By Stephen Young
By Stephen Young
By Stephen Young
By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
This white-frocked cube of a man really can yak, often engagingly. But Birenbaum's skill at monopolizing a conversation isn't what earned him his reputation. Neither are some of the startlingly egocentric things he tends to say, such as: "I am one of the most ethical people you will ever meet."
Or better yet: "I wonder how many lives have been lost because I've lost patients to other oncologists. I'm not the only one who's hurt by this."
Oh, yes. This. The events that put the 51-year-old cancer doctor on the map. The investigation. The lawsuits. The acres of bad publicity. This has been Birenbaum's life for the past five years, ever since Aetna Life & Casualty blew the whistle on him for allegedly overcharging his patients.
He was accused of billing one man $1,000 a day, billing a dead man for a day in the hospital, billing for consultations with himself--in short, cheating desperate people fighting for their lives.
In the end, though, none of it stuck. An unprecedented, headline-making vote by the Texas medical board to revoke Birenbaum's license in 1993 for "persistent and flagrant overcharging" was overturned in Austin courts. The following year, he sued Aetna, and in June 1996, the company quietly paid him $3 million to settle the case. The doctor, struggling to regain his reputation, hired a publicist this fall to try to convince the Dallas-Fort Worth media that he is a good doctor after all.
Actually, Birenbaum's competence as a physician has never been questioned. There is no shortage of patients and colleagues who praise his medical skills. But his campaign to regain his reputation has been a far more complex quest.
Some reporters have bought into the simple, alternate story line of Birenbaum as a man wrongly accused. The truth turns out to be grayer and more illustrative of the tug-of-war between doctors and health-care insurers. In reality, it is difficult to find anyone wearing a white hat in Birenbaum's long-running tale.
There's a doctor who bellyaches about his practice being ruined while he trades up to a $1.7 million Highland Park mansion, a health-insurance company accused of putting a price tag on life, and a medical board so ineffective that it can't make a case stick. Birenbaum, says one peer in the Dallas medical community, is a prime example of an old-guard doctor who can't come to grips with giving up power, prestige, and income in the era of managed care. "Those guys used to have it great," says the thirtysomething doctor, who asked not to be identified. "You can still have a great practice, but those days are gone."
There is also the important side issue of how a bad rap, once it is cemented into electronic databases, can live on indefinitely.
Over much of the past two years, state authorities have been incorrectly reporting that a cloud still hangs over Birenbaum's medical license--much of the time without Birenbaum's knowledge. To top that off, last month Fort Worth TV station KTVT-Channel 11 incorrectly included Birenbaum's name on a list of Texas doctors who have been disciplined by the medical board. The report claimed to have used the board's information as its source.
Birenbaum, who never lost his license for even a day, had a new adversary, and last month filed suit against the medical board, the TV station, and its network, CBS.
"People say I'm bombastic and loud, and I probably am," he says, talking about his latest foray into the courts. "I'm also probably the most principled individual you will ever meet."
Born in Dallas and educated at Southern Methodist University, Birenbaum received his medical degree in 1972 from the Universidad Autonoma Guadalajara in Mexico. He completed his education with a residency fellowship at the prestigious University of Texas M.D. Anderson Cancer Center in Houston. "All of us who studied there learned a very aggressive, very proactive approach to cancer treatment," he says, talking with the kind of force and enthusiasm that tends to endear him to his patients, who typically need a dose of fighting spirit.
"If you're giving a patient chemotherapy and their hair doesn't fall out, you're not giving enough drug," he says. "If you don't get cell counts dropping, you're not getting maximum cell kill. If you're not being aggressive, you're wasting everyone's time."
In 1982, Birenbaum co-founded the Arlington Cancer Treatment Center, a group practice that broke up five years later as a result of personality conflicts. He moved his primary office to RHD Memorial Medical Center in Farmers Branch and began seeing patients from across the North Dallas area. "The market seemed bigger over here," he says. And he was right. By the early 1990s, Birenbaum's practice was booming. "He had a whole floor of patients in RHD, 30 or so in there at a time," says Dr. John Anderson, a Dallas cancer surgeon and friend and colleague of Birenbaum.
In even his friends' views, Birenbaum always has had a high opinion of his own skills--which has caused him problems from the start. "He seems to be a little overconfident, which has made him some enemies," says Anderson.
"There's a bravado, an outspokenness--diplomacy has never been his strong suit," says Dr. Eugene Wysznski, an oncologist who has known Birenbaum since the 1970s.
At the same time, Birenbaum is open to other doctors' opinions of medical matters, generous to a fault--he throws a huge Christmas party--and dogged as anyone.
