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New Center for Physician Rights Helps Protect, Guide Doctors
Physicians who believe they have been subjected to unfair treatment and/or discipline by a state medical board, physician health program (PHP), or other regulatory body now have a place to turn for information, advice, and support.
“We will tell them, here’s what you need to look out for; here are the warning signs of a sham peer review; here are some methods to approach this; here is why you need to have a lawyer who specializes in this and not a generic lawyer,” he said. A practicing psychiatrist for some 30 years who had no previous disciplinary problems with any licensing body, Manion said he was put on the defensive when an anonymous source raised concerns about his mental health, which resulted in an investigation by the NCMB.
Although an independent, comprehensive psychological evaluation determined he had no mental disorder or other psychological impairment, an assessment by the NCMB concluded otherwise, and he was forced to deactivate his medical license.
In 2016, he launched a lawsuit against the North Carolina PHP and the NCMB, which was ultimately unsuccessful on appeal because it exceeded the time limit for filing a petition. As reported by Medscape Medical News at that time, Manion blamed the board and the PHP for using stall tactics to delay the legal process.
In the midst of his struggles, Manion organized a physician advocacy study group whose members were experts in this area or “who had been traumatized” by firsthand experiencwith a state medical board or PHP, he said.
Subsequently, the group began reaching out to the physician community and gradually became more visible, he said. As it did so, individual physicians, some of them “desperate” in the face of a PHP accusation, began reaching out for help.
Now, with the official launch of the CPR, said Manion, these physicians have a one-stop access point for assistance.
Many of these cases, he said, have devastating psychological effects on the accused, including suicidality.
Another of the CPR’s key players is Louise B. Andrew, MD, JD, an emergency physician, internist, and lawyer. Andrew has a keen interest in physician suicide prevention. Her interest in this began when a number of such deaths occurred during her medical training and while on faculty at Duke University in Durham, North Carolina, and Johns Hopkins Medical School in Baltimore, Maryland.
While chairing the Well-being Committee of the American College of Emergency Physicians (ACEP), she was contacted by members who claimed to have been treated inappropriately by PHPs.
“Some had depression and were being forced into drug treatment programs that bankrupted them and in some cases ran them out of medicine and, in at least one case, caused a suicide. That disturbed me a great deal, and I’m continuing to see more of the same,” she told Medscape Medical News.
Andrew was licensed for a number of years in her home state of North Carolina. She said she was “appalled” when, in 2008, she received the standard license renewal application requesting all prior medical records for “vetting by the PHP as to the need for intervention and monitoring.”
As a lawyer, as well as a physicians, and having represented the ACEP for years at the Federation of State Medical Boards (FSMB), she knew the request was unorthodox, she said.
Since the North Carolina license was superfluous because she was no longer living in the state, she deactivated it in protest.
“I had learned at the FSMB that there was competition among state medical licensure boards to increase their disciplinary statistics, so I began monitoring the issue,” she said.
“Critical” New Resource
The CPR, said Andrew, will be a “critical” resource for physicians, who, when they become involved in an investigation, “are often induced to relinquish their basic rights, believing that they have nothing to hide and that these organizations exist to protect them.”
These physicians “are tacitly or even actively discouraged from seeking legal counsel,” said Andrew.
“They often find themselves railroaded into treatment that is unjustified and held hostage by the threat of licensure action; and because if they have signed away rights, are not even able to fight the injustice legally.”
Manion plans to apply for nonprofit status to make the CPR a charitable organization. Andrew is pitching in to help with this process.
She has experience setting up nonprofit organizations designed to help physicians. One of them, the Coalition and Center for Ethical Medical Testimony, provides education for those involved in medical malpractice cases.
Manion’s group is also pulling together a book of personal essays and advice columns, tentatively entitled Disrupted Doc, to help raise funds.
A contributor to that book, Anne Phelan-Adams, MD, is an original member of the advocacy work group. Like Manion, her personal story prompted her to become active.
About 3 years ago, Phelan-Adams, who had been practicing medicine for more than 35 years, experienced a personal crisis that “devastated” her but from which she completely recovered. Nevertheless, the Ohio state medical board launched an investigation into her personal circumstances.
After she refused to agree to a 3-month stint in residential treatment, she allowed the board to revoke her medical license.
“I was unwilling to spend 90 days in an alcohol and drug treatment center because I didn’t have either alcoholism or addiction,” she told Medscape Medical News.
Civil Rights Violation?
After talking to other healthcare professionals in similar circumstances and doing some additional research, she discovered that her story is far from unique.
“It’s clear that the basic civil rights of countless healthcare professionals have been flagrantly violated by state licensing boards,” she alleges.
Many medical boards, she said, have “devolved into quasi-judicial, extra-legal agencies that are rife with civil rights violations, hidden agendas, and financial conflicts of interest.”
As for PHPs, these “have degenerated into pseudo-medical, state sanctioned profit centers that have dubious financial relationships with the expensive rehabilitation facilities and psychiatric hospitals” into which they funnel their “impaired” physicians, she said.
A key element of the CPR is peer support and talking to someone who has been through the experience. A physician who asked to remain anonymous because he’s still practicing and is concerned about professional repercussions will be stepping into this peer support role.
As a result of one conviction for driving under the influence almost 4 years ago, the physician completed a “very rigorous, long, and intense court-ordered” treatment program.
