SPECIAL REPORT TRIPLER ARMY MEDICAL CENTER

February 6, 2006

BY ROB PEREZ, Advertiser Staff Writer

State investigating care in baby's case

Doctor's role in case of brain-damaged child under scrutiny

The state has begun an investigation into the role a Tripler Army Medical Center physician allegedly played in the case of a newborn baby who suffered severe brain damage last year after being mistakenly treated with a wrong gas.

The Department of Commerce and Consumer Affairs, which oversees the state board that licenses physicians, is looking into whether the care provided to Izzy Peterson by Dr. Danielle Bird constituted a licensing violation.

Izzy was injured from inhaling carbon dioxide instead of oxygen for more than 40 minutes after his birth. The baby's mother, Shalay Peterson, and the family's attorney, Rick Fried, told The Advertiser that Bird administered the carbon dioxide to Izzy, thinking it was oxygen, and treated him throughout the ordeal.

By the time the mistake was discovered, Izzy's brain was so damaged that he is expected to be dependent on medical devices the rest of his life for such basic functions as eating and breathing.

Izzy's parents have sued the federal government, alleging Tripler was negligent. Bird was not named as a defendant in the lawsuit. Federal law gives military doctors immunity from malpractice lawsuits.

In court documents, the government denied that Izzy's care was negligent, and the lawsuit is pending. Bird didn't respond to a detailed request for comment relayed through her mother.

The state's Regulated Industries Complaints Office, part of DCCA, began investigating the case after The Advertiser inquired about Bird's licensing status in December. The investigation is continuing, according to Jo Ann Uchida, RICO's complaints and enforcement officer. She declined to discuss details of the probe because it is ongoing.

Among the questions the state considers in licensing investigations is whether a doctor engaged in "hazardous negligence causing bodily injury to another."

If the state determines that a licensing violation occurred, the board can impose a variety of sanctions, ranging from a fine to license revocation.

Bird's licensing record with the state is unblemished. As of Friday, it showed that no complaints have been lodged against her in the past, nor has any disciplinary action been taken against her by the state, according to DCCA officials.

Bird still works at Tripler.

If the Army had taken any adverse action affecting Bird's practicing privileges as a result of the Baby Izzy case, it would have been required to report that action to the state licensing board. As of Friday, DCCA had received no such notice.

The Army didn't respond to a written request for comment on whether Bird was sanctioned as a result of the gas mix-up.

Unlike civilian physicians, who must be licensed in the state where they practice, military doctors can be licensed in any U.S. state or territory. At Tripler, about 40 percent of the active-duty physicians are licensed in Hawai`i, according to the hospital. Bird is one of them.

BEGAN WITH C-SECTION

On Jan. 14, 2005, Shalay Peterson underwent what a U.S. Department of Defense document described as a routine cesarean section. It was a Friday morning. The scheduled C-section was the first of the day for operating room No. 10.

Army Sgt. Dwight Peterson, Izzy's father, even videotaped some of the procedure - until a problem became evident.

About a minute after Izzy was born at 8:10 a.m., a decision, now being questioned by the family, was made to give the infant oxygen to help him breathe. Fried, the family's attorney, said Izzy was doing fine at that point and didn't need oxygen.

Once the decision was made, though, a tiny mask with a connecting tube was placed near Izzy's face.

But because of a mix-up involving portable carbon dioxide and oxygen tanks, the tubing was connected to the carbon dioxide tank, according to a March 22 DOD safety alert on the incident.

The mix-up happened even though the tanks were different colors and the content of each was clearly labeled, Fried said.

"What we had here was a system failure," he said. "A lot of people in the military dropped the ball."

Fried said he doesn't believe that Bird actually connected the tube to the incorrect tank but that she administered the gas, treated Izzy, and was the person primarily responsible for what happened to the infant.

If such a case had happened at a private hospital, the physician likely would be among the parties named as defendants, and a court would then decide whether the standard of care was breached, and which defendants shared in the liability.

Had Bird or other medical personnel in the operating room been more attentive, the tragedy could have been prevented with a quick look at where the tubing was connected, Fried said.

"That's all it would've required - just a glance before they started it up. It would've taken a second," he said.

At the time of the incident, Bird was a pediatrician training to become a neonatalogist (a physician who specializes in the treatment of newborns), according to Fried.

More than a year after the tragedy, Fried said he's surprised that Bird's state licensing record doesn't reflect her role in the incident.

"This was not something that took a great deal of time to determine what happened," he said.

The same day as the birth, the hospital acknowledged the mistake and apologized to the parents, according to Fried and Shalay Peterson. When the story hit the media in March, the hospital said publicly that immediate corrective action had been taken.

The government alerted its military hospitals through the March patient-safety notice, advising the institutions to take steps to prevent other gas mix-ups. The alert didn't mention Tripler by name, referring only to "one of our major military medical centers."

"The resultant assessment of the event found a number of knowledge, technical and process issues," the alert said. "While these issues have been addressed by the facility involved, it is essential that all military medical facilities take immediate steps to minimize the risk of similar events."

No other details were given about the issues uncovered. Tripler officials have declined to discuss the case because of the pending litigation.

Shalay Peterson said she recalled Tripler officials, including Bird, coming by her room to tell her what happened and to apologize.

"It's like this was something you see on television. I couldn't believe it was happening to me," she said.

Izzy remained at Tripler for about six months until the family moved to Texas in mid-July.

STATE PROCEDURE

If DCCA gets a notice that a military doctor has been disciplined, the state agency checks whether it has jurisdiction over that doctor's license and, if so, whether the underlying violation that prompted the discipline also constitutes a violation of Hawai`i's licensing regulations.

