MD’s Appeal in PHP, Medical Board Lawsuit Denied (Medscape News Article)

Screen Shot 2017-10-02 at 2.46.00 AM.pngSource:  http://www.medscape.com/viewarticle/885577

MD’s Appeal in PHP, Medical Board Lawsuit Denied

Pauline Anderson

September 19, 2017

An appeal by a physician whose lawsuit against the North Carolina Physician Health Program (NCPHP) and the North Carolina Medical Board (NCMB) was thrown out by a lower court last November has been denied. But Kernan Manion, MD, is pursuing an “alternate route to justice.”

Following the lower court ruling, Dr Manion, a practicing psychiatrist for some 30 years, appealed his case to the US Court of Appeals for the Fourth Circuit, a court second only to the US Supreme Court. His lawsuit claimed loss of significant and potential earnings as well as public humiliation, irreparable harm to his professional reputation, and severe emotional distress.

The court found that Dr Manion’s appeal exceeded the statute of limitations and therefore could not be heard.

“The court strictly enforces the time limits for filing petitions for rehearing and petitions for rehearing en banc in accordance with Local Rule 40(c). The petition in this case is denied as untimely. The court denies the motion for leave to file the petition for rehearing out of time,” the order reads.

Dr Manion told Medscape Medical News he wasn’t surprised by the decision and maintains that the medical board and NCPHP deliberately employed stall tactics to “eat up the statute of limitations window.

“The law is structured in such a way that automatic deference is given to these licensing bodies ― medical boards and PHPs ― both at the state level and the federal level, and precedent is so greatly in their favor,” said Dr Manion.

He has no plans to pursue his case in the US Supreme Court.

“The bottom line is that it can’t be won in court, anywhere really, when you get right down to it. That’s because these agencies claim sovereign immunity,” he said.

Sovereign Immunity for PHPs

However, Dr Manion is pursuing another route ― allegations of anticompetitive practices.

In light of a US Supreme Court ruling in favor of the Federal Trade Commission (FTC) against the North Carolina Dental Board, he has written to the FTC in the hope that a comprehensive investigation will be launched in his case so that “this harmful anticompetitive civil rights and due process-denying behavior will be halted.”

As previously reported by Medscape Medical News, Dr Manion’s case dates back to September 2009, when he worked as a civilian psychiatrist under contract with the Deployment Health Center at Naval Hospital Camp Lejeune, in Jacksonville, North Carolina. After he raised concerns with the Navy and a personnel contractor about what he believed was dangerously deficient care of active duty service members who had posttraumatic stress disorder, he was dismissed.

He brought a wrongful termination suit under the federal Whistleblower Protection Act alleging retaliatory discharge. He said he was later harassed and followed, actions that prompted him to meet with the local police chief about concerns for his personal safety.

Shortly thereafter, Dr Manion said he was notified by the NCMB that an anonymous police source had expressed concern about his mental health and that, on the basis of these concerns, the NCMB was opening an investigation.

On a recommendation from the NCMB investigator, Dr Manion obtained an independent comprehensive psychological evaluation, which concluded that he did not have any mental disorder or impairment and that there was no basis to take any action that would restrict his medical license.

Despite this, the NCMB ordered its own assessment of Dr Manion. This assessment, carried out by Warren Pendergast, MD, who was then NCPHP chief executive officer and medical director, as well as a staff social worker, concluded that Dr Manion was mentally ill.

In his initial lawsuit, Dr Manion, who had never previously been disciplined by any licensing body, said he was forced to deactivate his medical license after the NCMB acted upon “wrongful and flawed” diagnoses made through the NCPHP.

Dr Manion’s case was originally dismissed in federal district court because the complaint was deemed to be outside of the statute of limitations and because the court considers that as a state institution, the NCPHP has “sovereign immunity” and therefore cannot be sued.

The NCMB said in a statement issued to Medscape Medical News that it “was gratified, but not surprised by the United States Court of Appeals’ decision that affirmed the dismissal of Dr Manion’s lawsuit. That decision, like the decision of the United States District Court, was well-reasoned and well-supported by precedent.

