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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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Medical Students at Risk as Fraudulent Physician Health Programs (PHPs) Cast a Wider Net–Need to Address This Problem at State Level

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Physician Health Programs (PHPs) now targeting medical students–More sheep for the slaughter

The attached article entitled “Medical school drug testing is a moral and scientific failure” opposes testing medical students for drugs and alcohol but things are going to get a whole lot worse.

In the past six-months I have been contacted by an increasing number of  medical students searching for help after being  trapped in quagmire of their state physician health program  (PHP).   Each of them had either been referred to a “PHP-approved” assessment center or had already had an evaluation recommending inpatient treatment.

Some of these students were subjected to non-FDA approved laboratory developed tests including hair testing for marijuana metabolites and the  alcohol  biomarker EtG.  These typeof tests can detect substances that were used days, weeks and even months prior to testing.

Medical students and physicians are just as likely to have experimented with illicit substances in their lifetimes as their age and gender matched peers.1

Although medical students as a group drink slightly more alcohol than the general population, the pattern and prevalence of alcohol, dependence is consistent with their age mates in the general population.1 2

Like it or not recreational and experimental drug use is widespread in young adults and most of them “grow out of it” and the 21st Amendment repealed the Volstead Act in 1933.  Alcohol is legal and those that can handle it have a right to a round of beers after a long day or imbibe a cocktail with a dinner date.  But according to the prohibitionist profiteers and moral preeners any drug or alcohol use is a sign of “potentially impairing illness” that must be addressed and treated early to prevent an inexorable slide into a chronic relapsing brain disease and abstinence and lifelong adherence to the principles 12-step spirituality are the only way to do so.

An old joke asks “How does a doctor define an alcoholic?”  Answer–“anybody who drinks more than he does.”   How does a PHP define an alcoholic?  Answer –anybody who walks through the front door.

In reality, a zero-tolerance paradigm utilizing this type of testing would be ruinous. With recreational and experimental drug use common in young adults a profession that refuses to accept anyone who tests positive for drugs will exclude large numbers of brilliant, talented individuals. Dismissing highly talented people in medicine for what might be a one-off recreational non problematic drug experience would retard its advance.

The use of these non-FDA approved tests of unknown validity should not be allowed to begin with but there needs to be a concerted direct attack on their use on medical students or the brain-drain on the profession will bring it back to the dark ages.  The ASAM White Paper on Drug Testing proposes imposing this system with mandatory drug testing by the healthcare system from childhood to old age.  College loans are proposed as “leverage” for college students in this “contingency management” paradigm so a lot of promising students could be weeded out before even applying to medical school.  Forget GPA and MCATS as the primary criteria for medical school admission will be sobriety and clean urine screens..

Diagnosing disease without meeting the diagnostic criteria for that disease.

None of the students who contacted me seemed to fit the diagnostic criteria for the diagnosis given to them stories which were articulate, detailed and sincere.   All cases involved either a naive mistake or isolated incident.

One student made the disastrous revelation to a PHP director who had just given a class lecture that she had smoked marijuana with her high school friends in her home state of Colorado.   She was then called in by the PHP and referred for an evaluation at an out of state facility where she was diagnosed with “marijuana dependence” based on a positive low level THC metabolite on a hair follicle test.  She was told she was in denial and inpatient treatment was recommended.  Although she admitted to occasional weekend marijuana use there were absolutely no problems in any realm of her life. It is self-evident that impairment due to drugs or alcohol impacting someones capacity to work or function needs to be addressed but the penalty imposed on her for her private behavior was to end her career in medicine before it even started.  The medical school administration mandated she either complete the treatment required by the PHP or she would not be able to enroll the following semester and not being able to come up with the up-front out-of-pocket cost for treatment she was not able to return to the medical school and has decided to pursue a different career.

Another student was anonymously reported to the PHP for smoking marijuana at a weekend party which resulted in a similar assessment and recommendation for inpatient treatment.  After spending 3 months at a facility in Alabama he is now under monitoring contract with his PHP but returned to school.

