Tomah report withheld to protect 'candy man' doctor

WASHINGTON – The Department of Veterans Affairs' chief health care watchdog declined to release a report on the Tomah VA Medical Center to protect providers prescribing "unusually high" amounts of opiates to veterans -- including a doctor vets nicknamed "the candy man."

John Daigh, the assistant inspector general for health care inspections, signed off on not publicly releasing the March 2014 report because it contained unsubstantiated allegations that might be damaging to the providers' reputations.

The inspector general "avoids publishing unsupported allegations that are harmful to an individual's reputation where the individuals are readily identifiable due to privacy concerns," spokeswoman Catherine Gromek told USA TODAY.

She did not explain how the providers would be identifiable. The report does not name the doctor or other practitioners, calling them "Dr. Z" and practitioner "Y," for example. The medical center employs more than 1,000 people, including almost 100 licensed clinicians, according to its website.

And the inspector regularly releases reports with unsubstantiated allegations. The office released a report on unsubstantiated complaints in 2010 that practitioners at the Madison VA hospital mismanaged medications for a patient with a heart condition, leading to his death. The office also released a report in 2009 when inspectors did not substantiate allegations that a Tomah nurse provided inadequate care to an elderly patient who also died.

Still, Gromek said the difference with the Tomah report last year was that it outlined the "interactions of identifiable staff."

The doctor vets called the "candy man," Tomah chief of staff Dr. David Houlihan, was removed from his position in January after news reports detailed the findings from the March 2014 report and revealed 35-year-old Marine Corps veteran Jason Simcakoski died from an overdose as an inpatient at Tomah last August, just days after Houlihan agreed another opiate should be added to his medication regimen.

Simcakoski's father is livid the inspector general was trying to protect the doctor.

"That is completely ridiculous," he said last week. "If that was the inspector general's son or daughter, would he have protected the chief of staff then?"

The report, which the inspector general eventually released in January amid the intense media scrutiny, included a detailed analysis of opiate prescription rates and concluded Houlihan and two other Tomah providers were among the top 10 most prolific prescribers of opiates of more than 3,000 providers in a multistate region.

Daigh wrote in the 11-page report that allegations they overprescribed opiates could not be substantiated because the amounts did not "constitute proof of wrongdoing." Still, he wrote that the amounts raised "potentially serious concerns" that should be shared with local VA officials.

Inspectors briefed VA officials at the Tomah medical center and at the regional office in Chicago that oversees them, who assured them they were addressing the concerns.

Houlihan's lawyer, Frank Doherty, pointed to the conclusions in the report that found no wrongdoing.

"I am confident of the same result on any new investigation," he said.

A balancing act

Specialists say government officials deciding whether to release information to the public must weigh the public's right to know against individuals' right to privacy and, in this case, arguments could be made for either side.

Attorney David Schulz of New York, a government secrecy expert who has provided advice on the national security disclosures by Edward Snowden, said he understands why the government would want to protect Houlihan's identity.

"You want to protect the reputation of people, and so you don't say, 'Oh, you know, we investigated Joe Doe for stealing from his boss and decided there wasn't enough information to prosecute,' " Schulz said. "Well, you kind of smeared him."

But lawyer Mark Zaid, a Washington specialist on privacy and the Freedom of Information Act, said it could be argued that even though the allegations weren't substantiated, the public had a right to know because veterans' lives were at stake.

"My argument would be from a medical standpoint, if it ever crosses that line from 'serious concern' to, 'yeah, he did it,' maybe somebody's going to die," Zaid said.

In any case, there was no legal reason to withhold the entire report and not release a portion or summary, said Cheri Cannon, a former deputy general counsel at the Pentagon.

"Could they have blacked out information and made it public? Yes," said Cannon, who previously adjudicated FOIA and Privacy Act appeals for the secretary of the Air Force.

Open-government advocates like Anne Weismann, chief counsel at Citizens for Responsibility and Ethics in Washington, called the inspector's failure to do that "troubling."

"If they were withholding the identity of the doctor, but at least were letting the public know the kinds of conduct that have gone on, that would be important," Weismann said.

Gromek, the inspector's spokeswoman, declined to say why a redacted report or summary wasn't released when the case was closed in March 2014.

A trickle of information

The inspector did provide a redacted copy to Sen. Tammy Baldwin, D-Madison, in August. She had asked about opiate prescriptions in Tomah after a constituent raised concerns. Baldwin turned the report over to the constituent and apparently dropped the matter, despite repeated pleas last fall from another constituent, a whistleblower who worked at Tomah, that she make it public.

The senator has not explained what happened. She said last month she is conducting a review and will have more to say when it is complete.

The inspector general has previously given only partial explanations for why the report was not released to the public. Gromek told USA TODAY and others it was because there was "no conclusive finding of inappropriate prescription practices."

But in briefings on Capitol Hill, Daigh told congressional aides that protecting the identities of the Tomah providers was also a factor.

Wausau Republican Rep. Sean Duffy, who represents many veterans who seek care at the Tomah medical center, said he was flabbergasted when his aide was told the inspector didn't publicly release the report because he was trying to protect the reputation of the doctor.

"Listen, we have an IG investigator to root out and expose problems in the VA so we can better serve our vets," Duffy said. "In this case, they didn't do that, they didn't expose the facts that they had, and it was for the benefit of VA employees and to the detriment and death of Wisconsin veterans."

Contact dslack@usatoday.com. Follow @donovanslack.