A few years ago, for instance, when his sons were playing football at Lakehill Preparatory School, a private school in Lakewood, Birenbaum found a way to help out a bit. He underwrote five scholarships to bring in a few ringers and beef up the team, several parents recall.
"His personality is diamond-shaped; he's multifaceted," Wysznski says. "He is a very complicated gentleman."
According to an analysis of his tax returns prepared for a later lawsuit, Birenbaum's personal income grew from $135,222 in 1986 to more than $1 million in 1989, and $960,000 in 1990.
That's when the insurance carrier's complaints of overcharging first emerged.
Among others, Birenbaum saw patients from the J.C. Penney Co., United Parcel Service, and Texas Instruments, all of whom were covered under Aetna health plans. Their bills were reviewed by Dr. Eugene Whitley, a Fort Worth emergency-room doctor and Aetna consultant.
Before long, Birenbaum was complaining to insurance officials about Whitley, and Whitley, backed up by Aetna, was complaining to the Texas State Board of Medical Examiners about Birenbaum.
In Birenbaum's version of events, as summarized in his most recent lawsuit, the beef started when he attempted to get Aetna's consent to admit a critically ill patient to the emergency room. Whitley refused, and a heated argument ensued, Birenbaum contends.
He says he began questioning Whitley's expertise as a family practitioner to make decisions in the matter because neither was he an oncologist nor had he consulted one. On another occasion, Birenbaum alleges in court papers, "Whitley criticized Birenbaum's efforts to provide treatment to a critically ill AIDS patient, advising Birenbaum that he should have 'let the patient die' rather than try to treat his illness."
Birenbaum lodged a complaint against Whitley and Aetna with the Insurance Commissioner of North Carolina, which had jurisdiction over the patient's health plan, and the battle was on.
An Aetna spokeswoman, Kelli Brady, and a Dallas attorney who represented the company and Whitley, declined comment on the doctor, citing a confidentiality agreement that Birenbaum has decided to break. Still, Aetna's problems with Birenbaum are amply detailed in documents filed in the case the company initiated against him at the Texas medical board.
The company's complaint centered on medical bills for seven of Birenbaum's patients--all insured by Aetna, all of whom have since died.
In addition to billing a regular daily charge for a hospital visit, Birenbaum charged many of these patients additional fees for such things as isolation (for which a physician puts on gloves and a mask to prevent the spread of germs), intravenous feeding known as hyperalimentation, chemotherapy, and so-called platelet infusion. The last is the reintroduction of clotting factors into the bloodstream of a cancer patient whose own platelets have been destroyed by chemotherapy.
In the case of AIDS patient Vince Vignola of Dallas, for example, the medical board concluded that a reasonable charge for the day Vignola was admitted to the hospital would have been $125 for all the services Birenbaum performed: treatment planning, hyperalimentation, and chemotherapy.
Birenbaum charged $1,005, including a $250 fee for consulting with himself, and various charges for chemotherapy--billed per chemical agent--and hyperalimentation, the board found. Dr. Stephen Cohen, an oncologist in private practice in San Antonio, testified that his patients' illnesses were as complicated as those of Birenbaum's seven patients, and that he charged significantly less than Birenbaum. "If an insurance company paid [Birenbaum's] bills routinely, based on these charges, I'd be flabbergasted," Cohen said. "I'm not happy about his bills, so I can imagine the insurance company that's paying it has got to be livid."
Birenbaum, who hired Austin lawyer Dan Bishop II, one of the best medical law specialists in the state, to conduct his defense, scored an initial victory in the disciplinary process.
Board hearing examiner Rachael Martin recommended that the case against Birenbaum be dropped for some very fundamental reasons. She found that Whitley, the chief complainant, lacked credibility because he had no expertise in oncology and because of his relationship with Aetna. Whitley had testified that Birenbaum was rude, obnoxious, and insistent on the telephone and that he had become "mad" at the doctor, which was one of the incidents he said prompted him to take action in the first place.
The hearing examiner found that another of the board's chief witnesses, Dr. Lester Hoaglin, a retired oncologist, undercut the case against Birenbaum when he testified that he once billed a patient $3,000 for a one-hour consultation simply because the patient was wealthy and able to pay.
Martin also agreed with Birenbaum's contention that oncologists may charge more than other physicians because of the amount of study required in their rapidly changing field of medicine and the amount of time they must spend monitoring treatment. She concluded: "It is not unusual for a physician to charge a patient a higher fee than the amount the insurer will reimburse or consider reasonable under its contract with the insured patients, and such a practice does not constitute overcharging."
