Press Release | Forensic Science Misconduct: A Dark and Cautionary Tale | @csidds

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FORENSICS and LAW in FOCUS @ CSIDDS | News and Trends

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Don’t expect a “whodunnit” version of CSI victories in this Op-ed blog article about a darker side of the forensic sciences. It is from an author with ample forensic credentials and experience from both within and outside criminal courts of the US. The article has topics ranging from the continued use of outdated or grossly over hyped “CSI” methods, ethical and moral failures in some forensic groups, to the criminal courts inability to understand much of anything about what is “real ” versus self-serving personal opinion called “science.” A measure of proof confirming these systemic problems is the article’s presenting a glimpse into the multi-million dollar costs to taxpayers for damages won by those wrongfully convicted with the help of court-qualified forensic testimony. Some optimism about better scientific scrutiny is presented but the institutional inertia resisting legitimate change in some forensic organizations, government agencies, and criminal  justice institutions is still…

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Mandating Drug-Testing of Unknown Validity while removing the procedural safeguards of forensic drug testing: The plan to Introduce Laboratory Developed Tests into Mainstream Healthcare

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Chain-of-Custody refers to the document or paper trail showing the collection, control, transfer, analysis and disposition of laboratory tests.  It is the written documentation of a specimen from the moment of collection to the final destination to the review and reporting of the final results.   The multi-part chain-of-custody form or “custody and control” form is part and parcel of this process. It contains stickers to sign and seal the specimen so that it cannot be tampered with and the form itself is signed by the appropriate parties as the test specimen travels from place to place. Information is added to the form as it travels from person to person.  It has been given the status of a legal document as it has the ability to invalidate a specimen with incomplete information.  Once the sample is analyzed it is reviewed by a Medical Review Officer (MRO) for final review. In the case of a positive test it is the responsibility of the MRO to ascertain an intact  chain-of-custody, determine whether an alternative explanation exists for the positive test such as a prescribed medication, and then and only then report the test as a “true positive.”

The MRO looks for what are called “fatal flaws” and,  should one be present, invalidates the test.  A fatal flaw requires the test be rejected as it were never drawn.  It invalidates it and it cannot be used. screen-shot-2013-12-19-at-12-20-46-pmAny and all drug testing requires strict  chain-of-custody procedures. It documents not only the whereabouts of the specimen at any given time but the management and storage of the specimen. This is important because time and temperature can influence the results of certain tests.  One such test is alcohol.

Specimen integrity is critical in forensic drug testing, but so too is the integrity of the people involved.


Forensic Versus Clinical Drug Testing

According to the ASAM White Paper on Drug Testing, clinical drug-testing “employs the same sound procedures, safeguard, and systems of information management that are used for all other health-related laboratory tests, tests on which life-and-death medical decisions are commonly made.”  In the box below they describe the multiple safeguards in place and requirements demanded of “forensic” drug testing but do not mention the reason these uncompromising and multiple specifications exist is to protect the donor from a false accusation of drug or alcohol use.  They proceed to define “clinical drug testing” as “part of a patient examination performed for the purposes of diagnosis, treatment, and the promotion of long term recovery” noting that clinical testing “must meet the established standards of medical practice and benefit the therapeutic relationship, rather than meeting the formal legal requirements of forensic testing.”  The authors then state that the “majority of drug testing done today” includes both forensic and clinical elements using individuals on parole and probation as examples.

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From the ASAM White Paper on Drug Testing

The logical fallacy here is striking.  It is comparing apples and oranges.  After detailing the specific quality assurance safeguards designed to prevent the donor of a drug or alcohol test from being falsely accused of illicit use, the authors give a general  definition and purpose of  “clinical” testing  then state that when testing for drugs the systems in place are up to snuff as they are already being used to make  “life-and-death medical decisions.”  The take-home message is that “forensic” testing is unnecessary hyperbole designed for legal challenges. The clinical lab  systems in place are used for critically  important testing and can therefore be used for drug-testing–after all, parolees and probationers don’t require it.

Forensic guidelines were developed in collaboration with occupational and environmental medicine specialists, clinical and forensic toxicologists, pathologists and others and the recommended  requirements agreed upon by this consortium exists solely to  assure validity and accuracy in the testing process.  These requirements exist to protect the donor and If the “clinical” testing context fit the bill then “forensic” testing would not have evolved.

Labs ordered clinically in the course of patient care are interpreted within the context of multiple other pieces of data.  Lab errors occur all the time and are interpreted in that context. Oftentimes a lab will not fit with the clinical picture and, when that happens, a repeat lab is ordered for verification.  Specimens get collected in the wrong tube and specimens get lost but in the clinical setting they simply get reordered and there are no consequences to patient care.   In contrast drug testing is an all-or-none one-shot test and the results have consequences. It is for that reason they must be valid.  Chain-of-custody and MRO review are critical and that is why most drug-testing programs follow the forensic protocol.  And the example of non-forensic drug-testing  parolees and probationers is misleading.   Any Employee Assistance Program that has a union or some other group looking out for their best interests uses strict “forensic” guidelines.   Parolees and probationers have no power  and have no choice.  Besides, the  National Association of Drug Court Professionals uses the Laboratory Developed Tests these same people introduced to test  individuals on probation or parole in the criminal justice system just as they do in the PHPs.

The  ASAM White Paper:

 “Encourages wider and “smarter” use of drug testing within the practice of medicine and, beyond that, broadly within American society. Smarter drug testing means increased use of random testing* rather than the more common scheduled testing,* and it means testing not only urine but also other matrices such as blood, oral fluid (saliva), hair, nails, sweatand breath when those matrices match the intended assessment process. In addition, smarter testing means testing based upon clinical indication for a broad and rotating panel of drugs”

As a physician-patient relationship renders drug testing “clinical” rather than “forensic” the consequences become “treatment” rather than “discipline.”  And that is the real reason behind all of this.    A positive “forensic” test in most employee random drug screening programs today will result in an “assessment” for substance abuse.  Most EAPs allow a choice in where that assessment takes place.  The model this system is based on, Physician Health Programs. do not allow choice as evaluations are mandated to “PHP-approved” assessment centers; a rigged game.

A positive “clinical” test will result in the same thing under the ASAM White Paper proposal.  But the assessment will be at an ASAM facility and if a Substance Use Disorder (SUD) is confirmed it will result in mandated abstinence of all substances (including alcohol) and lifelong spirituality involving 12-step recovery   And by using the healthcare system as a loophole and calling this testing “clinical” rather than “forensic” the ASAM will have successfully introduced widespread testing of a variety of Laboratory Developed Tests (LDTs) of unknown validity while removing  the safeguards provided by forensic testing including chain-of-custody and MRO review.

 

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Integrity and Accountability—The Declining State of Physician Health and the Urgent Need for Ethical and Evidence-Based Leadership


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“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.”

― Thomas Paine 

USDTL drug testing laboratory claims to advance the”Gold Standard in Forensic Toxicology.”  “Integrity: Results that you can trust, based on solid science” is listed as a corporate value. “Unlike other laboratories, our drug and alcohol testing begins and ends with strict chain of custody.” “When people’s lives are on the line, we don’t skip steps.”  Joseph Jones, Vice President of Laboratory Operations explains the importance of chain-of-custody in this USDTL video presentation.

Dr. Luis Sanchez, M.D. recently published an article entitled Disruptive Behaviors Among Physicians in the Journal of the American Medical Association discussing the importance of  of a “medical culture of safety” with “clear expectations and standards.”  Stressing the importance of values and codes-of-conduct in the practice of medicine, he calls on physician leaders  “commit to professional behavior.”

Sanchez is Past President of the Federation of State Physician Health Programs (FSPHP).  According to their website the FSPHP “serves as an educational resource about physician impairment, provides advocacy for physicians and their health issues at local, state, and national levels, and assists state programs in their quest to protect the public.”  In addition the FSPHP “helps to establish monitoring standards.”  The FSPHP is the umbrella organization of the individual State PHPs.