“The North Carolina Physicians Health Program has done much great work to improve the lives of North Carolina physicians who suffer from mental illness and substance abuse. We look forward to continuing that important work with the Physicians Health Program in the future.”

Similarly, Joseph P. Jordan, PhD, clinical director of the NCPHP, said the organization “was pleased that the US Court of Appeals for the Fourth Circuit affirmed the United States District Court’s sound reasoning in its dismissal of Dr Manion’s lawsuit.”

“Alternate Route to Justice”

While his appeal was being considered, Dr Manion studied the decision in the case North Carolina State Board of Dental Examiners v. Federal Trade Commission, which was heard by the US Supreme Court.

In that case, the FTC filed a complaint against the North Carolina State Board of Dental Examiners alleging that the board was preventing entrepreneurs from offering tooth-whitening services in shopping mall kiosks and were claiming that these groups were practicing dentistry without a license.

The FTC argued that the dental examiners board’s actions constituted an unreasonable restraint of trade by stifling market competition under the Sherman Antitrust Act and that its actions constituted unfair restraint of competition under the Federal Trade Commission Act.

Lower courts determined that state immunity did not apply because the action taken by the board was not actively supervised by the state. The case went to the US Supreme Court, which, in 2015, sided with the FTC.

“The Supreme Court ruled that the dental board doesn’t even meet the criteria to be a state agency eligible to claim sovereign immunity,” said Dr Manion.

“That case was seminal in establishing the necessity of state occupational licensing boards having active government oversight, and it also found that [the] NC dental [board] committed antitrust violations.”

He sees parallels with his own case and that of other physicians across the country, many of whom have been “grievously harmed” by the actions of PHPs and related organizations, he claims.

These actions have jeopardized the health and well-being of patients “by wrongfully depriving them of these physicians’ competent and compassionate care,” he wrote in a letter to the FTC.

In the letter, Dr Manion laid out what he called “the strongest argument yet” for challenging “the pattern of severe and harmful anticompetitive activity” being undertaken by the NCMB, the NCPHP, and the North Carolina Medical Society.

“I tried to point out that this isn’t a disciplinary matter. This is an anticompetitive, anticonsumer matter,” said Dr Manion. “What PHPs have done around the country is coalesce around this false AA [Alcoholics Anonymous] model and are sending people to their preferred institutions out of state, and so they’re running a racket.”

Dr Manion hopes this strategy will offer him an “alternate route to justice.”

brief of his appeal is publicly available through PACER (Public Access to Court Electronic Records), a service provided by the Federal Judiciary.

Dr Jordan said the NCPHP sees “no merit in commenting upon Dr Manion’s effort to draw hypothetical parallels to a case involving other federal and state agencies.”

For its part, the NCMB said that “since we have yet to see or receive a complaint, it’s impossible to comment. And unless or until NCMB receives a complaint, we will not engage in an academic discussion of FTC v Dental Board.”

 


Those wishing to lodge complaints with the FTC should contact Alan Friedman at  AFRIEDMAN@ftc.gov.

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MD Sues NC Medical Board/Physician Health Program-A Prototypical Case

A prototypical case involving PHP and Medical Board. PHPs’ integrity varies state by state depending on:

1. How entrenched the FSPHP is in the state PHP

2. Whether that state’s Medical Board has become a partner in PHP’s crimes.

It is very curious that states who have had a Medical Director who has also been President of the Federation of State Physician Health Programs seem to be the worst of the violators.

Based on over 200 responses I have received on my PHP survey [PHP Survey], North Carolina, Florida, Massachusetts and Washington State are physician career destroyers whereas West Virginia seems relatively unscathed (although I have learned that the FSPHP has been attempting to impose its “PHP-Bluprint” on the Board with some resistance.

What you see here is a classic case. Physicians and med schools urgently need to become aware and take a stance of resistance to these abuses. Wouldn’t you find this distressing – that only over the past [3 years], I have heard this same story from medical students to doctors in their 80s – through detailed and lengthy conversations – over and over again.

