by Tim Farley.
Medical board hid Anagnost documents during meeting with governor’s legal counsel
OKLAHOMA CITY – Tulsa spine surgeon Steven Anagnost finds himself at the center of a politically-charged case involving alleged backdoor deals by neighboring governors and a conspiracy by a state board to wrestle away his medical license.
Anagnost, who began his surgical practice in 1999, claims a recent media report that Oklahoma Gov. Mary Fallin used undue influence to stop an investigation by the Oklahoma Board of Medical Licensure and Supervision into the doctor’s practice is untrue.
“The investigation, which had carried on for three years, ended after I filed a lawsuit. They (medical board) knew they would be exposed if they didn’t settle,” the doctor toldRed Dirt Report on Wednesday.
The media report, published by The Frontier, claims then-Texas Gov. Rick Perry called Fallin and expressed his concern about the Anagnost case. According to the report, one of Perry’s major political donors is close to Anagnost and asked the Texas governor to contact Fallin.
Fallin spokesman Alex Weintz acknowledged Thursday the two governors talked about the issue and that Fallin’s legal counsel, Steve Mullins, spoke to medical board representatives about ending the lengthy investigation. Fallin’s main concern was to avoid violating Anagnost’s due process rights after such a lengthy probe, Weintz said.
During the meeting, Mullins said there was concern “that this case would result in bad case law and the Governor didn’t want that,” according to a Sept. 11, 2013, memo written by medical board advisor Dr. Eric Frische.
“The governor’s message was to either sanction him (Anagnost) or bring the investigation to an end,” Weintz said.
Before the meeting with Mullins, medical board Executive Director Lyle Kelsey sent an email to Robert Duvall and the board’s chief investigator Steve Washbourne instructing them to hide all of the materials in the Anagnost case, according to medical board internal documents obtained by Red Dirt Report.
“Take the two-wheeler and place all the boxes of material on Dr. Anagnost in the small conference room on the wall between the doors. There are some boxes in the work room and Gayla’s room,” he wrote.
The email informed Duvall and Washbourne that Kelsey and medical board advisor Eric Frische had a 10 a.m. meeting with “someone from the governor’s office.”
Anagnost believes the medical board falsely claims it acquiesced to pressure from the governor.
“If this is true, which it is not, then the board has completely failed in its obligation to the public,” the doctor said. “The truth of what happened was the board actually ignored what the governor asked them to do. The governor, via Steve Mullins, told the board that the investigation had gone on too long, with too many ex parte communications and continuances, which violates the board’s own rules as well as my constitutional rights.”
Another lawsuit was filed by Anagnost against his competitors, medical malpractice attorneys and the medical board after learning the 2013 settlement was tainted due to conflicts of interest on the board and with its staff. That case is pending in Oklahoma County District Court.
False claims
Anagnost disputed allegations in The Frontier story that his patients died or were paralyzed from the surgeries he performed.
“No patient has ever died from anything I have ever done in surgery,” the doctor said. “Patients have certainly had other medical issues after surgery, but no patient has died in the operating room or in the hospital from any spine surgery I have ever performed.”
Anagnost said in previous interviews with Red Dirt Report that the “Unholy Trinity” of medical malpractice attorneys, competing physicians and the state medical board conspired in 2010 to solicit lawsuits during a secret meeting at the Southern Hills Marriot in Tulsa. The purpose of the meeting was to interview competing spine surgeons about patients who had previously been under Anagnost’s care, documents show.
“Every person, from the plaintiffs’ attorneys and the competing doctors, were making money at my expense,” he said. “There were complaints coming from the medical malpractice attorneys with and without patient knowledge.”
In one case reported by The Frontier, a woman identified as Alyson King said she awoke from a 2007 surgery unable to feel most of her left leg and foot. Her lawsuit, filed in 2009, against Anagnost alleged he caused permanent neurological injury to her leg and left her with a condition known as foot drop.
According to the lawsuit, King suffers from the “multiple inappropriate and negligent” surgeries performed by Anagnost.
However, Anagnost told Red Dirt Report he saw King in the Tulsa airport Wednesday night carrying a large piece of luggage with “no limp or no sign of pain.”
“You can’t make this stuff up,” he said.
Anagnost won the King lawsuit with a summary judgment in 2014. King appealed the decision but lost at the Oklahoma Supreme Court. In addition, all of the allegations made by the medical board during its three-year investigation have been dismissed.
According to Anagnost, the King lawsuit was among 25 cases mentioned by medical board investigator Gayla Janke in an Oct. 28, 2011 email to Dr. Frank Tomecek, one of Anagnost’s competing surgeons.
