By Najib Aminy
When Dr. Timothy J. Kinsella was hired as the Stony Brook University Cancer Center director, it was amidst a number of rising allegations. Kinsella was licensed through New York State on Dec. 2, 2008. Shortly after, the Ohio State Medical Board completed its review of a complaint filed by one of Kinsella’s former patients, Amelia Weber. In a letter written to Weber’s attorney, Wade Sanders, dated December 12, the board had come to the conclusion that no disciplinary action would be filed against Kinsella and that Weber’s sexual assault complaint would be kept permanently on file.
Kinsella, who has worked at the University of Wisconsin and University Hospitals in Cleveland prior to coming to SBU, has had a number of lawsuits filed against him during his career as a physician and department chair, though none had been lost. These lawsuits had ranged from a racial discrimination suit in 1992, in which Kinsella was one of the parties involved, where the jury favored the defendants. In 1993, there was a sexual discrimination suit that was later dropped by a worker who claimed she deserved a higher salary pay and had her research findings cut short when Kinsella and her lab manager became irritated by her requests. The suit was dropped because of financial reasons.
More recently, Weber alleged that Kinsella had sexually assaulted her during check ups and improperly billed her. That too was dismissed.
However, in 2001 there was a lawsuit filed against Kinsella, his wife, Dr. Susan Wiersma, University Hospitals, as well as a number of other physicians pertaining to medical malpractice. In the case of Iwona Valdivieso v. University Hosptials of Cleveland and doctors Wiersma and Kinsella, a child by the name of Joshua Valdivieso, Ms. Valdivieso’s son, had suffered from a rare form of neuroblastoma, according to the deposition of Wiersma on June 26, 2002.
Joshua, who was two years old as of 2000, was under the care of Wiersma, a pediatric oncologist who had collaborated with her husband to provide the ailing child radiation therapy as part of the planned treatment.
According to Wiersma’s deposition, which was mailed anonymously to The Press, Wiersma issued chemotherapy in hopes of achieving a remission in Joshua’s cancer. These treatments would help kill the cancer cells allowing for a stem cell transplant to destroy Joshua’s neuroblastoma-infected bone marrow and replace it with stem cells that were free of the cancer.
Part of the intended radiation that was to go along with the chemotherapy was a dosage of 10 grays, the amount of radiation Joshua was to receive. However, Kinsella had made a mistake, according to Wiersma’s deposition, by issuing only one tenth of the intended dosage, thus giving Joshua 1 gray.
Joshua, who Wiersma gave a 30 percent chance of survival in July 1999, was given the wrong dosage according to the deposition. It was only during a chart review session in May 2000 that Dr. Donald Shina, a radiation oncologist who worked with Kinsella, brought it to Kinsella’s attention that Joshua had been receiving one-tenth the radiation he was prescribed. “I had looked at the chart, and I said, ‘Tim, it is clear in your written note that in fact you wanted to give 10 Gray’ And he acknowledged that it sounded like there was an error,” Shina said in his deposition. After this meeting between Shina and Kinsella, no report or effort was taken to notify the family or Wiersma and no motion to increase the dosage of radiation was made.
Joshua lost his fight against cancer shortly after.
It was only until her deposition that Wiersma had become aware of notions taken to alert Kinsella of the unusually low amount of radiation to treat Joshua. “As a result of the depositions [those taken by others named in the suit] and the information that has been forthcoming in—as a result of this complaint and litigation, I have learned that this error was detected by persons in the radiation oncology department sometime in May,” Wiersma said.
Prior to being made aware of when Kinsella’s error was noted, Wiersma had stated that if someone had known of the error, they should have brought it to her attention due to her role as Joshua’s primary oncologist. “That would have been the most appropriate way for that information to be given to that family,” Wiersma said.
When Wiersma was first made aware of the lawsuit, she asked Kinsella about the dosage, to which he replied that he did not know of any error, according to Wiersma’s deposition, thus she assumed the complaint was mistaken. But she later found out she was wrong and that Kinsella had made a mistake in dosage.
“And so I walked into the room and it was clear that something not good was happening,” Wiersma said, referring to a meeting that took place between her, Kinsella, and Dr. Richard Ludgin, vice president of the UH Quality Center. “Tim was sitting with the radiation oncology chart in his lap on the other side of the desk…and he said, ‘I wrote the wrong prescription right here, it’s the wrong prescription. I meant 10, I wrote 1. I wrote the wrong prescription.’ Tim is telling me that he made a mistake, it was his error,” Wiersma said in her deposition.
Wiersma said that in retrospect, Joshua’s condition was severe and that the intended dosage of radiation was to delay the time of failure to his death. “The severity of his complications was already extreme,” Weirsma said in her deposition. “And if we would have actually given him ten times the dose of radiation, I think it is likely that he would not have survived that.”
