The U.S. Gave Troubled Doctors a Second Chance – Patients Paid the Price
Henry Stachura’s surgical career at Memorial Medical Center in Las Cruces, N.M., ended the day a patient died after he operated on her abdomen. The case led to his fifth malpractice settlement in five years, court and licensing records show.
After Memorial officials suspended him permanently, citing “multiple serious deficits in judgment,” he tried to find work in Nevada, but a licensing board rejected his application.
Thrust into medical exile at age 52, Dr. Stachura turned to the Indian Health Service for a job. The federal agency, which provides health care to 2.6 million Native Americans, has given second chances to dozens of doctors with trails of medical mistakes and regulatory sanctions—sometimes to disastrous effect, a Wall Street Journal investigation found.
Before Dr. Stachura retired this August, the U.S. government made five malpractice payments totaling $1.8 million to settle allegations involving his care at the IHS, according to a Journal analysis of Treasury Department data and federal court records. Three of those patients died after he treated them.
“We trust IHS as Native Americans, and they should hire the best people for us,” said Jeanise Livingston, who was in a coma after her bile duct was cut during a 2006 gallbladder surgery Dr. Stachura performed, medical records show.
Dr. Stachura didn’t respond to requests for comment. In correspondence with the New Mexico medical board, he said a medical review panel ruled he wasn’t negligent in some of his malpractice cases, including the one that got him suspended from the Las Cruces hospital. He said other patients who sued over his care, including Ms. Livingston, recovered well. The IHS declined to comment on Dr. Stachura, citing privacy rules.
The Journal examined 163 malpractice claims against the IHS that the government settled or lost since 2006. One out of four doctors involved in those cases worked for the IHS despite a history that should have raised red flags by the agency’s own standards, the Journal found. At least 66 of the patients died as a result of the alleged malpractice, the analysis found.
Insurance actuaries say U.S. doctors typically have one malpractice claim every 20 years or so. Surgeons and other high-risk specialists have twice that rate. The IHS was willing to hire doctors with many more lawsuits in their past, in some cases more than 10 in less than a decade.
“Our tribal members are at the mercy of these federal health facilities,” said Tori Kitcheyan, a Winnebago Tribe of Nebraska council member and the chairwoman of the nonprofit National Indian Health Board. “There is no other choice.”
The IHS’s chief medical officer, Michael Toedt, said in an interview that the Journal’s analysis wasn’t representative of a broader IHS workforce he said is composed of “top quality physicians.” Asked about some of the doctors the Journal identified, he said that “it’s never appropriate to make a compromise on quality to fill a vacancy.”
The Journal found that IHS managers didn’t always make basic inquiries about physicians’ work histories. An official who approved Dr. Stachura’s appointment at the IHS’s Gallup, N.M., hospital, Floyd Thompson, said he didn’t know of the surgeon’s malpractice history. The cases were logged in a government database that IHS managers are required to examine. Mr. Thompson said he relied on a secretary at the hospital to perform such checks.
It isn’t clear whether IHS ever contacted Memorial Medical Center about Dr. Stachura’s history there, either. MaryAnn Digman, the former CEO, said she didn’t know he had landed at the IHS until a Journal reporter inquired.
“Hank Stachura is a lovely human being, and I recall having a conversation with him and encouraging him to consider another field of medicine than surgery,” she said.
IHS officials hired doctors whom state regulators had punished for transgressions such as drug addiction or sexual misconduct. One doctor who was sanctioned by a state medical board after a patient accused him of sexually abusing her during a surgical exam found work with the IHS, records show. Three IHS managers later vouched for him when he successfully petitioned a licensing board to lift the restrictions.
The agency allowed doctors with checkered pasts to recruit other troubled providers. In one case, an emergency-department chief who was fined by a licensing board over alleged patient-care failings pushed to hire a doctor whose license was restricted for prescribing narcotics to her boyfriend, emails show. The ER chief said in a deposition he thought the medical board’s allegations couldn’t be accurate, because the amount of pills involved was so large.
