Former Lt. Gov. Steve Henry is someone you’re all familiar with– most notably for his campaign finance shenanigans over which I went to state and federal authorities… and led to an investigation being launched. But campaign finance and IRS issues aren’t the only problems on Henry’s plate. There’s a pretty major medical malpractice suit that names him as a defendant which goes to trial on Tuesday, February 3rd. So we thought we’d take a look
Long story short: In 2004, Steve Henry was the attending physician in a surgery on patient Amie Fuchs at the University of Louisville. Steve didn’t stick around for the entire operation. A major bone break was made during the surgery and wasn’t caught because Steve allegedly never showed up and never reviewed x-rays. Fuchs was sent home and had to return to the hospital later, where upon inspection of the x-rays, the fracture was found. Unfortunately for her, it was the type of fracture that had to be caught within 12 hours, otherwise the bone could/would die.
We’ve obtained copies of the original lawsuit filed with the court and got our hands on a copy of Henry’s deposition, where he passes blame/responsibility off on others. Here are some highlights from the suit:
18. Defendant, Stephen Henry, M.D., is, and at all relevant times herein was a physician duly licensed to practice in the Commonwealth of Kentucky and is subject to the jurisdiction of this Court.
19. Defendant, Stephen Henry, M.D., holds himself out to be especially skilled in orthopedic surgery.
20. During or about the period of August 2, 2004 to August 4, 2004 Defendant, Stephen Henry, M.D., undertook to provide medical care and treatment to Plaintiff.
21. Defendant, Stephen Henry, M.D., is, and at all relevant times herein was an employee, agent, servant, and/or ostensible agent of Defendants University Hospital, University Physicians Associates, University Orthopaedic Associates, Inc., and/or University Orthopaedic Departmental Entity, Inc.
22. Defendant, Stephen Henry, M.D., was negligent in his care and treatment of Plaintiff by acts of omission and/or commission and such acts of omission and/or commission were wanton, grossly negligent, malicious, reckless, oppressive, and/or willful, and demonstrate a complete disregard and indifference to the safety of the Plaintiff and was a substantial factor in causing or bringing about the damages sustained and injuries suffered by Plaintiff, thus making Defendant, Stephen Henry, M.D., liable to Plaintiff for punitive damages.
23. As a result of its relationship with Stephen Henry, M.D., Defendants University Hospital, University Physicians Associates, University Orthopaedic Associates, Inc., and/or University Orthopaedic Departmental Entity, Inc. were negligent and such negligence was a substantial factor in causing or bringing about the damages sustained and injuries suffered by plaintiff.
Click here to read the whole thing. Warning, it’s nearly 2.5MB in size and is a PDF file.
And highlights from Henry’s deposition from October 5, 2006:
Page 10, line 12
Q: Dr. Henry, can you tell the jury what board certification is?
A: Board certification is a process that when you leave a university that you get the stamp of approval basically.
Q: How do you get that certification?
A: Well, you have to complete a residency, and then you take tests — a test.
Q: Are there any other requirements?
A: Not to my knowledge. I believe there are probably — you have an oral and you have a written. You have to have completed a residency, and to my knowledge, that’s it.
Q: What’s the significance of being board certified?
A: I think when you go out and practice, you need some kind of, as I said, stamp of approval from a university that you’re well educated and well trained.
Q: Are you board certified in any speciality?
A: I am not.
Q: And why is that?
A: I didn’t take the test.
Q: Why is that?
A: Well, I was already at the university and didn’t feel it was necessary.
Q: Now, within the speciality of orthopedics do you limit your practice any further like, say, to the knees or hips or back or anything like that?
A: I think basically what I do is trauma. Our concentration — all of our research — if you looked at the hundred articles that I’ve written, or chapters, most all of those have been very specific towards trauma, towards fractures.
Q: Now, what is your relationship to the University of Louisville?
A: I’m a volunteer — have been a volunteer faculty member since I became Lieutenant Governor. At that point in time I resigned, if you will, my official full-time status and asked that they place me on a voluntary basis. I didn’t want to draw two salaries in other words. I didn’t want to double dip.
Q: Are you still considered a volunteer faculty?
A: I still am, correct.
Read the rest after the jump…
Page 22, line 3
Q: On those occasions that you do take x-rays after an operation or post-operatively, do you always review those films? Occasionally? Never? What’s the set criteria, or is there one?
A: Well, number one, I think that we generally always try to look at the films, but what we do now is we don’t even take the films post-operatively. We take the image, and that’s what we now use as the post-operative films.
