Two exemplary tales of medical license
suspensions vigorously opposed and
Townsend Letter for Doctors and Patients, June, 2005 by Marcus A. Cohen
My recent Townsend columns about the Office of Professional Medical Conduct (OPMC), the New York agency that disciplines MDs for substandard practice, have been short on good news. There was one thoroughly positive development: two bills to restrain the OPMC from abuse of due process had passed both houses of the Legislature during the summer of 2004 and needed only Governor George Pataki's signature to become law. Pataki vetoed them at the end of the year (see my column in April), chilling hope of immediate health-care reform in the Empire State.
"When the government fears the people, you have liberty. When the people fear the government, you have tyranny."
An earlier series I had published on the OPMC in the Townsend Letter (2001-2003) documented disciplinary actions by the OPMC which flouted New York laws and Health Department regulations meant to insure fair proceedings. That series also suggested that the word "proceedings" for those actions is too mild, too neutral. If one scrutinizes and adds up the due process abuses reported, and calculates the losses in pocket and reputation to doctors--omitting the "collateral damage" to patients dependent on them--one carries away the impression that these flawed investigations and prosecutions resemble back-alley muggings more than they do the orderly, civil administrative hearings they are presumed to be.
Townsend readers are prone to believe that state medical boards disproportionately target providers of complementary and alternative medicine (CAM). True, but in general the boards seem to train their sights on physicians who, having distanced themselves from the herd, make easy prey.
Doctors specializing in CAM by definition depart from community practice. Others get hit for using standard therapies in ways frowned on by a majority of mainstream practitioners, for instance; MDs who treat chronic Lyme disease with long-term IV antibiotics. Others appear to come under fire largely because they have solo practices and often treat patients without supervision by institutional review boards (IRBs). Still others are tracked by insurers who find the treatments given by these doctors in conflict with patterns of use that the insurers approve; the insurers then notify the state medical boards, calling for penalties to force the doctors to conform to insurance industry standards.
Lately, I've heard allegations of racial and ethnic bias in state medical board disciplinary actions. The prejudice seems chiefly directed at black MDs, including physicians born and medically trained in the US and those born and educated in medical schools abroad. Since 9/11, in at least several states, the proportion of MDs with names common in the Middle East and the Indian subcontinent has risen noticeably. I'm now investigating these apparently prejudiced prosecutions.
This column is about two MDs whose licenses were suspended, who then refused to serve as game animals, hiding in the tall grass to escape detection or pursuit, and pounced back on their attackers. One case, dating to the mid-1990s, involved the California medical board; I detail this case here. The second, quite recent, involves the OPMC; I mention it here for its precedent-setting value but reserve extended coverage for a column in the near future. In both, political factors appear to be the prime activators.
Dr. James S. Tate, Jr., chair of the Council on Clinical Practice, the National Medical Association (NMA), provided the earlier story. I interviewed him over the phone, expecting aid in collecting evidence on the scope of medical board bias against black physicians. At the beginning of the interview, he recalled the case which made him aware that such prejudice appeared to be a serious problem. The case was so arresting in its origin and outcome, it compelled me to feature it here.
Dr. Rosalind Scott is the first black woman to earn board certification in cardio-thoracic surgery. In 1995, she held the position of Assistant Chief of Surgery at Martin Luther King, Jr., Hospital and Medical Center, situated in a black neighborhood in Los Angeles. At the time, the Chief of Surgery was black, too. Many attending and resident physicians were black.
One evening, the surgical chief asked her to stand in and supervise recoveries from emergency surgery, a duty routinely requiring the supervising physician to drop into intensive care units periodically to assure that no medical problems were cropping up.
That evening, the first Asian member of the LAPD had the misfortune of sticking his face into a botched drug bust in the neighborhood served by Martin Luther King. Rushed to this hospital with 14 bullets in him, the trauma staff fought to save his life, giving him 22 pints of blood. To no one's great surprise, he succumbed two days later.
Gil Garcetti was the LA District Attorney in those days. He had gained national attention by indicting O.J. Simpson for murder, and reportedly was ticked after the case went to trial and the jury cleared Simpson. Some black LA newspapers blasted him as a publicity-hungry racist during Simpson's indictment and trial, reflecting the perception of many blacks in LA (and around the nation).
Garcetti reacted to the death of the Asian law enforcement officer by convening a grand jury and trying to bully its members into indicting Dr. Scott for Murder 2. When the jury wouldn't swallow that, he again sought to bully it into indicting Dr. Scott for manslaughter. The jury also gagged at that. Garcetti's abuse of the grand jury in this matter is on public record, and considering the fact that Dr. Scott wasn't directly involved in the officer's treatment, that death was the likely outcome of his profuse wounds and loss of blood, Garcetti's thirst for an indictment seems unreasonable, even bizarre.
