STATE BOARD OF MEDICINE

Critics: Lax system let S. Miami surgeon keep license

Critics wonder why troubled South Miami surgeon Alex Zakharia continued to keep his license, which he finally gave up Wednesday.

BY JOHN DORSCHNER

jdorschner@MiamiHerald.com

After pleading guilty to lying about his credentials as a heart surgeon, after admitting to suffering memory problems and possible strokes, after being kicked off the staff of one hospital for being linked to ''numerous patient deaths,'' Alex Zakharia, 70, continues to have a ''clear/active'' Florida medical license.

Some leading authorities wonder why.

''This guy should not be in practice. Period,'' said Arthur Levin of the Center for Medical Consumers in New York. ``What is the medical board doing? What are they thinking? Is this board for real? This case is a poster child for a dysfunctional disciplinary board.''

''It is mind-boggling this guy has not been disciplined and can continue to practice,'' said Sidney Wolfe, a physician with Public Citizen in Washington who is a longtime crusader for more responsible disciplining of doctors.

Zakharia, who has a South Miami office, did not respond to calls seeking comment. But he has consistently maintained he is fully capable of practicing medicine.

GIVING UP LICENSE

Wednesday evening, hours after a version of this report was posted on The Miami Herald website and more than a year after his well-publicized troubles began, the Florida Department of Health announced Zakharia was voluntarily relinquishing his license. But the license will continue to be listed as ''clear/active'' on the state website until the Board of Medicine issues a final order in April.

His case is the latest example of a situation that healthcare critics have been complaining about for years: The system does little to discipline problem practitioners and does a lot to hide their problems.

A survey by Public Citizen, a nonprofit consumer advocacy organization, indicates that Florida consistently ranks in the lower third of states in its disciplining of doctors.

One bright spot for patients' right to know happened last week, when the Florida Supreme Court settled three years of legal wrangling and said patients should have the ability to learn about hospitals' and doctors' mistakes -- records that, in the case of Zakharia, are now closely held secrets.

Eulinda Jackson, spokeswoman for the state Department of Health, said the Board of Medicine ''must follow due process against a practitioner.'' The system is designed to protect their reputations until disciplinary action is taken. ``That's the way it works, and for good reason.''

Concerning Zakharia, ''we don't have any discipline against the doctor at this time,'' Jackson said. Later, in a phone conversation, she qualified that remark: ``We don't have anything public against the doctor at this time.''

Board of Medicine Chairman Robert Cline, a Fort Lauderdale surgeon, did not return phone calls seeking comment.

DISCIPLINARY CASES

Studies by Public Citizen show that Florida's Board of Medicine ranks 35th in the nation with 2.93 serious disciplinary actions per 1,000 physicians from 2004 through 2006. Alaska was No. 1 in the nation, with 7.3 such actions. Mississippi had the fewest with 1.41.

Because there's no evidence that Alaska's doctors are far worse than Mississippi's, the Public Citizen report noted, 'this variability must be considered the result of the boards' practices.''

``Moreover, there is considerable evidence that most boards are under-disciplining physicians. For example, in a report on doctors disciplined for criminal activity that we published in the last year, 67 percent of insurance fraud convictions and 36 percent of convictions related to controlled substances were associated with only nonsevere discipline by the board.''

Over the past year, Zakharia's multiple legal and performance problems have been reported in The Miami Herald. In 2006, he was indicted in federal court in Detroit on several felony charges, including fraud, concerning allegations he exaggerated his credentials as a heart surgeon while testifying in a malpractice lawsuit against a Veterans Health Administration hospital.

Claiming he was too ill to travel to Detroit for hearings, Zakharia submitted letters from his Miami doctors that indicated he may have suffered two brief strokes. ''Dr. Zakharia today complains of progressive difficulties with his memory,'' his neurologist wrote.

Zakharia later produced a letter from another doctor stating he was still capable of practicing medicine.

Meanwhile, in Miami-Dade Circuit Court, Zakharia sued Cedars Medical Center, saying the hospital was trying to kick him off the staff by holding a ''tainted'' hearing.

Such hearings are conducted in secret and their results are secret, but because Zakharia sued, the hospital responded in public court filings that it would present evidence about 22 of his cases, which ``include numerous patient deaths.''

If members of the Board of Medicine didn't know about these stories at the time, they should by now, because a nurse who worked with Zakharia for years, Robin Caple, says she recently sent the board copies of all The Miami Herald reports about him.

Caple, who now works in Central Florida, said she tried to complain to the Board of Medicine several times about the surgeon and ``a few others. . . . I have called. I have written. They won't do a damn thing.''

She notes that the state Department of Health website requires the complainer to give patient names and requires patient approval for release of medical records.

She said she never felt comfortable going to patients or their families because that meant alerting them that the doctor had done something wrong, which would leave the hospital open to a lawsuit. She feared that kind of behavior might get her fired.

RIGHT TO KNOW

Until now, a surgeon's botched operations in hospitals have been closely held secrets. Florida voters tried to change that in November 2004 by passing an amendment to the state Constitution, but for the past three years, the amendment has languished in court.

Finally, last week, the Florida Supreme Court upheld the amendment that permits 'patients' right to know about adverse medical incidents'' in hospitals.

The justices affirmed a lower court's decision ``to lift the shroud of privilege and confidentiality in order to foster disclosure of information that will allow patients to better determine from whom they should seek healthcare.''

Journalists or lawyers will not be allowed to gain access to adverse incident reports, but patients who have had care at a hospital or are seeking care will be able to examine the botched cases of the facility and/or particular surgeons.

''This is precisely what the patient needs,'' said Thomas K. Equels, of Miami, who represented a patient in the case.

CHALLENGE RULING

Stephen J. Bronis, a hospital attorney, said he plans to ask the court for reconsideration, which will postpone patients getting information for at least another two months.

Bronis believes the ruling could mean that a patient could slip on a bathroom floor in the hospital, bruise a thigh and request ''every adverse medical incident in the hospital.'' Not only would that mean compiling tons of records, but also blacking out patients' names and identifying details in each record, which would require ''an army of people'' and ''expending hundreds of thousands of dollars,'' Bronis said.

Equels called Bronis' vision ''an absurdity. Nothing could be further from the truth.'' Patients would be given information that was germane to their cases.

In the Zakharia saga, he agreed last fall to give up his medical license by Dec. 31 in exchange for a misdemeanor plea in the Detroit case. Then he changed his mind. As late as Feb. 7, he was still seeing patients.

Later in February, he changed his mind again and pleaded guilty, promising to surrender his medical license and not to appeal. He changed his mind yet again and appealed. According to court filings just last week, he told state officials he promised to give up his license ''under duress'' and didn't really mean it.

Lynn Helland, the federal prosecutor in Detroit, said the surgeon was once again ``putting at risk any patients exposed to his care.''

Wolfe, the Public Citizen physician, said that shouldn't be.

''There are all sorts of ways the board can make an emergency suspension,'' Wolfe said. ``Certainly in a number of other states he would be suspended by now.''

Jackson, the state Department of Health spokeswoman, said the Board of Medicine must have complaints filed against a person before it will consider discipline. In Zakharia's case, pleading guilty in a federal criminal case ``doesn't have anything to do with our process. We need due process to prove a case.''

Contrast the way doctors are treated with how the federal government treats airline pilots.

Kathleen Bergen, spokeswoman for the Federal Aviation Administration, said that if suspicions are raised about a pilot, he or she is not allowed in a cockpit until the allegations are checked out, be it a drug test or other investigation.

''We have very stringent guidelines,'' she said.

Miami Herald business writer Patrick Danner contributed to this report.