Leslie Bartell, 43, died from trouble breathing in February 2002.

By MICHELLE NICOLOSI
SEATTLE POST-INTELLIGENCER INVESTIGATIVE REPORTER

Death came to Leslie Bartell in an unexpected place: a dentist's office.

Bartell, 43, went to Bellevue oral surgeon Clem Pellett in February 2002 to have her wisdom teeth taken out. Moments after she was given medications to sedate her, she began having trouble breathing.

"It was that quick," said Bartell's friend and dental hygienist CeLinda Kotsogean, who accompanied Bartell for the surgery. "She looked at me and just relaxed. Then there was a sound in her throat."

Bartell died soon afterward.

The death was Pellett's second -- patient Ernestine Hunter died after dental implant surgery in his office in 1987. Pellett is the only dentist in Washington who has had two patient deaths, state officials said. In both cases, he was not found at fault by the dental board, and several top experts state vehemently that the care he provided in both cases was above reproach.

Both families got six-figure out-of-court settlements. The Bartell settlement was not paid on Pellett's behalf, his attorney said.

The documents on the two cases fill a carry-on suitcase, but none is available on the state's credential-check Web site, and none of the details of the settlements is available in public court records. Someone checking Pellett's history at the state's credential-check Web site will see only that he has not been disciplined. His online record is completely clean.

A consumer who takes the next step and calls the state Department of Health to find out if Pellett has had any complaints or investigations will be told that yes, he has. Most of the documents related to these cases are a part of the public record, and will be copied for anyone who asks for them.

Dwayne Richards, Pellett's attorney, said it would be wrong for the state to include information on cases closed with no finding of wrongdoing on the state credential-check Web site. He said publishing the details of such cases would be damaging and unfair and, in Pellett's case, has the potential to harm his business.

Richards said that after Hunter died in 1987, Pellett made it his mission to create the safest oral surgery office in Washington, and actively campaigned for others to add new, better monitoring systems to their offices.

"Clem Pellett is part of the SOLUTION, not a part of the PROBLEM!" Richards wrote in an e-mail. "This is the guy you should be portraying as the Champion for Patient Safety, not potentially destroying his career by calling into the public's eye that two patients in his 21 years of practice happened to die in his office from circumstances beyond his control."

Julian Hunter, the husband of the woman who died after her implant surgery in 1987, said the public has a right to know about his wife's death. Hunter said complaints that close without sanctions should be a part of the public record.

Consumers have a right to weigh that information when they're making their decision about whom to go to for care, he said.

"When people keep dying, something should be indicated. ... I think there should be an indication that the person was investigated. If you want to say investigated and found not guilty, fine. I don't have a problem with that," Hunter said.

The state Web site should tell consumers "that someone, somewhere had a question. ... At a minimum they have a right to know that she (Ernestine Hunter) went to the dentist and didn't come back."

Of the argument that publicizing such details could harm a dentist's ability to do business, Hunter said, "I really can't buy it.

"We all have consequences to our actions. Whatever we do, there's always something that is a result of that. I'm sorry if he gets put out of business, but we're talking about two investigations of two deaths. They were put out of business also."

The arguments over whether consumers should have a right to know the details of Pellett's cases echo a national debate that has long preoccupied patient advocates, lawyers and practitioners: How much information do patients have a right to know about their health provider's history?

Many patient advocates say consumers should have access to much of the background information that is now confidential or not easily accessible, including lawsuit settlements, confidential peer reviews and information about complaints.

"The public has the right to know about it and should know about it," said Seattle attorney Paul Luvera. The secrecy that currently keeps many of these details from patients "is the most harmful thing for the citizens of Washington to have."

The patchwork nature of state-by-state decision-making on whether such records should be public illustrates how divided the country is on the question: Cases closed without sanctions are not public record in California, Louisiana, Iowa, Utah and Oregon. They are public record in other states, including Washington, Arizona and Oklahoma.

Arizona's Legislature "felt very strongly that in order for a potential patient to make an informed decision, they needed access to public information," said Julie Chapko, executive director of Arizona's dental board.

Many argue that details of out-of-court settlements and cases closed without sanctions can make it seem as though a dentist or doctor was at fault, when he or she wasn't found at fault. Cases are often settled to avoid the cost and complication of trial.

Even in the microcosm of the Washington dental board, members disagree on what information should be published on the state's site.

Board member Fred Quarnstrom says the state should make more complaint information accessible by publishing it on the state Web site.

"My concern is these deaths happened and the fact that people can't go to our Web site" and learn about these cases, said Quarnstrom, a dentist who practices on Beacon Hill.

Former dental board member Dr. Mark Paxton, an oral and maxillofacial surgeon, disagrees, saying it makes no sense to publish complaints that were closed with no finding of wrongdoing.

If a complaint has been examined and the state decides not to charge or sanction a practitioner, putting that complaint on the state Web site "doesn't sound fair to me," Pellett said in a recent interview. "I think that being on the Web site would make it sound like you're culpable and that it was your fault, when in fact it wasn't."

