Louisiana Needs to Rein in Unaccountable Medical Board, States AAPS — AAPS | Association of American Physicians and Surgeons

The Louisiana legislature is considering a bill that would give physicians the same due process rights as citizens accused of a crime, instead of treating them as guilty until proven innocent, states the Association of American Physicians and Surgeons (AAPS). Senate Bill 286 by Sen. John Milkovich, D-Shreveport, would assure that physicians have the right […]

via Louisiana Needs to Rein in Unaccountable Medical Board, States AAPS — AAPS | Association of American Physicians and Surgeons

The Louisiana legislature is considering a bill that would give physicians the same due process rights as citizens accused of a crime, instead of treating them as guilty until proven innocent, states the Association of American Physicians and Surgeons (AAPS). Senate Bill 286 by Sen. John Milkovich, D-Shreveport, would assure that physicians have the right to know their accusers and have access to all the evidence and documents acquired in the investigation.

“Medical board proceedings are not like a court of law, where the accused has to be proven guilty before a jury and an unbiased judge,” states AAPS director Jane M. Orient, M.D. “It’s a form of administrative law, where an unaccountable government agency is prosecutor, judge, jury, and executioner. Physicians have little opportunity to present a defense.”

“Sanctions imposed by the board can be the equivalent of a professional death sentence,” she said. “And actual deaths through suicide have occurred, as in the case of a doctor who found that his livelihood was destroyed despite reinstatement of his license.”

There is a nominal (and expensive) right to a review in court, but the Louisiana State Board of Medical Examiners has reportedly not lost a review in 20 years. “Courts typically rubber-stamp the decisions of ‘expert’ boards,” Dr. Orient stated. “Proposed legislation would give a physician the right to a de novo trial, in which the court would look at the evidence first-hand for itself.”

In Texas, where a physician got a rare favorable decision from an administrative law judge, she noted that the judge was forced to resign under pressure from the Texas Medical Board.

Public Citizen opposes the law because it would supposedly “hinder the conduct of LSBME investigations” and thus somehow impede its ability to “protect the public from dangerous doctors.” It especially objects to allowing physicians to request that an investigator be replaced for being “biased, hostile, or unfair.”

“Public Citizen, which styles itself as a ‘consumer advocacy group,’ rates medical boards based on the number of doctors they punish,” states Dr. Orient, “without regard to justice. Truly questionable doctors may get complaints dismissed, while good doctors are ruined, perhaps because they reported a patient safety issue and incurred the displeasure of a politically well-connected entity.”

“The public would not be made safe from criminals by imprisoning people based on anonymous complaints without proof of guilt. Doctors are citizens too, not Public Enemy Number One,” she concludes.

The Association of American Physicians and Surgeons (AAPS) is a national organization representing physicians in all specialties, founded in 1943.

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Guest Post: “The Perilous Physician Licensing Landscape” by Kernan Manion, MD

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Over the years, many have visited Michael’s audacious blog as he’s dared open eyes about concealed abuse by medical boards, physician health programs and hospital-based peer review committees. 

Through shared experience, Michael and I have been studying these issues for nearly a decade. We are amongst a handful of physicians nationally who get the big picture and know the career-threatening challenges one faces in responding to and interacting with medical licensing boards, PHPs and related entities.

In fact, we’ve been founding members of a study group loosely referred to as the Coalition for Physician Advocacy (which I’ve cross linked to from here on occasion). Amongst the members of that think tank are a major writer-advocate of PHP reform; an MD JD whose focus is on disability law, mental health issues and litigation stress; a former vice chair of psychiatry at a well-recognized academic center; and an established addictions psychiatrist who is multiply boarded and is also a retired brigadier general. All have come together to address what we collectively feel are major abuses of privilege by a significant number of state medical boards and PHPs. We have observed the remarkable similarity in many of these due process deprived dealings to that of sham peer review. 

You would likely recognize our Coalition members’ names from their prominent articles and comments on many blog pieces over these last several years in Medscape, KevinMD, Medical Economics; Journal of Addiction Medicine; et al. Just look anywhere where Michael or I have posted comments. And with each gathering comment bearing witness to these gross abuses, we are gaining immense strength.

Michael encouraged me to convey through this guest post that we’re offering a free informational webinar “The Perilous Physician Licensing Landscape” on Monday 4/16 at 8pm EDT specifically pertaining to the issues. 

You can register here: http://bit.ly/LicensePeril

Over the years, we have collectively spoken with hundreds of physicians who have shared their stories of abuse at the hands of these agencies and the harm that has ensued to their practices, their careers and their patients. Of course, throughout this ordeal, their personal and family lives have been thrown into turmoil as well.

