The University of Kansas Hospital is denying allegations by a patient that it wrongly diagnosed her with pancreatic cancer and then covered it up.
In an answer filed this week, the hospital says that many of the allegations made by Wendy Ann Noon Berner “reference undisputable hearsay and speculation, and many would arguably constitute defamation” if they were not part of a lawsuit.
The hospital’s 18-page answer broadly disputes Berner’s allegations of malpractice and cover-up, and terms many of them “vague and ambiguous.”
Berner, a Shawnee resident, sued KU Hospital, the pathologist who allegedly misdiagnosed her and her surgeon on Aug. 1. The lawsuit was notable because she not only claimed she was misdiagnosed but alleged the hospital concealed the misdiagnosis until another pathologist at the hospital filed a whistleblower action against it more than a year ago.
The whistleblower case, brought by Dr. Lowell L. Tilzer, a former chair of the pathology department at the hospital and KU Medical Center, was dismissed by Tilzer after he learned that Kansas law exempts the hospital from state whistleblower actions. But in an unusual twist, he attached a statement by the patient, who, while choosing to remain anonymous at that point, said she was considering her legal options.
That patient turned out to be Berner, who revealed her identity when she filed her own lawsuit, supplementing Tilzer’s explosive allegations with incendiary allegations of her own. Among other claims, she alleged that she only learned of her misdiagnosis after reading news accounts of Tilzer’s whistleblower case.
Until now, KU Hospital had responded to Tilzer’s and Berner’s allegations with brief public statements, insisting it acted appropriately and with the best interests of the patient in mind. Its formal legal answer, while not providing much in the way of additional details about the case, does make clear that it disputes Berner’s characterization of what happened.
Dr. Meenakshi Singh, the pathologist who allegedly misdiagnosed Berner, and Dr. Timothy M. Schmitt, who performed the surgery on Berner, filed their own separate answers denying Berner’s allegations.
The two also took issue with the three-page introduction to Berner’s lawsuit, which broadly lays out her narrative of what happened. Singh argues it contains “impertinent argument and conclusory statements” and “inflammatory and editorialized headings.” She asks the court to dismiss the lawsuit in its entirety or else strike its offending portions.
In August 2015, Singh, who was then chair of KU’s pathology department, diagnosed Berner with a pancreatic neuroendocrine tumor, a highly invasive cancer that is fatal in most cases within five years. In September 2015, Berner, who was 44 at the time, underwent Whipple surgery, in which portions of her pancreas and multiple other body parts were removed.
After the surgery, pathologists who examined tissue samples from her pancreas concluded that the organ was normal and not cancerous, according to Berner’s lawsuit. She alleges that Singh then covered up her misdiagnosis by doctoring hospital records and that Schmitt, her surgeon, asked Berner to sign an affidavit stating that the treatment she received was “wonderful.”
Berner’s lawsuit alleged that Schmitt made the request after the Centers for Medicare and Medicaid Services (CMS) conducted an investigation triggered by Tilzer’s lawsuit. CMS found “the hospital’s governing body failed to be responsible for the conduct of the hospital in that they failed to ensure the hospital adequately responded to and thoroughly investigated a misread lab sample and ensured the patient involved was fully informed of the misdiagnosis.”
In its answer, KU Hospital admits that an investigation occurred and that Schmitt contacted Berner and discussed the execution of an affidavit with her, which she refused. But it denies that hospital records were altered or that Schmitt’s request had anything to do with the CMS investigation.
KU Hospital also denies that Schmitt’s request “was to ‘conceal previous wrongdoing,’” saying “such an action would be nonsensical if concealment was the motivation.”
Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.