State medical agency ignored
tough cases for years

By Doug J. Swanson

The first baby died in 1990. Christopher Frazier, his brain swollen and bleeding, lived for only a few minutes.
The second baby died in 1993. Lance Lancaster Jr., deprived of oxygen in the womb, had no brain activity when he was born.
The third baby died in 1994. Alexandra Katada's spine was so badly injured in delivery that she survived for just eight months, some of it in an iron lung.
The fourth baby died in 1995. Kathryn Fay became lodged in the birth canal, and she was born without a pulse.
Dr. Michael Stephen Phillips of Richardson delivered every one.
In each instance, the parents said that Dr. Phillips committed grave errors that caused or contributed to their infant's death, accusations that the doctor denied.
They all filed complaints against him with the Texas State Board of Medical Examiners, the agency that licenses and regulates physicians. Their goal was to remove Dr. Phillips from practice.
"The investigator told me the state board was going to see that he lost his license," said Timi Frazier, mother of Christopher.
That didn't happen. In fact, nothing happened.

Twelve years after the first child died, state regulators have yet to announce whether they will punish or exonerate Dr. Phillips. As its rules require, every three months the board sends the families a letter informing them that the matter is still under investigation.
What the board hasn't told them is that the case -- like dozens of others at agency headquarters in Austin -- was long ago boxed up and abandoned.
Dr. Donald Patrick, the new executive director of the state board, said last week that overburdened agency lawyers have for years been shunting aside difficult, complicated investigations.
"They just progressively fell behind," he said. Under pressure to close cases quickly, they favored the relatively neat and simple over the time-consuming and arduous.
"They had to keep up their numbers," Dr. Patrick said. "Naturally, the cases they would set aside to do tomorrow were the tough ones. . . . There are 40 cases, and they've been there up to five years."
These often were contested matters that included allegations of serious medical errors. Thus, an undisclosed number of physicians accused of injuring -- or accidentally killing -- patients have remained untouched by the agency whose declared mission is to protect the public.
By state law, the board cannot release information on current investigations. Because the ignored cases were technically still active, the agency was able to hide its lack of performance behind confidentiality.
The families who complained about Dr. Phillips have tried for years to determine why the board was taking no action, but no one in the agency would provide satisfactory answers, they said.
"There's such a code of silence," said Robyn Lancaster, mother of Lance.
Earlier this month, Dr. Patrick acknowledged what the families had long suspected about the Phillips investigation. "The case fell through the cracks," he said.
This was discovered, Dr. Patrick said, after questions regarding Dr. Phillips from The Dallas Morning News.
Dr. Phillips, who now practices as a gynecologist at a 60-bed community hospital in South Texas, declined to comment.

"This makes me sick"
The agency's neglect of their complaints left the heartbroken families feeling further aggrieved. "This makes me sick," said Mrs. Frazier. "It stuns me that there was no repercussion."
Sandra Katada, mother of Alexandra, struck a bitter note. "We never imagined that nothing would be done. The feeling we get now is that the board is not here to protect the public. They're here to protect the doctors."
The board has 18 voting members, 12 of whom are physicians, and a staff of about 100. Agency officials say that although the board may have been perceived as favoring doctors over patients 10 years ago, it now strives to be impartial.
"The board members themselves couldn't be better," Dr. Patrick said. "I think they're doing damn well right now, but they need more help from the agency [staff]."
With the Phillips case, even the notoriously slow state civil courts moved faster than the board of medical examiners. In the years since the deaths, three of the families have filed and settled suits against Dr. Phillips, with one settlement reaching $1 million.
The court actions, however, had no effect on Dr. Phillips's license. Only the state board has the power to revoke, suspend or restrict doctors' certifications.

