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Silencing Dr. Kirby

He was worried about the growing body count. They were worried about shutting him up.


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There was no single death that did it, no "gotcha!" moment when he suddenly decided that his co-workers were making fatal mistakes. There was instead a mounting death toll, he says, a pall over the nurses, a sense at surgeons' meetings that too many things were going wrong and nobody was trying to stop it. He never planned for it to become his crusade. It just happened that way.

Dr. Thomas Kirby wasn't particularly political. Until he came to University Hospitals, he hadn't needed to be. He was a smart guy, a talented pianist, and good enough at hockey to draw the NHL's attention. Yet his father, a doctor, told him he'd be better off following in his own footsteps. So Kirby opted for college and then med school. He would later head lung-transplant programs at the Cleveland Clinic and Columbia-Presbyterian Medical Center in New York City. Somehow, it all seemed easy.

When he arrived at UH, however, he discovered land mines everywhere. Old-guard doctors were defensive because Kirby had come from the Clinic, regarded as the Evil Empire by longtime staffers. Worse, he was making $800,000 a year -- more than most of his colleagues, even those who'd been there for years.

Things would only get worse when Kirby claimed that as many as 50 patients had died needlessly, thanks to his fellow doctors' carelessness and lack of skill. He named names. And he insisted that the hospital would have to hire better surgeons if it wanted to keep taking on difficult cases.

In the world of big-league surgery, where litigation and ego inflation know no boundaries, such allegations cannot be made lightly. They require delicacy, following the chain of command, and walking the tightrope between pleading and demanding. "To do that job," says Dr. Phil Smith, a pediatric heart surgeon, "you'd have to be a statesman."

Supporters describe Kirby as "naive"; detractors say he's crazy. They do agree on one thing: He was unprepared to handle what he found at University Hospitals. The fallout would last for years.

In January 1998, University Hospitals recruited Kirby and a fellow Clinic surgeon, Robert Stewart. Stewart was to restart UH's heart-transplant program, which had been put on ice six years before, thanks to lack of business. Kirby, meanwhile, was to launch a lung-transplant program.

The new joint department was meant to gain UH prestige, a chance to challenge the Clinic in an area it dominated nationally. Luring two of its top surgeons ensured a dramatic kickoff to the competition.

But it was only a matter of months before Kirby began to pester CEO Farah Walters about problems with the program. He insisted that UH needed to hire more and better surgeons. The numbers were on his side: The open-heart surgery mortality rate was almost four times higher than the Clinic's, according to statistics compiled by consumer-research company J.D. Power and Associates. The hospital was taking on difficult cases; too often they were ending in death.

Many of these fatalities could have been avoided, Kirby believed. "All he wanted to do was stop people's needless dying," says his lawyer, Robert Rotatori. But Walters didn't seem to be listening, the attorney adds. So Kirby went to Richard Pogue, a Dix & Eaton executive who sits on UH's board. Pogue set up a meeting with the board president, KeyBank CEO Henry Meyer.

"Simply put: If you don't have the players, you can't expect to win many games," Kirby wrote Meyer in February 2000. "Unfortunately, I believe we have some serious deficiencies in player personnel that continue to inhibit the development of our programs."

Meyer seemed receptive, but told Kirby he didn't want to interfere, Rotatori says. (Meyer did not return calls for comment.) Kirby eventually took his case to five more board members, with little success.

Dr. Clifford Popple, who ran the department's intensive-care unit before leaving for California last year, says everyone was aware of the troubling statistics. "The death rates were certainly above where they should be. Business was going down. We did all of a sudden have a lot sicker patients. And they weren't doing well."

Taking on high-risk patients was a conscious business strategy, Smith says. Since the Clinic was the clear leader among consumers, UH hoped to "make its name operating on high-risk patients." But that required skilled surgeons and a bigger support staff. "If you want to do that, you have to do it in a place where the systems and operations are mature," Smith says.

