Medicine man

The future of GOP control of the Senate depends on Oklahoma Republican candidate Tom Coburn, a former doctor who has covered up a scandal from his past until now.

Published September 13, 2004 5:21PM (EDT)

Tom Coburn may be indispensable to the Republicans' effort to hold on to their majority in the U.S. Senate in November. "He is their best hope for keeping an Oklahoma seat Republican in the closely divided Senate," wrote conservative pundit Robert Novak.

In 2003, President Bush appointed Coburn chairman of the Presidential Advisory Council on HIV and AIDS, giving him a prominent platform as he prepared to run for the Senate. If elected, Coburn would not only help the GOP maintain its power but would surely emerge as one of the most outspoken conservatives in the country. The former three-term congressman, one of Newt Gingrich's "revolutionaries" from the class of 1994, an Okie from Muskogee, thunders for traditional values and crusades for limited government. He packages this political agenda in his image as a kindly family doctor -- an obstetrician.

For Coburn, the imminent danger facing America is apparently not terrorism but the "gay agenda." His thumping about this menace within contributed to the pressure that led to Bush's endorsement of a constitutional amendment to outlaw gay marriage. At a Republican meeting this spring, Coburn warned: "The gay community has infiltrated the very centers of power in every area across this country, and they wield extreme power ... That agenda is the greatest threat to our freedom that we face today. Why do you think we see the rationalization for abortion and multiple sexual partners? That's a gay agenda."

In 1997, Coburn proposed a bill that would have ended anonymous testing for HIV/AIDS and required reporting the names of those who tested positive to public health authorities, among other draconian measures -- including withholding Medicaid funding from states that failed to comply.

But an incident involving Medicaid from Coburn's past as a physician may cloud his current ambition to fill the seat being vacated by Sen. Don Nickles. He is squaring off against Democratic Rep. Brad Carson, who succeeded Coburn in the House in 2000.

According to records obtained by Salon, Coburn filed an apparently fraudulent Medicaid claim in 1990, which he admitted in his own testimony in a civil malpractice suit brought against him 14 years ago by a former female patient. The suit alleged that Coburn had sterilized her without her consent. It eventually was dismissed after the plaintiff failed to appear for the trial. In his sworn testimony, Coburn admitted he sterilized the then 20-year-old woman without securing her written consent as required by law. He blamed the omission on a clerical error, but maintained that he had her oral consent for the procedure. (Salon has been unable to contact the woman and is withholding her name out of respect for her privacy.) Coburn also revealed under oath that he had charged the procedure to Medicaid -- despite knowing that Medicaid, also known as Title 19, does not cover the cost of sterilization for anyone under age 21.

This previously unpublicized episode from his medical practice cuts to the heart of Coburn's political identity. He has built his congressional career on extreme gestures against government programs, exceeded in virulence only by his pronouncements on social issues, including advocating the death penalty for doctors who perform abortions under any circumstances other than those threatening the life of the mother. (And yet, as a doctor, he has performed abortions.)

Local political observers say the likely result of the Oklahoma Senate race is a tossup, with a possible slight advantage to Coburn because of Bush's overwhelming support in the state. The latest poll, conducted Sept. 1 and 2 by the Democratic firm Westhill Partners, had the race within the margin of error, with Carson leading 44 to 42 percent.

Coburn was swept into Congress as a member of the Republican class of 1994 that gained control of the House for the first time in 40 years and installed Newt Gingrich as speaker. "He really drank the Kool-Aid with the class of '94; he was one of the real far-right guys," says Kenneth Hicks, a political science professor at Rogers State University in Claremore, Okla.

"He's a principled, pompous member," said a senior Republican staffer turned lobbyist. "He's one of those '94 guys, and there were a certain percentage of them who were so anti-system that they don't want to play the game. And from a leadership perspective and a lobbyist perspective, we don't like those kind of people ... He's going to be a frickin' nightmare in the Senate [if he wins]."

In Congress, Coburn distinguished himself, even from other conservative Republicans, by actively opposing federal spending for his own state. After unsuccessfully trying to stop disaster relief after a 1999 tornado, Coburn called the measure "malarkey." His dogmatism made him a thorn in the side of GOP members who might rhetorically denounce "big government" but still legislate plenty of pork. In 1996, after voting for provisions of an agriculture bill that aided Oklahoma farmers, Coburn told the Wall Street Journal that it made him sick for days afterward and that Washington was "a dirty place." In 1997, he boasted, "I don't ask for anything from Appropriations." The year after that, he complained to USA Today that he was underpaid as a congressman: "You have to be able to earn more money to attract good people."

