One South Florida family believes a doctor working out of a well-known South Florida medical facility made a fatal mistake and then tried to cover it up.
"Well the unfairness is that my mother never knew she had cancer for two years,” said son Jacinto Garrido.
It's been a four-year battle for the family and it's still underway. Even though a Florida judge decided Dr. Peter Choy altered the woman's medical records; the family says it’s being prevented from suing the doctor because of a law that can affect anyone in Florida.
The Mercy Hospital website lists Dr. Peter Choy as practicing internal medicine. The Board of Medicine initially voted to revoke Choy's license, but that was changed to a six-month suspension and $35,000 fine. The Florida Department of Health is trying to open the door for what could lead to tougher punishment.
Teresita Garrido insisted on having a birthday party for one her three children even though she was in a hospital bed. Her family said just one week earlier, for the first time, Teresita was told she had pancreatic cancer. Six days later in 2010, the 81-year-old woman died.
"She went on without any choice or able to choose any mode of treatment," jacinto Garrido said.
Garrido said his mother appeared fine just 90 days earlier and they all thought she was in good health. Garrido believes her physician for 11 years, Dr. Peter Choy, made a fatal mistake when he didn't inform Teresita of a tumor located during image testing two years before her death.
Garrido said Choy tried to cover up his error.
"The finding of the medical records is he altered them," Garrido stated. "It was altered after my mother passed away."
An administrative law judge examined documents presented by investigators that compared original medical records with those they also discovered. One had additional hand written notations. The judge called the material "incriminating.”
The judge wrote, "There is undisputed fact...that Dr. Choy altered many other medical records after questions were raised concerning his treatment of Teresita Garrido."
The judge recommended revoking Dr. Choy's license. " I think that he should lose his license," Garrido said.
Last month, Dr. Choy made an admission to the medical board. He told them, "It is true that I supplemented the records. And it is true that I did because of fear of--at the end of my career. I'm 70 years old. I should not have done that. I made a mistake, I admitted from the beginning of this case. But, it’s not true that I wrote anything inaccurate on those records. And it's not true that I did not inform my patient of the mass and refer her to GI specialist.”
The family wanted to sue Choy but was stunned to find out Florida law prevented it.
"I think that with this law health care providers, specifically physicians, in the state of Florida have a free pass," Garrido said.
Florida law prevents Jacinto, his brother, or sister from suing because they are over 25, no longer dependents, and since Teresita wasn't married, there's no spouse to gain the legal foothold to sue either.
"The problem is that Florida doesn't recognize a wrongful death lawsuit for anybody that's killed in a medical negligence situation and has adult children and no spouse. Literally, the case dies with them," stated Coral Gables attorney Ervin Gonzalez.
With Florida's large senior population, Garrido says a huge number of other families could also be caught in this legal obstacle.
"I think you don't stop loving your parents when you turn 25,” Garrido said.
In a statement, Doctor Choy told NBC 6 the following:
“The Florida Board of Medicine considered all the facts of this case and issued a final ruling suspending me from the practice of medicine, imposing fines and assessing other penalties. I accept their judgment. But because the Department of Health has decided to appeal the Board’s decision this matter is still in litigation, so I cannot comment any further other than to say that I deeply regret the circumstances of my long-time patient and the impact that her death has had on her family and friends.”
Mercy Hospital said Dr. Choy no longer has any privileges and his picture will be removed from its website.