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Negligent Credentialing in Kentucky

The following is an article written by John C. Whitfield, co-founder of Whitfield Bryson LLP, for inclusion in this month’s edition of the Kentucky Justice Association’s Advocate Magazine. 

Recently I prosecuted a case in Madisonville (with Roger Braden and Larry Hicks of Edgewood) that was the subject of a Kentucky Court of Appeals opinion that adopted the tort of negligent credentialing in Kentucky. [For full disclosure, this case is the subject of a Motion for Discretionary Review to the Kentucky Supreme Court and is not final. 2011-SC-000580-D.] Indeed, this case was one of the most interesting and difficult cases of my career.

In The Estate of Judith Burton v the Trover Clinic Foundation et., al., Hopkins Circuit Court, civil action no. 05-CI-00932 (Kentucky Court of Appeals case no. 2009-CA-1595; 2009-CA-1726), Judith Burton, a smoker with a history of cancer, presented to the Trover Clinic in Madisonville, Kentucky for three different radiological scans that were allegedly misread by the chair of the Trover Foundation radiology department, radiologist Dr. Philip Trover. She died on October 4, 2008 from cancer. Not only did we claim that Dr. Trover’s omissions breached the standard of care required of a reasonably prudent radiologist, but that “Dr. Trover had a dangerous habit of reading radiological films at a rate… far in excess of the average workload for a typical private practice,” and that she was ultimately a victim of this unsafe practice.

The facts of this case were incredible. In 2000 to 2004, Dr. Neil Kluger, an Oncologist with the Trover Foundation, began to notice a disturbing trend of misreads attributable to Dr. Trover, culminating with the death of a patient Dr. Kluger believed was directly related to a misread of Dr. Trover. As a result, in late 2003 to early 2004, Dr. Kluger began his own investigation of Dr. Trover by speaking to approximately 30 physicians and employees of the Foundation as to their knowledge of Dr. Trover’s habit of reading radiological films at an unreasonably fast rate causing injury to patients for many years. This investigation led to Dr. Kluger writing the first of three letters to the Trover Foundation describing a harrowing situation with Dr. Trover’s practice and requesting an investigation by the Foundation as to his findings.

The Trover Foundation initiated an investigation of the claims of Dr. Kluger by and through its Ad Hoc and Medical Executive Committee (“MEC”). Both committees spent weeks investigating the claims of Dr. Kluger by interviewing numerous witnesses and employees. A significant portion of the testimony was frightening. For example, Foundation employees Valerie Bryant and Christy Hayes each told the MEC, and testified at trial, that they overheard Dr. Trover brag on more than one occasion that he could read a mammogram in 4 seconds. Cheryl Covington Korinta, a Foundation employee, told the MEC and testified at trial that Dr. Trover bragged that he could read a large stack of mammograms in 20 minutes and could not understand why other physicians could not as well. Trial representative and RMC Radiology Director, Ianthe Daugherty, testified at trial that Dr. Trover read films 30 times faster than another long time radiologist on staff.

Ultimately on April 20, 2004, the MEC concluded these hearings with its Report Regarding Corrective Action Request of Dr. Philip Trover finding in relevant part the following:

