Janae Pierre: Good morning, and welcome to NYC NOW. I'm Janae Pierre. Happy Saturday. We are now on Episode 4 of our five-part series, Imminent Danger: One Doctor and a Trail of Injured Women. Produced in partnership with the Pulitzer Center. Here's Christopher Werth, investigative editor at WNYC and Gothamist.

Christopher Werth: In our last episode of Imminent Danger, we heard about a cluster of lawsuits filed against an OB-GYN named Thomas Byrne while he practiced outside Oklahoma City.

Marquita Baird: I had absolutely no idea what he had done to me. I expected a hysterectomy, but I did not expect my stomach to be pooched out like I was nine months pregnant.

Christopher Werth: We also heard from the State Medical Boards that gave Byrne licenses to practice after he lost his medical license in New York.

Lyle Kelsey: Do we hope that the doctors do the right thing? Absolutely. We also know that they're just like the general population too. They can tell lies and be dishonest as well.

Christopher Werth: In this Episode, Loopholes, our reporter Karen Shakerdge picks up where we left off in the last episode at a new hospital in another part of Oklahoma. We look at how the federal government actually identified this problem of doctors with questionable track records bouncing from place to place in the 1980s, and how it created a way to try to fix it. Here's Karen.

Karen Shakerdge: While I've reported this story, I've spoken with some doctors who worked directly with Byrne, who've told me he's a great doctor and takes good care of his patients. None of them agreed to be interviewed, unfortunately. They've also told me to be careful about what I say about his track record, that even if a doctor has been sued a lot, that doesn't necessarily mean they're a bad doctor. In fact, I've been told, it's the patients you might want to take a look at.

The patients are just looking for a way to get some money, or the patients are unhealthy, and high-risk, so of course, there's going to be some bad outcomes, which is all to say a lawsuit or even a settlement is not necessarily confirmation that medical negligence happened. It's just one piece of a bigger picture. In this episode, I want to tell you about something else I've found. Evidence that doctors overseeing Byrne along way, not only his patients or nurses questioned his work as a doctor.

Once instance of this came to light after an attorney named Ken Underwood heard from some of Dr. Byrne's former patients from a hospital near Tulsa called Craig General.

Ken Underwood: I was contacted by several different women who had injuries that arose from surgeries that were performed on them at that hospital.

Karen Shakerdge: Ken ended up representing two patients in lawsuits against Byrne, although he says he counseled even more of his former patients.

Ken Underwood: This is the only time that I've had three or four people contact me with similar cases against the same doctor.

Christopher Werth: What did this attorney find?

Karen Shakerdge: Ken goes out to Vinita to depose a doctor named Edward Allensworth for one of the cases. Allensworth was the medical director at Craig General at the time, and oversaw Byrne while he worked there. Allensworth died in 2020, but I did read a book about his life and work as a doctor. He practiced in Vinita for decades, starting in 1963. He was celebrated as the Oklahoma Family Practice Physician of the Year at some point. People I've spoken with have told me he was very well respected.

What do you remember about the deposition? I know it was some time ago. Was there anything noteworthy that came out?

Ken Underwood: Dr. Allensworth had personally been keeping a file or dossier on Dr. Byrne in his desk drawer, and that he maintained this file to monitor Dr. Byrne.

Christopher Werth: What was in this dossier as he calls it?

Karen Shakerdge: Allensworth tells Ken in the deposition that he kept copies of letters and correspondence with Byrne in it, as well as records of patients that he saw where Allensworth thought there was something "abnormal" going on.

Christopher Werth: What does that mean exactly, abnormal?

Karen Shakerdge: It's hard to tell exactly. Ken was never able to view the contents of the file himself, but I was able to get a document that's basically an anonymized list of at least parts of that file. It shows that Allensworth had information on at least eight patients. The list specifies mostly gynecological surgeries like hysterectomies, but also references procedures like C-sections.

Ken Underwood: That was evidenced that the hospital through its medical director had a clear understanding of the challenges that Dr. Byrne had while he was practicing there at Craig General Hospital. I like to err on the side of caution and believe that he was looking toward seeing Dr. Byrne make progress, and become a better doctor.

Karen Shakerdge: I just wonder how to reconcile that with the need for good, safe patient care.

Ken Underwood: Well, I don't know that there's a way to reconcile it because patient care really should take priority over a kind heart.

