The Doctor's Dilemma

John Marian pointed the finger. His peers cut it off

Michael Posner February 6 1978

The Doctor's Dilemma

John Marian pointed the finger. His peers cut it off

Michael Posner February 6 1978

The Doctor's Dilemma


John Marian pointed the finger. His peers cut it off

Michael Posner

These are the plain facts. About seventhirty on the morning of June 7, 1973, Albert Fleetwood Kee was wheeled into Operating Room One of Saskatoon City Hospital for surgery. His condition had been diagnosed as a recurrent popliteal aneurysm of the right leg—a ballooned artery— and because of his age, 66, and a previous heart attack, he had been labeled “grade three,” the second highest category of surgical risk. The attending surgeon was John Marian.

At six-forty-five Kee had been premedicated with 50 milligrams of Demerol. At eight, he was given a general anesthetic by Dr. Bela Barsony. The work of his lungs was taken over by a respiratory machine. An endotracheal tube was inserted into his windpipe; the other end connected to the respirator and an anesthetic device that delivered oxygen and nitrous oxide. To maintain muscular relaxation, Kee was also, given—intravenously—succinylchloride—otherwise known as anectine, a rapidly metabolizing drug that required regular repeat dosages via the intravenous drip.

Four years after the event, there is still

no definitive record of everything that happened that morning. What is known is that at eight-forty, Dr. Barsony, the anesthetist, left the operating room to keep an urgent personal appointment at the cancer clinic. By prior arrangement, Barsony’s position was assumed by Dr. Christopher Kilduff, who—as it happened—was also the anesthetist for another, concurrent operation. While Kilduff was occupied with his other patient,

Albert Kee’s anesthesia fell into the uncertain hands of Kelly Chu, a third-year medical extern (summer student) who had spent less than three weeks in the operating room. Between eight-forty and nine-five, according to Chu, Kilduff was absent for three intervals of about five minutes each.

It requires no great leap of credibility to suggest that without Christopher Kilduff, Kelly Chu was ill-equipped to understand adequately even the most blatant anesthetic danger signals. Anesthesia is an art, not a science. Its raw materials are toxic to the human body. Administering poison, the skilled anesthetist leads his patient half way toward death, then brings him home again, often without comprehending quite how the process works. But pharmaceutical tolerances are fine and unpredictable. Too much too soon, too little too late, and the precarious balance upon which life rests may be irrevocably upset.

In retrospect, the clinical events that precipitated Albert Kee’s cardiac arrest, and ultimately his death, seem almost predictable. At eight-fifty-five, observing a marked rise in the pulse rate, Kilduff asked Chu if “he recognized the implications of this rise in pulse and Kelly said ‘No.’ And I said to Kelly, T would suspect that this patient may well be feeling pain ... I think you should give him some Demerol.’ ”

Chu injected the Demerol into the iv unit; Kilduff left the room. But inadver-

tently, the anectine drip—the paralyzing agent—had been allowed to work too slowly. Without its carefully timed, carefully measured application, Kee’s muscle tone returned. He began to breathe spontaneously—fighting the action of the respirator. As he strained against the machine, pressure swelled in the chest cavity, decreasing the volume of blood returning to the heart. Kee’s blood pressure dropped precipitously. No fresh, oxygenated blood was available to pump to the organs. The heart stopped.

Every reaction had its logical consequence, all traceable to the faulty application of the anectine drip, a procedure Kelly Chu understood imperfectly at best. Possibly, Albert Kee might have died even if Kilduff—a specialist with years of experience and a former chief of anesthesia at City Hospital—had been present at the critical moment. It is possible. But Kilduff wasn’t there: that is the one final and irrefutable point. He wasn’t there.

By the time he returned, together with three other specialists and the hospital’s crash cart of emergency equipment, Kee’s oxygen-starved brain had been damaged beyond repair. Stainless steel and plastic tubing kept him alive for a week, until the family signed the papers which allowed the doctors to instruct the nurses to turn off the respirators.