Healthy student asks for help in his organizational skills–ends up with a psychiatric and substance abuse diagnosis

After reading an advertisement in the state medical society newsletter promoting work-life balance a second-year medical student contacted his state PHP to obtain advice on his problem with “procrastination.”    Classes and working part time in the endocrinology lab left him with little time and he found himself slacking off on his exercise routine and burning the midnight oil before test nights.  He told the PHP director about his history of depression after his father died immediately before his freshman year at college. That October he became overwhelmed with sadness and missed his dad and hometown.  He sought help from the campus physician who prescribed prozac which was discontinued in a years time without return of any symptoms.

Realizing there were no classes in work-life balance but only a support group for “burnout” the student declined the PHP directors offer of an assessment of his “mental health.”  Much to his surprise he was called in the following week by a medical school administrator and told that the PHP was requiring an assessment at one of two out of state “PHP-approved” assessment centers in Lawrence Kansas.  He was at first confused at the nonsense he was hearing and then became indignant  at the nonsensical and illogical request without rhyme or reason and the betrayal of trust and ethics.  “Surely this must be a HIPPA violation.”   He obtained an outside consultation from a psychiatrist and contacted the campus physician who confirmed his diagnosis was acute situational depression and bereavement but the PHP disregarded the information.  He bartered for a local evaluation but this was refused.  He arranged for the 96-hour assessment in  Kansas.  His mother paid the requisite out-of-pocket up-front $4,500.00 to the facility and  she told him not to worry as his life would get back to normal after they confirmed he had no psychological problems.  “Dysthymia, Major depressive disorder, severe, in remission and alcohol use disorder” were given as diagnoses.  “Alcohol use disorder” was based on a hair test for EtG which was the result of his drinking an occasional beer or two with friends after school and on the weekends.  He was told  he may be “self-medicating” and playing “Russian roulette” given his history of depression.  Recommendations included inpatient treatment followed by a “structured aftercare program” of abstinence and monitoring by for alcohol and drugs of abuse.  Forced to sign a contract with the PHP he was understandably upset at the serious and unfounded sequelae that was the result of asking for help.

Another fourth-year student got into a bit of a shoving match with his buddy at the bar on a Saturday night and was reported  to his PHP anonymously.  He is awaiting evaluation.

This brings up another potential problem–sham peer review. As PHPs accept anonymous referrals what is in place to prevent inappropriate referrals based on removing a competitor and improving your academic standing.

A legitimately prescribed stimulant for ADHD bought a third year student into a PHP contract. He was  forced to discontinue the medication prescribed by a psychiatrist specializing in childhood ADHD by a family practitioner in “recovery” from abusing intravenous fentanyl who had been monitored by the PHP himself for ten years then became medical director after getting board certified as an addiction medicine specialist.

This student got 99th percentile across the Board on his MCATs and may one day cure cancer but now faces an uncertain future as he recently got a positive EtG on a urine test and they are currently “sorting this out.”

The most bizarre story was from a student who sought help for sleep troubles after reading about the PHP as a referral source. He subsequently saw a sleep-specialist and was diagnosed with an oversized uvula which was surgically corrected.  His sleep troubles improved but his troubles with the PHP remained.  A triathlete and excellent student the PHP determined he had a “thought disorder” and discussions of “schizophrenia” were entertained by the PHP and they recommended an out of state evaluation at one of the three gulags used by the FSPHP for  “disruptive physician”  and behavioral exams–Vanderbilt, Acumen and the Professional Renewal Center.  All of these facilities come with a guaranteed diagnosis.   Polygraphs and unvalidated neuropsychological instruments designed to detect “character defects”  cast a pretty wide net.

Question FSPHP with direct questions to undermine a “culture of professionalism.

It is important that medical school administrators refuse to engage in  blind deference to the authority of the state PHP.  Authority must always be questioned and to not do so is irresponsible.  Unquestioning allegiance to an authority does not comport with the history of the medical profession or science.  Faith in institutions demands mass adherence to faith in that authority and direct challenges to the status quo are needed to undermine that faith.   They have bamboozled the medical boards into implementing bad policy, approving bad science and making bad decisions.  They have duped state legal authorities into deference to their expertise and integrity under the notion that questioning these attributes undermines a culture of professionalism.  Fact of the matter is they have no expertise, no integrity and no professionalism.

