Whistleblower Lawsuit Claims Misdiagnosis, Cover-Up At KU Hospital
This story was updated at 5:24 p.m. to include KU Hospital's statement.
An explosive lawsuit filed by a University of Kansas Hospital pathologist charges that the head of the hospital’s pathology department wrongly diagnosed a patient with cancer and then covered up the mistake after an organ of the patient was removed.
The lawsuit says KU Hospital refused to rectify the error and retaliated against the plaintiff after he called the matter to the attention of the Joint Commission, which accredits and certifies hospitals in the United States.
The suit, filed today in Wyandotte County District Court by Dr. Lowell L. Tilzer, says that as far as Tilzer knows, the patient has yet to be informed of the misdiagnosis.
“The form of cancer that was erroneously diagnosed within the patient is commonly known as potentially lethal; and the patient who was misdiagnosed has lived with this unwarranted fear” since the hospital concealed the misdiagnosis, the lawsuit alleges.
KU Hospital issued a statement late Friday afternoon saying it first learned of the lawsuit when KCUR called and asked it to respond.
"We are not in a position to provide detailed feedback at this time," the statement says. "However, just from a brief review of the allegations made, there is little to nothing in the petition that we believe to be grounded in truth.
"The patient to whom Dr. Tilzer’s petition references was fully informed of the diagnosis and treatment plan after surgery and prior to leaving the hospital, and is pleased with the care and clinical outcome."
Tilzer, who was chair of the hospital’s pathology department for 6 ½ years until 2015 and has been on staff for 25 years, says that after the hospital refused to acknowledge its mistake and he sent his report to the Joint Commission, he was summoned to meet with KU Hospital President and CEO Bob Page on May 31.
According to Tilzer’s lawsuit, Page asked him if he wanted to resign, berated him for contacting the Joint Commission, accused him of lying to the commission, asked him why he had “done this alone” and described Tilzer’s report to the commission as “pitiful” and “despicable” behavior.
The lawsuit does not name the chair of the pathology department who allegedly misdiagnosed the patient. But the current chair is Meenakshi Singh, who has occupied that position since May 2015, when Tilzer stepped down. In a telephone interview Friday, Tilzer said it was Singh who made the misdiagnosis and then covered it up.
“She finally said in April 2016 ‘I made a mistake.’ It took her eight months," Tilzer said.
McCulloch, the KU Hospital spokesman, said Singh is aware of the lawsuit but she would not comment.
The lawsuit, filed under the Kansas whistleblower statute, does not seek damages but rather asks the court to prevent KU Hospital from retaliating against Tilzer and from terminating his employment.
“I’m not really afraid of being fired but I am afraid if the administration’s attitude for helping cover up the misdiagnosis will affect other patients and hurt other people. It’s that attitude they’ve got (that) I’m terribly concerned,” he said.
“I’m 66 years old,” Tilzer added. “If they fire me, it’s not the end of the world.”
Asked why he himself did not inform the patient of the misdiagnosis, Tilzer said he wasn’t the patient’s treating physician and therefore it would not have been appropriate to do so.
“I don’t think you can do that without being a direct part of her patient care,” he said.
The lawsuit does not name the patient or give other identifying information such as the date the surgery took place. The lawsuit cites HIPAA, the federal law that protects patient confidentiality.
Asked what action the Joint Commission has taken, Tilzer said the commission was only empowered to examine the hospital’s policies and procedures, not individual cases.
According to Tilzer’s lawsuit:
Tilzer learned in 2015 that the pathology chair had misdiagnosed the patient’s tissue sample as cancerous. An “essential body organ” of the patient, or part of it, was then removed. Afterward, when other hospital pathologists examined tissue samples from the organ, they found it was “essentially normal” and not cancerous.
A re-examination of the pre-surgery tissue sample came to the same conclusion. After the pathology chair was informed of her misdiagnosis, she covered it up “by placing an addendum to her original report stating the original cancer diagnosis and the normal removed organ matched, thereby concealing her original misdiagnosis and perpetuating the patient’s mistaken belief that the patient’s removed organ was cancerous.”
In September, Tilzer informed KU Hospital’s chief medical officer and risk management officer that the hospital needed to conduct a “root cause analysis” of the mistake to make sure it wouldn’t happen again. The chief medical officer responded that the original diagnosis was correct because two other pathologists signed the report. But Tilzer says the two other pathologists did not agree with the original diagnosis, “and the chair simply wrote their names in the electronic medical record.”
The chief medical officer allegedly refused Tilzer’s request to talk to other pathologists and a root cause analysis was not performed, according to the lawsuit.
In early 2016, the chair of the pathology department allegedly “instructed others to alter medical records regarding the Chair’s misdiagnosis,” the lawsuit says, and to remove any reference that a root cause analysis was necessary.
The lawsuit adds that Tilzer had concerns about the chair’s competence that were “further reinforced when continuing mistakes by the Chair and actual or potential harm were brought to Tilzer’s attention.”
In the telephone interview, Tilzer said he had no qualms about Singh’s initial hiring but later became concerned about her competence after she allegedly misdiagnosed other patients. In one case, he said, she diagnosed a breast biopsy as pre-malignant when it was benign.
He said that in that case, Singh changed the report “appropriately.”
Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR. You can reach him on Twitter @DanMargolies.