Sanchez is also the previous Medical Director of the Massachusetts state PHP, Physician Health Services, Inc. (PHS).  According to their website PHS is a “nonprofit corporation that was founded by the Massachusetts Medical Society to address issues of physician health. PHS is designed to help identify, refer to treatment, guide, and monitor the recovery of physicians and medical students with substance use disorders, behavioral health concerns, or mental or physical illness.

PHPs recommend referral of physicians if there are any concerns such as getting behind on medical records.  As PHS Associate DirectorJudith Eaton explains “when something so necessary is not getting done, it is prudent to explore what else might be going on.”  If the PHP feels that doctor needs an assessment they will send that doctor to a “PHP-approved” facility “experienced in the assessment and treatment of health care professionals.” The physician must comply with any and all recommendations of the assessment center.  To assure this the physician must sign a monitoring contract with the PHP (usually five years). USDTL is one of the labs PHPs have contracted with for forensic drug and alcohol testing.


Forensic Drug and Alcohol Tests: The Need For Integrity and Accountability of the Sample

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“Forensic” drug-testing differs from “clinical” drug-testing in how the results are used. “Clinical” tests are used for medical purposes in diagnosing and treating a patient.

A “forensic” test is used for  non-medical purposes.  It is not used for patient care, but for detecting licit and illicit substances in those who should not be using them. Pre-employment and employee assistance and professional monitoring programs are examples.Screen Shot 2014-05-08 at 2.17.18 AM

Forensic testing is held to a higher standards because the consequences of a positive result can be grave and far reaching. A positive forensic test can result in loss of rights of the individual being tested and his or her loved ones. Mistakes are unacceptable.

The Federation of State Medical Boards Policy on Physician Impairment supports this position stating “chain-of-custody forensic testing is critical” (page 14) and the “use of a Medical Review Officer (MRO) for screening samples and confirming sample results” (page 21).

Any and all drug testing requires chain-of-custody. The custody-and-control form is given the status of a legal document because it has the ability to invalidate a test that lacks complete information.  Chain-of-custody provides assures specimen integrity. It provides accountability. 

Screen Shot 2014-11-06 at 7.25.46 PM The job of the MRO is to ensure that the drug testing process is followed to the letter and reviews the Custody and Control form for accuracy.  The MRO also rules out any other possible explanations for a positive test (such as legitimately prescribed medications).  Only then is the test reported as positive.

The legal issues involved in forensic testing mandate MRO review. According to The Medical Review Officer Manual for Federal Workplace Drug Testing ProgramsScreen Shot 2013-12-19 at 12.20.46 PM

the sole responsibility of the MRO is to”ensure that his or her involvement in the review and interpretation of results is consistent with the regulations and will be forensically and scientifically supportable.”

“Fatal flaws” such as lack of chain-of-custody form, missing tamper proof seal, missing signatures, or a mismatch of the sample ID and chain of custody ID invalidate the test.   It is not reported.  Tight chain-of-custody and MRO review is critical for the accountability and integrity of the sample.

The Medical Review Officer Certification Council  provides a certification process for MROs. They Screen Shot 2014-04-30 at 12.47.25 PMalso  follow their own Code of Ethics.   In accordance with these standards PHS has an MRO to review all positive tests.  As added assurance the FSPHP guidelines state that all positive tests must be approved by the Medical Director.


Regulation and the Medical Profession–The need for Integrity and Accountability in Physician Leadership and Health Care Policy.

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Good leadership requires correct moral and ethical behavior of both the individual and the organization. .  Integrity is necessary for establishing relationships of trust.  It requires a true heart and an honest soul.  People of integrity instinctively do the “right thing” in any and all circumstances.  The majority of doctors belong to this group.

Adherence to ethical codes of the profession is a universal obligation.  It excludes all exceptions.  Without ethical integrity, falsity will flourish.

The documents below show fraud. It is intentional.  All parties involved knew what they were doing, knew it was wrong but did it anyway.  The schism between pious rhetoric and reality is wide.

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Positive Phosphatidyl Ethanol test at level of 365.4 (cutoff =20) No date of collection. place of collection or name of collector. Donor ID # = 461430 My Unique Identifier #1310 is nowhere on this document.

The  July 19th, 2011 fax from PHS seen below is in reference to the lab report from USDTL seen above.  In it PHS requests the report be “updated”to donor ID number “1310” and  to “reflect that the chain of custody was maintained.”

The lab report is a positive test for the alcohol biomarker (Phosphatidyl Ethanol) or PEth, an alcohol biomarker introduced by the Federation of State Physician Health programs and marketed by USDTL and other labs to detect  covert alcohol use..

There is no record of where, when or by whom it was collected.

Screen Shot 2014-11-06 at 11.17.32 PMBoth the donor ID # and chain of custody are listed as 461430.

The purpose of chain-of-custody is to document the location of  a specimen in real time.  “Updating” it is not an option.  It is prohibited.  Updating the “chain of custody to reflect that chain of custody was maintained”  is a clear indicator that it was not maintained.

ID #1310 is the unique identifier I was issued by PHS.  It is used as a unique identifier, just like a name or social security number, to link me to any sample collected for random drug and alcohol screening. #1310 identifies me as me in the chain-of-custody.    On July 1st, 2011 I had a blood test collected at Quest Diagnostics.

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The sample was collected at Quest Diagnostics on July 1, 2011 but these documents were not obtained until December 3, 2011 and were included in the “litigation packet” which documents chain-of-custody and is generated on any and all forensic drug testing.   It provides proof that the test was done on who it was supposed to have been done and that all required procedure and protocol was followed. It protects the donor form being falsely accused of illicit substance use.  In most employee drug-testing programs the litigation-packet is provided on request immediately.  It is a transparent process.  This is not the case, however, at PHS.

I requested the litigation packet immediately after the positive test was reported on July 19, 2011.  PHS first refused, then tried to dissuade me.  They finally agreed but warned there would be “unintended consequences.    The entire litigation packet can be seen here:   Litigation Packet 12:3:2011

The positive sample has no chain-of-custody linked to me, no date, and no indication where it was collected or who collected it.   In addition there was no “external” chain of custody for the sample. The custody-and-control form was missing.

With multiple fatal flaws (6/6)  rendering it invalid, USDTL should have rejected it by their own written protocol.

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6/6 Fatal Flaws–Just one invalidates the Test

USDTL did not reject it. The document below shows that USDTL added my ID # 1310 and added a collection date of July 1, 2011–the day I submitted the sample.

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“REVISED REPORT PER CLIENTS REQUEST”  

And in doing so the lab that claims “integrity” and “strict chain of custody” readily, and with no apparent compunction” manufactured a chain-of-custody and added a unique identifier by faxed request.

The litigation packet was signed by Joseph Jones on December 3, 2011.   There was no record of where the sample was from July 1st to July 8, 2011. No external chain-of-custody or custody-and-control form was evident in the litigation packet.

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The V.P. for Laboratory operations for the lab that claims “strict chain of custody” and that “doesn’t skip steps” “when “peoples lives are on the line” verified a positive test as positive with no custody and control form, no external chain of custody and 6/6 fatal flaws.  What is so shocking is that  this was done without compunction or pause.  As a forensic test ordered by a monitoring program Jones knew full well it would result in significant consequences for someone.  He knew that someones “life was on the line,” knew it was wrong, and did it anyway.

A person of conscience would never do this.  It is unethical decision making  that goes against professional and societal norms.  A “moral disengagement” that represents a lack of empathy and a callous disregard for others.  I would not consider doing something like this for any price and here it appears to be standard operating procedure.

