Confidential deals can obscure sexual misconduct allegations against doctors as Cleveland Clinic case shows – By Jayne O’Donnell (usatoday.com) / Jan 5 2018
The Cleveland Clinic, one of the nation’s largest and most renowned hospitals, knew of at least two cases in which one of its surgeons was accused of raping patients but kept him on the staff while reaching a confidential settlement, a USA TODAY investigation has found.
Ryan Williams, a colorectal surgeon accused in police reports by two women of anally raping them in 2008 and 2009, left Cleveland Clinic last summer for another hospital, which placed him on leave after learning of the complaints against him.
As prominent men in government, the judiciary and entertainment lose their jobs for varied forms of sexual harassment, doctors accused of sexual assaults of patients are regularly unaffected professionally or publicly.
But the same types of secret settlements criticized for their role in sex abuse and harassment cases from Hollywood to Capitol Hill are also frequent in health care. Doctors and hospitals worried about their public image feel like, “If I can’t get silence what’s in it for me?,” says Jim Hopper, a clinical psychologist and expert witness in cases involving institutions’ treatment of patients.
“Why did he do it?”
The scene in Williams’ office after the alleged rape on April 11, 2008, was nothing short of pandemonium, according to a report filed by the Westlake, Ohio, police department.
Patient Lachelle Duncan was receiving a rectal exam from Williams, the report said, when she jumped up and exclaimed the doctor had inserted his penis in her rectum and that she saw him holding it in his hand.
She ran out of the room without pants and shouted, “Why did he do it? Why did you do this?” Williams replied, “I don’t know,” with his head in his hands, according to an interview with medical assistant Patricia Bacha contained in the police report.
Williams explained to police the presence of semen in one of his examination rooms was the result of masturbation to relieve stress, the police report said.
After she pressed charges, Duncan got a rape kit, which along with other lab tests, proved inconclusive. A Cleveland Clinic spokeswoman said Williams took a polygraph, which was filed as evidence to a grand jury. Williams wasn’t prosecuted criminally, but Duncan sued Williams and the Cleveland Clinic, which resulted in a confidential settlement.
While the identity of potential rape victims are not made public, USA TODAY obtained Duncan’s name through the police report and the lawsuit she filed against the hospital and Williams. She declined to comment because of the confidential settlement that court records show was reached by the Cleveland Clinic.
Hospitals will often take over doctors’ liability in confidential settlements, which Washington plaintiffs’ attorney Patrick Malone calls a “frequent dodge” to keep medical negligence claims out of the National Practitioners Data Bank. Before they hire doctors, hospitals check the data bank, which also includes disciplinary actions by hospitals, medical societies and boards, which also have access to it.
Duncan’s case, however, was a “miscellaneous tort claim,” filed after Ohio’s one-year statute of limitations for medical malpractice claims had passed.
That’s just one of the many laws working in the favor of the Cleveland Clinic and the health care industry in Ohio. Plaintiff lawyer Michael Shroge, a former Cleveland Clinic associate general counsel, says major health care systems are “very often more interested in protecting their brand than protecting the health of patients.”
Ohio has passed laws in the last 20 years, Shroge says, that have created some of the nation’s broadest “protections affording confidentiality.”
A delayed complaint
Kristin Fehr went to see Williams to have a hemorrhoid removed 10 months after Duncan did. On Feb. 6, 2009, Williams brought her into the examination room alone, she told police, gave her two white pills and a cup of water and said she needed to take the pills immediately.
Fehr recalled groggily getting on the table and just as hazily leaving the medical center with her then-boyfriend, who was waiting in the car.
In October 2014, Fehr’s memories started to come back in flashes when something like a doctor’s appointment would prompt them, she said in an interview and a letter USA TODAY reviewed that she sent to the Cleveland Clinic ombudsman.
She remembered being pushed from behind, turning and seeing Williams holding his penis. “Everything I was remembering was disturbing,” Fehr said.
Hopper, also a Harvard Medical School teaching associate, says that’s not unusual as “we retrieve information from memories based on the context we’re in.”
Assuming she was the first — and only — victim, Fehr says she started with the ombudsman and said she was “overwhelmed by feelings of horror” and “terrified to leave my apartment much of the time.” She has since left her job and moved in with her parents, where USA TODAY interviewed her.
Fehr said she thought if the hospital knew about the accusations against Williams, they would just fire him. “My whole reason for doing that was to have some kind of warning out there,” she said.
Instead, she soon started seeing promotional videos and positive articles about Williams online.
Fehr went to the Westlake police due to what she thought was the slow pace of the Cleveland Clinic police’s investigation. She was later given poorly redacted versions of her report and Duncan’s, but was quickly told Duncan’s was released in error. Westake police sent USA TODAY a more redacted version of Fehr’s report and said the one corresponding to the number on Duncan’s was expunged.