Dr. Ernie Young, a bioethics consultant from California, had been asked by Ms. Valdivieso’s attorneys to look over the depositions of Kinsella, Shina, and David Abraham, a name mentioned in the suit. From reading their depositions, Young said he believed Kinsella breached the standard of medical care relative to ethics, in a letter sent to Valdivieso’s attorneys.
“Once the mistake had been pointed out to him, Dr. Kinsella had an ethical duty to look into it, confirm that an error had been made, document in the medical record the discovery of the error and its nature, and then immediately communicate with the family to them truthfully what had happened and what, if anything, could be done to remedy the mistake,” Young said. “It is unethical conduct of this nature that is damaging, not only to individual patients such as Joshua Valdivieso, but also to the physician-patient relationship more generally.”
Valdivieso had set a prayer amount, a demand for a specific amount in damages, to $25,000. During a phone interview, Kinsella had said the case was closed. “I was the person responsible for delivering total body radiation,” Kinsella said. “The intended dose was lower than what should’ve been given. That was resolved.”
Roughly 10 years ago, the University of Wisconsin conducted a probe on Kinsella’s medical billings from 1995-96 after receiving an anonymous complaint related to the matter. In that one year, the university discovered 66 instances out of 247 services that were backdated, incidents where Kinsella made a notation in a medical chart when he was scheduled to be out of town, and a bill was sent out for the corresponding service. These notes included physical findings and symptoms, according to a letter to University of Wisconsin Chancellor David Ward from Phillip Farrell, dean of the University of Wisconsin Medical School dated May 9, 1997.
The improper billings resulted in $5,815.18, which would be later refunded to the patients over billed.
In the very same phone interview, Kinsella confirmed that the investigation took place but said that little came out of it. “There was an issue of an anonymous complaint of issues with respect to billing that turned out to be false,” Kinsella said, adding that it was proven false by the hospital’s review of the records.
Through a freedom of information request seeking information pertaining to the investigation, no such review exists.
Dean Farrell said he felt that Kinsella had deserved to be reprimanded for his actions. “In our view, Dr. Kinsella’s practices are clearly outside the norms for appropriate medical record documentation and billing for a faculty member at the University of Wisconsin Medical School,” Farrell stated in his letter to Chancellor Ward. “In light of these findings, we believe that there is adequate cause for disciplinary action. We request that appropriate procedures be instituted.”
No such procedures were pursued.
On May 15, 1997, Ward had completed a draft of a letter that would be sent to Kinsella. In it, Ward had been willing to take action and pursue a secondary investigation that would look into the examination of any rationale or explanation for the backdated entries entered and other entries written by Kinsella as well as an examination of additional patient records not covered in review to determine whether there were more cases of backdating. In his draft, Ward mentioned looking into any red flags that may come to the attention of investigators.
“First, assuming the absence of any fraudulent intent, the questioned practices show very poor judgment and lack of sensitivity to some of the governing foundations of medical practice,” Ward wrote in his drafted letter. “I am recommending to Dean Farrell that you not be renewed as chair of the Department of Human Oncology and that you remain ineligible for reappointment as chair of the Department of Human Oncology, and that you remain ineligible for reappointment as chair as long as you remain a member of the faculty at the UW-Madison.”
Thirteen days later on May 28,1997, Kinsella had written his withdrawal for consideration for reappointment as chair of the Human Oncology department. “Serving in a leadership role during difficult times may mean being a lighting rod,” Kinsella said in the letter forwarded to Ward, Farrell and the Provost John D. Wiley. “Nonetheless, I have found the experience to be worthwhile.”
A press release regarding Kinsella’s decision was released the next day. No disciplinary action was filed or pursued. Shortly after, Kinsella landed a job at University Hospital in Cleveland.
In the complaint filed by Weber in 2007, Kinsella’s attorneys stated that the examinations Kinsella performed on Weber were consistent with those he gave both his male and female patients, according to Weber’s attorney notes on May 28, 2008.
“When he was confronted by the claims in this case, they went over 500 medical records to make sure these body exams are consistent,” Ben Barret, Weber’s attorney, had said. “They claim the records will demonstrate that he performs the same type of exams on male or female on almost every visit.”
There are few times when such patient information can be attained without the patient’s consent and not violate HIPAA, the privacy act that ensures patient health information is kept confidential. This includes court and administrative proceedings in response to a court order, subpoena, or discover request, according to Privacy Rights, a nonprofit Consumer Information and Advocacy Organization based in California.
In the complaint filed against Kinsella, Weber was the only plantiff. Though University Hospitals had said that Kinsella was within his rights to go through Weber’s records they were unaware of whether or not Kinsella and his attorneys reviewed the records of 500 patients.