“It is important to Dr. Anagnost’s case that all 25 of the patients whose case is with the Sneed Lang Firm (and any other patient you know of that has been injured) fill out the attached complaint form and send it back to the medical board. The more complaints we have the better,” she wrote.
Better stats
Ironically, Anagnost recorded better post-operative statistics compared to national and local peers, according to an independent research report that focused on a five-year time period from 2005 through 2009. The report, prepared by Oklahoma-based health care administrator and health policy researcher Michael Lapolla, centered its attention on complication and morbidity rates, length of hospital stays, costs and readmission rates.
Anagnost specializes in Minimally Invasive Spine Surgery (MISS) while his competitors use traditional spine surgery techniques, which typically creates longer hospital stays and is more expensive.
Much of the information in Lapolla’s report was taken from the Hillcrest Healthcare System Physician Quality Measure Report for January 2005 through July 2009. Hillcrest was the primary hospital where Anagnost operated.
Almost defiantly, Anagnost said the Lapolla report is the defining litmus test that demonstrates the high quality of care he provided his patients.
“It is true data compiled over thousands of patients over many years,” he said. “As doctors, this is how we evaluate each other – by statistical outcomes data, not rumor and hearsay from competing spinal surgeons and medical malpractice attorneys with personal financial gain. The statistical data undeniably proves that my minimally invasive surgical outcomes are not only better than the competing Tulsa spine surgeons who made the false accusations to the board, but also prove that I outperform the Oklahoma state averages and the national averages.”
According to the report, Anagnost’s patients experienced five-year morbidity rates 19 percent better than the national rate and his Hillcrest peers. His patients also had five-year complications rates lower than his peer group and 22 percent below the national average, the report shows.
In addition, Anagnost’s patients experienced hospital stays 45 percent better than the national standard while the length of stay for his local peer group was 16 percent below the national standard.
The Lapolla report also illustrates that Anagnost’s patients were not as susceptible to hospital readmissions as his peers. Data for 2005-2009 shows readmission rates for Anagnost’s patients is 38 percent lower than his Tulsa surgical peers for the same diagnosis and 17 percent below peers for a different diagnosis.
The memo
The Frische memo, classified as a confidential internal document, demonstrates the medical board’s desire to take away Anagnost’s license. At the least, they were hoping he would leave the state after the settlement was finalized, the memo indicates. At the same time, board members expressed concern that the doctor’s constitutional rights had been violated.
Frische wrote that the attorney general’s office did not believe Anagnost’s due process concerns were “not that strong,” yet “all they needed to do was turn one Supreme Court Justice from the earlier 5-4 decision and we would loose (sp) and if we didn’t loose (sp) and had a hearing with adverse action against the doctor there would be a ‘quagmire’ of court cases and depositions and that we should just drop the matter or settle in any way we could. The guys from the AG’s office said he (Dr. A) would probably leave the state and go elsewhere.”
The Frische memo also shows the medical board and Kelsey did not have faith in then-Assistant Attorney General Marissa Lane, who served as legal advisor. The memo also discloses that the AG’s office advised board attorney Dan Graves his services were no longer needed. Graves, for a short time, served as a prosecutor in the Anagnost case while billing the AG’s office for his services.
“Lyle reports that Dan thinks it is a no win situation and is moving on,” Frische wrote. “If the case was ever to come before the board, then it would up to Marissa to handle the case and all of us agreed privately that she could not handle it on such short notice especially against Macaffey & Taft. Lyle seems resigned to this being settled for basically nothing that is reasonable.”
Judicial dissent
In February 2013, the Oklahoma Supreme Court ruled in a 5-4 decision not to accept jurisdiction over Anagnost’s case with the medical board.
However, the four dissenting justices expressed disdain for the way the doctor’s due process rights had been violated.
“From all of the documents, exhibits, affidavits and pleadings presented, I have grave concerns that the petitioner (Anagnost) has failed to receive even the minimal due process required under our state and federal constitutions,” Justice Joseph Watt wrote at the time.
The four justices also agreed that a judicial review of a decision already made by the medical board would “fail to provide an adequate remedy.”
“This Court has held that the lack of due process resulting from a biased tribunal is the sort of injury that cannot be corrected on appeal,” Watt wrote.
The board’s decision to maintain an active case file for so long drew the ire of the four dissenting Supreme Court justices.
“What is most disturbing is since the filing of the original complaint, two years have gone by without resolution,” Justice Yvonne Kauger wrote in her 2013 opinion.
The justices agreed the medical board’s repeated continuances during the lengthy investigation were “unseemly given that the purpose of the Board is to protect the public.”
“I have stated before, in the context of disciplinary proceedings for lawyers, that excessive delay before holding a hearing implicates due process concerns,” Kauger wrote.