Apparently frustrated by the grand jury's rebuff, Garcetti sent information to the California medical board, prodding them to investigate Scott. Without conducting an investigation, as required by state law, the board suspended her license to practice.
Scott's initial response was to keep a low profile and deal with the suspension as a matter for her and the California board to thrash out--the first reaction by most MDs hit with crippling disciplinary penalties (with or without advice from defense lawyers). Some time after assuming this defensive posture, an Irish lawyer counseled her to go public, and to enlist support from colleagues.
Region 6 of the NMA sent the first protest letter to the California board. Six months later, the whole board of trustees of the NMA sent a letter. Contacted by the NMA, the National Association for the Advancement of Colored People (NAACP) appealed to the board, which is required by law to provide a time period for public comments on its cases. Next, the American Board of Cardio-Thoracic Surgeons wrote on Scott's behalf; this was after discussions with the NMA, who impressed on the specialty board that what had befallen Dr. Scott could befall any of its members. Finally, after discussions with NMA members, the California Medical Association (CMA) weighed in. (An NMA member was president of the CMA at the time.)
Several very distinguished black physicians added their support, foremost among them, Dr. Eddie Hoover in Buffalo, New York, a cardio-thoracic surgeon then serving as president of the Society of Black Surgeons. Dr. Hoover also persuaded the Society to send a sizable contribution to Dr. Scott's defense fund.
Bit by bit, an action that the California medical board had taken, probably thinking that the worst consequence might be a controllable local outcry, had exploded into a national protest by supporters of Dr. Scott who were too powerful to fob off.
Squirming under the intensifying heat of numerous spotlights, the California agency resorted to a habitual expedient by medical boards in wiping egg off their faces--without signaling that they were caving under pressure.
They ordered Dr. Scott to submit to a test of her fitness to resume practice, appointed a cardio-thoracic specialist to test her, and set an exam date. She came, accompanied by a prominent older colleague, Dr. Clark Organ, chief of surgery at a major medical facility in Oakland, California, and a former president of the American Board of Surgery. According to Dr. Tate, "she took her examiner to school." (He had been out of clinical practice five years.)
Sixty days later, the medical board issued a two-sentence ruling, stating in effect that they had dismissed their case against her: no apologies for barring her from practice and preventing her from earning income from her profession for two years, for stigmatization in the media, for emotional duress suffered throughout her unjustified ordeal.
Few physicians can count on the solid outpouring of support that Dr. Scott mustered. A crucial impediment is the fear of reprisal by state boards. MDs who testify in person or in writing on behalf of colleagues under investigation or trial can face investigation and even prosecution themselves. Intimidation of friendly witnesses has been reliably documented, particularly among CAM practitioners.
The defense usually advised by attorneys savvy to the strong-arm tactics and threats of state medical boards is a negotiated settlement (where the health commissioner or prosecutors are not panting in pursuit of a doctor and may consent). Instead of imposition of the penalty proposed, the MD accepts a less severe form of discipline, and leaves rapidly, content to keep his or her license, relieved to be released with skin intact.
Less often, physicians aggrieved over charges of professional misconduct believed by them to be unwarranted, convinced that the medical board is incapable of hearing them fairly, will go to state court and ask it to stay the proceedings and rule on the fairness of the hearing. Almost routinely, the court orders them back into hearings, telling them to return if they still believe they haven't gotten a fair shake--after the conclusion of the administrative process. At that point, if they've been suspended or they've had their license revoked, and they're in a state whose laws forbid them to practice while appealing a disciplinary action, they'll sooner or later be strapped for money to continue the appeal; there's no current practice income, and they've exhausted their savings.
When Dr. Antonia Novello, New York's commissioner of health, summarily suspended Dr. Mario DiBlasio's license in 2000, this New York radiologist sued her for malicious prosecution in the Federal court (2002); he brought suit only after a health department hearing panel had dismissed his case.
The US Court of Appeals, Second Circuit, issued a decision (2003) holding that Novello and her co-defendants were not protected by absolute immunity while performing their official duties, and that Section 230 of the New York Public Health Law inadequately protected physicians from wrongful deprivation of their professional licenses.
Much more here on the context and general implications of Dr. DiBlasio's case, which has several parts, in my next column--if his attorneys (who've taken a partial hide-in-the-tall-grass position), OK discussion of the full public record.
by Marcus A. Cohen
8 East 96th Street #1C
New York, New York 10128
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