originally posted 9/25/11
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Colorado Springs Independent, June 22, 2000
Close to the Heart
A legal feud over heart care at Memorial Hospital could cost taxpayers millions
In a federal courthouse in Denver, there's a file -- labeled civil case 99-B-989, to be exact -- that makes a script from the daytime soap opera General Hospital read like a parking ticket.
At the center of the drama is a highly skilled heart surgeon, Dr. Joel Morris, who alleges he was unfairly booted from the city's publicly owned Memorial Hospital without any of the due process described in the hospital's medical staff bylaws. Morris is suing in federal court for what could turn out to be $15 to $20 million in compensation.
Morris' allies say he resuscitated Memorial's heart program from near death since 1990 and that he has the best "mortality rates" -- i.e. the lowest number of patients dying within 30 days of surgery -- of any other Memorial heart surgeon.
The doctor's detractors dispute that claim, adding that Morris' difficult personality and big ego demoralized staff at Memorial's Heart Center and that he further divided the hospital's already contentious cardiac surgery department by aligning himself with one group of private cardiologists.
Enter actor number two: Memorial hospital chief J. Robert Peters, the square-shouldered, white-haired hospital boss who is largely credited with leading the city-owned hospital into a position of market dominance and consistent profitability.
Peters is admired by some for successfully rallying support away from selling the public hospital to a private company -- a fact that's made him unpopular with fans of privatization.
But in thousands of documents submitted as evidence in Morris' lawsuit, another possible interpretation of Peters emerges: a hospital boss so paranoid about potential competition that he fired his best surgeon because he believed Morris was part of a covert plot to open a competing heart hospital.
The third player in this tawdry, real-life soap opera drama is Dr. James Albert. A skilled surgeon who was also Morris' former business partner, Albert took over as Memorial's director of cardiac surgery in June of 1989 once Morris was fired from the position by Peters. Less than six months after that, it was Albert who recommended to Peters that Morris be banned from performing surgery at Memorial Hospital.
Like many of the key players in this bitter drama, Albert would not talk to the press (Albert's receptionist hung up on this reporter saying only "Dr. Albert doesn't want to talk to the press.") His attorney, Gregory Walta, similarly refused to discuss the case saying he didn't "want to try the case in the press."
But in depositions and affidavits filed in the case, Albert alleges that Morris more than deserved to be canned because his former boss, among other things, did not provide adequate cross coverage of Albert's patients -- an issue of hot dispute in the lawsuit.
The case record is full of accusations and counter accusations between Morris and Albert, who each charge the other with putting patient care at risk. In two cases, the patients in question ultimately died (in each case, all sides agree with the medical ethics board conclusions that the doctors' actions did not lead to the patients' demise).
The supporting cast, meanwhile, includes a bevy of local doctors who add their own small-town conflicts of interests to an already saucy legal affair.
There's Ted Eastburn, the dashing cardiologist cum city councilman who is also a partner in Pikes Peak Cardiology, the heart group that fell subject to Peters' wrath by aligning itself with Morris. In one of the case's many ironic twists, Eastburn, as councilman, will continue to act as one of Peters' bosses until the administrator's planned retirement.
Pikes Peak Cardiology doctors set up their own catheterization lab in 1998, directly competing with the "cath lab" owned by Memorial Hospital. And efforts by Pikes Peak Cardiology to enlist groups of physicians into a medical office building with the potential to offer limited in-patient surgery, along with their offer of office space to Morris, led Peters to believe that the group was planning to start a heart hospital.
On the other side of the twisted plot are cardiologists such as Christopher Tulin, a former partner in Pikes Peak Cardiology, who argued that Morris should not serve as director of cardiac surgery if he's hanging a shingle in the offices of a competitor.
Tulin is part of another private cardiology group in town, and while serving as Chairman of Cardiac Services at Memorial, joined the chorus of voices calling for sanctions against his competitor, Pikes Peak Cardiology, and ultimately, Dr. Morris, according to records filed in the case. At the time, Tulin also had a seat on Memorial's Executive Committee -- a board of the hospital's top administrators.
