Copyright © 2021 Albuquerque Journal
After surgery for colon cancer in August 2015, the odds were good that James Hoag would beat the deadly disease with proper follow-up treatment.
But he lived in a southern New Mexico county with a scarcity of medical specialists and only one oncologist, who was alleged to have underdosed Hoag in prolonged chemotherapy that ended Hoag’s chance of survival.
Hoag and his wife filed a medical malpractice lawsuit against Dr. Mohamed Aswad in 2018. But Hoag didn’t live long enough to attend the recent trial in which a state district court jury in Deming awarded his widow $2.3 million in damages, including $1 million in punitive damages. Hoag died in 2020 at the age of 59.
“It was statistically likely that James would beat his cancer with proper treatment,” his lawyers argued in the wrongful death case that went to the jury Sept. 3.
After about four hours of deliberation, the jury found negligence by Aswad was a proximate cause of Hoag’s “lost chance to avoid the loss of his life and resulting damages.” The jury described Aswad’s actions as “wanton,” according to a verdict form filed in the case.
There was a backstory the jury didn’t know:
n Aswad, who retains his New Mexico medical license, had run into legal trouble involving treatment of cancer patients in the past. At the time he treated Hoag, the oncologist was on federal probation after pleading guilty in 2014 to one misdemeanor count of receiving an adulterated or misbranded cancer drug. Aswad contended he wasn’t aware the drugs he administered between 2010 and 2012 were not approved by the Food and Drug Administration. He was ordered to pay fines, restitution and penalties of about $2 million. More than $1 million of that was owed in reimbursements to Medicare and Medicaid.
n As a result of his conviction, Aswad in late 2015 was barred by the federal government from accepting any federal reimbursement from Medicaid or Medicare for a minimum of 13 years. But the state Human Services Department asked the federal government for a waiver to allow him to continue treating such patients because he is the only oncologist in Luna County.
Since then, he has been permitted to treat Medicaid and Medicare patients in four other medically underserved New Mexico counties.
Aswad contended there was a clear need in the community for his oncology services.
Since 2016, Aswad has been the only physician in New Mexico to be granted such a waiver, according to a spokeswoman for the state HSD.
Doctor denies wrongdoing
There was no evidence during the recent district court trial that Aswad repeated his previous practice of using non-FDA-approved cancer drugs manufactured in Europe and Turkey.
But attorneys for Hoag’s widow, Sheila Hoag, alleged in court records that Aswad recklessly administered abnormally low doses of chemotherapy for extended periods of time in an attempt to “unduly profit.”
Aswad denied any wrongdoing. He maintained Hoag wasn’t willing to undergo chemotherapy that could cause significant side effects, and so he prescribed a modified treatment that was of longer duration in what proved to be an unsuccessful attempt to reduce any spread of the cancer. He said Hoag never returned to see him after November 2016.
By December 2017, Hoag was hospitalized and saw a different oncologist some 62 miles away in Las Cruces. She put him on the accepted cancer treatment, but his cancer had metastasized.
Aswad, who didn’t respond to Journal requests for comment, plans to appeal the verdict in the malpractice case.
“The jury punished Dr. Aswad for respecting his patient’s wishes about the treatment he was willing to undergo,” said Albuquerque attorney Alice Lorenz, who is handling Aswad’s appeal.
Asked whether Aswad routinely deviates from accepted chemotherapy guidelines in treating patients, Lorenz said in an email : “This question cannot be answered because of HIPAA,” referring to the federal law protecting patient health information.
Questions of credibility
Hoag, who had retired from law enforcement in Michigan, worked as a handyman at an RV park in Deming, where he lived with his wife of 39 years.
Trial court notes show Sheila Hoag testified at trial that after her husband’s August 2015 surgery to remove a colon tumor, “Jim’s prognosis was very good because they had caught it before it spread.” The surgery was performed by another physician in Deming.
Hoag was determined to be stage IIIB, which has a five-year survival of about 69 percent, his attorneys said in a pretrial order.
Hoag went to Aswad for follow-up chemotherapy.
Aswad followed the National Comprehensive Cancer Network guidelines in choosing the correct chemotherapy drugs, but used “woefully lower doses” than are recommended, exceeded the recommended six-month duration by more than double, and failed to adequately monitor the disease during treatment, Hoag’s attorneys Greig Coates and Victor Poulos maintained.
A jury form shows the jury decided Aswad obtained Hoag’s informed consent as to the treatment, but jurors answered “yes” to the question of whether negligence of Aswad was a cause of Hoag’s injury and damages. The total judgment of $2.9 million was reduced to $2.3 million because the jury found Hoag was 30 percent responsible for his injuries.
