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Medicare Records Reveal Troubling Trail of Surgeries: ATTN Fusion Patients 
Reply With QuotePORTLAND, Ore.—Dr. Vishal James Makker had already operated on Ronald Johnson's spine six times in less than two years, but he had some grim news for the former machine-tool operator: X-rays showed Mr. Johnson needed a seventh surgery.
Mr. Johnson, 62 years old, says he had felt progressively worse after each operation. He told the doctor he was done with surgeries. Dr. Makker took a second look at the X-rays and changed his tune, Mr. Johnson recalls. "Actually, you're going to be all right," he says Dr. Makker told him, adding that he had been looking at the films wrong.
At that moment, Mr. Johnson became the latest in a string of patients to grow suspicious about multiple surgeries performed on them by Dr. Makker, a handsome, 41-year-old neurosurgeon with a charming bedside manner. Mr. Johnson sued Dr. Makker for malpractice in August 2009, complaining that he performed "unnecessary surgeries," and reached a confidential settlement with him last month.
A Medicare database analyzed by The Wall Street Journal reveals that Dr. Makker has had an unusual propensity for performing such multiple surgeries on the spine. The data show that in 2008 and 2009, Dr. Makker performed spinal fusions on 61 Medicare patients. In 16 of those cases, he performed a total of 24 additional fusions. That gave him an overall rate of 39 additional fusions per 100 initial fusions, the highest rate in the nation among surgeons who performed spinal fusions on 20 or more Medicare patients during those two years.
For the past year, the Journal has been mining Medicare's claims databases to expose how some doctors potentially defraud the taxpayer-funded health program for the elderly and disabled and game its reimbursement system. The databases contain a computerized record of every bill submitted to, and paid out by, Medicare.
Analysis of the data suggests that it also could be used as a tool to help screen for potentially bad or negligent doctors by identifying suspicious patterns of care.
Dr. Makker declined to comment on the case involving Mr. Johnson, citing a confidentiality agreement in the legal settlement. But in a series of emails and text messages, he said all the spinal surgeries he performed were medically necessary.
"I NEVER try to persuade patients to have surgery," he wrote. "I always leave it up to the patient and family." He said his many patients wouldn't be returning to see him time and again if they weren't satisfied with his care. He cited a consumer website about doctors called vitals.com, which gives him a maximum four-star rating. His page on the site features seven glowing comments from patients.
Secrets of the System
Soaring Medicare costs threaten to overwhelm the federal budget, yet American taxpayers are blocked from seeing exactly where their money goes. Under a three-decade-old court order, Medicare can't publish the billings of individual physicians who participate in the program. In this series, The Wall Street Journal explores Medicare's vast databases and shows how they can be used to expose potential fraud and waste.
Dr. Makker attributed his high rate of multiple fusions, in part, to referrals of difficult cases from other Portland-area spine surgeons who don't accept Medicare, and to failures of spinal implants from a supplier he has stopped doing business with.
In April 2006, the Oregon Medical Board issued a "complaint & notice of proposed disciplinary action" alleging that Dr. Makker performed "medically unnecessary" spinal fusions on several patients without obtaining their prior consent; didn't provide the patients with adequate follow-up care; and billed for some procedures he didn't do. Without admitting or denying wrongdoing, Dr. Makker agreed to complete a remedial training program and a billing course.
In less than nine years of practice, Dr. Makker has been sued by eight patients alleging medical malpractice, court records show, compared with an average for neurosurgeons nationwide of about one suit every two years, according to medical malpractice insurer The Doctors Company.
Dr. Makker says he hasn't been sued any more frequently than the average neurosurgeon, and that he has never been formally disciplined by the state's medical board. He says the board's corrective action order against him is "a less serious order and has been terminated."
Charles Rosen, a spine surgeon at the University of California, Irvine School of Medicine, and president of the Association for Medical Ethics, says: "When you get to numbers like six and seven surgeries on someone's spine in a short period of time, that starts to be suspicious." The action against Dr. Makker by the Oregon medical board, he adds, "means it had to intervene to protect the public health. That's serious."
Controversial doctors are as old as medicine itself. Their identities are often known to their peers and even to the government, which compiles a confidential database of physician sanctions. But patients rarely know[/B]. Consumer-advocacy group Public Citizen reported this month that state medical boards didn't discipline 55% of doctors who either lost their hospital privileges or had them restricted between 1990 and 2009. Although some state medical boards have begun publicly releasing more information about problem doctors, much remains unavailable to the general public.
Information in Medicare databases about individual doctors is kept strictly confidential and was obtained by the Journal only under significant restrictions. In January, the paper's publisher, Dow Jones & Co., filed legal papers to try to overturn a three-decade-old court ruling that bars the public release of this information. The case is pending.