Page 25, line 20
Q: Now, in any given case using this image intensifier, is this a standard practice? Is this something that University teaches its residents as well to do?
A: We use it routinely from internship and as an attending. We don’t normally know how to operate it, if that’s what you’re asking, but we know how to interpret it.
Q: Okay. And I certainly don’t imagine everyone knows how to do everything in medical. My question is, I guess if I could ask it this way, you use it on a regular and frequent basis?
Q: And you do so because you want to know whether or not the procedure you have done or are in the process of doing is being done correctly?
Q: So you can see actually down in beyond the skin and the muscle and everything else; you can see down to the bone to see whether or not you’re inserting something correctly or removing it correctly or whatever?
A: That’s correct.
Page 36, line 17
Q: And I take it from what you’ve said that you filled out the right half of this page?
A: Parts of it, yes, sir, I did.
Q: Which parts did you fill out?
A: Under the procedure, I said, “Present in O.R. for removal of femoral nails,” and that’s my signature, and then below it it’s the same documentation that — I think that’s Dr. Ogden’s signature.
Q: I’m sorry. I don’t think I was quite following you there. What — there are different sections listed here such as operative notes or progress notes or discharge notes. Let’s start with each section that you filled out, and let’s discuss it.
A: Okay. On the operative notes section, if you’re at that section now, it says 8-2, and it has, “retained hardware.”
A: Then under procedure I wrote, “Present in O.R. for removal of femoral nails,” and then that’s my signature.
Q: And when you say present in O.R. for removal of femoral nails, what did you mean by that?
A: Well, that’s — we have to document whether we’re in the case or out of the case, and I’ve documented I’m in the case.
Q: Now, when you say in the case, what do you mean by that?
A: In the operating room, directing the residents, answering questions of the residents.
Q: So during the period that the — let’s see — that the femoral nails were removed, you were present?
Page 38, line 20
Q: Okay. So getting back to page one under the operative notes, when you listed there that you were present for — in the O.R. for removal of femoral nails, would you have been present for removal of the femoral nails in the right as well as the left leg?
A: Well, that’s what it says. Yes, sir, that’s my indication. The other thing that we can do is go back and — usually it’s documented — okay. At the third page at the very bottom, Dr. Ogden dictated, “Dr. Henry was present for the removal of the bilateral femoral nails.” So it’s both of them. Yes, sir, I was.
Q: Now, in any given case when you remove femoral nails, do you use that image intensification to put on the femur to determine if the nails are completely removed, or do you use it at all?
A: Oh, no. No, no. We use it a significant — probably in this case we probably used it 50 minutes. What you have to do is, as you take the nail out you’ll have to take — you’re making small incisions, and you’re going down and you’re engaging a bolt, basically, and threading it onto the nail.
As you do that, there are many times — I mean, again, you’re five inches into the body. You have to use image intensification to see that, and so we use it routinely and a significant amount.
Page 52, line 10
Q: And you can see that from the — from looking at the x-ray right there?
A: Oh, yes, sir.
Q: And I would like to show you what appears to be a report from a radiologist who has read that exact — that film that we’re just discussing right there.
Q: And if we could go down to the — that paragraph right there in the middle of the page, findings, about the sixth line down, starting at the very right-hand side, the sentence starts “there”, and it wraps around “is however.” Could you read that sentence for us?
A: Under Findings, the sixth line down, one, two, three, four, five six, starts with “Femur.”
Q: And at the very end of that sentence.
A: Oh, okay. I’m sorry. There you go. “There is, however, a new fracture through the femoral neck, which is only minimally displaced. Soft tissues are normal and no radiopaque foreign bodies are evident.”
Q: Now, before I was just asking you — when you were reading that sentence when you got to the area of “which is only minimally displaced,” you chuckled a little bit. Why is that?
A: Well, it’s like a cherry bomb went off in her hip. I mean, I wouldn’t say that’s minimally displaced. It’s highly comminuted. There are at least three or four fracture fragments right there, and it’s in significant varus. I’m sorry, it is displaced.
Page 55, line 5
Q: Now, the type of fracture that Amie suffered during this surgery of August 2, 2004, would that have occurred during the removal of the femoral nails?
A: Well, you said something interesting. You said during the surgery. I don’t know that anyone has determined that the fractures occurred during surgery, did they?
Q: Well, that’s what I’m asking.
A: I don’t think they did.
Q: Okay. Well, let’s get back to the x-ray that occurred before Amie was actually operated on, and that was July — I don’t remember the exact date on that — July 19th I believe it is. You have the date.
