A lawsuit filed Friday in federal court implicates Lieutenant Governor Matt Michels, in his role as lawyer for Avera Sacred Heart Hospital in Yankton, in medical malpractice that led to the death of Frances Bockholt. The lawsuit also seeks to overturn the South Dakota medical peer review laws that kept secret the malpractice of orthopedic surgeon Allen A. Sossan.
Five children of Frances Bockholt are suing Avera Sacred Heart Hospital, Lewis & Clark Specialty Hospital, Dr. Soosan (a.k.a. Alan Abdali Soosan), Dr. Don Swift, Dr. Kynan Trial, attorney Michels, and members of the medical executive and peer review committees of Avera and Lewis & Clark. Sossan/Soosan’s malpractice—unnecessary surgeries that contributed to Bockholt’s death in 2011—and his disruptive, violent behavior in the workplace have been documented in the press and established in court.
This new lawsuit alleges that Avera initially refused to give Sossan privileges to perform surgery at the Yankton hospital. Enter Matt Michels:
89. After the Avera Sacred Heart Medical Executive Committee (“MEC”) initially opposed extending Soosan privileges, Defendant Matthew Michels then intervened, acting on his own initiative and at the behest of the administrations of Avera Health and Avera Sacred Heart Health Services.
90. Defendant Michels misled the MEC. Michels falsely advised the MEC that there was insufficient justification to deny Soosan privileges. Defendant Michels further misled the MEC by arguing that failure to vote to extend privileges to Soosan would result in a successful lawsuit by Soosan against the MEC and Avera Sacred Heart Hospital.
91. Defendant Michels knew or should have known that overwhelming evidence existed to deny Soosan privileges.
92. Defendant Michels also knew that other hospitals had refused to extend Soosan privileges without being subject to a lawsuit.
93. Defendant Michels knew that Faith Regional Hospital forced Soosan out without being subject to a lawsuit.
94. In fact, Michels knew Soosan released Avera Sacred Heart Hospital from liability for “acts performed in good faith and without malice in connection with the gathering and release and exchange of information … in addition to any other applicable immunities provided by law for peer review activities.”
95. Nonetheless, Defendant Michels misled the MEC about the threat of a lawsuit to induce the MEC to change its position regarding Soosan and continued to withhold relevant and accurate information from the MEC during Soosan’s tenure [Bockholt et al. v. Sacred Heart et al., Civ 15-4106, complaint, U.S. District Court of South Dakota, filed 2015.06.05].
Why would Michels mislead his hospital’s medical executive board to employ a doctor with such a terrible record? Money. The plaintiffs allege that Avera Sacred Heart was losing money and brought Dr. Sossan on board because his specialty, spine surgery, offers big profits. Michels, the suit contends, “fraudulently induced the MEC into changing its position in order to improve the financial position of Avera Sacred Heart….”
Former Lewis & Clark Hospital CEO Michelle Weidner-Jordan has made similar allegations of capitalism over patient care against her former employer. Weidner-Jordan blamed and canned her for the drop in profits that took place after Sossan was forced to leave in 2012.
The Bockholt plaintiffs would have a much easier time proving their case if they could access the peer review proceedings that led the two Yankton hospitals to admit Sossan to practice and led the state to license him. However, state law keeps such evidence secret from everyone except doctors defending themselves in court or checking into the decisions relating to their employment:
Proceedings of peer review committees confidential and privileged–Availability to physician subject of proceedings. The proceedings, records, reports, statements, minutes, or any other data whatsoever, of any committee described in § 36-4-42, relating to peer review activities defined in § 36-4-43, are not subject to discovery or disclosure under chapter 15-6 or any other provision of law, and are not admissible as evidence in any action of any kind in any court or arbitration forum, except as hereinafter provided. No person in attendance at any meeting of any committee described in § 36-4-42 is required to testify as to what transpired at such meeting. The prohibition relating to discovery of evidence does not apply to deny a physician access to or use of information upon which a decision regarding the person’s staff privileges or employment was based. The prohibition relating to discovery of evidence does not apply to deny any person or the person’s counsel in the defense of an action against that person access to the materials covered under this section [SDCL 36-4-26.1].
In addition to damages, the Bockholt plaintiffs ask the court to overturn this statute and others related to the peer review process as violations of the rights to a jury trial and due process.
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In other legal notes, the Bockholt complaint contends that Michels and the other “employees, members, shareholders and agents” of Avera and Lewis & Clark are subject to the Hippocratic Oath. I’m not sure that Michels has ever actively recited those words or signed an employment document saying, “Yup, I’ll follow Hippocrates, too,” but I’d be curious to know if courts have previously taken the position that anyone working for or overseeing a hospital is subject to the oath. As we all know, oaths matter.
The complaint also lays out Sossan/Soosan’s sordid history. Before he became a doctor, Alan Abdali Soosan was convicted in 1982 of five counts of forgery, one count of issuing a forged check, and one count of grand theft. In 1983, he was convicted of felony burglary for stealing answers to a biology test at St. Petersburg Junior College. Soosan then took to spelling his name differently, as “Allen Sossan”, without ever legally changing his name. The complaint argues that Sossan/Soosan has thus been committing perjury in various lawsuits and applications for medical licenses in Nebraska, South Dakota, and elsewhere to hide his felony record.
The complaint goes on to discuss allegations that Sossan has falsified medical records, “maimed or mutilated” hundreds of patients with unnecessary surgery, threatened to kill a Yankton nurse anesthetist, and had sex with a medical device salesperson at work. All of those alleged crimes would have been prevented if medical boards and hospitals had held Sossan accountable for perjury and refused to trust him with patients.