In other words, the insurance company has no right to tell a doctor what he or she can charge. The company can simply decide whether or not it wants to pay.
In Birenbaum's cases, Aetna refused to pay. So Birenbaum, in his characteristic cheeky style, sicced a collection agency on the Hartford-based insurance giant.
Aetna, through a supervisor in its North Carolina claims office, wrote the collectors: "We do not have a contract or commitment to Dr. Birenbaum. If he has outstanding debts with his patients, requests for collection should be directed to his patients, not their insurance carrier."
So much for any righteous claims by Aetna that it had its customers' interests foremost in mind.
Before the medical board considered Birenbaum's case, it offered him a deal: Take a public reprimand and a year's probation, and that would be that. "My lawyer told me, 'Aetna's one of the biggest lobbyists in the state. Take probation.'" Birenbaum recalls. "I said, 'Fuck 'em. I didn't do anything wrong.'
"My practice was going great. I was getting referrals like crazy. I was asked to give lectures all over the state. Here they wanted me to put my name in the medical bulletin with drug and alcohol abusers, the impaired doctors, the ones who are having sex with their patients. I didn't want my name in that."
Instead, the board looked at the same evidence as the hearing examiner, decided its witnesses were credible, and on February 27, 1993, voted unanimously to revoke Birenbaum's license for flagrant overcharging. The decision, and Birenbaum's billing practices, landed in the front-page lead box of The Dallas Morning News, and the story ricocheted around the state.
There were quotes from Whitley: "How would you feel if Dr. Birenbaum spent anywhere between two and three minutes, up to 15 minutes with a patient, and charged the patient $1,000 a day?"
And quotes from a diary kept by Dana Dupree, whose husband, Charles, was among the seven patients whose cases were examined: "He always brings up the fact that he's not getting paid," wrote the Coppell woman of her doctor. "He does not have the time to answer questions, and when he does, he's not giving the full attention as when he was getting paid."
Birenbaum denied those accusations and developed a variety of defenses and explanations for why the medical board would be going after him. "I've always thought there was a conspiracy," he says now, pointing a finger at competing oncologists, or what he claims is lingering antisemitism in the Dallas medical community. His attorney developed the theory that the medical board had been under pressure from the Legislature at the time for not coming down hard enough on offending doctors.
Court records show that Birenbaum's lawyers pursued some of his conspiracy theories, but with no results.
Instead, it was the sloppiness of the board's rules and huge holes in its case that undid its action against Birenbaum.
Birenbaum's attorneys obtained a ruling from state District Judge Jerry Dellana of Austin allowing him to continue practicing while he appealed the board's decision.
Five months later, Dellana reversed the board's order, citing a lack of substantial evidence. And in January 1995, the Court of Appeals in Austin gave Birenbaum his final victory, although it turned out to be a somewhat qualified one.
The court found that Birenbaum had indeed been overcharging his patients, which the panel defined as "charging excessively and beyond a due rate."
"The [medical board] correctly notes in its order that Birenbaum charged for certain services--consultations with himself when he was the attending physician, chemotherapy, administration, isolation, hyperalimentation, and platelet infusion--which the board's witnesses all testified should have been included in the regular hospital charge," the published opinion reads. "In addition to charging separately for each of these services, Birenbaum also billed for the normal hospital charge, thereby resulting in double-billings."
The problem with the board's case, however, was that it did not prove that Birenbaum was "flagrant and persistent." Its witnesses had no idea about how much time Birenbaum had actually spent with the seven patients whose cases were under review.
Meanwhile, Birenbaum had on his side testimonial letters, such as this one from the wife of one of his cancer patients: "Doctor Birenbaum not only used all his medical ability, but he has given personal attention to my husband and myself. We have had to contact him after hours during the night, on weekends, and many times during office hours by phone. Dr. Birenbaum has never failed to return any of our calls [and] never billed the insurance company for these services."
The appeals court found it troubling that Birenbaum's practice included more than 375 patients, but the board chose to prosecute its complaint using "seven very complicated cases."
"My lawyer made mincemeat out of them; he rang their bell," says Birenbaum. "They decided, 'We'll get him, anyway.'"
A source close to Birenbaum, who declined to be named, said the doctor no doubt had figured out how to maximize his income by the way he prepared his bills. Still, he never charged for services he didn't render, nor were there questions about the level of care.
Birenbaum may have prevailed in court, but the fallout from all the unflattering publicity crippled his practice, he says.
According to the doctor, 17 managed health-care providers dropped him as an approved provider within a few months of the board's vote. Six hospitals in the Dallas area declined to extend his privileges to practice.