PHS reported the positive test to the Medical Board on July 19, 2011 Positive PEth July 19, 2011-1.  It was used as a stepping-stone to request an evaluation at one of three  “PHP-approved” facilities (Marworth, Hazelden and Bradford). The Medical Directors of all three facilities can be seen on this list list called “Like-Minded Docs.”  The MRO for PHS, Dr.Wayne Gavryck,  whose job was to review the chain-of-custody and validate its integrity before reporting it as positive is also on the list.  See this simplified schematic of how it works in Massachusetts.  It shows how this is a rigged game.

Expecting to be diagnosed with a non-existent problem and admitted for non-needed treatment I requested an evaluation at a non-12 step facility with no conflicts-of-interest.  Both PHS and the Medical Board refused this request in one of four violations of the Establishment Clause of the 1st amendment.

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I chose Hazelden.  The Medical Director was aware that I had just signed  a patent license agreement for an epinephrine auto-injector and he had a child with a peanut allergy.  We talked about the device and discussed the problems with current management.  I think it was because of this added personal interaction that he did not “tailor my diagnosis” as PHS most certainly requested.  Seeing me as a person rather than an object, I believe,  enabled his conscience to reject it. My discharge diagnosis found no history of alcohol issues but they could not explain the positive test. Unable to rule out that I drank in violation of my PHS contract they recommended I attend AA.

PHS mandated that I attend 3 12-step meetings per week and requested that I obtain names and phone numbers of fellow attendees so they could contact them to verify my attendance.  They also mandated that I discontinue my asthma inhalers (as the propellant contains small amounts of ethanol) that had been controlling my asthma and preventing serious attacks for the previous ten years.  I was threatened that if I had to use the inhalers or one day late on the increased payments I would be reported to the Board and lose my license.

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Sanchez states that my request for the “litigation packet” was processed on December 5, 2011 (two days after Jones signed off on it) and adds the “testing laboratory is willing to support the test results.”

In the interim I filed a complaint with the College of American Pathologists.  I also requested the missing external chain of custody documents from Quest.

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I never received the chain of custody from Quest.  Instead I received a letter from Nina Tobin, Compliance Manager for Quest documenting all the errors but written to sound as if some sort of protocol was maintained.  Tobin claimed the specimen was inadvertently logged as a clinical specimen but sent on to USDTL a week later.  (See Quest Letter )

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The Chief of Toxicology at MGH wrote a letter to the Board documenting all of the misconduct and irregularities stating that it was an “intentional act” perpetrated by PHS.  MLLv3finalJacob_Hafter_Esq_copy.

This letter, as well as the opinions of everyone outside of PHS was ignored. So too were any opinions of my two former Associate Directors at PHS.   The e-mail below dated October 10th, 2011 is to to Drs. John Knight and J. Wesley Boyd and I am referring to their article Ethical and Managerial Considerations Regarding State Physician Health Programs  that was about to be published. We had hoped that it would draw more attention to the problems with PHPs.

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I was subsequently reported as “non-compliant” with AA meetings.    They could not give any details of where or when.  They then misrepresented a declaration of fact (I stated that I had started going to a specific meeting on a specific date) as an admission of guilt by saying I was referring to a different meeting.     10:23:12 PHS Letter to BORM-noncompliance.

My Chief at MGH, his Chief and others held a  conference with PHS and attempted to remove me from PHS and replace the monitoring contract with one of their own.  They refused.   When confronted with the fabricated test they dismissed it and focused on sending me to Kansas to one of the “disruptive physician” Psikhuskas where they are using polygraphs (despite the AMAs stance that it is junk science) and non-validated neuropsychological instruments that detect “character defects” to pathologize the normal.

I refused. Had I gone to Kansas I would have been given a false diagnosis and my career would be over. This is what they do.

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Amy Daniels, the investigator for the College of American Pathologists contacted me in December of 2012 to see how things were going since USDTL “amended” the test.  Daniels told me that the College of American Pathologists confirmed my allegations and, as an Accrediting Agency for Forensic Toxicology mandated that USDTL correct it.  (Labs can lose accreditation if they do not comply with CAP  Standards for Forensic Drug Testing). This was done on October 4, 2012.

PHS denied any knowledge of an amended test.  I also wrote an e-mail to Joseph Jones requesting the document but he did not reply.

I contacted CAP.   On December 11, 2012 Dr. Luis Sanchez wrote a letter stating  “Yesterday, December 10 2012, Physician Health Services (PHS) received a revision to a laboratory test result”

 “The amended report indicates that the external chain of custody protocol [for that sample] was not followed per standard protocol]” 

Sanchez dismisses this test as irrelevant, rationalizing neither PHS nor the Board based any actions on the test and they would “continue to disregard” it.

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The  logic is that it was my behavior that resulted in any consequences.  My “non-compliance” in October led to my suspension and the test had nothing to do with it.   The sole reason for reporting me to the Board in 2011 was the positive test.  There is no other pretext to use.  It is misattribution of blame as without the test, now invalidated, there would have been no AA meetings to say I was non-compliant with.

In response to a civil complaint PHS, Quest and USDTL all took the position that the results of the fraudulent testing had absolutely nothing to do with anything.

And in response to the allegations of forensic fraud the labs claimed there was no forensic fraud because this was not a “Forensic” test but a “clinical” test.     The argument was that “clinical” tests do not require chain-of-custody and it was his behavior not these tests that resulted in consequences.   

As a “clinical” test I knew it was considered Protected Health Information (PHI)  under the HIPAA-Privacy Rule.  A patient must give written consent for any outside entities to see it.  Obtaining lab tests previously required the consent of both the patient and the ordering provider.  What PHS and the labs were apparently unaware of was the changes to the HIPAA-Privacy rule giving patients increased rights to access their PHI.   The changes removed the ordering provider requirements.  A patient has a right to obtain lab test results directly from the labs and has 30 days to do it.  CAP agreed.   USDTL sent me all of the documents.  They can be seen below:

August 6, 2014 to Langan with health materials.

The documents sent by USDTL are notable for two things:

1.  The e-mail from me to Joseph Jones dated December 10, 2012.  It can be seen on page 22 of the USDTL documents.  Screen Shot 2014-11-10 at 11.21.18 AM

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2. USDTL document confirming PHS knew the test was amended 67-days before they said they did.Screen Shot 2014-08-06 at 4.50.02 PM

The document shows PHS and Sanchez were aware of the invalidity of the test on October 4, 2012.   Instead of correcting things they initiated machinations to throw me under the bus.  They officially reported me to the Board for non-compliance on October 19, 2012.

The December 11, 2012 letter signed by Sanchez states “Yesterday, December 10, 2012, PHS received a “revised report” regarding the test.  The documents show he knew about it 67-days prior.

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Although USDTL complied with the HIPAA-Privacy Rule and CAP, Quest did not.   Quest Diagnostics refused to send me copies of their lab reports claiming it was confidential and protected information that required PHS consent.  Quest required I sign a consent form with multiple stipulations regarding PHS.  I refused and contacted the Department of Justice -Office of Civil Rights.  The DOJ-OCR agreed with me and I received the Quest documents

Remember a “clinical” test can only be ordered by a physician in the course of medical treatment.  It requires authorization from the patient to obtain a “clinical” specimen and it requires written authorization as to who sees it.  Referring physician was Mary Howard.

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And below is the fax from PHS to Quest from July 1, 2011 also requested by Mary Howard.  The signature on the front is not mine.  In addition I gave the blood at 9:30 and was in my clinic at MGH at 12:23 so it couldn’t be. The WC 461430 R are dated July 2, 2011.  This is a “clinical” not “forensic” sticker.  The “R” indicates a red top tube.  The other sticker is USDTL and indicates it was logged in on July 8, 2011.

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What does it all mean?    Blood left in a red top tube ferments. This is basic chemistry.  The PEth test needs to be refrigerated and shipped overnight to prevent this.  In addition it needs to be collected with a non-alcohol wipe in a tube that has an anti-coagulant or preservative so that it does not ferment.    It requires strict procedure and protocol.

