OUTRAGE: Doctors,the protected species

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January 5, 2001 NYT

N.Y. Surgeon Cleared of Treating Wrong Side of Brain

By JENNIFER STEINHAUER

neurosurgeon accused by the New York State Department of Health of

operating on the wrong side of a patient's brain and committing other

serious medical errors has been cleared on nearly every count and has

had his license restored. The Health Department expressed outrage at

the decision, one made by its own hearing committee, and said it would

try to prevent the doctor from resuming practice.

The state began investigating the doctor, Ehud Arbit, last year after

it received complaints that he had operated on the wrong side of the

brain of a patient a year ago at Staten Island University Hospital,

where he was chief of neurosurgery. That patient ultimately died.

The case was extraordinary because Dr. Arbit had lost his post as chief

of neurosurgery at Memorial Sloan-Kettering Cancer Center in Manhattan

in 1995 after he was accused of operating on the wrong side of another

patient's brain. At that time, the state issued minor sanctions against

him.

The outcome of Dr. Arbit's case is highly unusual as well. It is rare

that a doctor who is forced to give up his license while awaiting his

hearing — something department officials push for when they think the

doctor is a serious danger to patients — regains his license after a

hearing with the Health Department's Office of Professional Medical

Conduct, as was the situation with Dr. Arbit.

The case, which addressed 20 allegations involving 11 patients

including the later brain surgery patient, ended in a penalty that is

the equivalent of time served: the doctor has not practiced medicine in

nearly a year. Further, the hearing committee ordered that Dr. Arbit be

supervised while doing surgery by a monitor acceptable to the

department and put him on probation for three years, a penalty that

enraged Health Department officials because of its leniency.

" You better believe I am appealing, " said Dr. Antonia C. Novello, the

state health commissioner. " This is his second disciplinary action, and

I really believe that it warrants the revocation of his license. He has

a history and pattern of dangerous practices. "

The department will begin its appeal within two weeks, Dr. Novello

said.

Dr. Novello has made disciplining problematic doctors one of the

hallmarks of her administration. Many lawyers for doctors who find

themselves the subjects of State Health Department investigations have

complained in the last year that the department has been too

aggressive.

Complaints against doctors are investigated by the Health Department's

Office of Professional Medical Conduct, which submits its findings to a

three-person committee, appointed by the health commissioner. That

panel decides whether to proceed to a hearing. If a hearing is called

for, an administrative law judge and a panel of three other people, two

of them doctors, decide what action to take. The committee's decision

can be appealed to an administrative review board of the Health

Department.

The decision on Dr. Arbit is the second major loss for the department's

prosecutors in the last few years. In 1999, a hearing committee

dismissed many of the major charges against one of the doctors involved

in the death of a patient, Smart, at Beth Israel Medical Center in

Manhattan, where she underwent minor gynecological surgery.

Both cases underscore the complex and imperfect relationship between

the unit of the Department of Health that investigates doctor

misconduct and that which adjudicates it. For instance, although the

reports from an investigation can seem utterly convincing, a doctor,

and even the department's own expert witnesses, can often convincingly

contradict them.

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Further, a majority rules in Health Department hearings, unlike

criminal trials, which require a unanimous opinion. Of the three

committee members in Dr. Arbit's case, two agreed that the wrong-side

surgery case did not occur as described by department investigators.

The latest allegations against Dr. Arbit came to light last February,

when the department received a flurry of complaints from Dr. Arbit's

co-workers. After an investigation, Dr. Novello decided to bring

charges against him.

Dr. Arbit agreed, under tremendous pressure from the department, to

forfeit his license while he awaited a hearing. The hospital was fined

$80,000 in relation to the charges against Dr. Arbit, who vigorously

denied them and argued that he was the victim of a vicious plot hatched

by a jealous colleague.

Among the allegations, beyond those that he operated on the wrong side

of a patient's brain, were that he botched a number of spinal

surgeries, used inappropriate tools during one procedure, failed to

order proper tests and kept poor records.

But the committee assigned to review his case found that most of the

allegations against Dr. Arbit, including the most serious one about the

brain surgery incident, lacked merit.

The committee did find the doctor grossly negligent — the highest level

of misconduct — in his care of one of the 11 patients whose cases were

reviewed. In that case, the doctor was found to have operated on the

wrong discs of the patient's spine. In its findings, the committee

concluded that this error was " no different in substance or

egregiousness to operating on the wrong limb. "

The Department of Health also received some criticism in the

committee's findings. Among the charges was that Dr. Arbit had a high

complication rate among the 35 spinal surgeries he performed at the

Staten Island hospital in 1996 and 1997: three cases resulted in leaks

of spinal fluid, the department said.

" This factual allegation and its consequential charges was very

disturbing to the hearing committee, " their report read. " No evidence

was presented by the department " that the doctor lacked the skills to

perform these procedures, it found.

Dr. Arbit could not be reached by telephone last evening. His lawyer,

Scher, said, " Obviously, we are very, very pleased. " When told

that the department was appealing, Mr. Scher said he would take that

opportunity to try to seek a reversal of the one serious charge upheld

by the committee.