Eighteen months later, an unconscionably long hiatus, an inquest was held. It lasted six days, yielded volumes of testimony, but concluded inoffensively that Albert Kee had died of cardiac arrest and pulmonary edema: so do we all. The inquest found no negligence, attached no blame, offered no recommendations. Of the fact that two operations had been scheduled simultaneously for

one anesthetist, it took no official notice. Justice was seen to be done.

Most of the principals in the Kee affair suffered no recriminations. Dr. Barsony, a Hungarian refugee, continues to practise at City Hospital, but will not talk about the case. “I am a small fry,” he explains, “and I wish to remain a small fry.” Kelly Chu, now a family practitioner in Victoria, is likewise anxious to avoid excavation of the past. “I was only a student. I was very green. I still feel responsible for what happened. I’d rather not discuss it.” Christopher Kilduff has moved from City Hospital to Saskatoon’s University Hospital, where he is chief of anesthetic services, an assistant dean of medicine and—in medical circles—a force to reckon with.

One career, however, was ruined. Within two weeks of the end of the Kee inquest, the medical advisory committee of City Hospital, the most powerful of all hospital committees, had recommended the dismissal of Kee’s physician, vascular súrgeon John Marian.

The official charge against Marian was not incompetence, and indeed in the long campaign of vilification that followed, nothing pejorative was ever said about his dexterity with cutting tools. He was charged instead with being “a disruptive influence” within the hospital, a genteel euphemism for having frayed nerve endings in the buttocks of the body politic. He was undoubtedly guilty. For years, he had been an advocate of patients’ rights, a tireless critic of inept hospital procedures, a passionate memorandum writer—driven by some inchoate urge to ferret out malpractice and to document the dubious propriety of various medical shortcuts.

High on his list of misdemeanors was the anesthetic practice of double booking, a system under which two patients in separate operating theatres received simultaneous anesthesia by one specialist. Since anesthetists seldom have the capacity for being in two places at once, the patient’s anesthesia would, from time to time, be supervised by an intern or resident—an arrangement Marian and many other surgeons regarded as potentially lethal. It was double booking, Marian argued, that led to the death of Albert Kee.

The anesthetists agreed that double booking was less than ideal, but pleaded staff shortages. Yet the same shortages existed in nine other provinces and in none of them—outside of teaching hospitals—was it deemed acceptable to leave residents or interns in charge of anesthesia. Of course, John Marian had compiled an impressive track record of dissent long before his dismissal from City Hospital. In North Battleford in the mid-Fifties, where he had settled after emigrating from Britain, his surgical privileges were restricted after he exposed multiple incidences of needless surgery at Notre Dame Hospital. A provincial inquiry subsequently exonerated Marian and restored his position.

In 1969, Marian quarreled with Dr. Gor-

don Wyant, chief of anesthesia, over double bookings at University Hospital in Saskatoon, and later hired lawyers to force the hospital board to investigate the department. A closed inquiry ruled against Marian, and the hospital ejected him. It gave no reasons. Marian won an injunction barring that dismissal, but the Saskatchewan Court of Appeal, examining only whether a hospital board might legally expel a doctor without stating cause, overturned the injunction.

A more cautious man might have moved stealthily after that, but Marian maintained his vigilant pace. He found a new transgression—specialists supervising general practitioners in surgery, a procedural convenience that allowed family doctors to get surgical training, but one frowned on by the Royal College of Physicians and Surgeons. Marian searched operating room ledgers to collect evidence and when hospital authorities requested his report, he complied. He learned later that officials had promptly made copies available to the physicians named—the same family doctors on whom Marian depended for referrals. The traffic in referred patients slowed dramatically thereafter.

Make no mistake: John Marian was a royal nuisance. He was shrill and he was rigid, not only opinionated but adamant in his opinions. He saw medical ethics being sacrificed for expediency, or for money, and he was not the least bit reluctant to point his finger. The profession could not love him, nor even like him, but it abided his censure—abided it, that is, until Marian broke medicine’s own sine qua non of conduct becoming and took his criticisms to the public.