It's an incestuous story replete with hurt feelings, former business partnerships gone awry, ego conflicts, patient care disputes, business rivalries and small-town conflicts of interest. Phrases "at each other's throats," and "hospital war" comes up numerous times in interviews and documents filed in the case.
Lights Camera Action
If there were a soap-opera style voice-over reflecting the inner workings of Bob Peters' mind in mid 1998, it might have gone something like this:
"There is a feeling on the part of ... the Medical staff that this could lead to development ... of a heart hospital that would compete with Memorial in the entire cardiology program."
That thoughts like this floated through Peters' mind is more than mere conjecture. The above quote is in fact an excerpt from the minutes of a business administration staff meeting in the late spring of 1998.
The voice-over is followed again and again by similar little thought bubbles, like this one from a July 14, 1998 business subcommittee meeting.
"Concern was expressed that the other cardiologists could be enticed into association with the heart hospital, thereby destroying the cardiology program at Memorial," the minute taker paraphrased Peters as saying.
As he did in meeting after meeting of top hospital staff and the hospital's board of trustees, Peters went on to say that PPC contributes $1.7 million to hospital revenues each year through admissions and referrals, and the total cost of competition from a new heart hospital could figure close to $12 million annually.
Peter's suspicions were piqued by the fact that PPC had recently announced plans to open its own on-site catheterization lab in partnership with MedCath, a national heart chain that has opened heart hospitals in other cities. The new PPC lab would be run by cardiologist Ron Blonder, who used to run Memorial's cath lab.
Of equal concern to Peters was another development, reported in a July 13, 1998 meeting of top hospital administrators. "Mr. Peters stated that it has been learned that Pikes Peak Cardiology made a presentation to the Finance Committee of the Board of Physicians Network, asking that Physician's Network join with Pikes Peak Cardiology in developing a hospital, purchasing part of Memorial Hospital and approaching city council with [these] plans."
The notion that Morris was fired chiefly because of his alliance with Pikes Peak Cardiology, and was allegedly involved in PPC's efforts to open a heart hospital, is reflected numerous times in the minutes of Memorial Hospital's board of directors.
And area cardiologists took issue with Morris' location of his office in Pikes Peak Cardiology's facility. As chief of cardiac surgery, Morris took referrals from seven cardiac groups around the city.
"If I were to refer patients to Dr. Morris, then my patients would be going through the doorway of another cardiology group," said cardiologist Tulin. "They might say, 'oh, this is great, one-stop shopping,' and not come back."
Morris' move to PPC, Tulin suggests, caused a serious rift among doctors who send patients to Memorial for surgery. "It was obviously inappropriate for the chief of cardiac surgery to ally with one group of cardiologists. He should have been equally available to all the groups [that use Memorial's heart operating facilities]," he said.
Documents show that Morris offered to see patients at the offices of referring cardiologists, but that offer was nixed.
And finally, because Morris and Albert essentially hated each others' guts at that point, the entire cardiac department was not operating as a team, a critical factor in the highly complex and interdependent world of anesthesiologists, pulmonologists, cardiologists and surgeons who work on people's hearts.
On July 16, Peters suggested "several mechanisms to deal with this situation." The solutions were fairly blunt and to the point, according to executive committee minutes.
"1) The contract with the cardiac surgeon, Dr. Morris, for exclusive use of Memorial Hospital and as Director of Cardiac Surgery, will be terminated.
2) A contract will be executed with Dr. Albert, the cardiac surgeon who has the support of the other cardiologists, to replace Dr. Morris as director of Cardiac Surgery."
Peters further proposed that PPC physicians be barred from emergency room call duty and that other cardiologists who take up the slack be compensated with an extra $400 per night. In the past, PPC doctors and other cardiologists had provided that service at no charge.
Peters also proposed another retaliatory strike: excluding PPC from "interpreting studies" and diagnostic tests such as EKGs at Memorial Hospital, a move that one PPC partner said cost the business roughly $1 million a year.
At the open session of the Board's July 17, 1989 meeting, the board agreed to do exactly what Peters recommended. During the ensuing discussion, Peters' position was reiterated in the paraphrased minutes:
"All these actions are being taken because having a heart surgeon associated with PPC provides a stepping stone for the group to develop a full heart hospital rather than a cath lab. ... It is hoped that the hospital's proposed actions will deter such developments."