PHPs have been contaminated with an outside influence and support an agenda that has nothing to do with protecting the public or helping medical students.  They are an illegitimate authority that has become an irrational authority and their recommendations mandate direct answers and justification.

If the PHP has concerns about a student then the first step should be to obtain an independent second opinion.  PHPs discourage second these second opinions and disregard all outside expert opinion no matter how well qualified and experienced that expert is.  Anyone outside this brood of addiction addicts is scoffed at as biased or unenlightened to the simplistic belief system with which they have contaminated the medical profession.     Look into the assessment centers to which they are mandating referral.  Ask what qualitative factors and quantitative measurements were used to approve that facility and why no one in Massachusetts has the ability come to a competent diagnosis.   The yarn that doctors and medical student have an ability to dissemble and appear normal while harboring a “potentially impairing condition” is one of the medical urban legends they started.  Ask to see the evidence base.  There is none and it defies common sense, logic and science.

An increasingly bright light is being shed towards the malfunctions and corrupt practices of this unaccountable confederacy of “authorities” and at some point soon their jig will inevitably be up.     In the interim, if you are referred to a PHP it would be a good idea obtain independent lab tests and two second opinions.  Although the PHP will disregard this documentation it would be wise to obtain it to prove both your normality and the discrepancy between your independent evaluation results and the cherry-picked pulled out of a hat multiple diagnoses confabulated and misrepresented by the PHP.

  1. Hughes PH, Brandenburg N, Baldwin DC, Jr., et al. Prevalence of substance use among US physicians. JAMA : the journal of the American Medical Association. May 6 1992;267(17):2333-2339.
  2. Flaherty JA, Richman JA. Substance use and addiction among medical students, residents, and physicians. The Psychiatric clinics of North America. Mar 1993;16(1):189-197.

 

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Medical school drug testing is a moral and scientific failure
ANONYMOUS | EDUCATION | MAY 11, 2014

Before the 1980s, drug testing was uncommon. It was widely viewed as an invasion of privacy and an infringement on fourth amendment rights. Today, a medical student is likely to be drug tested before entering medical school, before clinical rotations, and/or before residency. If preventing drug use among medical students is the goal of these tests, they have failed miserably. Urinalysis drug tests are ineffective. But more importantly, they are immoral.

Drug tests are ineffective for two reasons. First, they basically just test for marijuana. A 10 panel urinalysis technically tests for 10 different drugs, but marijuana is one of the only drugs that can be detected for more than 30 days. Cocaine can be detected for 4 days. Amphetamine, methamphetamine, ecstasy, heroin, and codeine all can be detected in urine for only 2 days. This means that a user of drugs far more dangerous than marijuana needs to abstain for just a couple of days. Psilocybin mushrooms, as well as several other mind-altering drugs, are not tested for at all.

For a marijuana user, a drug test might seem like a nightmare. But here we arrive at the second reason why drug tests are ineffective, they are easily beaten. A marijuana user may choose to drink a lot of water before his drug test to dilute his urine. Alternatively, he may choose to use a friend’s urine who he knows does not use marijuana. Either one of these options might work. But fortunately for such a marijuana user, there is another option that is essentially risk free, synthetic urine. There are several companies that make synthetic urine capable of beating drug tests. The word on the Internet is that Quick Fix is a safe bet. I personally know some people who would agree. At just $30 for a bottle, it looks like the drug test is no match for the free market.

Do not just take my word for it though. In 2003, the University of Michigan conducted a study on the effectiveness of drug testing students. From nearly 900 schools, the study found that drug testing, whether routine, random, or based on suspicion, had no measurable effect on drug use among students. Put simply, drug testing accomplishes nothing.

The most important concern I have about drug testing medical students is a moral one. Regardless of their effectiveness, or ineffectiveness, the endgame of drug testing is to prevent drug users from becoming doctors. Users, not addicts; and there is a big difference. A marijuana user might use on weekends or at night to relax, much like an alcohol user. A marijuana addict, although rare, is the type of person who might show up to important occasions intoxicated. The statistics on marijuana addiction vary. They usually show that less than 10% of users become addicts, but they always show that alcohol users have higher rates of addiction. A urinalysis detects alcohol for no more than 12 hours after use. This means that medical students who use alcohol are more likely to be addicted, and they face basically no risk of failing a drug test.