Aswad defended his course of treatment, stating in court records that he believed Hoag was closer to Stage 4 cancer, which has a single digit survival rate.
But according to trial court notes, the judge in the case, District Judge Jarod K. Hofacket, was “concerned that this matter is presented as Stage 4 cancer when none of the documents presented state that.”
Aswad denied any profit motive in extending Hoag’s treatment from the typical chemotherapy course of a maximum six months to 14 months. In a 2019 deposition, Aswad denied he was under financial pressure to increase his billings because of the $2 million debt he owed related to the use of non-FDA approved cancer drugs.
“I have worked hard since Day One, since I started practice and I worked seven days a week,” he testified during a deposition in the Hoag lawsuit. “… I live modestly. And so I paid all of my savings.”
The government required reimbursement of $1.3 million because Aswad billed Medicare and Medicaid for the cost of FDA-approved drugs, while using the cheaper non-FDA drugs during an 18-month period ending in August 2012.
Aswad’s attorneys pretrial denied he breached the standard of care in treating Hoag. But the day before the trial ended, a key defense witness was withdrawn, causing the defense to stipulate that negligence had occurred, court records show.
Dr. Peter Wiernik, who had given a deposition in the case, had been involved in Aswad’s oncology fellowship training some 15 years earlier in New York and was slated to testify that Aswad met the standard of care in treating Hoag.
But Sheila Hoag’s attorneys had raised questions about Wiernik’s credibility.
According to news reports, Wiernik had been accused of illegally supplying chemotherapy drugs to neurosurgeons for use in a non-FDA approved experiment on brain cancer patients in the late 1980s, and covering up his culpability for five years. He was ultimately disciplined by medical boards in New York and Maryland. Wiernik couldn’t be reached for comment.
Asked by the Journal why Wiernik wasn’t called to testify, Lorenz cited attorney-client privilege.
Aswad, who was born in Syria and received his medical training at Allepo University in Syria, did an internal medicine residency at Our Lady of Mercy Hospital in the Bronx where he also did a fellowship in oncology and hematology. He then settled in southern New Mexico and has been practicing in Deming since 2003, court records show.
U.S. District Judge Robert C. Brack put Aswad on three years probation in August 2015, but seven months later Aswad asked for and was granted early release from probation because his efforts to become a U.S. citizen were being stymied by his probation status. Lorenz said recently he has since been granted citizenship.
Because no pharmacies in the Deming area dispensed oncology medications, Aswad said he had to order expensive cancer drugs via a 1-800 phone number, according to the New Mexico Medical Board, which issued a formal reprimand to Aswad in May 2015 after holding a hearing on the use of misbranded drugs.
The board’s hearing officer found Aswad wouldn’t have administered the non-approved cancer drugs to patients if he had known they weren’t approved by the FDA.
Aswad “unquestionably subjected his patients to dangers associated with the use of non-FDA approved medication,” the hearing officer wrote.
But based on the testimony and letter of support of his patients and colleagues, the hearing officer wrote, “there is a real risk of harm to the Deming community if (he) is unable to practice medicine.”
“The evidence offered at the hearing shows that Deming is an underserved community and the patients who need oncology services have expressed a concern that they will have to travel several hours from home in order to obtain the necessary treatment of their conditions,” the hearing officer wrote.
The medical board noted in its decision that Luna County, in which Deming is the biggest city, has been chronically underserved by medical personnel for years. The county has ranked higher than the state average in deaths due to cancer and heart disease, according to the state Department of Health.
Aswad contested the decision by the U.S. Health and Human Services Department to bar him from seeking reimbursement for Medicaid and Medicare patients, which federal court records show comprised about 95 percent of his patient load.
Before a hearing on the matter, his attorneys and state HSD counsel agreed he should “be allowed to participate as a Medicaid provider on a limited basis as the sole provider of essential and specialized cancer fighting services in a rural/remote part of New Mexico,” said HSD spokeswoman Jodi McGinnis Porter in an email.
“It was determined that the imposition of exclusion (from seeking the federal reimbursement) would not be in the public interest” according to federal regulations and would be a “hardship for New Mexicans in the southwest region of the state who would have to make onerous arrangements for travel and treatment in other locations if not for Dr. Aswad’s availability and participation in Medicaid,” she told the Journal.
Since 2016, Aswad’s waiver to practice oncology has been extended beyond Luna County to four others — Catron, Grant, Hidalgo and Sierra.
With the onset of COVID, federal Medicare and Medicaid Services officials last September asked that Aswad also be allowed to provide internal medicine services for Medicare patients in Catron and Hildalgo counties for the “duration of the Coronavirus Disease 2019 public health emergency declared by the federal government in January 2020.”