COLUMN ONE : Boy's Death Cracks Shell of Privacy : One doctor could not abide the way Richard Leonard died during surgery. He went after the anesthesiologist, and the medical world's code of confidentiality gave way to a case of manslaughter.

By BARRY SIEGEL

Aug. 25, 1995 12 AM PT

TIMES STAFF WRITER

DENVER — Six days after their son’s death, the phone rang just as Jay and China Leonard were about to go out to dinner. They’d buried 8-year-old Richard the day before, with an organist playing the music from “Jurassic Park” for a gathering of 300 grieving friends and relatives. Then they’d come home, still railing at what they believed to be a senseless twist of fate.

On July 8, 1993, Richard had died on an operating table during minor ear surgery at Denver’s St. Joseph Hospital. Cardiac arrest due to potassium and carbon dioxide poisoning had been the immediate cause. Ever since, doctors, lawyers and administrators privately had been examining anesthesiologist Joseph Verbrugge’s role in Richard’s death. Charges of gross negligence had been leveled--charges that Richard died because Dr. Verbrugge failed to connect a crucial temperature probe, failed to monitor his patient’s vital signs, failed to respond to his increasingly dire condition, failed to remain awake or alert during the surgery. Inside St. Joseph--one of Colorado’s best hospitals--an investigatory committee had been formed, summary suspension of Verbrugge considered.

Jay and China Leonard knew nothing of this, though. As they understood it, their son had died from a rare metabolic reaction to the anesthesia. That was all they’d been told, all they imagined.

On the phone now, Jay heard an unfamiliar man’s voice. “Mr. Leonard,” the voice advised, “I have strong reason to believe that what happened to your son was not an act of God. You should talk to your attorney.”

It didn’t sound like a crackpot to Jay.

“I expect you’re not going to give me your name?” Jay responded.

The man hung up. Jay, shocked, sat holding the phone.

He considered himself reasonably sophisticated, a Ph.D. in geology with a thriving software business. All the same, he’d approached the medical system with his guard down. He’d believed Verbrugge when the shaken anesthesiologist, on the day of Richard’s death, told him his son had died of a rare genetic condition called malignant hyperthermia, MH. Since then, he’d never believed otherwise.

He still didn’t, even after this anonymous phone call. When reporters from the Denver Post and Rocky Mountain News called half an hour later, saying they were doing stories about Richard’s death, Jay repeated what he’d been told at St. Joseph.

“An adverse enzyme reaction to the anesthesia,” he earnestly told the reporters. “It causes your body temperature to rise.”

The resulting articles the next day announced an “inquiry” into Richard’s death but shed little light beyond Jay’s words. Hospital spokeswoman Pat Riley would “say very little,” the Rocky Mountain News wrote, citing “patient confidentiality.” She “would not identify the physicians involved.” But she did “want to express our most deepest sympathies to the family.”

Alarms finally started ringing in Jay’s mind when he read these articles. Why was there an inquiry, why was Richard’s death on Page One? This metabolic condition called MH was a 1-in-15,000 occurrence. If this was something you usually died of, in a city the size of Denver, that meant there should be a death every--what?--2 1/2 weeks?

It didn’t make sense. Jay decided to learn more. That weekend, he visited the University of Colorado medical school bookstore and bought anesthesiology textbooks. In one, he found a whole protocol about how to treat MH. If MH is detected early enough, it advised, chances of survival are almost 100%.

Jay stared at the words, reread them: “When MH is diagnosed early and treated promptly, the mortality rate should be near zero.”

On Monday, Jay and China started interviewing lawyers.

Peer Review System

It wasn’t entirely surprising that the Leonards went home from St. Joseph ignorant of what happened to their son. It wouldn’t have been terribly extraordinary, for that matter, if the Leonards had never learned what happened in Operating Room 7.

A doctor’s working life, after all, is largely free of external supervision or scrutiny. The profession is largely self-monitored by confidential hospital peer-review committees that face precise legal mandates and constraints.

Such private self-policing does have its advantages. Peer review protects patients, it is fairly argued, by encouraging everyone to speak openly and say what they think, without threat of exposure or punitive response or intrusion by lawyers. If you violate confidentiality, it’s been shown, many won’t come forward, problems won’t be revealed.

Peer review, however, doesn’t always work as well in practice as in theory. Doctors often resist identifying incompetent colleagues for fear of lawsuits and reprisals. They know who the few bad doctors are but shrink from the hassle of confrontation.