When I gave my blood on July 1st, 2011 it was as a “forensic” test per my contractual agreement with PHS.

On July 2, 2011 it was changed to “clinical.”   Why?  because “forensic” protocol would have invalidated it.

The only conceivable reason for doing this was to bypass chain-of-custody procedures.  My unique identifier #1310 was removed and the clinical specimen number was used for chain-of-custody.    The R in 461430R indicates a red top tube.

By holding on to it for one week the blood fermented.    As it was July with an average temperature close to 90 they overshot their mark a bit.   My level of 365 is consistent with heavy alcohol use–end stage half-gallon a day type drinking.

Quest then forwarded it to USDTL with specific instructions to process it as a “clinical” sample.  USDTL complied and  processed it as a clinical specimen which was reported it to PHS on July 14, 2011.

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PHS then asked USDTL to add my forensic  ID # 1310 and add a collection date of July 1, 2011 so it would appear “forensic” protocol was followed.    The reason Jones signed the “litigation packet” on December 3, 2011 was because that was when the “litigation packet” was manufactured.  A “clinical” sample does not produce one.

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USDTL willingly complied with this request.

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PHS then reported this as a “forensic” test to the Medical Board on July 19, 2011 and requested a reevaluation.

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The distinction between “forensic” and “clinical” drug and alcohol testing is black and white. PHS is a monitoring program not a treatment provider. The fact that a monitoring agency with an MRO asked the lab to process and report it as a clinical sample and then used it forensically is an extreme outlier in terms of forensic fraud. The fact that they collected it forensically, removed the forensic components and let it sit in a warehouse for a week is  abhorrent.  The fact they then specifically requested it be processed as a clinical sample deepens the malice. The fact that they then reported it to the Board as a forensic sample and maintained it was forensic up until just recently makes it egregious. But the fact that the test was changed from “positive” to “invalid” on October 4th, 2012 and they then reported me to the Board on October 8th,  2012 for “noncompliance,” suppressed it and tried to send me to Kansas where I would be given a non-existent diagnosis to delegitimize me for damage control makes it wantonly egregious.  This is political abuse of psychiatry.

Accountability requires both the provision of information and justification of what was done.

For doctors it is very difficult to obtain the information. As seen here, they put up a gauntlet to prevent the provision of what is immediate in all other drug testing programs.  I now have all of the information. What it shows is clear. This was intentional.  It was no accident.  They knew what they were doing, knew it was wrong but did it anyway.

Accountability also requires that those who commit misconduct suffer consequences. The PHPs have also put up barriers to this.    With no regulation or oversight they have no apparent accountability.

My understanding is that it works this way.   The Medical Board, Medical Society and Departments of Public Health have no oversight.   The MMS has an ethics committee but all they can do is “educate” the person if they feel there was a violation.  The DPH won’t even look at it and the Board is complicit.

My understanding is that they have convinced law enforcement that this is a “parochial” issue that is best kept within the medical community.  They have also created the impression that they are “friends” of law enforcement.  I have heard from many doctors that they have tried to report misconduct, civil rights violations and crimes to the police, AGO, and other law enforcement agencies only to be turned back over to the PHP.     By saying the physician is “impaired” it delegitimizes and invalidates the truth.  “He’s just a sick doctor,  we’ll take care of him.”  That physician then suffers consequences effectively silencing the rest.

PHS uses the Board to enforce punitive measures and temporize.   The Board puts blind faith in PHS.  Blind faith that defies common sense ( mandating phone numbers at anonymous meetings)  and disregards the law (Establishment Clause violations that are clear and well established).    The Board also temporizes to cause damage.

In my case they required a psychiatric behavioral evaluation.  I was given the choice of Kansas and a few other Like-minded assessment centers.

After petitioning for  multiple qualified psychiatrists that were summarily rejected months later for no reason one of the Board Attorneys suggested  Dr. Patricia Recupero, M.D., J.D. who is Board Certified in Forensic Psychiatry and Addiction Psychiatry.   The Board had used her in the past but not recently.  Seeing that she had been used by the Board for fit-for-duty evaluations in the past the Board accepted my petition.

Dr. Recupero wrote an 87-page report. She concluded I was safe to practice medicine without supervision, that I had never had an alcohol use, abuse or dependence problem, and that PHS request for phone numbers was inappropriate. She also documented PHS misconduct throughout my contract and concluded it was PHS actions, not mine, that led to my suspension.   What she describes is consistent with criminal harassment.  She documents the falsification of neuropsychological tests and confirms the forensic fraud.  What did the Board do?  Ignored their very own recommended and approved evaluator.

One measure of integrity is truthfulness to words and deeds.  These people claim professionalism, ethics and integrity.  The documents show otherwise.  The careers and lives of doctors are in these peoples hands.

Similar fraud is occurring across the country.  This is an example of the institutional injustice that is killing physicians.  Finding themselves entrapped with no way out, helpless and hopeless they are feeling themselves bereft of any shade of  justice and killing themselves.  These are nothing more than bullies and accountability is essential.  The “disruptive physician” moral panic has harmed the Medical Profession.

Dr. Clive Body in his book  Corporate Psychopaths   writes that “Unethical leaders create unethical followers, which in turn create unethical companies and society suffers as a result.”  And according to Dr. Robert Hare in  Without Conscience  “If we can’t spot them, we are doomed to be their victims, both as individuals and as a society. ”

Wes Boyd notes that valid complaints from physicians are often dismissed as “bellyaching” by the PHPs.  Complacent that these are just good guys helping doctors and protecting the public the complaints are dismissed, tabled, deflected or otherwise ignored.  Bellyaching??   Is this bellyaching.

It is my opinion that what you see here is indefensible  Procedurally, Ethically, and Legally.

Procedurally it goes beyond negligence and represents fraud.  It violates every procedural guideline, regulation and standard of care including their very own.

Ethically it violates everything from the Hippocratic Oath to  AMA Medical Ethics to the MRO Code of Conduct.

And where was PHS MRO Wayne Gavryck? By my count he violated at least 4 of the 6 Codes of Ethical Conduct.

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What was done here violates the most fundamental ethical principles of Medicine -Autonomy, Beneficence, Nonmaleficence and justice.

Intentionally falsifying a laboratory or diagnostic test to refer for an evaluation or support a diagnosis or give unwarranted “treatment” is unconscionable.  Abuse under the utility of  medical coloration is especially egregious.

The information provided herein should negate any “peer-review” protection or immunity afforded PHS as it is undeniably and egregiously in “bad faith.” Moreover, the ordering a “clinical” test is outside PHS scope, practice, and function of PHS. According to M.G.L. c. 111, § 203 (c):

An individual or institution, including a licensed or public hospital, physician credentialing verification service operated by a society or organization of medical professionals for the purpose of providing credentialing information to health care entities, or licensed nursing home reporting, providing information, opinion, counsel or services to a medical peer review committee, or participation in the procedures required by this section, shall not be liable in a suit for damages by reason of having furnished such information, opinion, counsel or services or by reason of such participation, provided, that such individual or institution acted in good faith and with a reasonable belief that said actions were warranted in connection with or in furtherance of the function of said committee or the procedures required by this section.

Dr. Luis Sanchez and Dr. Wayne Gavryck need to be held to the same professional standards as the rest of us.

If you can support either of them procedurally, ethically, or legally, any one of them, then I will turn in my medical license with a bow on it.  If they did not commit negligent fraud by standards of care and procedural guidelines, egregious moral disengagement in violation of ALL ethical codes for the medical profession and society and break the law then disprove me.  Just one will do.

But you can’t do this then I ask that you speak up and take a stand. Either defend them or help me hold them accountable.  If a crime is committed it needs to be addressed.  Ignoring encourages more of the same.

And if this cannot be supported procedurally, ethically or legally then I want to know what is going to be done about it?

How low does the moral compass have to go before someone takes action?