Christopher Werth: If Allensworth is tracking these cases like this, what is the hospital then do with that information?

Karen Shakerdge: In the deposition, Ken asks Allensworth about these "abnormalities" that he noticed from the surgeries Byrne performed. Ken says, "Was Byrne given any type of reprimand, or discipline, or restriction of privileges?" Allensworth says, "No." That it wasn't "necessarily surgical errors." In the same breath, he then acknowledges that there were a couple of surgeries where there had been injuries. What Allenworth tells Byrne is that if there are "further injuries" they should "probably restrict his privileges to do those kinds of procedures."

According to the date, Allensworth gives in the deposition for when he and Byrne had that discussion, there was another alleged injury about a month later. Can you just talk me through the signs that something wasn't right?

Sue Ackerson: I had just this almost like a heaviness feeling in my stomach, nausea a lot.

Karen Shakerdge: Sue Ackerson is a patient that saw Dr. Byrne for a vaginal hysterectomy in 2005. She was one of Ken's clients.

Sue Ackerson: My belly was huge, and it wasn't severe pain. It was just this continuous ache.

Karen Shakerdge: After talking with Sue, I was struck by just how much her experience mirrored Marquita Baird's. Marquita was the patient who saw Dr. Byrne in the town outside Oklahoma City about six years earlier. Like Marquita, Sue also found herself back in the hospital within days of the hysterectomy, noticing some concerning changes in her body.

Sue Ackerson: I actually look like I was about nine months pregnant. I thought my stomach was going to explode. It was so tight. I knew we needed to get out of that little hospital, away from that doctor, and find somebody that could figure out what's going on.

Karen Shakerdge: Sue's lawsuit which also named the hospital Craig Hospital, claims that Byrne had injured her ureters during the surgery. The ureters are the tubes that carry urine from the kidneys to the bladder. Just like in Marquita's case, another doctor at another hospital determined that urine was essentially collecting inside of her body with no way out.

Sue Ackerson: That's where they kept telling I was like a septic tank. That's one of the things I remember. It's like you're a human septic tank.

Christopher Werth: This is two instances where very similar injury has occurred. How common is something like that?

Karen Shakerdge: Studies show that this kind of injury is a known risk, but it's not common with this particular kind of hysterectomy. It happens less than 1% of the time.

Sue had to have a slew of procedures to recover that spanned several months according to her lawsuit. In a letter to the hospital, Ken Underwood, her attorney, wrote that she'll "be at risk for medical complications involving her bladder, ureters and kidneys for the rest of her life."

Sue Ackerson: I was pretty sure my husband thought I was not going to survive.

Karen Shakerdge: Sue's case eventually settled. Three other women filed lawsuits against Byrne for care they received. Two of them settled, most also named the hospital. He had privileges there for about a year and a half. Just to be clear, these were four new lawsuits and what I've come to think of as a second cluster of cases in Oklahoma, separate from the six that happened near Oklahoma City years earlier.

Sue Ackerson: I just knew I needed to move on.

Karen Shakerdge: How did you process all of this?

Sue Ackerson: I just wanted him stopped. I wanted him to lose his license, and not be able to practice, which we checked to see where he was at. I don't know if they let him go, if they fired him, or if he just quit, I don't know what the procedure happened there, but he left Vinita quickly. He didn't stick around after my issue. He was gone.

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Karen Shakerdge: I also wanted to know on what kind of terms Byrne left, because the terms in which a doctor leaves the hospital determines what information hospitals have to disclose to the federal government. Likewise, what information other hospitals, meaning future employers, should be able to easily find out. I found a document that describes the terms of Byrne's departure. It presents his time at Craig General in a more favorable light than what court records say happened while he was there.

Christopher Werth: Coming up, we take a close look at what hospitals are required to report about doctors, and what sometimes happens instead.

?Nadia Sawicki: How do I say this? I think the public needs to recognize that the medical industry is an industry just like any other.

?Robin Kemp: We could have not given him privileges, even though he had a license. The only people to stop him were us.

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Guest: The idea of Saudi Arabia recognizing Israel has gone from unimaginable to about to happen to unimaginable again.

Host: The kingdom's role in the current Middle East crisis on this week's On the Media from WNYC. Find On the Media wherever you get your podcasts.

