‘Risky Area’

Ben Carson Was Sued for Malpractice at Least Eight Times

One woman, suffering from multiple sclerosis, claimed Carson failed to review her MRI before performing a risky neurosurgical procedure.

11.04.15 6:00 AM ET

Ben Carson had a pretty remarkable track record for a job that involved slicing people’s heads open.

In his three-decade-long career as a neurosurgeon, Carson, the newly minted leader of the ever-fickle Republican polls, faced a total of eight malpractice claims in the state of Maryland, according to the Maryland Health Care Alternative Dispute Resolution Office.

The HCADRO provided The Daily Beast with the documented claims and verified that these were the only in-state claims they had on file. Their records do not cover any out-of-state claims.

The legitimacy of the claims is something that is determined in court. And while on the surface, the alleged injuries might seem egregious, neurosurgery is admittedly a highly risky practice.

A 2011 study in the New England Journal of Medicine found that 19 percent of neurosurgeons deal with some kind of malpractice claim every year, compared to an average of 5 percent of doctors in family medicine and 3 percent of pediatricians.

“This is neurosurgery; it’s a very complicated and risky area,” personal injury attorney Susan Karten told The Daily Beast. She represents plaintiffs in these types of cases, including the first health-care worker to be diagnosed with HIV/AIDs in the United States. After reviewing the malpractice claims against Carson, Karten said only one really surprised her.

In 1996, Maryland resident Mary Perna sued Carson and Johns Hopkins University on behalf of herself and her husband, Steven. According to the claim, Perna was suffering from multiple sclerosis and by October of 1994, she had facial pain on the left side of her face and vision problems that “were virtually unchecked,” despite the prescription medication that she was taking.

She was referred to Carson, who performed two glycerine rhizotomy procedures, basically an injection of the chemical glycerol into the brain to reduce nerve pain—but the lawsuit claims neither injection alleviated Perna’s symptoms, and that her pain actually got worse.

According to the lawsuit, Carson then suggested that a more invasive operation be done—a microvascular decompression, which involves a partial removal of the cranium in order to separate a nerve from “adjacent structures.”

The lawsuit alleged that Carson didn’t review Perna’s MRI before conducting the three procedures. According to the claim, the MRI would have alerted Carson that Perna had lesions on her brainstem as a result of her MS, making the microvascular decompression essentially useless.

Dr. Carson allegedly returned to Perna’s hospital room, after reviewing the MRI post-procedure, in a “highly agitated state,” according to the suit, and said, “They did not tell me that there are lesions on your brainstem. Had I known that, we would have never done the microvascular decompression.” The claim called his lack of review of the MRI “a blatant breach in prevailing standards of medical care.”

Perna said she was subsequently given another medication that conflicted with her prescribed MS medication, causing her to have a severe seizure later that year. The lawsuit sought over $20,000 in damages and was settled out of court.

When The Daily Beast reached out to Steven and Mary Perna, they simply replied via email “no comment.” Neither of their lawyers on the case responded to a request for comment from The Daily Beast.

Meanwhile, Nicole Schultheis, a lawyer involved in a different litigation against Carson, told The Daily Beast that Carson was dismissed from the claim early on in the process after she had contended that he was not at fault.

“He was a resident at the time but a member of the surgical team, so I felt I had to include him as a defendant,” Schultheis said of the 1986 incident involving a client named John P. Sparco, who suffered severe depression after a failed attempt to remove a brain tumor. “He was not ultimately the target of my case and didn’t do anything nefarious or even weird. I dismissed him early on.”

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She said she was not permitted to say how the case was resolved and attempts to reach Sparco were unsuccessful.

Carson’s campaign has not responded to a request for comment for this article.

Carson has faced public allegations of improper medical care from former patients in the past, led mostly by Karly Bailey, whose face was paralyzed as a result of tumor-removing surgery. Her lawsuit is still pending in a Baltimore City circuit court.

“I couldn’t walk, I couldn’t talk, you couldn’t understand me at all,” Bailey told The Guardian in early 2015. Her family set up a website called the Karly Bailey Story to help spread the word of Carson’s alleged malpractice, complete with a GoFundMe donation link on the homepage.

When reached for comment for this story, Bailey said: “I’m really very sorry but I can't talk until I get a legal matter taken care of with the court.  I would’ve loved to chat but I must either postpone the interview or not do one at all.  I really am sorry.”

In Bailey’s case, Carson claimed that he had informed the family of the possible risks of such an invasive surgery.

“[L]ike always, I consulted them on the fact that I would remove as much tumor as was reasonably safe,” he said in a sworn affidavit obtained by The Guardian.

The difficulty with many, if not all, of these cases is that the burden of malpractice proof rests solely on the client and the lawyers representing them.

“The key question in a case involving an allegation of a botched neurosurgery is whether the defendant or surgeon used the care and skill that is customary among neurosurgeons,” Harvard Law School professor John Goldberg told The Daily Beast. When asked specifically about the Perna case, Goldberg said it would take a lot to outright prove all negative outcomes were because of a screw-up on the doctor’s end.

“In the case you mention, the plaintiff would have been required to prove, first, that Dr. Carson actually did not examine the MRI (a factual issue), and, second, that prevailing standards among surgeons required him to consult the MRI before conducting surgery of the sort that was performed (a legal issue).” He added that the plaintiff would also have to prove that there was a direct link between the perceived error and the problems that occurred thereafter.

Maryland does allow for what are called “waived arbitrations,” which entail settlements between the plaintiff and the primary care physician without actually going to court. “However, it looks like either party can choose to forgo arbitration/mediation and go straight to court,” Goldberg said.

In Perna’s case, as well as three others, one party sought a waived arbitration, halting the litigation from going to court, according to documents provided to The Daily Beast by the state Health Care Alternative Dispute Resolution Office.

Despite the MRI malpractice case, though, most experts agree that Carson had a very small amount of blemishes for a job that is as hard as it gets.

“It doesn’t seem outrageous to me, to be honest with you,” Karten said. “This is a very risky area that you’re operating in, the brain. There’s a lot of questions on what a patient is told. But that doesn’t mean it’s malpractice. You have to do something or deviate from the standard of care. I don’t think this is a tremendous amount of malpractice over the years he’s been practicing.”