Suits mount against surgeon

Dr. Michael B. Butler regularly performs a risky weight-loss operation. Nine of those patients died. He denies wrongdoing.

By WILLIAM R. LEVESQUE, Times Staff Writer
© St. Petersburg Times
published June 23, 2002

Robin Coulter, self-conscious about his 260 pounds, wanted to lose his big belly. After years of diets and jogging failed, he read about surgery that allowed singer Carnie Wilson to drop 150 pounds.

Though his wife thought it unnecessary, Coulter, 41, wanted the same operation.

In the hours after his release from Palms, Coulter sometimes screamed in agony. His family says Butler dismissed his pain as gas.

Less than a month later, the postal supervisor died of complications from an infection.

"Butler's got to be stopped," said Coulter's wife, Nanette Coulter, whose attorneys are preparing a lawsuit against Butler. "I can't tell you the hell my daughter and I have been through."

A St. Petersburg Times review of court cases in Seminole, Orange and Pinellas counties shows that Butler has been sued for medical malpractice 23 times and has settled at least two claims before suits were filed.

Those 25 claims involve at least 13 patients who died after surgery, including nine after weight-loss surgery. (Butler was dropped as a defendant in two of those suits involving patients who died.)

Butler or his insurers have paid at least $2.25-million in claims since the early 1980s.

Several Orlando-area hospitals are attempting to revoke Butler's staff privileges because of accusations of negligent care, the surgeon confirmed in an interview.

Palms says it checked Butler's history thoroughly before giving him privileges. The latest lawsuit, filed in Pinellas County, is the only one involving Palms.

Butler, 63, of Altamonte Springs outside Orlando, says he has performed 6,000 weight-reduction surgeries in a 30-year career.

Butler, former president of the Orange County Medical Society, said he is a skilled surgeon unfairly attacked in lawsuits. He said severely obese people face shortened lives without weight-reduction surgery, also called bariatric surgery. He says he's one of the few doctors who'll take these cases.

The complication rate for obese patients is high, he said, because of underlying diseases such as diabetes and high blood pressure. As a result, bariatric doctors are sued for malpractice more often because patients are more likely to do poorly, not because doctors make more mistakes, Butler said.

No matter how skilled the surgeon, things can go wrong, he said.

"This is the riskiest operation any general surgeon can do," he said. "Every time I operate on someone, it's a high-risk patient. I work on a lot of patients other surgeons won't even touch."

Gastric-bypass surgery has become increasingly popular in recent years. Some point to Wilson Phillips singer Carnie Wilson's operation in 1999 as helping to popularize the procedure. It also helps that insurance often covers the surgery.

The American Society for Bariatric Surgery estimates more than 42,000 Americans had the surgery last year, more than double the number in 1997.

The surgeries Butler performs cost between $20,000 and $25,000. He has testified that he performs up to 130 operations a year.

According to the International Federation for the Surgery of Obesity, bariatric surgeons face a higher risk of malpractice lawsuits than physicians in many other specialties because patients are often sicker.

In the most common weight-reduction operation, a patient's stomach is separated into two parts. The smaller part, the size of a thumb, is so small a patient feels full much more quickly after eating. The surgeon also reroutes the intestines. About 1 percent of patients who have the surgery die and 7 percent of patients endure complications.

The Times reviewed a list of the 41 Florida doctors listed as regular or affiliate members of the American Society for Bariatric Surgery. According to Florida Department of Health and Department of Insurance records for the last decade, Butler leads the list of physicians in the number of claims more than $5,000. No other physician has half as many.

Not all bariatric surgeons are affiliated with the society.

Butler, however, said few of those surgeons have as much experience as he does. "It appears I do more operations than others," he said, noting he has performed bariatric surgery longer than probably any surgeon in Florida.

Not all malpractice complaints against Butler involved weight-loss surgery. Of the 25 lawsuits or settled claims, at least 11 involve allegations unrelated to bariatric surgery, a Times review shows.

In 1986, Orange County resident Betty Heard, 53, died of complications after gallstone surgery. Survivors filed suit in 1988 against Butler and Florida Hospital, and a $30,000 settlement was paid on Butler's behalf.

In 1989, Thomas Gray of Orange County died after exploratory surgery. His survivors filed suit against Butler, another doctor and Florida Hospital. A $15,000 settlement was paid on Butler's behalf.

In 1997, two years after bariatric surgery, Luz Hernandez, 29, of Orlando died after Butler misdiagnosed a bowel obstruction as constipation, a lawsuit says. Lawyers say Hernandez had gangrene in her bowel.

Family attorneys say the obstruction was unrelated to her bariatric surgery performed by Butler.

A pending lawsuit names as defendants a hospital, several physicians and Butler.

"It's a poor excuse to say you're up against a very dangerous, high-risk patient and that stuff can go wrong," said attorney Theodore Babbitt, who has sued Butler on behalf of three patients.

"You have to be practicing bad medicine to get bad results," he said. "Risk alone doesn't explain why someone has all these malpractice lawsuits filed against him."

Allegations of negligence against Butler involve surgical errors and postoperative care.

In 1990, the Florida Department of Professional Regulation wrote a letter of guidance to Butler, telling him he failed to provide reasonably prudent care to a patient he operated on to perform a breast biopsy.

A letter of guidance falls short of a reprimand and is usually issued in cases the state considers less serious.

DPR said Butler left a surgical drain in the woman's breast. The drain should have been removed after two to seven days, DPR said. Another physician removed it after almost two years.

Another patient, Nijole L. Naikus, 50, died in 1993 in Orange County after weight-reduction surgery with Butler. During the operation, Butler allegedly failed to properly insert a chest tube to treat a collapsed lung, which lawyers said contributed to Naikus' death.

