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    Fined $100,000--for "dumping" patients he couldn't treat

    Fined $100,000—for "dumping" patients he couldn't treat

    When operating on two accident victims proved impossible, this surgeon sent them to a trauma center, and was penalized. A court cleared him—eight years later.

    By Brad Burg, Senior Editor


    Click here to view full-size graphic

    At 3:30 am on Sept. 15, 1991, Theodore Cherukuri woke up to a physician's nightmare.

    As the on-call general surgeon for his small-town hospital emergency room in Williamson, KY, he was needed immediately. There'd been an auto accident, and some victims were gravely wounded. Driving through the fog, Cherukuri was on his way to a life crisis of his own, one that would loom over him personally and professionally for most of a decade. He'd soon face a four-hour struggle over treatment for those critical patients—a struggle in which he followed his best medical judgment. But the federal government later found his judgment wanting, and fined him $100,000 under the so-called patient dumping law. Not until this spring, when an appeals court finally backed him up, could he relax.

    Other doctors can sleep easier, too, say experts close to Cherukuri's battle, including a doctor-lawyer who worked on his defense. Paul R. Fowler of Spartanburg, SC, says, "This case says that doctors who are doing their best in an emergency situation will not be second-guessed."

    Right now, doctors might especially welcome some friendly news in this area, because in some ways, the courts have toughened the rules on dumping, and enforcement has been stepped up (see page 111). So let's see—based on court records and interviews with the principal figures—how this particular battle was won, and what it means for the practice of medicine.

    A small-town ER, overwhelmed by crisis

    In the tiny ER at Williamson Appalachian Regional Hospital, Cherukuri found plenty to deal with on the night of the accident. Two of the five accident victims were injured only slightly, but three were seriously hurt. Two of those—Sean Crum and Delmar Mills—were in critical condition. An ER doctor, Pedro Hani, and two nurses were on duty, but Cherukuri would make the decisions about what to do next.

    After examining the patients, he suspected brain injuries. But Williamson was a regional hospital with about 100 beds, no trauma center, and no neurosurgeon on staff. Hospital policy was to transport patients with possible brain injuries to 440-bed St. Mary's, a level II trauma center in nearby Huntington, WV.

    However, Cherukuri confronted a problem. After performing peritoneal lavage, he determined that the two critical patients were bleeding internally. To stem the bleeding, he wanted to perform exploratory laparotomies, so a call went out to anesthesiologist John Thambi. But Thambi was hesitant; he preferred following protocol and transferring the patients. Indeed, he didn't arrive at the hospital for several hours, and when he did, he still wasn't persuaded to administer anesthesia. The hospital had no equipment to measure intracranial pressure, and without checking that, giving anesthetics to a patient with a possible brain injury could be dangerous. No other anesthesiologist was available, and hospital administrators were unreachable by phone.

    So Cherukuri called St. Mary's. But the surgeon there, Sirous Arya, didn't favor the transfer, given the patients' condition. Outside, moreover, the thick fog made helicopter transport impossible, so Crum and Mills would face an ambulance ride of more than an hour. Cherukuri decided he had to send the patients, anyway. He explained the situation to their parents, and by 8 am the young men were on their way to St. Mary's, where they received treatment. Mills survived, but Crum later died.

    Had Cherukuri done anything wrong that night? Some thought so, including the Department of Health and Human Services. Acting on information received about the incident, HHS investigated and then charged Cherukuri with violating the Emergency Medical Treatment and Active Labor Act, on grounds that he'd improperly transferred the patients. No one claimed—at this point or later—that the transfer had harmed either patient. Apparently, Crum would not have survived in any case. Yet the government slapped two $50,000 fines on Cherukuri, one for each patient. It was the highest fine ever imposed on a physician under EMTALA. The hospital settled a separate EMTALA charge out of court.

    Was there a good case against the doctor?

    Although EMTALA is designed to prevent patient dumping for financial motives, it can involve other issues. The statute is built on if-then logic: If the patient isn't stabilized, you can transfer him to another hospital only if you certify that the benefits of the transfer outweigh the risks, and if the destination hospital accepts the transfer. However, the statute doesn't apply those conditions when a patient is stabilized.

    When Cherukuri got notice of a hearing to decide whether he'd broken the law, he went to attorney G. Chad Perry of Paintsville, KY, who was outraged on his behalf. "For heaven's sake, this doctor struggled with a near-impossible situation for half the night," the lawyer says. "His actions were completely reasonable."

