By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
"How do you know how much damage has been done? How do you measure how many patients have been lost?" Birenbaum says.
In September, the doctor filed a writ in Travis County to find out, and subsequently obtained a file containing the names of some of the managed health-care plans, hospitals, and individuals who contacted the Texas medical board asking for information about his medical license over the 18 months the database was listing wrong information.
"I know of 19 entities that have turned us down, PPOs, HMOs; a number of them are on that list," Birenbaum says.
He says misinformation about the outcome of the medical board's action against him was clearly a factor when he applied last year for staff privileges at Presbyterian Hospital of Plano.
"There's a question on all these applications: 'Have you ever lost your license, been suspended or revoked,' and so forth. When I answer that question 'No' and the state board is reporting 'Yes,' it makes me look like a damned liar."
Birenbaum recalls that it took a considerable push and a hearing--at which five doctors testified on Birenbaum's behalf--to get Presbyterian to reverse its ruling. "I have to go through a lot of effort to get people to listen to the facts, instead of relying on some old newspaper articles."
A source associated with Aetna, which has not included Birenbaum as a doctor in any of its managed health-care plans in more than five years, says it will be difficult for him to prove a causal link between being listed on the database and being turned down by medical plans. "He's not board-certified in oncology. He went to a foreign medical school. There are a whole number of reasons why someone might choose not to include him in the network," the source says.
This winter, Birenbaum and Malouf were considering whether they were going to sue the state for the database error when KTVT-Channel 11 made up their minds for them, they say.
"It was during the Olympics, and a friend of mine asked, 'Dennis, did you see that report on bad doctors?'" Birenbaum recalls.
"It was a two-day thing on Channel 11, and the gist of it was a Fort Worth case where they took out the wrong lung. A malpractice attorney was ranting and raving about how lousy doctors are in Texas. They said they had a list of every doctor in Texas who had been disciplined by the State Board of Medical Examiners since 1989, which they were putting on their Web site. They urged people to look them up on www.ktvt.com.
"I got my office manager to walk me through it, and right there, the ninth name on the second page, was Dr. Dennis Birenbaum."
A week later, Birenbaum's libel lawsuit hit the courthouse in Dallas. It named as defendants the TV station, the network, and the medical board, which was listed as the source of the information. He is seeking an unspecified amount of damages for slander, infliction of emotional distress, and interference with business relationships.
"Steve [Malouf] hit the roof. The state has been telling us since last year that they've cleared my name. And the TV station, we don't think they did anything to check that list. They didn't do any due diligence."
Jim Holland, the Channel 11 news director, declined to return calls seeking comment on the matter.
Ron Dusek, a spokesman for the Texas Attorney General's Office, which represents the medical board, says a change was made in the records to reflect Birenbaum's correct status. "Obviously, we're going to defend the case."
He says the state is probably exempt from liability in this type of case. "And there are other defenses in libel and slander cases. Was this negligence? Was there maliciousness involved?"
Birenbaum doesn't need to wait for hard evidence to think there was plenty of malice in the minds of state officials when he walked from the courtroom almost five years ago, cleared of any suggestion of misdoing. "They were thinking, 'We'll get Birenbaum.'' the doctor says. "They said, 'We'll find a way to fix him.'