"That's something every EMT and paramedic and first-year intern knows how to do," said Babbitt, who represented Naikus' family and settled a lawsuit for $250,000, Butler's policy limits.

After his surgery, the 260-pound Coulter ran a fever of 100.6 degrees and sweated profusely. His wife says she complained to Butler and others that her husband should not be discharged too quickly. Three days after surgery, Coulter was sent home, she said.

"I didn't think he was well enough to go home," Mrs. Coulter said. "I said that over and over again to anybody who would listen. They told me he was fine."

Coulter suffered from an infection, his lawyers say. The day after his discharge, his wife recalls, he was in excruciating pain. Butler agreed to see him late that evening.

Coulter was soon in surgery again, where he had a heart attack. At some point after surgery, he lost brain activity. Almost a month after surgery, Mrs. Coulter ordered doctors to remove life support.

"My last time in the room before he died, I kissed him and told him, "Quit fighting.' I told him, "Go home and be with God,' " Mrs. Coulter said.

Butler said he is a victim of a growing wave of malpractice litigation against doctors.

Butler, who has admitted no wrongdoing in the lawsuits he has faced, said that his insurance carriers often settle lawsuits against him before trial to avoid costly litigation. Butler said he has disagreed with accusations in the lawsuits. But under Florida law, carriers can settle cases without his permission.

The Florida Board of Medicine, which can discipline doctors, declined to discuss Butler. But board president Zachariah P. Zachariah, a Fort Lauderdale cardiologist, said lawsuits are a poor indicator of physician skill. It's one reason why the state doesn't discipline doctors based only on the number of lawsuits filed against them.

"If you find a doctor with 1,400 lawsuits filed against them," he said, "then I acknowledge, there is something wrong someplace."

Butler grew up in St. Petersburg and graduated from Gibbs High School. He went on to the Howard University College of Medicine and has performed variations of weight-loss surgery since the 1970s.

The physician has practiced almost exclusively in the Orlando area over the past three decades. He gained surgical privileges at Palms of Pasadena in February 2000 and said he maintains an apartment in St. Petersburg.

Butler and his malpractice history sometimes drew media attention while he practiced in the Orlando area.

His history was prominently featured in an Orlando Sentinel series about medical malpractice in 1995. In 1998, Butler's record was examined by ABC's 20/20 news magazine.

The same year, Butler faced what might have been the challenge of his professional life. This time, state regulators threatened his medical license.

In May 1998, the state placed an emergency restriction on Butler's medical license after an expert identified problems in several of his cases. The state ordered Butler to immediately stop performing bariatric surgery.

Butler said the state's expert wasn't one and was a physician who never performed bariatric surgery.

In a later administrative complaint, the chief medical counsel for the Agency for Health Care Administration accused Butler of providing inadequate care to four patients between 1994 and 1996.

Three of those patients received bariatric surgery and died from complications, state records show. The fourth survived gallbladder surgery.

Later, after other surgeons reviewed Butler's work, the counsel determined that Butler's care was not negligent in the three deaths. Charges involving those cases were dismissed and restrictions lifted.

In the complaint involving the gallbladder patient, Butler agreed to get 10 additional hours of medical training in laparoscopic surgery.

Within two years, Butler applied for surgical privileges at Palms and at a hospital in Daytona Beach, Butler told lawyers in a lawsuit. The other hospital did not grant him privileges; Palms did.

Palms officials, who promote bariatric surgery on a Web site (www.obesitynomorefl.com), refused to discuss Butler's malpractice history or its credentialing process.

In the one Pinellas lawsuit against Butler, Palms is being sued for negligently credentialing the doctor.

"He went through a thorough credentialing process, as we do with all physicians," said Bruce Baldwin, Palms' chief executive officer. "If there were any issues, they were thoroughly investigated."

Aside from Palms, Butler has privileges at three Orlando-area hospitals, according to state records.

In an interview, Butler said several hospitals in the Orlando area are trying to revoke his privileges because of allegations of negligent patient care. He declined to identify the hospitals.

Butler said the hospitals are seeking to prevent him from caring for severely obese patients because of the litigation risk.

"It's a prejudice against the obese patient," he said.

In litigation against Butler, some experts have testified that a surgeon with his history shouldn't have privileges at any hospital.

"That number of cases is just incomprehensible for anybody to allow a physician to continue on the staff," Gary Steinberg, a health care consultant and former hospital administrator, told lawyers in a lawsuit unrelated to Palms.

"That is something hospitals should be doing something about," Steinberg testified. "They have a responsibility to the community."

At a support group meeting last weekend at Palms attended by about 50 people, Butler told potential patients that the surgery has risks of complication, including death. He didn't mention his malpractice history.

Fit and soft-spoken, Butler introduced more than a dozen men and women who successfully underwent surgery. Some have lost more than 100 pounds.

Cindy Harshbarger, who lost 31 pounds after surgery three weeks before, said she is pleased, saying, "It's a built-in behavior modification program."

But James Deaton, 60, of Umatilla, a small town about 12 miles northwest of Orlando, said his wife would be alive if she had known Butler's history before undergoing bariatric surgery in 1994.

His wife, Sandy Deaton, hated being obese. Dreaming of a healthy figure, the 310-pound woman tried every fad diet. Nothing worked.

Mrs. Deaton, 47, heard about the surgery through a friend and signed up.

A month after the operation, Mrs. Deaton died from complications related to an infection after a leak in her surgically reconfigured stomach. A lawsuit against Butler was settled for $250,000.

"I'm sure many of his operations are decent," Deaton said in an interview last month. "But when you're dealing with life and death, you can't afford to keep tripping up like he does."

-- Times researchers Kitty Bennett, Catherine Wos and Barbara Oliver contributed to this report.