Board delays
The medical board's disciplinary process has long been marked by delays.
For example, in 1998 the board sanctioned Dr. James Douglas Chepko by requiring that he take special courses in emergency medicine and cardiac life support.
But the ruling came seven years after the incident for which Dr. Chepko was being cited -- his alleged failure in 1991 to identify and treat a stroke victim in a Dallas-area emergency room.
Also in 1998, the board accepted the surrender of Dr. Harvey G. Herberman's medical license. The agency had accused the El Paso doctor of performing questionable treatments for bladder and prostate tumors -- some 90 surgical procedures that were unsupported by lab tests.
The board's action arrived late. Nearly all the alleged misconduct occurred in 1993 and 1994. And Dr. Herberman's license had expired two years before he surrendered it.
Last September the board reprimanded Dr. Eric Scheffey of Houston over allegedly unnecessary surgeries -- some of which were performed more than 10 years ago.
Such sluggishness has fostered among patients' advocates a sense that the board serves little purpose.
"Going to the state board is largely a waste of time," said Dallas medical malpractice lawyer William B. Curtis. "The information you send them goes into a black hole."
In the past, the agency has blamed its slowness on staff attorney turnover, funding shortages, procedural demands and doctors' stalling tactics.
This marks the first time, however, that the board has admitted its staff deliberately ignored important cases.
"We're working on them now," said Dr. Patrick, who became executive director in September. "Part of the problem is that there are boxes full of stuff."
He hopes to have someone with medical and legal training -- a nurse-paralegal, for example -- "wade into those cases and make some sense out of them."
Dr. Patrick said the setting aside of "tough" investigations began several years ago. But Dr. Bruce Levy, executive director of the board from 1993 to 2000, said he was unaware of such tactics.
"There was a priority system when I was there," Dr. Levy said. Cases that involved severe patient injury were assigned high priority, and "if the case was of high priority, they were to do it."

Options for doctor
Typically, a physician against whom complaints have been filed meets with two or three board members for an informal settlement conference. The meeting is a closed-door plea-bargaining session in which the doctor and the board agree on the sort of punishment the physician will accept. If they reach no accord, the case may go to a state administrative hearing.
The administrative judge makes a recommendation for punishment -- or dismissal -- and the full board then votes on the matter. Physicians can appeal board decisions to state district court.
Many of the forgotten cases will -- once they are unboxed and re-examined -- go before administrative judges. But reviving cold material is difficult.
"Now, of course, we can't find the witnesses, and we have that kind of hassle," Dr. Patrick said.
Mrs. Katada, for one, remains ready to tell her story again.
She was pregnant with twins in late 1992. She and her husband, Shigeru, a telecommunications systems analyst, chose Dr. Phillips from a handbook of insurance-company providers.
Dr. Phillips, then 43, had sufficiently impressive credentials. A graduate of the Baylor College of Medicine, he was a board-certified obstetrician.
Mrs. Katada said Dr. Phillips told her, after a sonogram, that the first twin was in a conventional position in the womb, but that the second lay in a breech -- or head up -- position. Actually, Mrs. Katada said she learned after the birth, the second twin lay crossways.
"He said he had done this kind of delivery many times," she recalled. "He was not prepared for this delivery to be a problem at all." The possibility of a Caesarean birth "never came up," she said.
On May 27, 1993, Mrs. Katada went into labor. At Baylor Richardson Medical Center, the birth of the first twin, Lauren, was normal. But Alexandra's, because she was still in a transverse position, was not.
The doctor attempted to manipulate the infant into a breech position, Mrs. Katada said. "Then he just reached up, grabbed her foot and began pulling. . . . Her head got stuck. Then he used the forceps to pull her out."
During these maneuvers, medical testimony later showed, Alexandra's spinal cord was stretched, causing severe nerve damage. She was not breathing when born, and she had to be resuscitated. Later, it was determined that she was virtually paralyzed from the neck down.
The Katadas soon took the babies home. Though Alexandra did not have normal movement of her arms or legs, she appeared healthy otherwise. Then at the age of about 7 months, she caught a cold.
The trauma to her spine had injured the nerves that stimulate growth and expansion of the rib cage, according to testimony from her pediatric neurologist, Dr. Steven L. Linder. "When you have a problem like this," he said in a deposition, "the children essentially suffocate."
The cold progressed to pneumonia. Doctors at Medical City Dallas Hospital placed Alexandra in an iron lung to help her breathe. "But they just couldn't clear up the pneumonia," Mrs. Katada said.
Alexandra died on Feb. 14, 1994, of respiratory failure.
"The nurses and therapists told us we needed to do something about this, that this wasn't supposed to happen," Mrs. Katada said. The family retained Dallas medical malpractice lawyer Les Weisbrod and filed suit against Dr. Phillips.
The suit alleged that Dr. Phillips failed to perform tests that would have shown the peril to Alexandra, and that he should have been prepared to perform a Caesarean section.
It was settled in 1996 for $1 million, the limits of the doctor's insurance coverage.
The Katadas then complained to the state medical board. Their attorney encouraged them but warned them to expect little. "Basically, they don't do anything," Mr. Weisbrod said. "It's been that way for years."
In a 1996 letter to the board, Mrs. Katada noted that Dr. Phillips had encountered trouble with other births. "I only wish I had known about this man before my husband and I put our complete trust in him," she wrote. "Words cannot convey our heartbreak."