This concise webinar will provide not only an overview of these key issues and what we’ve learned through hundreds of consultations but also some very practical “do’s and don’ts” in dealing with medical boards and PHPs. And these pertain not only to physicians and all others in healthcare – both with degrees and still in preparation – but to their families and even their counsel. 

We’ve heard many heart-rending stories of immense suffering and injustice meted out by these unregulated entities. Many have been badly traumatized, so much so that they fear retribution and further harm if they dare speak out.

And it’s our goal to use our expertise to help our fellow physicians negotiate their way through these very dangerous waters.

Be sure to join us Monday 4/16 at 8pm EDT for The Perilous Physician Licensing Landscape.”

Register here: http://bit.ly/LicensePeril

And even if you can’t make it, be sure to register in order to get the replay link and any handouts.

I can’t close without offering tribute to Michael’s perseverance in the face of all adversity. He’s continued to expose these abuses, and suffered greatly for it. I am confident, in significant part due to his relentlessly hard-hitting well researched essays, that national exposure is growing, that journalists are taking note and the powers that have so menacingly operated like demonic Wizards of Oz are now having to examine their vulnerability to their reckless sadism being exposed. 

On behalf of Michael and myself, I hope this finds you well and that you’ll be able to join us for the webinar.

Kernan Manion, MD

p.s. In the event that you know of colleagues who might benefit, please share this invite – just copy the url of this webpage and paste it in an email.

p.p.s. And … if you’re on any social media or physician discussion groups (e.g. Sermo, Doximity, LinkedIn et al.), just copy and paste this link below into your post inviting people to attend. Knowledgeable career-saving help is available. You don’t need to face it alone. Learn what you can and need to do to protect your career in the event that your license is jeopardized by these entities. Here’s the link again: http://bit.ly/LicensePeril

Massachusetts Governor Charlie Baker Moves to Control Professional Boards

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Baker moves to control professional boards

By Christian M. Wade Statehouse Reporter May 11, 2016

BOSTON — Dozens of independent boards that regulate doctors, barbers, electrical workers and an array of other professionals could soon be pulled under the state’s umbrella — a move that trade groups complain smacks of government overreach.

Lawmakers are considering a bill filed by Gov. Charlie Baker to limit the independence of licensing boards and give the state the power to “review and veto” any action deemed to stifle competition.

The proposal responds to a U.S. Supreme Court opinion last year that boards controlled by members of the profession they regulate are not immune from antitrust lawsuits.

In that case, the court ruled that the state dental board in North Carolina had no protection from antitrust claims when it issued cease-and-desist orders to companies offering teeth-whitening services.

Baker administration officials say the ruling leaves licensing boards in Massachusetts vulnerable.

Even legal actions may be challenged, Mike Kaneb, Baker’s deputy legal counsel, told a legislative committee on Tuesday.

“Individual board members can be sued,” he added.
But exerting authority over the boards is also raising concerns.

Frank Callahan, president of the Massachusetts Building Trades Council, which represents about 75,000 skilled construction workers, said the state needs to address the issue but he’s concerned the governor’s proposal would give the state too much power over the boards.

Boards that oversee electricians and other skilled trades already have state oversight, to varying degrees, he noted, as well as lawyers to ensure their decisions comply with federal anti-trust laws.

 

Baker moves to control professional boards | News | eagletribune.com 13/5/16 11:14 PM

Several representatives of trade groups opposed the proposal at the legislative hearing. Robert Butler, business manager for Sheet Metal Workers Local 17, called it a “solution to a nonexistent problem.”

“This bill would allow the state to make decisions without any public input or recourse,” he said.

Baker, a Republican, has promised to make the state more business- friendly, in part by cutting through red tape. In a statement, he said licensing rules and limits on professionals “have the effect of restraining trade and commerce” and are bad for business.

Donna Kelly-Williams, president of the Massachusetts Nurse’s Association, criticized his plan in comments to lawmakers.

“With this directive, it seems as though the governor would like to turn the Board of Registered Nurses and other similar boards into nothing more than vehicles to spur economic competition at the expense of the public health and safety,” she said.

Baker administration officials said that’s not the intent.

“The only motivation for the governor’s bill is to respond to the changes in law,” Kaneb said Tuesday.

Since the Supreme Court ruling, legislation to exert more control over independent licensing boards has been introduced in least six other states, according to the National Conference on State Legislatures.

In Massachusetts, the Division of Professional Licensure oversees 45 boards, which regulate more than 370,000 individuals and businesses in some 50 trades and professions.

