The Doctor Is In:
Doctor David Odom tells the story that he is a 58 year old, board certified anesthesiologist with almost thirty years experience. Dr. Odom began to practice in Fairbanks, Alaska in 1988. Fairbanks is a geographically isolated metropolitan area serving as the economic center of a population of some 80,000 people. The main campus of the University of Alaska is located there. Two large military bases are situated in the immediate area. The Fairbanks "International" Airport serves the refueling needs of transpolar airline routes to Europe. The Trans-Alaska oil pipeline runs through Fairbanks on its way from the Arctic Ocean to Valdez on the gulf coast.
The Hospital is REALLY in:
Fairbanks was founded in the early years of the last century. History books describe this founding by con-artists and prostitutes as being for the express purpose of cheating the miners and Indians after gold was discovered in the area. Much of the same mentality is evident in how the city is run today. A large outside hospital chain is contracted to manage the hospital. Although currently going under the name of "Banner Health", they have variously been known as "Western Health Network" and "Lutheran Health Services". Although LHS was not affiliated with the Lutheran Church, Fairbanks and have erroneously thought that the Lutheran Church runs their hospital, which is the only hospital for 400 miles in any direction. However, even though the hospital's tax status is "non-profit", the hospital is no charity. As with all monopolies, the prices are as high as the captive audience will bear, and then some. An estimated 30% of potential surgical patients leave town, many of these escapees of the high price of surgery.
A Dedicated Doctor, trying to do good:
In 1992, after 4 years of listening to surgeons complain about the poor quality service offered them by FMH's operating room suite -- poor scheduling, equipment, help -- Dr. Odom decided to be the lead physician to start a free-standing, outpatient surgery center. To that end, after some planning, and upon the advice of an attorney, on December 15, 1992, Dr. Odom contacted the FMH administrator and told him of the plans.
Quality "Assurance" raises it's ugly head:
One month later, after 5 years (his total time there) of no quality complaints, Dr. Odom was called before the Surgery Department QA Committee to "present" three cases occurring many months earlier. He was told that there were concerns about one of the cases, but he was not given any specific concerns that he could address. He simply was told that this would be resolved informally.
As one would suspect, the other anesthesiologists at FMH have a monopoly on anesthesia services as long as the hospital has a monopoly on operating room services. Of course, Dr. Odom's project threatened this monopoly. After the surgery center announcement, the other 4 anesthesiologists became distant and uncommunicative, according to Dr. Odom. He continued his surgery center activities.
Some nine months later, the other anesthesiologists, with the cooperation of the hospital administrator, used a minor event (Dr. Odom's complaint about the lack of cooperation of a nurse anesthetist) to remove him from the operating room schedule. Thereafter, Dr. Odom was allowed to practice in the hospital only upon the specific request of a surgeon or patient. Dr. Odom filed suit against the other anesthesiologists. The hospital hired an attorney for them.
There's ALWAYS an attorney in there somewhere:
Under this attorney's direction, the boycott against Dr. Odom was dropped, but the other anesthesiologists immediately began to do a focused review of his charts. Eventually, they wrote 5 critical essays on 5 cases occurring over the previous year, and packaged them up with a request to the Executive Committee for Formal Corrective Action. They also threw in the first case that had been criticized but that had already been informally resolved. None of these cases involved death, injury, nor bad outcome. One of them was an unnecessary epidural for pain which Dr. Odom had actually declined to do.
The attorney bird-dogged this peer review initiative, personally attending the requisite medical staff committee meetings, explaining to the various physicians that he wore two hats: that of attorney for the anesthesiologists in the present lawsuit, and attorney for the FMH medical staff. The medical staff uncritically accepted his claim that he had no conflict of interest.
It's not the capabilities, Stupid!:
On June 2, 1994, Dr. Odom's privileges to practice at FMH were suspended pending "retraining". This occurred regardless of the fact that he had no malpractice complaints, no evidence of injured patients, nor patient deaths, and not even any patient complaints.
In August, 1994, Dr. Odom was accepted for formal evaluation and retraining at Loma Linda University Medical Center in the Southern California area. While attending this course, the Governing Board of the Hospital (Banner Health) permanently revoked his FMH privileges and medical staff membership.
On December 23, 1994, Dr. Odom returned to Fairbanks with a letter from Loma Linda stating that that, "we feel that after his 4 rigorous months here at LLUMC, Dr. David Odom is a safe, up-to-date, and capable anesthesiologist and would be an asset to any hospital medical staff." Further, the letter stated that "[Odom] was probably a safe anesthesiologist even on arrival here."
In January, 1995 Dr. Odom reapplied for privileges at FMH, and 4 months later was notified that his application was denied. He requested an appeal hearing with the medical staff, which occurred in July of 1995. He lost this appeal, even after the head of the anesthesia department at LLUMC testified on his behalf in person.