Later that day, Peters sent a letter to Morris firing him and saying that it was up to Morris' former partner, Albert, to determine whether or not Morris could still operate at the hospital.
Less than a year later, Albert determined that Morris could not continue to work at Memorial, largely because of a dispute over how the two now seriously alienated surgeons covered for patients during each others' absence.
Crossed signals?
In hindsight, Pikes Peak Cardiology partner Dr. Ronald Blonder admits it was a big mistake to let Morris rent office space from Pikes Peak Cardiology when Morris was still director of Cardiac Surgery at Memorial.
"They are right on that issue," Blonder said of Memorial administrators' concerns about that issue. "I had not thought out the ramifications of that. I'm still embarrassed by not thinking clearly on that issue."
But Blonder, a friend of Morris, said that Morris was asked to leave the practice within weeks of the board's retaliatory move. Still, the sanctions against PPC remained in place for almost a year.
Pikes Peak Cardiology spent that year trying to lobby its way back on Memorial's good side, and finally won their privileges back in the summer of 1999 after the Memorial board set up an ad hoc committee to study the conflict.
In letters to the board, Pikes Peak Cardiology argued that the whole issue of competition was based on a misinterpretation by Peters and hospital staff of what the group was up to.
PPC cardiologists say they were approaching a wide range of physicians about a medical office building at the former Denver Warehouse site on North Union Boulevard. The proposed facility would include a wide range of physicians, from orthopedists to ear, nose and throat doctors, Blonder said.
The new office building complex would have contained some out-patient surgery, but the plan fell apart, Blonder said, when the surgeons backed out and instead, allied themselves in a separate venture with Health South, another national health care group.
Blonder concedes such a facility would compete with Memorial, but his partner, Eastburn, pointed out that competition in health care services is not an anomaly.
"Every doctor who has a treadmill, a chest x-ray, or EKG machine in their offices is in some way competing with Memorial Hospital," he noted. "Interestingly, since PPC opened its cath lab, the number of procedures being done at Memorial per month has gone above what was projected. In fact, for some procedures in 1999, the number has doubled."
"First of all, it takes 20 cardiologists to start a heart hospital, so there was no way we were going to start a heart hospital with eight cardiologists," said Blonder.
"But even if all that was true, do you think it's appropriate for a city-owned hospital to punitively deny privileges to a cardiologist who has practiced in the community and at Memorial for 23 years?" It makes even less sense, says Blonder, since the vast majority of heart patients treated at Memorial are referrals from PPC.
Tight lipped
Memorial's Peters would not be interviewed for this story, and inquiries to the hospital's public affairs department were referred to hospital lawyer Steve Mullen.
Mullen was tight-lipped about the litigation saying only that the hospital would fight the lawsuit "vigorously" and that the competition issue had little to do with what the lawsuit was all about.
Without anyone at Memorial elucidating their position clearly, the public record provides the only glimpse into the hospital's response to Morris' litigation, and the possibility of competition from PPC.
Judging by the evidence, Peters' paranoia was not entirely unfounded. PPC's activities were going down at a time when Columbia HCA, the nation's largest private hospital chain, was seriously eyeing Colorado Springs for potential hospital sites. Columbia often started such ventures by luring away the most lucrative physicians, such as heart surgeons, and offering them an equity share in the new venture.
Embroiled in a soap opera of its own, Columbia has since scaled back its hospital acquisition campaign after many of its top executives were accused (and subsequently convicted) of cheating Medicaid out of millions of dollars.
Cutting closer to the bone was Peters' experience with Doctors Hospital in the mid 1980s when several heart docs, including Blonder, decided to leave Memorial and join the competition at Doctor's Hospital, then owned by Texas-based Summit Health.
"This resulted in decimation of the surgical program at Memorial Hospital," Dr. Bert Wong, a cardiologist with Cardiovascular Medicine, another cardiology group in Colorado Springs, wrote in a March 1999 memo to the hospital administration.