Most board members are volunteers appointed the governor and operate independently from the state.

Baker signed an executive order last year directing the licensing division and other agencies to conduct monthly reviews of recent board decisions to determine if any violate federal laws.

Martin W. Healy, chief counsel for the Massachusetts Bar Association, said the state must act quickly to comply with the Supreme Court ruling to ensure that its boards don’t face legal challenges.

 

Baker moves to control professional boards | News | eagletribune.com 13/5/16 11:14 PM

“This is a major issue for the state that needs to be addressed quickly,” he said. “You would have a very difficult time attracting talented people to these positions if they could held personally liable for the board’s decisions.”

Christian Wade covers the Massachusetts Statehouse for the North of Boston Media Group’s newspapers and websites.

MA – State Oversight of Professional Licensing Boards – annot

Physician Health Programs: The Need for Transparency and Accountability

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Accountability, or answerability,  is necessary to prevent abuse and corruption.  This requires both the provision of information and justification for actions.  What was done and why?

Professional guidelines and standards of care, ethical codes of conduct and the law are all objective benchmarks that can be used to assess the actions and decisions of others.  In any free society this necessitates the existence of organizations of truly independent opinion capable of standing in this judgment.

State PHPs are Non-Governmental Organizations (NGOs) over which the state health department has no supervisory oversight.  There is no regulation, no transparency and no accountability.  There is no public scrutiny and they police themselves.

In Ethical and Managerial Considerations Regarding State Physician Health Programs Drs. John Knight and J. Wesley Boyd call for greater oversight and scrutiny of PHPs by the medical community at large.   They recommended periodic auditing, national standards and regulation.  They also attempted to convince the Massachusetts Medical Society to implement changes at PHS where they served as Associate Directors with over two decades of collective experience.

These efforts to promote transparency and accountability at both local and national levels, however,  fell on deaf ears.

State PHPs have systematically removed those not conforming to groupthink.  Threatening them with litigation if they breached “peer-review” statutes and confidentiality agreements has effectively silenced them from reporting any misconduct, abuse or even crimes they may have witnessed.

In Massachusetts John Knight was removed in 2009 and J. Wesley Boyd in 2010.  In Ethical and Managerial Considerations Regarding State Physician Health Programs  they comment “if a PHP highlights a physician as particularly problematic, the evaluation center might–whether consciously or otherwisetailor its diagnosis and recommendations in a way that will support the PHP’s impression of that physician.”  So too will the clinical laboratories.  

How is this any different from the case of Dr. Farid Fata, the Michigan oncologist who intentionally diagnosed healthy patients with cancer so he could charge them for unneeded chemotherapy?  The U.S. Attorney called it the “most egregious” case of health care fraud ever. His acts may have contributed to one patient death.   The institutional injustice of the PHP system is causing countless deaths of physicians.

To consciously “tailor” a diagnosis is fraud.  To tailor a diagnosis of substance use disorder or any other psychiatric diagnosis is the political abuse of psychiatry.  Misrepresentation, dishonesty, deception, and distortion play no role in the Profession and Guild of Medicine.  To do so violates the basic moral principles of Medical Ethics–Autonomy, Beneficence, Non-Maleficence and Justice.

The “PHP-approved” assessment and treatment centers are all staffed by doctors of “like-mind.”  It is a rigged game.

An audit of the North Carolina PHP found essentially no oversight from the Medical Board or Medical Society.  The audit found that “abuse could occur without being detected,” and this is by design.  By removing and blocking the provision of information necessary for accountability, restricting the liberties and freedoms of physicians, and increasing their power and control they have erected a framework of hidden abuse.

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The situation in North Carolina is standard operating procedure for PHPs under the Federation of State Physician Health Programs (FSPHP).  It is not the exception but the rule.

While outspoken in denouncing what they regard as unethical and unprofessional behavior by other doctors, they are resistant to apply even the most minimal standards to their own activities.

To whom are the PHPs accountable? Whom do they represent? These are legitimate concerns.


 

PHYSICIAN OR PROFESSIONAL HEALTH PROGRAM SURVEY

Professional Health Program (PHP) Survey

Please click on the link below and complete the following survey if you have been monitored or are being monitored by a PHP.

Professional Health Program (PHP) Survey

This is a confidential survey. If you have concerns about anonymity please create an alternative alias email address (this video shows you how to create an alias G-mail address), then use the alias email address as your “name” for future correlation.

