Posted on: 07/07/2002

Sunday, 7 July 2002

Operations led to tragedies for two patients

By Carla McClain

A state investigation has been launched into a longtime Tucson neurosurgeon after brain surgeries he performed led to the death of one patient and put another in a permanent vegetative state.

The procedures occurred at St. Mary's Hospital - nearly two years after Dr. Ronald Bernstein was forbidden to do spinal surgery at that hospital because of its findings of "incompetence."

Until the state a few months ago posted public notice of its investigation of Bernstein, patients had no way of knowing of the mounting concerns about his surgical abilities.

Bernstein, 54, now has at least seven active malpractice lawsuits against him, involving brain and spinal surgeries. By contrast, the typical U.S. neurosurgeon can expect to be sued once every five years, according to national records.

This cascade of events led to Bernstein's ban from all Tucson operating rooms a year ago. Months later, the Arizona Board of Medical Examiners - the state agency charged with disciplining doctors - announced three investigations of Bernstein's actions. Board officials have refused to disclose details of the ongoing probes.

This doctor's problems have prompted the chief of neurosurgery at University Medical Center to criticize a medical system that kills too many patients with mistakes.

And it has triggered anguished questions from the wife of the deceased patient, asking why she was never told of this doctor's history and earlier findings of surgical incompetence before putting her husband's brain in his hands.

Bernstein cut out or damaged 60 percent of her husband's healthy cerebellum - the part of the brain that affects physical mobility and vital functions - during an operation to remove a benign tumor, but never found the tumor itself, alleges a lawsuit filed against Bernstein, backed up by an autopsy report.

Testimony from another neurosurgeon found that Bernstein was "completely disoriented" during that surgery.

"Somehow, somewhere there should be a way to find out about a doctor's record, if there are serious problems or questions about him," said widow Phyllis Farinsky.

"I feel so betrayed."

Citing a recent National Institute of Medicine report that found 100,000 Americans die yearly due to medical errors, UMC neurosurgical chief Dr. Allan Hamilton said, "That's the equivalent of a 747 jet going down every day. If that was happening, no one would fly and no one would expect us to.

"Somehow we in the field of medicine have got to take responsibility for this and put a stop to it, but we cannot seem to get our arms around it. With this number of errors, how can we say we are putting patients in good hands?

"This is not just a Tucson crisis, it's a nationwide crisis. We can't just go on policing ourselves the way we have. It's not working."

Hamilton declined to comment on the specifics of the Bernstein situation, but did say the number of lawsuits against the neurosurgeon is "alarming."

"It does raise a red flag - it's a lot," he said.

"But if these turn out to be numerous instances of legally valid negligence or substandard care, with grievous errors, there is a legal system in place to correct it. This doctor must be provided with due process."

Bernstein's defenders strongly praise his surgical skills, and blame the shutdown of his practice on medical politics and economic competition in Tucson - issues they say have nothing to do with his competence.

"I have done every one of his surgeries since 1997, and not once have I seen him mess up a surgery or make a mistake," said Tucson anesthesiologist Dr. Robert Osborne. He and Bernstein have done some 1,500 spinal and brain surgeries together, Osborne said - including the two devastating brain operations that led to the suspension of Bernstein's surgical privileges a year ago.

Before teaming up with Bernstein, Osborne said, he had "heard all the bad things about him - that he's not a good surgeon, he had a high complication rate, that he would operate on anything," but found those rumors to be untrue when he watched him in action.

"I could not have worked with him if I had observed him hurting patients.

"I truly believe this doctor is being persecuted by other neurosurgeons because he is the one who fixes their mistakes, and they are embarrassed. And I think this has led to a feeding frenzy among the medical malpractice lawyers. This is a lot of piling on - and not because Dr. Bernstein is in any way incompetent."

Bernstein has declined to respond to the allegations against him, on advice of his attorney.

In a letter in Bernstein's behalf to the state Board of Medical Examiners, dated last October, Osborne wrote:

"Dr. Bernstein's skills are unequaled in this community. I have participated in 6- to 12-hour complex spine cases that other surgeons do not have the skill to perform. They have, in fact, usually refused or denied many patients a chance at improvement . . . (and patients) have become desperate or suicidal. . . .