"Before, we were averaging 15 new consults in Tarrant County a month and 25 in Dallas County. After the articles, within a month, we were down to two in Tarrant County and five to seven in Dallas," he says.
"We were the envy of a lot of competing oncology groups, and all of a sudden we were decimated. The doctors here [at RHD] who knew me stuck by me, and a few at Baylor-Richardson didn't think I was guilty. A lot of other doctors just stopped referring patients."
Citing those losses as damages, Birenbaum hired Stephen Malouf, a well-regarded Dallas lawyer, and filed suit against Aetna. "Dennis has some wrinkles, but the fact is, they went after the wrong guy," Malouf says. "He's as tenacious a human being as you will ever meet. He's a good doctor and a decent human being. A lot of people find him loud, arrogant, and obnoxious, but it doesn't matter.
"Aetna wanted to send a message: 'You prepare your bills the way we want you to, or we'll go after you.' A lot of doctors don't want to get in a fight with a huge insurance company, so they go along."
Regardless of the appeals court's "fussing," Birenbaum was largely vindicated, Malouf says. And Aetna's insurer wasn't in the mood to fight. "Our insurance company decided to settle," recalls Brady, the Aetna spokeswoman. Birenbaum had demanded $30 million; he took Malouf's advice and accepted Aetna's offer to settle for $3 million. "One of the three goes to the lawyers, 40 percent goes to taxes, and I had borrowed a lot of money to keep my practice going," says Birenbaum. "I owed."
For most people, that probably would have been the end of it. By 1994, Birenbaum was again generating business, and even some positive publicity. In September of that year, Dallas City Manager John Ware announced that he was undergoing treatment for myeloma, a cancerous disease affecting plasma cells in the blood, and that Birenbaum was handling his treatment.
"We pulled ourselves up, and we're doing very well now; we're very busy," says Dr. Eugene Wysznski, who met Birenbaum at M.D. Anderson and joined his practice in 1993, the man's darkest year.
Indeed, Birenbaum is currently associated with nine area hospitals, including Presbyterian Hospital of Plano, Baylor/Richardson Medical Center, Mesquite Community Hospital, Tri-City Hospital, Dallas/Fort Worth Medical Center, Columbia Medical Center of Arlington, Arlington Memorial Hospital, RHD Memorial Medical Center, and Columbia Medical Center of Las Colinas.
And he has three offices--in Arlington, in Farmers Branch, and in Richardson.
Birenbaum's 7,539-square-foot mansion on an exclusive block of Normandy Avenue in Highland Park--an ostentatious number with six fireplaces, six full baths, pickled wood floors, servants' quarters, and a pool--is valued on county tax rolls at $1.7 million. He purchased it in July 1996, when he traded up from a lesser 5,746-square-foot cottage on St. John's Drive, a few blocks away. State records also list Birenbaum as the owner of a small fleet of expensive vehicles: a 1996 Mercedes-Benz SL500 roadster, a 1997 Mercedes S500 coupe, a 1994 Jaguar XJ6 sedan, a Range Rover, a 1996 Lexus LX450 sedan, and a 1998 Dodge 1-ton pickup.
Nevertheless, Birenbaum is still talking about conspiracies and antisemitism and what he suspects is a burning desire by the state medical board to "fix my clock."
As a friend who asked to remain unnamed put it: "If Dennis were a tall, slim, Waspish-looking Baptist who kept his mouth shut, he wouldn't have 90 percent of the problems he's had. When he applied at Columbia-Irving [for medical privileges last year] and got turned down, instead of respectfully asking for a hearing on an appeal, he tells them he wants a hearing 'so this ridiculous decision can be set aside.' He can piss people off, and when you do that, you give them a reason to want to nail you."
Says Birenbaum, when asked why he doesn't simply sit back and enjoy his relative success: "You mean to say that a successful man has to suffer injustices, that just because I live in Highland Park this is right? I should have a great practice, but it's gone."
Why? Perhaps that spiteful database is to blame.
As of August 1, 1995, the day the Texas Supreme Court declined to review the case against Birenbaum and let him off the hook for good, Birenbaum's record should have been cleared. Early last year, though, he learned from his receptionist that a potential patient from out of state had checked the doctor's credentials through a national database run by the American Medical Association.
It had reported that Birenbaum's license remained under a cloud, that the board had voted to revoke his right to practice, and that the issue remained under appeal.
Birenbaum had run into the scarlet letter of the electronic age. Some faraway data bank is lying about you, and you don't even know it.
"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.'