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Decision Making in Regulatory Medicine: A Framework to Identify the influence of Special Interest Groups and “Bent” Science

content-1In  Bending Science: How Special Interests Corrupt Public Health Research 1  Thomas McGarity and Wendy Wagner describe how special interest groups scheme to advance their own economic or ideological goals by using distorted or “bent” science to influence legal, regulatory and public health policy.

The authors describe a “separatist view” of science and policy that assumes scientific research is sufficiently reliable for public policy deliberations and legal proceedings when it reaches them.  This is illustrated as a pipeline in which it is presumed  the scientific community has properly vetted the information flow through rigorous peer-review and professional oversight.  The final product that exits the pipeline is understood to be unbiased and produced in accordance with the professional norms and procedures of science.   The reliability, integrity and validity of the final product is indubitably accepted.Screen Shot 2015-02-05 at 10.49.27 AMThe separatist  view does not consider the possibility that the scientific work exiting the pipeline could be intentionally shaped and contaminated by biasing influences as it flows through the pipeline.  When this occurs the final product exiting the pipeline is distorted or “bent” and bent science can result in bad decision making and bad policy.

Bent science starts with a pre-determined outcome and works backward from a desired result. It is not true science. Those orchestrating the deception (“benders”) use a variety of tactics and strategies to shape, package and spin science to support their own hidden agenda and suppress opposing science.

Benders attempt to hide, dismiss and debunk contrarian research and unsupportive science.  Benders will attack and harass the science and scientists that pose a threat to their interests. Using carefully crafted studies designed to confirm a desired outcome, the pre-determined conclusions are subsequently promoted and publicized to the relevant stakeholders who are often unable ( or sometimes unwilling) to discern real science from junk-science.

Misinformation, propaganda, and deception are disseminated in a variety of venues. Public relations firms are used to manipulate public perception and freelance writers are hired  brandish favorable consensus statements.  Authoritative reviews and critiques are ghostwritten under the names of  “outside experts” who profit both monetarily and by adding a high-profile publication to their resume.

Opinion is paraded as fact and with a dearth of professional oversight the charade usually goes unnoticed and unopposed.

Data-dredging, cherry picking, confirmatory bias, confirmatory distortion, fabrication, falsification, exaggeration, and a whole host of deceptive tactics are used to work backward from an already determined result.

Any information that contradicts the answer is manipulated, undermined, suppressed or downplayed; even if it is the result of real science and evidence-based research; even if it is the truth.  Professional procedure, protocol and ethics are off the table.  It is an underhanded free-for-all. Bare knuckle boxing. Trash your opponents work and label it junk-science. Undermine the integrity of your opponents.  Use ad hominem attacks to question the opponents motives. Claim the scientists are hacks on the take.  Start rumors about them.Screen Shot 2015-02-05 at 10.50.32 AMLoudly claim you are the one who is evidence based. Proclaim professionalism and authority.  Quibble. Move the goalpost.   Nit-pick and split hairs.  Proclaim over and over and over again you are the one who is evidence based.

And the problem is it usually works.  It is an unfair playing field.  When no meaningful barriers are in place to detect cheating and identify cheaters they usually win.

Bending science can have serious and sometimes horrific consequences and multiple examples including the Tobacco and pharmaceutical industry are given in the book.

Calling for immediate action  to reduce the role that bent science plays in regulatory and judicial decision making, the authors emphasize the assistance of the scientific community is necessary in designing and implementing reform.

“Shedding even a little light on how advocates bend policy -relevant science could go a long way toward remedying these problems.  Indeed, precisely because the advocates have overtaken the law in this area, heightened attention to the social costs of bending science could itself precipitate significant change.”

But there are difficulties in challenging bent science including a general lack of recognition of the problem. With an absence of counter-studies to oppose deliberately manufactured ends-oriented research this would be expected.

Bent science involves the deliberate manufacturing of a pool of  information designed to promote a specific agenda.  A level playing field would require a pool of opposing research specifically addressing that agenda.  In reality this requires both the incentive and the power to do so–an unlikely scenario short of an equally well funded competitor or sufficient public concern about the problem.

In fact counter-forces are often nonexistent. Investigatory techniques developed and promoted by the FBI crime lab (such as firearms identification and intoxication testing) is one example described in the book.  These techniques evolved with little meaningful oversight from the larger scientific community and could be badly bent but there is no meaningful pool of information to disprove them.  The authors aptly state that   “defendants in most criminal cases lack resources to mount effective challenges, much less undertake their own counter-research.”

And part of the “art” of bending involves swaying public opinion and the mainstream media is typically aligned with the benders so opposing viewpoints seldom make the headlines.