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Christopher Werth: Karen, you've told us about how Byrne left that hospital, Craig General. What have you been able to learn about why he left?

Karen Shakerdge: Well, according to the deposition we have of that doctor I told you about who was supervising Bryne at Craigg General, Dr. Allensworth, things started to escalate for Bryne there after Sue surgery. In the deposition, Allensworth quotes a letter that he sent to Bryne. This was still in 2005. He said, "Dr. Bryne, this will verify our discussion today." They obviously just had a conversation. He continues, "That you will do no more laparoscopic-assisted vaginal hysterectomies at this hospital. The privilege of which you have voluntarily denied yourself."

Christopher Werth: Voluntarily denied.

Karen Shakerdge: Yes.

Christopher Werth: What exactly does that mean?

Karen Shakerdge: It essentially means that technically the hospital wasn't taking away his ability to do the kind of surgery he'd done on Sue. Bryne gave them up. That might seem like a small detail, but it's actually significant because if the hospital had restricted Bryne's clinical privileges long term in a case like this, they would have had to report it to this thing called the National Practitioner Data Bank.

Christopher Werth: I've actually heard you talk about this. This is the thing that Congress set up.

Karen Shakerdge: Yes. Back in the '80s, the federal government started to pay attention to the very issue we're talking about in this story, doctors with concerning track records hopping between hospitals or states. To make that harder, Congress established this thing called the National Practitioner Data Bank. It opened in 1990. It's a database that collects and provides information about all kinds of stuff, a doctor's licensure, clinical privileges, what professional societies they belong to, and medical malpractice payment history across states and hospitals.

Until then, there was this other source of information that's still around. It's run by something called the Federation of State Medical Boards, but they only hold information about a doctor's medical license or disciplinary action that's been taken against them, none of the other stuff I mentioned.

Christopher Werth: Are you able to view what's in that National Practitioner Data Bank on Dr. Byrne?

Karen Shakerdge: No. There's a version of the data bank that's accessible to the public, but to protect privacy, it's totally anonymized.

Christopher Werth: It's been around for 30 years, but obviously, this kind of hospital hopping, this is still something that happens.

Karen Shakerdge: Yes. Experts I've spoken with have told me that the data bank has helped a lot, and that it essentially would be the solution to the issue of doctors hopping between hospitals or states, if it was used correctly.

Nadia Sawicki: The underlying issue with all of this is that the National Practitioner Data Bank is only as good as the information that is put in it.

Karen Shakerdge: I found two guides into the whole world of the National Practitioner Data Bank. Nadia Sawicki is a law professor at Loyola University in Chicago, and Robert Oshel, he worked at the NPDB for 15 years. He set up a program there that analyzed the information that was submitted to the data bank.

Robert Oshel: We had the saying that everybody loves to get information from the data bank, but nobody wants to have to report it to the data bank.

Karen Shakerdge: Both Nadia and Bob told me that one of the biggest problems is that hospitals don't feed the data bank with information like they're supposed to.

Nadia Sawicki: One obvious reason for underreporting, if you are a hospital employing a doctor, or if you're a colleague of a doctor who has done something shady, there are reputational disadvantages to reporting them. That's the most obvious thing. The other issue is that there's really no enforcement mechanism for these reporting requirements. In other words, as a practical matter, if a hospital fails to report a misbehaving doctor to the data bank, practically speaking, no one is going to catch that.

Christopher Werth: This sounds to me like one of those classic policy failures. You set up something that sounds like a good idea, but then it doesn't necessarily do what it's supposed to do on the ground. Do any of these hospitals actually do this?

Karen Shakerdge: Yes. I did get some numbers from the federal agency that hosts the data bank, the Health Resources and Services Administration about this, and they told me that in the 30-plus years that the databank has existed, about 45% of hospitals have never submitted even one clinical report involving adverse actions taken to doctor's privileges. To be clear, hospitals are legally obligated to report certain issues, but what Nadia and Bob explained to me is that there are loopholes hospitals can use to avoid that requirement.

Robert Oshel: Yes, it's effective. It's doing what it's supposed to be doing. It could be more effective if these these loopholes were closed.

Karen Shakerdge: I want to tell you about three specific loopholes I learned about. Three that when I looked at the court records may help explain why there were some concerning events in Byrne's career that likely did not get reported to the data bank. Again, the data bank is anonymized. First, the 30-day rule, hospitals only have to report doctors when something happens that affects their ability to practice for more than 30 days.