    During the four-day hearing, some testimony—such as that of ER nurse Pat White—portrayed the doctor as positively heroic. "Dr. Cherukuri never stopped" trying to save the patients, she recalled. "It is not something you will ever forget. . . . I heard Dr. Cherukuri [on the phone with St. Mary's] explain . . . [that] they needed to go to surgery and he couldn't do it without anesthesia."

    Still, there was much contradiction. For example, Cherukuri said that at 4 am, he called anesthesiologist Thambi to come in, and nurse White said she called Thambi three times herself. But Thambi said no one asked him to appear until 6 am. (He arrived about 6:30.) According to Cherukuri and White, Thambi refused to administer anesthesia. Thambi denied this and said he would have given anesthesia if Cherukuri had "insisted." But the surgeon, he said, seemed "indifferent" to operating.

    Stabilization was another disputed area. The statute says "stabilized" means "no material deterioration" of a patient's condition is likely to occur during or because of the transfer. Though Cherukuri hadn't operated to stop the internal bleeding, one nurse present that night said the patients were stable when they left. Cherukuri's expert witnesses agreed.

    The government's experts said the opposite, though. And if they were right, transfer was improper without express permission from St. Mary's. Sirous Arya, the surgeon at St. Mary's, testified that he couldn't recall whether he had agreed to accept the patients. Cherukuri said he had.

    The judge finds one person at fault

    Despite much contradictory evidence, Administrative Law Judge Mimi Hwang Leahy decided that Cherukuri was wrong throughout.

    For starters, she ruled, he should have forced Thambi to administer anesthesia. "If a surgeon decides that surgery should be performed, it is the surgeon's duty to tell the anesthesiologist to administer [anesthesia], and . . . the surgeon's responsibility to resolve any misunderstandings . . . with the anesthesiologist."

    Next, the judge concluded the patients were not stable—so Cherukuri needed acceptance to transfer them to St. Mary's. He didn't have it, she said. She also found that Cherukuri had deceptively "led [those in the emergency room] to believe that he had obtained acceptance for the transfers" during the phone call with Arya.

    Judge Leahy also stressed that Cherukuri hadn't complied with the formalities of transfer. He had instructed nurse White to sign his name. And White later testified that she did it, because of the emergency situation: "He was busy at the time [and wearing] sterile gloves . . . and I [prepared the papers] so there wouldn't be a delay." But the judge evidently saw Cherukuri's actions as an attempt to avoid responsibility in case the transport proved disastrous. The judge even determined that the surgeon hadn't tried to get Thambi to administer anesthesia and hadn't been straight with the parents when describing the risks of transfer.

    Could Cherukuri really have been wrong on every key point? The judge, who stated that Cherukuri "is not a credible witness," seemed to think so. She disbelieved many of his recollections or explanations of the night's events, although that meant she also had to discount much testimony that supported him, such as nurse White's account.

    Testimony the judge seemed to disregard

    The judges' ruling notwithstanding, did Cherukuri have any other option that night? The physicians testifying for the government said he should have performed exploratory laparotomies on both patients. But they stopped short of arguing he should have done so without anesthesia, and they couldn't explain how Cherukuri should have obtained it. General surgeon William I. Browning, for example, was asked how Cherukuri could have directed Thambi to cooperate. Browning could only suggest "screaming at him"—and ultimately agreed that Cherukuri had no way to force the issue "short of physical abuse."

    Others concurred. Neurosurgeon Hossein Sakhai of Huntington, WV, makes the same point now that he made in court as a witness for the doctor: "You can't force an anesthesiologist to do his work. So Cherukuri did nothing wrong in transferring." Surgeon Steve Aaron of Louisville, another witness for Cherukuri, agrees: "As for getting an administrator to make the doctor perform—that's laughable. The anesthesiologist makes that decision."

    At the trial, perhaps the strongest defense of Cherukuri's actions came from what might have seemed a compelling source: Sirous Arya, the surgeon at St. Mary's. Arya had been ambiguous about whether he'd agreed to accept the patients when Cherukuri called for permission to transfer them. Yet at the trial, he repeatedly insisted that as soon as he'd learned all the facts, he felt Cherukuri had had no choice:

    Dr. Arya: . . . You have a patient, and you need to operate, but [the anesthesiologist] doesn't want to put him to sleep, I don't know what choice you have. . . .

    Judge Leahy: But would you just transfer the patient?

    Arya: You have to, you have to do something.

    Leahy: Wouldn't you get the consent of the surgeon who is supposed to be receiving, first?