The identical same patterns of PHPs and medical boards acting in collusion emerge. As much as I don’t want to believe it, PHPs, acting in tight collusion with their sibling agencies, the medical licensing boards, have expanded their power and uniformly deprived physicians (and med students!) of their due process rights, against all understandings of appropriate powers with which they were originally vested.

No accountability exists as they have removed due process and freedom of choice.  The PHP controls every aspect of the assessment and monitoring process with absolutely no oversight.  As the North Carolina state PHP audit revealed, there is no oversight from the medical society or medical board.  In addition the assessment and treatment centers and drug-testing labs have no meaningful regulation.  No oversight or regulation of the multiple non-FDA approved laboratory developed tests (LDTs) of unknown validity exist.

As a power accountable to no one, PHPs have become predators who not only stalk and victimize doctors but harm the very public they were supposed to protect!

These PHPs, along with the cozy relationships with medical licensing boards, need to be confronted, as Dr.Manion has done, and dissembled and then rebuilt into accountable organizations state by state.

It seems apparent from my research that the FSPHP is not only an illegitimate but an irrational and opportunistic authority exclusively representing the interests of the medical board and the drug and alcohol testing, assessment and treatment industry.

PHPs are being promoted as a “gold standard”  and replicable model by the American Society of Addiction Medicine (ASASM), a “self designated practice specialty” not recognized by ABMS. The ASAM White Paper on Drug Testing  is recommending widespread application of the PHP model in other populations.  The FSPHP arose from ASAM state chapters and their intimate relationship with the Drug and Alcohol Testing Industry Association (DATIA) is as tight as thieves.

In addition the medical directors of every one of the “PHP-approved” assessment and treatment programs are not only ASAM doctor but belong to a self-described 12-step group called “like-minded docs.”

Like a treatment industry of the Taliban, they play on the dangers of alcohol use. To some of us, they are little more than prohibitionist profiteers and dimwitted “addiction addicts” who have “recovered (even in the sense of the word that would suggest that they have “recovered” [retrieved and had destroyed] and “re-covered” their felonious past) and are now in firm control of the gates to the rehab farm. As evidenced from previous articles, narcissistic and psychopathic personality disorders abound in this PHP movement. Physicians need to wake up and confront and dismantle this Frankenstein the state PHPs have become. PHPs urgently need accountability and answerability, not more immunity and secrecy. Here we are in a time of great physician scarcity and PHPs and Boards are eliminating physicians with utterly no accountability.

Link to complaint obtained via Pacer:  Manion v NC Medical Board and PHP

2016-02-09 DOC 2 Corrected Complaint and Demand for Jury Trial

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A lawsuit filed by a physician against the North Carolina Physicians Health Program (NCPHP) claims loss of significant and potential earnings as well as public humiliation, irreparable harm to his professional reputation, and severe emotional distress.

Kernan Manion, MD, a practicing psychiatrist for some 30 years, is suing the NCPHP as well as the North Carolina Medical Board (NCMB), the North Carolina Medical Society, several past and present medical board officials, and current NCPHP Chief Executive Officer Warren Pendergast, MD.
The suit alleges “arbitrary and unlawful application of summary suspension procedures” resulting from “intentionally and/or negligently abusive practices” and other common law, statutory, and constitutional violations.

In court documents, Dr Manion, who has never before been disciplined by any licensing entity in any state and has never been found liable for malpractice, said he was forced to inactivate his medical license in February 2013 after “wrongful and flawed” diagnoses conducted by the NCPHP and its agents.

He describes the experience with the PHP as “a Kafkaesque nightmare.”

According to events outlined in a statement of facts, Dr Manion, who maintains he has never suffered from mental or emotional health problems or from alcohol, drug, or any other form of substance abuse, was dismissed in September 2009 from his position as a civilian contracted psychiatrist with the Deployment Health Center at Naval Hospital Camp Lejeune.

He had raised concerns, which he described as “whistleblowing,” regarding what he felt was deficient care of active duty service members with posttraumatic stress disorder.
Dr Manion brought claims against his employers, alleging retaliatory discharge, after which he says he was harassed and followed, prompting him to contact local police.

Shortly thereafter, Dr Manion said he was notified by the NCMB that someone at the police department had expressed “concern” about his mental health and that the NCMB had opened an investigation.

