by Max Blau, photography by Lucy Garrett for ProPublica

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This story was produced in partnership with MLK50: Justice Through Journalism and co-published with the Commercial Appeal.

On a brisk morning in the winter of 2019, at a standing-room-only reception, a procession of speakers lavished praise on the surgeon who more than tripled the size of the liver transplant program at Methodist University Hospital in Memphis. The lifesaving doctor was receiving an honor often reserved for the dead: Methodist’s leaders announced that the hospital’s new state-of-the-art transplant center would be named for Dr. James Eason.

Eason seemed to have reached the summit of what was then a 25-year career. A decade earlier, he had performed one of the highest-profile liver surgeries in recent history: the transplant that extended the life of Apple co-founder Steve Jobs by more than two years. That operation earned Eason the gratitude of Jobs’ widow, who later donated a total of $40 million to the transplant center he helmed and the medical school where he worked as a professor. At age 58, Eason had become one of the country’s highest-paid transplant surgeons, earning $1.7 million a year, more than anyone at Methodist but the head of its nearly 13,000-employee, six-hospital health system.

But for all the lives the liver transplant program saved, the hospital’s leadership had growing concerns about the number of patients dying on Eason’s watch. During the five years before the renaming ceremony, those deaths had sparked investigations from the federal contractor that oversees transplant centers. They also prompted multiple health insurers to remove the liver program from their preferred networks, according to internal documents.

In 2018, following the most recent investigation, Methodist hired a consulting firm to audit the program. The audit, conducted by peers from other transplant centers, found that numerous errors had contributed to patient deaths — and that to reduce the rate of failed liver transplants, Methodist likely would have to perform fewer transplants overall. But according to the audit, that would be difficult. Staffers felt “powerless to make change due to the resistance of leadership,” who gave the employees the impression that “volume is king,” the audit said.

The audit concluded that “disruptive, disrespectful, non-collaborative individuals” had put the liver transplant program and its patients “in a constant state of risk.”

In December 2018, Methodist University Hospital President Roland Cruickshank wrote a letter to the federal contractor acknowledging the transplant program’s worrisome number of deaths. “The decline in our outcomes is of the utmost concern,” he wrote, “and is not taken lightly.” Weeks later, Cruickshank sat in the front row of the renaming ceremony and stepped up to unfurl a banner with the words “James D. Eason Transplant Institute.”

ProPublica and MLK50: Justice Through Journalism obtained an extraordinary cache of internal records that reveal Methodist leaders failed to comprehensively fix problems with the liver program before the renaming ceremony. The records include the independent audit, detailed internal reviews of patient deaths and the hospital’s correspondence with the federal contractor, a nonprofit called the United Network for Organ Sharing, or UNOS.

One of the documents was an internal analysis drafted at Eason’s behest. In part of the analysis, one of his most senior colleagues determined that between late 2014 and mid 2018, 25 deaths — more than half of the program’s 48 total fatalities — were preventable.

The analysis found that some liver recipients had died after their transplant as a result of “process/protocol issues.” It also found that a portion of patients “should not have been listed” for transplant due to preexisting medical conditions.

Along with the documents, interviews with families of nearly two dozen liver transplant recipients who died over the past decade show that, in some cases, Methodist staffers didn’t tell them about the extent of the problems that contributed to their loved ones’ deaths.

Terry Green, a retired Army noncommissioned officer who donated a portion of his liver to his identical twin brother, did not know that Eason’s team had, according to medical records and internal documents, failed to conduct enough testing to rule out the risks of cardiac and pulmonary complications before Eason himself performed the transplant. His brother died from cardiac arrest in the operating room.

Terry Green donated a portion of his liver to his identical twin brother, Jerry Green.

Stacy Roberts was unaware that, following her father’s transplant, Eason’s team had identified major problems with the donated liver it had placed inside him, issues it may have been able to identify with further screening, internal records show. Methodist had accepted the liver from another hospital, which had failed to spot that the organ bore the early signs of cirrhosis. Days later, after her father experienced serious complications, Methodist providers conducted their own biopsy, discovering the full extent of the damage to the organ. Her father died about a month after the surgery. Hospital records show that transplant program leaders later required surgeons to more rigorously review liver donations before accepting those organs for patients.

For years, Tiffany Garrigus was haunted by the memory of watching her 59-year-old father die just several hours after his transplant. Unbeknownst to Garrigus, a nurse had reported concerns about internal bleeding to the surgical fellow on shift and noted that the doctor failed to quickly alert the attending surgeon. The miscommunication delayed potentially lifesaving care. The independent auditors later determined that Methodist’s own review of Steve Garrigus’ death was a “missed opportunity” to prevent similar issues in the future.

“They screwed up,” Garrigus said after she learned about records that outlined Methodist’s treatment of her father. “No one was held accountable and nothing changed.”

Tiffany Garrigus visits the grave of her father, Steve Garrigus, in Union City, Tennessee.

Garrigus and five other families who spoke with ProPublica and MLK50 signed documents waiving their rights to privacy so Eason and Methodist could answer questions about their loved ones’ deaths. Eason and Methodist declined to address those questions. The hospital and Eason also did not answer specific questions about the dozens of deaths detailed in the investigations, the findings in the audit of the transplant program or the correspondence between the hospital and UNOS.

Spokespeople for Eason and the hospital asserted that ProPublica and MLK50 singled out patients with negative outcomes. Methodist spokesperson Tabrina Davis also said in a statement that the news organizations had “settled on a clear narrative, one which we believe is a misleading and inaccurate portrayal of the institute.” The statement went on to say that “the transplant institute is on a continuous journey of improvement, focused on providing the highest quality care for each patient.”

Eason turned down multiple requests to be interviewed for this story but responded to questions in writing at various points. In one statement, he said that he and his team at Methodist “tried to give every patient the opportunity for transplant.” He also said in that statement that while there were “2-3 unexpected deaths per year” between 2011 and 2018, “we also saved more than 100 lives each year, all of whom would have died without liver transplantation.” Eason’s lawyer, Elizabeth Sacksteder, said in a separate letter that “performing more transplants rather than fewer” and using “the best available organs rather than waiting for the perfect organ” are pivotal parts of Eason’s approach to running a liver transplant program.

Dr. James Eason discusses Methodist’s liver transplant program with the advisory board of the University of Tennessee Health Science Center’s College of Medicine in 2015. (via University of Tennessee Health Science Center’s Facebook)

For more than a decade, Methodist liver recipients had a greater-than-expected chance that their liver would not be functioning one year after transplant, a metric used by UNOS to assess transplant centers’ performance. Eason said in his statement that UNOS had overrelied on that metric without taking into account that programs like Methodist have accepted more high-risk patients who would otherwise die imminently. He added that Methodist has excelled at minimizing the extent to which patients die on the waitlist, a metric that is now part of how UNOS evaluates transplant programs.

“I would never choose to let a single high-risk patient die instead of giving that individual a good chance of living,” Eason said in another statement.

Eason, however, is no longer making those choices at Methodist. This past August — after years of investigations and years of Methodist leaders celebrating Eason’s accomplishments — hospital employees were unexpectedly pulled into a conference room at the transplant center. Standing at the front of the room, along with other top executives, was the head of the health system. He shared a brief message that caught employees off guard: Eason was no longer with the James D. Eason Transplant Institute.

Methodist’s Liver Transplant Outcomes Drew Scrutiny From Investigators

The United Network for Organ Sharing launched two investigations over the past decade after Methodist University Hospital’s liver transplant program performed worse than expected.

Note: Transplant centers report data about their performance to UNOS, which along with the Scientific Registry of Transplant Recipients examines whether the performance of transplant programs was worse than expected. To do so, UNOS analyzes the extent to which transplanted livers still functioned one year after a surgery. Each percentage is based on outcomes over the prior 30-month period. For still-functioning transplants performed in the last six months of the study period, the chance of a liver continuing to function one year after the surgery is modeled after the outcomes of previous transplants in the study period. The blue line shows the percentage of Methodist patients expected to have a functioning transplanted liver at one year, based on characteristics of the liver transplant program’s prior recipients and donors. The yellow and gray lines show the chance of a patient having a functioning transplanted liver at one year, modeled after real-world outcomes. (Source: The Scientific Registry of Transplant Recipients)

Before his arrival at Methodist, Eason led another transplant center that was investigated for its poor performance during his tenure.

In the winter of 1998, Eason left his post as head of a San Antonio military hospital’s transplant center to begin a new job. He now oversaw liver and kidney transplants at the Ochsner Foundation Hospital just outside New Orleans. Eason’s team increased the number of liver transplants Ochsner performed from 23 in 1998 to 76 in 2001. But the rapid growth was followed by higher rates of deaths within a year of transplant, according to data from the Scientific Registry of Transplant Recipients.

One of Eason’s colleagues, Dr. Ari Cohen, subsequently wrote in a presentation to a group of transplant experts that the rate of adult patients living for one year after their liver transplants at Ochsner became “significantly worse than expected” between July 2002 and December 2004.

In 2005, a UNOS committee began investigating the reasons behind poor outcomes at Ochsner, according to an article written by Ochsner doctors that was later published in the health system’s academic journal. The article described the liver transplant program’s culture prior to 2005 in a way that was similar to what Methodist’s audit would turn up years later: A “feeling of fear” had left employees “unable to freely express their views” about the program’s problems.

In response to the UNOS investigation, Ochsner put together a team that determined the transplant center’s leadership was one of the biggest problems contributing to the liver program’s poor patient outcomes.

UNOS spokesperson Anne Paschke said that the organization does not comment on specific investigations. Cohen, along with other Ochsner doctors who contributed to the article, did not respond to emails or phone calls. An Ochsner spokesperson declined to respond to ProPublica and MLK50’s questions or make anyone available for an interview. Eason declined to comment on the UNOS investigation or his former colleagues’ reflections on the program under his leadership. In his statement, he said that he came to Ochsner after the program had been “closed due to loss of leadership” and that the program “went from saving zero lives to saving more than 80 lives each year.”

Before the UNOS committee completed its investigation, Eason accepted an offer that would allow him to return to his home state of Tennessee — and provide an opportunity to take another small liver transplant program and grow it even more dramatically.

In the five years following Eason’s departure, his former colleagues addressed the problems, according to the journal article. They turned Ochsner’s liver program into one of the top performers in the South, according to health care ratings organizations.

When Methodist announced Eason’s hiring in 2006, Dr. Hosein Shokouh-Amiri was deeply concerned. The veteran Methodist surgeon said he had heard about the rapid expansion of Ochsner’s transplant program and was worried that a similar approach might lead to higher rates of failed liver transplants for Methodist patients.

Amiri was afraid that Eason would override clinical decisions that Amiri or his colleagues had determined were in the best interest of patients. And so he decided to leave the transplant program shortly after Eason arrived. Before Amiri’s final day at Methodist, Eason wanted to know if he would reconsider. Sitting in Eason’s office, Amiri asked if Eason would ever require a surgeon to accept a donated liver that the surgeon would rather decline because of poor quality. Amiri recalled that Eason wouldn’t answer at first. Amiri said that when he pressed for an answer, Eason told him that he would do so if he felt it was necessary.