Doctors are dying across the country because of people just like this.  They have set up a scaffold that removes the usual checks and balances and removed accountability.   It is this institutional justice that is driving many doctors to suicide.

So the evidence is above.  Either defend them or help me draw unwanted attention to this culture of bullying and abuse. So I am asking you to contemplate if  what you see here is ethically, procedurally or legally sound.   If you can show just one of these then I stand corrected. But if you cannot justify this on any level then I want you to help me expose this criminal enterprise. Either defend it or fight it. Silence and obfuscation are not acceptable.

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Anatomy of a Forensic Fraud: The Reality of Drug and Alcohol Testing

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The juxtaposed documents in and of themselves reveal a number of red flags.  How does one “revise” a chain-of-custody”?    If you do a google search you will not find “chain-of-custody” as an object of the verb revise. It is an oxymoron.  A document or opinion can be revised.  A chain-of-custody, by its very definition, cannot.  This collusion to fabricate a positive test has coined a new oxymoron—“revised chain-of-custody.”     Go ahead and look it up. It is a novel one.     As it should be.

What these documents show is, in fact, indefensible ethically, procedurally and legally.  The first document signed by Dr. Luis Sanchez, past President of the FSPHP and past Medical Director of Physician Health Services, Inc.  (PHS) was sent to the Board of Registration in Medicine on December 11, 2012 and is notable for two statements.   The letter from Dr. Sanchez asserts that “Yesterday, December 10, 2012, Physician Health Services, PHS received a revision of a laboratory test result,” but it did not matter because PHS was {unaware} ” of any action taken by the Massachusetts Board of Registration in Medicine as a result of the July 28th, 2011 report.   However, based on the amended report, PHS will continue to disregard the July 21st PEth test result.”

The second document, addressed to Dr. Luis Sanchez, is dated October 4, 2012 (67 days earlier) and shows the first document to be a bald-faced lie.

On July 28h 2011 Dr. Luis Sanchez reported to the Medical Board that I had a positive alcohol test.

Although I knew that Dr. Sanchez had fabricated the test I  had no way of proving it. I requested the “litigation packet,” which records “chain-of-custody” from collection to analysis in August of 2011.  At first they  refused.  PHS then tried to dissuade me (“it will be costly, involve attorneys, etc). Finally they agreed but threatened me with “unintended consequences.”

I was finally able to get a copy of the “litigation packet”  in December of 2011.  Remarkably, it  showed that Sanchez had requested my ID # and a “chain-of-custody” be added to an already positive specimen. I reported this to the Board but they ignored it. I also filed a complaint with the College of American Pathologists.Screen Shot 2014-11-06 at 11.17.32 PM

On October 23, 2012 Sanchez reported to the Medical Board that I was “noncompliant” with requirements with A.A.  meetings that I was supposed to go to as a direct result of the positive test and my license to practice medicine was suspended as a result in December 2012.

On December 10, 2012 I contacted the College of American Pathologists who told me the test was “amended” from “positive” to “invalid” on October 4, 2012. I confronted Sanchez and PHS and they said they did not know anything about it.

The following day, December 11, 2012, they sent out a letter saying that the test was invalid but that they were “unaware of any action taken against my license as a result of the test.”  

The documents show that on  July 19th, 2011 Sanchez requested my ID # 1310 and a “chain-of-custody” be added to an already positive specimen and on October 4th 2012 the test was “appended” to “external chain of custody not followed per standard protocol.”

Please note again that  Dr. Sanchez stated on December 11, 2012 that he “just learned” about this on December 10, 2012. He reported me to the Board as “noncompliant” on October 23, 2012 and my license was suspended in December 2012.   These documents show he had full knowledge that the test was invalid and as an agent of the Board this is under “color of law.”   Both he, and PHS, need to be held accountable for this.

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Lies, Lies, and More Lies

10:19:12-Verbal Compliant Noncompliance f:u written 10:19:12–BORM Complaint Committee

The contradictory documents from Sanchez alone constitute a crime (withholding information in concealment and providing false information to a state agency).  But what he did is far far worse.

I just obtained the October 4th document. Although I knew it existed, PHS suppressed it and refused to acknowledge it.   But in response to a complaint I filed against PHS and the labs it was revealed by USDTL that the test in question (phosphatidyl-ethanol) was not sent as a “forensic” specimen but collected as a “forensic” specimen, then changed to a “clinical” specimen at the request of PHS Program Director, Linda Bresnahan.   The specimen was kept at the collecting lab (Quest) for 7 days as a  “clinical” specimen, then sent to the analyzing lab (USDTL) with specific instructions from Quest to process it and report it as a “clinical” specimen.  PHS then used it as a “forensic” specimen by reporting me to the Board of Registration in Medicine and  requesting I undergo an evaluation for alcohol abuse.

As a “clinical” specimen it is rendered “Protected Health Information” (PHI) and thus under the HIPAA Privacy-Rule.   So with the help of the College of American Pathologists I requested my PHI from both Quest and USDTL. Quest refused (for obvious reasons) but USDTL complied.   And that is how I was able to obtain the October 4th document revealing that Dr. Sanchez lied to the Medical Board.     I would love to hear him, or PHS MRO Wayne Gavryck, defend the indefensible (and unconscionable).

Dr. Sanchez is correct when he pleads ignorance of any action taken by the Board as a result of the July 21st PEth result.   It was his report to the Medical Board  that I was “noncompliant” with attending AA meetings (that I was supposed to go to as the direct and sole result of the positive test)   that he reported to the Board just two weeks after the October 4th appended test.

The test was sent as a “clinical” specimen intentionally. PHS is not a clinical provider but a monitoring agency. They cannot send clinical samples.   But since clinical samples are “protected health information” and under HIPAA the lab had to give me the records and here you have them.

The distinction between “forensic” and “clinical” drug and alcohol testing is black and white.  PHS is a monitoring program not a treatment provider.  The fact that a monitoring agency with an MRO asked the lab to process and report it as a clinical sample and then used it forensically is an extreme outlier in terms of forensic fraud.  The fact that they collected it forensically, held it for 7 days and changed it from “forensic” to “clinical” to bypass strict “chain-of-custody” requirements  deepens the malice.  The fact that they then reported it to the Board as a forensic sample and maintained it was forensic up until now makes it egregious.   But the fact that the test was changed from “positive” to “invalid” on October 4th, 2012 and Sanchez then reported me to the Board on October 23rd 2012 for “noncompliance,” suppressed it and tried to send me to Kansas for damage control makes it wantonly egregious.   (they didn’t think I’d ever find out).

Add on that the fact that I’ve been questioning the validity of the test since day 1 and they violated the HIPAA Privacy Rule over and over and this is reckless and major health care fraud.

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Fax from PHS to USDTL on July 19th, 2011 asking that my ID #1310 be added to an already positive test and a “chain-of-custody” be “updated”

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USDTL complies with PHS request to and adds my ID #1310 and a date of collection (July 1, 2011) to an already positive specimen

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No date of collection, no unique identifier linking specimen to me. Multiple “fatal flaws.”

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I file complaint with CAP January 12, 2102. CAP forces USDTL to amend test from “positive” to “invalid” which they do on October 4, 2012. PHS conceals this fact until December 11, 2012

Letter from Chief of Toxicology at MGH–Ignored by PHS, USDTL, and the BORM         11:5:12-Dr. Flood Letter–Ignored by PHS:USDTL:BORM

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A Golden Age

BY TIMOTHY STEELE

Even in fortunate times,
The nectar is spiked with woe.
Gods are incorrigibly
Capricious, and the needy
Beg in Nineveh or sleep
In paper-gusting plazas
Of the New World’s shopping malls.
Meantime, the tyrant battens
On conquest, while advisers,
Angling for preferment, seek
Expedient paths. Heartbroken,
The faithful advocate looks
Back on cities of the plain
And trudges into exile.
And if any era thrives,
It’s only because, somewhere,
In a plane tree’s shade, friends sketch
The dust with theorems and proofs,
Or because, instinctively,
A man puts his arm around
The shoulder of grief and walks
It (for an hour or an age)
Through all its tears and telling.