The competition abated in 1989, when Summit decided to pull out of the hospital market entirely. But memories of the episode clearly linger in the minds of some hospital executives who don't want to repeat history.
Moreover, a presentation made by PPC administrator Mantia to Physicians Network in the summer of 1998 raised red flags. Among other things, Mantia suggested either the creation of a new, physician-controlled hospital, or for physicians to own an equity share of Memorial.
PPC cardiologists say the presentation was not a proposal for any specific action. Rather, it was more of a philosophical, brainstorming session designed to get doctors thinking about how they could get more control of their practices in an era when HMOs, hospitals and other health groups increasingly call all the shots.
But that's not the whole story either.
As part of the lawsuit's discovery process, Attorneys for Memorial have uncovered documents that they say show PPC intended to open a heart hospital.
In short, the documents show that nearly a year after Memorial Hospital sanctioned PPC, the group's administrator Bill Mantia began negotiations with MedCath and the Colorado Springs Women's Health Center to open a heart hospital at the Women's Health Center building -- the site of the former Doctors' Hospital.
The plans could also be seen as a defensive move, taken after Memorial banned PPC from much of Memorial's business. But both councilman Eastburn and Blonder have denied knowledge of any plans to open a heart hospital.
For his part, Blonder still likes the idea of an equity stake in Memorial. But at least one PPC partner, Eastburn, hates the idea. "I don't support it all; there are serious problems with doctors owning an equity share in general service hospitals," Eastburn said, noting that it might lead doctors to pay more attention to the bottom line than good health care.
But Eastburn agreed with his partner Blonder that Memorial's punitive actions were based on misinformation and that hospital administrators did little to clear up the confusion.
"During the entire time that this was going on, no one from Memorial asked me, from the Board of Trustees to the administration, what is in fact taking place? What is going to happen? Are you going to make Dr. Morris a partner? No one ever asked."
Dr. Jekyll or Mr. Hyde?
There is one point that most players in this saga do at least half- heartedly agree on. When Morris was recruited from private practice in Pennsylvania to do CPR on Memorial's heart program in 1990, the program was operating with a pretty weak pulse.
The lawsuit describes the cardiac surgery program at Memorial as being in a "shambles," with Memorial diverting roughly half of its heart surgery patients to Penrose for surgery.
In 1992, Morris performed Memorial Hospital's first heart transplant. Since then, the surgical program has become one of the best and busiest in the state, with cardiac care now comprising almost 15 percent of the hospital's revenues.
Whether this is due to the leadership and talent of Morris or to the closing of rival Doctors Hospital is open to dispute. But as late as September 8, 1998, a month after Morris was canned as director of surgery, Memorial medical director Jerry S. Graul wrote to Penrose Hospital that Morris "is an excellent surgeon and has been responsible for the high quality of care for cardiac patients at Memorial Hospital.
"During that time, he has built the program with his tireless efforts," Graul continued.
Morris' real beef with the hospital is that he never had the chance to defend himself against the charges being leveled against him.
"This is a civil rights case," says Morris. "Fundamentally, this is about whether a hospital, or anyone, has the right to deny someone their constitutional rights."
According to Hospital bylaws, medical staff are supposed to be given prior notice in writing of any action that would impinge on their privileges or status at the hospital due to the individual's competence or professional misconduct.
The administration is supposed to detail the reasons for the action, then allow the affected individual a chance to respond, even call witnesses, before a hearing of the hospital's executive committee.
"That never happened," says Morris' lawyer, Thomas McMahon. "That's the guts of this case."
The hospital admits that due process as described in the bylaws never occurred. In documents filed in the case, Hospital attorney Mullen told the hospital's board that it didn't need to follow the normal due process because the hospital board was not disciplining Morris "with regard to competence or professional misconduct," as called for in the bylaws.
In short, the board was simply trying to restore order to a divisive cardiology program, not discipline someone for any specific wrongdoing.
Further, Morris serves "at the will of the director of cardiac surgery, thus no hearing is required," Mullen wrote in an internal opinion in July of 1989.