• A physician hired by the Trover Foundation reviewed 71 non mammographic studies ranging from 2001 to 2004. Of these, 9 were found to be a “serious breach of the standard of care either by omission or commission” (level 5 breach) and 15 were found to be “failure to describe a finding with significant clinical impact” (level 4 breach). Dr. Trover provided no explanation as to 14 of these findings and his written response to the remaining 10 findings were not sufficient.
• Dr. Trover’s call back rate of 1.8% was insufficient compared to the national average (7-15%) and the rates of his peers Dr. Esser (16.4%) and Dr. Levy (10.8%). Dr. Trover gave no explanation for his low call back rate. This was significant as fewer of Dr. Trover’s patients were called back for work up, which “could result in missed pathology.” As a result, the MEC concluded he was indifferent as to his accuracy of readings and indifferent to the need of patients and treating physicians.
• Dr. Trover’s reports consistently lacked detailed incidental findings appropriate to assist treating physicians in an appropriate diagnosis. In those cases where Dr. Trover did note pathology, he frequently failed to provide the level of detail and recommendations that treating physicians expect. Dr. Trover also did not state the reason the study was recommended in the first place, confirming his lack of detail.
• Dr. Trover attempted to read too many films per year. The American College of Radiology (“ACR”) indicates that the average amount of films read by a private radiologist to be 12,800 per year. Dr. Trover read over 30,000 per year. For example, in 1999, Dr. Trover read 33,532 films. In 2000, he read 39,284 films. In 2001 he read 34,745 films. In 2002, he read 28,855 films and in 2003 33,562. In 15 days into 2004, he read 2,078 films, all the while utilizing a busy interventional practice and performing the other administrative duties of Chair of Radiology. In 2003 and 15 days into 2004, Dr. Trover interpreted 35,640 films, in addition to an interventional practice. The MEC found this practice not “adequate to interpret them in a manner that is consistent with an appropriate level of attention to detail or to generate consistently reliable high quality interpretations of these radiological examinations.” (Paragraph 7 of the MEC Report).
• The behavior of Dr. Trover, taken in the aggregate, undermined the confidence of the Medical Staff in Dr. Trover’s interpretations of radiological studies such that a significant portion of the Medical Staff did not rely on his diagnostic interpretations.
• Dr. Trover did not put the patient first. He did not show dependable effort and consistent performance, which is required for physicians holding privileges with RMC.
• Dr. Trover’s lack of consistent performance affected the reliability of the care he gave to the patients and also “jeopardized the patient care as provided by his colleagues on the medical staff and by the technical support staff in the Radiology Department.”

The Trover Foundation was not the only entity that reviewed the practice of Dr. Trover. The Kentucky Board of Medical Licensure (“KBML”) suspended Dr. Trover’s license after an initial review. In lieu of final hearing on this matter, Dr. Trover entered into an Agreed Order with severe restrictions on his license.

On May 22, 2008, Dr. Trover (and joined by the Foundation) filed his Motion to Bifurcate the Burton case into two phases: (1) medical negligence issues; and (2) all other issues including negligent credentialing. The Burton Estate objected to bifurcation, inter alia, on the grounds that bifurcation would violate the punitive damages statute and that bifurcation was an unconstitutional infringement of the Burton Estate’s right to proper voir dire. After a hearing, the Court granted Dr. Trover’s and the Foundation’s Motion to Bifurcate.

The trial commenced on July 7, 2009. The Court, by previous order and at trial, limited voir dire by the Plaintiff to questions dealing only with the first phase of the trial (i.e., medical negligence of Dr. Trover) and permitted no questions dealing with the remaining issues of liability or of the Foundation’s connection to same, despite the fact that all would be tried before the same jury. After a three week trial the jury returned a verdict against the Plaintiff. Had the case gone to the second phase, Burton’s Estate would have argued the negligent credentialing claim against the Trover Foundation, alleging that the hospital knew of Dr. Trover’s unsafe practices and approved his credentialing.

The Court of Appeals reversed Judge Charles Boteler of the Hopkins Circuit Court, and in doing so rendered a fascinating opinion that adopted the tort of negligent credentialing in Kentucky. In doing so, the Court of Appeals likened negligent credentialing as an extension of the court’s prior recognition of the tort of negligent hiring outlined in Oakley v. Flor-Shin, Inc,. where it was held that the “Commonwealth recognizes that an employer can be held liable when its failure to exercise ordinary care in hiring or retaining an employee creates a foreseeable risk of harm to a third person.” [964 S.W.2d 438, 442]

The Court of Appeals then outlined the elements of negligent credentialing, adopted from 18 Causes of Action 2d 329 by Peter Schmit. To establish a prima facie case in the Commonwealth of Kentucky for negligent credentialing, a plaintiff must prove: (1) the defendant hospital owed the patient a duty to ensure a competent medical staff, (2) the hospital breached that duty by granting privileges to an incompetent or unqualified physician, and (3) the physician caused harm to the patient.  [2011 Ky. App. LEXIS 94, 6.] Additionally this opinion mandated that the underlying medical malpractice claim must also be proven for if the physician had not been negligent, a hospital’s failure to exercise reasonable care in their medical staff selection could not be the proximate cause of the patient’s injuries. [63 U. Cin. L. Rev. 607, 632]

The opinion certainly was a breath of fresh air for those litigators within the Commonwealth whose clients have been the victim of institutional negligence in the credentialing process. It is the hope that this opinion can provide the basis for fairness for those victims. Stay tuned. I will report back when this case becomes a finality.