Additionally, there is no meaningful oversight or avenue to pursue accountability. No systems exist to prevent, catch and publicly expose bent-science or those who bend science.

The influence of special interest groups on the practice of medicine is unknown.  No one has examined the role of bent science in the rules, regulations, policies and decisions made by those who are in charge of the standards of medical practice and professional behavior of doctors but as a regulated profession governed by the  decisions and policies of regulators it is certainly possible.

Regulation of the Medical Profession

Alexis de Toqueville once observed that a key feature of American government was the decentralized character of administration. “Written laws exist in America,” he wrote, “and one sees the daily execution of them; but although everything moves regularly, the mover can nowhere be discovered. The hand which directs the social machine is invisible.”2

Administrative law is the body of law that allows for the creation of public regulatory agencies and contains all of the statutes, judicial decisions and regulations that govern them. Administrative agencies implement their powers in the form of rules, regulations, orders and decisions.   State medical boards are the regulatory agencies responsible for the licensure and discipline of physicians. They grant the right to practice medicine in the form of a medical license and each state has Medical Practice Act that governs and defines the practice of medicine. The medical board is empowered to take action against a doctor for substandard care, unprofessional behavior and other violations as defined by the state Medical Practice Act.

Administrative Code governs the licensure and disciplinary process and the State Administrative Procedure Act governs the legal process (due process, discovery, etc.). Regulatory changes are enacted through procedural, interpretive and legislative rules.

Both medical practice acts and administrative procedure acts are subject to change.  Changes in medical practice acts can redefine what is acceptable practice and what constitutes professional behavior. This can increase the power and control these agencies have over doctors both professionally and socially.

Changes in Administrative practice acts can decrease what rights a doctor has if this power and control is abused.  Changes in the wording of administrative code and administrative practice acts can have profound implications in these rights including due-process, timeliness of being heard, rights to appeal decisions and time-constraints for judicial review.

And when these changes occur they do so silently.  The hand that directs the machine is indeed invisible.  The consequences, however, are not.  These changes not only impact those touched by the hand but can have a systemic impact on the entire profession.

State medical practice acts as well as administrative practice acts and code are susceptible to change and therefore susceptible to the influence of special interest groups benefitting from such change.  Regulation of the medical profession is thus susceptible to bent science.

Bent Science and the Medical Profession

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The impact of bent science on the regulation of the medical profession has not been studied. As a profession governed by regulatory agencies medicine is certainly not immune to the influence of special interest groups who could in turn influence public policy and regulatory decisions, rules and regulations to benefit their own interests.

Making sound decisions about regulation calls for an understanding of the problem it is intended to solve. This demands methodologically sound science and evidence-based facts arrived at through rigorous peer review and professional oversight. The science on which policy decisions are made must be reliable and unbiased. Legitimate policy must be based on recognized and legitimate institutions and experts.

If the information regulatory agencies rely on to discipline doctors and protect the public is unreliable then serious consequences can occur.

It would be beneficial to look for changes in public policy, guidelines, rules and regulations involving the medical profession and examine the reasons behind them. When did the problem present? Who presented it? Was it based on methodologically sound and accurate data?  What organizations do the problem presenters represent?  What organizations or individuals aligned or associated with the presenters might benefit?  What are the consequences?  Who is harmed?

Howard Becker describes the role of “moral entrepreneurs,” who crusade for making and enforcing rules that benefit their own interests by bringing them to the attention of the public and those in positions of power and authority under the guise of righting a society evil.8   

The mechanics and mentality is similar to the science benders and, as discussed below,  they use some of the same techniques.

Moral entrepreneurs take the lead in labeling a particular behavior deviant and spreading this label throughout society.  They associate the behavior of some group with a society evil, affix an easily recognizable label to it and then express the conviction that the evil must be combated.  Labeled as being outside the central core values of consensual society, the deviants in the designated group are perceived as posing a threat to both the values of society and society itself.

Activities can rise to the level of ‘social problems” when harm or danger is attributed to those activities and governmental powers are called upon to put an end to those harms. Bent science requires convincing others of a viewpoint and the likelihood of this occurring increases when the activity that is identified as a problem resonates with underlying societal concerns and anxieties.  The problem is then endorsed by experts who give legitimacy to such claims.3,4 This legitimacy results attracts media attention which further enforces support from both the public and policy makers.5,6  

As a result any bent science directed at regulatory and public policy decision making should be clearly visible.