UH's program was still new. And, as Kirby would say again and again, many of its surgeons simply weren't skilled enough to execute the difficult procedures they were attempting.

That view, naturally, didn't sit well with those colleagues deemed inadequate. Nor did it help that Kirby was making his case to the highest reaches of UH's bureaucracy. Going over the CEO's head is never easy -- nor particularly smart, if continued employment is a goal.

"Kirby has alienated virtually everyone that he's dealt with, and he's gone over people's heads, around people -- whatever he could do to them, whatever way he had to do what he felt was right," UH heart surgeon Alan Markowitz told another doctor at one point. "Now, sometimes he's been right. A lot of times, he's been wrong."

Adds Smith: "If you're going to change things, you have to change them in the context of what's acceptable. If not, you get termed a bomb-thrower."

Kirby didn't witness most of the deaths. He was a lung surgeon, and the problems he identified were occurring in the heart program. He got his information from hallway chatter and from the biweekly morbidity and mortality meetings, or "M and M's," that were held to discuss the division's quality of care.

The meetings were supposed to be a teaching tool. If a patient died after surgery or within 30 days of surgery, the case had to be discussed. Everything was supposed to be confidential. The idea, Smith says, was to gather the department's surgeons and residents, suss out what went wrong, and figure out how to prevent it from happening again.

The meetings had never been particularly contentious -- or instructive, Smith says. In a conversation with another doctor in May of 2002, he described the sessions as being like a trip to the confessional. "This bad thing happened, and everybody said, 'Oh, well, it's a bad thing.' And nobody ever stepped back and said, 'You know, why did you make a crazy decision to operate on this patient?' . . . 'Why in God's name did you do it that way?'"

"It was never a vehicle for improvement," he says today.

As deaths mounted and Kirby became increasingly frustrated, the meetings offered him a chance to remedy the situation. He began reviewing patient charts, then challenging doctors on their assertions.

He took notes the whole time, notes that now detail his most explosive charges:

· One surgeon tried to replace a 52-year-old man's aortic valve. It was the doctor's first attempt at the procedure, and it became hopelessly complicated. It took 24 hours and 120 pints of blood. The man died.

· One surgeon mistakenly gave an 85-year-old woman an aortic valve not recommended for someone her age. A major complication arose, and she needed a second surgery to insert the correct valve. She died.

· A 50-year-old man was on a heart-support device after surgery when the attending doctor noticed that he was bleeding internally. It was Saturday. The hospital paged the man's surgeon, who waited until Monday to operate. The man died.

· A surgeon used the wrong combination of drugs in the heart-lung machine, despite previous warnings against doing so. The machine clotted. Two patients died in one month.

· A woman in her 80s underwent a coronary bypass, but when she was taken off the heart-lung machine, it became clear that one of the bypasses wasn't working. The surgeon knew it, but sent her off to intensive care anyway. She died.

· An intensive-care specialist removed a 54-year-old man's intravenous lines too soon after surgery. When his blood pressure dropped, the residents couldn't get the necessary fluids into him. He died.

· A 50-year-old man came in for a coronary bypass, but the surgeon used the wrong-sized graft on the bypass. Although he was warned that the piece was too tight, he didn't correct it. The patient had a heart attack, and the surgeon had to do an immediate heart transplant. While the man survived, it's likely that his life will be shorter.

Kirby's questions were met with annoyance, then defensiveness. The surgeons may have wanted to improve, but Kirby was hardly subtle. Some felt personally targeted, and his constant talk about hiring better surgeons surely was threatening. After all, that meant less money for the existing staff. "The minute you bring in new physicians, you're cutting the pie into smaller pieces," Rotatori says.

The lawyer would later detail the cases in a letter to University Hospitals' attorney. "Patients died at the hands of a group of careless surgeons, whose concerns were largely monetary instead of medical," he wrote. After listing 11 particular deaths, he added, "There are dozens of similar cases, perhaps as many as 50."