The two deaths

As part of an extensive review of state dental board actions and complaints, the Seattle Post-Intelligencer requested Pellett's full file.

Documents and interviews show that Hunter's death in 1987 was examined in a lengthy public hearing. A number of experts said that the controversial drug Versed -- the subject of 1988 congressional hearings -- was to blame for her death. Others contended that the Versed argument was a "red herring." They said Pellett and his staff had not adequately monitored Hunter.

The dental board concluded, "Dr. Pellett's conduct in December, 1987 regarding his care of Mrs. Hunter was within the standard of care in 1987."

The Bartell case was handled more quietly.

Though board members initially instructed their staff to draft a statement of charges, no charges were filed, and the case was closed without a hearing.

That kind of secrecy is unacceptable for the state boards overseeing health practitioners in Washington, said state Rep. Tom Campbell, R-Roy. "That is really sad on a death, that it wasn't even a public hearing," said Campbell, a chiropractor who previously served on the state's chiropractic board.

"We need to have a hearing. The public has to have the confidence that we have consumer protection. I don't think we can say that now."

Records and interviews show that the Bartell case was closed in part because the expert hired to evaluate the case for the state wrote in his assessment that Pellett's treatment met the standard of care, but that expert said recently the dental board misunderstood his opinion.

His statement about standard of care did not apply to all aspects of Bartell's care, he said. Bartell's health history meant she never should have been treated in the office, he said.

The dental board's decision to close the case was also based in part on secret documents given to the board by Pellett's attorney, and returned after the case was closed. Not retaining those documents in the public record was a mistake, officials said.

In the first of three in-person interviews with the P-I, Richards said, "I will tell you right now, as you sit here, you have no idea what the facts are in this case and I do. ... I can tell you what really took place."

Richards said he gave the state a collection of written comments on the Bartell case from a number of experts saying that his treatment was exemplary, that it was appropriate to care for her in the office, and that Bartell had died not because of Pellett's treatment but because of her underlying -- and undetected -- heart disease.

"There is no reasonable, objective mind that will review this information ... and find that there was any violation or a breach of standard of care," Richards said.

The information in Richards' binders -- dated September 2003 -- was given to the board. The board decided, based in part on that information, not to file charges, he said.

By special agreement with the state, the information was returned after it was reviewed, and no copy was made for the official record. State officials interested in reviewing the case do not have access to these key documents. Board member Quarnstrom said he had heard of the documents and had asked to see them, but they were not provided to him. The documents were also not provided to the P-I in response to a public record request for the file.

Richards said the state's decisions to return the documents -- and not to file charges -- were unusual. "I heard things in the past about well, gee, there must have been something shady" about how the case was handled, he said. "One of the reasons was, of course, there was nothing in the file."

At the P-I's request, state officials looked into the matter.

Patti Latsch, deputy director of the Health Professions Quality Assurance program, said the state found that "much to my chagrin," a staff attorney did agree to keep the key documents out of the official record and to return them to Pellett's attorneys.

That "is not our standard practice. It is not the norm," Latsch said. "It was a mistake, plain and simple." The staff attorney who agreed to the deal was new at the time and "has been counseled," Latsch said.

"To me it's incompetent to have records like that and not have them in a file," said Quarnstrom, who was not on the board when the Bartell case was handled. "Never agree to give back documents that are used in the decision-making. Particularly where first there was a statement of charges and then it was dismissed. There should be a trail explaining, documenting why that happened."

Richards gave a copy of the secret documents to the P-I.

In the documents, several respected experts agreed that Pellett's decisions and care on the case were beyond reproach.

"The dental procedure and the very mild sedation drugs used by Dr. Pellett was not the cause of Ms. Bartell's death," wrote one of Richards' experts, Dr. Gust Bardy, clinical professor of medicine at the University of Washington and president and CEO of the non-profit Seattle Institute for Cardiac Research.

"The underlying heart disease is near-certainly the cause of this woman's death. ... I find absolutely no fault in how Dr. Pellett conducted himself or how Ms. Bartell was cared for."

According to the documents provided by Richards, the King County Medical Examiner autopsy report on the case said, "The cause of death of this 43-year-old female ... is heart disease attributable to hardening and narrowing of the blood vessels supplying blood to the heart muscle. The circumstances surrounding the death and the postmortem/toxilogic findings indicate that the manner of death is natural."

A difficult case

Leslie Bartell was a dental phobic who asked Pellett to put her to sleep for the procedure, Pellett said. He said he refused. Bartell had previously had a hip surgery that was postponed when the medical staff was unable to intubate her -- to get a tube down her throat that could help maintain her airway and breathing while she was under general anesthesia. The hip-surgery team ended up inserting the breathing tube through a surgical incision.

Pellett said he knew about this history and decided that he would not put her into deep sedation. Instead, he said, he opted to do a short procedure with light sedation. He and many well-regarded experts said this choice was a reasonable one.

