Former Vail doctor who misdiagnosed dozens of patients with MS now faces lawsuits in Florida | VailDaily.com

Former Vail doctor who misdiagnosed dozens of patients with MS now faces lawsuits in Florida

Jack Queen
Summit Daily News

Editor's note: An abbreviated version of this article printed in the Tuesday, May 8, edition of the Vail Daily omitted information critical to explaining the past and present lawsuits against Dr. Gary Weiss. The article is reprinted here in its entirety.

In the summer of 2007, Brenda Culhane started feeling weakness in her arms. Lifting boxes became difficult, and sometimes she noticed her hands shaking.

Maybe it was a pinched nerve from a car accident several years ago, Culhane thought, or just a quirk of aging. She was active and healthy. Her Frisco real estate job kept her busy. She didn't suspect a serious health problem.

Culhane's doctor recommended she see a neurologist just to be safe, so she visited the Vail offices of Dr. Gary Weiss. After an MRI, Weiss gave Culhane a grim diagnosis: multiple sclerosis, an incurable degenerative brain disease that would require a relentless regimen of drugs and tests for the rest of her life.

“At this point, I’ve done everything I can. I’m not spending one additional second of my life involved with MS and this doctor. I’m just grateful that I’m healthy. I’ve spent enough time mired in MS. I’m done.”Brenda Culhane

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"I was absolutely distraught," she recalled. "MS is chronic. There is no cure for it and the only thing you can do is try and manage it. I was absolutely devastated. My entire life was turned upside down."

Weiss recommended that Culhane immediately start Tysabri, an MS drug that could only be administered at an infusion center. Once a month for nearly a decade, she sat in a chair for several hours and watched visions of her future pass by in the form of patients who were blinded, wheelchair-bound or crippled by the disease's cruel advance.

"I lived for years thinking, any day now, this is going to happen to me, and it's just going to get worse," Culhane recalled. "And I'm probably going to spend my middle age unable to walk, control my body functions, in a wheelchair — who knows."

Culhane's insurance bills skyrocketed. Her life revolved around her treatment, which required long trips to infusion centers and several days of malaise after each session.

It was all for nothing. Brenda Culhane does not have MS. Nor do at least two-dozen other patients that Weiss misdiagnosed, according to doctors who have reviewed some of his cases.

In 2016, five of Weiss' former patients in Colorado sued, accusing him of knowingly misdiagnosing them with MS and profiting off of expensive prescriptions and the routine scans required to monitor the disease.

Late last month, however, the patients dropped their lawsuits, in part because Weiss is no longer insured in Colorado, which would have made recovering damages nearly impossible.

It was a bitter defeat for patients such as Culhane, who spent years living in the shadow of a terrible disease they never had.

Weiss, meanwhile, was effectively cleared of the extraordinary allegations of malpractice and fraud leveled against him. He adamantly denies the claims, calling the lawsuits "nonsense."

But the multiyear legal fight was another entry in a series of court battles and state medical board entanglements that have given Weiss a national profile, and media outlets across the country have carried stories about the cases against him.

In February, he was featured in a Milwaukee Journal Sentinel and MedPage Today investigative series highlighting doctors who avoid discipline by moving to another state.

Weiss is now barred from practicing medicine in Colorado but has a new neurology clinic in Florida.

Two of his patients there are suing, saying he misdiagnosed them with MS.

Second opinions

Weiss is no stranger to litigation.

In 2003, State Farm accused Weiss and his business partner of ordering hundreds of worthless diagnostic tests that cost the insurance company millions of dollars.

Weiss was cleared of racketeering and conspiracy charges after a trial in Florida, but the jury deadlocked on one racketeering and one fraud count.

His former office manager was also cleared but ordered to pay $63,000 for fraudulent misrepresentation.

Weiss' lawyers told the press that the suit was an intimidation tactic by the stingy insurance company.

Weiss' troubles in Colorado began in 2011, when a patient he was treating for late-stage MS developed a brain infection and later died.

The deadly infection was a rare but known complication that Weiss should have been watching for more carefully, according to four University of Colorado neurologists who sent a formal complaint to the Colorado Medical Board. (Weiss wrote a detailed, 17-page letter disputing the allegations but ultimately settled with the board.)

The complaint echoes allegations in the lawsuits against Weiss, including his use of an underpowered MRI machine to look for signs of MS and his failure to consult a radiologist to interpret scans.

In an email, Weiss said he uses an "excellent" Hitachi scanner at his practice in Florida.