The high death estimate isn't just Kirby's. Rotatori says three other surgeons -- Dr. Arthur Hill, Dr. Derrick McElroy, and Smith -- also believe that dozens of patients died needlessly.

Rotatori further alleges that surgeons went out of their way to conceal their own culpability. If a patient dies in the operating room, the coroner gets involved. But if the death occurs in the intensive-care unit, there is no outside investigation. So some surgeons, he says, used life-support devices just to get their dying patients out of the operating room and into intensive care.

"They were deceiving the coroner," Rotatori claims. "They wanted to make sure that the patient did not die in surgery, but in the recovery room, because they did not want to deal with the coroner's inquest."

While Kirby was trying to get the attention of Walters and the board, Dr. Derrick McElroy arrived in Cleveland. A gifted heart surgeon and Ohio native, McElroy had done his residency at the Cleveland Clinic, then spent eight years at Baylor University Medical Center in Texas.

Stewart and Kirby had both been impressed by McElroy's work at the Clinic. When they needed a surgeon to run the heart program at St. Vincent Charity, a UH subsidiary, McElroy naturally came to mind.

But if the situation had been difficult when Kirby arrived, it was positively toxic by the time McElroy signed on in October 2000. The rising death toll had everyone on edge. Says Popple: "It paints the entire department as being below standard, and everyone points the finger at each other. 'You're responsible for our numbers being bad.' 'No, you are.' Every surgeon there was pointing his finger at the others."

Some tarred their co-workers with macabre nicknames. One was known as "Dr. Death." Another, "The Butcher." Stewart and Kirby, who were supposedly leading the department together, stopped talking -- mostly because Kirby was blaming Stewart for the poor numbers.

It got so bad, Popple says, that surgeons would slide in to check on each other's patients. "They weren't coming in to help them," he explains. "They were looking for dirt. They'd ask, 'How's so-and-so's patients doing?' 'Did any of so-and-so's patients die?'"

McElroy had been recruited by Kirby. He and Alan Channing, CEO of St. Vincent, inked McElroy to a $750,000 contract. So when other surgeons began to suggest that Kirby was spending money recklessly, McElroy guessed what was coming next.

Indeed, some of the surgeons told him that Kirby had negotiated the contract without going through the proper channels. Never mind that Channing had signed it. The program couldn't support a salary that high, they argued.

Part of the problem was the hospital's complicated structure: The surgeons, technically, were not hospital employees, but instead members of their own corporation. Most of them were shareholders. And while the hospital paid part of their salaries, they were also dependent on business volume. Hence, McElroy's contract, with its guarantees and great benefits, took a handsome bite out of the total purse.

The whispers worried McElroy. To protect himself, he began taping his conversations with administrators and other surgeons in January 2001. (Through his attorney, McElroy declined comment.)

McElroy eventually made nine tapes. As they show, he was more prescient than paranoid. Administrators were trying to distance themselves from his lucrative contract. And some doctors were painting Kirby as crazy and fiscally irresponsible.

"Stay away from Tom," Stewart warned McElroy on one tape.

Markowitz suggested on another that Kirby had recruited McElroy to squeeze out Stewart. "He thinks he's a hack in the operating room, he's stupid, he wants him out of there. And one of the ways he's going to get him out of here is you," Markowitz claimed.

Markowitz openly urged McElroy to renegotiate his contract. "This is all background for you to understand why we're pissed off," Markowitz explained. "Not pissed off at you. We are pissed off at Tom. We want you here. We want you to succeed. We want you to be part of the group, but you have to understand what this corporation involves, and we need a person to kick in some to support the corporation."

Within 15 months of McElroy's arrival, the entire house of cards would collapse. In January 2001, Kirby was stripped of his administrative duties in a terse memo that referenced "problems" arising from his "actions and behavior." He was also asked to submit to psychiatric evaluation.