A 1991 Harvard University study of deaths in 51 New York state hospitals, when extrapolated to the country at large, indicates 80,000 deaths each year are due to doctors’ mistakes. Yet only 2,000 doctors are disciplined each year by state medical boards. Many more presumably draw some sanctions, but they remain wrapped in the confidentiality of internal peer review.

To better monitor this situation nationwide, the federal government in 1990 opened the National Practitioner Data Bank, a computerized database that keeps records on license revocations, restricted hospital privileges, malpractice judgments and other disciplinary actions. It’s accessible only to hospitals, though, not individual doctors or the public. What’s more, it’s not overly comprehensive. The first year in operation, the data bank received only 750 reports; the second, 1,000.

Problem doctors sometimes avoid database entry by resigning from hospitals before peer review investigations begin. Hospitals sometimes impose 29-day suspensions, thus avoiding the requirement to report suspensions of 30 days or more. Not infrequently, hospitals simply push problem doctors out the door without formal charges; the hospital avoids a messy situation, while the doctor goes off to practice elsewhere with an untarnished record.

In the initial hours after Richard’s death, it is possible to see hints that such familiar veils of privacy were descending. If they were, though, they didn’t make it all the way down.

Although Jay and China Leonard didn’t know it then, the mysterious phone call they received the day after Richard’s funeral was an early sign of an uncommon uprising within the medical community.

As chief of anesthesia for Kaiser’s Colorado Permanente Medical Group, Dr. Michael Leonard (no relation to Jay and China) felt a sense of responsibility for what had happened to Richard. Jay and China were enrolled in Kaiser, but with its own staff fully booked, Kaiser had arranged for an independent group of doctors to provide an anesthesiologist for Richard’s operation. That group had assigned Verbrugge.

So on the evening of Richard’s death, Mike Leonard began to investigate. That night, he spoke by phone with two Kaiser anesthesiologists who’d initially responded to the code when Richard’s heart arrested. At 8:30 the next morning, he met with nurse Delia Garcia, who’d spent some time in the operating room during Richard’s attempted resuscitation.

Then the hospital clamped down.

According to Mike Leonard, St. Joseph in effect “sequestered” nurses Mary Kay Harrell and Karen Latson, who’d attended at Richard’s operation. Don’t talk to Dr. Leonard or anyone from Kaiser, he says a risk management officer instructed the nurses. If you do, you’ll be fired.

It was a typical response from a hospital in this situation, and at least from a lawyer’s point of view, a correct one. No hospital attorney wants witnesses making comments that could compromise the integrity of the procedure--that could open the door to civil court challenges. The nurses weren’t told only to avoid Kaiser, a St. Joseph lawyer explains; they were told not to talk to anyone.

The response nonetheless disturbed Mike Leonard.

To protest, he called Dr. Tray Styler, chairman of St. Joseph’s anesthesia department. He related what he understood at that time about Verbrugge’s responsibility for Richard’s death. He also expressed concern about the nurses’ sequestration. Styler acknowledged that he’d heard the same complaints and was in the process of investigating them.

Later that morning, Mike Leonard and his Kaiser supervisor met with St. Joseph medical director Dr. Bruce Jensen. “Essentially in that meeting we were informed, because of the need for confidentiality, that they preferred to investigate the matter themselves,” Dr. Leonard testified at the subsequent hearing into Richard’s death.

As he understood it, the hospital would be convening an investigatory committee shortly and would be meeting that afternoon to decide whether to summarily suspend Verbrugge. But Dr. Leonard wasn’t comfortable with letting St. Joseph’s internal process run its course. What with reports, hearings and challenges, such proceedings sometimes took months, even longer.

Then 41, Dr. Leonard was considered by colleagues a deliberate and restrained man, devoted to his young children, partial to mountain-climbing and skiing. He’d studied at the University of Missouri, then done his internship and residency at Beth Israel Hospital-Harvard Medical School, before coming to Denver in early 1988.

He thought long and hard about what next to do.

The cardinal feature of anesthesia, he believed, was to be vigilant. You take somebody’s life in your hands and put him to sleep, you have a tremendous obligation to care for him. If you don’t feel you can do it, you don’t go into the O.R. that day. Verbrugge’s unresponsive conduct personally offended him; he also had serious concerns about this doctor’s safety.

On Sunday, July 11, three days after Richard’s death, Leonard typed a three-page, single-spaced letter to the Colorado State Board of Medical Examiners. “Please find enclosed information concerning the recent death of an 8-year-old boy during relatively minor surgery at St. Joseph Hospital,” he began. “Given the extremely serious nature and totally unacceptable level of care delivered in this case, I felt morally obligated to bring this matter to your attention rapidly.”