"These reasons are perhaps the origin of (Bernstein's) isolation from other Tucson neurosurgeons. His skills have corrected the surgical misadventures of others in this community."

Bernstein patient Shannon Moreno, now of Safford, said she underwent five back surgeries to treat intense pain caused by a genetic connective tissue disorder. After temporary relief the pain always recurred, crippling her and forcing her to take heavy narcotics. It was only after spinal fusion surgery by Bernstein that she was able to walk upright without mechanical support and begin to wean herself off drugs.

"To me, Dr. Bernstein is a miracle worker because he gave me my life back when everybody else refused me," Moreno wrote in a letter of support to Northwest Medical Center.

However, a patient involved in one of the current complaints against Bernstein had to undergo a second spinal surgery with another Tucson neurosurgeon, after he suffered loss of mobility in one leg, pain, numbness and incontinence following his first spinal surgery by Bernstein, according to Tucson attorneys Carter Morey and Linda Sherrill. They filed suit against Bernstein in September on this patient's behalf.

Although Bernstein had been operating in Tucson for nearly 20 years and has been the target of lawsuits through those years, his record has been clean at the state Board of Medical Examiners. He maintained surgical privileges at several hospitals - until things began to slide rapidly downhill for him in the last three years.

In October 1999, St. Mary's Hospital told Bernstein he could no longer perform lumbar spinal fusion surgeries - the bulk of Bernstein's practice - after a seven-month review of spinal cases he had handled. Known as "peer review," the study was done by other St. Mary's physicians.

"Based on these reviews, the Medical Executive Committee concluded that your performance of these procedures was deemed to be detrimental to patient safety and the delivery of quality patient care," the revocation letter said.

The basis for this action was "incompetence," according to Bernstein's file in the National Practitioner Data Bank. St. Mary's officials declined to discuss any details of the reviewed cases, citing hospital confidentiality rules.

But Bernstein was permitted to continue doing brain surgeries at St. Mary's, and spinal and brain surgeries at Northwest Medical Center, until Northwest shut down all spinal fusion surgery, by any doctor, in March of last year for financial reasons, according to that hospital's records.

But several months after Northwest acted on spinal operations, Bernstein's entire surgical practice came to a complete halt after he did two brain surgeries - one in February 2001 and the other five months later - with catastrophic results.

The February surgery was performed on Mateen Rizwana, 35, the married mother of a 6-year-old boy, who had gone to St. Mary's emergency room suffering headaches, nausea and vomiting. Called in to consult, Bernstein diagnosed a benign tumor causing fluid buildup in the brain, and recommended surgery to remove it.

During the operation, Rizwana suffered a massive brain hemorrhage, which damaged the brain stem and left her in a permanent vegetative state. Today she lies in a bed at home, semiconscious and breathing but completely paralyzed, unable to talk and fed through a tube in her stomach.

"This case is as tragic as it can get. Mateen has some degree of awareness of what has happened to her, but she is totally incapable of any response. That's worst-case. She is simply trapped," said Dan Shelton, the family's attorney, who filed suit against Bernstein in March.

Before the surgery, the family told Bernstein that Rizwana had nearly died in childbirth because of massive bleeding, and that she might face that risk again in surgery. This information was noted in Bernstein's chart, Shelton said.

But Bernstein failed to do pre-operative tests of her blood status, and failed to consult with a hematologist, in the face of her bleeding history, Shelton said.

"This surgery was necessary, but it was not an emergency. They should have postponed it long enough to make sure she would be hematologically stable during the operation."

Bernstein's attorney in both brain cases, Stephen Paul Forrest, in Phoenix, was out of the country and unavailable for comment. Colleagues in his office declined to comment.

But Osborne, also named in the suit, said he did coagulation tests during the surgery, and they all came back normal.

"This was high-risk surgery, and things happen - it was surgical bleeding. That is a risk with this type of surgery. He did a superb job. He was operating in very difficult circumstances," Osborne said.

Five months later, Bernstein operated on John Farinsky, 50, the married father of three sons, to remove a benign brain tumor that was pressing on his acoustic nerve, causing deafness and pressure in one ear.