Dr. Hosein Shokouh-Amiri, a former surgeon at Methodist, resigned because of concerns over how Eason might lead the liver transplant program.

As Amiri saw it, Eason’s track record of boosting volume would “bypass the moral and ethical standard we had promised” to Methodist patients.

“He wanted my approval,” Amiri said. “I resigned.”

Eason did not respond to questions about Amiri’s recollections and concerns. Eason’s spokesperson, Stefan Friedman, wrote in an email that Amiri left Methodist “to go to a program that performed only 11 transplants last year with higher deaths on the waitlist and lower one-year survival rates.” Amiri said that his liver transplant program had lower survival rates “because we took sicker patients.” Federal health data confirms that Amiri’s program accepted a higher percentage of patients at high risk of death from liver disease than Methodist.

During his early years in Memphis, Eason led the dramatic growth of Methodist’s liver transplant program. The year before he started, in 2005, Amiri and his colleagues had performed 34 liver transplants. Over the next three years, Eason’s team more than tripled the hospital’s annual number of liver transplants, replacing 117 organs in 2008. Methodist leaders celebrated this growth as a historic achievement — one that allowed the liver transplant program to serve more patients in a majority Black city that had a higher poverty rate than the national average. Eason’s lawyer said in a letter that the population of the Memphis region “disproportionately suffers from co-morbidities associated with poverty” that “heighten the inherent risks of liver transplant surgery.”

By performing 126 transplants in 2009, Methodist became one of America’s 10 largest liver transplant programs. As hospitals across the country expanded their transplant centers, they stood to profit from treating more patients suffering organ failure. According to a 2009 study published in Medical Care Research and Review, the average cost of a U.S. liver transplant and the subsequent days spent recovering in the hospital was about $163,000. Around that time, The Wall Street Journal reported that some hospitals charged nearly three times as much for the surgery. Friedman said in a statement that Eason did not receive additional compensation for performing more transplants, “nor was any aspect of his compensation based on such a metric.” Methodist did not respond to questions about the program’s finances.

The growth of Methodist’s program was fueled in part by a special agreement with federal health officials that allowed the program to obtain livers across the entire state of Tennessee and parts of Arkansas and Mississippi. As the program grew, it began attracting more patients from beyond the greater Memphis area. A central Ohio minister received a liver transplant at Methodist in 2009 after being rejected by three other programs. He lived for another 12 years. A mechanic from San Juan, Puerto Rico, who experienced liver failure received a transplant at Methodist in 2010; in an interview translated by his wife, Carlos Acevedo Martinez told ProPublica and MLK50 that he had no complications and was grateful “Methodist gave him life again.”

Near the end of his third year at Methodist, Eason was in touch with his friend George Riley, a Memphis native whose parents had been doctors at Methodist. Riley, a California lawyer, wanted to know if Eason might help his client. Steve Jobs faced a long wait to get a new liver in his home state of California. His wife, Laurene Powell Jobs, had learned that people could be simultaneously added to waitlists in multiple states. Since Jobs had a plane, he could fly to whichever transplant center was willing to accept him. Tennessee, it turned out, had a shorter waitlist.

One day in March 2009, before dawn, Eason waited for Jobs’ plane at the Memphis airport. “I went to meet him and escorted him to the hospital,” Eason later told WMC-TV. One of Jobs’ biographers, Walter Isaacson, wrote that Eason closely oversaw Jobs’ care after the transplant, assigned nurses solely to his recovery and “would even stop at the convenience store to get the energy drinks Jobs liked.” Jobs later recovered in a 5,784-square-foot mansion in Memphis that Riley purchased through a shell company, according to The Commercial Appeal.

Weeks after Jobs returned home that spring, news broke of his surgery. Media outlets including CNN and The New York Times published articles that explored whether Eason gave preferential treatment to the billionaire. The surgeon pushed back: Jobs was the sickest, most deserving patient on the day that liver became available, he said. Starting that summer, Eason lived on and off in the mansion — a perk he didn’t publicly disclose at the time. Two years later, in 2011, he bought the house from the shell company for $850,000, the same price the company paid for it in 2009. (Home sale prices in the greater Memphis area had fallen in the interim.) Eason did not respond to questions about living in or buying the home.

Eason speaks with a nurse in Methodist’s transplant ward on Aug. 18, 2009. (Lance Murphey/Bloomberg via Getty Images)

Around the time of Jobs’ transplant, Methodist’s liver recipients had a better estimated chance of their organs functioning at least one year after a transplant than the national average. But in the years after Jobs’ surgery, Eason’s liver transplant program began to struggle. The rate of failed liver transplants increased between July 2010 and December 2012. As a result, the UNOS committee that had scrutinized Ochsner’s performance under Eason opened an investigation in early 2014. The committee’s work is confidential, but ProPublica and MLK50 obtained records that described the investigation. (UNOS declined to confirm when the investigation ended.)

The UNOS committee, which is composed of several dozen transplant experts who volunteer to review their peers’ programs, can recommend the discipline of transplant centers for their poor performance. But the committee rarely punished programs. In fact, the committee was so toothless that in 2018 the then-CEO of UNOS likened the committee’s investigations to “putting your kids’ artwork up at home.”

“You value it because of how it was created rather than whether it’s well done,” the UNOS leader wrote of the investigative committee. “Only in this case, we persuade ourselves that it’s well done anyway.”

Though Eason now defends the program he led, he acknowledged in an April 2014 letter to the UNOS committee that Methodist’s outcomes “were not as expected.” He pledged to address the committee’s concerns.

According to internal documents from June 2014, Methodist was anticipating potential financial fallout from those poor outcomes. A Centers for Medicare & Medicaid Services official had informed Methodist that its liver transplant program was out of compliance with federal standards because it had “significantly lower than expected” outcomes and did not have an adequate policy for evaluating the reasons behind its failed liver transplants. The official warned that CMS would terminate the liver program’s participation in Medicare, which covered the costs for nearly a third of the liver transplants performed at Methodist, if it failed to correct those problems.

In its written plan outlining how it would fix the problems, Methodist told CMS that one way it would improve outcomes was through Eason encouraging a “higher scrutiny of patients” whose risks of complications outweighed the potential benefits of surgery. Methodist ultimately avoided termination from Medicare.

But records obtained by ProPublica and MLK50 show that Methodist kept accepting patients whose poor health increased the risk of complications after a transplant. Eason’s team soon approved for transplant a 356-pound woman with a BMI of 66 and a woman who struggled so much with drinking alcohol that she only stopped after getting sick from liver failure. The team also signed off on a patient for transplant in spite of the fact that she was septic the day before the surgery. All three died within a year after their transplants.

Dr. Satheesh Nair, one of Eason’s most senior colleagues, later determined in an analysis of patient deaths that Methodist should not have placed these patients on the transplant waitlist. Nair did not respond to questions. Eason did not comment on the findings of the analysis, but said that he asked for it to be done as part of his transplant program’s efforts to improve its quality of care.

Davis, the Methodist spokesperson, also declined to comment on Nair’s findings. She said in a statement that Methodist has turned away liver transplant candidates because they “do not meet the criteria to indicate they would have successful outcomes” after a transplant.

By the time Jerry Green arrived at Methodist in 2016, the 46-year-old minister from West Memphis, Arkansas, was experiencing symptoms of liver failure, including fatigue and jaundice. As Green underwent a battery of tests, the evaluation revealed potential signs of pulmonary hypertension, according to hospital records. That condition can increase the risk of death from a transplant.

Medical experts have written in journal articles that when a transplant candidate has signs of pulmonary hypertension, additional testing, including what’s known as a right heart catheterization, should be done to more precisely determine the risk of complications during or after a transplant. If the risk is too great, liver transplant programs can either reject the patient or postpone the surgery until the patient receives care to improve their health. But “no further assessments were made,” according to an internal analysis of Green’s treatment that the liver transplant program later conducted.

Methodist doctors calculated that Green had a strong chance of surviving for three months without a transplant. But that also meant he was unlikely to get a liver from a deceased donor because he would be low on the waitlist. According to hospital records obtained by ProPublica and MLK50, Eason encouraged Green to get a transplant immediately the only way he could: by finding a living donor. Green was reluctant. But when he gave in, he asked his twin brother, Terry. He agreed.

First image: Terry Green shares a photo of himself and Jerry with their mother. Second image: Terry and Jerry as babies.

In the summer of 2016, as the Green family packed inside Methodist to support the twins, a surgeon sliced open Terry’s abdomen. It was one of the first living liver donor transplants ever performed at Methodist. Once they started Jerry’s surgery, his pulmonary arterial pressure rose so much that surgeons considered halting the transplant. Methodist providers gave Jerry medication that lowered his pressure. According to an operative report from a surgical fellow, Eason “had extensive discussion with his family, where they strongly hoped to undergo the surgery with any possible measures.” (Jerry’s wife, Jacqueline Green, said that she was notified about the concerns over his pressure but did not have an in-depth discussion with Eason about the risks of proceeding with the surgery.) Eventually, surgeons began replacing his liver with a segment of Terry’s.

Once Terry woke up, Eason stopped by to check on his abdomen. The surgeon then shared the worst news of Terry’s life. Jerry’s heart had suddenly stopped. The staff tried to revive him in the operating room but could not pull him back from the brink of death. “His heart wasn’t strong enough,” Terry remembers Eason saying. “What we learned here will help others in the future.”

After the funeral, Jacqueline met with Eason to learn more about what went wrong. As Jacqueline asked questions about Jerry’s death, Eason said that the liver transplant was successful. “It was just his heart” that failed, she recalled Eason saying.

Jacqueline Green at home next to a burial flag for her husband, Jerry Green, who served in the Marines.

The following year, Methodist enacted several new policies designed to more rigorously test patients’ cardiac and pulmonary risks ahead of a liver transplant. In the program’s internal analysis, Nair later determined that Green’s death was preventable. Jacqueline said Eason never told her about that finding.

Not long after Jerry Green’s death, Eason and nearly two dozen colleagues gathered for a confidential meeting. A familiar problem that had dogged the program was now resurfacing.

Four years earlier, in December 2012, CMS had announced it would cut off a crucial part of Methodist’s organ supply from central and east Tennessee. Some transplant experts praised the decision because they felt Methodist had unfairly benefited from an old policy that provided access to more high-quality organs from a large geographic area. To avoid shrinking what had become the nation’s fourth-largest liver program, Methodist accepted more livers that posed a higher risk of complications for their recipients. Eason’s transplant quality director later wrote in a document responding to the UNOS committee’s investigation that the strategy was justified as the country faced a chronic organ shortage. As the quality director explained, the additional risk was in “balance against the risk of candidate death on the waitlist.”

