where the doctor had gotten a new job, according to a hospital spokesman. Zarkin met with Daniel Saltzman, MD, chief of obstetrics at Beth Israel, and other hospital personnel in November to discuss setting up a midwives program with Choices Women’s Medical Center, a clinic offering abortions and prenatal care.
’The chairman of our department of obstetrics and gynecology had one exploratory meeting with the clinic in question to discuss a possible clinical affiliation,’’ according to a statement released by the hospital. ’For a variety of reasons, Beth Israel did not pursue this matter further.’’ The hospital confirms that when the meeting became public knowledge, Saltzman resigned his position as chief of obstetrics. He remains on the medical staff at Beth Israel.
The incident occurred on Sept. 7, 1999, but only recently became known publicly when the patient and her husband filed a $5.5 million lawsuit against the hospital and the doctor. There is little or no dispute about what happened that day in September. The doctor’s attorney, Kenneth Platzer, JD, says Zarkin did indeed carve his initials in the woman’s abdomen after delivering a healthy baby girl, while the patient was still sedated and in the delivery room where the birth took place.
Platzer says the doctor realized he had done something terrible soon afterward, but that he was not in a normal state of mind at the time of the carving. "We have filed an affirmative defense, which states that any actions taken by Dr. Zarkin were not willful or malicious but that Zarkin is suffering from a medical dysfunction that resulted in his action," Platzer says. "It was terrible, but it was unanticipated."
Platzer says Zarkin did not resist when officials revoked his privileges at the hospital, but that Zarkin did not know before this incident that he had a neurological disorder. "At the behest of family and consulting physicians, he underwent an initial work-up that shows he appears to have a disease process consistent with Pick’s disease, a progressive form of dementia. He currently is under treatment to determine the prognosis."
Platzer stresses that Zarkin is not disputing the material facts of the case, only claiming that he harbored no ill will that would motivate him to disfigure the patient. Platzer says Zarkin had become socially friendly with the patient, 31-year-old dentist Liana Gedz, and her husband while managing her difficult pregnancy. When he realized what he had done to her, Platzer says, the doctor recognized the gravity of the situation and surrendered his privileges without a fight.
Zarkin’s attorney says it is unclear whether the doctor realized at the time of the carving what he was doing. "He feels absolutely terrible about the entire situation and can’t imagine what possessed him to do it," Platzer says. "He wasn’t holding a grudge or being cute or wanting to do something on a conscious level. We’re just now trying to sort out why he did exactly what he did, but we know it was his disorder that led to it."
The lawsuit was filed Nov. 8, 1999, against the hospital, Zarkin, and Zarkin’s medical group, New York GYN/OB Associates. The first cause of action sought unspecified damages for medical malpractice, so whatever that amounted to theoretically could have been added to the $5.5 million total. The second cause of action was battery, an intentional tort for which the plaintiffs were asking $5 million. That figure includes punitive damages, Platzer says. The additional $500,000 was requested for the plaintiff’s husband to cover derivative damages.
The hospital and the doctor still could face other disciplinary action and investigations. The Joint Commission in Oakbrook Terrace, IL, is aware of the carving incident and has begun a review of the allegations, says spokeswoman Donna Larkin. She tells HRM the carving incident is being reviewed as a sentinel event.
The Joint Commission’s previous investigation, and the timing of this most recent problem, raises questions for some observers. Just before the carving incident, the Joint Commission had put its stamp of approval on Beth Israel once again after investigating the previous hysteroscopy incident. The November 1997 hysteroscopy incident was classified as a sentinel event, requiring the hospital to conduct a root cause analysis to find the cause. In addition, the hysteroscopy incident prompted the Joint Commission to conduct a survey of the hospital in December 1998. That survey led inspectors to cite a number of deficiencies and to call for these improvements in these areas before continuing accreditation:
• patients’ rights;
• initial assessment;
• anesthesia care;
• operative and other procedures;
• orientation, training, and education of staff;
• patient-specific data and information;
• credentialing.