As for the eventual termination of Morris' operating privileges, a "meaningful hearing" was not possible because of pending litigation by Morris, who had already sued the hospital, naming as defendants many of the administrators and board members who might be presiding over the hearing.
But should the courts decide a hearing was required, Mullen said the hospital is prepared to defend. That defense will likely paint the Dr. Jeckyl side of the Morris profile.
In one affidavit submitted in the case, for example, Peters cited an anonymous note from an employee to the Department of Labor. "Dr. Joel Morris is a talented cardiac surgeon who is also quite convinced that he has the right to berate, threaten and verbally abuse nurses and physicians at Memorial. His unending verbal tirades have threatened the confidence and security of all those around him in the operating room."
Other documents detail Morris berating staff nurses, even attempting to recruit hospital personnel to the new "heart hospital," a charge Morris denies.
And according to Peters' affidavit, Morris had a propensity to ally himself with difficult and unusual partners whose behavior in the operating room was nothing short of M.A.S.H. meets One Flew Over the Cuckoo's Nest.
"Over the course of his eight years as head of the Cardiac Surgery Department, a troubling pattern emerged. Dr. Morris would recruit a surgeon to join the department, and he would tell us that he had carefully checked the surgeon's background, that he was highly qualified, was stable and would be an asset to the program," Peters wrote in a sworn statement.According to the hospital, Morris hired three successive cardiac surgeons who for various reasons, didn't work out.
For his part, Morris and his attorney admit he made some bad hiring decisions that turned out poorly -- even that Morris is a difficult personality. "What cardiac surgeon isn't difficult at times?" asked McMahon.
The Denver based lawyer argues that the hospital is doctoring his client's work history after the fact. McMahon points to a letter dated August, 21, 1998 in which Peters' own secretary wrote Penrose Hospital's credential committee that Morris "has no derogatory information in his file."
Condition Terminal
Morris' real downfall came after the spring of 1998, when tensions between himself and Albert had gotten so intense, Morris decided he could no longer work with Albert in Colorado Springs Cardiothoracic Surgery, their partnership, and resigned from the practice that he had founded.
In a terse, July 29 response, Albert responded that he would "no longer be sharing call-coverage with you." Things only got worse after Albert was named to succeed Morris as Memorial's director of cardiac surgery, according to documents filed by both sides in the dispute.
The whole thing began to seriously unravel as the two doctors grid-locked over the issue of cross covering each others' patients. The practice allows one doctor to leave town or take a vacation, while the other agrees to see his patients in emergency situations.
Because the two were barely speaking, the cross coverage conflict began to impact patient care, and hospital brass viewed the problem with considerable concern.
In a Sept. 9, 1998 letter to both Morris and Albert, hospital chief of staff Warren D. Goldstein put the blame on both surgeons for their inability to communicate and effectively cross cover each others' patients.
"You must both remain in town to cover and be available to cover your own patients," until the situation is resolved, he wrote. "The problem is highlighted," he continued, "by a cardiac surgery patient who was recently required readmission three days after discharge at a time the operating surgeon was out of town and no cross coverage had been obtained."
In short, the hospital imposed a 30-minute, 30-mile rule on the two surgeons so they'd always be close enough to the medical campus to take care of patients in an emergency.
Things got especially maudlin, however, when Dr. Morris' father in Florida fell into a coma in January of 1999. Aware that he was under serious scrutiny, Morris says he felt pressured to return from Florida prematurely.
After returning for several days, Morris learned that his father had died and had to again attempt to get permission to leave town for his fathers' funeral. Morris went so far as to accuse Albert on local television of keeping him from seeing his dying father, a point that Albert denies.
"Contrary to Dr. Morris' sworn statement, I immediately provided coverage when I learned that his father was gravely ill in January 1999."
According to Albert's affidavit, it was only after Morris's visit to his father's deathbed that Albert says he decided he would stop covering for Morris. "Cross coverage with Dr. Morris can be dangerous to patients," Albert wrote in a sworn affidavit.
In short, Albert said that after returning from Florida, Morris failed to come in and operate on one of Albert's patients when Albert was busy operating on another patient.