At the confidential meeting, Eason and his staff focused on a case that exemplified the perils of such risk-taking. That July, Methodist had received a liver offer from a North Carolina hospital. The liver had belonged to a 34-year-old military veteran who had struggled for years with use of hard drugs and alcohol. The way that he died required that his liver be removed after his heartbeat stopped, known as a donation after circulatory death or DCD. Such donations involve an organ that has been deprived of sufficient oxygen between the time of death and the organ’s removal. As a result, these donations can elevate the risks of complications for a recipient. That year, about 6% of U.S. liver transplants involved DCD organs, according to data from the Scientific Registry of Transplant Recipients. The data also showed Eason’s team accepted DCD livers at a percentage nearly triple the national average.

The night that Methodist received the liver offer, one of Eason’s surgeons described the donor’s history to Eugene Willard, a 61-year-old grandfather who served as the mayor of his small town of Amagon, Arkansas. Willard wanted to reject the offer, according to his daughter, Stacy Roberts. Two weeks earlier, another Methodist doctor had determined Willard would be a “suitable candidate for liver transplantation providing he loses weight,” records show. That doctor had encouraged Willard to slim down to lower his risk of complications whenever the transplant did happen. But with the offer on the table that night, the surgeon urged Willard to accept the liver, his daughter recalled. “If you don’t do it, you’re going to die,” she remembered the surgeon saying. Willard followed the surgeon’s advice and agreed to accept the organ.

After Willard’s new liver showed signs of poor function, Methodist providers ordered another biopsy to better understand his complications. This time, they saw that the donated liver had so much scarring that the early stages of cirrhosis were present. He died about a month after the surgery.

At the confidential meeting, the team concluded that the North Carolina hospital’s biopsy of the donated liver “may have been inadequate.” Eason’s team responded by approving a policy change that required surgeons to more rigorously examine biopsies before accepting livers. Nair’s analysis later determined that Willard’s death was preventable, citing “donor selection” issues.

Data from the Scientific Registry of Transplant Recipients shows that Methodist continued to accept DCD livers in 2017 and 2018 at rates higher than twice the national average. Eason’s transplant quality director later explained in the response to UNOS that Methodist’s surgeons accepted more high-risk livers because they had “access to fewer local organs than the national rate,” leaving the program little other choice for saving patient lives. The quality director defended the practice as one that “represents our effort to provide care to an underresourced patient population.”

“Most have no other opportunity or hope of transplantation,” the quality director wrote.

Over the course of 2018, Methodist’s transplant center leaders were confronting a new round of scrutiny. After a period of improved patient outcomes following the UNOS committee’s investigation four years earlier, the liver transplant program’s failure rate had again worsened. As a result, the UNOS committee opened another investigation.

Methodist responded with a step intended to help its struggling program. It hired the transplant consulting firm Guidry & East to conduct an audit of its liver transplant program’s operations.

Five transplant experts — including doctors affiliated with medical schools at the University of California, San Francisco and Cornell University — traveled to Memphis in October 2018 for the two-day audit. They toured the center’s halls, interviewed employees and reviewed liver transplant records. The experts wrote a 35-page report, a final draft of which was obtained by ProPublica and MLK50, that identified a list of problems that they said contributed to patient deaths.

Excerpt from Guidry & East’s 2018 audit of Methodist’s liver transplant program (highlights added by ProPublica)

The audit stated that Eason’s program appeared to “maximize the number of transplants by disregarding flags” as to whether patients were suitable candidates for surgery and, according to one Methodist doctor, was “currently accepting less than ideal donor organs for transplantation.” It also determined that the program had failed to thoroughly review the causes of patient deaths in order to prevent repeat mistakes with future patients, a problem previously identified during federal inspections.

To better protect patients, Eason would need to improve its policies in a way that would limit surgeons from operating on patients unlikely to survive long after transplant, in addition to limiting the number of high-risk organs the program accepted, the experts’ audit determined.

The experts also flagged problems with the hospital’s oversight of its liver transplant program. The audit noted the stark “disconnect” between Eason’s team and hospital leadership. “There is a lack of transparency in what is reported,” the experts determined.

After the audit, Methodist University Hospital President Cruickshank pledged in a letter to the UNOS committee that senior hospital leadership would “work closely” with Eason’s team to adopt Guidry & East’s recommendations. Those changes, Cruickshank said, would “once again allow us to meet the UNOS requirements and our own expectations of exceptional outcomes.” (Cruickshank, who has since left Methodist, did not respond to multiple requests for comment.)

Eason at the transplant center renaming ceremony at Methodist University Hospital in 2019. (via Methodist Le Bonheur Healthcare’s Facebook)

In February 2019, less than two months after Cruickshank’s letter, Eason stood at the renaming ceremony before his supporters, including Laurene Powell Jobs, an internationally known philanthropist who has donated to a wide variety of causes. (Powell Jobs’ social impact organization Emerson Collective contributes to numerous media organizations, including ProPublica and MLK50, and owns a majority stake in The Atlantic. Through a spokesperson, Powell Jobs declined to comment about her support of Eason and Methodist.) In the halls of Methodist’s new $275 million nine-story tower, a portion of which would be home to the transplant center that had received her donation, Eason and Powell Jobs posed for a photo before a wood-paneled wall lettered with the surgeon’s name on it.

Later that month, Methodist received a letter from the chair of the UNOS committee overseeing the investigation, whose members had met to review the Guidry & East audit. The letter stated that “recent outcomes do not seem to be improving.”

In April 2019, as Methodist was about to welcome patients to its new transplant center, Eason wrote in a letter to the UNOS committee that the liver transplant program was headed in the right direction. To address the committee’s concerns, Eason presented a detailed plan that outlined how Methodist was overhauling policies within its liver transplant program. He attached newly written guidelines that directed the program to be more stringent in accepting high-risk patients and livers. He also noted that transplant leaders were routinely holding conferences where staffers more thoroughly reviewed cases with bad outcomes, openly discussed medical mistakes and identified ways to prevent repeat errors.

“We believe our team has made tremendous progress in improving the outcomes of our Liver Transplant Program,” Eason wrote.

Davis, the Methodist spokesperson, said in a statement that Methodist “considered every recommendation” from Guidry & East and enacted some of those policies “right away.” Neither Eason nor Nair responded to questions about the Guidry & East report.

After the new transplant center facility opened that spring, the liver program’s numbers did, in fact, begin to turn around. The program’s rates of failed liver transplants continually improved in 2019 and 2020. But they did not improve enough to clear the threshold that the UNOS committee typically required to close an investigation.

In 2021, UNOS rewrote the rules for investigating transplant programs. Ian Jamieson, then the chair of the investigative committee, said that judging programs on post-transplant outcomes alone had created a “disincentive to transplantation.” To remove that barrier, UNOS leaders decided, a program would have to have far worse rates of failed liver transplants before UNOS would automatically step in to investigate.

UNOS touted the policy as “a more holistic approach” to evaluating transplant programs, since the committee would now also consider the extent to which patients were dying on the waitlist. The changes were not universally praised: Critics worried that the policy would lead to fewer transplant programs being held accountable.

Around the time the new UNOS policy began to take effect last year, the committee ended its investigations into numerous transplant programs, including the liver transplant program at Methodist.

Eason and a spokesperson for Methodist said that the investigation was closed because the program’s outcomes had improved. (UNOS declined to comment on the reason.) Eason said in his statement to ProPublica and MLK50 that UNOS’ new policy was recognition that UNOS had been relying on a transplant metric that was “outdated and invalid.” He sees that decision as part of a broader shift in which federal transplant policy is falling more in line with his philosophy to offer transplants to as many people as possible.

With outcomes improving and policy shifting, Eason seemed poised to keep leading his team at the center that bore his name. But one morning this past August, Methodist transplant center employees were unexpectedly summoned into a meeting down the hall from where the renaming ceremony had taken place. For the prior week, Eason hadn’t made his usual rounds through the halls of the transplant center. His staff even had to postpone a living donor transplant because of his absence.

Once the seats were filled, Michael Ugwueke, the president and CEO of Methodist’s six-hospital health system, asked for everyone’s attention. He informed them that Eason was no longer with the transplant center. When staffers asked what happened, Methodist executives said they couldn’t provide any details. As part of the decision, the transplant center suspended conducting liver transplants for living donors.

Methodist and Eason declined to answer questions about his departure. Methodist has scrubbed many mentions of Eason from its website. In the six months following Eason’s departure, he remained employed as the director of the Transplant Research Institute at the University of Tennessee Health Science Center, the medical school affiliated with Methodist. In late February, he retired from his tenured position, according to emails obtained through an open records request. UTHSC spokesperson Peggy Reisser declined to comment on the retirement.

So far, no hospital has publicly announced that Eason will lead its transplant center. Medical board records show that he has obtained licenses in Ohio and Pennsylvania. When ProPublica and MLK50 asked about Eason’s departure and search for a new job, his lawyer, Sacksteder, responded in a letter on March 15 that he is a “highly respected” liver transplant surgeon whose name still graces the transplant center he had helmed.

Just a few weeks later, Methodist employees noticed something had changed at the hospital. Workers had removed several signs throughout the facility. The words “James D. Eason Transplant Institute” are no longer affixed to the front of the building.

A new sign simply reads: “Methodist Transplant Institute.”

First image: The exterior of Methodist, showing the James D. Eason Transplant Institute sign, on Feb. 17. Second image: The exterior of Methodist, without Eason’s name sign, on April 18. (Andrea Morales for MLK50) Tell Us About Your Experience With the Organ Transplant System

Wendi C. Thomas and Jacob Steimer, MLK50: Justice Through Journalism, and Mollie Simon, ProPublica, contributed reporting.

Design and development by Allen Tan.

This post was originally published on Articles and Investigations – ProPublica.

by Rose Lundy, The Maine Monitor; Research by Mariam Elba; Photography by Tara Rice for ProPublica

This article was produced for ProPublica’s Local Reporting Network in partnership with The Maine Monitor. Sign up for Dispatches to get stories like this one as soon as they are published.

In the mid-1990s, Maine’s lawmakers and health officials made a pivotal decision to reduce the state’s reliance on nursing homes, a move intended to redirect elderly residents toward“more homelike, less institutional” alternatives.

The policy change, enacted in 1993 amid a severe budget crunch, helped spark a dramatic transformation of the elder care system in Maine, where 21.7% of the population is 65 or older — the highest percentage in the country.

Between 1996 and 2022, the number of nursing home beds dropped by nearly 3,680, from a high of more than 10,000, sparing Maine the financial burden of subsidizing them. During the same period, the number of beds at what are known as residential care facilities almost doubled, jumping by more than 4,200. As a result, older Mainers and other residents with significant medical needs live in these homes. Residential care facilities in Maine resemble what are known generally as assisted living facilities.

Although the state considers residential care facilities to be “nonmedical institutions,” an investigation by The Maine Monitor and ProPublica found that these facilities are routinely called on to provide medical care to their residents — those suffering from advanced dementia or requiring medication management for conditions such as seizures and heart disease.