"Not only do I read our scans, but more than half my patients have their scans done elsewhere, and I read those, too," Weiss wrote. "When there are any questions, I get second opinions from a local radiology group and the Mayo Clinic Jacksonville."

MS is a difficult disease to diagnose, and there is no single test that can confirm it with certainty. But Weiss' diagnostic approach has drawn unusual criticism from neurologists across the country.

Dr. John Corboy, co-director of the Rocky Mountain Multiple Sclerosis Center at Anschutz Medical Center in Denver, was one of the doctors who reported Weiss to the medical board. He also signed a sworn statement in the patient lawsuits, citing "serious concerns" about Weiss' conduct.

"Dr. Weiss has misdiagnosed more patients with MS than could ever be expected when following accepted standards of care," he wrote. "Reviewing records from patients who Dr. Weiss diagnosed with MS also reveals that he was ordering excessive amounts of MRIs … and that he was prescribing unnecessary medications, both for financial gain."

Weiss dismissed the criticism, noting that Corboy and his associates competed with Weiss' clinic, which broke up their "monopoly" on MS patients at the University of Colorado.

"They looked at what I did years after the fact and, with the benefit of hindsight, said I should have made different decisions," Weiss wrote. "I totally disagree."

Weiss also said the latest American Academy of Neurology guidelines for treating MS with disease-modifying therapies back up his approach.

In a deposition, Weiss said he believes MS is an under-diagnosed disease. Companies that manufacture MS drugs share that view, and they arranged speaking arrangements for Weiss to offer it. (In his email, he said he was paid less than $1,000 over the years for travel expenses.)

Some MS specialists have the opposite perspective, saying that misdiagnosis of the disease is a widespread and costly problem.

In an email, Dr. Dennis Bourdette, a neurology professor at Oregon Health and Science University, said a recent study of four MS centers turned up 110 misdiagnosed patients in a single year, 70 percent of whom had been put on MS drugs.

"I personally think that given the expense of MS drugs and the safety issues with many of these drugs, patients should be either diagnosed at an MS center with MS fellowship-trained neurologists or have a second opinion if the diagnosis is made by a community-based general neurologist," he wrote.

Bourdette acknowledged the difficulty of spotting MS and the benefits of early treatment but said there are still clear protocols for diagnosing the disease.

"It is true that even neurologists who are specialists in the diagnosis and treatment of MS will occasionally make a misdiagnosis, but this is a rare event," he wrote. "There is no excuse for any neurologist to misdiagnose MS in multiple patients."

In a sworn statement, one neuroradiologist who reviewed 15 of Weiss' cases was unequivocal, saying it was "clear" that "none of these patients ever met the diagnostic criteria based upon their imaging studies to have a diagnosis of multiple sclerosis."

A PRACTICE UNRAVELS

In September 2014, the Colorado Medical Board concluded its case against Weiss, permanently inactivating his medical license and barring him from re-applying.

By then, however, Weiss had already stopped practicing in Colorado, citing a medical condition that was exacerbated by elevation. He set up a practice in Florida soon after.

In July 2013, roughly a year after the medical board opened its case against Weiss, he sold his Vail practice to Dr. Mark Pithan. (Pithan also drew scrutiny from the medical board, which suspended his license after a substance-abuse investigation. He now practices in Iowa.)

The practice quickly unraveled. In 2015, Pithan sued Weiss in Summit County court, alleging that the practice was propped up by unnecessary procedures on misdiagnosed patients. Keeping the business afloat without the tests required a cash infusion of roughly $1.75 million, he claimed.

Pithan said in court filings that he personally overturned 20 MS diagnoses and encouraged his patients to get a second opinion. In the five cases that led to lawsuits, the diagnoses were clearly disputed by lumbar puncture tests or MRIs, according to court documents.

Pithan's suit was dropped last May. Weiss called it "specious" and said the "bogus" information it contained prompted the patient lawsuits.

"He dropped his suit and received nothing in return — not a penny, not a pledge of confidentiality, not a promise that I would not later sue him," Weiss wrote.

Nonetheless, Pithan's suspicions led to dozens of disputed diagnoses.

In August 2014, Culhane visited a neurologist at a University of Colorado hospital to get her second opinion.

"He said to me, 'Who is your doctor?' Culhane recalled. "I said, 'Dr. Weiss.' He said, 'Oh, well that figures. Let's start again because now I'm very skeptical.'"

A spinal tap and MRI were both negative. Culhane's head spun.

"My first emotion, of course, was unbelievable elation," she said. "And then I was so upset. I just was livid. I don't even know how to express it. I had never felt anything like that in my entire life."