IHS leaders have vowed for years to overhaul their process of credentialing doctors before they treat patients at the agency’s two dozen hospitals. U.S. regulators require all hospitals to verify that physicians are qualified, competent and safe.
The IHS’s network of hospitals and clinics treats some of America’s poorest communities, beset by high rates of diabetes, alcohol-related deaths and other chronic diseases. The agency for decades has been criticized by Native Americans and government watchdogs for lax and dangerous care, including by the main U.S. hospital regulator.
Such failures have left IHS leaders with a conundrum: how to recruit badly needed doctors—often into remote areas where pay is low compared with private practice—without hiring people so troubled they endanger patients. The vacancy rate for IHS doctors was 29% as of May, agency data show. The industrywide average is 18%, according to medical-staffing agency AMN Healthcare’s most recent survey, from 2013.
Many of the IHS facilities where the Journal found troubled doctors struggled to hire physicians. Overall, 29% of the agency's jobs for doctors were unfilled as of May 2019.
Medical officer vacancies at select IHS hospitals
Source: Indian Health Service
Former agency leaders who struggled with the task of filling these slots said in interviews they resorted to compromises. Michele Gemelas, a former IHS official who wrote the agency’s guide to credentialing, said the agency faces situations where “you get three candidates who come through and they all seem not great. But what you do is choose the lesser of three evils.”
In 2016 the IHS hired obstetrician Bobby Ray Miller Jr. , who reported on his application five malpractice lawsuits resulting in settlements totaling $2.7 million, an internal agency review says. Dr. Miller also was sanctioned by the California medical board after a patient bled to death following a caesarean section, records show.
A baby died in the womb at the agency’s Crownpoint, N.M., hospital because Dr. Miller failed to treat the mother’s high blood pressure, the hospital’s medical staff found in the internal review. The review concluded that his history “foreshadows the tragic events that transpired in October 2017.”
He left the agency last year. In a text message to the Journal, Dr. Miller said: “I just did not address patients primary medical needs in a satisfactory way.”
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The agency declined to comment on any specific doctors, but its quality chief, Jonathan Merrell, said he would review each of about a dozen cases the Journal raised with the agency. “I will take action and ensure that some of those things aren’t persisting,” he said.
The IHS’s oversight of doctors came under renewed scrutiny earlier this year when the Journal and the PBS series Frontline revealed the agency had long ignored complaints that a South Dakota pediatrician, Stanley Patrick Weber, sexually abused young male patients. Mr. Weber, who has been convicted in two trials and filed an appeal, was moved from one IHS hospital to another despite mounting allegations against him.
In 2011, Mr. Weber, by then the subject of accusations, led the committee that vetted doctors for the Pine Ridge, S.D., IHS hospital, his résumé says.
To examine how the IHS screened doctors, the Journal reviewed data from a Treasury Department fund that pays claims against the U.S. government. The Journal then matched those records to federal lawsuits that named 171 doctors—both full-time employees and certain contractors—who plaintiffs alleged were involved in negligent care at the IHS.
At least 44 of those doctors had histories that should have caused concern based on the IHS’s own guidelines, according to medical-board documents, court filings and other records. The guidelines urge managers to screen doctors for multiple past malpractices cases, medical-board sanctions and criminal convictions.
Among them is Franklin Wolf, a surgeon who was sued for malpractice at least 11 times in Pennsylvania over an eight-year period. One patient claimed Dr. Wolf left a leak after a colon surgery, leading to a serious infection and a long hospital stay. The case settled for an unspecified amount without Dr. Wolf responding to the allegations, court records show. At least three of the lawsuits were either dropped or dismissed with regard to Dr. Wolf.
After being hired at an IHS hospital in Shiprock, N.M., he allegedly cut a tube connecting a patient’s liver to his stomach and punctured the man’s intestines during a 2008 gallbladder surgery. That led to a $170,000 settlement after the man died, court and Treasury records show. Dr. Wolf said in a deposition he didn’t believe he had caused the injuries.
