Medical Board Defends Inaction Against Klvana : Justice: State officials say they were not negligent in letting the doctor practice after four babies died. Critics say his recent conviction proves there is no medical disciplinary system.

State officials defended the Board of Medical Quality Assurance on Tuesday in the wake of the nine second-degree murder convictions of Dr. Milos Klvana, a Valencia obstetrician whom the board investigated but did not discipline in the deaths of four babies that figured in the case.

“I see nothing to apologize for in terms of our efforts,” said Kenneth J. Wagstaff, the board’s executive director.

Wagstaff released a statement Tuesday that called the case an “unusually difficult investigation” and said that “no governmental agency, no matter how large or powerful, can ever guarantee that bad medical practice will not occur.”

But others, including the prosecutor in the Klvana case, remained skeptical of the board’s performance.

“The system allowed him to get away with it,” said Brian R. Kelberg, chief of the medico-legal section of the Los Angeles County district attorney’s office.

“If we hadn’t picked up the ball and run, this man could have been practicing indefinitely and never brought to justice,” Kelberg said.

On Monday, a Los Angeles Superior Court jury convicted Klvana, 49, of nine counts of second-degree murder in the deaths of eight infants and a fetus between 1982 and 1986. The prosecution charged that the deaths resulted because Klvana, who operated out-of-hospital birth clinics in Valencia and Temple City, was incompetent and ill-equipped to handle high-risk deliveries.

The investigation that led to Klvana’s conviction was triggered by the 1984 death of a baby, Jason Friel. But state medical board officials acknowledge that they knew of Klvana’s involvement in four earlier infant deaths, and investigated the deaths but took no action against his license.

Kelberg said the case exposed flaws in the board’s system of monitoring the competence of doctors. He said patients should not be afraid to question a physician merely because he or she is licensed by the board.

“There was no action because there is no medical disciplinary system to speak of,” said Robert C. Fellmeth, director of the University of San Diego’s Center for Public Interest Law. Fellmeth issued a report in April that harshly criticized the board’s enforcement procedures.

Wagstaff on Tuesday defended the board’s system of using panels of physicians and medical consultants to investigate complaints of incompetence against doctors.

“I have confidence in the system,” Wagstaff said. “I think the average person should have confidence in the system. The fact is, unfortunately, that every system can be sidestepped, ducked and, in some cases, manipulated.”

The board was hampered in its probe of Klvana by a variety of factors, including the doctor’s skill at misleading investigators and falsifying medical records, a reluctance by some parents to cooperate with medical authorities and a dearth of timely, solid information about the deaths, said state Deputy Atty. Gen. Linda J. Vogel, who represented the board in the Klvana case.

The first death involving Klvana that came to the board’s attention was that of Amy Johnson on Christmas Day, 1982. Board investigators interviewed the parents but the parents did not tell them of several important details of Klvana’s substandard care until more than two years later, after the district attorney’s investigation was well under way, Vogel said.

The board “has to assess, based on the evidence, how far to press grieving parents” to find out relevant information, Vogel said.

In another case, the 1983 death of Amanda Herrera, the mother said Klvana administered a labor-inducing drug outside of a hospital setting; Klvana denied using the drug.

Without evidence to corroborate the mother’s story, an investigative panel of two doctors looking into the case believed they did not have sufficient evidence to dispute Klvana’s version of events, Wagstaff said.

But Kelberg said the case demonstrated that the board’s investigations are tainted by a collegiality that “calls for this automatic acceptance of what the doctor says and a belief that the patient must be mistaken.”

Klvana’s attorney, Richard A. Leonard, said the board failed to realize that Klvana had “a motive to lie and fabricate” in order to protect his license.

In a third case, a 1982 baby death in which Klvana was not charged with murder, Vogel said the board was hindered by uncooperative parents.

Kelberg, however, said the board did not aggressively attempt to speak to the parents. A board investigator merely left his card at their home, he said. The parents, who were loyal to Klvana throughout, later returned to him for a second pregnancy that resulted in the death of the “Ginsberg fetus,” one of the deaths for which Klvana was convicted.

The 1984 death of Aaron Diederick also was reported to the medical board, but Wagstaff’s statement said that probe was still under way when Jason Friel died later that year, triggering Kelberg’s investigation.

The Friel death was not the first time the Los Angeles district attorney’s office learned of Klvana’s involvement in an infant death. During an unrelated investigation, prosecutors had learned of the 1983 Amanda Herrera death but declined to file charges.

Deputy Dist. Atty. Nikola M. Mikulicich, then head of medico-legal, said he could not recall details of the Herrera case except that he declined to file charges because of insufficient evidence. Kelberg noted that Mikulicich based his decision, in part, on an opinion by Dr. D. Gene Parks, a consultant to the board, that Klvana had not been grossly negligent.

The board asked the state attorney general’s office to seek a restraining order against Klvana after the Friel death, Wagstaff said. But the attorney general’s office declined. A major reason why, according to Vogel, was the existence of Parks’ medical opinion that exonerated Klvana in the Herrera case.

Klvana’s license currently is under a court injunction obtained by the board earlier this year, after Klvana was found to have been practicing medicine while out on bail. The injunction effectively bars him from practicing medicine, Vogel said.