Posted on Jul 23, 2007
Surgeon has made himself 'judgment proof,' lawyer says
Oft-sued bariatric surgeon says most lawsuits 'are about money, they're not about malpractice.'
By Anthony Gottschlich
Sunday, July 22, 2007
Driving a car is enough of a risk that Ohio requires its motorists to carry liability insurance on their vehicles.
But that same reasoning doesn't apply to another life-and-death endeavor — the practice of medicine. There's no law requiring physicians to carry professional liability insurance.
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Patrick Wilson found that out after his 44-year-old wife died following her second weight loss surgery in 2003 at Sycamore Hospital in Miamisburg.
Wilson tried to sue the surgeon who performed the operation, Dr. David J. Fallang of the Surgical Weight Loss Center in Dayton, but his lawyer gave up when he discovered Fallang didn't have malpractice insurance and had shielded his assets from civil judgments.
"Dr. Fallang has succeeded in making himself judgment proof," attorney J. Pierre Tismo of Dyer, Garofalo, Mann & Schultz wrote to Wilson.
While malpractice insurance isn't required, Ohio law mandates that physicians who lack the insurance inform patients in writing and obtain a signed consent form prior to treatment in non-emergency cases.
Fallang, who's been sued 22 times in Butler and Montgomery counties for malpractice since 1991, didn't do that.
"I never knew such a statute existed," Fallang, 57, said from his office at Elizabeth Place, the former St. Elizabeth's Hospital.
The bulk of the lawsuits against Fallang were filed in the last decade, when he started specializing in gastric bypass surgery, the risky, but often successful, weight-loss operation for the morbidly obese.
A veteran of more than 2,500 such surgeries, he's lost one lawsuit, where the jury awarded the plaintiff around $1 million, and settled at least four. The rest were dismissed.
The Middletown resident admits "I'm not perfect," but he doesn't believe any of the cases against him involved actual malpractice. He said the suits were largely manufactured by the "medical malpractice lawsuit industry."
"I've just been squashed by this stuff," said Fallang, former medical staff president at Middletown Regional Hospital. "And let me tell you, I'm a pretty damn good surgeon."
Malpractice and the law
Failure to disclose a lack of malpractice insurance isn't a crime in Ohio, but it's subject to disciplinary action by the State Medical Board of Ohio. Penalties include a reprimand up to a permanent revocation of the medical license.
Wilson's former lawyer filed a complaint with the board last September, and Fallang said he recently answered questions for the board.
The board would neither confirm nor deny an investigation.
Board spokeswoman Joan Wehrle said the board hasn't disciplined any doctors on this issue to date. She also said the board doesn't track doctors who lose their insurance.
Some states require physicians to carry the insurance, according to the National Council of State Legislatures.
But state Rep. John White, R-Kettering, chairman of the House Health Committee, said a requirement might be going too far.
White said Ohio lawmakers could explore additional disclosure requirements, though, such as placing a doctor's insurance status on his or her profile at the state medical board.
Almeta Cooper, counsel to the Ohio State Medical Association, believes enough safeguards are in place. Besides, she said, Medicare, Medicaid and other health insurers, as well as most hospitals, require physicians to carry the insurance before they'll do business with them.
Fallang's privileges at Middletown Regional Hospital ended in January 2002, and they ended at Kettering Medical Center and affiliate Sycamore in May 2004, the hospitals' respective spokespeople said.
Hospital officials declined to say why, but Kettering spokesman Kevin LaVoie said, "It is not our policy to allow surgeons to perform surgery without proper malpractice insurance."
Fallang, though, was operating on patients at Sycamore even after he lost his insurance; the hospital didn't know, court records show.
He said he was covered for general surgery, but later learned the policy excluded bariatric surgery.
Fallang said he's held a variety of malpractice insurance policies over the years, so many that he'd lose track of his coverage status at times.
He said his trouble obtaining the insurance began in the early 1990s after his insurance company urged him to settle a suit and then tripled his premiums. Several insurance companies went "broke on me," he said, and at one point he was paying a $183,000 annual premium. It became too expensive to carry.
On average, malpractice insurance for general surgeons costs about $54,000 a year in Montgomery County, according to the Ohio Department of Insurance.
Today Fallang operates in the private hospital he founded with his wife, Lynn, in 2004, the Riverview Health Institute at Elizabeth Place.
Fallang said Riverview is covered by commercial insurance, but he declined to say if he's covered by malpractice insurance.
"To be perfectly blunt, I don't believe that it's my responsibility to make my patients rich if there should be an adverse occurrence," Fallang said. "My responsibility is to take the best medical care of them that I know how.
"No one can do surgery with zero complications, it's just not physically possible," he said. "Medical malpractice lawsuits, 95 percent of the time, are about money, they're not about malpractice."
Bariatric surgery can involve a variety of procedures, but the general idea is to make the stomach smaller. The surgery is not without risks. Potential post-operative problems include leaks and infections, fatal blood clots and follow-up surgeries to correct complications. Various sources put the mortality rate at 0.3 percent to 0.5 percent, or roughly one death for every 200 patients.
Dr. John Maguire, medical director for the Weight Loss Surgery Center at Miami Valley Hospital, called the specialty a "high-risk liability practice."
"Probably because someone can be morbidly obese and look reasonably healthy (but) they're teetering on the brink," he said. "They appear healthy and if they have a complication it's like, 'Well, I was fine before I had the surgery.' I've had several patients die of heart attacks while they're waiting for approval for surgery.
"To put it in context," Maguire said, referring to Fallang, "I've had a lot of malpractice suits filed (10 in Montgomery County, court records show) that were dropped because there was no merit."
'I didn't kill his wife.'
Fallang's supporters include Diana Spencer, 52, of West Alexandria in Preble County.
Spencer, 5-feet-1, said she weighed nearly 300 pounds and was wheelchair bound prior to her gastric bypass surgery in October 2004. At 175 pounds today, she's still heavy, but walking and active again.
Patrick Wilson can't remember how much his wife weighed, but said she sought the surgery in 1999 to lose weight and get a handle on her diabetes.
She lost around 120 pounds initially, Wilson recalled, but problems soon arose. Fallang said he tried to talk the Wilsons out of a second operation, that it was risky, but he relented.
He said the complication that led to Linda Wilson's death — a rare, massive blood clot called a hemobezoar that obstructed her bowel — was beyond his control.
Wilson believes otherwise, and his claim is supported in a court affidavit signed by a top weight-loss surgeon, Philip R. Schauer, director of the Cleveland Clinic's Bariatric Surgery Program, who could not be reached for comment.
Wilson can't find a lawyer to take his case, so he refiled his lawsuit July 3 without one — forcing Fallang to defend himself again.
"I'm looking for him not to practice no more," Wilson said.
He may not have to wait for long.
"Surgery is what I'm good at," Fallang said. "But the lawyers and the crooked malpractice system — the industry, the courts — have about finished me off."