At this early date, Leonard had some of the details and issues wrong, but in his fundamental conclusions, he foreshadowed what a judge and the medical board months later would conclude: “A major failure of vigilance and observation on the part of this anesthesiologist is a virtual certainty . . . ,” he wrote. “It is absolutely clear that an appalling level of neglect and substandard anesthetic care in this case caused the death of this innocent child.”

Leonard delivered his letter to the board on Monday morning. By Wednesday, it was in the hands of Robert Spencer, an assistant state attorney general.

As counsel to the board’s investigatory and prosecuting arm, Spencer usually hears about doctors’ transgressions through malpractice settlements, or from hospitals after a sometimes lengthy peer review process. He wasn’t accustomed to getting a letter such as Leonard’s. Although by law it was obligated, it was highly unusual for a doctor actually to speak out in this manner.

“Wow!” Spencer thought as he read Leonard’s words. This is pretty strong.

Only rarely, maybe six times a year in Colorado, did the board summarily suspend a doctor before a hearing. This situation, Spencer thought, suggested such a course.

Before acting, though, Spencer wanted to assess the person who’d written the letter, to make sure Leonard was reliable. When they met, Spencer found him considered, unassuming, reasonable. Here, he decided, was a horse who would cross the stream with them.

Typically, the Board of Medical Examiners would let the hospital suspend Verbrugge and conduct its own peer review before it stepped in months later. But Leonard’s involvement now greatly accelerated the process. Accelerated it--and also altered its outcome.

Medicine is so much a matter of subjective judgment, after all, and so much a mystery to lay persons. By speaking out, by providing his authority, Leonard gave Spencer and others the foundation to act.

“I might not have been as sure about this case without Leonard,” Spencer observed later. “Once I met and spoke with Leonard, I was convinced this was a very serious case.”

The assistant attorney general was so impressed at their first meeting, he wanted Mike Leonard not just as his whistle-blower but also as his expert witness.

The doctor readily agreed.

You’ll be on the spot, Spencer warned. The defense will try to impeach you, to attack your motives and knowledge.

Mike Leonard didn’t hesitate. “That’s part of being a citizen in the medical community,” he told Spencer.

Cracking the Case

Jay and China were stunned when they finally began to grasp what had happened to their son in St. Joseph’s Operating Room 7.

Their education, sparked by Jay’s reading of anesthesia textbooks, accelerated when Assistant Atty. Gen. Spencer filed a formal complaint against Verbrugge one month after Richard’s death. Spencer had found no proof of substance abuse--Verbrugge had requested a drug test immediately after Richard’s death, and tested negative. But with St. Joseph’s investigatory file, Mike Leonard’s analysis and his own interviews in hand, Spencer had pieced together a story that fairly shouted gross negligence.

Jay and China still didn’t know about Verbrugge’s troubled background, though. Nor did Bob Spencer. Because of peer review confidentiality, no one at St. Joseph had shared the fact that Verbrugge’s record included a number of incidents of abrasive or inattentive behavior during operations, including half a dozen times where colleagues believed he’d fallen asleep. Publicly, St. Joseph still had “no comment” about the charges against Verbrugge.

In the late fall of 1993, seeking to buttress his case, Spencer finally asked St. Joseph if there was a peer review file on Verbrugge. As lawyer for the board of examiners, he had a right to see it.

Yes there was, came the reply.

Can I have it? Spencer asked.

Please subpoena it, the hospital said.

To Spencer, St. Joseph wasn’t being uncooperative; this was just how the process played itself out.

When he opened Verbrugge’s file, Spencer’s eyes widened.

It contained actions against Verbrugge that weren’t reportable, for otherwise the Board of Medical Examiners would already have heard of them. Still, Spencer observed later, “there’s lots of good peer review action that can be done before the reportable level.”

Jay and China hardly knew how to feel when Spencer, in December, 1993, amended his complaint to charge Verbrugge, on six specific dates from 1990 to 1993, with failing “to remain awake and otherwise alert and vigilant” during surgery. They felt even more unsettled a month later, when Spencer briefed them about what they’d hear at Verbrugge’s coming disciplinary proceeding. For the first time, Jay and China learned of Dr. Michael Leonard’s critical role.

By and large, they still believed very few doctors were bad. But they were staggered by the tremendous resources summoned to protect those few who were. In other fields, you’d just weed them out. Why were the doctors so clubby? It happens in all fields, people go bad. You flush them out.

Believing they could do just that, the Leonards began to campaign actively on several fronts. They urged that Verbrugge’s license be revoked. They raised questions about a possible criminal prosecution. They laid plans to organize and finance a private national database on problem doctors.