“I did the unthinkable. I spoke out loud. They can forgive a sinner, but never a heretic. You can bitch like hell within the system. You can even kill and cheat. But you must never disclose the secrets of the inner sanctum. That becomes the unforgivable offense.”

In the end, the question was not so much whether John Marian was disruptive—he was certainly that—but why he was disruptive and with what justification. This was a landscape of inquiry the fathers of City Hospital chose not to survey.

The Albert Kee inquest ended on Saturday, February 1, 1975. The following Monday, five anesthetists at City Hospital

refused to work with Marian. Dr. Dale Zoerb, chief of anesthesia resigned. In turmoil, the hospital’s medical advisory committee (MAC) met the same day and began to erect the scaffolding for Marian’s execution; a three-member subcommittee was named to determine whether the maverick surgeon was a disruptive influence. The subcommittee interviewed 44 members of hospital staff, including anesthetists, department chiefs, surgeons, pathologists, radiologists and nurses (but did not confront Marian himself). It concluded that Marian was more disruptive than other forces at SCH, but recommended that he remain on active staff, providing he observe all hospital bylaws and agree in writing to work “through normal channels to achieve his goals.”

On February 10, the subcommittee submitted its report to the MAC. The MAC was not amused. It was awaiting a verdict requiring capital punishment and the jury had requested leniency, MAC members went around the table taking aim at the report. Orthopedic surgeon John Noble said it was meaningless to ask Marian to recognize hospital bylaws since all staff were required to sign a pledge to that effect every year. On February 11, the executive committee of SCH’S board of directors recommended Marian’s dismissal. Under hospital bylaws, however, the full board could not act without prior consultation with the MAC. Accordingly, the MAC met again on February 13 and'in 90 minutes delivered itself from evil, condemning Marian’s activities as intolerable.

Ten days later, Marian was expelled. He

wrote immediately to Health Minister Walter Smishek requesting an appeal hearing. Including adjournments, the hearing ran four months, but Marian’s case seemed enfeebled from the start. His lawyer, George Taylor, a Saskatoon alderman and a leading authority on administrative law, could not defend him, since, as a member of City Hospital’s board of governors, he would have been in conflict of interest. Marian’s second choice, Isadore Grotsky, suffered a heart attack during the proceedings, leaving Marian temporarily in charge of his own defense.

Worse, the hearing chairman, retired justice Harold Pope, refused to hear testimony pertaining to double booking. If the practice were in fact commonplace, then Marian’s refusal to condone it could not be considered disruptive. Marian lost that argument and the appeal. With rare exceptions, he has not worked since.

Ironically, while John Marian’s livelihood was being slowly but inexorably destroyed, provincial authorities began moving under pressure to investigate his longstanding complaints. In the fall of 1975, just after CBC ombudsman Robert Cooper took up the Marian cause, Health Minister Smishek announced formation of a committee that would look directly at anesthesia in Saskatchewan. Looking, of course, did not necessarily mean seeing.

Chaired by Manitoba law professor David Anderson, the committee had all the clout of a one-legged boxer. It subpoenaed no witnesses or hospital records. Those who appeared before it were not given protection by the Canada Evidence Act and

the committee’s own members swore no oaths of secrecy on the testimony they heard. Many critics of double booking— and of its next-of-kin, double billing, by which anesthetists managed to be paid twice for the same hour worked—consequently refused to testify, fearing possible reprisals. (For the same reason, two pro-Marian anesthetists had appeared on the CBC’S Ombudsman in shadow, their voices electronically disguised.)

Nor did the Anderson inquiry pursue evidence of double booking with much zeal. Examination of hospital records was confined to one 12-month period and the province’s largest hospital reported that its own operating room ledger for most of that year was, inexplicably, missing.

