Update on Dr. Jennifer Daniels: are state medical
boards biased against racial and
Marcus A. Cohen
I devoted my first column in Townsend to Dr. Jennifer Daniels (Feb./March 2004). New York's Office of Professional Medical Conduct (OPMC) had indefinitely suspended her license to practice in 2001--punishment for her refusal to submit to a comprehensive review of her records. Dr. Daniels went into State court, seeking judicial review of the indefinite suspension, and two years later the court ruled that New York law did not allow indefinite suspensions of medical licenses. The court remanded her case to the New York Health Department with instructions for an administrative review board (ARB) to come up with an "appropriate" penalty.
"When the government fears the people, you have liberty. When the people fear the government, you have tyranny."
I promised an update on the ARB's new penalty and subsequent actions in Dr. Daniels' case: early in 2004, the ARB suspended her for three years, stayed the penalty, and commuted it to probation for three years. As usual, terms were attached to the probationary period. Among the conditions imposed, she had to practice under supervision by a physician approved by the OPMC, and she had to double the amount of her malpractice insurance--from three to six million.
Dr. Daniels found a mainstream MD willing to supervise her. The agency rejected her choice, stating that this physician was unfamiliar with complementary and alternative medicine (CAM). Up to that moment, Dr. Daniels had no idea that the Health Department had classified her with CAM practitioners. In retrospect, she's reconstructed how the OPMC had associated her with CAM.
Her therapeutic approach at the start was mainstream. Nonetheless, insurance companies resisted reimbursement to claims put in by her or her patients. At meetings with other Afro-American MDs in her area, she discovered that those associated with white doctors received payment. Those in solo practice were experiencing the same difficulty in getting insurers to cover their treatments.
Turning to her patients, she asked them what sort of care they would pay for out of pocket. The majority favored alternatives to the expensive, invasive treatments for many conditions recommended by most mainstream physicians; Dr. Daniels boned up on herbal, homeopathic, and nutrition-based therapies, offering these as options to her patients.
With her first choice nixed by the OPMC, she then asked a number of CAM practitioners to supervise her. Since that would involve submitting periodic reports to the Health Department, with their names attached (in effect, red-flagging them as CAM doctors), they declined.
Doubling her insurance: No insurer would cover her unless she served a year as a resident in an area hospital willing to pay half the cost of the premiums. She would have to work without pay during the whole of that period, impossible for her to do with three adolescent children to support. Further, as a resident, she would have no say over the patients she saw. Her former patients, happy under her care when she was in private practice, were unlikely to have access to her at the hospital.
Discouraged, Dr. Daniels gave up on returning to practice, only she didn't advise the OPMC of her decision in writing--a violation of the terms of probation in the OPMC's view. Charging her with probation violation, they opened hearings on revocation of her license. Dr. Daniels attended the first hearing, where the OPMC advised her that if she voluntarily surrendered her license--a kind of negotiated settlement of her case--she could apply for re-licensing in three years. (The ordinary waiting period is five years.) She accepted voluntary surrender.
In January of this year, the US Department of Health and Human Services (HHS) warned Dr. Daniels in writing that she would be barred from participation in any medical program--in any occupational capacity (clerk, cook, etc., never mind as a provider of health care)--funded in whole or part by the Federal government, if she did not apply for and regain her license in New York. Should she qualify for a medical license in any other state, the HHS ban would still be binding. As a refresher on Dr. Daniels' career, I quote from my previous column about her:
"Jennifer Daniels grew up on the south side of Syracuse in a low-income, predominantly Afro-American community. Intent on becoming a physician from elementary school on, she earned a scholarship to Harvard, graduating from the pre-med program with honors. She then earned an MD at the University of Pennsylvania and an MBA at the Wharton School, simultaneously gaining both degrees in four years.
"In 1991, she opened a family practice in her old south side neighborhood, resettling with her children in a house a few blocks from her office. Until she returned to provide medical care, her neighbors had to travel far outside their community to see a physician.
"Borrowing from a local bank, Dr. Daniels bought a vacant lot and constructed her own medical building. Six weeks after completion she began laying aside money to pay off the loans, repaying all $190,000 borrowed for construction within three years.
"Impressed by her business sense," The Wall Street Journal featured Dr. Daniels in its "Black Entrepreneurship" column in 1993. Only 35 at the time, she had become a role model for many Afro-Americans in Syracuse, an outspoken advocate for safeguarding and revitalizing the inner-city area where she lived and worked.
My prime (and continuing) reason for bringing Dr. Daniels' disciplinary case to public attention revolves around the New York court's rejection of the indefinite suspension of her license. Here, the OPMC wasn't skirting due process guarantees of a fair hearing, as frequently alleged by the agency's critics. The OPMC ought to have known what the statutes allow in license suspensions, and most likely did know, but given the long history of New York court decisions upholding OPMC actions, the agency probably felt there was a good chance that the justices would wink at its indefinite suspension of Daniels.
