Second of two parts By Patricia Callahan and Trine Tsouderos
May 22, 2009Dr. Mayer Eisenstein comes across as a grandfatherly physician, a pat-on-the-knee practitioner who delivers babies at home and who's more likely to recommend chicken soup than an antibiotic.
'In advising parents to
stay away from vaccines or out of hospitals, Eisenstein relies on a
Paul Howey of Crete recalls it clearly. "I'm in marketing, and in looking back, they have a very clever marketing strategy," Howey said. "They get you to believe that mainstream obstetrics is fatally flawed and you're in great danger taking anesthesia and going to a normal hospital, but with them you're in safe hands."
Howey is among the parents who now regret buying into that philosophy after their children died or were severely disabled during home births and pediatric treatments allegedly botched by Homefirst doctors.
Howey's wife, Karen, was a Homefirst patient transferred to Weiss Memorial Hospital on Chicago's North Side after her labor failed to progress at home. Peter Rosi, a veteran of Eisenstein's practice, met her there. When Rosi delivered Nathan Howey, however, the baby was dead.
The Howeys contend that Rosi let labor drag on for more than 24 hours after Karen's water broke -- leading to Nathan's asphyxiation -- when Rosi should have ordered a Caesarean section much earlier.
Rosi said the fetal monitor showed that the baby was fine before birth and he still doesn't know why Nathan was born dead.
Nevertheless, Rosi later testified that some people at Weiss "felt that I was responsible for this child's demise." The hospital, he testified, instructed him never to come back.
Exactly a year after Nathan's death, Karen Howey gave birth to twin girls. She included a tribute titled "My Brother Nathan" in each girl's baby scrapbook.
Nathan, she wrote, "was born into heaven. He got to see Jesus right away. Daddy and Mommy were very sad. We asked God to heal us. And He did."
The Howeys sued and settled their case with Eisenstein's practice and with Weiss.
Doctors who deliver babies for a living are bound to get sued. The American College of Obstetricians and Gynecologists says doctors in the specialty typically face 2.6 malpractice suits during their careers.
Eisenstein's practice has faced at least 19 malpractice cases in the last three decades, and two Homefirst doctors were involved in 15 of those cases -- more than what's typical. In 80 percent of the cases involving those two doctors, a jury either sided with the plaintiffs or the cases were settled, court records show.
The Illinois Division of Professional Regulation has never disciplined Eisenstein, Rosi, the two other full-time Homefirst doctors or the two part-time osteopaths in the practice. And it's unclear whether the department has ever launched an investigation because such files are kept secret under Illinois law unless disciplinary action is taken.
Eisenstein said his practice has not faced a disproportionate share of malpractice lawsuits considering the number of deliveries he said his doctors have performed. "It's just who happens to get caught unfortunately in the wrong case," he said.
What's surprising about many of the medical malpractice cases is how similar some of the allegations are from one case to the next.
For example, a case filed in 1986 alleged that a Homefirst doctor and midwife failed to diagnose that a mother and her newborn had incompatible blood types, which can lead to a potentially fatal condition if not caught by a routine blood test. The baby suffered kernicterus syndrome, athetoid cerebral palsy and hearing loss. The case was settled for $985,000 in a structured settlement, court records show.
The failure to diagnose incompatible blood types between a mother and newborn was also at issue in the case that netted the $30 million jury verdict. In that case, however, the baby, Na'eem Shahid, died.
A Homefirst doctor took a sample of blood from Na'eem's umbilical cord that could have been used to diagnose the problem and could have led to prompt treatment, according to court testimony. But instead of dropping off the sample at the lab, the doctor said under oath, he was tired, went home and put the sample in his refrigerator, where it sat the whole weekend.
In an interview, Eisenstein blamed the parents for not taking the baby to the emergency room for a blood test. Na'eem's parents testified that no one from Homefirst ever told them to go to the emergency room.
The practice filed for Chapter 11 bankruptcy protection after the malpractice jury verdict, but Eisenstein was unable to reach a reorganization agreement with creditors, the largest of whom were the parents who won the jury verdict.
With bankruptcy off the table, a Cook County judge acknowledged the practice's claim of insolvency, consolidated the $30 million verdict, five remaining malpractice cases and two civil fraud cases and ordered mediation.
Last July, the judge approved a $1.275 million settlement that Homefirst must divide among six families over seven years. Eisenstein's practice made the first $100,000 payment last September, four months before he opened the autism clinic.
When Eisenstein was questioned in a wrongful-death case about his hiring practices, he said under oath that he looks only at whether a doctor has a license to practice medicine in Illinois. "Other than looking at the medical license of a physician whom you hire, is there anything else you look at with regard to their competence, their qualifications or experience?" a lawyer asked him.
"No," Eisenstein answered under oath.
In an interview, Eisenstein said that in retrospect, that was a "stupid answer."
"I was being arrogant," he said.
'Falsus in uno, falsus in omnibus'
In his lectures at conferences, Eisenstein often describes a key lesson
he learned in law school: falsus in uno, falsus in omnibus.
Translated "false in one thing, false in everything," this is a legal
principle that if a witness lies about one thing, a jury can disregard
anything that person says.
Yet documents show that Eisenstein has stretched his credentials, changed his story under oath and been accused of fraud.
After Nathan Howey's death, Weiss Hospital sued Homefirst, Rosi and Eisenstein for fraud, alleging they misrepresented their Caribbean-based malpractice policy. Eisenstein testified that he was in St. Kitts helping one of his daughters, a veterinary student there, buy a condo when the lawyer who helped arrange the sale told Eisenstein he also sold malpractice insurance.
"I was tickled pink to get insurance," he said under oath.
A Cook County judge called it an "improperly underwritten insurance plan." Eisenstein, who says the policy is legitimate, agreed to pay Weiss $50,000 after mediation.
In a different case, Eisenstein said under oath that he was a faculty member at the Hinsdale Hospital Family Practice Residency Program from 1992 to 2003. A hospital administrator testified that Eisenstein "never was" a faculty member. In a recent interview, Eisenstein said that while he wasn't a faculty member there, he did teach students from that program and kept snapshots of them.
In that same case, Eisenstein also testified he knew little about the College of Health Sciences, where he and some of his doctors received their continuing medical education credits -- a requirement for retaining privileges at some hospitals.
"I have no clue," he said under oath when asked where the school was located.
The attorney questioning Eisenstein reminded the doctor that he could go to prison for lying under oath. He asked if Eisenstein had any connection to the college. "Not that I know of," Eisenstein answered.
The lawyer pointed out that Eisenstein listed himself as a faculty member of the college on his curriculum vitae.
In a subsequent deposition in that case, Eisenstein revealed more about the nature of the College of Health Sciences. He testified it was a "college without walls" where he, his colleagues and visiting students discussed medical topics.
Eisenstein's former lawyer and business associate -- a man with no medical training who later was stripped of his ability to practice law in Illinois -- served as the "dean" and signed some of the continuing medical education certificates presented to one hospital, court records show.
Eisenstein now says he regrets his testimony about the College of Health Sciences.
He does not, however, regret the treatment that he or any of his physicians provided that led to the malpractice claims. In some of the cases, he blamed the parents of the babies who died -- claiming one mom "killed the baby" and saying another was a "high-risk person we shouldn't have taken care of."
Reflecting on the $1.275 million malpractice settlement, he appeared unshaken.
"It's the cost," he said, "of doing business."
Tribune reporters Tim Jones and Steve Mills contributed to this report.
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