But other experts said Pellett might have erred when he chose to treat Bartell in his office, instead of sending her to a hospital for treatment. They said a patient with a history of being difficult to intubate should be treated in a hospital with an anesthesiologist on hand.

"That's a patient (with whom) you don't want to put the airway at risk," said anesthesiologist Dr. Robert Julien, who works at Providence St. Vincent Medical Center in Portland and who has testified at congressional hearings on anesthesiology issues. Even for wisdom-tooth extractions, "you bring these into the OR and do them here." If you choose to work on a patient with a difficult intubation history in an office, "you just know you're taking risks," said Julien, who testified on Pellett's behalf in the 1987 death case.

Paxton said the board discussed issuing a statement of charges saying Pellett had made a judgment error in his decision to treat Bartell in his office and had mishandled the emergency.

But the conclusion of the state's expert witness -- dentist Douglass Jackson, an associate professor of oral medicine at the UW School of Dentistry -- made it impossible to press forward, Paxton said.

Jackson wrote in his analysis that "from the material provided for this review it appears that Dr. Pellett and his staff met the standard of care that exists in the State of Washington."

"The expert said there's no standard-of-care violation. ... How can they prosecute a case when the expert says the standard of care was met?" asked Paxton. When the state's expert witness finds that the standard of care was met, "usually that's a case that we wouldn't go forward with," said Kim O'Neal, the assistant attorney general in charge of the health section.

Jackson said in a recent interview that board members misunderstood his expert opinion. His statement didn't mean "there's no standard of care violation," as Paxton stated, Jackson added. Jackson said that he was not asked to say whether Pellett's "patient selection" -- the decision to treat Bartell in his office -- met the standard of care. He said the statement "Dr. Pellett and his staff met the standard of care" does not include that aspect of the case.

"When I answered that question (about standard of care), I was answering it in context of the treatment that was rendered in managing the emergency. I had excluded patient selection," he said. "This is probably an error in my interpretation of standard of care."

Jackson said that previously when he's written expert opinion for the state, the department has called him to go over his conclusions. He said a follow-up conversation is a good tool that can help clear up any misunderstandings. He said he does not recall getting a call like that in this case.

"You are coming to me as an academician who does not do law," said Jackson, alluding to the Health Department's perspective. "It would be of greater value if after having written this that you sit down and discuss this with all parties involved."

"That's a good part of the process," Jackson said.

Jackson wrote in his expert opinion that the decision to treat Bartell in the office setting "is questionable." Paxton, one of the board members who handled the case, agreed. "I think it was bad patient selection," he said.

Interviewed recently, Jackson said, "As I look at this particular case, the biggest thing here was this really should not have been done in the office." Bartell "should have never been in that situation. So there had to be a flaw in his case selection."

Richards and Pellett said Jackson's and Paxton's views -- on this and other aspects of the care -- were wrong.

Pellett and a number of experts also said Pellett's response to the emergency was textbook. "We did a good job. We really did. We were concise, we were focused, we didn't panic," Pellett said in an interview.

But Paxton said there were problems with the emergency response. He said in his opinion that Pellett was unable to breathe for the patient -- move air into her lungs -- and spent too much time trying to intubate Bartell. After that didn't work several times, he said, Pellett should have tried something else, such as attempting to insert a tube through an incision.

"I personally had some concerns about patient selection and emergency management," Paxton said. Pellett "should have done something other than continue to try to intubate. You can't just keep doing that," Paxton said. "There was a delay in making that decision to do a surgical airway."

Pellett said he's aware Paxton felt there were problems with his emergency response, and he disagreed with Paxton's assessment. He said he tried to intubate for four or five minutes, and that he and his staff were "ventilating or attempting to ventilate" the entire time.

"Unfortunately, on that day, Leslie Bartell was one of the 125,000 people (each year) that first display their underlying cardiac disease with sudden death. And we couldn't do anything about it," Pellett said. "Every effort we made" during the emergency response, "her underlying disease thwarted everything that we did," he said. "We were treating a respiratory condition when, in fact, she was having a primary cardiac event."

Pellett said the autopsy did not detect two of the drugs that were administered, and so they could not have been the cause of Bartell's problems.

"If you look at this case ... and you peel away the opinions on both sides and you look at -- for lack of a better term -- the CSI moment of this, the science of it, the toxicology shows that there was only one medication that made it into her system," Pellett said. "The fentanyl and the brevital, if in her system at all, were in only trace amounts. The medications did not give her any sedation or any possibility of losing her protective reflexes. That's a science. That's fact. The autopsy showed that she had significant three-system disease that was undetected and unreported. ... Those combined answer the question of what did occur."

But King County Chief Medical Examiner Dr. Richard Harruff said that the toxicology tests frequently used in autopsies would probably detect therapeutic levels of brevital, but "low therapeutic levels of fentanyl may remain undetected."

The absence of fentanyl on a toxicology report shows only that the drug was not present in levels above the test's detection limit, Harruff said. "It does not say that the drug was not there at all."