"He didn't describe it to us as a very serious surgery," said Farinsky's wife, Phyllis. "He said he would make a small opening behind the ear, go in, remove the tumor, then close up. He said it would take four to five hours."

Instead, the surgery went on for 12 hours. According to court documents and Bernstein's operation report, Bernstein cut out and through healthy brain tissue, but never found the tumor and never removed it.

Ten times during the surgery, Bernstein sent samples of brain tissue to the pathology lab to determine if it was tumor. Each time, the report came back marked "cerebellum," meaning it was normal brain tissue, according to his operation report.

After the failed surgery, Farinsky did regain consciousness but he was paralyzed, unable to talk and unable to breathe on his own. He remained hospitalized and on a ventilator until he died two months later, when fluid flooded his brain.

During those months, Farinsky repeatedly asked his wife to disconnect his tubes and let him die, by squeezing her hand when she asked him what he wanted, she said.

Bernstein lost all surgical privileges at both St. Mary's and Northwest within days of the Farinsky surgery and has not practiced surgery since. Other hospitals put his privileges on hold pending the outcome of the state investigation, according to Osborne. Hospital officials would not talk about how they knew of the surgical problems before the public did.

After reviewing the Farinsky case and MRI scans, internationally renowned neurosurgeon Dr. Robert Spetzler, who heads the Barrow Neurological Institute in Phoenix, wrote this conclusion:

"This is a case of most egregious surgical misjudgment. The surgeon clearly was completely disoriented. For this size tumor, there is no indication to remove any cerebellum whatsoever, and it is inconceivable that a surgeon would be so mis-oriented as to go through the entire two cerebellar hemispheres. . . . I believe the execution of this (surgery) by Doctor Bernstein demonstrates complete incompetence and the grossest negligence."

After autopsying Farinsky and noting multiple brain strokes, a Pima County medical examiner, Dr. Diane Karluk, wrote in her report:

"These (strokes) were the result of mechanical trauma to the arteries during repeated biopsies of normal cerebellar tissue. . . . The operative complications in this case far exceed those that are normally expected if this type of skull base surgery is performed properly."

But Bernstein's explanation for Farinsky's brain damage, detailed in court documents, concludes that "it is highly unlikely this could have been the result of any surgical technique."

Instead, the documents say Bernstein had trouble getting Farinsky - a 6-foot-5-inch, 300-pound man - into proper position for the surgery. As a result, vital arteries to the brain were probably "kinked" during the positioning effort, "unbeknownst" to Bernstein. This cut off blood to the brain, resulting in brain damage.

St. Mary's Hospital is named as a defendant in both the Rizwana and Farinsky lawsuits, stating the hospital should have known Bernstein was not skilled enough to do these brain surgeries, based on findings of incompetence at less risky and less complex spinal surgeries.

"It is absurd to revoke privilege for spinal surgeries but then allow him to do brains, when a bad outcome can be so tragic," said Louis Hollings-worth, attorney for the Farinsky family.

"It's amazing they let him operate as long as he did, especially after the Rizwana case."

Declining to comment on any aspect of the Farinsky case, because it is in litigation, the chief medical officer for Carondelet Health Network, owner of St. Mary's, said it is invalid to assume a physician who is not skilled in one specialty is unskilled in another.

"You don't withdraw privileges from a surgeon unless you have proof he is incompetent, and you do so only when you have that proof in hand," said Dr. Jose Santiago.

Northwest officials refused to comment on their decision to bar Bernstein from performing surgery there. But one of Bernstein's attorneys is fighting to have him reinstated at Northwest, and said he believes he will be, as a result of an appeal hearing held last month.

"We are confident the appellate panel will conclude the hospital's decision was unreasonable, arbitrary and without substantial factual basis," said Dan Cavett, who is also defending Bernstein in the state investigations.

But that possibility strikes fear in Phyllis Farinsky, who said she wishes she had had an inkling that Bernstein's skills, in any area of neurosurgery, were in question.

"If I had known there were questions about him, I would have asked for other opinions - we would have at least been able to make an informed decision," she said.

Pointing out that restaurants are inspected and graded - and the results made public - Farinsky called for at least that much when it comes to a physician's performance.

"Isn't that the least we could ask with doctors - who have our lives in their hands?"

Source: Arizona Daily Star
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