    Of course, that surgeon would have been Arya himself. But he said:

    Arya: Yeah, but that comes more like paperwork. Bear in mind, you have to do something with the patient, he is dying. . . . And he made the decision to send the patient over. . . . I don't know what other choice he had.

    Leahy: So you think the consent of the receiving surgeon and the receiving hospital are merely paperwork?

    Arya: No . . . they are very, very important. . . . But I mean, I wouldn't blame him for sending the patient over, because the patient would have died there without surgery.

    The judge, in fining Cherukuri, did make one concession: She didn't revoke his Medicare privileges. The government had argued for revocation, on the grounds that the doctor had committed "repeated" violations. Why? Because the case involved two patients.

    The doctor's expenses use up his assets

    A costly appeal followed. "The government probably put $200,000 to $300,000 into its argument," estimates Cherukuri's first attorney, Chad Perry. Although he minimized his own fees, Perry says, the physician still went through much of his own savings.

    Indeed, Cherukuri was so strapped that his children took time off from college to help Perry research briefs for their father's case. Perry also recruited attorney Paul Fowler, who worked for partial fees.

    Fowler then brought in a consultant, Elliot B. Oppenheim of Santa Fe, for his expertise on EMTALA. Oppenheim, who also worked for reduced fees, led in preparing a 279-page brief, which was filed with the Departmental Appeals Board of HHS. But it was the board's response that was truly brief. "In about 15 lines," recalls Oppenheim, "they declined to review the case. With no reason." The doctor then had little choice but to appeal to the US Court of Appeals for the 6th Circuit, based in Cincinnati.

    Cherukuri had other allies, too: The AMA, the American College of Surgeons, and the American College of Emergency Physicians filed briefs in support, written by the Washington, DC, office of Jenner & Block, which would also handle the oral argument and write later briefs for Cherukuri. Robert M. Portman of that firm says, "We found the administrative law judge's opinion startling. First, she seemed out-and-out hostile toward the doctor. And her conclusions represent a tremendous interference with the practice of medicine—first by second-guessing his judgment, and then by suggesting he could force the anesthesiologist to provide anesthesia."

    Vindication from a federal court

    The 6th Circuit decision, handed down last May, said the administrative law judge's decision was wrong—and Cherukuri right—on every essential issue. In addition, the decision explicitly extends the freedom of doctors and hospitals to decide what "stabilization" means.

    The 6th Circuit opinion said the law did not require Cherukuri to "force Dr. Thambi against his will to administer anesthesia." On the contrary, "nothing in EMTALA demands such a confrontation, and for good reasons." The decision then quoted a medical text on the danger of giving anesthesia when head injuries are present. In short, the court recognized that doctors can have valid disagreements.

    As for stabilization, since the ER had normalized the patients' blood pressure to provide sufficient blood to internal organs, the "on-the-spot risk analysis by Dr. Cherukuri leading to transfer was appropriate" under the circumstances. According to the 6th Circuit, the government's position—that internal bleeding, by definition, indicates a patient isn't stable—was too inflexible. "The statutory definition of 'stabilize' requires a flexible standard of reasonableness that depends on the circumstances . . . and the rigidity of the [government's argument] on this subject is misplaced."

    On the issue of permission for the transfer, the court refused to quibble. It said, "the record does not quite bear out a conclusion that he acted in bad faith." The court concluded, "Dr. Cherukuri acted properly under very trying and difficult circumstances and should be exonerated of any wrongdoing."

    The court quoted at length Arya's interchange with Judge Leahy, in which Arya defended Cherukuri's decision. The decision notes that the judge did not mention this testimony "in her long opinion repeatedly condemning Dr. Cherukuri." The court also lambasted the HHS appeal board for failing to review this "important case" without explanation.

    Is a clear signal being sent?

    Today, Cherukuri is relieved but somewhat soured by his long fight. "It's easy to criticize doctors after a crisis," he says. "But think of this: The reluctance to provide anesthesia—was that 'internal dumping'? The reluctance of St. Mary's to accept the transfer—was that 'reverse dumping'? All I can say is, it was a terrible night. Everything went against me—it was late, it was foggy, and key people were impossible to reach."

    And for other physicians, what does the case mean?

    "It establishes a flexible and reasonable standard for stabilizing, and hence transferring, patients," notes doctor-lawyer Paul Fowler. "In explicitly deciding that 'stabilize' can't be narrowly defined, the court clarified that it depends on a doctor's judgment and on the situation at hand." Indeed, Fowler adds that "after this case, the government must show that a doctor was negligent in transferring" before deciding that a violation has occurred.