The committee’s very composition did nothing to allay suspicions that its findings had been all but predetermined. One of its members was surgeon John Noble, who had lobbied vigorously for John Marian’s dismissal from City Hospital. Another was William MacDonald, who, as head of anesthesia at Plains Hospital in Regina, was essentially investigating his own department. A year before the committee was formed, MacDonald had testified in defense of double booking at another controversial hearing.

The final report set a new benchmark for bland neutrality, thus allowing both sides to embrace it as confirming their views. It said medical students ought not to regulate anesthesia (as had frequently happened) but it said the province’s anesthetists had a safety record they could be proud of. There did seem to be some indication of anesthetists wishing to be paid for simultaneous services and Saskatchewan’s medical care insurance commission had forthrightly refused to be party to such chicanery—but the committee expressed the view that goodwill would triumph and everything would work out in the end. David Anderson went back to his law school and the anesthetists went back to their operating rooms, albeit moving more circumspectly between them.

The results of the health ministry’s second major initiative—the De Vlieger commission on rights in relation to health care—are still pending. The report was finished more than a year ago, but was held up— apparently for political reasons.

John Justice—a middle name of splendid irony—Marian, FRCS(C), FACS, is 58 years old, a short, thin man with large hands and a thick chest. His face has a slightly satanic cast, an impression underlined by his goatee and by the way he wears his hair—slicked straight back from the forehead. He has tiny, elongated eyes and a long nose and in general appearance resembles a kind of miniature Vincent Price.

In recent months, Marian’s home has been a rented, two-bedroom house in an older section of Saskatoon, which he shares with a young married couple of no relation. The floors are bare. The furniture

might have been taken from the lobby of a hotel razed a generation ago. On the walls hang oil paintings, similar to those one finds for sale in supermarkets for $1.99 with coupons. Marian does not own a car or a television set.

His diet, like his income, is spartan. He avoids meat, salt and sugar. He prepares his own yoghurt, drinks nothing stronger than herbal tea and snacks on raisins and unsalted sunflower seeds. “I have only to look at food to gain weight,” he explains. His voice is soft, but thick and marbly; it keeps a tempo of defeat.

Marian’s family is estranged. His wife and he were divorced in 1974, his problems with medical officials not the least cause of friction. He does not talk to his 20-year-old daughter, nor she to him. His son, John Jr., “one of the original flower people,” lives in Garden Bay, BC. They speak infrequently. The Marian family home, a 13-room affair in a nicer area of town, was sold to pay his legal costs—about $8,000 in total. He has few friends, more enemies. It is an indication of the level of fear of Saskatchewan that only the latter are willing to speak for publication; even they choose their words with care. Marian’s surgical practice lies dormant, his training in waste. Technically licensed to operate at Saskatoon’s St. Paul’s Hospital, he gets no referrals. Physicians who once sent him candidates for surgery are no longer heard from; the odor of disgrace may be contagious.

Once a week, preserving the illusion of activity, he performs rounds with other doctors at St. Paul’s. He feels no animosity, but there is no mistaking the unsettling effect of his presence. He is an embarrassment, a pariah daring to appear in public. It is said the hospital administration would be happy to be rid of him, except that a doctor who does not operate is unlikely to make mistakes and so provide grounds for dismissal.

Yet effectively, indeed absolutely, Marian has been exiled from the practice of medicine. Were he to attempt a move to another province or to the United States, he would need references, and it would take a mighty optimist to suppose that the same cardinals who annulled his privileges would recommend him to another diocese. He is a man without practicable options and the day cannot be far off when he will be forced to take work as a clerk or a taxi driver simply to pay his rent.

His campaign for reform has not been entirely unavailing. Double booking now seems under control, and the level of public awareness on medical questions has been raised significantly. But clearly these were pyrrhic victories. The issue was not whether the anesthetic department at City Hospital was guilty of double booking. The issue was whether John Marian could violate the profession’s code of secrecy with impunity. The winner of that conflict cannot be in doubt and there is no reason to believe that the next dissident will fare any better, ó