Timothy Steele, “Golden Age” from Sapphics and Uncertainties: Poems 1970-1986. Copyright � 1986, 1995 by Timothy Steele. Reprinted with the permission of the University of Arkansas Press, www.uapress.com.

Source: Sapphics Against Anger and Other Poems (1986)

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Disappointed that his grandiose proposal to test the urine of half the U.S. population for illicit drugs was declined in the 1980’s, Bob realizes such a large swath was too tall an order. Acknowledging that his dream of lifelong urine drops for each and every one of the riffraff at least once a fortnight will take time, he decides to focus his attention on specific subsets of the great unwashed such as school-children, welfare mothers, the unemployed and whatever they are calling Hippies these days.

Medical Urban Legend–The Legacy of the 4 MDs and why B.S. Needs to be Identified from the Get-Go!

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“Because I can Biotches! That’s right..because I can!” 

According to G. Douglas Talbott, rehabilitation programs that evaluate and treat the rest of the population for substance abuse issues are incapable of doing so in doctors as they are unlike any other inhabitants of our society.   Physicians are unique. Unique because of their incredibly high denial”, and this genetically inherent denial is part of what he calls the “four MDs.” Used to justify the thrice lengthier length of stay in physicians the “four-MDs” are as follows: “M-Deity”, “Massive Denial” “Militant Defensiveness” and “More Drugs.”

He states that “Impaired doctors must first acknowledge their addiction and overcome their ‘terminal uniqueness’ before they can deal with a drug or alcohol problem.”
Now some  doctors are arrogant undisciplined egotists but narcissistic personalities exist in any profession and expanding traits that may apply to a small percentage of doctors to include all doctors as a universal truth contradicts reality. Applying a stereotypical paternalistic length of treatment in doctors three times as long as non-doctors to force a “one-size” fits all treatment on them has no evidence base.

tumblr_kuwuugSEmN1qz6z0no1_500This dicto simpliciter argument can, in fact, be refuted simply by pointing it out! Sadly, no one ever did so the ASAM front-group hasbeen able to establish this caricature of the arrogant paternalistic know it all needing 3 months or more of treatment as standard of care for our profession. They did this by getting medical boards and the FSMB to accept fantasy as fact by relying on board members tendency to accept expert evidence at face value–which they always do and that is a personality characteristic that I would argue is not dicto simpliciter.

Physicians are unique only insofar as the unique elements required of the profession to become and be a physician such as going to medical school and completing the required board examinations.

Any and all doctors referred to a PHP for assessment will spend at least 3 months in treatment if the facility feels it is indicated. It is inevitable. No one has challenged a patently absurd generalization that has absolutely no evidence base or plausible scientific or medical explanation. Of course those sentenced to the 3 or more months have complained but by that time they are de-legitimized and stigmatized. No one to complain to.  After all, these are just redeemed altruistic non-profit  good guys protecting the public and helping colleagues forge a path to salvation!
All the ASAM/FSPHP quacks have to do at that point to deflect legitimate concerns is point out the one doing the complaining is an “addict” who is “in denial” and it is part of his “disease.”  The mere accusation of substance abuse is used to disregard the claims of the accused.
Authoritative opinion entrenched. Someone should have called B.S. long ago.  But no one did and if they had we would not be in the current situation which is only going to go from bad to worse as the ASAM plan for universal contingency-management and urine usury unfolds-–A “golden age.” And the 4MDs Talbott attributes to doctors are all wrong. There is only one MD and it is “medical license.” On second thought that may not be entirely true.  “More money” may be another. And I am not talking about a doctor’s income. I am referring to insurance and the specter of depleting home and hearth.   Fiscal annihilation. Your license or your life.   And the only true  and plausible answer that Talbott could give to justify the lengthy stay is “Because I can biotches!” And “contingency-management” sounds better than extortion doesn’t it?  And  using your medical license as “leverage” sounds a helluva lot better than holding it for ransom.
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The ‘A’ Word: Are Doctors Arrogant?
Leslie Kane
June 17, 2014
Good Doctors Have Some Bad MomentsDoctors’ personalities have become a hot topic, not only because warmth and pleasantness count toward patient satisfaction, but also because positive patient interactions have a role in better outcomes.Physicians’ personalities are under the microscope as patients post reviews of doctors on numerous Websites. In some reviews, the word “arrogant” has shown up. But calling doctors arrogant is nothing new.Are there really so many arrogant doctors? No doubt, some physicians deserve the label, but it seems to be a stereotype that has blossomed and taken on its own life.”Arrogance among doctors is not the norm”, says Marion Stuart, PhD, co-author of The 15 Minute Hour: Therapeutic Talk in Primary Care, and Professor Emeritus in the Department of Family Medicine at UMDNJ-Robert Wood Johnson Medical School. “Someone who has done the hard work and has gone into medicine because they care about people, and are interested in helping peoples’ lives and making the world a better place, is not going to be arrogant.”So how did the arrogant doctor epithet arise?In the past, doctors were considered authorities who told compliant patients what to do and treated them with a paternalistic attitude. Some doctors may retain those behaviors today.Another possibility is overgeneralizing. A patient sees a doctor who has a difficult personality and assumes that the trait is more widespread within the profession than it really is.

Arrogance or Self-confidence?

“Arrogance is totally different from self-confidence,” says Dr. Stuart. “When you’re confident, that’s your assessment of your own competence. You have the experience and the wisdom, you know what you can do, and your confidence says that. It’s your relationship to yourself and your own expertise,” she says.

Arrogance is a different ballgame. “This has to do with your judging that other people are inferior,” she says. “It has more to do with not seeing other people as being up to your standards.”

Could the confidence that comes with being accomplished and successful make someone arrogant? Typically no, says Dr. Stuart. The trait of arrogance develops or resides within a person at a much earlier stage, arising from one of two paths:

“I am indeed better.” Someone who has always lived a privileged life, feels entitled to all of the finer things, or has always been looked up to may take it as a given that he or she is better than others. “People who had a sheltered, protected existence with no perception of what the real world is like for other people may consider themselves an elite group, entitled to feel superior,” says Dr. Stuart.

“I made it, so why can’t you?” By contrast, a person who was deprived as a child and worked very hard to pull himself up by the bootstraps may then look down on others who don’t have the same perseverance or initiative to take charge of their life and create similar success.

Doctors Are Harried and Pressured; Patients Are More Demanding

Some doctors have admitted that at times it’s hard to maintain their patience, and frustration triggers a snappish response. Throw into the mix the fact that doctors may have less time to see each patient and answer questions, and you have the ingredients for a negative interaction.

“I’ve had eight years of medical education and I’ve been trying to get my patient to make healthy lifestyle changes, and he comes in with a page ripped out of a tabloid, convinced that the information is right…there’s a limit to how much time I can spend ‘educating’ or convincing them that their ‘cure’ has no scientific basis,” one physician told me.

People have come to expect the stance of “the customer is always right” and get annoyed if doctors don’t accede to all of their requests. But because of new medical practice guidelines, a doctor may not readily give the patient the test or medication they ask for. “Now, with healthcare insurers and companies setting limits on doctors, many times the patient feels that the doctor is not so much on their side, and this could be perceived as arrogant,” says Dr. Stuart.

Is There an Outbreak of Rudeness?

Barry Silverman, MD, a cardiologist and coauthor with pediatrician Saul Adler, MD, of Your Doctors’ Manners Matter: Better Health Through Civility in the Doctor’s Office and in the Hospital, says, “While most doctors are appreciated and respected by their patients, there’s a general perception that professionalism has declined.