"On Aug. 23, 1999, the Joint Commission informed Beth Israel that they had demonstrated compliance with those recommendations for improvement," Larkin says. The hospital was again fully accredited by the Joint Commission. Sixteen days later, Zarkin carved his initials in a patient.
The timing of the incident suggests that Beth Israel still is unable to properly screen out a dangerously incompetent provider, Douglass says. One would think that after such a serious investigation of a sentinel event and improvements required by the Joint Commission, the hospital’s oversight would be tight enough to detect a physician who was a threat to patients for any reason, whether it is a neurological disorder or outright depravity, she says.
"It makes you wonder what they improved after the first incident," she comments. "If the Joint Commission called for improvements in credentialing, and this guy had any history of strange behavior, they should have caught it before he hurt someone."
The Joint Commission defends its oversight process by claiming that there is no way to prevent a single doctor from committing an outrageous act. The sentinel event investigation may reveal process shortcomings that made it possible for the doctor to carve on the patient, but Joint Commission vice president Paul Schyve says the previous Joint Commission investigation could not be expected to prevent any future act by a disturbed physician.
"An organization is made up of hundreds of people, and things will happen," he says. "We can’t anticipate that incidents like this will occur, but organizations seek Joint Commission accreditation to reduce the risk as much as possible. The idea is that if a hospital is following these rules, the patients are more likely to get good care and bad things are less likely to happen."
JCAHO defends its oversight
Schyve denies any charges that the timing of the incidents and the Joint Commission accreditation indicate shortcomings in the oversight process. If the incidents were very similar, there might be more justification for doubting the value of the intervening Joint Commission investigation, he says.
"But if you do that [investigation] with one event and make the kind of changes the root cause analysis suggests would be necessary to make, you may not have addressed some sort of changes that would be helpful in avoiding some other type of event," Schyve says. "So the fact that you were successful in reducing the chance of one type of adverse event occurring does not mean that you have addressed all possible adverse events. That is why this is a continuing process."
In addition, Douglass says she is troubled by the fact that the doctor could be hired so easily as medical director at Choices Women’s Medical Center in Long Island City, NY. State health department officials say the clinic did not check his credentials as required by state law, so the clinic is being investigated for that alleged violation. (See p. 31 for more on the sequence of events and p. 30 for Beth Israel’s expected liability.)
The state health department investigated the incident and recently issued a scathing report on the hospital’s culpability. The department announced Jan. 21 that Zarkin had signed an "Order of Conditions" requiring him to cease the practice of medicine effective Jan. 7, pending resolution of disciplinary proceedings against him.
On Feb. 3, the health department released a report saying the hospital knew about aberrant behavior by Zarkin long before the carving incident and did not intervene, and that the hospital did not respond appropriately after the incident. (See story at right for more on the health department’s recent actions against the hospital.)
Report says three patients were mistreated
The health department report says the investigation by the New York State Board for Profess ional Medical Conduct stems from Zarkin’s mistreatment of three patients, including the woman who has his initials on her stomach. The three accusations against Zarkin are for "verbal abuse of one patient; negligent practice, and/or negligent supervision of another patient’s care; and using a surgical instrument to create a scar in the shape of the letters A and Z on the body of a third patient without the patient’s consent and for no medical or proper purpose."
Sources would not release information on the other two patients in the allegations, but The New York Times reported Jan. 27, that a woman contacted the newspaper claiming to be the patient who accused Zarkin of verbal abuse. She told the newspaper the doctor had been her gynecologist until he made lewd and sexually suggestive comments to her.
The attorney handling the case for Beth Israel Medical Center, Laura Shapiro, JD, of New York, says the hospital has issued a strict order not to comment on the case. Jim Mandler, a spokesman for the hospital, says no one else at the hospital is allowed to comment.
Sources
o Kenneth Platzer, 666 Third Ave., NY, NY 10017. Telephone: (212) 697-4090. Margaret Douglass, Director of Risk Management, FPIC, 1000 Riverside Ave., No. 800, Jacksonville, FL 32204. Telephone: (904) 354-5910.
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