Though the patient reported chest pains several times in the next two days -- according to Albert -- Morris did not operate, leaving Albert to operate several days later. Albert suggested the delays may have contributed to a "poor outcome" -- a referral to University Hospital in Denver for a transplant and, ultimately, the patient's death.
"I don't know whether J.B. would have died if the case had been properly handled, but I am clear in my own mind that he didn't get his best chance to live," Albert wrote.
But cardiologist Blonder, a friend of Morris, disputes Albert's version of the events. It was Blonder who referred the patient to Albert in the first place. "That was Albert's patient," said Blonder, adding that Albert was supposed to operate on the patient while Morris was still out of town. "For some reason, Albert kept postponing the date of surgery. Albert is responsible for that patient outcome."
And court records show that Morris was not the only one accused of failing to cover patients in need. In a lengthy series of complaints from Emergency Room staff, Albert was accused of failing to show up when an emergency room physician asked for a consult on a patient with multiple gunshot wounds to the chest. The patient later died.
Though the hospital's medical board ruled Albert's inaction had no effect on the ultimate outcome, the episode raises questions for supporters of Morris: Why was Morris taking the fall even though he wasn't the only one with allegations leveled against him?
Double bypass
Board of Trustees' minutes from 1998 may shed light on that question. The light comes from comments made by Dr. Kent Olvey, who suggested that Morris' firing was the result of a personal grudge match, or power play, between Morris and Peters.
"No competing facility has been developed, but physicians are being threatened because of the possibility of such a facility being established," Olvey was quoted as saying. "Over the years, many services have been pulled from the hospital to free-standing facilities, but similar responses from the hospital did not occur."
The note taker then switches to third-person in describing Olvey's concerns: "He believes that a personalization of the issue has occurred beyond its business importance. He suspects that the personalization is between Dr. Morris and Mr. Peters. He believes that clean judgement has been clouded and makes the result of the business decision become more skewed as the personal need to 'get him' becomes involved."
Olvey appeared particularly disturbed by word that the new director of cardiac surgery, Albert, was monitoring cardiac referrals to exclude the PPC doctors, under the direction of hospital administrators. In this case, a physician said he was prevented from sending a heart transplant patient to Eastburn, who Olvey said "is considered to be the best cardiologist in Colorado Springs regarding the procedure."
Peters flatly denied that Albert or anyone in administration had begun monitoring referrals in an attempt to punish PPC, but cardiologist Blonder suggests such episodes are at the heart of the Morris lawsuit.
"The job of the hospital is to provide the best possible patient care, not build up an empire for Bob Peters," Blonder said. "You don't fire your best surgeon because you think he might compete with you."
Stay Tuned
There are many more secondary characters, bit parts and subplots to the story, but it would take an entire season of daily episodes to detail the whole sordid tale. Besides, the story is still unfolding.
As you read this article, attorneys for both sides are meeting with the key players for sworn depositions that will underpin Morris' case and shed light on the unruly, highly competitive world of cardiac care in Colorado Springs.
Whoever prevails, the case paints Memorial's cardiac surgery department in a rather dim light, despite the fact that patient outcome statistics during the period of even the highest tension remained quite good.
But perhaps more importantly for the public, which owns Memorial Hospital, the case illuminates the inner workings of a city enterprise faced with even the rumor of potential competition.
Is Memorial Hospital the 900-pound gorilla of local health care? Did it ruin the career of its best surgeon simply because he allied himself with a perceived hospital competitor?
Will taxpayers ultimately have to fork out millions of dollars in damages, or settlement fees, simply because Bob Peters wanted to get the competition before it got him?
Or was Morris such a big-ego, loose cannon he needed to be fired before he ruined one of the best heart programs in the state?
Why exactly did Colorado Springs heart patients lose a heart surgeon with a mortality rate that's almost half that of Memorial's other two heart surgeons?
Why did the hospital have to pay Morris' replacements -- Albert and surgeon Bryan Mahon -- nearly double what it guaranteed the fired surgeon?
Are daytime soaps in fact an accurate reflection of everyday reality in Memorial Hospital's operating and board rooms?
Stay tuned.
Are you going to Citizen Project Forum @ Memorial Hospital next week?
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