Had the court ruled in favor of the OPMC in her appeal, it could have created a precedent permitting suspensions without term, contrary to existing statutes, which the agency could point to thereafter in circumventing the letter of the law whenever it chose. That, apparently, was too much for the justices to swallow.
Earlier, I had been alerted to a sharp rise in license revocations of mainstream MDs in the Syracuse area. Dr. Daniels had advised me that she had spoken with the head of the local medical society, and he was at a loss to explain the sudden increase in license revocations, which he strongly deplored. Most of the doctors revoked, he said, were members of the local society, mainstream in approach and white.
Recently, Dr. Daniels gave me a wry footnote to the unusual amount of OPMC prosecutions in and around Syracuse. They were numerous enough, she noted, for several New York City law firms to open upstate branches to represent doctors enmeshed in the spate of misconduct proceedings.
As I followed Dr. Daniels' case from the court opinion voiding her indefinite suspension to her voluntary surrender of her license, my zest for investigation of the "shadowy circumstances" surrounding the OPMC's attacks against mainstream MDs in the Syracuse area diminished. I had begun to pick up signals that several black doctors had gone to Federal court complaining that state medical board proceedings against them has been activated chiefly by racial prejudice; if true, the possibility that racial or ethnic biases might be tainting state medical board investigations and prosecutions seemed of great significance--a situation urgently in need of public exposure.
Two black physicians in Western New York and one in North Carolina have taken the Federal court route. Their cases are active. I recalled in this connection that Dr. Daniels had brought up racial bias in her complaint in the New York court. The justices said they couldn't find prejudice on the basis of race by the OPMC, but if she wished to pursue that argument, the appropriate judicial venue was the Federal court. Tangling with the OPMC over her license for three years had cost Daniels her livelihood and broken her financially; there was no way she could initiate a lawsuit in Federal court.
In December, 2004, the Journal of the National Medical Association carried a report titled, "African-American Physicians Under Attack (The NMA's Response)." Founded in 1909, the NMA is a voice for black physicians. The author of the report, James S. Tate, Jr., MD, FACS, chairs the NMA's Council on Clinical Practice. I quote from Dr. Tate's report:
"While we know that black physicians are coming under attack on an increasing basis, we don't have the numbers, and the only way we can get the numbers is if those physician members of the NMA are willing to step forward and let us know what is going on in their area with them and their colleagues. It must be understood by everyone that an attack on you by your state board or your hospital peer review committee ... is not necessarily a feeling on your part. You merely represent the competition and a readily available game animal."
Dr. Tate has expressed interest in helping me document the extent of racially-motivated attacks on black physicians. As for credible explanations for the greater frequency of these attacks, competition appears to be a reasonable point of departure. Dr. Tate has offered to supply additional causes and examples of each.
My next column, therefore, will focus on the Federal cases claiming racial prejudice in state medical board proceedings, and will also analyze two cases brought by white MDs; the first for malicious prosecution, the second basically to oblige state medical boards to observe Federal due process guarantees for fair trials (rather than state administrative due process protections, which these boards cavalierly tend to disregard).
Three points need emphasis in conclusion here: Black MDs, wherever they earn their medical degrees, obtain board certification in medical specialties from the same boards that certify white doctors, and many black physicians are board-certified.
The patients treated by black physicians range over the color and ethnic spectrums. The sole, quite contestable complaint that set the OPMC and Dr. Daniels on a collision course came from a white diabetic patient. One of the black MDs in western New York now in Federal court met a former patient in a supermarket after the OPMC revoked this physician's license. The patient, white, with a PhD in sociology, post-menopausal, under individualized HRT treatment by this physician--who was board-certified in Ob-Gyn--was responding very well. Aware that her doctor of choice was no longer available, distraught at the prospect of searching for another physician to treat her condition on an individualized basis (not by the medical "cookbook"), she burst into tears.
Lastly, reform of New York's OPMC and other state medical boards to date has focused on abuse of due process (an indispensable step). Beyond this, CAM patients, practitioners, and supporters are plunging more and more into the political arena to establish a regulatory environment that allows majority and minority health-care approaches to coexist with less conflict. Now, allegations of racial and ethnic bias in medical disciplinary proceedings are being brought into the open, and efforts to prevent it and activate opposition to such harmful prejudice are strengthening.
Misbehavior on the part of state medical boards in determinations of physician misconduct should be corrected on all these fronts. Doctors unfairly disciplined are in the front ranks of people savaged by them. Ultimately, patients whose physicians are revoked lose the right to choose the services of doctors they prefer or medical options they need, especially where conventional care fails, and this group is much larger, so the damage and grievances are more unconscionable.
by Marcus A. Cohen
8 East 96th Street #1C
New York, New York 10128
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