She felt ‘like a human septic tank.’ Do loopholes let doctors go unreported after allegations?

Sue Ackerson had urine collecting in her body with essentially no way for it to escape.

Eighteen days earlier, in October 2005, an OB-GYN named Dr. Thomas J. Byrne had performed a vaginal hysterectomy on her at Craig General, a small hospital in the rural town of Vinita, Oklahoma.

“I was like a human septic tank,” Ackerson recalled in an interview with Gothamist. “I actually looked like I was about nine months pregnant. I thought my stomach was going to explode.”

For Ackerson, it was the beginning of a three-year journey that would end with a settlement in a medical malpractice lawsuit.

“I was pretty sure my husband thought I was not going to survive,” she said.

Ackerson’s lawsuit claimed that during the surgery, Byrne had injured her ureters, the tubes that carry urine from the kidneys to the bladder. Another doctor diagnosed her with life-threatening infections, according to her attorney. She required a number of procedures to recover from her injuries in the months that followed her hysterectomy, according to the complaint she filed in Craig County, Oklahoma, district court.

Studies show that urinary tract injuries are a known risk of the type of hysterectomy she received, but they’re uncommon, happening less than 1% of the time.

Yet Ackerson’s case bore similarities with that of another patient – Marquita Baird – a woman who underwent the same type of surgery by Byrne about six years earlier at a different hospital in Oklahoma. Baird’s ureters and bladder were also injured, according to a lawsuit she filed. Her medical records show a doctor at a separate hospital determined urine was also collecting in her body.

Baird and Ackerson are among 16 former patients and their families who have filed malpractice lawsuits against Byrne in the years after New York labeled him an “imminent danger” to patients and stripped him of his medical license in the state in 1991. Seven other lawsuits were filed against Byrne for incidents that occurred before he lost his license in New York.

Gothamist has tried to reach Byrne for more than a year. Journalists have tried to contact him by phone, email, certified mail, text messages, and visiting his current workplaces in the Bronx and Amarillo, Texas. He has not responded to any of our inquiries. When we did reach him, he hung up or refused to speak with us in person.

Byrne was able to obtain medical licenses in New Mexico, Oklahoma, Georgia, Illinois, and North Carolina in the years following New York’s revocation. New York officials restored his medical license in 2014.

A review of over 4,000 pages of public documents and court filings shows he has faced restrictions on his privileges at other hospitals and been denied a medical license in Oklahoma before the state eventually granted him one. While some former colleagues have provided him with positive recommendations to medical boards, according to letters reviewed by Gothamist, others have also raised questions about his quality of care, both in interviews and in documents obtained through medical boards and court filings.

The findings point to the shortcomings in a combination of oversight entities that are supposed to protect the public.

One of those safeguards is the National Practitioner Data Bank, a compendium of information on physicians that was established by Congress over 30 years ago to better track and prevent doctors with documented records of malpractice and disciplinary actions against them from hopping between hospitals or states. But some health care experts warn that loopholes and a lack of enforcement can allow such physicians to keep practicing without closer scrutiny.

A Gothamist analysis of the federal data found that, of the roughly 250,000 doctors who have been listed in the data bank over the past three decades, nearly half of the 17,000 physicians who had lost or surrendered their medical licenses in one state had also been disciplined or made a malpractice payment in another. While that number is small compared to the overall number of doctors, a lack of reporting to the data bank may obscure a greater number of physicians with concerning track records in multiple states.

The ‘dossier’

In November 2007, Ken Underwood made the hourlong drive from Tulsa, where he works as an attorney, to Vinita, Oklahoma. He was there to depose Dr. Edward Allensworth, a longtime family physician who’d practiced in the area for decades and was, at the time, the medical director at Craig General, where he oversaw Byrne’s work.

Underwood represented Ackerson and another patient in separate lawsuits against Byrne and the hospital. He said he was also contacted by other women who claimed they’d been injured while under Byrne’s care.

“This is the only time that I've had three or four people contact me with similar cases against the same doctor,” Underwood told Gothamist.

According to a transcript of the deposition, Allensworth had been keeping a personal file on Byrne in his desk drawer at the hospital, including copies of his letters and other correspondence with Byrne. It also contained records of Byrne’s patients, specifically cases where Allensworth suspected “something abnormal” had occurred.

Allensworth died in 2020 and Underwood said he was never able to view the dossier’s contents. But, by submitting a request to the county clerk’s office where Ackerson’s lawsuit was filed, Gothamist obtained a list created by the hospital’s lawyers that identified some of the documents Allensworth kept in the file.

