By Anna Pulley
By Erin Sherbert
By Chris Roberts
By Erin Sherbert
By Rachel Swan
By Joe Eskenazi
By Erin Sherbert
By Erin Sherbert
Nancy Smitherman never knew all that much about her father's brother, Richard Walker, and it had been a long time since she had seen him. Her uncle lived with her grandmother and walked to work at a factory, somewhere in Oakland. When her grandmother died, Smitherman remembers, Walker moved to a board and care home, where he lived until its caretakers retired. Sometime in the early 1990s, Walker came under the care of Nettie Irene Wilson at Wilson's Family Care Home.
In May of 1993, Smitherman went to see her Uncle Richard, then 67 years old.
"My father was his brother and had made sure he was getting transferred to where he needed to be," Smitherman says. "When my father died, I felt like there was no other family to look after him, so I went to see him.
"I was thoroughly shocked by where he was living. It was dirty. It was old. My uncle had fingernails that were probably 2 inches long. It repulsed me."
Smitherman, who lived in Southern California at the time, was ill-prepared to take on the care of her uncle. She discussed his grooming and general condition with members of the staff at the home, and instructed them that she should be notified if he had any problems. During the next few months, Smitherman and Walker corresponded through letters and occasional phone calls. She sent him pictures, and he talked about things he'd read in the Bible.
"He would always return my letters right away," she says. "But to talk to him, I had to contact the home, and they would have to go get him.
"Toward the end of that year, he became very disoriented. I couldn't get him on the phone; they always said he was sleeping. I wrote another letter, which he never returned. Up until November, he was very alert and talking to me."
During this time, Walker was under the care of a sort of house physician who served Wilson's Family Care Home. Court records indicate that the doctor would visit Wilson's facility about once a month to check on its residents, including Walker. Smitherman had never met or spoken to or corresponded with the doctor.
Walker's medical treatment, or lack of it, during the end of 1993 and early 1994 is the subject of some debate among medical experts. It is clear, however, that Walker was cruelly neglected and rapidly deteriorating during his final months of life.
Walker was moved from the home to Humana Hospital (now San Leandro Hospital) on Feb. 5, 1994. Hospital records show that when he was admitted he had crusted teeth and lips (likely caused by malnutrition), scaling lesions on both feet, and a bedsore on his buttock.
He also had failing kidneys and pneumonia, and was anemic and severely emaciated. Walker had lost 25 pounds between April 1993 and February 1994, becoming so dehydrated during the month prior to his hospitalization that he could no longer walk.
Richard Walker died on Feb. 17, 1994, from pneumonia and hardening of the arteries. On April 12, 1995, Administrative Law Judge Robert Coffman signed an order revoking Wilson's license to run a board and care facility, finding that the deaths of three patients were largely caused by her negligence. But that order also made mention of the physician who served Wilson's Family Care Home, one Dr. Howard Thornton.
"There was substantial evidence that Dr. Thornton, who purports to serve more residential care homes than any other physician in the Bay Area, was guilty of gross negligence, and incompetency in providing care and treatment to [Wilson's] clients."
On Nov. 14, after a three-year investigation, the Medical Board of California's Division of Medical Quality agreed to settle complaints filed against Dr. Thornton in regard to the deaths of Richard Walker and two other patients. Under that settlement, Thornton is allowed to continue practicing medicine, but must be monitored by another physician for the next five years.
The Medical Board inquiry was fueled, at least in part, by the unusual nature of Dr. Thornton's practice.
And its unusual scope.
A Vietnam veteran and Yale University graduate, Thornton has been licensed to practice medicine in California since 1969. Health care was different back then. There was no managed care. Nursing homes weren't way stations for patients evicted from the hospital. People who lived in board and care homes needed a little help, not medical care.
Technically, a board and care facility serves elderly or disabled residents who need supervision in their daily lives. It's not a medical environment. Skilled nursing facilities provide care for patients who need medical monitoring and attention.
But the lines are blurring more and more, just as the line that once separated hospitals and nursing facilities has shifted. Medical decisions are increasingly based on cost and, with an aging population, space is tight. Nursing facilities are home to sicker patients. Today's board and care home residents might have medical problems that would have put them in a skilled nursing facility 10 years ago.
California has 5,748 board and care homes licensed to serve 121,619 elderly residents. Another 4,637 homes are licensed to serve 38,896 disabled adults.
