Printed on: April 22, 2013

Family sues SW Idaho hospital over father's death

KATY MOELLER
Idaho Statesman

BOISE, Idaho (AP) - James Dorsey led a full and active life, his final years spent helping care for his grandchildren and enjoying big family dinners.

The 70-year-old died Sept. 12, 2011 at Complex Care of Idaho in Meridian. His family believes he died unnecessarily because of medical negligence.

After surgery for lung cancer, his family says, he was moved to the long-term acute care hospital in Meridian that treated him as if he were dying rather than recovering. They say a physician changed Dorsey's status to "do not resuscitate" without Dorsey or his wife signing off, initiated end-of-life "comfort care" without consulting the family and prescribed fatal doses of pain-killing drugs.

The experience sent the Nampa man's son, Jim, a 44-year-old former restaurateur, on a 1 1/2-year crusade to meticulously and relentlessly gather documents and search for evidence to prove that his father did not die a natural - or accidental - death.

In a lawsuit filed last week against Complex Care of Idaho and two physicians, the family alleges medical malpractice and wrongful death.

The lawsuit says the actions of the physicians and hospital were illegal, constituting a felony crime such as homicide, manslaughter, administering poison with intent to kill, assisting a suicide or euthanasia.

The original death certificate completed by Complex Care's Dr. Jamia E. Byrns listed Dorsey's death as "natural," caused by right lower lobe pneumonia.

But after an autopsy, the Ada County Coroner's Office voided the death certificate and issued a new one. The cause of death was listed as combined drug overdose (lorazepam and morphine). The manner was listed as "accident."

CLEAN RECORDS

If the plaintiffs' attorneys can prove that the hospital staff's conduct leading up to Dorsey's death was willful, reckless or a felony under state law, state caps on non-economic damages of about $310,000 don't apply.

Meridian police said they concluded that no crime occurred and did not investigate the death.

Randy Evaro, administrator for Complex Care of Idaho, didn't return calls for comment last week.

Byrns is one physician named as a defendant; the other is Dr. Julie D. Lyon. Both are now employed as hospital-based physicians at St. Luke's Boise Medical Center. Through a hospital spokesman, they declined an opportunity to comment.

Neither physician has a record of disciplinary action by the state, according to the Idaho Board of Medicine's online database. The board does not disclose active investigations, said Nancy Kerr, executive director of the Board of Medicine.

FAMILY CONFRONTATION

Dorsey was transferred to Complex Care from Saint Alphonsus Regional Medical Center, where he'd undergone surgery to remove a cancerous tumor from his right lung. He was at Saint Al's for about six weeks before he was transferred to Complex Care, a long-term acute care hospital.

Four days into Dorsey's six-day stay at Complex Care, his family says, they became alarmed when the hospital stopped medical treatment and initiated an aggressive regimen of pain-killing drugs.

"I said, 'Wait, if you're not going to give him any care, then I'm going to take him home,'" Dorsey's wife, Jacinta, told the Statesman.

Dr. Byrns strongly rejected the idea of releasing Dorsey from the hospital, she said.

"If I tried to take him out AMA (against medical advice), she said she'd call the cops," Jacinta Dorsey said.

Attorney and former Canyon County Prosecutor Dave Young, a Dorsey family friend who was at the hospital to offer support, said he heard the confrontation and shouting over Dorsey's medical care down the hallway.

Young said he arranged to have Dorsey transferred back to Saint Alphonsus Regional Medical Center the next morning - but that never happened, and he never got an explanation from Complex Care staff about why not.

ALLEVIATING PAIN OR ENDING A LIFE?

When Saint Al's discharged Dorsey, its summary indicated Dorsey had failed "swallow evaluations" and was put on a feeding tube due to risk of drawing substances into his respiratory tract.

"Mr. Dorsey did participate in physical therapy and ambulated in the halls with a walker; he was limited due to his higher oxygenation requirements and also his deconditioned state," the discharge report says.

When James Dorsey arrived at Complex Care, Lyon performed the patient history and exam, according to the lawsuit. Dr. Byrns got involved in his care four days later.

The lawsuit alleges that Byrns prescribed, administered or dispensed medications that she knew, or should have known, would cause Dorsey's death.

Medical records show numerous increases in dosages of morphine and lorazepam during the night before and morning of Dorsey's death, according to the suit. He lost consciousness after the initial administration of drugs and never again awoke, according to the family.

"There's no justifiable reason for that - the goal (of comfort care) isn't to keep a patient unconscious," said the plaintiffs' attorney, Michael Hanby. He said even if a patient is at death's door, the goal of comfort care is to keep the person comfortable, not unconscious.

"He wasn't in that immense amount of pain where he required that kind of medication to be comfortable," Hanby said. He said an expert told attorneys that the combined dosage Dorsey received was enough to kill an elephant.

"There was an effort to end life rather than alleviate pain," said Hanby. "There was no mistake here. Dr. Byrns ordered what she ordered. The administration of medications comes from the medical records."

STATE INVESTIGATION INTO ALLEGATIONS

After Dorsey died, his family notified the Ada County Coroner's Office that the hospital had administered drugs against their wishes and, they believed, caused his death. The coroner conducted an autopsy before the body was cremated.

The family filed a complaint about Complex Care with the Idaho Department of Health and Welfare, triggering an investigation in 2011.

State health investigators did an unannounced survey from Oct. 31 to Nov. 3. Hospital staff and five patients were interviewed, and medical records of 13 patients were reviewed, according to the report from the investigation.

The national medical director for Complex Care of Idaho's parent organization was interviewed about medication administered as part of "comfort care," according to the investigation report.

"He stated the use of Ativan and morphine IV drips did not have a maximum dose limit for comfort care patients," the report says. "He stated the right dose is variable between patients and as an (individual patient) adapts."

State investigators found "insufficient evidence" to substantiate any of the allegations of improper care made by the Dorseys. The report offered this caveat:

"When the allegation is referred to as unsubstantiated, it means that noncompliance with a regulation could not be proven. It does not mean that an incident did not occur or that a family member/visitor did not witness a problem. It means that an allegation could not be confirmed through the investigation process or the facility took corrective measures prior to the investigation."

POLICE, CORONER SEE NO EVIDENCE OF CRIME

Jim Dorsey tried to file a police report with the Meridian Police Department, and he talked to officials there on numerous occasions.

"There is nothing there for us to go on that would indicate anything criminal," Meridian Police Deputy Chief Tracy Basterrechea said last year. "There's no report to be filed, if there's no criminal conduct."

The Dorsey family's request for a coroner's inquest was denied. Coroner Erwin Sonnenberg said his office didn't find anything to indicate a crime had occurred.

A coroner's inquest - impaneling a jury to investigate a death, ordered at the discretion of the coroner - is expensive, time-consuming and rare. The last Ada County inquest was in 2005, involving a high-profile officer-involved shooting of a 16-year-old boy.

Undeterred, Jim Dorsey has filed complaints with the Drug Enforcement Administration and the Idaho Board of Medicine.

The Board of Medicine receives 280 to 300 complaints each year, according to Kerr, the executive director. Before a medical malpractice lawsuit can be filed, the complainant must go to a prelitigation panel.

About 120 cases go to such panels each year in Idaho. Kerr said the three-member panels typically have an attorney hearing officer, a physician and a lay member of the public.

Both sides get to present to the panel, which makes a recommendation to the parties about the merits. The outcome is confidential: It is not shared with the Idaho Board of Medicine or anyone else.

"The purpose is to eliminate frivolous suits," Kerr said, noting also that it offers an opportunity for settlement.