According to the list, Allensworth flagged at least eight cases that involved Byrne’s patients, mostly involving gynecological surgeries such as hysterectomies but also cesarean sections. Based on the dates and procedures listed, these patients appear to be separate from the four who filed lawsuits against Byrne for procedures he did at Craig General.

“It was evidence that the hospital — through its medical director — had a clear understanding of the challenges that Dr. Byrne had in his past and also while he was practicing there at Craig General Hospital,” Underwood said.

Craig General was acquired in 2016 by Saint Francis Health System, which said it was not able to comment on events that took place prior to its takeover of the hospital.

In the deposition, Allensworth said he conducted what he called an “informal investigation” in 2005. He noted that Byrne’s cases did not involve “surgical errors,” but that there were “a couple of cases where there had been some injury to the bladder.”

“I did tell Dr. Byrne at that time,” Allensworth told attorneys, “that if any further injuries to the bladder occurred, then maybe… we should probably restrict his privileges to do [laparoscopic-assisted vaginal hysterectomies],” which are surgeries performed with the aid of a small camera inserted into the body.

Byrne performed that same type of surgery on Ackerson in October of that same year, about a month after Allensworth’s warning.

Byrne submitted his resignation by January, according to court records filed in another lawsuit arising from Byrne’s time at Craig General.

“He left Vinita quickly,” Ackerson said. “He didn't stick around after my [injury].”

The National Practitioner Data Bank

The terms on which a doctor leaves a hospital determine what information hospitals are required to disclose to the federal government and what other hospitals and future employers can find out when considering whether to hire a physician or grant them hospital privileges.

The National Practitioner Data Bank, or NPDB, was created as part of the Health Care Quality Improvement Act in the 1980s, when members of Congress began paying closer attention to how some physicians with concerning track records were able to get jobs at new hospitals or in different states. It began collecting data in 1990 and is run by the Health Resources and Services Administration.

The data bank holds details about dentists’ and doctors’ licenses, medical malpractice payment history, and in some cases, whether a doctor resigned under questionable circumstances or had restrictions placed on their clinical privileges, among other types of information.

Because the data bank anonymizes information on doctors for members of the general public, Gothamist is unable to verify what is included in Byrne’s file.

Hospitals are legally required to report certain types of information and incidents to the data bank. It also receives data from medical boards, liability insurance plans that make malpractice payments, and other eligible entities.

Experts in patient safety say that, in theory, the data bank would be the solution to preventing doctors from taking advantage of the country’s fragmented system, which relies on each state to make its own licensing decisions. It was designed to allow hospitals and medical boards to vet physicians more easily.

But Nadia Sawicki, a law professor at Loyola University in Chicago who specializes in health law, said the data bank’s shortcomings make it possible for some doctors to keep practicing even after they’ve come under the scrutiny of medical boards and hospitals.

“The National Practitioner Data Bank is only as good as the information that is put in it,” she said, adding that one of its biggest limitations is underreporting.

According to the Health Resources and Services Administration’s numbers, roughly 45% of U.S. hospitals have never submitted a single clinical report involving adverse actions taken against a doctor’s privileges in the 33 years that the data bank has been in operation.

“One obvious reason for underreporting: If you are a hospital, employing a doctor, or if you are a colleague of a doctor who has done something shady, there are reputational disadvantages to reporting them,” Sawicki said. “There's really no enforcement mechanism for these reporting requirements… if a hospital fails to report a misbehaving doctor to the data bank, practically speaking, no one is going to catch that.”

In response to a question about how reporting requirements are enforced, David Bowman, a spokesperson for the Health Resources and Services Administration, said the agency typically responds when a hospital or a whistleblower alerts it to an issue.

“HRSA is authorized to conduct an investigation if there is reason to believe that a health care entity has substantially failed to report required adverse actions,” Bowman said in an emailed statement, adding that hospitals can then be forced to submit information and they can also be named in the Federal Register for having failed to comply with the law.

Loopholes

Robert Oshel worked at the National Practitioner Data Bank for 15 years. He was hired to create a research program using the data submitted by hospitals. Oshel was later in charge of dispute resolution, or weighing the accuracy of reports when physicians and others challenged information on their records.

Oshel and Sawicki identified three specific loopholes that they said weaken the data bank’s power as a tool for oversight.

“It could be more effective if these loopholes were closed,” Oshel said.

The 30-day rule: Hospitals are required to report long-term restrictions on a doctor’s clinical privileges to the National Practitioner Data Bank, but only if those restrictions exceed 30 days. Sawicki said this limitation has incentivized some hospitals to act within a timeframe that allows them to avoid filing a report.

“Sometimes if there's a disciplinary action against the doctor, the hospital will make sure that that discipline is under the 30-day reporting threshold,” Sawicki said.

