Journalism in the Public Interest

Dead On the Operating Table: A Q&A with journalist Mina Kimes

When the multibillion dollar medical device maker Synthes enticed doctors to use its bone cement on people’s spines, patients died on the operating table. The company’s actions led to indictments and prison time for executives.

Journalist Mina Kimes of Fortune magazine investigated how it all happened, talking to doctors who performed the treatments, former company employees and the families of patients who died. Her report, “Bad to the Bone: A Medical Horror Story,” lays out in detail how the company navigated around Food and Drug Administration rules meant to inform and protect patients.

As part of our ongoing interest in patient safety, ProPublica health reporter Marshall Allen interviewed Kimes at ProPublica’s New York office for the #MuckReads podcast. The interview has been edited for clarity and length.


ProPublica: You use the term “human experimentation” to describe what was happening in this story. That sure gets people’s attention.

Kimes: I think that’s what it was. The company held unauthorized clinical trials and released and promoted a product for a use that was unapproved [by the FDA] without informing patients that the product was unapproved. People participate in clinical trials all the time, but they do so knowingly, and I think that's the core transgression here: Some people had knowledge and some people didn't. And ultimately, the people who did not were the patients.


ProPublica: Tell us about the company and the product.

Kimes: Synthes is a Switzerland-based device company that was bought earlier this year by Johnson & Johnson for about $20 billion, the biggest acquisition in J&J's history. Before they were acquired they developed a product called Norian, which is a calcium phosphate bone cement. Many people described the product as miraculous because it had properties that enabled it to stimulate the growth of actual human bone. Norian was approved for use in the skull and the arm.

The story is about the company’s efforts to convince doctors to use the product in the spine as a treatment for vertebral compression fractures – painful fissures in the spine that are a common side effect of osteoporosis. But Norian was never approved for vertebral compression fractures, and the FDA specifically forbade the treatment. So over the course of a couple of years, the company made a series of ill‑fated decisions that led to them promoting it for that use even after some alarming scientific results and patient deaths.


ProPublica: What happened when they used Norian in the spine?  

Kimes: Well, this is really at the heart of what they did wrong: They never did a clinical trial on people. When a medical device maker wants to introduce a device for a new purpose, there's a variety of ways in which they can get approval for it. If it's an untested high-risk device, often what they'll have to do is obtain something called Premarket Approval, or PMA, which requires clinical trials. These trials can be long and costly. Some employees estimated that it would take about three years and cost over $1 million. They would have had to convince a large number of patients to do it. And they could fail. One of the things that probably deterred them from doing the clinical trials was that the company had not had a lot of success doing this in the past.

The other way that you can get approval is to establish similarity to an already approved device, which is the approach they took. However, the approval that they got from the FDA said specifically that they could not mix Norian with other materials, which is what they needed to do for the spine treatment. The FDA later said this cannot be used to treat vertebral compression fractures.

Between 2002 and 2004, which was when the illegal trials were going on, there were three deaths. The first one was a 70‑year‑old woman whose X‑rays, in a disturbing twist, were later used in materials to promote the product. Then later on, an 83‑year‑old man and an 83‑year‑old woman died, both on the operating table. In all cases, the patients’ blood pressure dropped extremely quickly and they were unable to be resuscitated.

Experts later theorized that the cement was forming clots and causing blockages in the bloodstream. That's also what happened in a completely separate animal trial conducted at the University of Washington, where scientists injected the cement into a pig that also died for the same reason.


ProPublica: So they did not have FDA approval, but still promoted it for use in the spine. How did the marketing work?

Kimes: We’re talking here about off‑label marketing, an extremely common crime that’s led to huge settlements in recent years for drug companies and device makers. Doctors and surgeons are able to prescribe drugs and use devices in ways that they see fit. However, companies cannot promote them to doctors and surgeons for the unapproved, off‑label uses. As you can imagine this creates a bit of tension, especially when a company recognizes that doctors might be interested in using it in an unapproved fashion, or there's a potential revenue stream.

