Class action lawsuit names Providence St. Mary and former neurosurgeons Dr. Daniel Elskens and Dr. Jason Dreyer [Walla Walla Union-Bulletin, Wash.]

May 26—A class action lawsuit filed earlier this month lists Providence St. Mary Medical Center and its former neurosurgeons Dr. Daniel Elskens and Dr. Jason Dreyer as defendants.

Four area residents are named as plaintiffs, but hundreds of people were harmed by the Walla Walla hospital and the two doctors, said Spokane-based attorney William Gilbert after filing the lawsuit in Superior Court of King County.

It was after the announcement on April 12 by the Eastern Washington Department of Justice that his office was able to know of the long-term patterns of behavior with the two physicians and the Walla Walla hospital, Gilbert said.

That was the day the U.S. Attorney's Office of the Eastern District of Washington announced Providence had agreed to pay the largest-ever insurance fraud settlement on this side of Washington state — $22.7 million.

More importantly to Gilbert's office, U.S. Attorney Vanessa Waldref said in a news conference that not only did Providence St. Mary administrators know of the problems of extensive, unnecessary and improperly documented surgeries, they financially rewarded the surgeons for such behavior.

In the words of Waldref, St. Mary encouraged Dreyer and Elskens to conduct unsupervised spine surgeries at high-volume rates, using a productivity measurement with no set limit on compensation.

That gave the neurosurgeons financial incentive to perform a high number of complicated surgeries, Gilbert's court filing alleges, noting Dreyer earned an average

of $2.65 million a year while working in Walla Walla.

Troubling behavior

Last month's announcement from Waldref's office was the first time Providence officials admitted publicly they had been aware of concerns raised by their own staff, including claims of negligence, plus unethical and fraudulent treatment practices by Elskens and Dreyer.

Both surgeons were allowed to resign from St. Mary without being reported to a national data bank or the state's Department of Health, making them eligible to be hired elsewhere, Waldref said.

Elskens is working in Sandusky, Ohio, at Firelands Regional Medical Center, according to an outgoing message from the neurosurgery clinic there.

Last year, Dreyer was fired from the MultiCare Rockwood Clinic in Spokane after administrators there learned the Washington state Department of Health had placed restrictions on his license due to Dreyer's behavior while working in Walla Walla.

To meet federal requirements, in addition to the multi-million dollar payout, Providence has now submitted to a five-year integrity agreement with the U.S. Department of Health and Human Services, requiring the hospital to institute and maintain numerous quality-of-care and patient safety measures and to use outside experts to perform yearly reviews of claims and clinical quality systems.

Beth Bollinger, an attorney with Gilbert's office, said Waldref's findings also provided a path around Washington's statute of limitations law.

Under state law, a person typically has just three years following a medical injury to file a malpractice lawsuit. Upon learning of the harm after that time, few legal options still exist.

The admission from the hospital last month was shocking, Bollinger said. It showed a thread of common characteristics in how Elskens and Dreyer treated their patients and provided an admission of fact from St. Mary officials, none of which could have been known by those outside the hospital system before then.

The settlement directs $10,459,388 of the payout to be used as restitution, and state that other money should be used for remedies and protocols to ensure the safety of future patients.

Providence's admission of accepting payments from federal and state health insurance programs while being aware of allegations against Dreyer and Elskens allows for deployment of the RICO — Racketeer Influenced and Corrupt Organizations — Act.

The law, enacted in 1970, was originally intended to combat organized crime and criminal syndicates. It has since been expanded, and rather than punishing isolated criminal acts, the law is now intended to encompass members of criminal enterprises who engage in a pattern of racketeering activity.

Using the RICO Act means a plaintiff does not have to meet the same burden of proof as is required in criminal law, Bollinger said.

Washington has an unusual RICO statute that opens the door for the legislation to be used in fraudulent medical billing, Gilbert added, noting this class action will be the first instance in the state of using the act this way.

Ruined lives

The complaint filed by Gilbert's office on May 13 is representing two individuals and one married couple.

It alleges Caroline Angulo, 59, was a patient of Elskens. She went to him due to lower back pain, but the surgeon recommended neck surgery. The operation in April 2016 went poorly, and Angulo remained hospitalized for more than a month. Her vocal cords were, and still are, damaged, and she cannot speak, the document alleges.

When Angulo went to Dreyer in 2017, he informed her that her neck needed additional fusion surgery. That, too, was done for financial gain and resulted in permanent damage, the lawsuit maintains.

As a result, Angulo lost her nursing assistant job. She's unable to walk, sitting and standing are difficult, and she can choke when she eats. She has no relief from constant pain, according to the lawsuit.

Before the April 12 revelations, neither Angulo nor the others represented in the class action suit were aware the hospital knew of the pattern of problems, Gilbert's office said.

Eric Keller was also a patient in Walla Walla who sought out Dreyer because of lower back pain, according to the class action suit.

Dreyer advised Keller that a previous and successful neck fusion was what actually needed surgery, telling the patient that to ignore the issue was to risk paralysis.

Gilbert said in his filing that, fearing paralysis, Keller agreed to Dreyer's recommended surgery and was unable to return to work afterward.

The procedure was unnecessary, the attorney alleged.

When Keller was still bothered by his lower back, his insurance refused to pay for yet another surgery by Dreyer. Keller said the surgeon advised him to come to his office, and that he would send him to the emergency room to gain hospital admission.

