Baltimore Jury Finds Cardiology Practice Guilty of Fraud
By Tricia Bishop, The Baltimore Sun
Dec. 22–In a civil case that highlights growing competition in the health care industry, a Baltimore County jury has levied a $5-million judgment against Midatlantic Cardivascular Association, the area’s largest cardiology practice, finding that two of its doctors committed fraud when they steered a patient to a surgeon employed by the practice rather than his own surgeon, who belongs to a rival group.
In its verdict, the jury found that Dr. Mark G. Midei, a cardiologist who is also the director of the cardiac cathertization lab at St. Joseph Medical Center in Towson, and Dr. Jeffrey E. Sell, a cardiac surgeon, had deliberately misled a patient to believe his heart surgeon was not available to perform a bypass operation.
It also found that Dr. Sell committed battery because he never had the right to operate on the plaintiff, Harry R. Bargar. It cleared both of malpractice. St. Joseph had been named a defendant in the case, but the jury cleared it of any wrongdoing and awarded it court costs.
Bargar, a retired York, Pa., truck driver, and his wife filed suit last year.
Drs. Midei and Sell released statements through a spokeswoman for Midatlantic, which plans to appeal.
“I’ve done close to 30,000 procedures on patients and have never been sued until now,” said Dr. Midei, who said he has never talked to the plaintiff in the case. “I was devastated by the verdict, but am happy to have my friends and colleagues who know the truth stand by me.”
Sell said “the most important thing to me is caring for my patients. This man got excellent care for a complicated problem, and we were totally honest with him at every step along the way.”
Experts said the case underscores potential conflicts of interest in the medical-specialist industry as various groups compete with one another for its billions of dollars in revenue.
The competition is particularly fierce among heart specialists. Midatlantic has been embroiled in a five-year turf war with the group to whom Bargar’s own surgeon belonged, Cardiac Surgery Associates of Towson, which sued Midatlantic in 2001. That case has been before the Maryland Courts of Appeal for two years.
Such rivalries have caused some to worry that cardiologists may use their patient-referral power to manipulate cardiac surgeons. In 2000, an ethics committee within The Society of Thoracic Surgeons wrote in a position paper that “cardiac surgeons may be more vulnerable to this practice of professional extortion than any other sub-specialty in surgery because of the logistics of referring patients with cardiac disease.”
A cardiac surgeon’s livelihood is almost entirely controlled by cardiologists, who are responsible for referring their patients to operating doctors.
“It’s a very lucrative field, and you essentially have a limited number of patients who need that surgery, so you need to aggressively promote your skills and mostly to your peers, because they’re the ones who really hire you [through patient referrals],” said Dr. Gerard Anderson, Director of the Center for Hospital Finance and Management at the Johns Hopkins School of Medicine.
The $5-million verdict was reached Friday after a three-week trial in Baltimore County Circuit Court.
It grants Bargar and his wife Carole $2.25 million in compensatory damages that must be paid by Midei, Sell and Midatlantic and includes a pain and suffering award of $2 million for Harry Bargar, who claimed Sell botched his bypass surgery, causing “catastrophic and permanent physical injuries,” according to a court filing.
Another $2.75 million in punitive damages was also charged against Midatlantic, which is comprised of 59 cardiologists and four cardiac surgeons licensed to operate at Union Memorial Hospital and St. Joseph.
In an interview yesterday, Bargar, 67, said he was happy with the decision. “I’m grateful to God that I’m still here,” he said.
The case goes back to 2001, when Harold Bargar, who was working as a truck driver, was told he needed to have repeat bypass surgery. In his suit, Bargar claimed he asked to have his original bypass surgeon, Dr. Peter J. Horneffer of Cardiac Surgery Associates, perform the operation at St. Joseph’s, but was told falsely — at the instruction of Midatlantic’s Dr. Midei — that Horneffer was not available and Dr. Sell would step in.
While Bargar was recovering from the operation, his wife learned that Dr. Horneffer had been available all along, spotting his name on a list in a hospital hallway and later talking with him, the suit claimed. Bargar developed complications from the operation and was rehospitalized and treated. His heart was further damaged, and he now lives with pain and weakness that has hurt not only his health, but his quality of life and his relationship with his wife, according to the suit.
“For physicians to do to a patient what the jury in this case concluded they did to Harry Bargar is obscene,” said Bargar’s attorney, William F. Gately.
Midatlantic spokeswoman Linda Harder said the verdict has “stunned and disappointed” the organization.
“We know these men well and know them to be honest, ethical and compassionate doctors who care deeply about their patients and would never mislead them,” she said. “While we respect the jury system, we can only conclude that the verdict in this case was an aberration. We support these physicians and will continue to support them as we pursue the appeals process to have this unjust verdict set aside.”
Dr. Gail P. Cunningham, head of St. Joseph Department of Emergency Medicine, who has worked with Midatlantic and Medei for years said both have high integrity.
“I know as a physician, if somebody were challenging my ethics and morals, I would be devastated, especially when I know that I always act ethically and morally,” she said. “My hope is that everybody will see beyond this and see that its ludicrous.”
Gately also represented Cardiac Surgery Associates, or CSA, in its lawsuit against Midatlantic. Filed in 2001 in Baltimore County Circuit Court, it alleged “tortuous interference with economic relations” after the two groups failed to complete a controversial merger that left both sides bitter.
Procedural technicalities put the case before the appeals court, where it has sat for two years. It has not yet gone to trial. At its heart is a turf war, pitting competing cardiac groups against one another in a fight for business.
For a long time, CSA, which is made up of surgeons from Johns Hopkins, was the only group performing cardiac surgeries at St. Joseph’s hospital, which does the most open heart surgeries in the state. In a statement yesterday, the hospital gave credit to both CSA and Midatlantic for earning it national recognition and a ranking among the top 100 Cardiovascular Hospitals in the country.
Midatlantic was formed in 1995 through the merger of five cardiologist groups. In the early days, those doctors were likely to refer their patients to CSA and other doctors. In fact, Bargar’s first surgeon was a CSA doctor referred by Midatlantic.
Soon the cardiologists wanted to expand their practice and take in surgeons. They sought to merge with CSA, but talks broke down in early 2000, in part because of salary disputes. One CSA surgeon did decide to independently join Midatlantic, however, which then hired several more surgeons. Today, those surgeons get about 75 percent of the 2,000 annual referrals from Midatlantic cardiologists; the other 25 percent go to outside surgeons, according to Harder.
CSA has said its Midatlantic referrals dropped 90 percent in the first year Midatlantic hired its own surgeons.
Hopkins’ Dr. Anderson said Midatlantic’s self referrals are common within the industry. “You would expect that. Just like at Johns Hopkins, we would tend to refer to our cardiac surgeons. It’s who you know,” he said. “You won’t be referring too much to your [competition].”
He drew the line at deception to get patients, though, calling it “unethical” and “inappropriate.”
Midatlantic maintains that it did nothing wrong and is essentially the victim of sour grapes on the part of CSA, which lost its monopoly hold on St. Joseph’s when Midatlantic added its own surgeons.
“There was no choice until Midatlantic introduced it at St. Joe’s. That’s where the irony comes in,” Midatlantic’s Harder said.
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