Maine’s standards for these facilities are more robust than those in some other states, long-term care advocates say. But given the significant shift of beds for seniors from nursing homes to residential care, advocates say that those regulations are inadequate and in urgent need of updating and tightening.

A review by the Monitor and ProPublica of state inspection records underscored concerns about how these facilities are regulated. State monitoring and investigation reports revealed that of the almost 700 violations issued from 2020 to 2022, roughly 200 involved “medications and treatments.” The analysis focused on citations at many of the state’s roughly 190 largest residential care facilities, called Level IV, which serve the largest number of people.

In May 2021, for instance, state inspectors found that one facility had administered morphine to the wrong resident. The mistake led to the resident being hospitalized and treated for a week in the intensive care unit.

Problems with medical care also showed up in other violation categories beyond the 200 related to medication and treatment. Another facility was cited with a resident’s rights violation in May 2022 for failing to get from the pharmacy a resident’s medication for cardiac issues, nicotine cessation, pain control and seizure activity for three days. The resident became agitated about not receiving the medications and went to the hospital at their family’s request over safety concerns.

These facilities “shouldn’t have it both ways,” said Eric Carlson, director of long-term services and support advocacy at Justice in Aging, a nonprofit legal advocacy group focused on ending poverty among seniors.

“You can’t on one hand say: ‘Oh, we’re an alternative to nursing facilities,’” and then when something bad happens say: “‘Well, we can’t be expected to have expertise on that stuff. We’re a social facility. We’re a nonmedical model,’” Carlson said.

While medical errors happen at even the most highly equipped facilities, Maine’s residential care facilities are not set up to handle the level of need they are currently seeing in residents, said Jess Maurer, executive director of Maine Council on Aging, a network of organizations focused on issues affecting the elderly. She said these facilities are grappling with the consequences of the state’s policy change.

“We’re pushing people with a higher level of need than should be in assisted living into assisted living facilities because there are no alternatives,” Maurer said.

According to a 2021 report by the Maine Health Care Association, which represents the state’s elder care facilities including nursing homes, the needs of residents in assisted housing, including residential care facilities, had increased 30% since 1998, and 47% of them suffered from dementia. By 2028, the number of Mainers over 65 is projected to increase about 45% over the decade prior. And 35,000 Mainers are projected to have Alzheimer’s in 2025.

The Maine Department of Health and Human Services, which oversees and licenses residential care facilities, declined to comment on the calls for tighter medical standards or on the violations cited by state inspectors.

But department spokesperson Jackie Farwell said the state is in the middle of a “major long-term care reform effort” aimed at filling the gaps in the state’s elder care system. Within the next fiscal year, the department’s statutory review of assisted housing programs is expected to “lead to the adoption of updated rules relating to the operation of” residential care facilities, among other things. She declined to elaborate whether the updated rules could include tighter medical standards.

Brenda Gallant, Maine’s long-term care ombudsman, who is empowered by the state to receive complaints from elder care residents and investigate their facilities, said the department’s effort could offer an opportunity to review the medical standards for residential care facilities.

“It is the right time to take a look at who we are serving and what regulatory changes need to be made based on resident need,” Gallant said.

Martin Hunt was a highly intelligent, meticulous man who enjoyed tinkering and creating all kinds of contraptions. He fashioned cup holders to his cane, assembled a guitar and built a wooden, collapsible rolling grocery cart. He designed 3D floor plans for a house on a piece of property that one of his sisters, Tania McIntyre, owns in Dedham, Maine.

McIntyre shares a photograph of her brother, Martin Hunt.

But McIntyre and her older sister, Melody Leavitt, witnessed Hunt’s dementia erode his mind since he suffered a stroke in 2020. As the 68-year-old’s condition worsened, they helped him move into Woodlands Senior Living of Brewer, 10 miles from Leavitt’s house.

Within a week, the sisters regretted the move, appalled by the quality of care that Hunt was receiving. For instance, he took about 20 medications every day for a number of ailments in addition to dementia — heart conditions, lung disease, hypertension, among others — and Woodlands’ employees made a mistake when administering them, according to the facility’s daily care notes. More broadly, the sisters worried that he was being overlooked, and that staff did not take his complaints about pain seriously.

A couple months after he moved in, Leavitt confronted Kathleen Olsen, the facility’s administrator, about the overall quality of care. She said she was floored when Olsen told her that Woodlands is not a medical facility.

Matthew Walters, one of the owners of the Woodlands Senior Living, which operates residential care facilities in nine communities throughout Maine, including the one in Brewer, told the news organizations that he had spoken with Olsen and that she did not recall her conversation with Leavitt. But Walters echoed her point: “She’s right. We’re not a medical facility. By definition, we’re a private nonmedical institution,” he told the Monitor and ProPublica.

Medical facilities, such as nursing homes, are required to provide daily nursing care for injured, disabled or sick people who can only be served in a nursing facility, whereas nonmedical facilities are only required to help residents coordinate and gain access to medical care, said Farwell, the DHHS spokesperson.

All this is why the sisters began exploring options for relocating Hunt not long after his move to Woodlands. Convinced that he needed a higher level of care, they set up an assessment for him — a step required by the state before moving to a nursing home.

To qualify, Hunt needed to be evaluated as either requiring frequent nursing or other skilled care for a long list of medical conditions or needed to score high on a points system to show that he had severe cognitive or behavioral problems.

On the day of Hunt’s assessment in late November, conducted via a 10-minute phone call with a registered nurse, Leavitt was there in his room, listening in as he answered the assessor’s questions: Did he need help getting dressed? (No.) Did he eat by himself? (He gave a snarky answer: “When the food is edible.”)

At one point during the call, Hunt put the phone on speaker and placed it on his bed. When he went to pick it up later, he grabbed the TV remote instead and held it to his ear. He continued to speak into it until Leavitt walked over and replaced it with the phone.

Leavitt said the moment felt like yet another example of Hunt’s steady decline. “It was disheartening,” she said. “You’re watching him losing his mind.”

But the assessor wasn’t in Hunt’s room to witness the scene and eventually determined that Hunt’s needs weren’t acute enough to qualify for a nursing home placement.

Three decades ago, the state tightened the requirement for qualifying for a nursing home placement. The policy change reflected the state’s philosophical shift away from nursing homes and toward options that allowed Mainers to “age in place” at home or in less institutionalized settings for as long as possible.

But it was also a financial decision, aimed at reducing nursing home costs, which are covered by a mix of state and federal funds under MaineCare, the state’s version of Medicaid; the costs had doubled over five years and were the single largest component in the state’s Medicaid budget.

The rising costs meant that the state “finally had to admit that we could no longer” sustain the number of nursing home beds it had, according to a 1994 state plan from the Bureau of Elder and Adult Services, an agency under what is now the Department of Health and Human Services.

But the policy change received immediate pushback. Legal Services for the Elderly, a nonprofit, filed a class-action lawsuit to challenge the medical eligibility requirement, which the plaintiffs said made them no longer qualify for a nursing home placement.

Among the plaintiffs were a 78-year-old woman who had a mild seizure disorder and rapidly worsening Alzheimer’s; a 99-year-old woman who was prone to falls, was legally blind and almost deaf and needed help with dressing, bathing, toileting and hygiene; and a 92-year-old man who needed a catheter and paid privately for nursing home services for years until his savings ran out, according to the coverage in the Bangor Daily News at the time.

The following year, the Maine Health Care Association also issued a critical report, highlighting how the policy change was pushing people with a higher level of medical needs into residential care facilities. The situation, it wrote, was putting the pressure on these facilities to provide more medical care.

“Many of Maine’s residential care facilities are moving quickly down that path, being driven by circumstance and department pressure to medicalize their services,” the association wrote.

Under pressure, the state eased the medical eligibility requirement in 1996, taking Alzheimer’s and other dementias more into consideration in determining whether an individual qualifies for a nursing home placement. In light of the changes, the class-action lawsuit was dropped.

Despite that change, experts told the Monitor and ProPublica that Maine’s medical eligibility requirement for nursing homes remained among the strictest in the country, and nursing home beds have continued to disappear since 1996.

Residential care facilities are subject to state regulations, established in 1998, that hold them to much lower minimum staffing, nursing and physician requirements than for nursing homes. Their direct-care workers are allowed to manage twice as many residents as they are in nursing homes. A registered nurse has to make a visit only once a week to residential care facilities with 40 beds or more and even less frequently to smaller ones, while nursing homes are required to hire a director of nursing and have one nurse stationed at all times. And there is no requirement that doctors visit residents at these facilities, while nursing homes are required to have a medical director and make sure that every resident is visited by a doctor every two months.

Regulations of assisted living facilities vary greatly across the country, and experts say it is difficult to compare across states. Some states don’t have specific minimum staffing requirements like Maine does, requiring only “staffing sufficient to meet the needs” of residents.

But just because Maine has minimum staffing requirements doesn’t mean the standards are sufficient; resident needs have increased since they were established 25 years ago, said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, a nonprofit that advocates for elder care residents.

“When you have people with increasing needs, you have to ensure that those needs are being met,” she said. “There needs to be government oversight of that because in too many cases the facilities are falling short and people are experiencing real harm.”

Travis Brennan, a Maine-based attorney who handles medical malpractice claims for Berman & Simmons, said medication mistakes can signal other problems — they may indicate that employees are being rushed, aren’t trained properly or are disregarding their foundational training.

“When you have a medication error, it is symptomatic of the fact that a provider is taking a shortcut,” Brennan said.

From 2020 to 2022, state inspectors issued 18 citations for missing doses and medications, seven citations for wrong doses and two citations for medications given to the wrong residents at Level IV residential facilities, a ProPublica-Monitor analysis shows.

In October, for instance, state inspectors cited one facility for failing to promptly stock one liter of oxygen for a resident who suffered from “acute respiratory failure.” It took the facility seven days after receiving a doctor’s order to contact a pharmacy.

Smetanka said the state can address this problem by enhancing the required training, improving quality-assurance procedures, establishing medication management as a focus for oversight and looking at the penalties when these facilities make mistakes.

“More needs to be done in terms of oversight and accountability for ensuring that these mistakes are minimized as much as possible,” Smetanka said. “A medication error can be deadly for a resident. It could have very serious consequences. So this is not something to be taken lightly.”

Paula Banks, a geriatric social worker who has been licensed in Maine for 30 years and runs a geriatric consulting and care management firm, said the current staff ratios are not stringent enough, particularly at the residential care facilities housing residents with cognitive problems. Under the state’s medical standards, one direct-care worker is allowed to manage 30 residents overnight, but she said that’s not reasonable when the residents suffer from dementia and may not know what time it is. “It’s impossible — those ratios,” she said.

Angela Cole Westhoff, president and CEO of the Maine Health Care Association, wouldn’t weigh in on tightening medical standards for residential care facilities, but she said that regulations should reflect the difference between nursing homes and residential care facilities, which she said “provide varying levels of care.”