In at least a couple of cases, more than one doctor with a history of problems operated on the same patient. Jordan Fleishhacker assisted Dr. Stachura in the 2006 gallbladder surgery on Ms. Livingston that led to a lawsuit costing the U.S. government $175,000, according to medical and Treasury records.
In that case, a gash made in her bile duct spilled at least four liters of digestive fluid into her abdomen, and she suffered from septic shock, according to a report by a third doctor who was involved.
Allegations of patient harm after treatment by surgeon Henry Stachura...
...before he was hired by the IHS
...after he was hired by the IHS
Sponge left inside breast
Miscarriage after bile duct injury
Aspirated vomit during surgery
Untreated gallbladder infection
Sepsis following multiple surgeries
Sources: Autopsy reports, medical records, medical board documents, court records
In 2003, a Massachusetts hospital suspended Dr. Fleishhacker, and the state’s medical board alleged in 2005 that he had shown a pattern of “practicing medicine with negligence” in five surgical cases. Years later, after he had left the IHS, the Massachusetts medical board barred him from surgeries.
Dr. Fleishhacker said in an interview that a suspension like the one he faced from the Massachusetts hospital “is almost a death sentence for someone’s career,” and that he disagreed with the medical board’s conclusions. He said the IHS offered him a position after he told them “my side of the story.” He said he didn’t remember the Livingston case.
Dr. Wolf didn’t respond to requests for comment. A lawyer for Dr. Wolf said in a letter to a medical board that his client’s problems were a byproduct of a time when “[l]awsuits were commonplace and the very best physicians and surgeons suffered.”
Over the past decade, on average, less than 1% of doctors a year were sanctioned by their state medical boards, according to a report by a medical-board association.
Depending on the offense, sanctions can include fines, restrictions on what doctors can do and the revocation of medical licenses. A quirk of the piecemeal licensing system, though, means that doctors who have been sanctioned in one state might still have a clean license in another.
The IHS requires its doctors have an unrestricted license, in most cases. But even when a doctor has been sanctioned, local IHS officials can decide to take a chance—out of sympathy or need.
When Annicol Marrocco was hired as a contractor at the Shiprock, N.M., IHS hospital in 2012, she had been disciplined by medical boards in Florida and New York for prescribing pain pills for her then boyfriend, board records say. On a single day, she prescribed 1,350 oxycodone pills, the records say.
Dr. Marrocco later testified in a Drug Enforcement Administration proceeding that the man’s pet monkey had thrown some of the pills into the pool.
In an interview with the Journal, she said she had refilled the man’s existing prescriptions, a one-time mistake for “a scumbag who misled me,” someone she said wasn’t her boyfriend. She said she typically prescribed fewer than 20 opioids at a time.
The Shiprock medical leadership worried IHS guidelines precluded them from hiring her as a result, until an administrator discovered Dr. Marrocco’s Pennsylvania license was clean at the time, according to internal emails. The staff concluded that allowed them to hire her, the emails show.
“I think this could be a win-win for our ED [emergency department] and for Dr. Morrocco [sic],” Shiprock ER director Thomas Burnison wrote in an email to the hospital CEO, medical director and other officials. Dr. Burnison, himself sanctioned by the Florida board of medicine years earlier in connection with a patient’s death, said portions of the Journal’s account are incorrect, but he declined to specify what.
The IHS’s Dr. Toedt said agency policies on how to deal with doctors who have both clean and restricted licenses are unclear, and that he would revise the policy to eliminate any uncertainty. “Our view is that the individual should not have a restricted license,” he said.
At Shiprock, Dr. Marrocco sent home 18-year-old Lydell Begay, who was complaining of dizziness, with a diagnosis of pinkeye in March 2014, according to a later malpractice lawsuit. Within a week, he suffered brain damage from a stroke.