As far right as Coburn is on fiscal issues, he is even farther right on social issues. "I favor the death penalty for abortionists and other people who take life," he told the Associated Press in July. Last week, he told the Hugo [Okla.] Daily News: "We need someone who will speak morally on the issues and not run from the criticism of the national press ... We need to have moral clarity about our leaders. I have a 100 percent pro-life record. I don't apologize for saying we need to protect the unborn. Do you realize that if all those children had not been aborted, we wouldn't have any trouble with Medicare and Social Security today? That's another 41 million people."

At a House subcommittee meeting on the Safe Drinking Water Act in 1996, which heard testimony on the danger of the parasite cryptosporidium, which had killed 104 and sickened 400,000 in Milwaukee in 1993 and killed 19 in Las Vegas in 1994, Coburn displayed his expertise as a doctor. The lethal spores, he held forth, "can sometimes ... be very helpful -- for doctors -- because it helps us identify those people who in fact are immuno-compromised."

A year later, Coburn gained a moment of national attention when he condemned NBC for televising the Academy Award-winning movie on the Holocaust "Schindler's List." According to Coburn, the film encouraged "irresponsible sexual behavior," and he called for outrage against the network from "parents and decent-minded individuals everywhere." He added, "I cringe when I realize that there were children all across this nation watching this program." Even conservative avatar William Bennett felt compelled to rebuke him: "These are very unfortunate and foolish comments."

In 1999, after the massacre at Columbine High School in Colorado, Coburn opposed President Clinton's proposal for making adults liable if they allow their children to buy guns and harm others. "If I wanted to buy a bazooka to use in a very restricted way, to do something, I ought to be able to do that," said Coburn.

Medical fraud has been one of Coburn's signature issues. In his freshman term, he introduced the Health Care Anti-Fraud Act of 1995, which focused mainly on Medicare fraud but also touched on Medicaid. Speaking on the House floor on behalf of a Republican Medicare bill that year, Coburn said, "Our goal is to eliminate fraud and abuse. The way we do that is to make sure we change the expectation of those who are defrauding and abusing; that we, in fact, will catch them. If we change that expectation, then we will limit greatly the amount of people, and number of people, who attempt to defraud."

Unsurprisingly, in proposing this legislation Coburn was careful not to raise his own case involving Medicaid fraud.

In the early hours of Nov. 7, 1990, Dr. Coburn was summoned to Muskogee Regional Medical Center to attend to a pregnant patient who had been admitted with severe pains. The patient was a 20-year-old woman in her third pregnancy. After each of her first two pregnancies, she had asked Coburn to perform a tubal ligation to ensure that she would not have any more children, but he had refused, according to his testimony, telling her that Medicaid did not cover elective sterilization for women under 21. "I told her that she was too young, that it was irreversible, that she needed to wait," Coburn recounted telling the patient in December 1989. "I also told her that [Medicaid] wouldn't cover it."

Coburn found that she had an ectopic pregnancy, in which a fertilized egg is implanted somewhere other than the womb. In this case it was in her left fallopian tube. Coburn operated, removing both the left tube and the unaffected right one. The woman subsequently filed a malpractice suit, charging that he had tied her healthy tube without her permission.

In his Feb. 27, 1992, deposition in the case, Coburn insisted that the woman had repeatedly asked him to remove the second tube. In fact, she had signed a written consent form for the operation to deal with the ectopic pregnancy, but had not signed a consent form for the second procedure. Coburn testified that he had asked a nurse to obtain that form and that he did not know why it had not happened.

The suit was initially dismissed in October 1992 because it had been filed beyond the applicable statute of limitations, but was reinstated upon appeal. It was finally dismissed in December 1995 because, according to court records, the woman, for unexplained reasons, failed to show up for the trial.

In his deposition, Coburn also explained how he had gotten around Medicaid's restriction against coverage of the costs of elective sterilization for a woman under 21: He did not report the ligation of the right tube on his discharge summary. "The reason that it was not dictated as both [procedures] is because she was under 21 and was being paid for by Title 19, and to have a tubal ligation under 21, Title 19 would not have covered that," he said. He noted that under the law, sterilization even as an incidental operation accompanying a covered procedure -- i.e., removing the left fallopian tube to deal with an ectopic pregnancy -- would have nullified eligibility for federal reimbursement.

"I did not dictate [the second procedure] because of her Title 19 status," he testified. "If I had dictated both, it would have been a sterilization procedure and she wouldn't have had it covered."

After the operation Coburn admonished both the woman and her mother not to discuss it. "She asked me, since she was under 21, how did I tie her tubes -- since I told her I wouldn't and Title 19 wouldn't pay for it," Coburn said in the deposition. "I said I did it anyway and that she shouldn't talk about it because ... I did a procedure that was not recognized under Title 19 reimbursement." Thus Coburn admitted he had tried to silence his patient because he knew he was billing Medicaid illegally.