“Patients are often more informed, ask detailed questions, and demand a high level of service, while demands on the doctor’s time increase and reimbursements fall,” says Dr. Silverman. “What patients interpret as arrogance is many times a rushed and harried doctor, not an uncaring one. Medicine can be mentally and physically exhausting, but the bottom line is that the doctor must listen and communicate with the patient to deliver quality medical care.”

Still, remaining pleasant and calm is easier for some doctors than for others. There’s no uniform physician personality; many doctors have a natural “people person” inclination, while others are more stoic.

Are doctors expected to smile and be nice in every circumstance, no matter what?

“Professionalism is not about putting on a happy face or being someone you are not; it is about providing quality care for the patient,” says Dr. Adler. “Patients are more informed and have access to more information than ever before. Much of that information is incorrect and sometimes harmful. That means that part of the professional duty is to teach as well as treat.

“Patients understand that doctors have significant restraints on their time, and it is not unreasonable for doctors to use preprinted written materials, educational resources outside the doctor’s personal office, and honest and informative Websites,” says Dr. Adler. “However, under no circumstances should the doctor be rude or abrupt; a smile and kind, considerate behavior is always appropriate.”

It would be naive to say that there aren’t arrogant doctors. But there are far more doctors trying to do their best for patients and relate to them.

Medscape Business of Medicine © 2014 WebMD, LLC

Laboratory Misconduct in Drug Testing–Processing “Forensic” as “Clinical” to Bypass Chain-of-Custody








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In “Ethical and Managerial Considerations Regarding State Physician Health Programs, ” Dr.’s J Wesley Boyd and John Knight note the significant and multiple conflicts of interest that exist between State Physician Health Programs and the referral treatment centers that they use.     They state:

“To further complicate matters, many evaluation/treatment centers depend on state PHP referrals for their financial viability. Because of this, if, in its referral of a physician, the PHP highlights a physician as particularly problematic, the evaluation center might—whether consciously or otherwise—tailor its diagnoses and recommendations in a way that will support the PHP’s impression of that physician.”

There is an obvious difference between impartially evaluating evidence in order to come to an unbiased conclusion and building a case to justify a conclusion already drawn. To consciously “tailor” a diagnosis of addiction or relapse based on anything other than the objective evidence violates the basic principles of medical ethics.

A state audit of the North Carolina Physicians Health Program that was released in 2014 documented the conflicts of interest and lack of quality assurance in referrals to out of state “PHP-approved” assessment and treatment programs.  The same centers are used in most states including Massachusetts.  and the the medical directors of the “PHP-approved” facilities can all be found on this list of “Like-Minded Docs.”  The financial and political conflicts-of-interest are obvious between the PHPs and the “PHP-approved” assessment and treatment centers.  And there is no choice in the matter.

In 2011 the ASAM issued a Public Policy Statement on Coordination between Treatment Providers, Professionals Health Programs, and Regulatory Agencies recommending physicians in need of assessment and treatment be referred only to “PHP approved” facilities and also that PHPs need the full cooperation of the board  if they deem a monitored physician noncompliant as “criticism or doubt could unintentionally undermine the PHP”   In addition the ASAM wants regulatory agencies to  recognize the PHP their expert in all matters relating to licensed professionals with “potentially impairing illness.”  You read that right, “potentially impairing illness.”  The  Federation of State Medical Boards House of Delegates adopted an updated Policy on Physician Impairment at their 2011 annual meeting and approved the concept of “potentially impairing illness” and “relapse without use.”  

And what might signal a potentially impairing illness you ask? According to Physician Health Services, Inc. (PHS), not having “complete, accurate, and up-to-date records” could be a red flag as “when something so necessary is not getting done, it is prudent to explore what else might be going on.”

Boyd writes in Psychology Today that when he and John Knight published this paper, reviewers at 2 different journals said that the issues raised were very important but it “should not be published, essentially because doing so might bring unwanted outside attention to PHPs” and —one of them wrote the paper should be withdrawn and instead be presented at the national federation of PHPs’ annual meeting. Boyd recommends more state audits and national standards and that “because PHP practices are largely unknown to physicians until they themselves are referred to one, physicians who do register complaints about standard PHP practice are often dismissed as bellyaching”

On July 1st 2011 I was asked to have a blood test for alcohol. 19 days later it was reported at an impossibly high level and I was reported to the Board of Registration in Medicine and asked to have an evaluation at one of the “PHP-approved” facilities.

One potential conflict-of-interest that has not been entertained is that between the PHP and the contracting labs.  Just like the assessment and treatment centers there is a lot of money involved in drug and alcohol testing and the FSPHP is a big referral source.  In addition, some of the tests these labs are using on physicians were actually introduced by an ASAM/FSPHP doctor and developed as Laboratory Developed Tests (LDTs). LDTs do not require the stringent FDA approval process. In actual fact , you don’t even have to show that it is even detecting the substance you claim it to be testing for.  Some internal protocol has to be provided but other than that it is an honor system.  And without FDA oversight, the labs can claim anything they want as far as validity, sensitivity, and specificity.  Once these tests were developed as LDTs they were pitched to the  Federation of State Medical Boards as reliable and valid.   The PHPs then contracted with the labs to use the tests they introduced for monitoring physicians in the programs.  The EtG was introduced with essentially no evidence-base other than a small study on less than 20 psychiatric inpatients in Europe with an arbitrary cutoff of 100.  Countless lives were ruined with lost medical and nursing licenses, incarceration, loss of custody of children and most programs abandoned it in 2006. A SAMHSA advisory was issued that it was unreliable.  The Wall Street Journal wrote an article about the “flawed test.”  Most monitoring programs abandoned it. The PHPs did not and continued to use it on doctors without pause.  The PHPs put the responsibility on the monitored physicians to avoid hand sanitizer, cologned, sauerkraut, and hundreds of other products as ethanol is ubiquitous in our environment.  Irrational authority. The EtS, and PEth were also introduced by an FSPHP physician.

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It was just discovered that after 7 days and under unknown conditions my PEthStat Forensic test was changed to “clinical” with specific instructions to USDTL to run it as “clinical.” PHS then misrepresented it to the Board as forensic for  the last three years.  PHS is not a “clinical” provider.

USDTL-Litigation Packet(selected)

What we see here is a letter from Luis Sanchez reporting a positive test for phosphatidylethanol (PEth) from July 19th, 2011 to the Board of Registration in Medicine.   I have also attached documents from the “litigation packet” received from USDTL that is generated with any forensic drug test as a record of chain-of-custody.   This document ensures the integrity of the drug testing by recording the specimens whereabouts at all times.  The Medical Review Officers job is to make certain everything was done correctly by confirming that everything was documented and their were no breaks in the chain-of-custody.    If a donor disagrees with a positive test then the litigation packet is used to check the integrity of the specimen. It is a quality control measure that protects both parties.

The litigation packet contains all of the information that the MRO reviews when reporting the results of a positive specimen. If the custody and control form contains all of the information it is supposed to and confirms chain of custody then it is reported as a positive.  If the chain-of- custody contains so called “fatal flaws”  (lacking collectors signature, missing date and time, mismatched ID #’s, specimen not sealed, etc.) then it is deemed “invalid.” it must be thrown out by protocol.  That is standard operating procedure, standard of care, and required.  This is the MROs sole and simple responsibility.