Before the stroke, his youth baseball teammates had nicknamed him “Flash” for his speed, according to his father, Marty. Now 23, Mr. Begay is confined to a wheelchair and unable to speak. He communicates by pecking out texts on a cellphone. “I wish I could play,” he typed, while watching a recent football game.
Dr. Marrocco disputed the malpractice allegations, saying Mr. Begay didn’t have “any kind of neurologic sign” when she examined him. The government settled for $1 million last year. Hospital officials said in interviews that the doctor’s background made the case hard to defend.
A Pinkeye Diagnosis, Then a Stroke
Now 23, Lydell Begay is confined to a wheelchair and unable to speak.
After being discharged from an IHS hospital with a diagnosis of pinkeye, Lydell Begay suffered brain damage from a stroke.
Adria Malcolm for The Wall Street Journal
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Show CaptionAfter being discharged from an IHS hospital with a diagnosis of pinkeye, Lydell Begay suffered brain damage from a stroke.
Adria Malcolm for The Wall Street Journal
Doctors who have had multiple malpractice claims can face huge premiums for insurance in private practice, even if they win cases, insurance actuaries say. Because the U.S. government covers malpractice claims, IHS doctors don’t need to carry their own coverage—nor will they pay any settlements out of their own pockets, in most cases.
That can make the agency an attractive destination for physicians with past claims. A 2011 survey of IHS doctors by a physician-recruiting firm found that many considered those malpractice rules a top perk of the job.
Surgeon Juni Femi-Pearse was hit with almost a dozen malpractice lawsuits by 2006, according to court and licensing records. His malpractice insurer, at one point, said in a letter that it would discontinue his coverage in part “due to prior claims activity,” including one case that later settled for $675,000. That case involved a routine surgery that went awry, leading to a double amputation and, months later, a patient’s death.
Dr. Femi-Pearse had the kind of conduct issues that trigger medical-board sanctions. In 2004, Norton Community Hospital, in Virginia, suspended him after a patient complained he sexually abused her during a checkup after surgery.
“All he wanted to do was kiss me and pull out his penis and show it to me,” said Michelle McCracken, the patient, in an interview.
In letters to regulators, Dr. Femi-Pearse said that he had a previous consensual sexual relationship with Ms. McCracken, which she denied in an interview.
He was acquitted of a criminal charge, but medical boards in Virginia and Kentucky, where he also practiced, required his visits with female patients be chaperoned. The boards also cited him for prescribing diet pills to nurses.
In early 2008, Dr. Femi-Pearse started work for the IHS in Arizona. He was sanctioned by the Kentucky medical board around that time. He later told the board he couldn’t find work in Kentucky because of the sanctions. “The hospitals all say they do not want a ‘Flagged’ Physician,” he wrote.
Several IHS officials, including Stephen Waite, wrote to the Kentucky board several years later to vouch for Dr. Femi-Pearse, who at the time was asking for the restrictions to be lifted. Dr. Waite himself had lost one of his licenses, in Ohio, in 2006 over an alleged pattern of misdiagnosing critically ill patients, records show.
Dr. Waite, who couldn’t be reached for comment, was named in a 2017 malpractice lawsuit that alleged a 6-year-old girl suffered brain damage after she suffocated on a misplaced intubation tube at an IHS facility. In September, the government admitted negligence and agreed the girl’s “past reasonable and necessary medical expenses are $500,000,” court filings show.
After Kentucky lifted its restrictions, citing his colleagues’ support, Dr. Femi-Pearse became a full-time employee at an IHS hospital in Claremore, Okla., in 2012. The government last year paid a $618,890.64 judgment over a colostomy the doctor performed that spilled fecal matter under a patient’s skin. Last month, it paid a $500,000 settlement after he allegedly botched a hernia repair, leaving a debilitating injury despite additional surgeries.
Dr. Femi-Pearse said in a deposition he was later fired by the IHS over a privacy violation that he denied. In the deposition, he denied having been sued for malpractice before joining the IHS, other than the one case that settled. He referred questions from the Journal to the IHS.