By fall, UH would strongly suggest that McElroy find another job. "I also want to clearly explain our position regarding the 'Physician Employment Agreement' that you and Tom Kirby signed last October," Stewart wrote to McElroy. "There is no 'Agreement.' . . . Tom did not have the authority to sign it, and you knew or at least should have known that."

In January 2002, McElroy was fired. The official reason: He hadn't attended enough meetings and conferences, or handled his administrative duties properly. St. Vincent, which has a special bloodless surgery center for Jehovah's Witnesses, would later claim that he wasn't sensitive enough to those patients and was dismissive of their needs.

A month later, UH temporarily halted its heart-transplant program, citing "unexpected poor outcomes."

That same month, Kirby -- briefed by McElroy about some of Markowitz's comments -- sued Markowitz for slander. On tape, Markowitz had told McElroy that the hospital wanted Kirby to get drug testing and see a psychiatrist. He also suggested that it was Kirby who was messing up in the operating room and that the lung program was in trouble, though he offered no evidence. (Through his attorney, Markowitz declined comment.)

In April, Kirby was fired -- one day before The Plain Dealer ran a story detailing his complaints.

McElroy and Kirby responded with litigation. McElroy sued St. Vincent, UH, Stewart, and St. Vincent CEO Alan Channing. Kirby sued UH and three administrators.

The tapes may offer a smoking gun for McElroy's suit. They show the hospital was eager to unload his contract. "Whether it's legally valid or not, I don't know," Markowitz told him. "It is not financially doable . . . What do you expect us to do?"

Notes McElroy's attorney, Michael Jordan, in court filings: "Dr. McElroy was terminated simply because he refused to renegotiate the contracts he had agreed on prior to his arrival in Cleveland."

The tapes may prove equally useful to Kirby. After all, they capture CEO Walters calling him "a gifted surgeon." They also lend credence to his argument that he was pushed out for trying to get action from the administration.

On one tape, Markowitz said that Walters could recite "chapter and verse about what [Kirby] had done that she felt had disgraced the hospital."

"Like what?" McElroy asks.

"Well, where do you start?" Markowitz says. "He made himself a pest with Henry Meyer, with his regular calls, until Henry Meyer would no longer take calls from Tom, because he tried to go around Farah. You don't do that. You just don't do that."

In a written statement, the hospital denies the two doctors' allegations. "Beyond these denials, which are part of the public record, University Hospitals does not comment on pending litigation."

Whether UH tried to silence Kirby or not, the damage was already done. In September 2002, the Accreditation Council for Graduate Medical Education yanked the hospital's certification for its heart- and lung-surgery programs. It would no longer allow medical residents to train there.

The council's reasons were varied: The program needed more stability. Doctors didn't spend enough time teaching residents, organizing the program, or setting goals. They relied on residents to work too many hours and do too much.

In a letter sent to Stewart that month, the council said its action was rare and only invoked "when the findings reflect a catastrophic loss of resources with documented multiple areas of noncompliance." (A spokeswoman for the council declined comment.)

In its statement, UH notes that Kirby directed the program "for a portion of the three-year period" examined by the council.

J.D. Power and Associates gave UH similarly low marks in its hospital report cards. Using data from 1998 to 2000, it rated UH as "poor" in valve-replacement and coronary-bypass surgery. In the data covering 1999 to 2001, the bypass numbers would rise to "as expected," the equivalent of a gentleman's "C." Valve-replacement numbers stayed poor.

Numbers supplied by the Scientific Registry of Transplant Recipients are no better. From 1991 to 2001, UH's heart-transplant program had a 77.7 percent survival rate -- lower than the Clinic's 90.3 percent and the national average, which is 84 percent.

UH has consistently defended the program. In a letter posted on the hospital's website in April 2002, Walters wrote, "A just completed external review by national transplant experts concluded that UHC's heart transplant staff is highly experienced and guided by the proper protocols."