Malice?

On his own initiative, Dr Manion obtained a comprehensive psychological evaluation, which, he said, concluded that he did not have a delusional disorder and that recommended that he be permitted to retain his unrestricted medical license. Despite this, says the statement, the NCMB ordered Dr Manion to undergo an assessment by the NCPHP, which he did.

That assessment, carried out by Dr Pendergast, concluded “wrongly and negligently or intentionally and with malice” that Dr Manion was mentally ill and in doing so, “relied upon only the unofficial information provided by the police office, reviewed no clinical records, and failed to interview any collateral sources as is required in such evaluations.”

Dr Pendergast apparently then recommended that Dr Manion complete a comprehensive psychological evaluation at an out-of-state mental facility. Such facilities, says the court document, often charge thousands of dollars and require that physicians incur costs for travel and spend multiple days, if not months, away from their medical practice.

According to the court document, PHPs have been criticized for “rampant fraud and abuse” and that the NCPHP and NCMB are “riddled with conflicts of interest.”

An audit carried out by the North Carolina state auditor, and reported by Medscape Medical News, found no abuse by the NCPHP but did state that there were “multiple conflicts of interest inherent in the relationships between NCPHP and its preferred assessment and treatment centers and an alarming potential for abuse and violations of the process rights by NCPHP.”

The filed court document also states that there was “no reasonable basis” for the NCMB and the NCPHP to conclude that Dr Manion was impaired and unfit to practice medicine, “conclusions that forced him into a Kafkaesque nightmare that ultimately concluded in the loss of his license and his livelihood.”

Dr Manion said he proposed an alternative in-state evaluation, but in January 2012, “based wholly” on its “intentionally flawed diagnosis and recommendation,” the NCPHP again voted to order Dr Manion to undergo evaluation and treatment at an out-of-state facility.

According to the court files, the NCMB brought formal charges against Dr Manion that alleging he failed to cooperate with the NCPHP. Dr Manion claims he submitted to yet another evaluation to assess his mental health status against his will.

This evaluation concluded that he was delusional “based chiefly on information…received from Dr Pendergast about Dr Manion and not based on medical evidence or corroborative fact checking,” according to the statement.

“Frightened and Threatened”

Told to inactivate his license and immediately resign from his position as medical director at a clinic or have felony charges brought against him for practicing without a license, Dr Manion said he was “frightened and threatened” into inactivating his license on February 9, 2013.

In trying to reactivate his license in December 2014, Dr Manion agreed to submit to another evaluation, which concluded that he “is not delusional, that he is fit to practice medicine, and that the prior evaluations conducted by or at the direction of NCPHP…are flawed and incorrect,” says the statement. It adds that the assessor believed that Dr Manion’s “display of anxiety, distress and intensity is proportionate to the circumstances which have occurred.”

Despite this, Dr Manion said the NCMB wanted him to submit to another NCPHP evaluation in order to activate his license, but he objected to undergoing another assessment.

As a result of these events, Dr Manion claims he has suffered, among other things, loss of significant earnings and potential earnings and the burden and cost of defense against unwarranted action, as well as “public humiliation, irreparable harm to professional reputation, and severe emotional distress.” The suit also claims one of his former patients committed suicide because of interruption of highly specialized care.

The broadly applied policies and practices of the NCPHP “draw unimpaired licensees into a Kafkaesque ‘damned if you do, damned if you don’t’ catch-22 scenario that almost always ends in severe and underserved harm,” says the statement.

The document estimates that Dr Manion has suffered and continues to suffer damages “in excess of $75,000.”

The suit was filed February 8 in the US District Court, Eastern District of North Carolina, Western Division.

“Unprofessional Conduct”

Medscape Medical News contacted the NCMB for comment, and spokesperson Jean Fisher Brinkley provided the following statement: “NCMB is aware of Dr Manion’s lawsuit but cannot discuss it as the matter is pending litigation.”

However, Brinkley provided a link to public documents on the NCMB website related to the disciplinary case at issue in the lawsuit, which includes “a detailed account of the Board’s concerns regarding Dr Manion.”