If so, that generally is grounds for discipline, and the board can impose a sanction, Uchida said.

Tripler officials, however, said they rarely have to report physicians to state licensing boards or the National Practitioner Data Bank, the government-run operation that keeps tabs on adverse actions against medical personnel. The officials said they do not keep statistics on such reports.

An Advertiser review of dozens of state disciplinary cases against medical personnel over the past five years found only two involving a military physician. It is difficult to know if there are more cases because some files don't say where a physician is employed.

One military case involved a doctor who was disciplined while working at a hospital on the Mainland. The physician didn't report that action on a timely basis, as required, to the Hawai`i board that issued his medical license. That physician's license was revoked in 2004.

The second case involved an Air Force physician who was disciplined by the military in October 2004 but failed to inform the Hawai`i board within the required 30 days. The records didn't indicate why the physician was disciplined. His case before the local board is pending.

Among the few Tripler doctors who have adverse reports with the national database, extenuating circumstances mitigate the reports, hospital officials said, without elaborating.

"Tripler validates every physician is trained, unimpaired, experienced and currently competent to hold delineated privileges before granting them," the officials said in an October statement responding to Advertiser questions. "Every physician's practice is continuously monitored by a senior physician and formally reviewed no less than every other year."

When Tripler determines a physician should not be practicing for a specific reason, such as lack of skill or knowledge, privileges are suspended and a thorough review is undertaken.

"Unlike civilian practices that tend to fire physicians when trouble first arises, military rules prevent the physician from moving on until a final ruling is made," the officials said.

"Unsafe physicians are identified rarely, but if found are not quietly released from service to possibly become some other organization's problem."

Reach Rob Perez at 525-8054 or rperez@honoluluadvertiser.com.

Drop-in:

MAIN STORIES IN THIS SERIES

YESTERDAY: Several tragic cases raise questions about Tripler's care and the cost to taxpayers

TODAY: The state investigates a Tripler doctor's role in a brain-damage case

TOMORROW: Military patients can't file malpractice claims against Tripler even if care is shoddy

Drop-in:

HONOLULUADVERTISER.COM

Video of a Tripler case and in-depth information on the hospital's paid malpractice claims history

Drop-in:

NO ANSWERS

Cost of military malpractice settlements not disclosed A2

Drop-in:

CHECKING ON YOUR DOCTOR

· If a physician is licensed in Hawai`i, here's the Web site for checking on any past complaints: pahoehoe.ehawaii.gov/pvl /app

· Another source for physician information is the American Medical Association site. It requires selecting a state to do a search: web apps.ama-assn.org/doc torfinder/html/patient.html

COURT LOSSES

Over the past two decades, the U.S. government lost 14 of 23 trials involving allegations of negligent care at Tripler Army Medical Center. Here are the 14 losses:

JUDGMENT JUDGMENT PLAINTIFFS DATE TOTAL TYPE OF CASE COURT FINDINGS

Pearl Habor couple 8/17/05 $906,000 Licensed practical nurse sexually assaults patient Intensive care unit failed patient; physician and supervising nurse paid little heed to her

James, Quinton and Cheryl 7/10/01 1,440,925 6-month-old baby suffers brain damage Delayed diagnosis a substantial factor in causing brain damage

Winbush, Linda 12/3/99 79,422 Premature infant dies a month after birth Baby taken off monitor without doctor's orders, contributing to death

Pineda, Eddy and Elizabeth 7/11/97 11,323,808* Infant's heart stops, resulting in brain damage If care had been sufficient, infant would have been resuscitated without injury

Severn, Alyson 5/30/95 425,270 Woman becomes infertile, develops other problems Substandard care caused infertility, other problems

Villaflor, Aniceta 4/20/93 844,394 Baby suffers blindness in one eye, hearing loss, other problems Delayed diagnosis of meningitis was a contributing factor

Wade, Larry and Vicky 5/21/91 551,126 Woman's pregnancy ends with still birth of twins Defendant failed to perform needed procedure, leading to pregnancy complications

Chenault, Edward and Jeanette 4/3/90 8,135,769** Baby suffers brain damage, left a quadriplegic Tripler failed to adequately detect and treat patient's respiratory, cardiac problems

Little, Dell and Elizabeth 10/12/89 5,478,529 Lack of oxygen damages teenager's brain Hospital failed to properly treat patient injured in car accident

Holthaus, Alice Ann 5/25/89 275,000 Man dies of cancer four years after getting tested Government breached duty in explaining test results or following up on physician referral

Owens, Robert 2/27/89 490,639 Woman dies of cancer three years after getting tested Schofield Barracks clinic radiologist failed to consult treating physician when X rays first taken

Moreno, Jason and Regina 11/30/87 8,939,352 Baby's brain is damaged at birth, causing cerebral palsy Doctors failed to properly use vacuum extractor

Bowen, Leilani and others 8/24/87 631,524 Man dies of cancer more than a year after getting tested Doctors' negligence in following up on initial tests was proximate cause of death

Inigo, Fernando and Lourdes 5/8/85 1,752,646 Baby's brain is damaged at birth, causing physical, mental problems Tripler did not meet standard of care

TOTAL $41,274,404

*Including interest, the government paid $12,564,835

**After judgment was issued, parties settled for $7 million

Personal Injury Judgments Hawaii, newspaper accounts The Honolulu Advertiser

Pull-quote:

"While these issues have been addressed by the facility involved, it is essential that all military medical facilities take immediate steps to minimize the risk of similar events."

U.S. Department of Defense systemwide alert issued after the Baby Izzy case