Hunt’s sisters, Leavitt and McIntyre, are quick to acknowledge that Hunt, a divorced father of three sons whom he hasn’t seen for years, could sometimes be a difficult person to be around. And they suspect that this caused his needs to be overlooked by Woodlands’ employees.

First image: Leavitt looks through Hunt’s paperwork from his time at Woodlands. Second image: The facility in Brewer, 10 miles from Leavitt’s house.

The facility care notes detail numerous run-ins with the employees in which Hunt was described as aggressive, rude and insulting. He allegedly called the employees names and yelled at the cook. And he clashed with the employees over his medications.

The sisters said Hunt had long been in charge of his own medications and didn’t trust the employees to handle his prescriptions correctly. He would ask them what they were giving him and get frustrated when they wouldn’t explain. When he got worked up, Leavitt said, the employees would ask if he was refusing the medication.

“He was just stubborn enough. They’d say that, and he’d go, ‘Well, I guess I am,’” Leavitt said.

“He was a challenging person to have in your care. I’m not going to make any bones about it,” McIntyre said.

“That being said, it was their job to take care of him,” Leavitt added. “In my opinion, they really didn’t.”

In December, Hunt did have a scare when the employees gave him medication for anxiety and sleeping problems instead of a painkiller, according to the facility care notes. The employees wrote in the facility care notes that he did not have any reactions, but they called his doctors for “advisement.”

With the sisters’ permission, Walters, one of Woodlands’ owners, discussed Hunt’s experience in detail with the Monitor and ProPublica. He acknowledged the medication mix-up but said Woodlands’ care notes did not document Hunt’s worsening dementia or increasing complaints about back pain. He said there was no significant change in Hunt’s condition that would have alerted the employees to a possible medical emergency, up until the day he was rushed to the emergency room.

“There’s no red flag that occurs anywhere,” Walters said.

He also said the employees tried their best, despite Hunt’s temperament, to care for him.

The employees “worked very hard throughout the entirety of Mr. Hunt’s residency to help make each day the best day possible for him and showed great care, consideration and compassion towards him in the face of persistent challenging and abusive behaviors,” Walters said.

He echoed what other Maine long-term care advocates and experts said: That there are residents in residential care facilities today who would have been in nursing homes 20 years ago.

“That doesn’t mean that those people that are in a residential care facility now shouldn’t be here and should be in a nursing home,” Walters said. “In some cases, it’s just the opposite. Those people would have been in a nursing home, but they’re equally or better served in this setting.”

According to Hunt’s sisters, that winter, Hunt began complaining that his back pain was becoming markedly worse. Around supper time on a weekend night in February, Leavitt got a call from a Woodlands employee about Hunt: He had been found unresponsive on the floor of his room. He looked pale, his lips were blue and emergency responders couldn’t get him to squeeze their hand. He was rushed to a nearby hospital.

The sisters braced for the worst, fearing that Hunt had suffered a second stroke in four years. “I just thought this is going to be the end of him,” McIntyre said.

When McIntyre arrived at the hospital, she initially heard good news: Hunt’s doctors had ruled out the stroke. McIntyre said her reaction was a visible and audible sigh of relief.

But then Hunt was soon moved to the intensive care unit after his doctors found a kidney bleed — it was near a part of his back where the sisters said he had complained about dramatically worsening back pain in the weeks before he went to the ER.

Hunt’s doctors discussed surgery options for him, but the sisters feared that they wouldn’t succeed and he would end up with him on a ventilator — which they knew he wouldn’t want. They opted for comfort care instead.

That night, nurses unhooked his heart monitor and gave Hunt a pump of morphine. Leavitt remembered the stress immediately disappearing from his face. When he woke up, he was starving and asked for a cheeseburger, fries and a hot coffee. The three siblings had their best visit in months.

“You just had to wonder, was pain causing it all?” Leavitt said.

The next morning, as the sisters were walking back down the hospital hallway to visit him again, the doctor called and told them to hurry.

“We get in his room, and they said, ‘Martin, your sisters are here.’ And, within a couple of minutes, he took his last breath,” Leavitt said. “It’s like he waited for us or something.”

First image: Leavitt and McIntyre in Leavitt’s home. Second image: Leavitt holds a stone heart that was left as a tribute on Martin’s chest by the nurse when he died.

Leavitt, meanwhile, said she didn’t blame Woodlands for Hunt’s worsening dementia but held the facility responsible for not noticing the change in their brother’s dementia and pain levels that they say were obvious and for failing to take action to improve his care.

“If they’re going to allow people like my brother to be in their facility, they should be able to care for him,” Leavitt said. “That’s what our intent was: For him to be safe and be cared for when he needed help.”

Help Us Report on Assisted Living Facilities in Maine

Correction

May 22, 2023: This story originally referred imprecisely to a medication that residential care staff had incorrectly provided to Martin Hunt. He was given medication for anxiety and sleeping problems, not seizures.

This post was originally published on Articles and Investigations – ProPublica.

by Aliyya Swaby, Lucas Waldron and Ash Ngu

Major medical associations recognize that access to gender-affirming care, also known as transition-related care, is medically necessary for transgender people, whose mental and physical health may be harmed if they are barred from getting it. Yet conservative politicians across the country have moved to restrict access to gender-affirming care. Our recent investigation found that state and local governments that deny this care to their employees are spending hundreds of thousands of dollars on lawyers to defend their policies in discrimination lawsuits.

We are interested in talking to transgender individuals who have faced barriers when seeking quality gender-affirming care; we want to hear about obstacles you’ve faced in any part of the process, from struggling to find providers to limitations in insurance coverage. Documents, such as health bills or insurance denial letters, are always welcome and helpful for our investigative reporting process.

Our team may not be able to respond to everyone personally, but we will read everything you submit. We understand that sharing personal information may feel risky, and we will not publish any of it without your permission. We appreciate you sharing your story and we take your privacy seriously. We are gathering these stories for the purposes of our reporting, and will contact you if we wish to publish any part of your story.

This post was originally published on Articles and Investigations – ProPublica.

by Aliyya Swaby and Lucas Waldron

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

When a sheriff’s deputy in Georgia’s Houston County sought surgery as part of her gender transition, local officials refused to change the department’s health insurance plan to cover it, citing cost as the primary reason.

In the years that followed, the central Georgia county paid a private law firm nearly $1.2 million to fight Sgt. Anna Lange in federal court — far more than it would have cost the county to offer such coverage to all of its 1,500 health plan members, according to expert analyses. One expert estimated that including transition-related care in the health plan would add about 0.1% to the cost of all claims, which would come to roughly $10,000 per year, on average.

Since at least 1998, the county’s plan has excluded coverage for “services and supplies for a sex change,” an outdated term to refer to surgeries or medications related to gender transition. In 2016, the county’s insurance administrator recommended changing the policy to align with a new federal nondiscrimination rule. But Houston County leaders said no.

The county argued that even if the cost of expanding its insurance coverage to include transition-related health care was low on average, it could amount to much more in some years. The county also claimed that expanding the plan’s coverage would spur demands to pay for other, currently excluded benefits, such as abortion, weight loss surgery and eye surgery.

“It was a slap in the face, really, to find out how much they had spent,” said Lange, who filed a federal discrimination lawsuit against the county. “They’re treating it like a political issue, obviously, when it’s a medical issue.”

Major medical associations recognize that access to transition-related care, also known as gender-affirming care, is medically necessary for transgender people, citing evidence that prohibiting it can harm their mental and physical health. And federal judges have consistently ruled that employers cannot categorically exclude gender-affirming care from health care plans, though prior to Lange’s suit, there hadn’t been a ruling covering Georgia. The care can include long-term hormone therapy, chest and genital surgery, and other services that help transgender people align their bodies with their gender identities.

But banning gender-affirming care has become a touchstone of conservative politics. At least 25 states this year are considering or have passed bills that would ban gender-affirming care for minors. Bills in Oklahoma and Texas aim to ban insurance companies from covering transition-related health care for adults as well.

At the same time, state and local government employers are waging long legal battles against covering gender-affirming care for their employees. With recent estimates showing that 0.6% of all Americans older than 13 are transgender, these employers are spending large sums to fight coverage for a small number of people.

ProPublica obtained records showing that two states — North Carolina and Arizona — have spent more than $1 million in attorney fees on legal fights similar to the one in Houston County. Both have claimed in court filings that the decisions they made not to cover the care for employees are purely financial and not discriminatory.

But budget estimates and real-world examples show that the cost of offering coverage of gender-affirming care is negligible. When the state of North Carolina briefly covered gender-affirming care in 2017, the cost amounted to $400,000 — just 0.01% of the health plan’s $3.3 billion annual budget.

Two years later, North Carolina employees sued to get their gender-affirming care covered. The state hired several expert witnesses who expressed professional beliefs contradicting the major medical associations’ standards, including that transition care is unnecessary and even harmful. One expert, whom North Carolina paid $400 per hour, stated in court proceedings that transition care might be a “fad” or “consumer fraud,” similar to the widespread medical use of lobotomies in previous decades.

Julia McKeown, a professor at North Carolina State University and one of several plaintiffs suing North Carolina officials for denying their coverage, spent more than $14,000 out-of-pocket on gender-affirming surgery, pulling from her retirement account and personal savings. “They’re always talking about saving taxpayer money and being judicious with how we spend it,” McKeown said. “But here they are throwing money left and right to score political points, to discriminate, to target.”

Julia McKeown spent more than $14,000 out-of-pocket on gender-affirming surgery after North Carolina refused to cover her care. (Annie Tritt, special to ProPublica)

Officials in North Carolina, Arizona and Houston County, Georgia, did not respond to questions from ProPublica about the amount of money they spent or their reasons for continuing to fight the lawsuits. Dan Perdue, chair of the Houston County Board of Commissioners, referred ProPublica to the county attorney, who declined to comment beyond pointing to existing court documents.

These Places Paid Lawyers Over $1 Million to Try to Avoid Paying for Gender-Affirming Medical Care The total spent includes only direct payments to private law firms from the date the lawsuit was filed through Dec. 31, 2022. Source: Billing records obtained by ProPublica.

Compared to North Carolina and Arizona, Houston County stands out for the huge legal bill it amassed relative to its small size. North Carolina’s employee health plan covers more than 700,000 people and Arizona’s covers over 130,000 people, dwarfing Houston County’s 1,500. Yet Houston County has spent a similar amount of money on legal fees as those states in a shorter time, according to records ProPublica obtained.

In fact, Houston County’s total legal fees on the Lange case have amounted to almost three times its annual physical and mental health budget. “Is this a good use of public money? No,” said Joanna Grossman, a law professor at Southern Methodist University who focuses on sex discrimination. “It’s fair to say that this is an issue where it’s pretty clear they’re going to lose.”