Dr. Odom's last allowed administrative appeal was to the FMH Governing Board, made up of Banner Health executives. Not surprisingly, he lost that appeal, too. And because of the reporting requirements of the Health Care Quality Improvement Act, Dr. Odom was reported to the National Practitioner Data Bank and is essentially now unable to practice anesthesiology anywhere in North America.
We always wind up in court:
Dr. Odom filed a lawsuit in December, 1995, which included all events occurring after the initial lawsuit was filed in December, 1993. The first suit was dismissed in Summary Judgment by a local Superior Court judge. The second suit was dismissed a year after it was filed, by another Alaska 4th Judicial District judge.
Both suits were appealed to the Alaska Supreme Court on a timely basis, a year apart. However, since they are related, they were both reviewed extensively by the same Supreme Court Justice, and decisions came down on the same day, March 17, 2000. In both cases Dr. Odom won on every point appealed. The decisions were unanimous on every point appealed except that one Justice dissented concerning the one point of defamation. (These cases are listed on the Pacific Reporter as 5250 S-7547 Odom v. Lee, 999 P2d 755 & 5251 S-8007 Odom v. Fairbanks Memorial Hospital, 999 P2d 123)
In October, 2000, the opposition filed a Motion for Summary Judgment based on the immunity provisions of the HCQIA. On Dec. 6, 2000, Dr. Odom filed his opposition. After oral argument, the judge's decision was in Dr. Odom's favor. However, saying the law was so confusing, he invited the other side to appeal to the AK Supreme Court. They have done so. Dr. Odom has not yet put in his reply. Then all parties await the Supreme Court's decision. See an update! (Below)
One interesting point is that Dr. Odom's initial lawyer promptly abandoned him after he ran out of money in 1995. Therefore, all subsequent filings had to be done pro se. It has been a struggle all the way for Dr. Odom and his wife. It was not until just before the recent hearing on the matter of the Motion for Summary Judgment based on HCQIA immunity that Dr. Odom finally was able to retain an attorney.
And do patients get a better facility?:
As for Dr. Odom's project, Fairbanks Surgery Center Inc. -- in September, 1995, he won a Certificate Of Need from the State of Alaska to develop a surgery center in Fairbanks. After almost 2 years of false starts, and trying to get financing amid rancorous opposition from the hospital, Dr. Odom finally put together a consortium of Columbia Care and two Alaska Native Corporations to do the surgery center.
Unfortunately, the CON was to expire on December 31, 1997. Dr. Odom applied for the necessary extension. Predictably, FMH took this very seriously, protecting its $35,000,000+ outpatient market by politically interfering with the CON process entirely outside the bounds of mandated procedure. Without money, Dr. Odom's appeal to renew the CON got nowhere.
And so it goes:
As anyone can see, FMH is still a monopoly. Prices in Fairbanks are still outrageously high, and there is still no choice in facilities. Of course, there is also one less anesthesiologist in the world. However, as a telling postscript, upon the recommendation of Floyd Brauer, M.D., the head of the anesthesia department at Loma Linda, Dr. Odom sat for the American Board of Anesthesiology re-certification exam in May, 1997, and passed.
Odom v. Fairbanks et. al. 4FA-93-2901 Civil
Superior Court for the State of Alaska
Fourth Judicial District at Fairbanks
Memorandum, Opinion and Order of Superior Court Judge Pengilly, denying the request for Summary Judgment by Fairbanks Memorial Hospital. Notice Judge Pengilly's telling discussion of the bizarre interpretations of the U.S. Health Care Quality Improvement Act of 1986.
Court Opinion April 4, 2001- Superior Court Court Decision
(The final page of the court decision)
UPDATE FROM DR. ODOM!!
Date: Sat, 28 Apr 2001
As Judge Pengilly invited them to do within the 6 pages of his opinion, the hospital made an "interlocutory" appeal to the Alaska Supreme Court on the matter of HCQIA applicability. They actually filed their brief on April 16th and my side is preparing a response at this time.
We will demonstrate, by a preponderance of evidence, that FMH did not adhere to the 4 prongs of the HCQIA, thus failing to acquire immunity under provisions of the doctrine.
The interesting procedural posture of this case is this: The other side never brought up HCQIA previously! They simply asked for dismissal in 1996, and the Superior Court judge gave it to them. In answering my Supreme Court appeal, Justice Compton opined that: "Odom's complaint alleges facts which if proven are sufficient to state a claim for unreasonable restraint of trade, group boycott, attempted monopolization, defamation, breach of oral contract, unfair trade practices, interference with a prospective economic advantage, and intentional infliction of emotional distress. Accordingly, we reverse the superior court's dismissal of these claims and its awards of attorney's fees to FMH and to the doctors and anesthesia Associates, Inc."
So now, after the Alaska Supreme Court has already spent a great deal of time dealing with this case, we are expecting it to let Judge Pengilly's ruling to stand and allow this case to go before a jury.
Of course, I will keep you posted. -D.O.-