Medical Oversight on Trial Along With Doctor

The prosecution of Dr. Gerald J. McCann is not just another testament to the awful things that can happen to women pursuing the ideal body.

It highlights the problem of doctors who, like McCann, don’t carry malpractice insurance, and it calls into question the performance of state officials whose job is to protect patients.

A Los Angeles County grand jury has indicted McCann, 66, for his treatment of two women who nearly died after he performed liposuction on them. He faces two felony counts of exceeding the level of anesthesia allowed in his former clinic, which was in Santa Fe Springs and was not licensed as a surgery center. He denies the charges, and his trial began last week.

Rarely is a physician charged with a felony for causing a patient’s suffering. But much about the tortuous, nearly five-year case is extraordinary, including its implications for medical practice.

To McCann and the California Medical Assn., a conviction would set a far-reaching precedent of holding physicians criminally responsible when patients develop complications--a precedent they claim would ultimately harm consumers by inhibiting physicians’ judgment and scaring many out of business.

To the prosecutor, the case shows that people often know too little about the doctors whom they entrust with their lives.

That certainly applied to Idalia Lopez, of Downey. Not long after she turned 43, a classified ad in the Pennysaver caught her eye. “Wrinkle removal,” it said, “better than anything seen on TV.” Another ad on the page touted “LIPOSUCTION . . . Guaranteed lowest prices.”

She met with McCann, who placed the ads, and he gave her facial peels. Then she paid half of the $2,500 liposuction fee and underwent the fat-vacuuming procedure one Saturday night in his clinic.

Over several hours, he removed more than three liters of fat and fluids and two liters of blood from her belly, hips and thighs, medical records show. She was still groggy from anesthesia when a clinic assistant and Lopez’s husband lifted her into the family van at 3:30 a.m.

McCann said she would be back at her job as a teacher’s assistant in a day or two. That didn’t happen. Inch by inch, skin on her belly and legs turned gray and died. A dangerous infection poisoned her blood. Her intestines quit. Her kidneys quit.

For more than a week, McCann said Lopez would bounce back. When an ambulance finally took her to Good Samaritan Hospital in Los Angeles, a doctor there said she would have been dead in another hour.

The liposuction price was a bargain. But the five weeks she spent in the hospital’s intensive care unit, undergoing kidney dialysis and multiple skin grafts, among many other treatments, cost $537,501. And there were more expenses to come.

“I feel very depressed,” Lopez, a Guatemala native and mother of four, said the other day. She no longer works because of the pain in her legs. She’s ashamed of the mottled skin on her legs and belly. She and her husband, who owns a maintenance business, are buried under $800,000 in medical bills.

“My life changed because of the damage he caused me,” she said of McCann.

Her sister, Connie Giron, a schoolteacher, was more blunt: “The incident totally destroyed her life.”

As Lopez lay in the hospital bed in March 1997, McCann did a liposuction on Yvonne Donnell-Behringer.

Within days, she contracted necrotizing fasciitis, the infection also known as flesh-eating bacteria. It killed skin from her groin to her chest. She, too, was taken to an emergency room, dying.

She spent three months at a Whittier hospital undergoing skin grafts, kidney dialysis and other treatments.

A plastic surgery expert who reviewed the cases for the state medical board concluded that McCann’s care of the two women was “shockingly inadequate” and that allowing him to engage in the practice of medicine “would endanger the public health, safety and welfare.”

The two women, disfigured in similar ways, set out to fight McCann in court, only to find that he would thwart them.

Surgeon Denies Patients’ Charges

Donnell-Behringer’s malpractice suit went first, in September 1999, charging multiple acts of negligence.

McCann said in an interview that Donnell-Behringer caused her infection by soiling the bandages he gave her to wear after the operation.

It was also her fault, he said, because “if she hadn’t asked for the operation, it wouldn’t have happened.”