The police reports for Duncan and Fehr are similar in many ways. Duncan told police that after Williams told her to “scoot back,” he kept telling her to “bear down” and “relax” over and over, something she was having nightmares about after the encounter. Fehr has never spoken to Duncan.
As for Duncan’s report and criminal case, however, Westlake Police Capt. Guy Turner said, it “was ordered expunged by Common Pleas Court Judge John Russo” in October 2014.That’s the same month Fehr filed her report with the ombudsman.
“In lay terms, it is to be treated as if it never existed,” Turner said.
While Williams told USA TODAY last month that “all my visits have been chaperoned,” his former medical assistant Bacha told police that was “not always possible due to staffing.”
Heather Phillips, a spokeswoman for the Cleveland Clinic, says Williams left the hospital for reasons unrelated to the sexual assault allegations. “We take any allegation very seriously and act in a swift manner to address them,” Phillips added.
Responding to questions from USA TODAY, Williams said, “I probably wouldn’t say anything,” but then noted he had never heard of Fehr, although police interviewed him about about rape allegations involving “Kristin” in May 2015. After he was placed on leave, Williams said “I vehemently deny what these women are saying” and that the allegations were affecting his “work and home life.”
Williams was never charged with a crime. Prosecutors considered sending the first case back to the grand jury with Fehr’s case to improve the chance of an indictment, but decided against it as the cases would have to be separated at trial, according to a report by Westlake, Ohio, police on Fehr’s case.
Williams moved last summer to Ohio State University (OSU) Wexner Medical Center in Columbus. After USA TODAY contacted OSU last month about Williams, spokesman Christopher Davey said it was the “first we’ve heard of any allegations regarding this physician,” that it did all the required background checks and that the hospital was looking into the charges.
By the next morning, however, OSU had placed Williams on paid administrative leave, Davey said, and Williams was not seeing patients.
Compromising patient safety?
Critics of settlement deals’ gag clauses say they compromise patients’ health and safety and are unethical.
Confidential settlements are particularly problematic when it comes to health care, as “we take off our clothes in front of doctors,” said Malone, who specializes in medical malpractice cases. “For a doctor to violate that in a sexual way is the ultimate wrong,” he said, adding that he only agrees to confidential settlements if his client insists and of the settlement
“These things never happen on one occasion,” says Malone. “At least some aspect of the settlement — but not necessarily the dollar amount — should be public to make sure it’s not going to happen to someone else.”
Ohio’s statute of limitations for medical malpractice or rape is one year. Fehr has long since lost her chance to sue, but not to talk about what happened, which she is doing because she’s concerned Williams still has his medical license.
Confidential settlements involving doctors or hospitals accused of medical malpractice or sexual assault can perpetuate issues, says Christian Patno, a Cleveland personal injury and medical malpractice lawyer..
“Things can occur that keep on going,” says Patno. “That’s the biggest concern and it prevents the impetus to make change.”
Having confidential settlements “brings finality and closure to disputed matters,” said the Cleveland Clinic’s Phillips. Besides, she says, “it is not only corporations that request confidentiality; individuals filing claims request confidentiality as well.”
Importantly, confidentiality in a civil lawsuit “does not preclude Cleveland Clinic from reporting allegations of wrongdoing to authorities,” she says, which the hospital did although Westlake police allowed hospital police to do the investigation, including the interview with Williams after Duncan pressed charges.
South Carolina has about the strictest law governing confidential settlements in the country. California doesn’t allow confidential settlements in cases involving felonies, which includes sexual assault. Legislation is expected to be reintroduced soon in the New Jersey state house to prohibit confidential settlements in litigation, including medical malpractice cases, that would cover up a “public hazard.”
The tax legislation passed last month by Congress includes a provision that would end corporations’ ability to deduct attorney fees and settlement payments in sexual harassment or abuse cases if there is a nondisclosure agreement.
The provision, proposed by Sen. Bob Menendez, D-N.J., was motivated by publicity about settlements over harassment by Hollywood producer Harvey Weinstein and former Fox News commentator Bill O’Reilly, says Menendez spokesman Juan Pachon.
“It’s up to the individual complainant whether to settle confidentially or not, and lawyers have an ethical obligation to inform them of the pros and cons,” said Baltimore employment lawyer Kathleen Cahill. “There’s a lot of areas in civil litigation where settlement clauses are used to shroud them in secrecy.”
Only a fraction of medical mishaps even become claims or lawsuits that can be settled, and the vast majority of those that do are resolved before trial. Most settlement agreements include clauses that prohibit the plaintiffs from discussing how much was paid, and defendants also try to get plaintiffs to agree to never discuss the facts of the case, says Malone.
“They went to great lengths to cover it up and there was just no way for someone to be warned, to know what could happen,” says Fehr. “They can just make it completely disappear and that kind of environment, it almost encourages these kinds of crimes.”