The American Medical Association opposes the release of any Medicare data that identifies individual doctors. "The release of Medicare claims data in the media or on the Internet, without the complete medical record and due process, would often be misleading, inaccurate and disruptive to patients' longstanding relationships with their physicians," said AMA President Cecil B. Wilson. "Medicare claims data alone cannot identify quality care."
The Journal used the data to pinpoint unusual patterns of care by some doctors. Restrictions imposed by the Department of Health and Human Services prohibit naming the doctors unless they agree to discuss their Medicare work, as Dr. Makker did.
For instance, the data reveal that a foreign-born surgeon currently operating in Texas has an unusual number of patient deaths associated with an elective procedure. The surgeon was excluded from both the Medicare and Medicaid programs for nine years in the 1990s after the Office of Inspector General of the Department of Health concluded that he had performed unnecessary and inappropriate procedures on seven patients while practicing in New Jersey. In two of the cases, the surgeon inappropriately operated on patients who were nearly dead, and he contributed to a third patient's death by misdiagnosing his condition, according to a letter the inspector general sent him when he was ousted from Medicare. He was temporarily barred from practicing in New Jersey.
The surgeon relocated to southern Texas in 2005. He currently operates at five hospitals there. In 2008 and 2009, nine of 49 Medicare patients on whom he performed an elective surgery died, three of them within days of the operation, according to the Medicare data. That equates to 18.4 deaths per 100 of the procedures, compared with a national average of 2.4 per 100 for the procedure.
Back pain is notoriously difficult to treat. Spinal fusions like the ones performed by Dr. Makker are expensive and controversial. They involve fusing two or more vertebrae, often by inserting thousands of dollars of hardware. Some spinal surgeons contend the procedure is used too much, to treat conditions for which it isn't effective, because it can be lucrative for surgeons and medical-device makers. While doing a second fusion surgery isn't uncommon, these surgeons say, conducting multiple fusions on the same patient in a short period of time, except in cases of a spinal infection or cancer, isn't good practice.
When the Medicare database was searched for surgeons who performed multiple spinal fusions on numerous patients, Dr. Makker's name popped up. (Data about Dr. Makker's non-Medicare cases, which represent a greater share of his practice, couldn't be obtained.)
Dr. Makker said the "main reason that I have had so many repeat surgeries" on patients is "honestly, I am the dumping ground for Medicare patients, especially the difficult ones that everyone knows are going to be difficult to fix with one or even two surgeries." He added that in some cases, patients required separate surgeries to repair different parts of their spines.
Dr. James Makker, who drives a sporty black Mercedes with "J MAK" vanity plates, attended medical school at the University of Texas Health Science Center in San Antonio and did his neurosurgery residency at Rhode Island Hospital in Providence. When he completed his training in 2002, he moved to Portland.
Dr. Makker quickly built a busy surgical practice. By July 2005, his net worth was $8.7 million, according to a document filed in court when he and his wife divorced in 2008. Dr. Makker estimated in a legal deposition in a separate proceeding that he performs between 300 and 500 spinal surgeries a year.
The Medicare data show that Dr. Makker performed seven separate spinal fusions on one patient in less than two years. Dr. Makker said the patient, who wasn't identified in the data, was "an extremely complicated and difficult" case, compounded by several device failures and by the fact that the patient was a heavy smoker, which he said impaired healing.
Five more Medicare patients had three separate spinal fusions performed by Dr. Makker, the data show.
Leo Hamilton, too, had his spine operated on by Dr. Makker seven times. Mr. Hamilton mentioned the surgeries in a lawsuit unrelated to his medical care—a suit against Gresham, a small city east of Portland, claiming that police officers injured his neck when they arrested him following a shooting in 2005.
Dr. Makker had operated on Mr. Hamilton's spine three times prior to the incident, and he did four more operations afterward. In a videotaped deposition for the lawsuit, Dr. Makker acknowledged that the seven surgeries, for which he personally billed about $175,000, did nothing to improve Mr. Hamilton's condition.
Dr. Makker faced his first malpractice suit in 2005. The plaintiff, an elderly Catholic priest named Edmond Bliven, was operated on in 2004 after injuring his back in a fall. Rev. Bliven alleged in the lawsuit that Dr. Makker missed one of his fractures during the surgery and then ignored his phone calls when his condition deteriorated. Rev. Bliven's lawyer says his client spent the next two years in a wheelchair before gradually recovering his ability to walk.
Records from the Oregon Medical Board show that Dr. Makker settled the case for $300,000. All told, Dr. Makker has settled four cases for a total of more than $1.2 million. He said he cannot comment about the settled cases because of confidentiality agreements. He prevailed at trial in a fifth case, and a sixth case was dropped by the plaintiff. Two more suits were filed recently by female patients and are pending. One of the women said she was operated on by Dr. Makker five times in less than 13 months, and the other said she had three operations in less than five months.