But the jury didn’t buy his defense, and in January 2000 awarded her $903,000. The judge reduced it to $660,000, in keeping with a state law that caps pain and suffering awards in malpractice verdicts.

Lopez’s lawsuit went even further. She accused McCann of not only negligence but also malicious wrongdoing. The suit alleged he misrepresented himself as qualified to perform liposuction; relied on untrained and improperly licensed medical personnel to assist him; and nearly killed Lopez when he tried to hide his mistakes by not referring her immediately to a hospital.

McCann denied the charges, saying his liposuction training consisted of watching videotapes of doctors performing the procedure and attending medical conferences where it was discussed or demonstrated. As a board certified orthopedic surgeon, he said he was qualified to do cosmetic surgery.

He blames Lopez. She “wouldn’t cooperate” with him and was “weak and sickly,” he said in an interview. She neglected his instructions to exercise and drink enough fluids, he said, causing her dehydration and kidney failure.

The only mistake he acknowledged in interviews was not sending Lopez to a hospital right away. “I just kept thinking, ‘She’s got to pull through this,’ ” he said. “I was wrong on that. She wasn’t pulling through.”

Yet Lopez never got to hear him admit anything in court--and Donnell-Behringer didn’t get a penny of her jury award.

Days after Donnell-Behringer’s court victory, McCann, who had no malpractice insurance, filed for bankruptcy protection.

Lopez, with nothing to gain, dropped her lawsuit.

McCann said Lopez and Donnell-Behringer hurt themselves by, as he put it, “going for the gold”--suing him rather than accepting his settlement offer. He wouldn’t say how much he offered. Lopez said it was $5,000.

“They’re the ones who threw the dice on this thing and they came out with no funds from me,” McCann said of the women.

It wasn’t the first time he dodged creditors. In 1992, he obtained bankruptcy protection for his medical corporation because, he said, managed care had so reduced his fees he couldn’t pay his bills.

But court records show he obtained bankruptcy protection after a jury hit him with a $501,000 malpractice verdict. A man with back pain had sued McCann for operating on the wrong spinal vertebra and trying to cover up the mistake. McCann had no malpractice insurance at the time. He said in an interview that he later paid the patient a settlement. The patient and his lawyer could not be reached for comment.

Not all physicians in California have to carry liability insurance.

Hospitals and health maintenance networks often cover their staff physicians, and since 1999 the state has mandated insurance for physicians doing surgery in outpatient clinics. But doctors don’t have to carry insurance or disclose it when they don’t.

Last year, state lawmakers proposed a regulation requiring physicians and dentists who don’t have liability coverage to tell prospective patients. But others in the Legislature opposed the bill as too limited, arguing that it would be better to mandate that all doctors carry insurance.

Lopez’s attorney argued that McCann was not just negligent but reckless, given his history.

“He knows he’s operating without insurance, he knows he’s not trained [in liposuction], and he knows he’s judgment-proof” because he can just declare bankruptcy, attorney Buffy Lynn Roney said.

“That creates a very dangerous man.”

Worked as Barber Before Medical School

McCann came up the hard way. Born in the Kern County town of Taft, he drifted to Los Angeles as a teenager, went to barber school in the 1950s, then put himself through community college and UCLA giving haircuts. He went to medical school at UC Irvine and served in the Army as a surgeon in Vietnam.

A father of five grown children, the Whittier man said he has spent decades treating poor patients from East Los Angeles when he could have had it easy, setting bones on the Westside. He sees himself as the victim of overzealous regulators, and said he has done nothing wrong.

“The medical board feels an obligation to make Dr. McCann bleed,” he said. The Medical Board of California has been investigating McCann for three years and has been trying revoke his license for more than two years. The delays, said a board spokesperson, are caused by understaffing. To discipline a physician, the board must prevail at multiple hearings and appeals, beginning with an administrative law judge.

In October 1999, the medical board argued to revoke McCann’s license for gross negligence in the care of Lopez and Donnell-Behringer, running an uncertified surgery center, failing to maintain adequate records and violating drug laws by improperly storing dangerous drugs.