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In my case I disagreed with the positive result and requested the litigation packet on the specimen.   This was at first refused by PHS.  Linda Bresnahan and the PHS attorney Deb Grausbaum then tried to dissuade me from obtaining it deeming it complicated and costly.  But I insisted on obtaining it and sent the  $500.00 fee and when I did so was told that there would be “unintended consequences” as a result of my request. I finally received it in December of 2011 and it included a “summary of results” dated December 3, 2011 and signed by the director of Laboratory operations, Joseph Jones, supporting it as a true positive. (even though it contradicts his own written protocol on forensic collection procedure.)   what he preaches apparently does not apply when it comes to pleasing a big client such as the FSPHP. $$

So what do we see here in the litigation packet?   Evidence of deliberate forensic fraud perpetrated by PHS, drylabbing, and intentional misrepresentation of lab data.  It shows clear and deliberate falsification of lab data at the request of PHS and includes a memo from Linda Breshahan on July 19th requesting that the ID# on a positive specimen with no collection date be “updated” to my ID # 1310 and that it be updated to show “chain-of-custody” be maintained.  Well that would seem highly unusual as a “chain-of-custody” cannot be backdated and “correcting” a unique identifier on forensic specimen is prohibited.  In actual fact there was no chain-of-custody and not even a  custody and  control form the collecting lab (Quest Diagnostics)!    When this   complete absence of external  chain of  custody was pointed out to PHS they pleaded ignorance but eventually produced a letter from Quest Diagnostics dated March 22, 2012 that appears to be written in language suggesting legitimacy but in actuality documents all of the fatal flaws.

A six-month investigation was done by CAP and USDTL was forced to change the test from “positive” to “invalid” on October 4th 2012.    This was reported to PHS but not conveyed to anyone else.   The Chief Investigator for CAP called me in December of 2012 to make sure the test had been corrected. It had not.  Instead PHS reported me to the Board for “noncompliance” the 2nd week of October for damage control.  They apparently did this as a pre-emptive strike thinking I would never find out!

It does not take a forensic toxicologist or  chemist to interpret the attached documents. They show collusion to commit fraud with USDTL, collusion to cover up fraud with Quest Diagnostics, misrepresentation of facts to a State Agency, and obstruction of the truth when the test was mandated by CAP to be corrected by USDTL.  These documents show conspiracy, fraud, and corruption.  What they show is procedurally, ethically, and legally indefensible.

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The distinction between “forensic” and “clinical” drug and alcohol testing is black and white. Forensic testing is done to detect illicit substances. Pre-employment, random monitoring, or for cause drug testing is done in individuals to see if they are using drugs or alcohol when they should not be.   Because the consequences of a positive test can be significant and even permanent, forensic drug and alcohol testing requires strict procedure and protocol to prevent harming the innocent. A custody and control form documenting the chain-of-custody and review by a Medical Review Officer (MRO) before reporting a positive test are necessary to ensure the validity of the test.   It is the responsibility of the MRO to make sure no other explanations exist for the positive test (such as a prescribed medication) and check chain-of-custody. If the chain-of-custody contains any “fatal flaws” (specimen not sealed with sticker and signed by donor, missing date or collector signature, etc.) it is rejected as an invalid specimen.

A clinical test is used in patient care. Ordered by a doctor, it is use for purposes of treating a patient. A clinical test does not have the strict requirements of a forensic test.   I could send a sample of fluid from a tin of pickled herring or Jagermeister to the clinical lab for electrolytes and would still get a result back.

PHS is a monitoring program not a treatment provider.  According to PHS documentation they follow NIDA drug and alcohol testing protocol. Guidelines for both the Federation of State Medical Boards (FSMB) and the Federation of State Physician Health Programs (FSPHP) state chain-of custody and MRO review on all specimens. In addition to MRO review the guidelines also specify that the PHP Medical Director confirm all positive tests. PHS has an MRO, Wayne Gavryck.

I have multiple emails sent to Gavryck asking him to correct this and inquiring why as an ardent 12-step zealot he was not practicing what he preaches by promptly admitting his wrong and making amends for it.  He ignored me. Can’t wait to hear him have to explain his doublethink and hypocrisy publicly.

MRO Code of Ethics

The fact that a monitoring agency with an MRO asked the lab to process and report it as a clinical sample and then used it forensically is an extreme outlier in terms of forensic fraud.  The fact that they collected it forensically, found out it was collected wrong with no chain of custody and the wrong tube 7 days after it was drawn and then changed it from forensic to clinical deepens the malice.  The fact that they then reported it to the Board as a forensic sample and maintained it was forensic up until now makes it egregious.   But the fact that the test was changed from “positive” to “invalid” on October 4th, 2012 and they then reported me to the Board on October 8th 2012 for “noncompliance,” suppressed it and tried to send me to Kansas for damage control makes it wantonly egregious.   (they didn’t think I’d ever find out but the CAP investigator called me in December.  Add on that the fact that I’ve been questioning the validity of the test since day 1 and they violated the  HIPAA Privacy Rule over and over and this is reckless and major health care fraud.

Like other front groups the primary motive is profit for the drug testing and rehab industry, and “recovered” physicians like Dr. Gavryck have become “willing gulls” in all sorts of fraud and chicanery.  Ideology trumps science and control usurps conduct.  including Dr. Gavryck, are “in recovery” themselves and, having only a hammer, see everything as a nail. PHS, inc. is a non-profit NGO that has become corrupt.  This occurred under the leadership of the prior Medical Director Luis Sanchez, MD who has since retired.   The director of operations, Ms. Linda Bresnahan is engaging in fraud with apparent impunity.   Forensic (in contrast to clinical) drug testing mandates strict adherence to protocol including proper collection procedures, unbroken chain-of-custody, and Medical Review Officer (MRO)  review prior to reporting a forensic  test as a true positive.  It is held to a higher standard because the potential   consequences can be grave and far reaching.   There are no exceptions.   The Federation of State Medical Boards and the Federation of State Physician Health Programs require chain-of-custody and MRO review for any and all drug testing according to their guidelines.   PHS, inc has an MRO, Dr. Wayne Gavryck, who has holds this responsibility.  I have attached the MRO Code of Ethics and an explanation of the importance of chain-of-custody.

Medical Review Officers need to have honorable values and follow the same standards as everyone else.

If an individual’s identity is tied to a sub-group that is unregulated, unaccountable, and with no oversight, such as PHS, fraud may be committed even though they have excellent knowledge about cultural norms and values on a more general level.  So called “noble cause corruption is quite common and one someone gives up their integrity in lock step with the other members of the group, no matter how small the enticement, the potential for continued and more severe forms of corruption is increased.

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PHS provided a letter from the New England Compliance Manager, Nina Tobin, on March 22, 2012 in response to my persistence in obtaining the absent  Quest “chain-of-custody.” After going into great detail about the faxed document from PHS, she states “the collector was unfamiliar with collecting blood samples for PHS and did not have a “chain-of custody” form designed for blood tubes.” “The collector used the faxed letter request, which included the test code and the collection information, as the chain of custody form.”   This is analogous to not receiving an item you requested by express mail and having them reply the person was “unfamiliar with the postal system in the United States and did not have a postage stamp, she wrote U.S. Postal Service on a piece of paper and wrote “express mail” on the flat side and folded it into an envelope.”  The very nature and purpose of both are removed.  You cannot manufacture a chain-of-custody any more than you can manufacture a stamp.

MLLv3finalJacob Hafter Esq

ThePhysician suicide has increased dramatically across the country and as Pamela Wible observes in the Washington Post it is “often hushed up.” It is only going to get worse. Heightened perceptions of defeat and entrapment are known to be powerful predictors of suicide.

Quest lists “accountability” as one of six company values  on their corporate website claiming “as a company and as individuals, we accept full responsibility for our performance and acknowledge our accountability for the ultimate outcome of all that we do.”   Quest lists “integrity” as a value noting all  “decisions and actions ultimately are driven by integrity,”  and an  Integrity Commitment Pledge.  The Quest Code of Business Ethics includes compliance with laws, rules, and regulations. confidentiality in release of test results and protected health information (PHI), avoidance of Conflicts of Interest (COI), and fair dealing; “no person may take unfair advantage of anyone through manipulation, concealment, abuse, or privileged or confidential information, misrepresentation of facts or any other unfair dealing practice.”  Quest “actively promotes honest and ethical behavior in all its business activities,” and require employees to report violations to, among others with supervisory capacity, a “Compliance Officer.”

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