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Suit: Doc Told Not To Testify

FOR THE RECORDThis story contained incorrect information based on court documents filed by the University of New Mexico regents. The story  should have made it clear that the resident who performed the surgery in question and the Office of the Medical Investigator were within the UNM School of Medicine, not UNM Hospital.

The Board of Regents is the sole UNM defendant in the lawsuit, and UNM Hospital is not involved in the litigation in any way. The surgery in question occurred at Lovelace Women’s Hospital.

University of New Mexico officials pressured a doctor with the Office of the Medical Investigator not to testify in a malpractice case involving a woman whose cesarean section went terribly wrong, according to email exchanges filed in the case.

Dr. Ian Paul ended up withdrawing as an expert witness, telling the woman’s attorney in an email, “I have been getting a lot of pressure from the higher ups at UNMH (University of New Mexico Hospital) to withdraw … The fallout for me is not worth it at this point.”

Although Paul said in the email that he had the support of his office about testifying, others “feel it is inappropriate that I am testifying against a UNM resident physician.”

Second Judicial District Judge Alan Malott told the Journal that, in 33 years of practicing law, he has “never seen anything like it.”

“What I’m concerned about,” he said, “is whether someone messed with a witness.”

The university, in court filings, says Paul, like all OMI employees, is an employee of UNMH and is subject to its policies and procedures. Testifying against a UNM resident is a conflict of interest and violation of policy, it contends.

Traci Harrison’s bowel was perforated during the cesarean section, leading to numerous surgeries, scarring and an inability to work to her full capacity, according to the malpractice suit.

Harrison, a former operating room nurse, had expressly said she did not want a resident to perform the primary surgery, according to allegations in the case. However, a resident with UNMH did perform the surgery, according to the suit.

Carl Bettinger, Harrison’s attorney, contends the university’s actions regarding Paul amounted to witness tampering and witness intimidation and is demanding sanctions, including a contempt finding and a default judgment of $1 million against the regents.

UNMH spokesman Billy Sparks couldn’t be reached for comment Wednesday.

But attorney Mary Behm said in court papers urging Malott to deny sanctions against UNM that: “Dr. Paul’s testimony for plaintiffs would place UNMH in the difficult position of having to cross-examine and potentially impeach its own employee and faculty member.”

After an emergency hearing Friday, Malott conducted an in-chambers review of the series of UNM emails to and from Senior Associate University Counsel Scot Sauder and other hospital officials that ultimately led to Paul’s withdrawal. Some were redacted, but others, stamped “confidential,” are attached to Malott’s order.

Dropping out

Sauder wrote Paul’s boss, OMI director Ross Zumwalt, in February, saying he had just been notified that Paul was scheduled to testify as a forensic pathologist in the Harrison case.

Zumwalt responded that he was aware of Paul’s plans, noting that Paul had been asked to review the surgical pathology report and slides and to render an opinion.

“I am sure the Regents desire that this case be evaluated by competent, qualified and unbiased experts,” he responded. “The Regents are fortunate that Dr. Paul fits those criteria.”

Sauder responded, “I understand what you are saying, but in the end, Dr. Paul is testifying against another faculty member at the UNM (School of Medicine).”

Zumwalt said Paul “was not aware of this when he agreed to review the case. What is your suggestion?”

Sauder responded that he had spoken with Dr. Paul Roth, UNM Health System chancellor, who “has expressed concern about this as well” and repeated his belief that Paul should withdraw. Sauder then emailed the head of the pathology department where Paul teaches and is pathology residency director. The chairman, Dr. Thomas Williams, asked Paul to call him, and less than an hour later Williams wrote Sauder to say, “Dr. Paul is removing himself from this case.”

Sauder in turn wrote Behm, the private attorney representing UNM, to say Paul “will no longer be available to Carl (Bettinger) as an expert.”

In a subsequent email a few hours later, he wrote Behm, “Dr. Paul’s department chair (in other words, his boss) will not permit Dr. Paul to undertake this engagement.”

Conflicting reports

Bettinger complained in his motion that UNM had known Paul would be an expert in the case since February 2010 and that his testimony is critical because UNM’s position is that Harrison’s bowel perforation resulted from a pre-existing condition.

In an order filed Monday, Malott vacated the scheduled October trial, ordered in-person mediation and decided to devote a full day in September to the witness tampering, contempt and sanctions requests. In the meantime, plaintiffs’ counsel will be able to develop a record by taking depositions.

The underlying civil lawsuit was filed by Bettinger for Harrison, her husband, Kenneth, and their infant child Briley.

The complaint alleges that Traci Harrison, a former operating room nurse, suffered from negligence during what was to have been a C-section and tubal ligation performed by obstetrician Dr. Joel Teicher at Lovelace Women’s Hospital in January 2009.

The lawsuit claims Teicher failed to properly supervise UNM resident Dr. Kara Worley, who was “allow(ed) to perform surgery on Mrs. Harrison despite Mrs. Harrison’s express request to Teicher that no resident be allowed to perform the actual surgery.”

It also claims negligence by the surgeons who not only perforated the bowel but also failed to recognize that they had done so, ultimately resulting in a massive abdominal infection.

The infection resulted in additional surgeries to remove parts of her intestines, placement of an ileostomy and the loss of her ability to work in the full capacity she was used to, according to the lawsuit.

Harrison’s medical expenses topped $300,000, she has ongoing medical needs, she has a “horribly scarred” abdomen, and she is disabled from her previous profession, according to documents filed by her lawyers.

— This article appeared on page A1 of the Albuquerque Journal