The judge said the board failed to prove its case but restricted McCann’s license, barring him from using anesthesia and thus from doing surgery. (A Los Angeles County court judge also has prohibited McCann from doing surgery, the prosecutor said.) McCann is now a general practitioner in Norwalk.

McCann denied the allegations the board made against him, but he would not provide a copy of his written defense, which is not part of the public record. McCann’s attorney, Robert Forgnone, would not comment.

Last year, a different administrative judge in Los Angeles--after 24 days of hearings--substantiated the most serious charges that the medical board brought against McCann. But despite the evidence, the judge decided that McCann should receive a seven-year probation, with his license restricted as before.

“The proven allegations would certainly warrant license revocation in most cases,” Administrative Law Judge H. Stuart Waxman wrote. “However, this is not ‘most’ cases.”

In McCann’s favor, the judge wrote, were the physician’s years of helping patients, “many of whom are indigent, non-English speaking, and in great need of assistance.” The judge also paid deference to McCann’s military service. Also, he described McCann’s 37-year medical career as “unsullied,” lacking any previous investigations by the medical board.

Last August, the medical board rejected the judge’s ruling. It will exercise a seldom-used prerogative to have a committee of board officials review the evidence this month. The deadline for board action is Jan. 24.

The board’s pursuit of McCann has been sluggish even by its usual deliberative pace, critics say. It takes an average of 2.3 years for the board to act against a physician’s license, and more than three years have gone by since the board opened its inquiry. The apparent delay troubles consumer advocates.

“When you have a medical board incapable of taking action against a possibly dangerous doctor for years, for whatever reason, . . . that frightens me,” said Julianne D’Angelo Fellmeth, an attorney with the Public Interest Law Center, part of the University of San Diego. “We’re not talking about gardening here.”

For its part, the board would not comment on the pending McCann case beyond noting that it is “complicated.”

Physicians Group Opposes Prosecution

Testimony began Friday in McCann’s criminal trial in Los Angeles.

If convicted of a felony, he faces a maximum of three years in prison and restitution to Lopez and Donnell-Behringer. The judge has discretion to downgrade the conviction to a misdemeanor.

The November 1999 indictment charges that McCann violated the terms of his medical license by giving more anesthesia to Lopez and Donnell-Behringer than his clinic was authorized to administer.

McCann is being represented by a public defender, Randall Rich. He argues McCann did not use excess anesthesia on the women. Even if he did, Rich said, that would be a misdemeanor violation of health and safety codes, not a felony violation of the medical license law, as the prosecution argues.

Rich also said the postoperative complications suffered by the women have nothing to do with the anesthesia.

The California Medical Assn. agrees with the defense. It argues that a physician with a valid license cannot be prosecuted under the law in question, which prohibits practicing medicine without a license.

The physicians group says it is not passing judgment on McCann’s practices. But in a letter to the prosecutor decrying “the criminalization of medical practice,” an association lawyer says “physicians must not be prosecuted for good-faith exercise of the physician’s medical judgment.”

The prosecutor, Deputy Dist. Atty. Anna Lopez, scoffed at those arguments. To her, the case has exposed a world of rogue doctors operating in marginal clinics and flouting the law to take advantage of patients.

“What astounds me is that the public is so uninformed,” she said. “I don’t think people know whether to ask if a clinic is licensed.”

Idalia Lopez has had her eyes opened too, and she doesn’t like what she sees of the system for disciplining physicians. Afflicted by chronic pain, covered with scars, buried in debt and unable to work at the classroom job she loved, she has practically given up hope of being compensated for her suffering.

She’d just like to see McCann put out of business, she said, for betraying her trust.

“He kept telling me that I didn’t need to go to the hospital, that he was taking care of me, that I was fine,” Lopez recalled of the days after her liposuction. “That’s what makes me upset now more than anything. He could have prevented me from having all this trouble.”