After more than a decade working for the Houston County Sheriff’s Office, Lange came out as a transgender woman to her boss and colleagues in 2017. A therapist had diagnosed her with gender dysphoria, characterized by significant distress at the mismatch between her assigned and actual gender.

Sheriff Cullen Talton, who has been in office since the early 1970s, first thought Lange was joking, according to a legal deposition. When he realized Lange was serious, he told her that he didn’t “believe in” being transgender but that she would have her job as long as she kept working hard.

Lange let herself feel cautiously optimistic. But she soon found that the county’s health plan would not cover any of the surgeries needed to make her body align with her gender — the operations are on a list of procedures that the county explicitly opts out of paying for, which are known as exclusions.

After coming out as transgender, Lange found that her county’s health plan would not cover any of the medical procedures needed to treat her gender dysphoria. (Annie Tritt, special to ProPublica)

Lange’s insurance does cover the hormonal medication she takes regularly, but not the lab work she needs once or twice a year to monitor how her body is responding to it. She receives a bill for $400 each lab visit, which is hard to afford on her $58,000 salary. The bills go to debt collectors, and she pays off smaller amounts when her budget allows.

Lange was able to cobble together several thousand dollars from savings and retirement funds to pay out-of-pocket for a chest surgery in early 2018, but the next surgery she needs costs more than $25,000, well above what she can afford. She sent letters to the insurance administrator and the county asking them to remove the exclusion in 2018 and 2019. Her appeals were denied.

Source: Billing and court records obtained by ProPublica.

In early 2019, in a last-ditch effort, Lange walked into the county board of commissioners’ meeting to ask the board to remove the health plan’s exclusion, hopeful they might hear her out. She mentally prepared herself to broadcast some of her most personal struggles to an audience that seemed less than receptive, bringing her son and a friend with her for support.

As Lange nervously waited for her turn at the podium, she watched someone familiar step up right before her. One of her neighbors had come to ask the county not to agree to her request. Addressing the row of commissioners at the front of the room, he launched into his list of questions: How does Lange’s request relate to her work? Why should taxpayers be on the hook for her surgery? How does her request differ from any kind of elective cosmetic surgery that also isn’t covered by insurance?

Lange asked the Houston County Board of Commissioners to allow the health plan to cover her gender-affirming surgery in February 2019. (Houston Home Journal via Facebook)

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Lange watched, disheartened, as a commissioner reassured the neighbor that the board would not make any changes to the health plan that year. Lange would go on to speak that evening, despite believing it was a futile exercise. “You knew right then and there that no matter what I said, that it wouldn’t matter,” she said. “It’s a really helpless feeling.”

So she turned to the legal system. She worked with a team of attorneys handling a similar case — a lawsuit brought by a transgender employee against Georgia’s university system. In September of 2019, the university system agreed to a settlement that awarded the plaintiff $100,000 and provided all of its employees access to gender-affirming care. Just weeks after the settlement, Lange filed a lawsuit against the county for employment discrimination, arguing that denying her medical care subjected her to “inferior treatment.” Soon after, commissioners unanimously voted to continue excluding gender-affirming care from health coverage for yet another year.

In response to Lange’s lawsuit, the county’s lawyers said health insurance premiums had already soared and that the county wanted to prevent a flurry of requests to remove other exclusions in the plan. The county spent $57,135 — $390 per hour — on a budget expert who concluded that keeping the exclusion in place was “reasonable and consistent with general industry practices.”

The county’s expert argued that removing the exclusion could result in a “catastrophic claim,” in which a member of the county’s health plan seeks multiple surgeries in a single year that, combined, could cost hundreds of thousands of dollars. The county’s plan is self-funded, meaning that the employer — not an insurance company — is responsible for paying all enrollees’ medical costs, making it harder for the plan to absorb a high-cost claim.

Lange’s lawyers hired their own budget expert, whose estimate was in line with what other experts, government officials and academics have found. In her report, Lange’s expert wrote that, over time, the financial impact of removing the exclusion would be small, especially since few people would use the benefit. The expert also noted that the county has a separate insurance policy to cover unexpectedly large claims. She estimated that the cost of covering gender-affirming care would be “an amount so low that it would be considered immaterial.”

Without necessary treatment, transgender people are at higher risk for depression, anxiety and thoughts of suicide. Russ Toomey, a professor of family studies and human development at the University of Arizona, has helped establish that fact through his research on the mental health of transgender youth. He also has firsthand knowledge of discrimination: Toomey is suing his employer for withholding coverage for gender-affirming care.

When he was recruited for his job in 2015, he knew the university had hired other trans faculty members and believed it was committed to supporting them. In 2016, Arizona’s Department of Administration, which controls the health care plan for public employees like Toomey, chose to keep excluding gender-affirming surgery from its health plan, ignoring the advice of its insurance vendors. That same year, Arizona commissioned an internal analysis, in which a state budget expert described the cost of covering gender-affirming care as “relatively low.” A state employee was directed to delete that sentence from the analysis, according to legal documents.

In 2018, Toomey sought coverage for a hysterectomy to alleviate the distress of his gender dysphoria, and he was denied. In 2019, he filed a lawsuit against the state and its board of regents, which oversees all three of Arizona’s state universities.

Russ Toomey, a professor at the University of Arizona, is suing the state for denying coverage of a hysterectomy. (Annie Tritt, special to ProPublia)

The experience made him “see and feel very intensely” the link he’d studied between gender discrimination and mental health. Toomey regularly feels the anguish of “knowing that I have these organs inside my body that shouldn’t be there” and not being able to afford a hysterectomy. Toomey said the unfairness of Arizona’s health plan hit hard last year, when his friend and colleague, a cisgender woman, was able to obtain coverage for her hysterectomy, while he had been denied. Arizona’s employee health plan covers medically necessary hysterectomies except as part of “gender reassignment surgery.”

He said that he developed a panic disorder over the last couple of years due to the stress of the lawsuit and his inability to access care. When he heard that the university board had spent more than $415,000 to fight the case, Toomey was shocked. “That hurts in the gut to hear,” he said.

The Arizona Board of Regents argued in court filings that it should not be a defendant in the lawsuit because it has no control over the state plan — the board provides health care through a plan controlled by the state. And the state of Arizona argued that it was not legally required to remove the exclusion, a change that it said would be too expensive.

The case is still ongoing in federal court. The state, a named defendant in the case, now has a Democratic governor, Katie Hobbs, whose win last November ended 14 years of Republican control. In response to ProPublica’s request for comment, a Hobbs spokesperson declined to answer specific questions about whether the new administration would continue to defend the exclusion but emphasized the governor’s support for trans Arizonans.

“The Governor’s Office recognizes the need for the expansion of statewide benefits that are all inclusive,” Hobbs’ press secretary, Josselyn Berry, wrote in a statement.

15 States Offered a Health Plan That Didn’t Cover Gender-Affirming Care for State Employees in 2022 Note: Some states have multiple employee health plans with differing policies on coverage for gender-affirming medical care. North Carolina was ordered to remove its exclusion in 2022 by a federal judge, but the state is appealing the ruling. The exclusion was inactive as of December 2022. (Source: ProPublica review of health plans in all 50 states and D.C.)

Like Georgia’s Houston County and the state of Arizona, North Carolina has claimed that its key concern about removing the exclusion is cost. But the statements of officials suggest that’s hardly the only concern.

North Carolina state Treasurer Dale Folwell, one of the named parties in the lawsuit, has consistently referred to gender-affirming care as medically unnecessary, contradicting medical consensus. (North Carolina had briefly removed its exclusion in 2017, before Folwell took office and reinstated it.)

“The legal and medical uncertainty of this elective procedure has never been greater,” he said in a 2018 press release. “Until the court system, a legislative body or voters tell us that we ‘have to,’ ‘when to,’ and ‘how to’ spend taxpayers’ money on sex change operations, I will not make a decision that has the potential to discriminate against those who desire other currently uncovered elective procedures.”

The state also brought forward several expert witnesses who, rather than voice concerns about spending, expressed beliefs that transgender people should be prevented or discouraged from transitioning.

One of those witnesses, Paul Hruz, a pediatric endocrinologist in St. Louis who acknowledged he had no experience treating transgender patients for gender dysphoria, said in an expert report that in many cases the condition could stem from “social contagion” and that delaying care for children allows time for most of them to “grow out of the problem.” In his career and during the case, Hruz cited controversial theories, including that “cancel culture” and a “Gender Transition Industry” are preventing public debate on the merits of transition care. According to his deposition, Hruz has attended multiple events hosted by the Alliance Defending Freedom, a religious group that has pushed anti-trans legislation across the country.

In a deposition filed by the plaintiffs’ attorneys, a mother of a transgender child recalled a conversation she’d had with Hruz years ago about trans rights and her child’s challenging experience. She said Hruz told her, “Some children are born in this world to suffer and die.”

Hruz denied in his deposition that he made that statement. He declined to provide comment for this story.

Hruz’s views are so extreme that Judge Loretta Biggs limited what topics he was allowed to speak about during the case. “His conspiratorial intimations and outright accusations sound in political hyperbole and pose a clear risk of inflaming the jury and prejudicing Plaintiffs,” she wrote in a ruling last year. “It is the Federal Rules of Evidence, not some ‘Cancel Culture,’ that excludes this portion of Hruz’s testimony.”

She ordered North Carolina to remove its exclusion and allow transgender employees to access gender-affirming care. The state quickly appealed.

In 2020, as Lange anxiously watched her case inch through the courts, her legal chances suddenly seemed better than ever: The U.S. Supreme Court ruled that employment discrimination based on transgender status is illegal. Previously, courts had been divided on the issue.

Lange was driving to collect evidence for a financial fraud case she was investigating when she heard the news. She began to cry. “I had to pull over and just lost it,” she recalled. “I was just so happy.”

Still, Houston County kept fighting.

While the case dragged on, Lange was sometimes asked why she didn’t find another job that would cover her health care, but she felt she couldn’t afford to lose her pension benefits. She also loves her work investigating criminal cases, helping victims of violent attacks and fraud. She wondered if any other law enforcement agency nearby would hire a transgender woman, let alone one who was suing her employer. She was in her late 40s at that point and felt too old for a major career change.

“It’s been a lonely process and it’s just a grind,” Lange said. “It just tears at you each day that you go by. You’re constantly reminded that you’re still not who you’re supposed to be.”

Two more years would pass before Lange won her case in 2022, with the federal judge citing the Supreme Court decision as a major reason for ruling in her favor. “The Exclusion plainly discriminates because of transgender status,” Judge Marc Treadwell wrote in his order. A jury soon after awarded her $60,000 for “emotional pain and mental anguish.” Lange celebrated, immediately calling friends who had been there for her through years of heartache, then posting the news on social media. She scheduled an appointment with a surgeon in New York.