Q: And as you mentioned before, in that x-ray approximately three weeks prior was there a fracture?
Q: The x-ray taken directly after her operation that occurred some three weeks later on August 2, 2004, that fracture did exist?
A: On 8-2-04?
A: On 8-2-04 there is a fracture taken in the recovery room, I assume (sic). This was not in surgery. This was after surgery. And there’s no question there is a fracture there.
Q: So this film was taken after surgery?
A: Yes, sir.
Q: Now, you mentioned earlier that during the course of removing rods and nails form an individual, and Amie specifically, that you take some 50 minutes of imagine?
A: Well, different cases take different amounts. A very simple case is going to take less. Complicated cases are going to take more. I think in her case I bet you she used every bit of 50 or 60 minutes.
Page 62, line 20
Q: After that hardware on her right side was removed, were you still in the room?
A: Well, after — I was there until the nails were taken out, yes.
Q: So you were not there — you were not there for any of the period that she was sewn back up?
A: Well, no, I can’t say that. I can say that I was either in the room or just in the core, one of the two. I mean, I can’t —
Q: What do you mean by core?
A: — Remember every second of what I did, is what I’m saying. Well, the core is the room — we have two rooms. You have 9 and 10. The core is the middle room right there.
Q: So it’s like a space in between the two operating rooms?
A: Basically. It’s where we keel all our equipment.
Q: While you were still in the room and after the right-side surgery was complete, are you aware whether or not Amie was repositioned again?
A: Ask me that one more time. After which —
Q: Let me rephrase that a different way. After the surgery was done on her right side, was she rolled back on her back, or was she left on her side? How was she left?
A: Well, no. You always put them back on their backs. You take the roll out. You place them on their backs, and then — and I can’t tell you after that — on her way to recovery, you know, and being taken off the operating table on to her bed — I can’t tell you. I wish I knew.
Q: So she was rolled to recovery on the operating table?
A: No, sir. No. She was moved from the operating table to her bed in the operating room.
Q: And were you present for that?
A: To be honest with you, I doubt it.
Q: How ordinarily is that done?
A: Well, it’s done every case.
Q: What i mean by that is not whether it’s done in every case, but how — what’s the methodology of — do you pick her up by the arms and the legs and move her? Do you pick her up by a sheet? Is there some mechanism whereby you move her?
A: Well, what happens in general situations is you have a roll, and you roll the patient up, and you put a roll under her, and then you lay her back, and then the sheets are pulled across the roll…
Page 66, line 21
Q: Okay. Now, getting back to that x-ray taken you said just after her surgery in the recovery room —
A: Yes, sir.
Q: — The one of August 2, 2004 —
A: Yes, sir.
Q: — Did you ever have occasion on August 2nd or August 3rd to view that film?
A: No, sir.
Q: After a person is taken from surgery, whose responsibility — if a film is taken, whose responsibility is it to view that film?
A: Well, I mean, if I ordered the film, I’m going to look at the film, but I guess what I’m saying in this situation is, is that we no longer take permanent films like that anymore.
Q; Well, in this case one was in fact taken.
A: That’s exactly right.
Q: Who ordered that film?
A: I don’t know.
Q: I don’t know whether or not it is listed here. It’s your testimony that you did not order the film?
A: No, sir.
Q: So it’s your testimony that you would not have known that this film existed to look at?
A: I did not know it existed. I was satisfied with the c-arm.
Q: Now, if you — regardless of who ordered the film, if you had read that film and seen this fracture, what would you have done?
A: Well, I mean, you treat it. I mean, if she’s got a femoral neck fracture, you have to fix it.
Most all of page 69
Q: Okay. So in this case if you had seen that x-ray, the one from August 2, 2004, you would have scheduled her to fix that fracture on August 3, 2004?
A: The next morning, if that’s the 3rd. If this on the 2nd and I saw that film, I would get her scheduled, yes.
Q: Now, would you do that in any case, or is there something particular about this type of fracture that you would schedule it within 24 hours?
A: Well, there are several things. Number one, if it’s literally a nondisplaced crack, then what you want to do is to, you know, get them — that is more important to me — in her situation the die is cast. I mean, she’s separated, and the likelihood she’s going to have the result she’s going to have is — you know, the die is cast.
Q: Now, when you mean (sic) the die is cast, what do you mean by that?