The sociologist Stanley Cohen used the term ”moral panic” to characterize the amplification of deviance by the media, the public, and agents of social control.7 According to cultural theorist Stuart Hall, the media obtain their information from the primary definers of social reality in authoritative positions and amplify the perceived threat to the existing social order. The authorities then act to eliminate the threat.9 The dominant ideas or ideologies are reproduced by relying on the opinions of the defining authority and then spread through the media.

An internet search of what labels have been affixed to doctors in association with a threat to society there are three.  A google search of “impaired physician” yields 20, 600 results; “disruptive physician” yields 17, 400 results; and “aging physician” yields 27, 800 results. A large number of these articles, opinion pieces and reviews associate impaired, disruptive and aging physicians with patient death and other adverse events, medical error, and malpractice.   The labels affixed to these physicians have been characterized as a major threat to public health and the rhetorical tools used in many of these articles seems aimed at increasing public anxiety.

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A PubMed search yields 154 results for the “impaired physician”; 47 results for the “disruptive physician”; and 19 results for the “aging physician.”  Many of these are opinion pieces written by the same group of physicians and aimed at hospital administrators, regulators and those involved in the legal or business aspects of medicine.

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There is, in fact, no evidence based research that associates the impaired, disruptive or aging physician with any adverse events. The “impaired,” “disruptive” and “aging” physician labels  as evinced by a quick google search seem escalated far beyond the level warranted by the existing evidence.

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The “impaired” and “disruptive” labels have taken on the status of moral panic and the “aging” label, which is being associated with cognitive impairment, seems to be heading in that direction. The number of articles being published and lectures being given on the dangers of cognitively impaired doctors is increasing.  It has not yet reached the level of public awareness the impaired and disruptive have.

To acknowledge that the current level of concern about these labels is exaggerated is not to suggest they do not exist. They do.  But the disparity between the evidence-base, or lack thereof, and the level of concern warrants further investigation.

To be clear,  doctors who are impaired by drug and alcohol abuse need to be removed from practice to protect the public and receive treatment;  doctors who are abusive to others or engage in behavior that threatens patient care need to be held accountable for their actions; and doctors who are cognitively impaired due to dementia need to be removed from practice and evaluated by the proper specialists.  If a diagnosis of dementia is confirmed then they need to be removed from practice.

What is the motivation behind the “impaired,” “disruptive” and “aging” physician labels and the multiple articles linking these labels to patient harm and medical error?  There is no data driven evidence so where does it come from?   Could moral entrepreneurs be behind it?  If so then there should be evidence  of bent science and to examine this we must look for evidence that these labels have been used to influence regulatory decisions, rules, regulations and policy.

And with the recently archived Journal of Medical Regulation this task can be easily accomplished.

The Journal of Medical Regulation as Timeline and Framework for Policy Evaluation

The Federation of State Medical Boards (FSMB) is a national not-for profit organization that gives guidance to state medical boards through public policy development and recommendations on issues pertinent to medical regulation. Shortly after its founding in 1912, the Federation of State Medical Boards began publishing a quarterly journal addressing issues relating to medical licensing and regulation of doctors. First published in 1913 as the Quarterly of the Federation of State Boards of the United States, the publication has undergone several name changes and publication schedules. From1921 to 1999 it was published monthly as the Federation Bulletin. In 1999 it was changed to the quarterly Journal of Medical Licensure and Discipline and in 2010 was revised to the Journal of Medical Regulation The Journal of Medical Regulation is in the process of archiving all issues dating back to 1913.

Presently every paper dating back to 1967 is available online and the archival organization and availability of full articles published sequentially over the past half-century is historically invaluable.   As the official journal of the national organization involved in the medical licensing and regulation of doctors, this archival organization allows for an unskewed and impartial examination in both historical and cultural context. We can identify when particular issues and problems were presented, who presented them and how.

The Journal of Medical Regulation archives provides a structured context to examine these issues in their historical and cultural context.  This facilitates a retrospective analysis.  As a timeline it allows identification of when the issues were presented.  It also allows us to look at the events preceding the problem, who benefited from them, and the consequences. Could these factors be involved in influencing the regulation of medicine and shaping the medical profession? Could bent science have been involved in regulatory and administrative changes that have significantly impacted the rights and well-being of doctors and how the profession of medicine is defined?  Could some of the current problems such as the marked increase in physician suicide, sham-peer review, and physician burnout be the result of bent science?  If bent science is contributing to bad policy and bad decision making then it need to be exposed and addressed.  Bent science is bad medicine and if it exists then we need to urgently shine a light on it.

