HAMILTON, Ohio – A new civil trial against an indicted Mason spine surgeon begins Monday, and this time West Chester Hospital and its owner, UC Health, are co-defendants.
This is the first of 285 lawsuits filed by Eric Deters or his law firm against Dr. Atiq Durrani in Butler County to go to trial.
Deters, though, isn't handling the case because he has been suspended in Ohio since February. His father now runs the firm, Deters said.
The suits filed in Butler County claim that West Chester Hospital and UC Health are liable because officials knew or should have known that Durrani performed unnecessary surgeries and botched many of them, as a federal indictment against him charges.
In July 2013 , Deters told WCPO that West Chester Hospital and UC Health made millions from Durrani's surgeries and that's why they allowed him to continue to operate despite hundreds of complaints.
"We have a witness that will testify that West Chester and UC Health knew about (Durrani's) problems but they needed the money," Deters said.
Two hospital employees – a registered nurse and a worker who kept financial and billing records – complained to superiors about Durrani, according to a deposition filed for this trial.
That deposition, by a medical expert, Dr. Keith Wilkey, says superiors even stopped returning calls about Durrani from one of the complaining workers.
Wilkey said their complaints were "buried by the hospital for financial concerns."
Durrani brought in $7.125 million in Medicare Part A reimbursements for West Chester Hospital and UC Health during a 36-month period he performed surgeries there between 2010 and 2013, according to the U.S. Attorney's complaint.
"He does more spine surgeries than everybody in the state of Ohio – a thousand a year – and they needed the money. They decided that money was more important than patient health," Deters said in July.
Wilkey said West Chester Hospital and UC Health should have supervised Durrani and did not properly vett him after he was kicked out of other area hospitals.
"You were negligent. You did not use your abilities to adequately police this doctor. There's red flags all over his op reports and all his behaviors, all the things that he does. He should have been flagged and suspended, and you didn't," Wilkey said in his deposition.
Wilkey said West Chester staff knew Durrani was fired from Children's Hospital before coming to West Chester.
"If the medical staff knew that, it was your job to follow that stuff up when you credential somebody," Wilkey said. "I do it for the hospitals that I'm involved with. I get on the phone. I call their previous supervisor, the chief of orthopedics. And if you didn't do that, you were negligent."
Attorneys for West Chester Hospital and UC Health said determining whether surgery is necessary or not is a surgeon's decision. In addition, they said the hospital does not have a duty to dictate or monitor products utilized by surgeons or provide informed consent.
According to their pretrial statement, an orthopedic surgeon, Dr. J. Kenneth Burgus, will testify that Durrani adhered to standards of care and basically did everything by the book. John McGinty, a consultant and a former hospital president and CEO, will testify that West Chester's credentialing process fully complied with standards.
Wilkey was an expert witness in the first suit against Durrani in January in Hamilton County. A jury awarded Crystal Pierce, a Green Township mother of two, $750,000 in damages for pain and suffering from an unnecessary surgery Durrani performed in 2009.
The suit going to trial Monday was brought by Brenda Shell, 59, ofMilford. She is a former teacher, married to John Shell and has two grown children.
According to Wilkey's deposition, Shell is disabled and suffers from painful and permanent nerve damage after three surgeries by Durrani and another to try to fix some of the damage Durrani caused.
"Ms. Shell has been left with chronic nerve pain (which is extremely painful) in her left leg and foot, foot drop that makes it difficult to stand or walk, and bowel and bladder dysfunction (she has to insert a urinary catheter three times a day to drain her urine). Her life has drastically and irreversibly changed since the surgery of 03/12/10," Wilkey said.
"She cannot return to work as a teacher. She cannot do normal activities of daily life."
According to Wilkey, Durrani lied to Shell after botching her first surgery, caused her unnecessary harm and put her life in danger.
Wilkey said Shell underwent her first surgery by Durrani on June 13, 2007 at Christ Hospital.
She started having pain in her lower back and right hip and went back to see Durrani at the medical offices he owned, Centers for Advanced Spine Technologies, on March 5, 2009.
records, Wilkey said:
"Dr. Durrani states, "Her spine is doing great, but it is her right hip that is bothering her again, so we injected her again. I told her to come back in six months and see how she is doing."
But Durrani was covering up for his mistake in the first surgery, Wilkey said.
X-rays showed loosening of the hardware Durrani had implanted in her spine, and a screw beyond the sacrum.
And Durrani did not tell Shell or her regular doctor, Wilkey said.
