The Case of the Missing Physician 

What can happen to a figure in the news when prosecutors drop accusations against him but the media never catches on.

Dr. Rod Perry is a central figure in the most important legal challenge to California's regulation of health maintenance organizations. The Oakland internist was the physician who treated Margaret Utterback, a 74-year-old San Leandro resident who complained of abdominal pains in early 1996 and died following emergency surgery to repair a ruptured aneurysm. The disputed circumstances surrounding her death prompted the state to slap Oakland's Kaiser Foundation Health Plan with a $1 million fine -- the largest ever levied against a California HMO.

Perry's treatment of Utterback was initially central to the state's case against Kaiser. The state referred extensively to the doctor's actions and suggested that his treatment was lacking in various regards. In its first accusation against Kaiser, filed in May 2000, the state asserted that "Dr. Perry failed to follow even the simplest of standard [abdominal aneurysm] protocols, such as starting IVs and oxygen and/or administering pain medication to keep Utterback calm."

But the state later revised its view of Perry's treatment, significantly downplaying his role in later legal filings. The problem for Perry was that the news media never caught on to the state's new position during its extensive coverage of Utterback's death. Over the past two years, the conflict between the state and Kaiser has been covered by most of California's major media outlets, including the San Francisco Chronicle, the Contra Costa Times, the Los Angeles Times, the Sacramento Bee, and KRON TV, as well as a January 16 article in the Express. Most of this coverage included harsh criticism of Perry, and yet Perry's own account of events has never been included in any stories or legal filings.

The media's treatment of Rod Perry is a prime example of what can happen to a figure in the news when prosecutors revise a case without formally renouncing their earlier accusations, when media outlets rely solely upon the official account, and when the subject of coverage makes no effort to present his own side of the story.

Perry claims the state did not ever communicate with him before filing its initial accusation. Upon reading the accusation a few months ago as he prepared to testify in Kaiser's appeal of the fine, Perry said he was "really shocked at the inaccuracies, the distortions. Basically, they accepted the story of one of [Utterback's] daughters virtually verbatim. It strikes me as irresponsible on the part of these entities not to look at this a little more closely to see whether the facts bear out all this action that they've taken."

The case began when the state Department of Managed Care levied its fine against Kaiser two years ago. The agency accused Kaiser of failing to provide Utterback adequate access to care. In challenging the case, Kaiser has taken issue with the very basis of the state's scope of authority.

On January 26, 1996, Utterback spent eight hours working her way through Kaiser's phone scheduling system in an attempt to see Perry, her primary care physician. After five separate phone calls and various conversations with different medical assistants, Utterback finally secured an appointment. Upon examining her, Perry diagnosed Utterback's aneurysm and arranged for her transport to a Kaiser hospital for emergency surgery.

Utterback's youngest daughter, Terry Preston, who spent years convincing the state to launch an investigation, believes there were unreasonable delays at Perry's office. After arriving at the clinic early and begging to be seen by Perry, Preston says her mother was finally led to an examination room about fifteen minutes after her scheduled appointment. Once Perry diagnosed her mother, Preston says Utterback and another daughter, Barbara Winnie, sat in the patient room alone for twenty to thirty minutes while waiting for an ambulance, during which time Utterback was in serious pain. Preston also claims that Perry's decision not to establish an intravenous line at his office cost her mother precious time once she arrived at the emergency room, where ER nurses struggled to set up an IV.

Medical journals recommend IVs, oxygen, and pain medication as common medical practice in aortic aneurysm cases. But Perry defends his decisions not to use any of these methods in his treatment of Utterback. The IVs available in his office that day were simply too small to be of any good to her, he said. The physician also claims that Utterback needed large-bore IVs that could dispense massive amounts of intravenous fluid. Perry said he chose not to administer pain medication because it could have dramatically affected his patient's blood pressure and his office was ill-equipped to deal with the emergency procedures that could have been necessary as a result. The same goes for a cardiac monitor; Perry said it wouldn't have done any good, given that if Utterback had gone into cardiac arrest she'd have needed emergency equipment that wasn't available at his office. He said he felt it was safer to keep her stable and order transport.

Perry's conduct was reviewed in 1996 by the California Medical Board. Upon reviewing his account and Utterback's medical records, the board cleared him of wrongdoing in the case. However, a board representative did voice concerns about Kaiser's phone system at the time of its decision and recommended that the Kaiser system be further investigated, Perry said. The board also wrote to Utterback's daughter Preston, urging her to pursue the matter with state HMO regulators.

The evolution of the state's case against Kaiser coincided with the birth of the Department of Managed Care. The first accusation in the case was actually filed by the Department of Corporations while the Department of Managed Care was under establishment. The Department of Corporations was previously responsible for regulating HMOs, but the new Department of Managed Care was given much wider oversight. Two months after the first accusation was filed, the Department of Managed Care took over management of the case.

Department attorney Curtis Leavitt, who's been with the department for fourteen months and started working full-time on the case six months ago, speculates that the Department of Corporations didn't investigate Perry's side of the story simply because "that was the leadership under the Department of Corporations; that was just the way they did things." None of the lawyers involved in the first accusation were available for comment.

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