Should we be worried about medical students being drunk in clinical settings? Of course. And we should also be worried about medical students being high in clinical settings. Intoxication could be disastrous and it needs to be prevented. The good news is that this is done naturally. It is highly unlikely to find medical students who are addicts of marijuana, alcohol, or any mind-altering drug. I believe it is safe to say that the rigor of medical school itself prevents drug addicts from becoming doctors. There are, however, drug users who will make it into medical school or other rigorous scientific careers. Actually, many of them thrive. Richard Feynman, Kary Mullis, and Francis Crick used marijuana and LSD, Carl Sagan used marijuana, and Oliver Sacks used several illicit drugs. When drug tests are required for every medical student, the casual drug user, no matter how much potential he has, is bullied for no reason. The potentially dangerous drug addict has already been weeded out long ago.

Medical school is supposed to be based on science. The science shows that drug testing does not work. If it did work, then many great scientists would have been removed from their professions. These facts alone should be enough to settle the issue, but it is important to look at two more moral objections we should all have.

First, drug tests are not free. Before entering medical school, I paid about $30 for one. This does not sound like much. But charging students even one penny is unacceptable, for there is not even a fraction of a penny in benefit from these tests. The nearest drug testing facility for me was a 20 minute drive from my house. I could have driven anywhere for 20 minutes and just handed $30 to any random person. Surely, that $30 would bring more value to society than $30 wasted on a drug test. Imagine if a police officer searched a person’s car for drugs against his will, found none, and then charged this person $30. That is the reality of drug testing.

Second, drug tests are an invasion of privacy. Medical students should not be forced to prove their innocence. This creates a guilty until proven innocent environment. It immediately creates resentment among students, and rightfully so. Furthermore, what about people with paruresis? The International Paruresis Association estimates that 7% of people suffer from this condition, also known as shy bladder. Type “paruresis drug test” into a search engine and spend some time reading through the horror stories that are shared. These people suffer from a medical condition, and of all places, their medical school is completely inconsiderate.

Drug testing is a moral and scientific failure. Medical schools should be too embarrassed to take part in such nonsense.

The author is an anonymous medical student who blogs at unchainedmedical.
TAGGED AS: MEDICAL SCHOOL

Legal Representation in “Physician Health” Matters: A Swamp in Need of Draining.

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Are Physician Health Programs (PHPs) above the law?  

 Unable to get law enforcement to take cognizance of reported abuse, many doctors I have spoken with believe that the actors involved are impervious to criminal liability.  Complaints of fabrication and fraud involving PHPs and their affiliates to the police, the Attorney General and other law enforcement agencies have been given no credence,  tabled or dismissed with little investigation.

Believing these agencies are deliberately ignoring credible complaints and the documentary evidence placed before them, some have concluded that state PHPs have been given the power to commit crimes with impunity and immunity.

PHPs are not above the law.  It is by removing themselves from and blocking the usual routes of accountability and absolute operational control of the testing, assessment and treatment process that has enabled misconduct to remain hidden, unrecognized or excused. The crimes exist but they remain undetected, unnoticed and unpunished.

Removing Accountability

The essence of accountability is answerability which means having the obligation to answer questions regarding decisions and actions.   This requires the transmission of information when it is requested.  The accountable actor provides the information to the overseeing actors in a transparent manner.

Accountability also requires explanation and justification for the information provided. What was done and why? Standards, rules, regulations, codes, laws and other benchmarks are then applied by the overseeing actor to determine if the information provided was appropriate or inappropriate.

The availability and application of sanctions for illegal or inappropriate actions uncovered through answerability is also a necessary component of accountability. This is necessary to impose restraint on authority and power.  Lack of enforcement of sanctions contribute to the creation of a culture of impunity.