But Lange’s joy was cut short when the county appealed the ruling, a move that would cost it tens of thousands of additional dollars; it also meant that Lange wouldn’t get any of the money she was awarded until the process was complete. The county asked the court to let it keep its exclusion in place as the appeal moved forward, arguing again that the cost of covering Lange’s surgery could be exorbitant. In its argument, it referenced a New York Times article, “How Ben Got His Penis,” about a costly surgery not for a transgender woman but for a transgender man. That surgery is much more complicated than the one Lange sought. While the judge weighed the arguments, Lange had to postpone her surgery yet again.

Lange called her friend Shannon West when she found out the county was appealing. “She was really upset. She was crying,” West recalled. “It’s like climbing a stairwell and you get to the top. You’re about to go through the door and then somebody shuts the door and you get hit back down.”

Houston County paid a private law firm almost $85,000 for the month of September 2022, several months after a federal judge ruled that the county’s health plan was discriminatory. The county is appealing the ruling. (Obtained by ProPublica)

This month, the door reopened: Treadwell ordered Houston County to cover transition care for its employees. He admonished the county for misrepresenting the cost of Lange’s surgery in its most recent legal argument, calling the decision “irresponsible.” He stressed that no connection existed, “anatomically or otherwise,” between the surgery mentioned in the New York Times article and the one Lange sought. The county, he added, had already received a specific, much lower estimate for the cost of Lange’s requested surgery.

Treadwell also said the county was “factually wrong” in suggesting that other transgender people would seek out even more expensive care. “It is undisputed that the Health Plan’s third-party administrator generally ‘concluded that utilization of gender-confirming care was low,’” he wrote. “In the four years this litigation has been pending, no other Health Plan members have sought gender confirmation surgery, or even identified as transgender.”

Lange heard about the ruling from her lawyer and struggled to feel excited. After the roller coaster of the previous several years, she had tamped down her optimism.

In many ways, Lange’s life has been on hold. She feels uncomfortable in her body and self-conscious about participating in activities she used to love: swimming, refereeing soccer, anything that would expose her body to heightened scrutiny. She’s divorced but has been hesitant to date. She goes to work, she comes home, on the weekends she plays tennis. She knows the surgery won’t restore the time she has lost.

Now, for the third time, she is starting the process of scheduling her surgery, hoping that the courts won’t yank the opportunity away again. She’s reluctant to book a hotel stay, already anticipating having to cancel it. “Until the case is done-done and over with, that’s when I can have some relief,” she said.

Have You Faced Barriers to Getting Gender-Affirming Care? Help Us Investigate.

This post was originally published on Articles and Investigations – ProPublica.

by Jessica Miller, The Salt Lake Tribune

This story discusses sexual assault.

This article was produced for ProPublica’s Local Reporting Network in partnership with The Salt Lake Tribune. Sign up for Dispatches to get stories like this one as soon as they are published.

At 19 years old and about to be married, Stephanie Mateer went to an OB-GYN within walking distance of her student housing near Brigham Young University in Provo, Utah.

She wanted to start using birth control, and she was looking for guidance about having sex for the first time on her 2008 wedding night.

Mateer was shocked, she said, when Dr. David Broadbent reached under her gown to grab and squeeze her breasts, started a vaginal exam without warning, then followed it with an extremely painful examination of her rectum.

She felt disgusted and violated, but doubt also creeped in. She told herself she must have misinterpreted his actions, or that she should have known that he would do a rectal exam. Raised as a member of The Church of Jesus Christ of Latter-day Saints, she said she was taught to defer to men in leadership.

“I viewed him as being a man in authority,” Mateer said. “He’s a doctor.”

It was years, Mateer said, before she learned that her experience was in a sharp contrast to the conduct called for in professional standards, including that doctors use only their fingertips during a breast exam and communicate clearly what they are doing in advance, to gain the consent of their patient. Eventually, she gave her experience another name: sexual assault.

Utah judges, however, have called it health care.

And that legal distinction means Utahns like Mateer who decide to sue a health care provider for alleged sexual abuse are treated more harshly by the court system than plaintiffs who say they were harmed in other settings.

The chance to go to civil court for damages is an important option for survivors, experts say. While a criminal conviction can provide a sense of justice, winning a lawsuit can help victims pay for the therapy and additional support they need to heal after trauma.

Mateer laid out her allegations in a lawsuit that she and 93 other women filed against Broadbent last year. But they quickly learned they would be treated differently than other sexual assault survivors.

Filing their case, which alleged the Utah County doctor sexually assaulted them over the span of his 47-year career, was an empowering moment, Mateer said. But a judge threw out the lawsuit without even considering the merits, determining that because their alleged assailant is a doctor, the case must be governed by medical malpractice rules rather than those that apply to cases of sexual assault.

Under Utah’s rules of medical malpractice, claims made by victims who allege a health care worker sexually assaulted them are literally worth less than lawsuits brought by someone who was assaulted in other settings — even if a jury rules in their favor, a judge is required to limit how much money they receive. And they must meet a shorter filing deadline.

“It’s just crazy that a doctor can sexually assault women and then be protected by the white coat,” Mateer said. “It’s just a really scary precedent to be calling sexual assault ‘health care.’”

Mateer in 2008, the year she first saw Dr. David Broadbent, an OB-GYN, in advance of her wedding night (Courtesy of Stephanie Mateer)

Because of the judge’s ruling that leaves them with a shorter window in which to file, some of Broadbent’s accusers stand to lose their chance to sue. Others were already past that deadline but had hoped to take advantage of an exception that allows a plaintiff to sue if they can prove that the person who harmed them had covered up the wrongdoing and if they discovered they had been hurt within the previous year.

As a group, the women are appealing the ruling to the Utah Supreme Court, which has agreed to hear the case. This decision will set a precedent for future sexual assault victims in Utah.

Broadbent’s attorney, Chris Nelson, declined an interview request but wrote in an email: “We believe that the allegations against Dr. Broadbent are without merit and will present our case in court. Given that this is an active legal matter, we will not be sharing any details outside the courtroom.”

States have varying legal definitions of medical malpractice, but it’s generally described as treatment that falls short of accepted standards of care. That includes mistakes, like a surgeon leaving a piece of gauze inside a patient.

Utah is among the states with the broadest definition of medical malpractice, covering any acts “arising” out of health care. The Utah Supreme Court has ruled that a teenage boy was receiving health care when he was allowed to climb a steep, snow-dusted rock outcrop as part of wilderness therapy. When he broke his leg, he could only sue for medical malpractice, so the case faced shorter filing deadlines and lower monetary caps. Similarly, the court has ruled that a boy harmed by another child while in foster care was also bound by medical malpractice law.

Despite these state Supreme Court rulings, Utah legislators have so far not moved to narrow the wording of the malpractice act.

The lawsuit against Broadbent — and the questions it raises about the broadness of Utah’s medical malpractice laws — comes during a national reckoning with how sexual assault survivors are treated by the law. Legislators in several states have been rewriting laws to give sexual assault victims more time to sue their attackers, in response to the growing cultural understanding of the impact of trauma and the barriers to reporting. Even in Utah, those who were sexually abused as children now have no deadline to file suits against their abusers.

That isn’t true for sexual abuse in a medical setting, where cases must be filed within two years of the assault.

These higher hurdles should not exist in Utah, said state Sen. Mike McKell, a Utah County Republican who works as a personal injury attorney. He is trying to change state law to ensure that sexual assault lawsuits do not fall under Utah’s Health Care Malpractice Act, a law designed to cover negligence and poor care, not necessarily deliberate actions like an assault.

Utah Sen. Mike McKell introduced a bill that would clarify that sexual assault claims should not be considered medical malpractice, removing legal obstacles for survivors who have been assaulted by health care workers. (Leah Hogsten/The Salt Lake Tribune)

“Sexual assault, to me, is not medical care. Period,” he said. “It’s sad that we need to clarify that sexual assault is not medical care. But trying to tie sexual assault to a medical malpractice [filing deadline] — it’s just wrong.”

“Your Husband Is a Lucky Man”

Mateer had gone to Broadbent in 2008 for a premarital exam, a uniquely Utah visit often scheduled by young women who are members of The Church of Jesus Christ of Latter-day Saints.

Leaders of the faith, which is predominant in Utah, focus on chastity when speaking to young, unmarried people about sex, and public schools have typically focused on abstinence-based sex education. So for some, these visits are the first place they learn about sexual health.

Young women who get premarital exams are typically given a birth control prescription, but the appointments can also include care that’s less common for healthy women in other states — like doctors giving them vaginal dilators to stretch their tissue before their wedding night.

That’s what Mateer was expecting when she visited Broadbent’s office. The OB-GYN had been practicing for decades in his Provo clinic nestled between student housing apartments across the street from Brigham Young University, which is owned by The Church of Jesus Christ of Latter-day Saints.

The Provo, Utah, office building where Broadbent once practiced (Leah Hogsten/The Salt Lake Tribune)

So Mateer was “just totally taken aback,” she said, by the painful examination and by Broadbent snapping off his gloves after the exam and saying, “Your husband is a lucky man.”

She repeated that remark in her legal filing, along with the doctor’s advice for her: If she bled during intercourse, “just do what the Boy Scouts do and apply pressure.”

“The whole thing was like I’m some object for my husband to enjoy and let him do whatever he wants,” Mateer said. “It was just very violating and not a great way to start my sexual relationship with my new husband, with these ideas in mind.”

Mateer thought back to that visit over the years, particularly when she went to other OB-GYNs for health care. Her subsequent doctors, she said, never performed a rectal exam and always explained to her what they were doing and how it would feel, and asked for her consent.

She thought about Broadbent again in 2017, as the #MeToo movement gained momentum, and looked him up online. Mateer found reviews from other women who described Broadbent doing rough examinations without warning that left them feeling the same way she had years before.

Then in December 2021, she spoke out on “Mormon Stories,” a podcast where people who have left or have questioned their Latter-day Saint faith share their life stories. In the episode, she described the painful way he examined her, how it left her feeling traumatized and her discovery of the reviews that echoed her experience.

“He’s on University Avenue, in Provo, giving these exams to who knows how many naive Mormon 18-year-old, 19-year-old girls who are getting married. … They are naive and they don’t know what to expect,” she said on the podcast. “His name is Dr. David Broadbent.”

After the podcast aired, Mateer was flooded with messages from women who heard the episode and reached out to tell her that Broadbent had harmed them, too.

Mateer and three other women decided to sue the OB-GYN, and in the following weeks and months, 90 additional women joined the lawsuit they filed in Provo. Many of the women allege Broadbent inappropriately touched their breasts, vaginas and rectums, hurting them, without warning or explanation. Some said he used his bare hand — instead of using a speculum or gloves — during exams. One alleged that she saw he had an erection while he was touching her.

Broadbent’s actions were not medically necessary, the women allege, and were instead “performed for no other reason than his own sexual gratification.”

The lawsuit also named as defendants two hospitals where Broadbent had delivered babies and where some of the women allege they were assaulted. The suit accused hospital administrators of knowing about Broadbent’s inappropriate behavior and doing nothing about it.