So what we encountered in this story was that the company expressed interest in this unapproved use, and it was documented that they promoted it for that use. I interviewed many surgeons who were involved in the unauthorized clinical trials. They told me that they talked to some of these sales representatives about this unauthorized use, and that in itself is off‑label marketing.

There are so many ways companies cross the line, whether it's giving information to doctors, bringing these devices into certain surgeries, or giving them instructions on how to use it. Synthes did all of these things and more. In one case, during a training session with surgeons, they explicitly showed them how to do this spinal procedure. They were giving out materials that talked about the procedure. Some of the promotional materials did not include the warning that the FDA had told them to include, saying not to use Norian to treat vertebral compression fractures. So there were many ways in which they committed the crime.


ProPublica: Did regulation fail, or did they flout the regulation?

Kimes: I think they definitely flouted the regulation. The question, I think, of whether or not the regulations were strong or clear enough is a matter of dispute. The FDA had issued a public warning about this procedure being off‑label. There was some confusion amongst surgeons and the company about the label, and I know from my interviews with employees that they knew what they were doing was not right. That said, there's still a lot of gray area.


ProPublica: How much influence do you think the marketing has over physicians?

Kimes: I think there's a great deal of influence. There has to be a confluence of factors. The appetite for the product was already out there. This is a procedure that was growing in popularity at the time. Plus, there was no clear treatment. Vertebroplasties were being conducted using a different kind of cement that had a lot of disadvantages. So there was certainly an audience for it. I imagine it was quite convincing when surgeons were presented with this miraculous‑seeming product and not told about some of the issues, such as the scientific trials. Also, many of the surgeons were flown out to training sessions where they had dinners and golf outings and whatnot. And at those training sessions, they were told all the good things about it and all the potential for it, and many walked away thinking it was a really wonderful opportunity.

One of the most surprising things I learned while reporting this story was that in all of these surgeries there was a sales representative from the company in the room. I didn't know that before. And I think that's emblematic of the relationship between doctors and companies, which is intermeshed and in some ways co-dependent.


ProPublica: What did this story tell you in general about patient safety?

Mina: Much of this has to do with knowledge. I mean, when you make a health care decision, you should be equipped with the best knowledge possible. This story was about the withholding of that knowledge at many crucial points, but especially to these patients who died not knowing that this product had been used in animal trials where there were very alarming results, and not knowing that it wasn't actually approved for the procedure that they were about to go into. The risks weren't properly communicated.

All the patients’ families maintain that they were not told about the unapproved nature of the product, about the animal trials and the risks associated with them. There were three deaths that took place during the clinical trials, but there was another death that occurred in July of 2009 after the company had been indicted. So if that particular family had simply known the name of the product — and they say they weren't told the name — they could've Googled it and seen a criminal indictment filed two weeks earlier.


  • Have you or a loved one been harmed in a medical facility? Tell us about it.

  • Have you worked in health care? Tell us what you've observed about patient safety.

Other device companies have folks in the ER, or in practice settings. I believe Medtronic has been mentioned, and Kendall. No doubt others. I don’t know if this is still the case, but in the not-too-distant past, reps even had scrubs with their company names on them.

If there is no longer an impartial party ( the NIH ) to test new drugs and new surgical approaches, how can we trust the results of any study sponsored by interested parties?

Code of Federal Regulations: CFR, Title 45, Ch 46 Protection of Human Subjects, see what they do to wards of the state and end of life, (yours) unless you have it in writing. I’ve seen this done, some whacko physician scientist suddenly appears at the bedside of a dying patient to implant some stupid device that has nothing to do with the patient’s condition. These patients usually have no next of kin or if they do, they are lied to about the device, medication or other. Kind of like the baboon’s heart implanted in a newborn with the heart condition. The parents were poor and had limited education. The MD scientist jots a quick note that family notification was attempted. And guess what? They show up AFTER the patient dies and wonder what happened. This is abuse. Pt’s die rarely in the OR due to the legal paperwork, so they are sent to the ICU for more torture and bedside surgical “experiments”. This is not life saving. This is manslaughter and indignant. dhha org has still use of phase III Polyheme research trials , this is FAKE blood, used by EMT’s, again, No consent. I’d rather be dead than deader than dead pre hosp/OR arrival than be given that poison blood.

