What’s Next for Spine’s Most Notorious Rogue?
Walter Eisner • Tue, January 7th, 2014
On December 13, 2013 New Jersey Administrative Judge J. Howard Solomon issued a 105-page decision that Richard Kaul, M.D. should lose his medical license. Kaul was fortunate he wasn’t remanded to nearby Rahway Federal Penitentiary.
The state, which accepted Kaul as an immigrant from England, has now called him a man “lacking good moral character” and a “danger to the public.”
Kaul has not gone gently into the good night, launching a massive public relations campaign (http://drrichardkaul.com/) to charge that the effort to take away his medical license is about constraint of trade, corrupt doctors and a scope of practice fight between traditional spine surgeons and upstart interventionalists.
Two weeks before the judge’s decision, Kaul went online to fire one last volley at his critics.
“…The [previous] suspension of my license is a direct consequence of the vicious turf war between a small group of politically powerful and self-interested neurosurgeons and the larger but less organized minimally invasive pain physicians (MIPP).”
“The unanswered question is which neurosurgeon corrupted which physician on the medical board to bring about this 21st century equivalent of a lynching, an injustice that…was intended to intimidate other MIPPs from developing high quality cost effective spine care.”
Kaul says his practice, New Jersey Spine and Rehabilitation, became widely known for its “outstanding clinical record” and he was performing increasingly more complex cases with “great success in a cost effective manner.” He established a charity to provide free health care to the people in the Congo and donated a surgical center and his services to help provide free care to U.S. patients without health insurance.
“The philanthropic and business success garnered significant positive media attention and some not so positive attention from a small group of local neurosurgeons, ” wrote Kaul.
“Dr. X” and the Spine Blogger
In his posting, Kaul identified a “Dr. X (real identity withheld), ” who he says practices with the Atlantic Neuroscience Institute and at the University of Medicine and Dentistry of New Jersey.
He claims “Dr. X” and his neurosurgical colleagues executed the plan to revoke his medical license. “Dr. X” had a close friend and business associate on the state medical board who would “take care of the matter.”
On another website posting, someone purporting to be Kaul alleged that “Dr. X, ” who was then identified by name, was the anonymous “Spine Blogger.”
Kaul even tried to put the current science of spine care on trial by arguing to the judge that there were no standards in place governing minimally invasive surgery and, therefore, he could not have deviated from standards.
But Judge Solomon had none of it, writing that argument is “without merit.”
Deviation From Standard of Care
Judge Solomon wrote that the standard of care for each allegation of deviation by Kaul can be broadly articulated as “the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in his field.”
Accordingly, added Solomon, “the argument that no standard governs the practice of minimally invasive spinal surgery is rejected. Instead, Dr. [Greg] Przybylski’s testimony on the standard of care applicable to these allegations must be considered in its entirety and weighed against any contrary testimony from [Kaul] or his experts.”
The judge afforded “little, if any” weight to Kaul or his experts’ testimony.
The testimony offered by Kaul, wrote Solomon, “confirmed his lack of education and training in the performance of spinal surgery...Nothing in his testimony advanced his training and skills over the compelling testimony offered by [the state’s experts] to the contrary.”
This wasn’t about politics, scope of practice or restraint of trade. Solomon said this was about a doctor who operated on patients “without sufficient training, skills and competence.”
“I, therefore, conclude that [Kaul] engaged in gross negligence, gross malpractice and gross incompetence, which damaged or endangered the life, health, welfare, safety or property of his patients, ” wrote the judge.
Then Solomon got specific about Kaul’s “incompetencies, ” including:
- Education, training, internships, residencies and fellowships which were insufficient to prepare him for surgeries of the spine, whether minimally invasive or open.
- CME courses he took were insufficient to provide such education and training.
- Did not receive sufficient monitoring by a trained overseer.
- Patient consents presented were unsigned.
- Failed to carry medical malpractice insurance.
- Did not have hospital or alternative privileges.
- Misrepresented his qualifications, not only on his website, but also in discussions with his patients.
He said Kaul performed spinal surgeries for which he was not adequately educated and trained. “His surgeries were done posteriorly through incision, implanting hardware, such as screws, rods, and purported structural support devices. This was far beyond his training as an anesthesiologist, who was allowed to perform needle-based procedures for pain management, such as epidural and facet injections for the alleviation of pain or discograms for the purpose of diagnostic testing.”
Kaul admitted to the judge that first time he ever inserted a pedicle screw on a live patient was at an ambulatory surgical center when he was on his own.
“Dishonesty, Fraud and Deception”
The list of harmed patients was extensive and detailed. The judge noted one (among many) as an example of “gross negligence and incompetence.”
