Neurologist responds to lawsuits over MS misdiagnoses

Palm Bay doctor gave up Colorado license after 2012 complaint

By Mike DeForest - Investigative Reporter

A Central Florida neurologist who also practiced in Colorado is accused of misdiagnosing two women with multiple sclerosis and then spending years treating them for the disease, according to lawsuits filed in federal court last week by the former patients.

Dr. Gary Weiss, who has held a Florida medical license since 1982, has had no disciplinary action taken against him in this state, according to the Florida Department of Health.

However, in 2014 Weiss agreed to not renew his Colorado medical license and promised to never practice in Colorado again as part of a settlement agreement in an unrelated disciplinary investigation, records show.

"There is simply no basis for these lawsuits," Weiss told News 6 in a prepared statement.  The neurologist was traveling out of the country and could not immediately provide a more thorough response, Weiss's public relations representative indicated.

Brenda Culhane claims Weiss diagnosed her with MS in 2007.  For the next seven years the Colorado woman underwent several MRI scans and received more than 100 infusions of Tysabri, a drug used to treat MS, according to her lawsuit. 

"As a result of Defendant Weiss' diagnosis of MS and his prescription of MS medications, Plaintiff Brenda Culhane feared she would contract deadly infections and die," the lawsuit states.  Culhane claims she also suffered numerous side effects including depression, anxiety, and stress.

In 2014, after Weiss sold his Vail clinic, a doctor at the University of Colorado concluded Culhane did not have MS, the lawsuit alleges.

According to a second lawsuit filed by another patient, Weiss diagnosed Mercedes Aragon with a "relapsing/remitting" type of MS in 2009. 

Aragon claims MS medication prescribed by Weiss caused "full body pain" and flu-like symptoms.  Weiss's diagnosis of MS also caused Aragon to worry about her ability to care for her children and led to marital problems, according to her lawsuit.

In 2014, a different doctor conducted an MRI scan of Aragon and determined she did not need treatment.

"Dr. (Simon) Oh concluded that Plaintiff Mercedes Aragon did not have MS," the lawsuit states.

"This is a very sad example, tragic example of a healthcare provider putting profits over patients without any checks or oversight," attorney James Puga told Denver CBS station KCNC.  He represents both Aragon and Culhane in their negligence lawsuits against Weiss.

In 2012, the Colorado Medical Board launched an investigation into Weiss amid allegations that he misdiagnosed a brain lesion in an MS patient that may have been caused by unnecessary medication, records show.

However, before the medical board conducted a hearing that would have determined whether or not Weiss’s actions constituted unprofessional conduct, the two sides entered into a settlement agreement.

Weiss, who announced he would remain in Florida full time, agreed to not renew his Colorado medical license and promised never to practice in that state again, records indicate.   The case was closed in 2014 without any disciplinary action taken against Weiss.

"The doctor who encouraged these patients to sue me has lost his medical license because of a DUI arrest and the finding of the Colorado Medical Board that he was unsafe to practice medicine," Weiss's statement added.

Weiss is referring to Dr. Mark Pithan, a neurologist who purchased Weiss's Colorado clinic in 2014.  Pithan encouraged Aragon and Culhane to seek second opinions about their original MS diagnoses, the lawsuit states.

In 2015, Pithan filed a lawsuit in a Colorado circuit court accusing Weiss of conducting tests that were not medically needed, according to a published report in the Denver Post.

"In fact, (Dr. Pithan) discovered through investigation that many of Dr. Weiss' former patients were misdiagnosed and not even afflicted with MS," states the lawsuit obtained by the Denver Post.  "Dr. Pithan has personally overturned approximately 20 patients' diagnoses of MS previously diagnosed by Dr. Weiss."

That same year, Pithan agreed to temporarily surrender his Colorado medical license following his arrest for driving under the influence of drugs and allegations that the neurologist had physical or mental conditions that could render him unsafe to practice medicine, state records show.

Weiss’s Florida medical license remains clear and active, according to state records, and there is no indication of disciplinary action in Florida.

A Florida Department of Health spokesperson would not confirm whether it knew about Weiss’s Colorado settlement agreement.  Settlements, fines, and other actions taken against medical professionals are supposed to be documented in a confidential national practitioner database, the agency indicated.

