Suspension doesn't stop VA doctor from practicing

By COLLEEN HEILD | Albuquerque Journal, N.M. | Published: June 24, 2012

ALBUQUERQUE — Dr. Frank Allen Zimba has been practicing medicine for 31 years, is board certified in neurological surgery — and has a disciplinary history in two other states of operating on the wrong part of his patients’ spines.

The 57-year-old Texas native was hired at the Veterans Affairs hospital in Albuquerque last August, even though disciplinary proceedings that resulted in a suspension of his Oklahoma medical license were pending.

The VA in Albuquerque isn’t saying whether Zimba has had any problems on the job so far — claiming it would be a personnel matter. But even if there have been, the state Medical Board has no jurisdiction to investigate.

That’s because under federal law Zimba is not required to be licensed in New Mexico, unlike most other physicians who work here. He only needs to be licensed in one state in the country, and he has licenses in Oklahoma, New York, Michigan and Pennsylvania.

That left Zimba — who, through a VA spokeswoman, declined to be interviewed for this story — able to work at the Albuquerque VA Hospital during the six months his Oklahoma license was suspended.

Disciplinary records show Zimba was suspended for allegedly operating on the wrong part of a patient’s spine in February 2010. The suspension ended in March of this year.

Several years earlier, he was alleged to have performed surgery on the wrong side of two patients’ spines at a hospital in Jamestown, N.Y.

“They call it a never event,” said Oklahoma assistant attorney general Libby Scott, because it should never happen if hospitals follow procedures and properly mark the sites for surgery.

“But it could happen to good surgeons,” she added. Still, Scott said, three mistakes in a four-year period is troubling.

“Either this is the most unlucky guy in the world or there’s something wrong here,” Scott told the Journal last week.

In two of the three surgeries, Zimba also failed to tell the patients or their families afterward that he had made the errors, according to Zimba’s disciplinary records.

Zimba attributed the mistakes in New York to problems with the markings of the surgical sites. Either the markings weren’t there, or were incorrectly placed, he told the Oklahoma Board of Medical Licensure and Supervision in a 2009 statement.

“No medical harm befell either patient,” he added.

Scott, who advises the board, recalled that after the more recent error in Oklahoma, Zimba blamed a blue dye that was used to mark the spot for surgery.

“Either the dye moved or didn’t go in right, so he was on the wrong side ... and no one really stopped him,” she added.

The patient, who was in the U.S. military, is suing Zimba and Southwestern Medical Center in Lawton, Okla., where Zimba was employed. The patient is alleging that he suffered injury as the result of negligence during the surgery.

Scott said hospitals have instituted “time outs” before a surgery, so that “before you cut, the whole operating room stops, they have a checklist to go over ... to make sure everyone is on the same page and doing the correct thing.”

“Most people, when a bad thing happens it makes them so paranoid that they double check and triple check.”

The overlap

Zimba went to work for the VA hospital in Albuquerque after his disciplinary process began but before any penalty was imposed by the state of Oklahoma.

The Oklahoma medical board filed a complaint last June accusing Zimba of unprofessional conduct and asked him to respond at a July hearing.

The hearing was postponed, and in late August 2011 Zimba started work as a staff physician in surgery service at the VA hospital in Albuquerque.

This January, he entered into a settlement agreement with the Oklahoma board, which suspended his medical license retroactively from September 2011 to March of this year.

“He told us he had this job in New Mexico, and we told him we wouldn’t settle on anything less than a six-months suspension,” Scott said.

Sonja Brown, a VA hospital spokeswoman in Albuquerque, said she wasn’t able to disclose why Zimba was hired despite his disciplinary history.

She also declined to say whether he had performed within the standard of care since his hiring or whether he had been disciplined or otherwise suspended for any length of time.

Those issues “are confidential personnel matters that I am not able to disclose,” she told the Journal in an email.

Matters of jurisdiction

The New Mexico Medical Board oversees the licensing for more than 7,500 physicians. But it doesn’t investigate complaints about physicians who aren’t licensed here.

“The patient would have to file a complaint with the state licensing board with whom he/she is licensed,” said spokeswoman J.J. Walker in an email.

Zimba’s medical license is still active in Oklahoma, but Scott said her board probably wouldn’t investigate a complaint made by a New Mexico patient.

“Because our duty is to protect the public and citizens of Oklahoma, so ... if it’s not an Oklahoma patient, it’s really not in our jurisdiction.”

As to the lack of oversight by a state licensing board, “That’s a problem obviously,” Scott said. “We have a lot of Indian facilities in Oklahoma, and most of them nowadays are requiring an Oklahoma (medical) license for that very reason.”

Brown, the VA spokeswoman, said VA policies and federal regulations are designed to “protect BOTH the patient and the practitioner.”

Under the in-house system, the VA physician’s supervisor investigates patient complaints and reports the findings to the facility leadership if a complaint is substantiated.

Brown cited a federal regulation that requires the VA to report to state medical boards any physician whose clinical practice “so significantly failed to meet generally accepted standards of clinical practice ... as to raise reasonable concern for the safety of patients.”

Some examples: errors in medication, substance abuse, patient neglect, and unethical behavior or abuse of a patient.

New Mexico medical board spokeswoman Walker said Friday that no one in her agency could recall ever receiving such a report from the VA.

The New Mexico board maintains a public website that lists basic information about its licensed physicians, including disciplinary actions taken.

Back to Oklahoma?

Zimba told the Oklahoma Medical board on his 2009 license application that he served in the U.S. Army from 1976 to 1994 and graduated from the University of Texas Medical School in Houston.

He also disclosed that he was sued for malpractice in 1997, a case that settled for $400,000.

Zimba’s disciplinary records also revealed that he had received a reprimand, probation, fines and one year of monitoring in 2008 related to the New York surgical errors.

His license in Oklahoma is up for renewal in September.

But if Zimba ever wants to return to work there, he must first appear before that state’s medical board, Scott said.

“We obviously were concerned ... without some kind of re-education, would you want someone coming back like that? The board would have to decide ... if they think he is competent or not.”


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