In the midst of this health care revolution and facing an aging population, a forward-thinking Thornton found himself a niche. He decided to make house calls -- that is, he would travel to board and care homes and other residential facilities and practice medicine there. This would allow him to see several patients with each visit. Most of the health care for the board and care population is funded by the government. This coincidence helped streamline Thornton's process even more -- almost everyone he treated had a government health care number, and the bills could go to the same place, and be submitted on the same forms.
Thornton's niche grew and grew.
It's all but impossible for an outsider to determine just how many patients the enterprising Dr. Thornton actually had or has. In an interview with state investigators last year, however, Thornton said he was seeing approximately 1,000 patients a month -- that is, roughly 33 patients a day, if he worked seven-day weeks. He has acknowledged traveling to as many as 12 facilities a day -- some as far apart as San Jose and Tracy -- where he spends an average of five minutes or less checking out patients who have no problems.
And the government seems to fund most of that checking.
The federal government pays for health care through two different avenues: Medicare, which comes as a direct payment from the federal government and is aimed at the elderly, and Medicaid, a program that assists the poor and disabled. The federal government delegates the Medicaid program to states; in California, the program is known as Medi-Cal.
Medi-Cal records indicate that in 1995, the agency paid Thornton for 7,340 separate patient visits, totaling $179,406. In 1996, the state health care organization paid Thornton $178,326 for 8,254 patient visits -- or separate visits with about 159 patients each week. Those statistics do not include Medi-Cal patients who are participants in managed care plans, or patients covered by Medicare, which did not respond to a request for such information.
Thornton markets himself as a "house doctor" who doesn't replace a patient's primary doctor, if he has one, yet also doesn't handle emergencies. He goes to board and care homes at pre-scheduled times, does a cursory check on as many patients as possible, and, if he happens to find a need to perform a medical function, bills the government for it.
Somewhere along the way, Thornton's practice got high tech. William Adams, a Moraga lawyer who represents Thornton, says his client has spent more than $100,000 developing what he claims to be a highly sophisticated computer system that allows him to crank up the volume of his patient load. Thornton refused to demonstrate his technology for this story. Essentially, the doctor claims to be able to access all of his patients' pertinent records, coordinate billing information, and complete pre-made forms from a laptop computer that he carries with him.
One of Thornton's informational handouts describes his care this way:
"What I do that most other doctors cannot is provide safe, emergency care by telephone on short notice 24 hours a day. I do this by visiting your clients in the home every month or two and entering their medical data into a lap-top computer that I carry with me 24 hours a day. When they get sick, I can phone in medication, saving a trip to the hospital."
Thornton also provides patients with a laminated emergency card listing him as their doctor.
Yet according to the state's investigation, Thornton sees patients only at pre-scheduled visits, and is not available to them at other times. If there is an urgent situation, he does not go out to the board and care home on short notice. The care home is responsible if a patient needs hospitalization or emergency room service. Thornton does not have hospital privileges. He cannot perform pre-operative history and physical examinations. Nor does he do breast and pelvic examinations.
Despite all these limitations on the care he provides, Dr. Thornton's services are eagerly sought by board and care operators, who refer their residents to the doctor, if he will stop by once a month. Board and care home managers are legally required to see that their charges have adequate medical care; Thornton's visits make it easy to meet that requirement.
Whether this arrangement serves patients as well as it has served Dr. Thornton and the boarding homes he visits is another question entirely.
In fact, in the Medical Board settlement reached early this month, Thornton admitted that his computer system was inadequate to keep up with his patients, an admission that was a key factor in his sentence: five years of probation and a requirement that he pay the board $10,000 in costs it incurred while investigating Thornton's practice.
Perhaps the most troubling facet of that practice is this fact: Even though he has at least 1,000 patients scattered across Northern California, Dr. Thornton is still the only health care option for many disadvantaged people who are in board and care homes and whose welfare depends, in many ways, on the kindness of strangers.
Before administrative proceedings and court action closed the boarding facility permanently, three people had died at Nettie Irene Wilson's Family Care Home. And there were other problems. A mentally retarded woman had suffered fatal third-degree burns from scalding bath water. Another was locked out of the facility. Patient and medication records were missing. Food was left uncovered. The building was cold, hazardous, and dirty.