The usual mechanisms that exist to impose restraint and create incentives for appropriate behavior and actions are absent. No outside oversight exists to limit their power or subject them to a set of rules.  No regulation exists to curb abuse.

A Culture of Impunity

The authority accorded PHPs and the power they exercise exist in a culture of impunity.

The key findings of the2014  North Carolina PHP Audit are below:.

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No indications of abuse were found,  a point brandished by the PHP as redeeming  and proving no abuse was occurring. In actual fact it is an ominous finding that also relates to their apparent ability to violate the law. 

The audit found no indications of abuse but that abuse could occur and not be detected because of an absence of due process for the complainant, excessive control of the complaint process by the PHP and absence of oversight by either the medical board or medical society.  What this means is that a doctor with no power is making a complaint against an unsupervised agency with enough power to influence the investigation of a complaint against itself.  The reason no indications of abuse were found is because the system is specifically designed to hide abuse.  That is the intent.

Absence of transparency, regulation and oversight coupled with control of information enables both censorship and doctoring of records.   Strict Confidentiality is enforced by HIPAA, peer review protection, and drug and alcohol confidentiality law.  

Quest Diagnostics

PHPs are able to suppress and conceal criminal activity but they are also able to  manufacture information designed to hide misconduct.  

The North Carolina Audit found no objective selection criteria for the out of state assessment and treatment centers because none exist other than ideological mindset and monetary gain.  The same facilities are used by most state PHPS.  They are, in fact, mandated as they are the “PHP-preferred” facilities.  

In 2011 The American Society of Addiction Medicine (ASAM) issued a public policy statement on coordination between PHPs, regulatory agencies, and treatment providers. recommending only “PHP-approved” treatment centers be used and the statement specifically excludes ‘non-PHP” recognized facilities.  

What the Audit diid not discover is the medical directors of all of the “PHP-approved” facilities can all be seen on this list of Like-Minded Docs.  It is a rigged game    Every aspect of drug-testing, assessment and treatment is kept hidden and secret and within control of the PHP.

It is a rigged game in which they have removed themselves from all aspects of accountability.  They have, in effect, manufactured a culture of impunity at our expense.

 “PHP-Approved Attorneys”

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

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

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

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

The attorney pool is currently over-served by those serving two clients and most of those outside simply do not know enough about the “physician health”  legal issues related to doctors.  Most of those involved in representing physicians before medical boards in these matters are former board attorneys or assistant AGOs. When those outside this cloister  appear before medical boards they are like a deer in the headlights.  It is a new terrain where all due process and familiar protocol have been removed.  Truth and evidence are irrelevant as labyrinthine administrative procedure and protocol are used to trump all other consideration.  Of course this was all facilitated by changes in administrative and medical practice acts orchestrated by the physician health movement “in the interests of protecting the public.  This must be recognized and addressed.  Skilled negotiators and lawyers with administrative law experience would do well to consider representation for doctors before medical boards regarding “physician health” matters.  The current pool is glutted with those who will not “bite-the-hand-that feeds.” They depend on referrals from state physician health programs for their livelihood and this precludes going against the tide.

 

The drug and alcohol testing and treatment industry plan to use the medical profession as a urine collection agency to bypass procedural protections: The ASAM White Paper on Drug Testing and the “Future of American Drug Policy.”

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Before the  2012 Drug and Alcohol Testing Industry Association (DATIA) annual conference, Dr. Robert Dupont delivered a speech entitled “Drug Testing and the Future of American Drug Policy.”    He describes a “New Paradigm” for substance abuse treatment that enforces “zero tolerance for alcohol and drug use”  enforced by monitoring with frequent random drug and alcohol tests in which any positive test is  “met with swift, certain” consequences.” The paradigm is based on the current Physician Health Programs blueprint.  Dupont states:

“…physician health programs , have set the standard for effective use of drug testing. These pioneering state programs provide services to health care professionals with substance use disorders. The programs are run by physicians, some of whom in recovery themselves. PHPs feature relatively brief but highly focused treatment followed by active lifelong participation in the 12-step fellowships of Alcoholics Anonymous and Narcotics Anonymous. The key to the success of the PHP system of care management is the enforcement of the standard of zero tolerance for any alcohol or other drug use by intensive long-term random testing for both alcohol and drugs with swift and certain consequences for even a single use of alcohol or any other drugs of abuse. PHPs use drug panels of 20 or more drugs. The PHPs commonly use EtG and EtS tests to detect recent alcohol use. Similar comprehensive programs have been developed for commercial pilots and attorneys. These innovative programs of care management produce unprecedented long-term, outcomes.”

