Whistleblower Case Against KU Hospital Takes Unexpected Twist

Aug 1, 2016

This story was updated at 2:16 p.m. to include the response of KU Hospital.

A University of Kansas Hospital pathologist’s lawsuit alleging the hospital’s chief pathologist misdiagnosed a patient as having cancer and subsequently covered it up has taken a strange new turn.

On Friday, the plaintiff, Dr. Lowell L. Tilzer, voluntarily dismissed his whistleblower action against the hospital, saying he “believes further litigation of this claim is not necessary to protect him from retaliation at this time.”

But in an unorthodox addendum to the filing, Tilzer appended a statement from the unidentified patient who was allegedly misdiagnosed.

The statement says that the patient believes he or she is the person referred to in the lawsuit.

“I did not know about the lawsuit until Tuesday, July 26, 2016 when my surgeon at KU called me and asked me to sign an Affidavit about my surgery,” the statement says. “The Affidavit exonerated the hospital from any responsibility for the actions alleged in Dr. Tilzer’s lawsuit.  I was concerned about why I was being asked to sign the Affidavit, and my subsequent research uncovered the existence of the lawsuit.

“I do not know who wrote the Affidavit, but I did not give the hospital permission to share my medical information with the person who wrote the Affidavit.  I have no direct knowledge of the actions of the physicians alleged in the lawsuit, but I will not sign the Affidavit and I am exploring my options regarding the circumstances of my diagnosis and surgery.”

The statement goes on to say that the patient would not have known that his or her surgery was unnecessary but for the filing of the lawsuit and the presentation of the affidavit.

“I appreciate Dr. Tilzer’s concern for me and I wish him the best.  I want to remain anonymous, but you may use this statement as long as my name is not disclosed,” the statement concludes.

Dr. Lowell L. Tilzer says he dismissed his lawsuit because he no longer fears retaliation by the hospital.
Credit University of Kansas Medical Center

In a brief statement over the weekend, Tilzer said, “I just want to say the patient’s gratitude is all I need. I just want to keep doing my job.”

Tilzer’s voluntary dismissal of his lawsuit came just a couple of days after KU Hospital moved to throw out the case, saying it contained “knowingly false statements regarding patient care at the University of Kansas Medical Center.”

“Tilzer knowingly misrepresented facts regarding a particular patient’s care in an effort to defame the Hospital Authority and his fellow physicians, and to attempt to extract additional compensation or financial benefits to facilitate his retirement,” the motion stated.

Beyond accusing Tilzer of defamation, the filing said that the case had to be dismissed because a Kansas law exempts the hospital from the provisions of the Kansas whistleblower statute – the law under which Tilzer filed his lawsuit.

A statement released by KU Hospital this afternoon said, "As we indicated from the start, there was no merit to the lawsuit. We are pleased it was voluntarily dismissed by Dr. Tilzer after it was clearly demonstrated the lawsuit had no factual or legal merit."

The statement said that the hospital had "followed our routine practice for surgeons to fully inform patients of their diagnoses and treatments."

"In order to respect our patient’s privacy, it would be inappropriate for us to discuss specifics of any patient situation," the statement said.

Tilzer filed his lawsuit just four weeks ago. A former chief of pathology at KU Hospital who is still on staff, he claimed the hospital threatened to retaliate against him after he tried without success to get it to acknowledge its alleged error and then took his complaint to the Joint Commission, the entity that accredits and certifies hospitals.

After he did so, Tilzer claimed that KU Hospital President and CEO Bob Page asked him if he wanted to resign, berated him for contacting the Joint Commission, accused him of lying to the commission and described his report to the commission as “pitiful” and “despicable” behavior.

Tilzer said he learned of the misdiagnosis sometime in 2015 after the patient’s organ was removed and an examination of tissue samples revealed that it was not cancerous. He said the pathology chair, who had diagnosed the patient, then proceeded to cover up her mistake.

The lawsuit does not identify the pathology chair, but the position is occupied by Dr. Meenakshi Singh, who became chair in May 2015 when Tilzer stepped down.  

Nor does the lawsuit identify the organ that was removed, but its reference to acinar cells and islet cells makes it clear that it was the patient's pancreas.

Pancreatic cancer is often difficult to tell apart from chronic pancreatitis, an inflammatory disease of the pancreas, and the misdiagnosis may have had to do with confusing the one with the other. Both diseases produce similar symptoms, but pancreatic cancer is life threatening.

Asked to respond to the lawsuit last month, KU Hospital initially declined, then released a brief statement saying it did not believe the lawsuit “to be grounded in truth.”

It said the patient was “fully informed of the diagnosis and treatment plan after surgery and prior to leaving the hospital, and is pleased with the care and clinical outcome.”

Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR. You can reach him on Twitter @DanMargolies.