STATE BEAT: Surgeon costs Adventist $32 million
March 23, 2012
By DANIEL BLACKBURN
It was just a small bruise, the result of a minor bicycling mishap, and it barely raised a bump on Ernest Dale Faber’s left knee. Faber, an active 73-year-old widower and former Marine who lived alone on his five-acre Lemoor mini-ranch, was in good health. But at his age, he figured, one shouldn’t take anything for granted, so when the bump was still visible a day or two later, Faber decided to have that knee checked out by a doctor.
On a neighbor’s recommendation, Faber made an appointment in March 2009 with a local orthopedic surgeon, Dr. Randall Vincente Bernabe, D.O. The osteopath’s booming practice, rooted in the small Central California community of Hanford, attracted many personal sports and agriculture-related injury patients. Bernabe was a surgeon with a growing reputation.
Faber’s selection of Bernabe would not only be unfortunate, it would prove fatal, his two sons now allege, because the Faber family couldn’t discern soon enough the ominous shadow creeping over Bernabe’s reputation.
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Like mushrooms on a rain forest floor, medical clinics have been popping up all over California’s Central Valley during the past decade, nearly all established or acquired by one of the state’s largest medical providers, Adventist Health.
During those years, the Roseville-based not-for-profit system shifted its emphasis from hospital ownership and administration in order to concentrate on strategically-placed clinics and home-care agencies located primarily in smaller cities and communities.
In 1991, the Seventh-Day Adventist organization owned 20 acute care hospitals; today, it owns only 18, most located in California but also in Hawaii, Oregon, and Washington. Meanwhile, Adventist Health’s list of owned or operated clinics has burgeoned from a handful to 137.
Those clinics are able to take advantage of financial rewards offered by Medicare in the form of incentive payments as much as 125 percent higher than standard billing amounts, for rural locales where health care and physicians are scarce — called “scarcity areas.”
Adventist Health’s web site claims the corporation has 20,000 employees and “the largest network of rural health clinics in the state of California and one of the largest in the country.”
Crown jewel of Adventist Health’s medical lineup is what the company calls the “Central Valley Network,” a grouping of four acute care hospitals and 30 clinics providing services for 17 communities in Kings, Tulare, and Fresno counties.
For those clinics to prosper, two things need constant cultivation: physicians, and lots of patients. The Central Valley Network boasts an abundance of both.
One physician attracted to this veritable beehive of medical activity was Randy Bernabe, a youthful-looking man with a wide smile and a specialty in surgical treatment of back, limb, and joint ailments. Middle-aged joggers, over-zealous exercisers, softball players, joined by a recurring army of agricultural field workers, flocked to Bernabe’s operating table during the five years the doctor was on medical staff at Hanford Community Medical Center.
But Bernabe’s surgical touch, so widely coveted, often was unnecessary, based on his own faulty diagnoses, and improperly performed, in the sworn opinions of medical experts who later observed the malpractice carnage.
Bernabe’s work has already cost Adventist Health tens of millions of dollars over the past two years.
Individual accounts of botched Bernabe surgeries began to multiply in recent years when lawsuits against Bernabe and various entities of Adventist Health started appearing.
Lawsuits filed by a San Diego law firm, Thorsnes Bartolotta McGuire, eventually incorporated three dozen claimants — and resulted in a secret 2010 settlement of $32 million from defendants Hanford Community Medical Center, Adventist Health California Medical Foundation, and Adventist Health Systems West.
That settlement came only after plaintiffs’ attorneys threatened to separate causes of action against the hospital for each client, including fraud, battery, elder abuse, unfair business practices, and negligence. By not settling, hospital officials feared, lengthy litigation would occur, and would negatively “impact the hospital and medical community’s reputation,” according to court documents.
The Adventist settlement, details of which are cloaked by a judicial gag order binding all defendants, attorneys for both sides, and others connected to the cases, does not include Bernabe. He remains on the hook as an individual defendant in at least 100 pending individual malpractice and related actions, and is the target of dozens of formal complaints lodged with a state regulatory agency.
Surgeon’s problems started early
Bernabe began attracting litigation only a year after he started practicing in Adventist facilities. Those earlier actions concentrated on simple malpractice claims.
