VA conceals shoddy care and health workers' mistakes
By DONOVAN SLACK AND MICHAEL SALLAH | USA Today | Published: October 12, 2017
Behind the walls of the nation's oldest veterans' hospital, the reports were grim.
Medical experts from the Department of Veterans Affairs blamed one botched surgery after another on a lone podiatrist.
They said Thomas Franchini drilled the wrong screw into the bone of one veteran. He severed a critical tendon in another. He cut into patients who didn't need surgeries at all. Twice, he failed to properly fuse the ankle of a woman, who chose to have her leg amputated rather than endure the pain.
In 88 cases, the VA concluded, Franchini made mistakes that harmed veterans at the Togus hospital in Maine. The findings reached the highest levels of the agency.
"We found that he was a dangerous surgeon," former hospital surgery chief Robert Sampson said during a deposition in an ongoing federal lawsuit against the VA.
Agency officials didn't fire Franchini or report him to a national database that tracks problem doctors.
They let him quietly resign and move on to private practice, then failed for years to disclose his past to his patients and state regulators who licensed him.
He now works as a podiatrist in New York City.
A USA TODAY investigation found the VA – the nation's largest employer of health care workers – has for years concealed mistakes and misdeeds by staff members entrusted with the care of veterans.
In some cases, agency managers do not report troubled practitioners to the National Practitioner Data Bank, making it easier for them to keep working with patients elsewhere. The agency also failed to ensure VA hospitals reported disciplined providers to state licensing boards.
In other cases, veterans' hospitals signed secret settlement deals with dozens of doctors, nurses and health care workers that included promises to conceal serious mistakes – from inappropriate relationships and breakdowns in supervision to dangerous medical errors – even after forcing them out of the VA.
USA TODAY reviewed hundreds of confidential VA records, including about 230 secret settlement deals never before seen by the public. The records from 2014 and 2015 offer a narrow window into a secretive, long-standing government practice that allows the VA to cut short employees' challenges to discipline.
Some employees who received the settlements were whistle-blowers or appear to have been wronged by the agency. In other cases, it's clear the employees were the problem.
In at least 126 cases, the VA initially found the workers' mistakes or misdeeds were so serious that they should be fired. In nearly three-quarters of those settlements, the VA agreed to purge negative records from personnel files or give neutral or positive references to prospective employers.
In 70 of the settlements, the VA banned employees from working in its hospitals for years – or life – even as the agency promised in most cases to conceal the specific reasons why.
Michael Carome, a doctor and director of the health research group at Public Citizen in Washington, said removing records from personnel files and providing neutral references create potential danger beyond the VA.
"It's unacceptable," he said. "What they are saying is, 'We don't want you to work for us, but we'll help you get a job elsewhere.' That's outrageous."
The VA settled with a nurse who managers initially found had left a psychiatric patient bound in leather restraints for hours; a medical technician who made errors on critical bone imaging charts; and a hospital director accused of harassing female workers while his facility fell weeks behind in treating veterans.
The VA found radiologist Jorge Salcedo misread dozens of CT scans, images that detect tumors and blood clots, at a VA hospital in Spokane, Wash., according to Texas Medical Board records. Instead of firing him, the VA agreed to pay him up to $42,000 of unused sick and leave pay and let him resign with a clean reference in 2015. The Texas records show Salcedo told the medical board he resigned under investigation, but he didn't admit or deny the VA's findings.
The VA has been under fire in recent years for serious problems, including revelations of life-threatening delays in treating veterans in 2014 and efforts to cover up shortfalls by falsifying records. New VA leaders promised accountability, including increased transparency and a crackdown on bad employees.
In the years since, the VA has fired hundreds of employees involved in patient care. Details of each case – including the names of fired doctors – largely remain secret.
In denying requests for information, the agency cited federal privacy law and said protecting employees' privacy outweighed the public's right to know about problems involving veterans' care.
Agency leaders who took over after President Trump's inauguration declined to discuss how their predecessors handled cases uncovered by USA TODAY.
VA spokesman Curt Cashour said "we cannot explain or defend" settlements negotiated by past agency leaders.
In response to USA TODAY's findings, VA Secretary David Shulkin ordered that all future settlement deals with employees involving payments of more than $5,000 be approved by top VA officials in Washington. In the past, decisions about most deals were left to local and regional officials. The settlements USA TODAY reviewed involved workers at more 100 facilities in 42 states.