Culhane started calling attorneys but had a hard time getting one to take her case. Most were doubtful they could convince doctors to testify against Weiss, which can be a major hurdle in malpractice cases.

Weiss' cases were a rare exception, attorneys said. At least five neurologists went on record disputing dozens of Weiss' diagnoses.

"Neurologists we talked to all said there was no question whatsoever that these patients never had MS," said Brian Aleinikof, one of Culhane's attorneys.

The cases seemed promising, especially after judges in two of them allowed the patients to seek punitive damages.

"The repeated misdiagnoses may cause a jury to conclude that the defendant had not simply erred when he misdiagnosed plaintiff, but that defendant was engaged in a prolonged scheme to misdiagnose patients with MS for defendant's own financial benefit," a judge wrote in an order in March.

Just weeks before trial, however, the patients and their lawyers withdrew the cases. Weiss no longer had malpractice insurance in Colorado, and collecting damages from him personally would be difficult, lawyers said.

Four of the cases were dismissed at the end of April and another was dropped in February. Weiss said there was no settlement, but Aleinikoff said the plaintiffs would receive a small amount of money.

"The settlement was pathetic," Culhane said. "It's certainly not commensurate with the torture that we went through for 10 years."

'HOW COME NOBODY'S STOPPING HIM?'

In February 2016, a man with a history of epilepsy visited Weiss at his practice in Palm Bay, Florida, for an MRI.

Less than a week after the scan, Weiss told the man that he had either suffered a stroke or had MS. He recommended the drug Tysabri and encouraged the man to file for disability.

Several months later, a different neurologist and a neuroradiologist found "absolutely no evidence of multiple sclerosis-related lesions," according to court filings.

The man is now suing Weiss in Florida, along with another patient who claimed she was misdiagnosed. Their allegations are nearly identical to those in the Colorado cases, claiming Weiss used an underpowered MRI machine and failed to consult a neuroradiologist on the scans it produced.

"Either the plaintiffs will dismiss their cases, or I'll win in court," Weiss wrote. "As in Colorado, they won't be settled."

He added: "I think the fact that I've had 35,000 patients in Florida, and they found three or four willing to sue speaks volumes."

The lawsuit also claims that Weiss failed to report his agreement with the Colorado Medical Board to Florida regulators, who fined Weiss several thousand dollars for being disciplined by another board. (Weiss said he reported the case immediately.)

In Illinois, where Weiss first practiced after graduating from Northwestern University, the medical board banned Weiss from practicing after learning of his Colorado case.

Weiss was one of more than 500 doctors identified in the yearlong Journal Sentinel and MedPage Today investigation who were disciplined in one state but continue to practice in another.

In 20 percent of those cases, doctors sought new licenses after board proceedings against them began. In their new state, they faced no sanctions.

"It's a highly flawed system," Robert Wachter, MD, chairman of medicine at the University of California San Francisco, told the newspaper. "It has created a patchwork of accountability. It takes something pretty bad to get in trouble with your state licensing board."

Weiss said he regrets his decision to settle with the Colorado board rather than fight the allegations.

"If you listen to the hearing before the Florida Board of Medicine, you will hear the support for me that came from the physicians on the panel," he wrote. "You will also hear the board's attorney tell the members, 'Quite frankly, his attorney back in Colorado really screwed up.'"

But for former patients such as Culhane, the fact that Weiss continues to practice neurology is like salt in a wound.

"I find that absolutely unconscionable," she said. "How come nobody's stopping him? Where are the medical boards? I don't understand how he's continuing to practice — year after year after year."

As far as Culhane can tell, however, this is the end of the road in her long battle with a disease she never had and a doctor she believes profited off of her flawed diagnosis for years.

She carries a sunny disposition despite her decade-long dance with an incurable brain disease.

"At this point, I've done everything I can, she said. "I'm not spending one additional second of my life involved with MS and this doctor. I'm just grateful that I'm healthy. I've spent enough time mired in MS. I'm done."

About this story

This article is based on more than 360 pages of court documents from six federal lawsuits in Colorado and Florida, as well as several hours of interviews and emailed correspondence.

Through a spokesman, Dr. Gary Weiss provided answers to a detailed list of questions. The questions and Weiss’s complete, unedited responses can be found in the online version of this article at http://www.summitdaily.com, along with other reporting materials.

Out of respect for their medical privacy, the Summit Daily is not publishing the names of plaintiffs in lawsuits against Weiss with the exception of Brenda Culhane, who agreed to an interview.