After he was sued, the OB-GYN quickly lost his privileges at the hospitals where he worked. Broadbent, now 75, has also voluntarily put his medical license in Utah on hold while police investigate 29 reports of sexual assault made against him.

Prosecutors are still considering whether to criminally prosecute Broadbent. Provo police forwarded more than a dozen reports to the Utah County attorney’s office in November, which are still being reviewed by a local prosecutor.

A spokesperson for Intermountain Health, the nonprofit health system that owns Utah Valley Hospital, where some of the women in the suit were treated, did not respond to specific questions. The spokesperson emphasized in an email that Broadbent was an “independent physician” who was not employed by Utah Valley Hospital, adding that most of the alleged incidents took place at Broadbent’s medical office.

A representative for MountainStar Healthcare, another hospital chain named as a defendant, denied knowledge of any allegations of inappropriate conduct reported to its hospital and also emphasized that Broadbent worked independently, not as an employee.

“Our position since this lawsuit was filed has been that we were inappropriately named in this suit,” said Brittany Glas, the communications director for MountainStar.

Debating Whether Sexual Abuse Is Health Care

For the women who sued Broadbent, their case boiled down to a key question: Were the sexual assaults they say they experienced part of their health care? There was a lot hanging on the answer.

If their case was considered medical malpractice, they would be limited in how much money they could receive in damages for their pain and suffering. If a jury awarded them millions of dollars, a judge would be required by law to cut that down to $450,000. There’s no cap on these monetary awards for victims sexually assaulted in other settings.

They would also be required to go before a panel, which includes a doctor, a lawyer and a community member, that decides whether their claims have merit. This step, aimed at resolving disputes out of court, does not block anyone from suing afterward. But it does add cost and delay, and for sexual assault victims who’ve gone through this step, it has been another time they were required to describe their experiences and hope they were believed.

The shorter, two-year filing deadline for medical malpractice cases can also be a particular challenge for those who have been sexually abused because research shows that it’s common to delay reporting such assaults.

Nationwide, these kinds of malpractice reforms were adopted in the 1970s amid concerns — largely driven by insurance companies — that the cost of health care was rising because of frivolous lawsuits and “runaway juries” doling out multimillion-dollar payouts.

Restricting the size of malpractice awards and imposing other limits, many argued, were effective ways to balance compensating injured patients with protecting everyone’s access to health care.

State laws are generally silent on whether sexual assault lawsuits should be covered by malpractice laws, leaving courts to grapple with that question and leading to different conclusions across the country. The Tribune and ProPublica identified at least six cases in which state appellate judges sharply distinguished between assault and health care in considering whether malpractice laws should apply to sexual assault-related cases.

An appellate court in Wisconsin, for example, ruled in 1993 that a physician having an erection and groping a patient was a purposeful harm, not medical malpractice.

Florida’s law is similar to Utah’s, defining allegations “arising” out of medical care as malpractice. While an earlier ruling did treat sexual assault in a health care setting as medical malpractice, appellate rulings in the last decade have moved away from that interpretation. In 2005, an appellate court affirmed a lower-court ruling that when a dentist “stopped providing dental treatment to the victim and began sexually assaulting her, his professional services ended.”

Similarly, a federal judge in Iowa in 1995 weighed in on the meaning of “arising” out of health care: “Rape is not patient care activity,” he wrote.

But Utah’s malpractice law is so broad that judges have been interpreting it as covering any act performed by a health care provider during medical care. The law was passed in 1976 and is popular with doctors and other health care providers, who have lobbied to keep it in place — and who use it to get lawsuits dismissed.

Broadbent’s name has been removed from the directory outside his former office suite. (Leah Hogsten/The Salt Lake Tribune)

One precedent-setting case in Utah shows the law’s power to safeguard health care providers and was an important test of how Utah defines medical malpractice. Jacob Scott sued WinGate Wilderness Therapy after the teen broke his leg in 2015 when a hiking guide from the center allowed him to climb up and down a steep outcrop in Utah’s red rock desert.

His parents are both lawyers, and after they found that Utah had a four-year deadline for filing a personal injury lawsuit, court records said, they decided to prioritize “getting Jacob better” for the first two years after the accident. But when Scott’s suit was filed, WinGate argued it was too late — based on the shorter, two-year deadline for medical malpractice claims.

Scott’s attorneys scoffed. “Interacting with nature,” his attorneys argued, “is not health care even under the broadest interpretation of … the Utah Health Care Malpractice Act.”

A judge disagreed and threw out Scott’s case. The Utah Supreme Court unanimously upheld that ruling in 2021.

“We agree with Wingate,” the justices wrote, “that it was acting as a ‘health care provider’ and providing ‘health care’ when Jacob was hiking and rock climbing.”

Last summer, the women who had sued Broadbent and the two hospitals watched online as lawyers debated whether the abuse they allegedly suffered was health care.

At the hearing, attorneys for Broadbent and the hospitals argued that the women should have pursued a medical malpractice case, which required them to first notify Broadbent and the hospitals that they wanted to sue. They also argued to Judge Robert Lunnen that the case couldn’t move forward because the women hadn’t gone before a pre-litigation panel.

Attorneys for Broadbent and the hospitals argued, one after the other, that the painful and traumatic exams the women described arose out of health care treatments.

“Accepting the allegations of the complaint as true — as we must for purposes of this proceeding — we have to assume that [Broadbent] did something that was medically unnecessary, medically inappropriate,” argued David Jordan, a lawyer for Intermountain Health.

“But it doesn’t change the fact that it’s an act performed to a patient, during the patient’s treatment,” he said. “Because that’s what the patient is doing in the doctor’s office. They’re there for treatment.”

The attorney team for the women pushed back. Terry Rooney argued that if Broadbent’s actions fell under medical malpractice laws, many women would be knocked out of the case because of the age of their claims, and those who remained would be limited in the amount of money in damages they could receive.

“That’s really what this is about,” he argued. “And so it’s troubling — quite frankly it’s shocking to me — that we’re debating heavily the question of whether sexual abuse is health care.”

The judge mulled the issue for months. Lunnen wrote in a September ruling that if the allegations were true, Broadbent’s treatment of his patients was “insensitive, disrespectful and degrading.”

But Utah law is clear, he said. Malpractice law covers any act or treatment performed by any health care provider during the patient’s medical care. The women had all been seeking health care, Lunnen wrote, and Broadbent was providing that when the alleged assaults happened.

Their lawsuit was dismissed.

“I Felt Defeated”

Brooke, another plaintiff who alleges Broadbent groped her, remembers feeling sick on the June day she watched the attorneys arguing. She asked to be identified by only her first name for this story.

She alleges Broadbent violated her in December 2008 while she was hospitalized after experiencing complications with her first pregnancy.

Brooke, one of the women suing Broadbent, says the OB-GYN groped her when she was in the hospital after having complications with her first pregnancy. (Leah Hogsten/The Salt Lake Tribune)

The nearest hospital to her rural town didn’t have a special unit to take care of premature babies, and her doctors feared she might need to deliver her son six weeks early. So Brooke had been rushed by ambulance over a mountain pass in a snowstorm to Utah Valley Hospital.

Brooke and her husband were terrified, she said, when they arrived at the Provo hospital. Broadbent happened to be the doctor on call. With Brooke’s husband and brother-in-law in the room, Broadbent examined her late that evening, she said, listening to her chest with a stethoscope.

The doctor then suddenly grabbed her breasts, she recalled — his movements causing her hospital gown to fall to expose her chest. She recounted this experience in her lawsuit, saying it was nothing like the breast exams she has had since.

“It was really traumatizing,” she said. “I was mortified. My husband and brother-in-law — we just didn’t say anything about it because it was so uncomfortable.”

Brooke voiced concerns to the nurse manager, and she was assigned a new doctor.

She gave birth to a healthy baby a little more than a month later, at the hospital near her home.

Hearing the judge’s ruling 14 years later, Brooke felt the decision revealed how Utah’s laws are broken.

“I was frustrated,” she said, “and I felt defeated. … I thought justice is not on our side with this.”

If the Utah Supreme Court rules that these alleged sexual assaults should legally be considered health care, the women will likely refile their claims as a medical malpractice lawsuit, said their attorney, Adam Sorensen. But it would be a challenge to keep all 94 women in the case, he said, due to the shorter filing window. Only two women in the lawsuit allege that they were harmed within the last two years.

The legal team for the women would have to convince a judge that their claims should still be allowed because they only recently discovered they were harmed. But based on previous rulings, Sorensen believes the women will have a better chance to win that argument if the civil suit remained a sexual assault case.

Regardless of what happens in their legal case, the decision by Brooke and the other women to come forward could help change state law for victims who come after them.

Last week, McKell, the state senator, introduced legislation to clarify that civil lawsuits alleging sexual assault by a health care worker do not fall under Utah’s Health Care Malpractice Act.

“I don’t think it’s a close call. Sexual assault is not medical care,” he said. “I know we’ve got some bizarre rulings that have come down through our courts in Utah.”

Both an association of Utah trial lawyers and the Utah Medical Association, which lobbies on behalf of the state’s physicians, support this reform.

“We support the fact that sexual assault should not be part of health care medical malpractice,” said Michelle McOmber, the CEO for the Utah Medical Association. “Sexual assault should be sexual assault, regardless of where it happens or who’s doing it. Sexual assault should be in that category, which is separate from actual health care. Because it’s not health care.”

MountainStar doesn’t have a position on the bill, Glas said. “If the laws were to change via new legislation and/or interpretation by the courts, we would abide by and comply with those new laws.”

But lawmakers are running out of time. With only a week and a half left in Utah’s legislative session, state senate and house leaders have so far prioritized passing new laws banning gender-affirming health care for transgender youths and creating a controversial school voucher program that will provide taxpayer funds for students to attend private school.

Utah lawmakers were also expected to consider a dramatic change for other sexual assault victims: a bill that would remove filing deadlines for civil lawsuits brought by people abused as adults. But that bill stalled before it could even be debated.

Brooke had been eager to share her story, she said, in hopes it would help the first four women who’d come forward bolster their lawsuit against Broadbent. She later joined the case as a plaintiff. She read in their lawsuit about one woman who complained about him to the same hospital seven years before she did, and about another woman who said Broadbent similarly molested her two days after Brooke had expressed her own concern.

“That bothered me so much,” she said. “It didn’t have to happen to all these women.”

Brooke doubts she’ll get vindication in a courtroom. Justice for her, she suspects, won’t come in the form of a legal ruling or a settlement against the doctor she says hurt her years ago.

Instead, she said, “maybe justice looks like changing the laws for future women.”

Help ProPublica and The Salt Lake Tribune Investigate Sexual Assault in Utah

If you need to report or discuss a sexual assault in Utah, you can call the Rape and Sexual Assault Crisis Line at 801-736-4356. Those who live outside of Utah can reach the National Sexual Assault Hotline at 800-656-4673.

Mollie Simon contributed research.

This post was originally published on Articles and Investigations – ProPublica.