“I cannot say whether or not the Department receives a complaint or plans to take action against any practitioner until 10 days after probable cause is found,” Florida Department of Health Deputy Press Secretary Brad Dalton told News 6.  “If the Department receives a complaint and does not find sufficient information to further investigate the complaint, then the complaint would never be public record.”

The Florida Department of Health’s public website, which is used by patients to research doctors, does not mention Weiss’s settlement agreement in Colorado.

In 2014, one of Weiss’s Florida patients filed a malpractice lawsuit against the neurologist in Brevard County Court.

Anthony Scarsella claimed Weiss failed to accurately read an MRA and did not seek a confirmation of his reading from a neuroradiologist, the lawsuit alleged.  As a result, Weiss did not order medical treatment “which likely would have prevented an aneurysm from bursting,” according to the suit.

Weiss and Scarsella settled that lawsuit in 2015, court records show.  The terms of the settlement were not disclosed in court records.

A representative for Weiss responded to News 6 after the story was published, saying:

"The news accounts of a number of medical malpractice lawsuits filed against me have created an erroneous impression of my practice and the reason I did not renew my Colorado medical license.

"Because I happened to be in Ireland when the first suits were filed, I did not have an opportunity to respond to the many false allegations contained in the complaints. Even now HIPAA privacy regulations prohibit me from disclosing information about specific patients, so the following addresses the way I have practiced medicine but does not refer to any individual patient.

"The essence of the plaintiffs’ allegations is that I mistakenly diagnosed multiple sclerosis and, therefore, unnecessarily treated patients who did not actually have the disease. 

"Multiple sclerosis is an extremely difficult disorder to diagnose. Contrary to the implications in the lawsuits, a physician cannot simply examine the results of an MRI or a spinal tap and arrive at a definitive conclusion early on. It can take more than a year to become confident of an MS diagnosis, and very good doctors can and do reach contrary conclusions. For this reason, I have nearly always advised patients whom I believed to have MS to seek a second opinion. 

"Additionally, research now shows that, not just “early” but “super-early” treatment of a suspected MS patient can have a significant positive impact on a patient’s outcomes, including preventing additional symptoms from occurring. For this reason, I typically recommend treatment of patients if any evidence of MS exists. 

"These two points explain why, after a thorough conversation about all risks associated with various treatments, I do not delay treatment of most suspected MS patients.

"The media reports also reference my giving up my Colorado medical license around the same time a complaint had been filed against me concerning a patient who had died. That complaint, which was not brought by any of the deceased patient’s family members – all of whom were strongly supportive of me and my treatment of their loved one – coincided with a difficult decision I had made to move from Colorado to Florida, where I already spent much of my time in a busy practice. I had been diagnosed with a medical condition of my own that will not allow me to live at high altitude. In fact, my physician has strongly advised me to not even return to Colorado for a brief visit, and I am restricted in the types of airplanes in which I can fly. Rather than contest this complaint, which I knew to be without merit, I chose not to renew my license, since I could not use it anyway. I regret that decision today because of the appearance it caused that I might be conceding the allegations in the complaint. At that the time, though, it seemed insignificant.

"Finally, the reporting of these lawsuits references Dr. Mark Pithan, to whom I sold my Colorado medical practice once I had decided to leave the state. It is Dr. Pithan who has encouraged these specious lawsuits. Dr. Pithan lost his medical license because he had been arrested for driving while under the influence of drugs and had been found by the Colorado Medical Board to have been diagnosed with physical or mental illnesses that rendered him “unsafe to practice.”  In his own handwriting, Dr. Pithan told the Medical Board, “I voluntarily surrendered my DEA license in October of 2015 due to violations regarding controlled medications.”

"Dr. Pithan has sued me alleging that he overpaid for the medical practice. In reality, a subsequent appraisal showed he had significantly underpaid. For whatever reasons, Dr. Pithan was unable to maintain what had been a thriving medical practice.

Without Dr. Pithan, there would be no lawsuits.

In summary, two key points must be made:

(1) These suits were encouraged by a doctor who was arrested for DUI and lost his license because he was found to be “currently unsafe to practice” medicine and who has an unfounded business complaint against me; and

(2) Multiple sclerosis is a very difficult disease to diagnose. Research has found that “super-early” treatment of MS symptoms can dramatically improve a patient’s chances of controlling the disease for many years and may, in fact, prevent symptoms from occurring. For this reason, that is a course I typically recommend and follow. It is without a doubt the right thing to do given the state of our knowledge today. 
 

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