D. McCarty Thornton, former chief counsel to the inspector general at the Department of Health and Human Services and a specialist in healthcare fraud, said that anyone claiming Medicaid funding has certain disclosure duties. He told Salon that in claiming funding, "the fundamental legal duty is that [you] must be honest and completely open about the claim and about the circumstances that led to the claim. That being the fundamental starting point, you can break that legal duty down into some pieces ... There is a duty not to file a claim where you know that the services you provided are not reimbursable under the rules of the federal program ... You have a duty to disclose all the facts that you know to be material to the government. You have a duty to accurately compile the underlying documentation, such as the surgical records. If you knowingly fail any of these duties, then that is healthcare fraud."

Salon could not reach Coburn for comment. His campaign manager, Michael Schwartz, said that he was not familiar with the case and that it was "way off the radar screen" because the case happened 12 years ago.

At least, it is Coburn's hope that the scandal passes below the radar in his contest with Carson, who is in almost every respect Coburn's opposite. Unlike Coburn, Carson has fought hard to win federal funding for his district -- for transportation, rural healthcare, education and environmental cleanup. For his efforts, he was reelected by 74 percent in 2002.

Carson is a sixth-generation Oklahoman whose mother's family came to the state on the Cherokee Nation's Trail of Tears. His father worked for the Indian Bureau. Carson attended Baylor University, a conservative Baptist university in Texas, becoming its first graduate to win a Rhodes scholarship in 75 years. After finishing at the top of his class at the University of Oklahoma law school, he joined a major law firm, where he devoted one-third of his time to pro bono work. In 1997, he was a White House Fellow serving as a special assistant to the secretary of defense. A member of the Cherokee Nation, Carson helped establish a Native American Museum in Oklahoma City.

"This is a guy who knows how to wear cowboy boots with his Brooks Brothers suit, and he sounds like he's from here," says Keith Gaddie, a political science professor at the University of Oklahoma. "He's trying to thread the needle that all Democrats have to thread, and that is simultaneously satisfy this very extreme religious and social conservatism of Oklahomans but also make an appeal to the strong populism of the state."

Although the candidates are from the same district in eastern Oklahoma, Coburn may have the advantage in building a statewide majority. "Tom Coburn delivered 4,000 babies over his career in the Second District," one Democrat familiar with state politics said. "It may sound very naive for me to say this, but I really think it's going to help him [there] a bunch."

It remains a persistent problem for the Carson campaign that Coburn's views don't seem too far out of the mainstream to many Oklahomans. "A lot of positions that they're going to try to make out as extremist are kind of semi-mainstream in Oklahoma," says V. Burns Hargis, chairman of the Oklahoma City Chamber of Commerce and a political commentator on television. "It's just a hard sell to try to run to the left of the guy in Oklahoma."

"It's a great challenge," Carson said in an interview with Salon. "We rarely point out the things that are truly wacky ... We point out that [Coburn] treats politics like a game, as if it weren't important, that you can go up to Washington and try to howl into the void and make points that make you feel a little better but never do anything for the people back home who are desperate for your help."

According to Hicks, Carson is running a two-level campaign. "He's on the air right now, and he's trying to prove that he's got Oklahoma values and is a conservative," Hicks said. "Below the radar they're doing a lot of GOTV [get out the vote], and they're spending a lot of time talking about Coburn's radical libertarianism on fiscal issues and his conservatism on social issues. They're trying to say to individual voters, 'This guy is really not in line with Oklahoma values. You may be a conservative, but he's a radical.'"

Coburn, meanwhile, continues to spout off. Last week, he declared Oklahoma lagging in economic development because "you have a bunch of crapheads in Oklahoma City that have killed the vision of anybody wanting to invest in Oklahoma." His spokesperson could not explain who or what Coburn was talking about. What's more, Coburn proclaimed the Senate race a "battle of good vs. evil."

"He's on his own private mission with his own small band of followers," Carson told the Washington Post. "With everything that's going on in the world, using good and evil to describe a Senate race turns off voters."

Whether the voters of Oklahoma regard Coburn as an exemplar of moral purity after learning about his false Medicaid filing may well determine not only the outcome of the contest there but the fate of the Senate.

By Robert Schlesinger

Robert Schlesinger, a former Pentagon correspondent for the Boston Globe, is a freelance reporter based in Washington and a contributing editor at the Washington Examiner.

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2004 Elections Abortion Newt Gingrich Tom Coburn