Mario Guzman lived to race. For the last two decades Guzman ran in marathons, half marathons, and competed in multiple ironman triathlons. “It was a passion. It wasn’t a hobby, it was a passion,” Guzman said.
That all changed more than three years ago when Guzman went to the doctor after injuring his ankle during a run. “We were very puzzled about his symptoms,” said Ludmila Parada, Mario’s wife. “My husband has a fever, he feels very ill and the foot that was completely unremarkable the day before was all swollen and red and he couldn’t put weight on it.”
The doctor at Kaiser Permanente Santa Clara Medical Center treated Guzman for a sprained ankle and the flu, but it was later determined his symptoms were related to a common bacterial infection that Guzman believes could have been treated with antibiotics.
Guzman says he believes the misdiagnosis allowed the infection to spread and by the time he went to the emergency room, just three days after his original diagnosis, he was in septic shock. “It was horrible,” Parada said. “He ended up leaving the hospital as a multiple amputee, a quadriplegic.” Septic shock is the result of complications from an infection and can cause gangrene in the arms, legs, fingers, and toes.
Doctors ultimately amputated his right foot, his left arm, two fingers on his right hand, and all the toes on his left foot, leaving him confined to a wheelchair.
“It’s like they steal your life away from you,” Guzman said tearfully.
It’s cases like Guzman’s that illustrate how doctors who may make mistakes that result in devastating injuries can keep practicing without facing any discipline.
Guzman and his wife tried going after Kaiser for medical damages, but lost their arbitration case. “We are confident the care provided was appropriate,” said Karl Sonkin, spokesperson for Kaiser Permanente. “This conclusion was upheld when the family unsuccessfully pursued their claim in arbitration, and the decision was entirely in Kaiser Permanente’s favor.”
Complaint Filed with California Medical Board
The family then turned to the California Medical Board, the state’s consumer protection agency that was created to investigate and discipline physicians. An investigator with the Department of Consumer Affairs, which oversees the Medical Board determined the doctor’s “treatment fell below the standard of care.”
“It was like vindication for us,” Guzman said. “Here’s the proof. We were right all along.” That jubilation didn’t last. While the medical board made that determination, by law, it relies on the California Attorney General’s Office to pursue disciplinary actions against a doctor. The medical board hires their attorneys to take on disciplinary cases against physicians.
In Guzman’s case, the Attorney General’s office opted not to take any action. “They did nothing,” Parada said. The family received a letter from the Attorney General that said “the matter was closed based on insufficient evidence.”
Guzman’s doctor still has a clean disciplinary record and continues to see other patients.
Relationship between California Medical Board and California Attorney General’s Office
State law requires lawyers from the AG’s office to work alongside the California Medical Board to determine which doctor’s should be referred to the AG’s office for possible disciplinary action. With this model, the AG’s office should be able to prosecute just about every case referred by the Board since its own staff helped move the case forward.
“Not enough evidence is a strange thing to say at the end of the case when the lawyer has been involved from the beginning,” said Ed Howard, an attorney with the Center for Public Interest Law, which is a non-profit that acts as watchdog over California’s state boards and agencies. “If you have disagreements between the Attorney General and the medical board about what kinds of cases are worth bringing, that by definition means there is something screwed up.”
The executive director of the California Medical Board, Kimberly Kirchmeyer, acknowledges the two agencies can do a better job at working together. “As with any system there can always be improvement and we believe that there should be some in this model,” Kirchmeyer said. She recently recommended that her staff and lawyers with the Attorney General’s office undergo more team training in hopes of reducing the number of cases that the Attorney General’s office closes.
Guzman’s case is rare. Last year, the California Medical Board referrd 471 doctor complaints to the Attorney General’s Office, of those 27 were never pursued. “Once they get the full file in front of them and they start piecing everything together, they may determine that they can no longer meet that burden of proof,” said Kirchmeyer. “We do push back on cases,” While investigators may pushback, the Attorney General’s Office still has the final say on whether to pursue a case.
High Burden of Proof
California sets a high bar when it comes to what kind of conduct legally constitutes disciplinary action for doctors. “Our burden of proof according to the law is clear and convincing evidence, so it’s a lot higher than what malpractice cases are,” said Kirchmeyer.
It’s also not enough for a physician to have committed one mistake. It has to be “repeated negligence” or conduct so egregious that it’s considered “gross negligence.”
The specific reasons behind the Attorney General’s decisions on whether to pursue a case are kept confidential so Guzman has no way of knowing why the Attorney General’s office never took action with his case. “It’s like a slap in the face,” said Guzman. “Not only did they do nothing, they don’t tell you why or give you your file.”
In a statement the Attorney General’s office said every case is conducted on its own merits, but wouldn’t comment on specific cases.