Complaints detailed
Later that year, in a conference room at Medical City, the Katadas met with a state board investigator, along with the parents of Lance Lancaster Jr., Christopher Frazier and Kathryn Fay. The Fraziers and Fays had also filed and settled, for undisclosed amounts, suits against Dr. Phillips. The Lancasters had intended to sue, Mrs. Lancaster said, but they neglected to file within the two-year statute of limitations for medical malpractice.
Each family provided the board investigator with details of their complaints against the doctor. The Lancasters, for example, believed he had ignored major signs of problems, such as copious vaginal bleeding and extreme abdominal pain late in the pregnancy.
In the birth of Christopher Frazier, the infant's shoulder was stuck behind the mother's pubic bone, a condition known as dystocia. The family alleged that when Dr. Phillip surgically fractured the pubic bone, to create more room for delivery, he fatally injured the baby's brain.
Kathryn Fay likewise presented with shoulder dystocia. But a Caesarean section could not be done immediately because, the family claimed, Dr. Phillips had allowed the anesthetist to leave the hospital.
In court documents related to the lawsuits, Dr. Phillips has said that the deaths of the infants were unavoidable and that he operated within accepted standards of care.
The families, however, believed they were making a persuasive argument to the medical board. "We just thought surely they would see what he had done, and they would take his license," Mrs. Katada said. "We were so naïve."
In October 1997, Mrs. Katada and Mrs. Lancaster attended Dr. Phillips's settlement conference with the board in Austin. "We were allowed to go in, make our statement, and leave," Mrs. Katada said. They were not permitted to observe the board members' questioning of Dr. Phillips, or their deliberations.
Dr. Phillips apparently did not agree with the punishment proposed by the board. But before the case could be prepared for an administrative hearing, it was pushed aside by board staff and forgotten.
The families were told nothing.

Left North Texas
Dr. Phillips eventually left North Texas. A spokesperson for Baylor Richardson said last week that Dr. Phillips is no longer affiliated with the hospital, but Baylor would not disclose when or why he departed. From there, the doctor practiced in Midland, where he declared bankruptcy in 1996, and then Bell County in Central Texas. Two years ago he joined the staff of Cuero Community Hospital, about 60 miles east of San Antonio.
"I'd prefer not to talk about it," Dr. Phillips said when asked about the state medical board case. He also asked the Cuero hospital not to release a copy of his photograph to The News.
Jim Buckner, administrator of the Cuero hospital, said he was aware of Dr. Phillips's past but that he had no comment on it. "He's credentialed with us and does a good job," Mr. Buckner said.
He added that Dr. Phillips provides gynecological services but does not deliver babies.
Dr. Patrick, the medical board executive director, said the Phillips case is now being prepared for an administrative hearing.
As for the other 39 or so abandoned cases involving other physicians, Dr. Patrick said, "we're planning to get them all done within the next year."
Also, he said, the board is reorganizing and expanding its litigation staff to make sure such problems do no occur again.
One morning this month, Mrs. Katada sat at the kitchen table of her McKinney home, and held the latest form letter from the state board, which told her only that the case is still pending. She recalled speaking by telephone with a board investigator concerning the case about six months ago.
"She said she would get on it," Mrs. Katada said.
Also on the table was a family photo of Alexandra in the iron lung. Her head rests on a pink pillow as she sucks on a pacifier. A small stuffed animal hangs just above her face. Clear oxygen tubing trails over her cheek and into her nose.
"We had hoped this would make a difference, going through all this with the board," Mrs. Katada said. "It seems like they don't care, and that's what's hard to accept.
"We just thought it was so blatant, so obvious what happened. We couldn't imagine why it was dragging on so long."

This story originally appeared in the April 28, 2002 issue of The Dallas Morning News. Mr. Swanson can be reached at dswanson@dallasnews.com.)