  1. McGarity TO, Wagner WE. Bending Science: How Special Interests Corrupt Public Health Research. Cambridge, MA: Harvard University Press; 2008.
  2. de Toqueville A. Democracy in America. New York: Penguin Books; 1984.
  3. Blumer H. Social Problems as Collective Behavior. Social Problems. 1971;18:298-306.
  4. Stone DA. Causal Stories and the formation of policy agendas. Political Science Quarterly. 1989;104:280-300.
  5. Best J. Threatened Children, Rhetoric and Concern about Child Victims. Chicago University of Chicago Press; 1990.
  1. Gerbner G, Gross L. The scarey World of TV’s heavy viewer. Psychology Today. 1976;9(89):41-45.
  2. Cohen S. Folk Devils and Moral Panics: The Creation of the Mods and Rockers (New Edition). Oxford, U.K.: Martin Robertson; 1980.
  3. Becker H. Outsiders: Studies in the Sociology of Deviance. New York: Free Press; 1963.
  4. Hall SC, Critcher C, Jefferson T, Clark J, Roberts B. Policing the Crisis: Mugging, the State, and Law and Order. London: Macmillan; 1978.

 

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Competent, Ethical and Fair Legal Representation for Doctors —A Possible New Niche area for Lawyers.

Wretched creatures are compelled by the severity of the torture to confess things they have never done and so by cruel butchery innocent lives are taken; and by new alchemy, gold and silver are coined from human blood.– Father Cornelius Loos (1592)


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 “PHP-Approved Attorneys”

My survey has revealed an additional factor stacking the deck and removing accountability from PHPs.  The attorneys ostensibly representing doctors are also part of the racket.

A doctor referred to a PHP will be given a list of 3 or 4 attorneys by the PHP who are “experienced in working with the medical board.” What they do not tell you is that theses attorneys are hand-picked or cultivated to abide by the rules dictated by the PHP.

They will not “bite the hand that feeds” and any procedural, ethical or criminal misconduct by the PHP will not be addressed.     Laboratory fraud, false diagnoses, and Establishment Clause violations are off limits.

The primary purpose of these attorneys is to enforce payment for laboratory fees and demand compliance with whatever the PHP demands.  Their primary purpose is to keep doctors powerless under the PHP and prevent misconduct, including crimes, from being discovered.

The attorney pool is currently over-served by those serving two clients and most of those outside simply do not know enough about the “physician health”  legal issues related to doctors.  When they appear before the board it is as if they are a deer in the headlights.  It is a new terrain where all due process and familiar protocol have been removed.  Of course this was all facilitated by changes in administrative and medical practice acts orchestrated by the physician health movement “in the interests of protecting the public.  This must be recognized and addressed.

Skilled negotiators and lawyers with administrative law experience would do well to consider representation for doctors before medical boards regarding “physician health” matters.

It is not that esoteric, complicated or difficult.   As with the rest of the population, most have just not critically analyzed the issues behind the curtain.

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When Dentists Go Too Far: North Carolina Board of Dental Examiners v. Federal Trade Commission

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The recent strike down of anticompetitive regulation in N.C. dental case opens the door to antitrust litigation against other state Regulatory Agencies such as Medical Boards.

The Federation of State Physician Health Programs has set up a “hidden” system of coercion and control using various methods (policy and moral entrepreneurship, changes in state medical practice acts and administrative procedure, misuse of health law, etc.) to create a system that lacks oversight and regulation. As a power unto themselves they are accountable to no one.

Although originally funded by medical societies and staffed by volunteer doctors in order to help sick colleagues and protect the public, any system can be subverted for profit and power, and these programs have been taken over by groups representing the multi-billion dollar drug and alcohol testing, assessment and treatment industry and become reservoirs of bad medicine and fraud. All manner of abuse can be hidden under a veil of benevolence. Although most are afraid to speak publicly under fear of punishment and retaliation (“swift and certain” consequences, summary suspension) I have herd from many many doctors in multiple states. Their stories are all the same.

In addition to misconduct related to the non-FDA laboratory developed tests (they themselves introduced into the market using a loophole that bypasses FDA approval) there are reports of coercion into unneeded evaluation and treatment at a couple dozen or so “PHP-approved” facilities under threat of loss of licensure.

Reports to a state PHP can be done anonymously with confidentiality guaranteed to the reporter. Any report will result in a meeting with the state PHP and if they feel a licensee is in need of an assessment they require it be done at a “PHP-approved” assessment center.

As non-profit tax exempt corporations, PHPs do not provide clinical assessments. They can only recommend assessments.  State Regulatory Agencies (Medical Boards, Nursing Boards, etc.) have accepted the PHPs requirements of limiting assessments to those approved by the PHP.   In fact many states mandate assessments to solely  “PHP-approved” assessment centers under threat of summary suspension of a professional license.