The corporate shield: Oshel said hospitals are often able to prevent malpractice lawsuits from being added to a doctor’s record in the data bank by removing their names from settlement agreements, even if the doctor is named as a defendant.

“Often the plaintiffs are told that if you sue the hospital, don't even name the physician in the first place, we'll be much more likely to settle this case,” Oshel said. “So the physician never gets named.”

Resignation: Resignations are another gray area. They only have to be reported to the data bank if a hospital is officially investigating a doctor when they resign, or if a doctor resigns to avoid an official investigation, which Oshel said is difficult to prove. Voluntary resignations also do not have to be reported.

Oshel, who is now an adviser with Public Citizen, a nonprofit consumer advocacy organization, said hospital staff have been known to warn physicians to resign before an investigation is launched into their conduct in order to avoid it being reported to the data bank.

“It's not something that an ethical hospital does, but it happens a lot,” Oshel said.

Because information on doctors in the data bank is anonymized, and the Health Resources and Services Administration requires users to agree not to identify individual physicians in the data, Gothamist is not able to pinpoint exactly what, if any, disciplinary actions have been reported to Byrne’s file in the data bank.

In 2004, Seminole Medical Center, another hospital where Byrne worked in Oklahoma, cited the 30-day exemption after it temporarily suspended his privileges and opened an investigation on him in 2004.

“Because these matters were able to be resolved within a 30-day timeframe, there is no reportable event to the National Practitioner Data Bank,” the hospital’s administrator wrote to Byrne after the restrictions were lifted.

In 2017, Byne was named as a defendant in a malpractice lawsuit brought by the family of a 34-year-old woman named Amy Lam, who died at Harlem Hospital after giving birth at home. Byrne had performed a hysterectomy on Lam in the hours before her death. He was one of five physicians named in the complaint.

However, according to the attorney who represented Lam’s family, the settlement in 2020 only included NYC Health + Hospitals, which operates Harlem Hospital. In such cases, the settlement payment would not be reported in Byrne’s file in the data bank, or the files of the other physicians named in the lawsuit.

“The public needs to recognize that the medical industry is an industry just like any other. Hospitals, even nonprofit hospitals, want to stay in business. They want to have a good reputation. They don't want to be sued,” Sawicki said. “And they are going to act to further those interests, which may sometimes come at the expense of patients and the general public.”

‘I just wanted him stopped’

Before Byrne left Craig General, court records indicate he had another meeting with Allensworth.

In his deposition, Allensworth told Ackerson’s attorney that he sent a letter to Byrne shortly after Ackerson’s surgery – making good on his previous warning about restricting Byrne’s privileges if there were any further injuries.

“Dr. Byrne, this will verify our discussion today that you will do no more laparoscopic-assisted vaginal hysterectomies at this hospital, the privilege of which you have voluntarily denied yourself," Allensworth said, reading the letter aloud.

It meant Byrne was no longer allowed to perform the type of surgery he’d done on Ackerson and others.

But the word “voluntarily” is significant. Because of it, the hospital was not required to report the changes in Byrne’s clinical privileges to the data bank.

And Allensworth had only engaged in an “informal investigation” of the injuries he’d observed in some of the surgeries Byrne performed at Craig General. That would not have to be reported, either.

In a claims notice that Ackerson’s attorney sent to Craig General staff in 2006, Underwood noted that she would be at risk for further medical complications for the rest of her life. He also cited Byrne’s history in New York and questioned the hospital's decision to allow him to perform surgery there.

“I just wanted him stopped,” Ackerson said of Byrne. “I wanted him to lose his license and not be able to practice.”

However, court documents filed several years later in another lawsuit in Oklahoma lay out the terms that Byrne reportedly negotiated with Craig General when he resigned.

According to an attorney’s description of those terms, if the hospital was asked to provide a reference for Byrne, it was to “promptly report that Dr. Byrne had active Medical Staff privileges in good standing from initial date of privileges through voluntary resignation.” And if it was asked about surgical outcomes, Craig General would respond: "There was one post-op case in which a patient was referred for repair of ureters."

Those statements contradict the information Allensworth provided in his deposition as well as the legal complaints filed against Byrne by former patients.

Court records show Byrne was practicing again in New Mexico by 2007. In 2010, he petitioned New York to restore his medical license.

Jaclyn Jeffrey-Wilensky contributed reporting.

Part five of this series will be published on Nov. 6.

For the full version of this story, check out our five-part investigative series “Imminent Danger” on our podcast NYC Now.

Have a tip? Contact Gothamist’s investigative editor Christopher Werth by phone or Signal at 646 939 6511 or at [email protected]