But a fateful miscue by a Bernabe employee in December 2008 abruptly opened the door for the broader, more serious, allegations of fraud, malice, and battery now being leveled by people who endured Bernabe’s surgery.
Until that time, Bernabe’s attorneys had been incorporating written descriptions of Bernabe’s x-rays (upon which he based his diagnoses) in court filings responding to litigation. As the physician learned of pending actions against him, he would flag the medical files of that person, requiring employees to discuss with him or his wife any “request for release” by opposing lawyers prior to responding.
Despite his efforts, two patients’ x-rays by Bernabe slipped through the filter and into the hands of plaintiffs’ attorneys.
Bobby Stevens, now 71, went to Bernabe in 2009 complaining of severe groin pain. Bernabe took x-rays, but not an MRI, and then told his patient ample evidence existed that an immediate, total hip replacement was necessary because of advanced arthritis.
Later it would be discovered that Stevens actually had a herniated disc in his lumbar spine — requiring only a relatively simple surgical fusion.
Proof of that was in the x-rays taken by Bernabe himself, and delivered in error to attorneys for plaintiffs.
In court documents filed March 1, Stevens’ attorneys assert that their client “presents… evidence that Stevens’ surgery was not only unnecessary… (but) that Bernabe knew it was unnecessary, but operated anyway.”
Benjamin Siminou, one of Stevens’ attorneys, told the court in the most recent filing that his client “was simply one installment of a calculated strategy to persuade unsuspecting patients to undergo unnecessary medical procedures for Bernabe’s own financial gain.”
Orthopedic surgeon Dr. Richard Santore studied pre-operative x-rays of Stevens’ hip taken pre-Bernabe, and in deposition testified the x-ray showed the hip bone to be “normal and free of advanced arthritis which would warrant surgery.”
Those fortuitously delivered x-rays from Bernabe’s office have proven critical to plaintiffs’ cases: In December 2008, a “power surge” destroyed his fluoroscopy machine, claimed Bernabe, and every one of the 12,000 films he had been using to justify his hundreds of surgeries.
This has been a courtroom war effectively cloaked by judicial gag orders and a protracted series of pre-trial motions and responses. But that is about to change. Stevens’ case is one of a pair of amended complaints that will debut March 26 in Kings County Superior Court in Hanford.
Linda Haley’s case is the other, and she and Stevens relate very similar stories. Their cases also have in common the fact that both possessed pre-operative x-rays of their injuries taken by other physicians. Because of that evidence of pre-operative conditions, the stage is now set for subsequent lawsuits repeating the claim that Bernabe often purposely misread his own x-rays for profit.
Four years after the initial complaint was filed, said Stevens’ attorney, Siminou, “This is going to be the first time that Bernabe’s actual conduct will be discussed in court. So far, no evidence has been introduced as to what he did.”
The hearings will commence a tragic litany of human suffering.
Roger Clark visited the Hanford Community Medical Center in October 2006 for an examination of his left knee. Bernabe’s prescription was a complete knee replacement, which occurred the following month. However, according to Kings County court records compiled in a lawsuit including Clark and dozens of others, complications with the surgery necessitated a second full knee replacement. This surgery, too, was performed by Bernabe.
When pain persisted nevertheless, Clark sought other physicians’ opinions. The unanimous finding: “total failed knee arthroplasty” (the creation of an artificial joint, generally to correct advanced degenerative arthritis). Clark’s medical issue was eventually corrected by another surgeon.
Patricia Rambo had a left shoulder replacement performed by Bernabe in 2008, and two months later underwent a second surgery to correct what Bernabe called “natural and unavoidable complications” from the first surgery.
Rambo was then examined by Hanford orthopedic specialist Dr. Kenneth Mai, who opined “the shoulder replacement was not performed according to any standard of care and would need to be completely redone,” according to court records. Mai also said that the “negligent” surgery would require additional care and treatment for Rambo into the future.
Mai, whose opinion was sought by numerous former Bernabe patients, declined comment when contacted by a reporter.
Clarence Mattos had a bone spur in his right shoulder. Court documents suggest that Bernabe performed surgery in February 2007, but Mattos’ pain only intensified, and his arm mobility had been greatly impaired.