For a while, it looked as if the Leonards could achieve both solace and reform.

Midway through the state’s nine-day disciplinary proceeding against Verbrugge in February, 1994, Jay and China watched Mike Leonard convincingly dismiss the basic dispute over Richard’s death. Had he died of MH, or because an undetected mucous plug blocked his exhalation of carbon dioxide? It didn’t matter, Leonard contended; either way, it was the lack of response that killed Richard. “If I may make a little personal statement here,” he said, “I think we spent a lot of time talking about technicalities . . . . The fundamental issue for me is the 30-to-45 minute period of complete negligence during which this child got into trouble . . . .”

At the proceeding’s conclusion, Jay and China watched Mike Leonard unequivocally declare Verbrugge “not safe to practice anesthesia . . . . I believe the care in this case was so abhorrent I would be very hard-pressed to recommend that this gentleman get the opportunity to do this again.”

In May, 1994, they watched Administrative Law Judge Judith Schulman, who presided at the hearing, embrace Mike Leonard’s analysis utterly. They watched her find in Verbrugge’s record multiple instances of “substandard” and “grossly negligent” conduct and conclude that Verbrugge’s “lack of vigilance in all likelihood directly resulted in [Richard’s] death.”

Last December, they watched the Colorado State Board of Medical Examiners uphold Schulman’s every finding and strip Verbrugge of his license.

Finally, in April, they watched the Denver district attorney’s office file reckless manslaughter charges against Verbrugge. What happened in Operating Room 7 was not just a bad mistake or even gross negligence, declared Chief Deputy Dist. Atty. Diane Balkin. What happened was conscious disregard for a person’s life.

The Leonards had witnessed all they’d hoped for. To their surprise, though, it didn’t provide what they’d expected. They’d imagined feeling good once the proceedings were over, once Verbrugge’s license was revoked. Instead, they felt hollow.

Solace was still beyond their reach. So, it would prove, was reform.

Growing Scrutiny

Criminal prosecutions against doctors for their professional conduct are extremely rare, but they’ve recently become a little less so.

In March in New York, a physician was convicted of reckless endangerment in connection with the death of an elderly nursing home patient. In April, the Milwaukee district attorney brought reckless homicide charges against a medical laboratory accused of misreading the Pap smears of two women who later died of cervical cancer. Two weeks ago, a New York City obstetrician was convicted of second-degree murder in the death of a woman after an abortion.

These, combined with Verbrugge’s prosecution, have greatly alarmed much of the medical profession. Talk abounds about trends and implications--a diminished trust in doctors because of “marketplace medicine,” an atmosphere that convinces prosecutors they can make criminal charges stick. The American Medical Assn. has been inundated with letters from agitated, scared doctors.

Criminal prosecutions, doctors’ groups contend, will “irreparably chill” the practice of medicine. That, in fact, was precisely what Verbrugge said one day recently, talking in his lawyer’s office.

His manner a combination of geniality and bluster, Verbrugge blamed his problems mainly on his irascible treatment of nurses. He should have connected the temperature probe and he should have diagnosed MH quicker, he allowed, but these were errors, not intentional acts.

“If we have to run scared of criminal prosecution every time we treat a patient,” Verbrugge said, “that carries a lot of implications. Especially if the definition of criminal steps over the boundaries of professional malpractice. Doctors are human. I’m human. In malpractice suits, you admit to mistakes. But is that criminal?”

There are many who believe the general themes sounded by Verbrugge have some merit, even if they don’t fit well with the details of his particular case. There are no distinct lines separating malpractice from manslaughter, after all. It’s a subjective judgment that derives as much from community values and visceral instincts as from the law. “I can’t articulate why we filed,” Deputy D.A. Balkin said recently. “Decisions are made.”

No doubt this vulnerability to the D.A.’s discretion is one reason Verbrugge’s criminal prosecution has roiled the Denver medical community and turned a good number of doctors against the Leonard family. Some perceive Jay and China as having inspired and lobbied for the prosecution; some have helped pay Verbrugge’s legal fees. Even their own family doctors have acted coolly, Jay Leonard says. “They feel we are going too far. They say they’re scared at the prospect of being charged as criminals for making mistakes.”

Fueled by such concerns, the story of Richard Leonard’s death has now evolved into a familiar courtroom skirmish full of wily lawyers, ingenious motions and artful strategies. In a realm where so much is shaded and subjective, everyone is maneuvering for favorable position. Even St. Joseph Hospital has finally ventured beyond its veil of legally mandated confidentiality, albeit reluctantly and cautiously.