A: Well, I mean, it’s — I liken it to the French guillotine. You know, when the guillotine comes down, you can’t put the head back on. If you do it’s not going to survive. And that’s what happens in these cases where there’s that much damage to the femoral neck, and when there’s significant displacement, you can expect that you’re going to have A.V.N, Avascular Necrosis, because you basically cut the blood supply off.
Page 72, line 3
Q: Okay. I’ll show you another document. This appears to be a discharge summary. Do you recognize this?
A: Well, I mean, I know what it is. It’s — Dr. Ogden signed it.
Q: And what is it?
A: Well, it’s a discharge orders/plan, and it’s basically that he was sending her home on Lortab, which is a pain medicine, 7.5. So it was kind of a heavy-duty pain — phenergan to keep her from getting nauseated from the pain medicine, and just basically what she ought to do.
Q: Now, about halfway down that document under Activity, right and left leg are both checked.
Q: And it’s also checked, full weight. What’s meant by that?
A: Well, I mean, it means that she’s capable of bearing full weight on it. If she wants to stand up on it, she can put full weight on it.
Q: Now, in your experience and in your opinion, Amie having suffered the fracture that you’ve noted in the August 2, 2004 x-ray, is it possible for her to sustain weight on that leg?
A: No. SHe won’t talk on it.
Q: She could not stand on that leg?
A: No. I mean, if she even tried, the pain would prohibit her from doing that, in my opinion. Now, there are people that go on both ends of the bell curve, but if you have a femoral neck fracture, you’re not going to get up and walk on it generally.
Page 79, line 16
Q: It’s my understand that you operated on her again; is that correct?
A: That’s correct.
Q: And why was this second operation performed?
A: Well, the purpose of this procedure was to stabilize the femoral neck, try to get it to heal.
Q: Now, the fracture occurred on August 2 of 2004, and it looks like the date of surgery here is August 4, 2004; is that correct?
A: That’s correct.
Q: Okay. Now, you mentioned earlier in cases — well — and let’s back up. You may have mentioned this already. In cases where the displacement of the fracture is not as severe as you put it in Amie’s case, is time a factor in whether treatment is going to work or not?
Q: Well, let me back up, and I’ll ask it a different way for you. You testified earlier that the x-ray radiologist’s report said that the fracture was minimally displaced, and you said that’s not the case, that —
A: That is not correct. It says nondisplaced. In the same report it says nondisplaced — minimally displaced; totally different, wrong in both cases.
Q: Now, in your opinion as displaced by, I think you said, up to an inch?
A: Well, on that view if you look at where it should have been, it was displaced by as much as — and I would say that’s about an inch.
Q: Would you characterize that as a significant displacement?
A: I think that that is a significantly negative indicator of her outcome, and I think that’s a significant displacement which predisposes her to A.V.N.
Page 89, line 10
Q: And specifically the x-ray of August 2, 2004 that was done after Amie’s original surgery. Did you ever ask either of those physicians whether they had read the x-ray before Amie’s discharge?
A: I don’t think I ever did. I think my assumption would have been that they did not.
Q: Why? Why didn’t you ask?
A: Well, because if we had noted that there was a femoral neck fracture, we probably wouldn’t have sent her home and just kept her at the hospital.
Q: Did you have anything to say about — you know, operating under the assumption that they did not read the x-ray, did you have anything to say about that?
A: Well, here is what I remember more than anything else. I was upset with how it happened. I wanted to know, you know — and you’re just asking me for my opinion.
A: I wanted to know who twisted her leg or what happened that she had a femoral neck fracture. I wanted — I wasn’t blaming the residents. I was just trying to figure where in the case that that had taken place.
That’s what I remember more than anything else, was what happened to her. In route, you know, did her leg fall off the bed? Did somebody twist it? I wanted to know what happened to my patient.
Q: Now, at the point that Amie was — at the point that Amie was released to the floor after her surgery of August 2, 2004 — and she was there for a period of time, a day I think, before she was discharged on 3rd — Are you aware whether Amie complained of intense pain to either the nurses or any of the residents that did rounds?
A: Well, here is what I’m aware of. I’m aware that she said she complained —
A: And she voiced the same thing to me in the office. At the time I did not know.
A: If you’re asking me if I received a call from the nurses saying she’s in a lot of pain, no, I did not.
Q: And would that have been their responsibility to do that?
A: Well, I guess what we like is when nurses are — we want concerned nurses that if they see something out of the ordinary that they’re going to pick up and get the doctor’s attention or call me at least and say, I’m really concerned about this patient; this is not normal.
Click here to read the whole thing. Warning, it’s about 12MB in size and is a PDF file.