In addition, the VA said it will review its policy of reporting only some medical professionals to the national data bank following USA TODAY's questions about its investigation of Franchini, who did not get a settlement.
"We will review the specific elements of this situation, along with patient safety procedures and how and when we report to the National Practitioner Data Bank and state licensing boards," Cashour said.
A forever reminder
April Wood lives with a permanent reminder of Franchini's surgeries.
During Army boot camp in 2004, Wood sliced her hands on a rope during a training exercise and plunged 20 feet into a cargo net.
"I heard the bones break, and I felt it," said Wood, 42. "And I know I let out a noise that's ungodly."
Her ankle did not heal properly, leaving her no choice but to accept a discharge months later. She moved to Maine and sought care for her foot at Togus VA hospital on the outskirts of the capital, Augusta. To Wood, Franchini seemed a savior.
"He said he could do all this wonderful stuff. So I was like, 'Yay, finally somebody cares, somebody wants to help me.' "
She first went under Franchini's knife in 2006. The result: years of excruciating pain.
Franchini said that she had "mushy bones" that were difficult to fuse, she said. She put up with the pain even while working long hours on her feet as a hairdresser and chasing three young children.
Franchini tried a second surgery in 2009, but Wood said her pain grew worse.
She started spending much of her life in a wheelchair, unable to work. By 2012, she said her path seemed clear.
"I had to believe that something else was better than that amount of pain," Wood said.
On Aug. 28, doctors at the Togus VA amputated Wood's leg below the knee.
Nearly five months later, the phone rang. The VA had concerns about Franchini's surgeries, including hers. Franchini had resigned while under investigation two years earlier, and VA officials had been examining hundreds of his former patients' cases.
Using previous X-rays and medical records, they concluded that Franchini had improperly fused her bones, leaving her heel permanently arched higher than the ball of her foot.
Franchini's surgeries "more likely than not contributed significantly" to the chronic pain that led to her amputation, the VA report concluded.
Wood, living in rural Missouri, sued the VA.
In an interview with USA TODAY, Franchini denied making mistakes and said he never got to respond to all of the VA's findings. When the VA placed Franchini on leave after finding problems with a small sample of his cases in 2010, his attorney submitted two outside reviews saying the VA's findings were not backed up by the medical records.
The VA eventually reviewed nearly 600 of his surgeries from his six years at Togus. The 56-year-old podiatrist said several doctors were in the operating room with him, and no concerns were raised at the time.
Since leaving the VA, Franchini said, he has performed numerous surgeries without complications.
"If I was so bad, I would be bad all the time," he said.
The VA's investigation of Franchini did not end his career.
In 2010, after the agency stopped letting him see patients, Franchini resigned and took a job with a surgical center in the Bronx.
Despite leaving the agency under investigation – a serious event for practitioners – VA officials did not disclose his resignation to the National Practitioner Data Bank.
Under a nationwide VA policy in place for nearly three decades, the agency doesn't report such events for podiatrists and other kinds of medical providers, including thousands of nurses and physician's assistants working for the agency.
VA officials say the agency is only required under federal law to report medical doctors and dentists, and that all other providers are optional.
However, a review of the database shows other institutions go beyond the law and report podiatrists and other providers who may have harmed patients.
Podiatrists, foot doctors who attend colleges of podiatry rather than traditional medical schools, are trained to treat conditions of the feet and ankles. They perform surgeries and prescribe drugs, prompting experts to say they should be reported to the data bank.
Congress created the national clearinghouse in 1986 to prevent problem medical workers from crossing state lines to escape their pasts and keep practicing.
"It makes no sense to report only half the people who can cause harm," said Michael Gonzalez, an Ohio health care lawyer who represents hospitals. "There are podiatrists who do a lot of foot and ankle surgeries."
The lack of reporting to the national database is not the only gap found by USA TODAY.
VA policy recommends officials notify another government authority – state medical licensing boards – within 100 days of launching an investigation into medical workers who may have harmed patients.
The VA provided USA TODAY with such reports for fewer than 50 employees in the past 10 years.
The VA said it has reported more employees to state boards than appear in those records, but the agency can't provide a number because its hospitals fail to follow the agency's policy to share all such reports with headquarters.
Even when the VA does report medical providers to states, records reviewed by USA TODAY show delays in making such reports can stretch for years.