"According to Dr. Dreyer, the insurance company would have to pay for the procedure because it would be indicated as an 'emergency procedure,'" the document states.

Keller did as allegedly directed and had spine surgery on Jan. 18, 2018, from which he continues to suffer permanent damage. He lost his job and Social Security Administration officials declared Keller to be disabled. He lives with constant pain, sensitivity to touch, locking muscles — making Keller bedridden for days — difficulty walking and more, court documents say.

Isabelle Lindsey, 60, is joined in the lawsuit by her husband, Charles Lindsey.

The couple claims Isabelle Lindsey was a patient of Dreyer at both Providence St. Mary and at MultiCare in Spokane, undergoing four surgeries by him.

All were medically unnecessary, according to Gilbert's office.

Isabelle Lindsey had existing medical issues that generally contradict spine surgery, the lawsuit claims.

Between 2014 and 2020, Dreyer told Isabelle Lindsey that she was to bring any imaging copies to him, as he had taken "special" classes and was more skilled at deciphering imaging than other neurosurgeons and was able to see more on images such as X-rays and MRI scans.

In 2015, Dreyer operated on Isabelle Lindsey for neck soreness, despite not recommending she first try physical therapy, injections or other, less invasive, measures.

Later that same year, Dreyer told the same patient that her prior fusion had failed and that he had to redo the procedure. She agreed to the surgery, trusting the physician's opinion, court documents state.

In 2017, after Isabelle Lindsey was experiencing back pain from a vehicle collision, she again sought Dreyer's opinion and was told she needed a vertebra fusion. After that operation, Dreyer told his patient she would need more surgery in the future, the lawsuit states.

The next year, Isabelle Lindsey was in another vehicle collision. Dreyer had left St. Mary by then and thus she consulted with Dr. David Yam, the surgeon who would become the whistleblower for the federal lawsuit against the hospital.

According to the allegation, Yam recommended against more surgery for Isabelle Lindsey, saying in his Jan. 9, 2019, report that her MRI scan showed no neck issues. Yam said he was uncertain why the second surgery in 2015 was considered warranted, as he saw no significant nerve compression and that the second neck fusion procedure came less than a year after her first one.

Yam inferred that he found the previous neck surgeries unnecessary, but allegedly told Isabelle Lindsey she could seek Dreyer's evaluation.

After this communication between Yam and Isabelle Lindsey, Providence sent the patient a letter saying she could not return to the St. Mary neurosurgery clinic, according to the lawsuit.

Isabelle Lindsey, believing Yam has directed her to Dreyer, found the surgeon practicing in Spokane. There she underwent a fourth surgery; Dreyer reconstructed his past fusion work in two spots on the spine, contending they were out of alignment. He allegedly replaced old surgical hardware with new.

In this case, MultiCare "abruptly" failed to refill Isabelle Lindsey's medication, causing her severe pain and requiring the help of her primary care provider to obtain medication that she still needs daily.

Isabelle Lindsey, who used to be athletic, continues to suffer permanent damage from Dreyer's surgeries and cannot do some self care and chores without pain. She also suffers fibromyalgia, depression, a lack of motivation and memory issues, court documents say.

Gilbert said Dreyer's surgical interventions for Angulo, Keller and Isabelle Lindsey were done for the money, not for patient care, and that they were unnecessary and improper procedures.

Furthermore, the class action lawsuit is filed on behalf of patients who "suffered damages as a result of medical procedures" at Providence St. Mary Medical Center at the hands of Dreyer and Elskens that were medically unnecessary and improper, but whose cases were not included in the settlement between the Department of Justice and the hospital, for various reasons.

Because of protected patient information, his office can't know who else was negatively affected by the neurosurgeons, the attorney said, noting Waldref's office reported there are hundreds of victims in the Providence scheme, which spanned about five years.

As well, the cost of the surgeries is unknown but are estimated to be, on average, more than $100,000 (and potentially much more) per patient, most of whom resided in Washington.

Targeted greed

Given the parameters of the situation and the pattern of activity by Dreyer and Elskens, a class action lawsuit makes sense, Gilbert and Bollinger said, allowing victims of the surgeons the most opportunity to get full justice.

Gilbert said the next step is to force Providence to turn over names of other patients who suffered from the misappropriate treatment of the surgeons.

The class action lawsuit raises multiple questions, including whether the defendants in the case are guilty of money laundering, filing false health care claims, accepting hundreds of thousands of dollars in payment for those claims, concealing their actions to get paid, failing to repay any of the funds received and failing to report the neurosurgeons as required by law, which would have resulted in repayment of the money received in such a way.

The hospital cannot comment on pending litigation, officials there told the Union-Bulletin.

On April 15, Providence officials announced St. Mary's chief executive, Susan Blackburn, had left her job. No explanation for her departure was given.

Each client he represents has a life "remarkably" transformed by coming into contact with Dreyer or Elskens, Gilbert said.

"You won't see a 'type' they weren't targeting."

Gilbert said he hopes Providence does the right thing and takes care of the people who are suffering from Dreyer's and Elskens' actions.

"If they don't, a jury will."

When greed interferes with care, he added, "We all suffer."

Sheila Hagar can be reached at [email protected] or 526-8322.

___

(c)2022 Walla Walla Union-Bulletin (Walla Walla, Wash.)

Visit Walla Walla Union-Bulletin (Walla Walla, Wash.) at union-bulletin.com

Distributed by Tribune Content Agency, LLC.