T.Z. is a 40-year-old woman who was so traumatized by Kaul’s surgery that she has been essentially relegated to a recliner. “In her instance, [Kaul] improperly inserted pedicle screws directly into her spinal canal, which not only caused her extreme pain and other maladies from which she still suffers, but also necessitated a revision surgery by an orthopedic surgeon to undo his neglect. This speaks volumes about [Kaul’s] incompetency and lack of training.”
In addition, Solomon concluded that Kaul “engaged in dishonesty, fraud, deception, misrepresentation, false promise or false pretense, ” when another patient was told that she was getting a minimal procedure followed by a short recuperative period, and nothing more. “Instead, the surgery far exceeded her expectations, her understanding and the limitations she expressly stated.”
Solomon also concluded that Kaul committed professional misconduct and failed to maintain good moral character due to his untruthful disclosures about his manslaughter conviction in England.
In one bizarre twist during the almost three-month long hearing, Kaul’s attorney, Charles Shaw, asked to be relieved of his duties. He was ordered to continue.
Credibility of Witnesses
In arriving at his conclusions, Solomon said he had to rely on the credibility of witnesses and the medical records of the patients. In the end he simply found the state’s witnesses credible and Kaul and his witnesses not credible.
The state produced several witnesses, starting with Greg Przybylski, M.D., a neurosurgeon and former president of the North American Spine Society. It was his opinion that Kaul did not have the requisite training to perform spinal surgeries, either open or minimally invasive.
He also testified that given Kaul’s lack of training, he would not have been granted hospital privileges for either open or minimally invasive surgeries, particularly at JFK Hospital, where Dr. Przybylski sits on a credentialing subcommittee
Given Kaul's curriculum vitae, Dr. Przybylski opined that Kaul’s performance of the surgeries in question, “constituted a gross deviation from medical standards.”
Since complications could arise during open or minimally invasive surgeries, the surgeon must have hospital privileges in order to treat surgical complications or he would have to work with physicians who could provide the emergency care.
List of Deviations
The list of deviations cited by Dr. Przybylski and other state expert witnesses was long and repetitive:
- Performing discography inappropriately.
- Inappropriate performance of multiple surgeries in the same area, including multiple level fusions.
- The use of OptiMesh off-label for fusion.
- The history and physical examination undertaken by respondent was without any neurological examination.
- The consent forms were not signed.
- Inappropriate use of and improper placement of orthopedic hardware and intradiscal cages.
- Lack of clinical indications for fusion in a patient with normal discography and normal exam.
- A two-level microdiscectomy, when only one level was needed for a single level radiculopathy.
- Failure to have hospital privileges, or at least a signed agreement with other doctors with hospital privileges.
- Inappropriate use of epidural injections.
- Failure to diagnose post-op infections
- The improper screw positions, requiring hardware removal in a patient where fusion was not indicated.
- Lack of proper informed consent
- Malposition of orthopedic hardware resulting in an unstable construct and the need to revise the hardware in order to obtain fusion.
- Failure to recognize a post-op complication of foot drop.
- Inappropriate use of different hardware stabilization systems. The same system should have been used for interlocking purposes.
Kaul, Kamson and Remley Discredited
The judge dismissed the testimony of Kaul’s expert witnesses, Solomon Kamson, M.D., and Kent Remley, M.D. Kamson is an anesthesiologist from State of Washington and a co-founder of a professional society called SASI (Society for Advanced Spinal Intervention), organized while Kaul was being tried in New Jersey. Remley is an interventional neuroradiologist from Indiana.
Each praised the work of Kaul, finding no deviations from the standard of care. Both acknowledged a business relationship with Kaul.
Remley did not know about several revision surgeries that took place to correct Kaul's surgeries. He told the judge that that had he known about them, he might have changed his opinions about deviations.
Then Solomon went into great detail on the suspension of Kamson's medical license by the State of Washington on allegations of negligence and misrepresenting himself to a patient. His license was placed on probation status for over five years for unprofessional conduct in causing injury to a patient.
“The suspensions and probations of Dr. Kamson’s several medical licenses had a significant impact on his credibility, ” added Solomon.
In the end, the judge said the testimony of “each and every” witness produced by the state was deemed “extremely credible and compelling.”
“Conversely, the testimony of Drs. Kamson and Remley…was deemed lacking in credibility.
Where the Dangerous Mr. Kaul Is Headed Next
According to Kaul’s own statements, his next stop is the Democratic Republic of the Congo. Hopefully, they not only have stringent licensing requirements but more effective techniques for stopping Kaul’s aptitude for malpractice and mayhem.