Things went downhill from there, according to Wilkey.
She had two more consultations with Durrani and he still failed to tell her what the X-rays showed.
On March 2, 2010, Shell had a CT scan that showed a gap in her spine with loose screws.
Two days later, she had another consultation with Durrani. By then, he was operating at West Chester.
Wilkey accused Durrani of altering his notes from that meeting to omit Shell's complaint about low back pain and ordering the X-rays that revealed problems with the hardware.
When they agreed to another surgery on March 12, Durrani had Shell sign a blank surgery consent form. Durrani also signed the blank form.
That's illegal, Wilkey said.
Durrani then changed the surgical procedure without informing Shell, Wilkey said.
Durrani also used a human bone morphogenic protein, BMP-2, without Shell's knowledge or consent. It was not approved for use in the surgery Durrani performed, Wilkey said. In fact, it went against most physicians' advice.
Durrani elected to perform a surgical procedure he was not adequately trained to do, Wilkey said. And it was not the right procedure to repair a dural tear, graft displacement and the non-healing of his original spinal fusion.
Ultimately, that led to an infection.
Immediately after surgery, Shell was unresponsive and under respiratory distress, Wilkey said. A ventilator had to be brought in.
She had left foot pain, was unable to wiggle her left toes and had foot drop. She couldn't stand. She was unable to urinate due to a bladder infection and needed a catheter.
Shell had to go back into surgery on March 19 for repair of another dural leak.
On March 29, Dr. Sylvania Ng, an infectious disease specialist, ordered a L-Spine CT. It showed no evidence of bone in the space Durrani had operated, confirming that his surgery had failed, Wilkey said.
Shell went back into surgery the same day for incision and drainage.
According to Wilkey, Durrani never consulted with Shell's long-time doctor, even when Durrani took her off medicine that controlled her hypertension.
When she went to see her family doctor on May 28, 2010, she was in a wheelchair and wearing a left leg splint.
"Handicapped for the time being," the doctor wrote in his notes. "Fill out handicap placard."
Throughout Shell's ordeal, Durrani made late, inaccurate, incomplete records, Wilkey said.
Durrani should have been suspended for that alone, Wilkey said.
"When you don't even include the op dates in your reports because you're doing them five months later, that's despicable," Wilkey said.
When she was discharged from West Chester on April 10 and sent to Drake Center, a rehab hospital, she was still in isolation and didn't know why.
The hospital staff told her and her husband they "wouldn't understand," Wilkey said.
She was at Drake for 30 days.
Shell's suit accuses Durrani of medical negligence (malpractice), lack of informed consent, fraud, battery and spoliation (destruction) of records.
CAST is liable, too, if the jury finds Durrani liable, Shell's attorneys say in their pretrial statement. But CAST closed its offices in Evendale and Florence after Durrani fled to his native Pakistan in December.
Shell's suit accuses West Chester Hospital and UC Health of negligent credentialing, negligent retention and spoliation of records. Charges of negligence and fraud were dismissed on summary judgment, according to the defendants' pretrial statement.
Shell's attorneys claim the hospital parties turned over only about 150 of nearly 600 internal emails they claim they identified as pertaining to Durrani.
In place of Deters, Wes Williams and Jeff Fichner are representing Shell. They are former Boone County prosecutors.
Michael Lyon and associates from Lindhorst & Dreidame represent Durrani and CAST.
West Chester Hospital and UC Health are represented by Karen A. Carroll and associates from Rendigs Fry Kiley & Dennis.
Dr. Tim Kremchek, Reds medical director and chief orthopedic surgeon, is on a list of 22 possible witnesses for the hospital and UC Health. Kremchek used to be director of orthopedics at the hospital.
Shell offered to settle for $2 million globally, but her attorneys withdrew the offer when the other sides did not respond, Shell's attorneys said. She is seeking $700,000 for medical bills, $230,000 for lost wages, and damages.
A gag order is preventing parties from talking about the case. Visiting Judge Guy C. Guckenberger might lift the gag order once the jury is seated.
Guckenberger presided over the first Durrani trial in Hamilton County in January. He expects
this trial to take three weeks.
Durrani is accused of billing Medicare millions for unnecessary procedures – a federal crime that carries up to 25 years in prison. A federal warrant is out for his arrest.
Ohio and Kentucky suspended his license after his indictment.
In the Pierce trial, Guckenberger ordered the attorneys not to reveal that Durrani had skipped the country. They were to say he chose not to testify.
Durrani's deposition was admitted at the last trial.