Dawn Johnson alleged in a 2009 suit that Dr. Makker operated on the wrong disk in her spine, then failed to adequately remove the correct disk in a second surgery. Ms. Johnson said she suffered numbness in her right leg and left foot and urinary incontinence, and had to have a third surgery, with a different doctor, to correct what she said were Dr. Makker's mistakes. Dr. Makker recently settled that case for $500,000.
Cathi Crandall, a 47-year-old photographer, said Dr. Makker could be very persuasive about having additional surgery. Ms. Crandall, who has not sued Dr. Makker, had three spinal surgeries with him in less than 18 months. She says she decided to halt treatment with him when he tried to persuade her to have a fourth. She likened him to "an Academy Award winning actor," adding: "It's as if he's charming you to go on a date, except the date is going to involve a surgery."
Mr. Johnson, the machine-tool operator, says he first consulted Dr. Makker in June 2006 after injuring his back lifting a five-gallon bucket at work. "At first, he makes everything sound so promising. He's pretty convincing," he says.
Mr. Johnson says that after six surgeries, he suffers from short-term memory loss that he blames on anesthesia, and that he can no longer raise the front of his left foot, causing him to fall frequently.
Dr. Makker indicated that he settled the case for $130,000, which he says is less than what it would have cost him to defend himself at trial.
Several years ago, the Federal Bureau of Investigation began asking questions about Dr. Makker, according to two people interviewed by FBI agents. Dr. Makker says the FBI agents were part of an investigation related to billing issues by the U.S. attorney in Portland. He says his criminal defense attorney, Stephen Houze, was recently notified by the U.S. attorney in writing that the investigation had been abandoned for lack of evidence. The FBI declined to comment.
Over about three years, from early 2008 through early this year, he billed Medicare more than $5.4 million for all his work, but was paid only $597,510, for a payment rate of 11%, according to a person familiar with his billings. An analysis of a 5% sample of the Medicare billing of 3,247 spine surgeons in 2008 shows the average surgeon was paid 21% of the sums submitted. Law-enforcement officials who specialize in Medicare fraud say lower rates of payment can be red flags for fraud.
Dr. Makker said the difference between what he billed and what he was paid merely reflected the program's low reimbursement rates. "I have NEVER had one surgery, office visit, or any patient service rendered denied payment by Medicare," he said in an email.
Dr. Makker's billing led to disputes with two private health insurers. In a deposition in one of the malpractice suits, he acknowledged having to repay $150,000 he collected from the Providence Health Plan, the health-insurance arm of the Portland nonprofit hospital system Providence Health & Services. Dr. Makker is no longer part of the Providence Health Plan's network of doctors, but is allowed to continue to work out of an office at one of Providence's hospitals and to perform surgery there.
Another local insurer, Healthcare Resources NW, formerly known as UHN, also removed Dr. Makker from its physician network and asked him to repay some money he had collected, says one person familiar with the matter.
Dr. Makker declined to comment, citing confidentiality agreements reached with both health plans, but said he is still "allowed to see" patients with Providence Health Plan. A Providence spokesman declined to comment on Dr. Makker but explained that patients can choose to see doctors who aren't part of its network if they are willing to "pay a higher out-of-plan rate." A Healthcare Resources spokesman declined to comment, other than to acknowledge that Dr. Makker used to be in the health plan's physician network and isn't anymore.
In recent years, Dr. Makker appears to have been under some financial strain. In September 2008, he borrowed $3.75 million from KeyBank. He said he used part of the loan for his practice and for investments in a surgery center and three MRI centers, but also "lost some money in the stock market and in real estate investments." Court records show that Dr. Makker defaulted on the loan on Dec. 1, 2009.
Around that time, a judge in his divorce case ordered him to pay his ex-wife more than $1 million in accordance with a prenuptial agreement. KeyBank and Darlene Makker battled in court to obtain priority liens on Dr. Makker's Fidelity brokerage account. Ms. Makker had his earnings garnisheed.
Late last year, four neurosurgeons who covered for one another during off hours asked Dr. Makker to leave their call group. Two people familiar with the matter say the doctors tired of treating frequent complications of Dr. Makker's patients.
Oregon Medical Board's complaint and corrective action order
Julie Ann Bailey v. V. James Makker 3/23/2011 (pending)
Glenda Monroe v. V. James Makker 3/18/2011 (pending)
Ronald Johnson v. V. James Makker 1/25/2011 (Case settled for $130,000)
Dawn and Shane Johnson v. V. James Makker 1/15/2011 (Case settled for $500,000)
Marsha Johnson v. James Makker 4/6/2010 (Dr. Makker prevailed when the case went to trial.)
Jeriann Roberts v. V. James Makker 4/9/2009 (Case abandoned by plaintiff)
Jeanette Perley v. V. James Makker 9/21/2007 (Case settled for $275,000)
Rev. Edmond Bliven v. V. James Makker 10/11/2006 (Case settled for $300,000)
—Mark Schoofs and James Oberman contributed to this article.
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