Nadia Sawicki: Sometimes if there's a disciplinary action against the doctor, the hospital will make sure that that discipline is under the 30-day reporting threshold.

Karen Shakerdge: For example, when Dr. Byrne was working at Seminole Medical Center, the hospital near Oklahoma City, they did suspend his privileges and opened an investigation on him. After completing it, the hospital decided to lift the suspension. Because the matter was resolved in less than 30 days, that's something that doesn't need to be reported. Actually, the hospital explicitly points that out in a letter I have that they wrote to Byrne. It says, "Because these matters were able to be resolved within a 30-day timeframe, there is no reportable event to the National Practitioner Data Bank."

Christopher Werth: The second loophole?

Karen Shakerdge: The second one is about malpractice payments. Any malpractice settlement that is paid out on a doctor's behalf, so either by a hospital or an insurance company, are supposed to be entered into the data bank. What I've learned is that sometimes even if a doctor is named as a defendant in the lawsuit, they won't be named in the settlement. That doesn't make it in. That's actually what happened in the lawsuit regarding Amy Lam's death at Harlem Hospital that I told you about at the start of the series. According to Susan Karten, Amy's family's attorney, even though five doctors, including Byrne, were named in that lawsuit, only New York City Health and Hospitals was included in the settlement. That malpractice payment wouldn't get reported to the data bank for any of the doctors. Bob told me this loophole is referred to as the corporate shield.

Robert Oshel: Even worse, that the plaintiffs were told that if you sue just the hospital, don't even name the physician in the first place, we'll be much more likely to settle this case, and so the physician never gets named.

Karen Shakerdge: Finally, and to me, this one seemed the most significant in some ways. Number three, it has to do with resignation. Just to be clear, I don't know if this is what happened in Byrne's case specifically, but if a doctor voluntarily resigns from a hospital, when a problem arises versus a hospital taking away their privileges, that is not reportable to the data bank. Unless there's an official investigation going on, in that case, a resignation is supposed to be reported.

Robert Oshel: What can happen is that the physician will be tipped off quietly before the investigation begins and say, "We're going to start an investigation on you tomorrow. You might want to resign your privileges today," that he does. There's no report to the data bank. It's not something that an ethical hospital does, but it happens a lot.

Karen Shakerdge: I learned that there's even a caveat that says if a doctor resigns just to avoid an investigation, that should get reported. Bob told me that's a hard thing to prove because these conversations are happening behind closed doors in the first place.

?Speaker: It's so confusing because you would think that hospitals would want to be honest about what is going on with physicians as way to like maybe this is a little naive, but as a way to save another hospital from potentially dealing with a bad situation.

?Nadia Sawicki: How do I say this? I think the public needs to recognize that the medical industry is an industry just like any other. Hospitals, even nonprofit hospitals, want to stay in business. They want to have a good reputation. They don't want to be sued. They are going to act to further those interests, which may sometimes come at the expense of patients and the general public.

Karen Shakerdge: While I was trying to figure out the terms on which Byrne's time at Craig General ended, I found a footnote in a document filed by a plaintiff in one of the Oklahoma lawsuits that refers to some letters that were exchanged between Byrne and the hospital, resignation letters. According to the lawyer's description, Byrne resigned voluntarily a few months after Sue Ackerson's surgery.

He negotiated terms with Craig General as to what the hospital would say if it's ever asked to provide a reference for him. According to the lawyer's description, what they agree on is that Craig General would "promptly report that Dr. Byrne had active medical staff privileges in good standing from initial date of privileges through voluntary resignation."

If they were ever asked about surgical outcomes, they would say, "There was one post-op case in which a patient was referred for repair of ureters." Which again, just to be clear, does not match up with what actually happened according to the records we have. In his deposition, Allensworth, the medical director at the hospital at the time says, "Byrne gave up clinical privileges to do a specific type of surgery and he refers to more than just one case."

Christopher Werth: You tried to ask Dr. Byrne about all of this and get his take on it?

Karen Shakerdge: Yes, I have. He hasn't responded to several requests to talk with me about his time, specifically at Craig General or any other aspects of his career. We have tried to reach him by phone, text, email. We sent questions via certified mail. WNYC's health and science editor Nsikan Akpan went to visit him at the clinic he works at in the Bronx.