“I just wish this would go away,” sighed Judith Swanson, the hospital’s vice president for planning and marketing, as she arranged for a reporter’s visit. When the hospital’s president, Sister Marianna Bauder, appeared for a brief interview, she did so with a hospital lawyer at her side, and a tape recorder.

She talked of how “terribly unfortunate, terribly sad” Richard’s death was. She talked about St. Joseph’s quality assurance and re-credentialing process. She wondered how you go beyond “counseling and admonishing” a doctor who’s never had a “bad outcome” in years of practice, when doing so requires reporting him to boards and data banks.

The hospital cooperated, responded, conducted its own investigation, Sister Bauder pointed out. The hospital made changes--a temperature probe is now required, anesthesiologists must chart more frequently, Verbrugge will never practice there again.

Peer review remains as is, though. Peer review protects patients by allowing all to speak openly. Peer review has worked well over St. Joseph’s 122 years. You should not judge the system by one bad case.

In the end, Sister Bauder said, she just “was not sure” what they could have done differently.

Sister Bauder isn’t alone. The larger question of peer review policing, ambiguous by nature and much influenced by powerful political lobbies, will not likely find resolution in the aftermath of Richard Leonard’s death. Culpability for what happened in Operating Room 7 certainly will remain focused narrowly on Joseph Verbrugge.

It is no one’s job, after all, to point fingers elsewhere. Broader accountability is a “difficult question,” observe some of those who have pursued Verbrugge. How to deal with a troubled professional? That’s hard for a hospital, they say. That’s hard for the medical community.

It is this attitude, finally, that leaves Jay and China Leonard still so disturbed two years after Richard’s death. Amid all the compassion and intellect in the medical community, they ask, where is the moral courage?

Verbrugge was an accident waiting to happen, Jay and China suggest. Why hadn’t St. Joseph somehow stopped Verbrugge well before Richard’s operation?

What about the surgeon and two nurses in Operating Room 7? It’s hard to believe they stood by and didn’t intervene. Richard’s temperature was 108 when he died. Those nurses--why didn’t they grab Verbrugge’s lapels, yell “Wake up”? Why didn’t they tell the surgeon? Why didn’t the surgeon take charge? They must feel guilt, they must feel regret.

What of Verbrugge’s colleagues and partners? If Verbrugge couldn’t recognize his own problems, someone else was obliged to do so for him. If doctors don’t want lawyers and criminal prosecutions, then they must police their own. They must take responsibility.

“Not peer review, lawyers, litigation, hearings,” Jay Leonard said recently. “I’m talking his partners, his colleagues. They must pull him aside, say, ‘You’ve got problems.’ It’s not punitive; that’s not the issue. There’s the legal system, there’s the administrative system, then there’s the human system. It’s the human system that really failed in this case.”

The Leonards have memorialized Richard with a display in his honor at the city zoo he loved so much and with an annual award at his school. They push on with plans to launch a national database of problem doctors. They consult regularly with the district attorney’s office about Verbrugge’s prosecution. A preliminary hearing is scheduled for next month; the trial will likely begin near the end of the year.

Jay and China still long for closure, though, without knowing quite what it requires. They’ve even tried reading about an afterlife. Nothing has worked.

“It doesn’t change anything,” China said. “Richard is still dead.”

Richard is still dead, and the medical system still polices and licenses as usual. It’s for this reason, no doubt, that Joseph Verbrugge in March, 1994, a month after his censorious disciplinary hearing, felt free to apply for a medical license in New Mexico. It’s also for this reason that Jay Leonard, learning of the application, found himself obliged in February to write the New Mexico board--to send them documents, to tell his story, to urge a denial.

It is likely the Leonards will prevail; it is likely New Mexico will pay heed to Verbrugge’s record. License revocations in one state, however, don’t automatically preclude licensing in another state.

Each case is looked at individually by the New Mexico board, its executive secretary remarked recently. That can take a year or more to be decided. As of July, she reported, Verbrugge’s application was still pending. It was on a back burner, probably awaiting final action in Colorado. Confidentiality, she explained, prevented her from saying more.

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Editor’s Note: About This Story

The accounts in this story of Richard Leonard’s operation, and of various meetings, conversations and reflections surrounding it, are drawn from numerous sources. They include sworn testimony at Dr. Joseph Verbrugge’s disciplinary proceeding, the initial decision of the presiding administrative law judge, the final decision of the Colorado Board of Medical Examiners, exhibits and documents included in the proceeding’s public record, reports from Dr. Verbrugge’s psychiatrists, the deposition of Dr. Patrick McCallion, confirmations from St. Joseph Hospital lawyers and administrators, and direct interviews with many of those involved.