Doctor responsibility weighed

Was Dr. Eladio Carrera the "captain of the ship" in the operating suite where his patients were infected with hepatitis?

Can a doctor be? Should a doctor be?

Two doctors on the state Board of Medical Examiners used the maritime analogy in discussing Carrera, a key figure in the local hepatitis outbreak, during his disciplinary hearing Wednesday. In maritime law, the ship captain is liable for the negligence of his crew.

"If something happens in the room, I take responsibility," said one of those board members, cardiovascular surgeon Robert Wiencek. "How far can you step back and not take responsibility?"

But Wiencek joined the other four board members to lift the 13-month suspension of Carrera's medical license, approving a settlement of a malpractice complaint that gave Carrera 24 months of probation, a public reprimand and a $15,000 fine.

Authorities investigating a cluster of hepatitis C cases observed nurse anesthetists at Carrera's clinic reusing syringes in a manner that contaminated vials of medication and, they believe, infected patients during colonoscopies and other procedures. This dangerous practice, according to city investigators, was done at the direction of Dr. Dipak Desai, the clinic's principal owner, and other administrators.

Health officials have definitely linked nine hepatitis C cases to the Endoscopy Center of Southern Nevada and a sister clinic. Three of Carrera's patients were among the infected. The officials say another 105 cases are possibly linked to the clinics. More than 50,000 patients were advised by authorities to get tested for hepatitis and HIV, the largest notification of its kind in this country, according to the Centers for Disease Control and Prevention.

The board suspended the licenses of both Desai and Carrera last year.

As part of the settlement agreement approved by the board, Carrera, a co-owner of the Endoscopy Center, must also testify in other malpractice cases filed by the board against Desai and against Dr. Clifford Carol, who worked there.

That Wiencek and Dr. Ronald Kline brought up a concept of responsibility long honored in maritime law didn't surprise Dr. Ole Thienhaus, dean of the University of Nevada School of Medicine.

"Students in medical school are taught they will be 'captain of the ship,'" he said. "It is still valid and relevant today, as far as I'm concerned. We physicians make a strong claim that we are the ultimate gatekeepers on patient care. That idea has been around a long time."

It became more than just an idea when in 1949 the Pennsylvania Supreme Court introduced the concept into the law of negligence by ruling that an obstetrician was responsible for the blinding of a newborn, despite the fact that an intern had blinded the baby by improperly applying silver nitrate drops. The ruling enabled the family to win legal damages.

In its decision, the court used the "captain of the ship" analogy from maritime law.

But ever since then, according to Robert Correales, a professor at the University of Nevada, Las Vegas Boyd School of Law, the principle has been weakened by court decisions that increasingly view the modern operating room as consisting of a number of specialists working in collaboration, not as arms of the surgeon.

It is an argument that malpractice attorneys defending physicians have made effectively, Correales said.

"It isn't very easy today to try and claim that a mistake by an anesthesiologist, a highly trained specialist in his own right who is doing work that the surgeon isn't trained in, is the responsibility of the surgeon," he said.

To Las Vegas surgeon Dr. Theodore Potruch, the practical reason why the concept can "no longer hold water" is simple: lawsuits.

"We may want to be fully in charge, to provide the correct direction, but we can't be because of the damned lawyers filing lawsuits," he said. "There's no way a surgeon can be responsible financially for others' mistakes."

A 1965 case before the Nevada Supreme Court, which often is cited today by defense attorneys for Nevada doctors in malpractice cases, held that a surgeon could not be held responsible for a burn caused by the negligence of a nurse employed by a hospital.

Louis Ling, executive director of the medical board, agrees that the surgeon's authority is "not as absolute as it used to be."

He said that an operating room can be full of professionals doing everything from running the heart-lung machine to counting sponges, and "many are licensed by professional boards in their own right." Yet Ling said many surgeons, aware that they'll likely be sued for the mistakes of others anyway, won't allow anything to go on in the operating room, including preparing the room or giving anesthesia, unless they're there.

"They want to do everything they can to stop a mistake from happening," he said.

To Dean Thienhaus, the "captain of the ship" concept remains especially valid at ambulatory surgical centers where nurses and other staff work under policies often set by the physician/owners.

"Your realm of responsibility is even greater when you're one of the owners," Thienhaus said. "You have set the infection-control policy in place."

Carrera's defense attorney, David Mortensen, said before the board Thursday that though his client was a co-owner of the clinic, he didn't have managerial control over employees, and any behavior that resulted in infections "occurred outside his presence and knowledge."

Carrera was the physician who represented the clinics before the media in February 2008 when the Southern Nevada Health District announced that thousands of Nevada had to be tested for blood-borne diseases.

The infections of Carrera's patients "most likely" occurred outside his presence, agreed Lyn Beggs, the board's general counsel. And Carrera, she said, didn't have control over any policies and procedures that put patients at risk. Yet she said Carrera's testimony would be particularly valuable in malpractice cases against others tied to the hepatitis outbreak.

Attorney Gerald Gillock, who represents several former patients of the clinics, including Gwendolyn Brown, a patient of Carrera's who contracted hepatitis, said it is clear to him why the board voted to reinstate Carrera's medical license.

"You don't say you believe in 'captain of the ship' and then give a doctor a free pass on this kind of case unless you've got something else you're trying to do," Gillock said. "Basically, what they have done is make a kind of plea bargain, what you see in criminal cases. For his testimony in the Desai and Carol cases, he gets off.

"It's outrageous. Their investigators should have been able to make those cases another way."

Contact reporter Paul Harasim at pharasim @reviewjournal.com or 702-387-2908.