It took VA officials two years to report their findings about Franchini's surgeries to state medical boards. In that time, he was able to get jobs with no indication of his past problems on his licenses.
What's more, he was able to get licensed in two more states after leaving the VA – Massachusetts and Connecticut.
State medical boards won't discuss investigations, but Franchini remains licensed in New York, Rhode Island, Massachusetts and Connecticut and has practiced in three of the states in the past two years. Notices to state boards are confidential unless they result in disciplinary action, so there is no way to know if there have been complaints about him since he left the VA. Three of his recent employers declined to comment.
Experts said the VA's reporting practices leave gaping holes that could endanger patients.
"The VA should do the right thing and report them," Carome said. "It's about protecting the public."
Hundreds more secrets kept
The secret settlements obtained by USA TODAY represent a fraction of the problem doctors and other employees the VA has discovered over the past 10 years.
Each year, the agency fires hundreds of medical workers and pays out hundreds of malpractice claims.
The providers' names remain secret.
USA TODAY asked to inspect the records for thousands of those cases, but the VA blacked out or would not release the identities of the providers or the details of what took place.
That's what makes the small set of secret settlements obtained by USA TODAY so unique.
Though the records do not describe the wrongdoing, they provide the names, job descriptions, the amount of the settlement payments and other terms.
In the 230 deals, the agency spent $6.7 million to settle with employees, including doctors, nurses and other health-care workers.
One of the biggest payments went to Mario DeSanctis, the former director of the VA's Tomah medical center in Wisconsin. The hospital became known as "Candy Land" because of the dangerous doses of powerful narcotics routinely dispensed to veterans.
VA investigators warned DeSanctis in 2012 that the center was known to police as a supplier for drugs in the area and advised him to take action, according to testimony in a U.S. Senate investigation of the case.
Investigators blamed the hospital when a 35-year-old Marine veteran died two years later after he was prescribed a fatal cocktail of more than 13 drugs. His father had visited him hours earlier and said he was lying in the mental health ward, babbling and holding his head.
The VA fired DeSanctis, but he fought it, and the agency struck a deal with him. It let him resign and paid him and his lawyer $163,000. It pledged neither side would divulge the details of the agreement. DeSanctis did not respond to interview requests.
"It makes me sick," the veteran's widow, Heather Simcakoski, said of the secret payout. "He shouldn't have anything. He should have been fired."
Patients in the dark
The VA's policy about medical mistakes is clear: Patients should be notified as soon as possible.
In 2012 – two years after the agency revoked Franchini's clinical privileges – the VA's top leaders had still not told the patients.
The findings reached VA headquarters in Washington, sparking a scramble to head off a crisis.
Chief Medical Officer Andrea Buck recommended that because there was an "absence of ongoing harm," the agency should create a plan to notify Congress and a communication strategy before talking to his patients, according to records in a federal lawsuit against the VA.
It would be the next year – after Wood's leg was amputated – when the VA told patients.
The notification surprised Kenneth "Jake" Myrick, 43, an Army combat veteran from Maine. It meant the VA would allow him to be re-examined for grueling pain he had endured for years.
The result of his VA review: "substandard" care. Surgeons reviewing the case determined Franchini improperly used a technique that involves rerouting tendons to shore up failing ankles.
Myrick said the operation failed, forcing him to walk with a cane. Not until doctors performed corrective surgery years later could Myrick properly walk again, he said.
By the time the agency informed Myrick about the surgical errors it had discovered, it was too late to sue. Maine's three-year deadline to file suit for medical negligence had expired.
He's one of at least six veterans suing the VA in a case that accuses the agency of fraudulently concealing Franchini's mistakes. The VA has denied the claim, arguing in court that nothing prevented the veterans from suing earlier.
Brewster Rawls, a longtime Virginia malpractice lawyer and Army veteran who filed an unsuccessful claim for one veteran, called the delays "inexcusable."
"How is the claimant supposed to know when (the VA) was sitting on this?" Rawls asked. "What they did was just wrong."
Myrick said that if the VA followed its own guidelines, it could have helped the veterans the agency is supposed to serve and made sure other patients were not harmed.
"They were just trying to protect themselves," Myrick said. "We are told to have honor, duty and sacrifice. The VA had no honor. They failed in their duties, and they were willing to sacrifice the people they were supposed to serve."
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