The hospital continues to stand by its staff today. "Our ongoing program of quality review indicated [in 2001], and indicates now, that University Hospitals has a highly qualified and dedicated staff of physicians and surgeons in the cardiothoracic program," the hospital says in its written statement. "In fact, UHC was listed among the top 25 hospitals in the country for 'heart and heart surgery' by U.S. News and World Report last year. One of the factors measured by the magazine in its complex ranking methodology is mortality ratio."

Still, despite its ambitions, UH never was able to compete with the Cleveland Clinic, which ranked "best" in both report-card categories. And its lung-transplant program has been voluntarily suspended until qualified doctors can be found to staff it, says UH spokeswoman Eileen Korey. The heart program is still open, but business isn't good; it's done just three transplants this year.

This spring, transcripts of McElroy's tapes were filed in court. They undoubtedly made for some embarrassed doctors.

The transcripts show Markowitz praising a resident by noting, "This is not some foreign camel driver who doesn't know what he's doing." They show a group of doctors obsessed with falling revenues and bitching about each other. Stewart and Kirby would never last in private practice, Markowitz explained on one tape. "Somebody would shoot them first." They also show Stewart blaming CEO Walters for stirring up trouble between himself and Kirby, just to keep herself in the loop.

(Walters, who retired from UH last year, declined comment.)

Smith believes the tapes are illegal and bristles at questions about his statements on them. While Ohio law allows for recording as long as one person in the conversation is aware that tapes are being made, it's illegal if the person doing the recording has been advised by a lawyer, he asserts.

"If you read the transcripts in their entirety, you'll see that Dr. McElroy's leading comments and open-ended questions were scripted," Smith says. "And I believe he received outside counsel to do that."

McElroy flatly denies the charge. "There's no question that those recordings were lawfully made and will be evidence in [his] case," says Jordan, his lawyer.

Interestingly, it's a conversation between McElroy and Smith that proves the most telling. It shows that Kirby wasn't the only doctor with serious concerns about patient deaths. Nor was he the only one convinced that fellow surgeons were taking some very ugly shortcuts.

In the May 2002 conversation, Smith referred to the deaths, saying that Walters "has something horribly wrong here. Look what the hell they're doing to people."

The problem, Smith explained, was certain surgeons. The hospital either had to get rid of them or bring on additional doctors, which would inevitably squeeze them out; there wasn't enough business to satisfy both the current staff and a new group of better doctors.

Smith also claimed that Stewart "was the glaring problem, because what he was doing is he wasn't exercising good judgment about doing high-risk cases in an institution that wasn't ready to do high-risk cases."

Nor did Stewart do his homework on his own operations, he added. "You know, [Stewart] would always look at the diagnostic studies provided by the cardiologist while the patient was in the operating room with his sternum open."

On the tapes, McElroy seemed surprised by the revelation. Smith said that's what he'd heard. "He'd show up to do a coronary and be looking at the angiograms in the pump room," he said.

"Never having seen the patient's studies before?" McElroy asked.

"That's -- that's basically my understanding of it," Smith responded. "The thing is, when you do that kind of stuff at University Hospitals, you're asking for trouble. And when you do it at the Cleveland Clinic, there's this backup system they have . . . this whole support system around you to make sure that you don't screw it up."

The transcripts also show Smith blaming Walters for picking Kirby and Stewart to run the program. Smith implied that she was more concerned for her reputation as an administrator than about the death toll.

"I think she knew she had a problem with the results," Smith told McElroy. "I think she believed that the process of having her reveal to the world as having made a mistake in picking Tom and Bob to run the thing was a bigger problem than the results."

But people were getting hurt, McElroy protested.

"I'm very aware of that," Smith said. "There are patients that got hurt. There are physicians that got hurt. There are families of physicians that got hurt. I mean, everybody got hurt, all the way."

By the time McElroy recorded their conversation, Smith had already relocated to Akron Children's Hospital. He took most of UH's pediatric heart department with him: four physicians, an administrator, three nurses, and some technicians, he says.

Smith confirms today that he too met informally with several hospital trustees to discuss the mortality rate. Moreover, he believes Kirby was fired because UH was weary of the ruckus he was raising. But Smith hesitates to call him a whistleblower.