Dr. Thornton declined to be interviewed for this article. But William Adams, who represented the doctor during Medical Board disciplinary proceedings, spoke volumes in defense of his client, in those proceedings and in recent interviews. By Adams' garrulous estimation, Dr. Thornton has tried his best to provide good health care at facilities that range from decent to despicable.
"[Thornton] says that basically, the board and care home industry goes from snake pit to tolerable, and then in some nice neighborhoods to remarkably good," says Adams. "But most of the board and care homes -- let's face it, these are indigent patients. Essentially all of the expenses are being paid by public assistance, and usually they're right at the bottom of the barrel, so it's pretty hard to distinguish board and care homes down at the bottom.
"The question is: Should he withhold medical services from them because they're incompetent? It's almost hard to tell. Most board and care homes have no person there who's an expert at anything other than maybe running the home. There's no medical supervision whatsoever. And it's always a catch-as-catch-can situation.
"The homes in the very worst neighborhoods are usually kept up to about the same standards as the worst neighborhoods. I guess it boils down to: Should he be complaining about every little thing he finds, or just try to do his job as best as he can, and leave the systemic things to the experts?"
But that's not exactly what Thornton said in a 1994 letter to the Department of Social Services defending Wilson's home. In that letter, he said:
"I feel compelled to state, in no uncertain terms, without reservation or hesitation -- if my opinion matters -- that there is absolutely no merit to the allegations that Mrs. Wilson provided substandard care -- medical or otherwise -- for these two individuals [Walker and another resident], or for any other individuals under her care, for that matter."
And what he said in that letter is not exactly true.
Within two weeks of Richard Walker's death in February 1994, one of his housemates, George Klemmich, was also rushed to the hospital. Klemmich was 83 years old, and had lived at Wilson's Family Care Home for about a decade. Like Walker, Klemmich was a patient of Dr. Thornton.
About a year before, Thornton had taken a medical history from and performed a physical examination of Klemmich; thereafter, the doctor continued to see Klemmich about once a month. According to the Medical Board's accusation, Thornton failed to note a walnut-sized lesion on Klemmich's scalp. The lesion was recognized by a visiting nurse and brought to Thornton's attention. Still, Thornton didn't examine the lesion until his next scheduled visit a couple of weeks later, and then suggested that Wilson's staff bring Klemmich to a dermatologist for an exam. The tumor was eventually diagnosed as malignant melanoma -- an especially deadly form of skin cancer -- and removed by a surgeon. Thornton also failed to note a benign tumor on Klemmich's right shoulder, and two hernias that afflicted him.
Records show that Thornton saw Klemmich on Feb. 20, 1994, for a routine exam. Eight days later, Klemmich was rushed to San Leandro Hospital and diagnosed with a hole in his intestine, acute pneumonia, the two hernias Thornton had somehow missed, and the tumor in his right shoulder. He died March 1, 1994, from multiorgan failure and septic shock.
In his response to the Medical Board's accusation that Thornton was negligent in caring for Klemmich, Adams wrote this:
"Both the Medicare and Medi-Cal programs only pay for 'problem-focused' examinations. Dr. Thornton's examinations were therefore not intended, nor required, to be comprehensive in areas unrelated to a specific problem. Since the patient did not bring the tumor to Dr. Thornton's attention as a problem, there was no protocol requiring him to examine it -- a paradigm which also applies to the benign lump on the patient's back and the bilateral inguinal hernias."
It doesn't take much to persuade Maxine Richards to talk about her children and grandchildren. Their pictures decorate the mobile home in Scotts Valley where Maxine and husband Wayne, a retired teacher, live. On most weekends, their son Randy lives with them.
They, too, complained to the Medical Board about Thornton -- but their case is of a slightly different nature. In that case, and one other, Thornton is alleged to have provided care where it was not needed, and certainly not wanted.
The third child of Wayne and Maxine Richards, Randy is 34 years old, a tall, strapping, mentally retarded man, who suffers from autism and a disorder that causes him to have seizures.
Randy lived at home with Wayne and Maxine full time for 25 years. When it came time for Randy to move away, the options didn't seem promising. So, in 1986, Maxine and Wayne joined with a group of other parents who had children with similar needs and formed the Spark Foundation, which grew to encompass three houses in Los Gatos, Cupertino, and San Jose. Each location was home to six residents and a staff working around the clock, financed by a combination of state aid and private fund-raising.