    That certainly doesn't mean the government won't carefully watch what you do. Since patient dumping means to turn away patients for discriminatory reasons—race, gender, or apparent poverty—you might think that EMTALA should apply only to such situations. Not so. A few months before the Cherukuri case was resolved, the US Supreme Court ruled that EMTALA cases require no such "motive."

    Still, the consensus seems to be that because of this case, doctors can expect a broader understanding of the decisions they make under pressure. Chad Perry says, "I sure hope so. If I had children, I wouldn't want to see one spend 12 to 14 years working to become a doctor, to be abused like this."

    The government is still watching closely

    In clearing surgeon Theodore Cherukuri of a patient-dumping charge this spring, the 6th Circuit issued a ruling that specifically says doctors have the flexibility to decide when patients are sufficiently stabilized to be transferred to another facility. So physicians can be less concerned about the government's second-guessing them arbitrarily. The court came down hard, not just on the Health and Human Services judge who fined Cherukuri, but on that department's internal appeal board: "We respectfully suggest that the Board should review cases like this one closely and should not simply pass them on to a federal appellate court."

    But HHS officials still believe that the administrative law judge who fined the surgeon $100,000 made the right decision. D. McCarty Thornton, chief counsel of the Office of Inspector General in HHS, provided the following statement to Medical Economics::

    First, the Cherukuri case is the first case where the OIG has not been successful in a patient-dumping penalty case. There have been a total of 189 dumping cases, mostly resolved by settlements.

    Second, we do not bring dumping cases that involve medical issues unless well-qualified physician reviewers advise us to. The physician reviewers told us the patients in this case did not get appropriate care, and the trial judge believed our physician witnesses.

    Third, while we accept the Appeals Court's ruling, we respectfully disagree. Normally, the Appeals Court will defer to the factual findings of the trial judge, who had the benefit of observing the demeanor and evaluating the credibility of the witnesses in person. The Appeals Court did not do so in this case.

    Finally, the Office of Inspector General remains fully committed to ensuring that Medicare, Medicaid, and other patients receive the emergency care to which they are entitled, and we intend to continue to enforce the patient anti-dumping laws in as fair and unbiased a manner as possible.

    Doctors should also be aware that "dumping" may be an issue even when there's no question of discrimination—a point made by a Supreme Court case earlier this year. In addition, enforcement of the patient-dumping act has been increasing greatly in recent years, partly because more staff money is available, says the OIG's Alwyn Cassil. Throughout most of the late '80s and early '90s, there were generally fewer than 10 settlements per year, Cassil says. But in the two most recent fiscal years, the numbers jumped to 53 and 61. "In each of the last two years, only three cases involved doctors," Cassil says. "So, contrary to some reports, we are not singling out physicians. But we are increasing enforcement generally."

      

    Could you recover legal fees if the government wrongfully pursues you?

    The Department of Health and Human Services has announced that it intends to hunt more extensively for instances of patient dumping (see The government is still watching closely). On another front, the Medicare fraud and abuse police are zealously looking for violations.

    What if you become an unjustified target of government scrutiny? Theodore Cherukuri, the surgeon just vindicated in court, spent many thousands on legal bills. If that were to happen to you, could you get your money back?

    It's not easy, as Cherukuri has found. He sued for recovery of those fees under the Equal Access to Justice Act, explains his Washington attorney, Robert M. Portman. "That course is open to you if the government goes after you in any civil action other than court—including actions by regulatory agencies—and its position proves to have been substantially unjustified."

    Portman's firm was involved on a pro bono basis in Cherukuri's successful appeal of patient-dumping charges. On the same basis, it later sought government reimbursement for its fees and expenses, and for the doctor's, too. There seemed good reason to try: In clearing Cherukuri of EMTALA charges, the 6th Circuit had severely criticized the government for pursuing its case against the doctor.

    Yet the same 6th Circuit has now refused to make the government pay the other side's fees and expenses. Sure, the court says, the government was wrong: "[We] continue to believe that the decision of the Administrative Law Judge" against the doctor was "arbitrary and capricious," and should have been reversed by an administrative appellate board.

    However, the court also believed that the government had good reason to think its case was valid, until late in the game, when some government witnesses reversed their opinions. Moreover, the government's "somewhat inflexible interpretation of EMTALA," while erroneous, wasn't "substantially unjustified," the court said. Too bad, Doctor.

    . Fined $100,000--for "dumping" patients he couldn't treat. Medical Economics 1999;22:106.