When I had a liver biopsy, the doctor told me that he was using a new device and asked if it was ok if two reps from the company that made the device were there. I said Ok. I don’t think they liked it when I fainted. They kind of rushed out.

So *is* it ok for company reps to be present or isn’t it?

It’s just that drug companies don’t have to take the Hippocratic Oath .

Unfortunately, things may be worse than even this.  I recommend a quick web search on “truper dawg hhs.”

The short version is that the FDA often outsources its approvals, and those contractors aren’t exactly skeptics.  When the contractors were caught, they argued that their business isn’t designed around catching trickery.  “The GAO perpetrated an extensive fraud against my company. You pulled the wool over our eyes—congratulations.”

So while what Synthes did was atrocious, I wouldn’t bet on the story ending much happier had they gone through the approval process.

Kris Alman MD

Nov. 28, 2012, 2:36 p.m.

Regarding the Hippocratic Oath, I believe ALL physicians should renew theirs. Physicians who follow this 1964 version would restore their integrity and bend the curve of health costs.
I swear to fulfill, to the best of my ability and judgment, this covenant:
I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.
I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism.
I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon’s knife or the chemist’s drug.
I will not be ashamed to say “I know not,” nor will I fail to call in my colleagues when the skills of another are needed for a patient’s recovery.
I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.
I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person’s family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.
I will prevent disease whenever I can, for prevention is preferable to cure.
I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.
If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.
—Written in 1964 by Louis Lasagna, Academic Dean of the School of Medicine at Tufts University, and used in many medical schools today.

@John, maybe not, but I’d rather point out the flaws in the approval process, than have to deal with widespread loophole target practice, wouldn’t you?

Bretta Lundell

Nov. 29, 2012, 11:35 a.m.

I think it is remarkable that the phrase
” I will prevent disease whenever I can, for prevention is preferable to cure.”  remains part of the Hippocratic Oath when, in fact, Medical Schools do not teach Health or Prevention! They spend little if any time teaching nutrition and lifestyle but spend close to 100% of the course curriculum on teaching all about Pharmaceuticals and how to prevent death once disease has stepped in.  I seldom meet a Doctor who shows any interest in alternative, natural healing, holistic cures and is usually impatient and irritated by patients who seek this type of therapy.  I have heard tell that the Chinese National Health Program provides for doctors to be paid according to how well their patients fare, and illness is not compensated the way it is in our society. We in the West are being sold out to Big Pharma which includes not only harsh chemicals for our bodies but also for our soil upon which we depend for food. Is it any wonder that most Doctors today are looking for profit and quick cures rather than health for their patients? There’s no money in health! If there were money in health, I guess we’d all be living too long!

Every surgery has the risk of mortality and morbidity.  Even in office procedures can lead to major complications.  Medicine is a practice not an exact science and with that comes risks.  It is tragic that people die from off label use of products in the OR, however did you ever consider that the alternative products may be so ineffective it is worth the risk to use the off label device.  It seems the issue is the patient was never given the opportunity to weigh in on the decision, but I see products used everyday in the OR with FDA approval and it is known that it could cause death or problems.  Those same products saved the patients life.  Should the doctors discuss that with patients as well.  My point is that there is an inherent risk in any surgery, and people should educate themselves to the best of there ability.  There will always be complications and deaths related to any surgery.  The FDA is a watchdog of sorts, however there will always be misrepresentation of products from medical device companies due to ignorance of the sales force or greed.  It is true that some device companies push for off label use, however the sales rep can end up in jail for miss representing a product for off label use.  One other note, just because something is off label does not mean that it is bad, it just means it is untested or unproven.


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