"It was the only way we'd feel like we had some say over Randy's care," Maxine says.
The first mention of Dr. Thornton at the Spark Foundation came in a July 1994 report from the group's program director to the board of directors. The report said Thornton would visit each home one Sunday of every month to provide "supplemental medical care such as the annual physicals, TB tests, flu shots, and a clinic for minor illnesses"; these services would be billed under the residents' Medi-Cal accounts. Not only would this benefit the staff by saving time, the report says, Thornton would provide, at no cost, employee physicals and tests that are required by law.
At first, the Richards didn't think much of the mention of Dr. Thornton. Randy had his own doctor, and usually was at home with them on Sundays anyway. And no one at the Spark Foundation, it seems, knew that by the time Dr. Howard Thornton stepped foot into the group's residential homes, he was already the subject of complaints to the California Medical Board. Complaints against doctors do not become public information in California unless they make their way to an official Medical Board charge. That process can take years.
Medical records show that Thornton saw Randy Richards several times. On Feb. 8, 1995, the doctor completed a medical history and evaluation of Randy, without ever contacting his parents, who, as conservators, are legally empowered to make decisions for him.
"I've never seen the man," says Maxine. "I've never talked to him. He never wrote me a letter, never sent us a form to fill out."
To see a patient without consent violates what is known in medical circles as the Standard of Care -- that is, a standard by which the propriety of medical decisions is judged. Further-more, some of the information on an evaluation completed by Thornton was just plain wrong. A Department of Social Services evaluation form created by Thornton indicates that Randy, an autistic, mentally retarded man subject to seizures, is able to "care for personal needs," "administer own medications," and "leave facility unassisted."
That assessment hardly describes the man Randy's mother knows. "Randy has to be supervised to brush his teeth, wash his face, and bathe," explains Maxine. "He doesn't know one pill from the other."
In fact, Randy was taken to the hospital a few years before, after swallowing medication that had been set out for another resident of his group home. And in 1980, when Randy's parents became his legal conservators, a physician at Santa Cruz Medical Clinic, where Randy had been a patient since birth, gave this assessment: "Randy is totally disabled and needs close supervision and this condition will be present throughout his life."
A medical history recorded by Thornton in February 1995 is also radically at odds with reality. The history states that:
Randy has had no past abdominal operations. He's had two.
Randy has had no broken bones. But he's broken a collarbone.
The history states that Randy's family was "unobtainable or unknown" -- a suggestion that is particularly irritating to Maxine.
"He never made any attempt to contact me. I was on the board of the foundation, and either my husband or I were in and out of that house twice a week. Why didn't he call me?"
According to the Medical Board's accusation against Thornton, the doctor saw Randy Richards at least 12 times without the knowledge or approval of his parents. Most of the reports from those visits show "no change," and are completed with Thornton's computer-generated signature.
In November, Maxine and Wayne Richards wrote a letter to Thornton officially rescinding any authorization he thought he might have to see Randy. They also called the California Medical Board to complain.
"I don't think I ever gave permission, but I rescinded it anyway," says Maxine. "I wasn't going to support a fraud. Why should they be having to see this guy once a month anyway? I think it was just a way to get money."
Even that didn't stop the doctor. Medical records show Thornton's signature on two reports after the Richards' requested that he not see Randy.
And they were not alone.
Another parent of another Spark resident also was surprised to learn that her son had become a patient of Dr. Thornton.
"I never designated him to be [my son's] doctor," says the mother, who agreed to be interviewed on the condition that she and her son remain anonymous. "I found out that my son was sick, that he [Thornton] had prescribed something, and that the staff had filled it and administered it, and this is all before I ever even knew he was seeing my son as a patient."
Her son is 25 years old and suffers from autism, Tourette's syndrome, hypertension, a seizure disorder, and a host of other ailments. According to the Medical Board's accusation, Thornton saw this resident 19 times between Sept. 18, 1994, and March 5, 1996, and never recorded his vital signs, including blood pressure readings, even though this patient had been diagnosed as suffering from hypertension, i.e., high blood pressure.
At the time, the resident was taking at least four different medications prescribed by other doctors. He had been hospitalized and evaluated repeatedly by specialists at the University of California, San Francisco Medical Center, Stanford University Hospital, and El Camino Hospital for the grand mal seizures he suffered.