“We feel that it was appropriate for Dr. Kinsella to share with his attorneys the medical information that had put in issue by filing a complaint against him with the State Medical Board of Ohio, in order to defend his medical license,” said Jennfier Edlind, a University Hospitals HIPAA Privacy Officer and Compliance Specialist in response to a number of questions brought up by Weber in October 2008. “I have been informed that no one at University Hospitals is aware whether Dr. Kinsella or his attorneys reviewed hundreds of patient charts in connection with the State Medical Board of Ohio matter.”
Only the Department of Health and Human Services or the Department of Justice have the authority to file action for violations of HIPAA. A patient does not have the authority to sue under HIPAA, but can send a complaint to these respective departments, according to Privacy Rights.
Kinsella, who was once among a number of national “top doctors,” was removed from the list earlier this year. Castle Connolly Medical is a medical company that highlights the best doctors all through out America. There is a selection process where nominees are interviewed, have their backgrounds extensively checked and have their submissions verified. Doctors are selected and removed from the database daily, according to a administrative official at Castle Connolly.
“You are correct in stating Dr. Kinsella is no longer listed as a Castle Connolly Top Doctor,” said Dr. Jean Morgan, vice president and chief medical research officer at Castle Connolly in an email interview. Morgan would provide no further comment as Castle Connolly does not comment on why or why not doctors are in their database.
When it comes to reporting on incidents similar to Kinsella’s, such as a malpractice case of improper billing for example, nearly half of doctors in a survey conducted in 2007 admitted to witnessing such incidents but not reporting it. The study reported in the Annals of Internal Medicine, which was led by researchers from Massachusetts General Hospital, surveyed roughly 1,700 doctors questioning their beliefs and practices. The overwhelming majority agreed that adhering to medical standards was important. But when asked about personal experiences, 46 percent said they had firsthand knowledge of medical mistakes but did not report them and 45 percent were aware of bad behavior that they didn’t report.
“It’s ubiquitous. Doctors are worried they themselves will make mistakes so they tend to be less judgmental,” said Dr. Peter Lurie, deputy director of Public Citizen’s Health Research Group, a non-profit consumer advocacy group based in Washington D.C. “There is that camaraderie amongst doctors and the socialization that takes place in medical school. It is that sense of identification that also is part of the problem.”
When it comes to doctors violating these standards of ethics, it is an individual matter and not a generalized occupational matter, according to Dr. Charles Rosen, founder and president of the Association for Medical Ethics. “It is a matter of the person having their own personal problems and the nature that prompts the action and not the profession,” Rosen said, who cited similar situations in the corporate profession. “A physician is a more privileged position where people confide in and seek help in a more private and personal matters.”
When applying for his licensure in New York State, Kinsella would have had to answer questions such as whether or not there were any charges pending against him in any jurisdiction for any sort of professional misconduct when applying for his license last year, according to the New York State application for licensure.
Kinsella is listed as a “visiting professor” from documentation received in a freedom of information request through Stony Brook University making an annual salary $475,000 paid by the university. Kinsella is the highest paid employee on the SBU payroll, according to Seethroughny, and is the highest paid visiting professor throughout the entire SUNY system, making more than twice as much as the third highest salary in the system.
Hired by Doctors Steven Strongwater and Richard Fine, CEO of the Stony Brook Hospital and Dean of the Stony Brook Medical School, respectively, Kinsella was brought on in October 2008. Both Strongwater and Fine have declined interviews, and outgoing President Shirley Strum Kenny said she would not comment on personnel matters during an April 2009 press conference.
“Dr. Kinsella is a nationally known clinician and administrator who was brought on board to help us execute our vision to develop a National Cancer Institute designated Comprehensive Cancer Center that will serve as a major clinical and research enterprise for Long Island,” Fine wrote in an email after he denied multiple interview requests. “Along with his extensive experience in academic medicine, Dr. Kinsella was recently appointed to the National Cancer Institute’s Board of Scientific Advisors, a highly significant appointment.”
During a phone interview, Kinsella denied any pending action complaint through the Ohio State Medical Board, though a ruling on that very complaint was made a few months ago. Asked if Dean Fine and others were aware of his past incidents, Kinsella replied, “Well, they are aware of those,” he added in his defense about the improper billings, “those were investigated, no allegations were found. That was well over a decade ago. That is old news.”
A request was made through the university’s media relations to confirm whether Fine and Strongwater were aware of Kinsella’s past as well as inquiries as to what classes he was teaching. The media relations office failed to meet the deadline for a response.
In the phone interview, Kinsella said he chose to come to SBU as a personal challenge to help put together an NCI-sponsored comprehensive care center in addition to collaborating with both Brookhaven National Lab and Cold Spring Harbor.
“We pick our challenges in life and this is one of the challenges I elected to do,” Kinsella said.