An Audit of the North Carolina PHP by State Auditor Beth Woods, however,  found financial conflicts-of-interest in the use of these predominantly out-of-state assessment facilities to which the N.C. PHP was referring and the state Medical Board was requiring.  Woods requested the qualitative indicators and quantitative measures used to  “approve” these assessment centers from the N.C. PHP but they were unable to produce any documentation showing any quality indicators or objective criteria existed!  The best response they could come up with was “informal” methods and “reputation.” The full audit can be seen here.

Imagine if the FDA gave this reply if  asked to provide the criteria used to “approve” medications or medical devices in the “FDA-approval” process!

Making matters even worse, the Medical Director of the N.C. PHP, Dr. Warren Pendergast was serving as President of their national organization, the FSPHP at the time of the audit.

The simple fact is no criteria exist.

A recent class action lawsuit in Eastern Michigan found this same pattern of referral to out-of-state assessment and treatment centers ( Marworth, Talbott, Hazelden. Promises,etc.)

State referrals to “PHP-approved” facilities has become a matter of public policy. Both the American Society of Addiction Medicine and the Federation of State Medical Boards have issued public policy statements stating that only “PHP-approved” centers be utilized by Regulatory Agencies in the assessment and treatment of their licensees.  Moreover, these policies specifically exclude “non-PHP-approved facilities and often involve a limited time-frame.  No choice, no appeal and no bartering.  Do it. Do it now and if you don’t suffer the consequences.

These public policy statements can be seen in the 2011 ASAM “Public Policy Statement on Coordination between Treatment Providers, Professionals Health Programs and Regulatory Agencies” and the 2011 FSMB “updated Policy on Physician Impairment.”  Many state Regulatory Agencies have strictly adhered to these policy recommendations.

What this means is that  states are mandating evaluations at  “PHP-approved” facilities even though there is no documentable or plausible reason for doing so.  No measurable criteria exist as to how the list of “approved” facilities were “approved” yet they have “cornered the market,” removed choice and created an imposed monopoly under threat of loss of professional licensure.

In reality no official “PHP-approved” list exists.  Neither does any objective published criteria for approving them.  At the same time state Regulatory Agencies and Boards are forcing evaluations on licensed professionals at these couple-dozen or so facilities.  They are excluding patient autonomy and choice violating the fundamental freedoms of the individual and informed consent.

All semblance of due process has been removed.  If  a plausible reason existed (i.e. they met some minimum standard of credentialing, quality or patient outcome) for referring to a proscribed list of assessment centers it could be arguably justified.  Without such criteria, and in light of the economic and ideological conflicts of interest involved, it is patently unjustifiable.

Even more disturbing is, as Drs. John Knight and J. Wesley Boyd (who collectively have more than 20 years experience as Associate Directors at the Massachusetts PHP, PHS, Inc.) pointed out in their 2012 paper published in the Journal of the American Society of Addiction Medicine,  many of these facilities are willing to “tailor” the diagnosis and recommendations of an evaluation to fit the wishes of the PHP.    “Tailoring” an assessment and recommendations to anything other than what the true data show is healthcare fraud.  It is, in fact,  the political abuse of psychiatry.

PHPs started out as “Physicians Health Programs” but many are transitioning to “Professionals Health Programs”  to widen the net.  For example in Michigan  and Florida the state PHP covers all health care practitioners from Acupuncturists to Veterinarians. PHPs have also entered non -healthcare employee assistance programs (EAPs) such as the aviation industry and the grand plan is expansion to  non-healthcare professions. They are doing this by claiming remarkable success rates and brandishing themselves as the “gold-standard” of substance abuse treatment.   Interestingly, the same individuals claiming how successful PHP programs are are the same individuals profiting from the drug and alcohol testing they introduced.  Anyone with any sort of license is at risk.

So whether you cut hair, teach, take care of patients or even drive a car they could be coming after you next and they don’t have to convince you of the validity and reliability of their services–they only need to convince those who regulate your license and, as we have seen, they are very accomplished at persuasion in this department.

And that is why we need more state audits of PHPs and Medical Boards.  The starting point is simple. Request from the state PHP and Board  a  list of “PHP-approved” facilities and the criteria by which they were approved. What should be a simple reply will undoubtedly not be as they will not be able to provide either.

Article 8

Antitrust litigation hasn’t disappeared, but rather changed its focus. Instead of targeting the great railroad empires of the late 19th century, today’s antitrust efforts focus on more minute industries, like dentistry.

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