According to the October 10, 2012, Notice of Charges and Allegations, the NCMB outlined two charges against Dr Manion: “failure to respond reasonably to a Board inquiry” and “unprofessional conduct.”

On the first charge, the NCMB claims that in failing to undergo an assessment at Acumen Assessments Inc, which is the recommended out-of-state treatment facility, as required by a Board order issued February 27, 2012, Dr Manion’s conduct “constitutes a failure to respond, within a reasonable period of time and in a reasonable manner,” to inquiries from the Board concerning any matter affecting the license to practice medicine, within the meaning of the state’s general statutes.

On the second charge, the NCMB states that Dr Manion’s failure to undergo an assessment at Acumen, as required by the Board, “constitutes unprofessional conduct, including, but not limited to, departure from, or the failure to conform to, the ethics of the medical profession and is the commission of an act contrary to honesty, justice or good morals” within the meaning of the state’s general statutes.

According to the NCMB, for both charges, there are grounds under the general statutes for the Board “to annul, suspend, revoke, condition or limit Dr Manion’s license” to practice medicine.

In addition, the legal notice describes concerns about Dr Manion from a single police officer who reported them to the NCMB in 2010.

According to the NCMB, the police officer was subsequently interviewed by a Board investigator. According to an account of this interview, the officer alleged that Dr Manion spoke to the Wilmington Police Department chief of police in November 2010 and expressed concerns that he was being followed and that a tracking or listening device had been placed on his car.

According to the NCMB report, the officer outlined other instances that were cause for further concern.

Medscape Medical News contacted the NCPHP. However, Dr Pendergast declined to comment, noting that the “NCPHP cannot comment on this matter as it is pending litigation.”

 

Urgent Action Needed on Proposed Legislation in North Carolina–Removing Due Process from Doctors a Harbinger of Wide-Scale Political Abuse of Psychiatry

HIPAA_violators

I received the email below from Dr. Jesse Cavenar, Jr. regarding legislative changes that would severely infringe on the rights of doctors as licensees of the North Carolina Medical Board and subject them to distinctly non-impartial diagnostic psychiatric evaluations and remove all possibility of due process.  These developments could possibly herald the wide-scale abuse of psychiatric evaluation and treatment by two governmental agencies acting in collusion with utterly no oversight or accountability.  Namely the Federation of State Physician Health Programs (FSPHP) and the Federation of State Medical Boards (FSMB).  As a state Representative who is also a physician told me this morning –“this bill is representative of a prevailing attitude that does not realize what is really happening.”


Bill H453 can be seen here:  H543v2 – 04152015[10]

NC Audit can be seen here:  http://www.ncauditor.net/EPSWeb/Reports/Performance/PER-2013-8141.pdf

This is the bill, entitled H453  that is before the NC legislature this session.  My reading of the bill is that the bill is a disaster.  It seems to be an attempt by the lobbyists and lawyers to remove many existing features of the present law. In particular, I would direct your attention to two features:

1) It appears that all mention of due process has been removed from the law. The NC State Auditor found that the NCPHP had not afforded due process as required by law, so one simply changes the law to remove all mention of due process.

2) There is a clause inserted in the law to immunize the NCPHP against civil liability for the performance of the NCPHP function. In other words, the state statute declares that one cannot bring legal action against the NCPHP because they are immune. This is absurd. These people should be no more immune than any other doctor in the state of North Carolina.

In addition, the proposed statute seems to attempt to haze out whether the NCPHP record is or is not a medical record. As you will see, one would be entitled to a copy of an ³Assessment² but it would appear not the entire medical record. This is contrary to the NC Medical Board position paper on medical records. I would urge everyone to immediately contact his or her appropriate Senator and Representative to register opposition to this bill as written, and to urge that an expert panel of disinterested physicians and attorneys be appointed to write a new bill that would be appropriate.

A colleague of mine who is a medical ethicist has reviewed this and had the following to say: ³Well, well!  I think the most interesting thing here is that someone has tried to get the NC Legislature to immunize the existing system against any countering action.  This, it seems to me, is tacit admission of culpability.²  Well stated, I would say.

                 Jesse

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