During that program, the Washington state medical board “issued a press release saying my medical license had been suspended for noncompliance with treatment for alcohol abuse, which was totally unfounded,” he told Medscape Medical News. He only learned of his license suspension through the media.
“I know from experience that this can do a total number on someone emotionally, psychologically, spiritually, and every which way; it’s extremely traumatic,” he said.
A Sense of Hope
He wants to offer physicians a “sense of hope.” His medical license was reinstated – albeit after almost a year and at a cost of thousands of dollars in legal fees, he said. Nevertheless, he describes himself as “one of the fortunate ones.”
He also envisions “being a kind of voice of reality” to those facing this kind of situation.
Manion’s plan also includes educating legal groups.
“We want to serve as knowledge experts about what really goes on in the medical community, because lawyers haven’t got a clue, for the most part,” said Manion.
Another important role of the CPR is advocacy.
“This is not just about helping the individual physician; it’s about taking a legislative stance and making changes,” said Manion.
Many areas require reform, he said. He pointed to the North Carolina PHP that “went behind the scenes” and lobbied the state legislature to change the wording of the law governing what it’s allowed to do.
“Believe it or not, the law gave the PHP basically the equivalent of a medical license – to evaluate and refer,” he said
Auditor Report Follow-up?
He wants to know what happened to the 2014 North Carolina auditor’s report that raised the possibility that some physicians “were deprived of legally required due process.”
The auditor was supposed to follow-up within 18 months, but nothing came of it, said Manion.
“We have the feeling [the auditor] may have been pressured into making this go away. But we’re saying that this is not going away; physicians are being harmed,” he said.
In the wake of allegations of financial conflicts of interest and inadequate treatment options for nonaddictive illness against the North Carolina PHP, a work group of the American Psychiatric Association (APA) Council on Psychiatry and Law was tasked with looking into standards and practices of PHPs across the board.
Last year, the work group issued a report that said it “does not confirm or deny the veracity of those allegations.”
However, the report did include several recommendations on appropriately dealing with physicians who have a mental health or substance use problem.
One recommendation is that in addition to the traditional chemical dependency treatment track, “there should be treatment tracks designed specifically for the management of psychiatric disorders or other medical disorders that do not require traditional substance abuse program elements.”
Wherever possible, the report notes, physician evaluations should occur within the boundaries of his or her locale and the medical board’s own jurisdiction.
No Place for Financial Gain
It’s noteworthy that the report outlined explicit policies to discourage financial conflicts of interest.
“PHPs should not operate for the purpose of making a profit,” the authors note.
The document was posted on the APA website and is available to all APA district branches.
But it’s simply a road map. According to the APA, it has no authority to intervene on behalf of individual physicians who complain about treatment by a PHP.
As a “private collection of doctors” and not a government agency, it has no investigative authority and can’t subpoena documents or records.
Class Action Lawsuit
But the courts do. A class action lawsuit is being pursued in the state of Michigan.
The case began more than 3 years ago, when lawyers filed a suit against the Michigan Health Professional Recovery Program, which is that state’s equivalent of a PHP, on behalf of three nurses and a physician assistant.
Since then, several hurdles have been cleared, said Ronald W. Chapman II, Esq, LLM, whose legal firm, Chapman Law Group, in Troy, Michigan, is handling the case.
“We have survived two rounds of motions to dismiss by the PHP and the state, and the judge ruled that we have viable claims,” Chapman told Medscape Medical News.
Another success, said Chapman, has been securing “a significant amount of discovery.”
What he and his colleague uncovered, he said, was that if there was any indication that a healthcare provider might be impaired, they were sent to a PHP.
If the provider refused to contact the PHP or didn’t accept its request to be monitored, the state would “automatically” suspend their license.
In addition, if they accept monitoring, “we found that the PHP was applying broad-based treatment decisions and protocols and were unfairly recommending monitoring for people who didn’t have an indication of a diagnosis,” said Chapman.
Currently, he and his team are awaiting class certification.
“We have oral arguments before a federal judge next month to deal with the issue of class certification,” he said.
Once that’s in hand, the road to a trial should be much smoother. However, he added, a settlement is also possible.
“They might see that they are going to be on the hook for damages to a large swathe of the Michigan health professional population,” he said.
The current focus of the CPR is on physicians, but Manion plans to expand this to include all healthcare providers – nurses, dentists, veterinarians, and pharmacists. “We have seen them all harmed,” he said.
AMA Weighs In
Medscape Medical News contacted the FSMB, the NCMB, and the Federation of State Physician Health Programs (FSPHP) for their take on the CPR. The FSMB and the NCMB both declined to comment. The FSPHP had not responded at press time.
Medscape Medical News also contacted the American Medical Association (AMA) to determine whether there has been an uptick in member complaints about unfair treatment at the hands of PHPs or state medical boards.
“The AMA can’t corroborate that there’s a trend in physicians being subjected to unjustified or unfair medical board investigations,” Robert J. Mills, the AMA’s media relations manager, told Medscape Medical News.
“The regulation of medicine is a state-run process governed by the laws and statutes of the local state legislature. On matters of state law and regulation, the AMA defers to local state medical associations as the primary authorities.
“The state medical associations are best positioned to monitor the state medical boards and take investigative action if there are causes for concern,” he added.
Medscape Medical News © 2018
Cite this article: New Center for Physician Rights Helps Protect, Guide Doctors – Medscape – Nov 09, 2018.