Subsequent examinations of Mattos by other area physicians showed that Bernabe had cut Mattos’ deltoid muscle, and that “was not consistent with standard practice.”
Julie Rogers of Hanford suffered what would be described as “a miniscule tear” in her right knee in January 2009, resulting in a total knee replacement by Bernabe. That replacement was unnecessary, specialists later testified in depositions, “if Bernabe had done the proper procedure in the first place.”
His medical license may be in jeopardy
Bernabe is still an orthopedic surgeon, his license unimpaired, according to Donald J. Krpan, executive director of the Osteopathic Medical Board of California (OMB). Krpan acknowledged recently that OMB has received multiple complaints about Bernabe and his work, but Bernabe’s license to practice is currently “in good standing”… through October 2012.
Nevertheless, a “sometimes cumbersome administrative process” is playing out, said Krpan.
When a malpractice lawsuit is filed against a California osteopathic doctor, he said, a parallel complaint generally is received at the OMB. The nine-member board receives notification of all such complaints.
Krpan conceded that several dozen complaints about Bernabe collected by the board have now been examined by “our expert medical consultant.” Subsequent review of those documents has been used to determine if procedures performed by Bernabe met critical professional standards, said Krpan, and if any actions violated those standards in an identifiable manner.
“We have received (the consultant’s) opinion,” said Krpan, and “in at least several Bernabe cases” the procedures “did not meet” those standards.
“In Doctor Bernabe’s case, what is going to happen is that (the Osteopathic Board) probably will be sending the matter to the Attorney General’s office,” he said.
That would initiate an administrative judge’s decision on Bernabe’s fitness for license. Then, specific cases could be remanded for criminal prosecution, initiated by district attorneys in jurisdictions where the alleged surgical malpractice occurred, said Krpan.
Bernabe moved from Central California in 2010 following the deluge of lawsuits, and recently filed for personal bankruptcy. He now resides in an upscale, gated community in Corona, and drives one of several luxury vehicles. Most days he spends at a Los Angeles chiropractic office on Avalon Blvd., but his role there, if any, is unclear. A woman who answered the telephone at that office said recently that “no one by that name works here.”
“We have evidence to the contrary,” said plaintiffs’ lawyer Siminou.
Bernabe’s attorney, James J. Zenere, of the San Jose law firm of Sheuerman, Martin & Tabari, said he “never comments on pending litigation” and declined a request for an interview with the doctor.
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Dale and Lou Faber and their siblings are still angry about their father Ernest’s death. Both provided post-operative care for him, then watched his steady decline in the months following an initial operation and multiple follow-up procedures.
Dale Faber, a Colorado resident, recalled that Bernabe finished the first operation, which called for scraping the knee cartilage, in 30 minutes. The physician originally said it would take “at least two hours.” And attending nurses later would tell Faber family members that Ernest suffered a seizure while under anesthesia, and had to be resuscitated — something Bernabe never mentioned.
Dale Faber said he found Bernabe to be abrupt and dismissive: “He had no bedside manners.” And despite the elder Faber’s continuing pain weeks after the final surgical procedure, Bernabe would simply tell the caretakers, “Don’t worry about it.”
Physical therapy was proving very painful, and the knee was flushed and swollen, with red streaks extending from its radius. Bernabe, though, kept insisting the condition was “just normal after surgery, and he’s just healing slowly,” said Dale Faber.
A second opinion was sought from the Hanford orthopedic specialist, Mai, who immediately determined that immediate surgery was needed because of a critically infected kneecap.
“My dad was about to lose his entire leg,” said Dale Faber. “Dr. Mai said he’d probably never recover the whole use. All those operations… four surgeries in a year… all that anesthesia. It just knocked the hell out of him.”
Before his encounter with Bernabe, Ernest Faber was “in good shape, able to ride his bike around, take care of himself… but after [Bernabe’s] surgeries he was pretty much locked up in a cage,” said Dale. “When he realized that he wasn’t going to get out of the rest home… well, that was pretty much it.”
Ernest Dale Faber died August 12, 2011, at the age of 75 — 30 pain-ridden months after his first visit to Dr. Randy Bernabe.