Nsikan Akpan: We're with WNYC. It's a radio station here in New York City. We're trying to speak with Dr. Thomas Byrne.

Clinic staff: The last time he was here was probably in June. He does everything virtual, but he works in another state.

Nsikan Akpan: The nurse attendees said that he only comes in once a month maybe, and that the last time he was here was what, three months prior to now.

Karen Shakerdge: I also reached out to St. Francis Health System, which bought Craig General Hospital in 2016. They said they're not able to comment on activities or operations related to Craig General before they acquired it.

Robin Kemp: It was wrong for him to have been practicing in Oklahoma. It was wrong for him to have been practicing in our facility. It was wrong.

Karen Shakerdge: This is Robin Kemp again. She was the director of nursing when Byrne was at Craig General Hospital.

Robin Kemp: I want to be clear, just because somebody has had a bad outcome, or maybe they've had a couple of bad outcomes, that doesn't make him a bad provider or a bad physician, but when you have a pattern, then there's a problem.

Karen Shakerdge: She told me she feels like the hospital failed to make the right call about him before even giving him privileges in the first place.

Robin Kemp: It should have came up in their credentialing process. The number of cases for him and in the specialty he was in, that was a definitely big red flag, in my opinion. If Oklahoma would give him a license, then we could have not given him privileges. The only people to stop him were us.

Karen Shakerdge: All of this did make me think of something that Robert Oshel told me, that sometimes even when hospitals see reports in the data bank or find out about concerning history some other way, they'll still move ahead and hire the doctor.

Robert Oshel: For instance, if you're in a small rural hospital trying to recruit a hard-to-recruit specialty, you might overlook problems in the physician's record that wouldn't be overlooked by a hospital that has an easier time recruiting somebody. Is it better to have a questionable physician or no physician at all? That's the dilemma they have in some cases.

Robin Kemp: Healthcare in rural America, they need providers of all different kinds. We have to stop and think. We can't just take anybody. This is my community. We're a small hospital. We take care of our families and our neighbors, and we're supposed to protect them from people like that, and you think had someone been louder or more forceful, could we have prevented something? If he leaves and he still goes someplace else and does it all over again, it's heartbreaking.

Christopher Werth: Byrne voluntarily resigns from Craig General in 2006. Where does he go after all this?

Karen Shakerdge: He returns to New Mexico, this time to another small city not too far from the Mexican border. Five more patients file lawsuits against him, cases that involved more alleged injuries, a perforated colon, a damaged ureter, a damaged bowel, and yet another instance where Byrne allegedly left an object inside a patient's body after surgery, a sponge. Then in 2010, while the lawsuits continue to unfold, Byrne submits an application to restore his medical license in New York, the very one he lost about 20 years earlier in 1991.

Christopher Werth: Coming up in our last episode of the series, Dr. Byrne returns to New York.

?Speaker: I was lied to. I think everybody in there who was involved in that case was lied to. May even said he will never practice medicine again in New York State.

?Speaker: Don't we both wish you had more information?

?Speaker: I'd love to have more information.

?Speaker: There seems to be more to the story than we're able to read so far. You have the Reader's Digest version, but not the deep version.

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Christopher Werth: Imminent Danger: One Doctor and a Trail of Injured Women was reported by Karen Shakerdge, and edited by me, Christopher Werth. It was produced in partnership with the Pulitzer Center. Our Executive Producer is Ave Carrillo. We had additional editing by Nsikan Akpan, Stephanie Clary, and Sean Bowditch. Ethan Corey is our researcher and fact checker. Jared Paul is our sound engineer. He also wrote our theme music. We had additional reporting and producing from Jaclyn Jeffrey-Wilensky, Owen Agnew, and Catherine Roberts. Special thanks in this episode go to Amber Bruce, Ann Carr, Robert Campbell, Rob Christiansen, Dr. Benedict Landgren, Nick Oxford, Maggie Stapleton, Pam Prater, Wayne Shulmister, and Gina Vosti.

Janae Pierre: Thanks for listening. Be sure to check out NYC NOW next Saturday morning to hear the conclusion of Imminent Danger. I'm Janae Pierre, and we'll be back with the local news and headlines first thing, Monday morning. Until then, have a great weekend.

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