In “The Ethics of Willful Ignorance” which appeared in the Georgetown Journal of Legal Ethics Rebecca Roiphe notes that criminal enterprises “play with division of labor and responsibility and succeed by creating a sum more powerful than the enterprise’s parts and they do so, in part, by making sure that no individual and no firm is the repository for all the knowledge or all the wrongdoing. This creates “plausible deniability” , which protects both individuals and the enterprise. Lawyers often contribute to this dynamic by “defining their job narrowly.”
Government attorneys have broad obligations to the agencies they represent and the public and should act as ministers of justice in seeking to guide the court to the right and just decision as opposed to the “hired-gun” approach used by a private attorney zealously advocating for a client to guide the court to a preferred decision. Government attorneys must examine all of the evidence, ask questions and not accept the answers they are given in blind faith. Both the agency and the public are best served when misconduct, is identified through investigation and confrontation. If misconduct is found it must be directly addressed not overlooked or minimized. Comment 3 to Rule 1.13, referring to organizations as clients states “a lawyer cannot ignore the obvious.”
The objective of judicial review is not only to resolve a disagreement between an individual and a government agency over a specific decision, but also to ascertain the legality of that decision, to prevent abuse of power, and to achieve justice. Hopefully this will soon transpire. Justice also demands accountability and those responsible for wrongdoing must be identified and sanctioned for their misconduct.
What we have here is a lack of candor trying to cover up a lack of candor covering up for a lack of candor. It is a lack of candor cubed.
The majority of those working for their States Attorneys General are undoubtedly honest and decent people with integrity and possessing an intact moral compass that always guides them to try to do what is right in any given circumstance. This is why it is perplexing that complaints of corruption, fraud and serious color-of-law abuses are being reported by doctors in multiple states to their AGOs (and other law enforcement agencies) are seemingly being ignored. Complaints of specific crimes and abuse seem to go nowhere but a black-hole; never investigated, never pursued and in most cases never even acknowledged with the most common responses being a patent dismissal by a generic form letter or no response at all.
Corrupt organization necessarily put systems in place that are designed to prevent exposure of corruption and the “physician health racket” is no different. The absence of any meaningful oversight or regulation gives provides an unfair advantage to begin with as unlike most organizational systems in society (including prisons) no internal committee or outside agency exists to acknowledge or investigate the complaints of those who feel they have been treated unfairly or abused. Neither the state physician health programs nor their affiliates have any meaningful oversight or regulation. The “PHP-approved” assessment and treatment centers are cash only and without the involvement of insurance agencies it is hard to find anyone to investigate the “diagnosis rigging” and other misconduct. The commercial drug-testing labs use non-FDA approved drug and alcohol testing with no FDA or any meaningful oversight. In fact no outside agency exists to hold anyone to account in this system even if misconduct or abuse is identified as the scant regulation and oversight that exists does not have the ability to punish. (for example the only organization overseeing the non-FDA approved drug and alcohol testing in any manner is the College of American Pathologists (CAP). CAP is an accreditation agency and not a disciplinary agency and they cannot sanction or punish a lab even if misconduct is discovered or even if misconduct is repeated. “Do better next time” is the best they can do. No direct accountability exists in this entire system. It is a perfect storm for a hidden abuse of power and unaccountability.
They have additionally put systems in place to prevent indirect exposure from doctors who complain to their state medical boards, state medical societies or national associations such as the American Medical Association (AMA) from reaching a discernible mass and the few complaints that actually do make it through these barriers are often written off as the product of disgruntled bellyachers and isolated anomalies.
Although they may differ in mechanics state to state the PHPs have aligned themselves with medical boards in a manner that prevents exposure of the corruption. They have pushed public policy supporting not only deference and blind faith in the authority and expertise of the PHP but protects them from exposure. Massachusetts board-of-registration-in-medicine-policy-94-002 created Board counsel for the physician-health-and-compliance-unit independent of the board and with no accountability to the board. The policy also allowed the PHCU the ability to act as their own “hearing officers” and present cases and make recommendations on disposition to the board. These are tasks that are usually spread out among different individuals. This puts physician health cases entirely in their hands and removes due process for any physician health related case as these individuals are in charge of what is accepted as evidence and also what is presented to the board. They can do whatever they want and this is apparently what has been going on for some time as they have become judge, jury and executioner. It urgently needs to be recognized that the PHCU does not represent the best interests of the state or public. They are simply puppets for the state PHP.
Additionally, those involved with state physician health programs are often involved with ethics committees at state medical societies as well as local chapters of national organizations such as the American Psychiatric Association (APA). These committees appoint “cognizant reviewers” who are tasked with screening all complaints and separating the frivolous and inappropriate complaints from the valid complaints that are then passed on to the full committee. Placing themselves and those of like-mind in these positions is another way to block valid complaints and my guess is they have a similar system of blocking valid complaints at the state AGO.