Yet Thornton produced a medical information card listing himself as this resident's doctor.
"Thornton never contacted the doctors at UC or Stanford," says the mother. "He's with kids who are acting out and having a hard time; you'd think he'd need to know who the doctors are and need to coordinate with them.
"I told our program director verbally that I don't want him to see my son because what he's doing is not right. I think he's billing Medi-Cal for services that he's providing my son that I don't want."
But Adams explains the allegations surrounding the Spark Foundation another, less concise way:
"That was something that [Dr. Thornton] had arranged with the board and care home, that they would determine which of the residents had approval from their guardians for Dr. Thornton to see, and it was up to them to present to him which people had the authorization.
"In many cases, there are going to be existing records that will be a lot more valuable than guardian information. If the guardian wishes to talk to him to provide additional stuff, then he would certainly listen. But usually, it isn't normal to talk to a guardian for even that kind of information because the medical world is just too complex to just call up somebody -- a guardian especially, not even a parent -- and say, 'Well, what's wrong with Johnny?'
"Except for some specific problem, there wouldn't be -- unless the parents were willing to pay for a physical or something -- that person would never be seen by another doctor in any other context. And even though it was a nice neighborhood in Los Gatos, these are all still indigent people and probably indigent families as well."
Neither family involved in these Medical Board cases is in a financial situation that even approximates indigency.
For the most part, California doctors are policed by other California doctors, through the Division of Medical Quality of the Medical Board of California, which is an arm of the state Department of Consumer Affairs. The board consists of 19 people, 12 of whom are doctors, and all but two of whom are appointed by the governor. The cases against Thornton were among 11,465 complaints the board received in 1994. The case was assigned to one of the board's 90 investigators. At the time, each investigator averaged about 35 active cases. (The average has since dropped to less than 30 cases.)
Investigator Noelle Holloway contacted Nancy Smitherman, Richard Walker's niece, for the first time in January 1996 -- more than a year after the complaint about Thornton's treatment of Walker was filed. And it wasn't until another year had gone by that the state Attorney General's Office filed an official accusation against Thornton on behalf of the Medical Board.
This month, Thornton joined the ranks of the more than 110 doctors placed on probation every year. The Medical Board and Thornton agreed on a settlement that allows Thornton to continue practicing uninterrupted, under the supervision of a physician he chooses and the board approves. Thornton must pay $10,000 in court costs, and take continuing education classes in subjects including ethics. Thornton has three chances to pass a medical competency exam.
"In general, settlements involve compromise," explains Deputy Attorney General Russell Lee. "What usually happens is that we get the penalty that we need to protect the public, and they don't have to have the findings they might get otherwise -- the admissions are far less than what is charged."
The Attorney General's Office refused to comment on whether a separate Medi-Cal fraud investigation launched during the Medical Board's investigation is still under way.
In the settlement, Thornton admitted no wrongdoing with regard to the two patients at the Spark Foundation. In essence, he admitted only that his computerized record-keeping system was inadequate for determining other patients' course of treatment, and that he had failed to adequately ensure that residential care facilities where he worked had fully informed patients or their guardians of the purpose of his visits.
In his final statement to the Medical Board on behalf of Dr. Howard Thornton, Adams summed up not only his client's job, but the board and care industry:
"They [Thornton's patients] reside in homes where there are no medically trained personnel on staff, and they have little or no access to medical care. Board and care home operators are not required to have anything more than rudimentary medical knowledge, and there is no one in these homes other than the lay home operators and their untrained, largely foreign-born staff to recognize and deal with medical emergencies ...
"... It is against this backdrop that the care that has been called into question was given."
In fact, Thornton is one of few doctors willing to visit residents in board and care homes. If those residents actually fit the description given them by the system charged with administering their care -- specifically, that they don't require regular medical supervision -- his traveling medical show would not be so attractive to the homes he services. In large number, however, those residents suffer the types of chronic ills that all but demand regular medical attention.
The system itself is ill. The pressure to cut costs from health care programs is tumbling an increasing number of patients from hospitals into skilled nursing facilities, and from skilled nursing facilities into board and care homes, which are not prepared to deal with the sicker charges.
In theory, having doctors make house calls at such residential facilities is an ideal way to look after the medically needy people who are increasingly housed there. But as the case of Dr. Howard Thornton shows, theory and practice -- even computer-aided practice -- can be as different as life and death.