Patricia Lowery said an IHS hospital in Fort Defiance, Ariz., was down to one surgeon—her—when she helped recruit Dr. Femi-Pearse in 2008. She didn’t know then about his history of malpractice allegations, Dr. Lowery said. “I would not have hired someone like that if I had known,” she said.
The Journal found that multiple reports had been submitted about Drs. Femi-Pearse, Stachura and several others, before their hirings by the IHS, to a government-run database meant to alert hospitals of malpractice claims and sanctions. The IHS’s policies require managers to check that clearinghouse—the National Practitioner Data Bank.
IHS officials said the agency’s leaders don’t check whether local officials comply with that requirement.
At the time they were hired by the IHS, these doctors had multiple reports about them in a national database of malpractice payments and professional censures.
National Practitioner Data Bank entries
Board or employer sanction
Note: A single incident may result in multiple reports.
Sources: National Practitioner Data Bank entries through September 2011, licensing and hospital records
By the time obstetrician Robert Zabenko was hired by the IHS in early 2012, he had accrued at least seven databank reports, a review of the databank shows, including some referencing North Carolina medical-board sanctions over an alleged sexual relationship with a patient.
In 2011, Augusta University Medical Center, in Georgia, also reported to the databank that it had barred Dr. Zabenko from treating patients after a series of surgical complications, a copy of the report shows. In a response to the hospital’s allegations, he acknowledged his complication rate was higher than other doctors in his department, but said it was within normal bounds.
At least one prospective employer asked the Augusta hospital for more information about him, emails reviewed by the Journal show. A hospital clerk said the facility could find no record of correspondence with the IHS about him.
In July 2013, Dr. Zabenko struggled to deliver a baby at the IHS’s Belcourt, N.D., hospital, with a vacuum extractor, as the fetus’s heart rate grew irregular. The baby died soon after birth. A medical-board reprimand later said Dr. Zabenko should have resorted to a C-section “hours earlier.”
The U.S. government paid $900,000 to settle a claim by the baby’s mother, the Treasury data show.
Dr. Zabenko, who left the agency in 2014, didn’t respond to requests for comment. His wife, Tammy Zabenko, said in a brief phone call: “He is a great doctor, and doctors make mistakes.”
IHS medical leaders at times moved quickly to remedy hiring decisions they came to regret. For some patients, that came too late.
Craig Copeland briefly lost his Illinois medical license in 2004 over “gross negligence” when a surgical patient died, resulting in a $925,000 malpractice settlement, records show. It was the third malpractice payment on his behalf, licensing records show. Soon after, he closed his practice because he could no longer afford malpractice insurance, he said in an interview.
The Shiprock staff accepted Dr. Copeland’s explanation that he had become a better doctor through additional training, former colleagues said.
Two months after he arrived as the hospital’s chief of surgery in 2014, he allegedly punctured a patient’s intestines during a surgery, a malpractice lawsuit says. The next month, officials confronted him about four major complications at Shiprock, according to an IHS review.
Less than four months after Dr. Copeland arrived at Shiprock, hospital leaders stripped him of his privileges, and he soon quit, agency records show.
Dr. Copeland said that his problems in Illinois were due to personal issues at the time spilling over into his practice. He said the 2014 intestinal injury could have been a ruptured ulcer, not the result of a surgical mistake. He said he felt singled out, since colleagues with similar complications faced no punishment.
“It is easy to scapegoat people,” he said. “It is harder to change the system.”
Vernita Scott, the patient, said she had more than a dozen surgeries at a non-IHS hospital before finally recovering after a four-month stay. The government paid $475,000 to settle her case.
Dr. Copeland now teaches high-school biology in North Carolina.
—Jennifer S. Forsyth, Anna Wilde Mathews and Austen Hufford contributed to this article.
—Graphics by Joel Eastwood
Write to Christopher Weaver at christopher.weaver@wsj.com, Dan Frosch at dan.frosch@wsj.com and Lisa Schwartz at Lisa.Schwartz@wsj.com
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