"You've got to be a little clever to label yourself a whistleblower," Smith says. "Kirby started out trying to improve outcomes. That's what he wanted to do. But the process, the route he took to try to achieve that, was ineffective, and ultimately it turned into a power struggle. Not a struggle over outcomes, but a power struggle."

In the months since University Hospitals fired Thomas Kirby, he's become increasingly frustrated. His lawsuit is growing mold in Common Pleas Court; a judge has ruled that it can't go forward until the hospital's internal board signs off on his firing, a process replete with hearings and stacks of evidence. Fourteen months later, it still isn't done.

In the meantime, he can't work as a physician. Members of the American Hospital Association keep a list of doctors facing internal review, Rotatori says. "If any doctor has disciplinary charges pending, they go on the list. What hospital would want you then? In effect, they're blackballed."

Without a paycheck for 14 months, Kirby is now forced to watch while his mansion on Fairmount Boulevard goes up for foreclosure. But he's not prostrating himself in hopes of winning a juicy settlement. Rotatori has called for an independent inquiry into the deaths. He also wants the county prosecutor to investigate the surgeons' avoidance of the coroner's inquest. (The prosecutor's office had no comment.)

Meanwhile, in April, Kirby filed an affidavit in a malpractice case against University Hospitals. The suit was filed by the family of Terry Mullin, a 58-year-old Perry man. Mullin got a heart transplant at UH in 2001, then needed a second surgery a day later for internal bleeding. He died the day after that.

The suit makes the usual malpractice claims: The doctors were negligent, they failed to exercise proper care, they caused Mullin's death. But it has an added punch: a statement by Kirby citing his efforts to tell hospital administrators about "medical deficiencies" -- a rare window into a hospital's internal bickering.

"Unfortunately, in spite of the above named individuals being expressly advised of this information, no remedial and/or curative action was instituted, which permitted the substandard medical care set forth here and above to continue," Kirby wrote.

"He's a difficult client to control," Rotatori admits with a rueful shake of his head.

Kirby's outspokenness has been a boon to malpractice attorneys. Lawyers in several pending cases have subpoenaed him, McElroy, Smith, and the hospital administrators that Kirby attempted to lobby, from Walters on down.

"It's a cottage industry cropping up around the prospect of administrative malfeasance and fraud," Smith says.

To malpractice attorneys, Kirby is a godsend. But even some people who back his claims wonder if he's tilting at windmills. "You have to take everything with a grain of salt," Popple warns. "He's very critical of the open-heart program, but he's not an open-heart surgeon. He's never done open-heart surgery."

And UH has promised to produce plenty of witnesses who claim Kirby was verbally abusive and difficult to deal with -- not surgeons desperate to keep their jobs, but office staff and nurses. Several female employees claim he was overly fond of profanity.

The hospital's best argument may be that Kirby stopped attending quality-care meetings in his last year at UH -- hardly the mark of a man hell-bent on forcing change. "Most of Dr. Kirby's complaints to others centered around one request: that he be allowed to fire what he referred to as 'all the losers' in his department in order to recruit his friends," Walters wrote in a letter to The Plain Dealer in April 2002.

Still, it's hard to argue that Kirby doesn't believe in the righteousness of his cause. He's suffered too much to keep fighting for any other reason.

Rotatori compares his client to Don Quixote, compelled by an impractical idealism that forces him to keep speaking out, even after everything his words have cost him.

"He's given up a multi-million-dollar practice, gave up his fame and standing as one of the 10 most outstanding lung-transplant surgeons in the country," he says. "He gave that all up for principle. When you're trying to save people's lives, it should be praised and not damned. And that's what they've done, is damn him for trying to save people's lives."

He may be no statesman. But his allegations still stand, six years after he started making them: Doctors screwed up. People died. The hospital covered it up.

Thomas Kirby isn't going away. Neither are the accusations.


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