Physician Health Programs use a doctor’s medical license as “leverage” in what they call “contingency management.”   What this means is that a doctor who is being monitored by a PHP must comply with any and all demands of the PHP under threat of being reported to the state Medical Board and immediate suspension of  licensure. Dupont wants to extend this model to other populations including our elderly, our pregnant mothers, college and high school students and schoolchildren.

The 2013 American Society of Addiction Medicine White Paper on Drug Testing describes the organizational structure of the “New Paradigm” and this includes utilizing the medical profession as a urine collection agency for their drug and alcohol testing and the loophole they plan to exploit is this:  When a doctor-patient relationship exists drug and alcohol testing is rendered “clinical” rather than “forensic”so the consequences of a positive test can legitimately be called  “treatment” rather than punishment.  Because addiction is currently defined as a disease, addicts must be “treated” (which in the United States is more often coercive than voluntary), and “cured” (which is defined as remaining abstinent). When the disease concept is not strictly reserved for medical conditions but is expanded to any and all drug and alcohol use.

The proposed system bypasses the strict chain-of-custody and Medical Review Officer requirements designed to ensure accuracy and minimize false-positives.  These strict protocols are used by essentially all employee assistance programs (EAPs) in workplace drug testing programs.    Forensic drug testing is tightly regulated because the results of a positive test can be grave and far reaching and erroneous results are unacceptable.

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THE ASAM PAPER DESCRIBES MANDATED DRUG-TESTING FOR PATIENTS IN A NUMBER OF SPECIALTIES INCLUDING ADOLESCENT MEDICINE, PSYCHIATRY, OBSTETRICS, AND GERIATRICS.  CONTINGENCY MANAGEMENT WILL INVOLVE “THE POTENTIAL FOR LOSS OF CURRENT OR DESIRED EMPLOYMENT, OR THREATENED LOSS OF OR RESTRICTIONS ON A PROFESSIONAL OR COMMERCIAL LICENSE, OR LEGAL AND FORENSIC NECESSITY.”
 “THIS 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, SWEAT AND 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 RATHER THAN ONLY TESTING FOR THE TRADITIONAL FIVE-DRUG PANEL.”

Federal workplace drug testing is done in accordance with mandatory guidelines. This testing is regulated using FDA approved tests with established sensitivity, specificity and cutoff levels.  FDA approval requires rigorous research and proven validity.    The FDA requires valid scientific evidence (with both clinical and analytical validation).

The  Federation of State Physician Health Programs (FSPHP), the group currently in managerial control of state physician health programs in 47-states,  has introduced non-FDA drug testing via a loophole that removes all accountability.  The EtG, EtS, and PEth tests were introduced as  Laboratory Developed Tests (LDTs) with little to no evidence base through pathway  developed for “clinical” tests of low market potential that would not otherwise be developed due to the prohibitive cost of the FDA approval process.  An LDT  does not even require testing in humans (“in vivo”) or even proof that the test is testing what it claims to be testing (validity) for.  It is an honor system and without FDA oversight a lab can can claim anything they want about these tests with no accountability. They do not have to provide any proof of what they claim or justify what they claim.     After partnering with labs to develop these tests, the FSPHP then convinced the Federation of State Medical Boards they were valid and accurate tests that were necessary to detect a bogus cadre of drunk and drugged doctors able to hide their impairment and who were protected by a “code of silence.”    This bogus danger was then used to convince state Medical Boards to use these unvalidated tests on doctors in state physician health programs.

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(Source: ASAM Physician Health News March 2015)ASAM Physician Health News March 2015)

The ASAM white paper contains the following quote minimizing the critical role of the MRO in drug testing.   They feel clinical testing is good enough.

Unlike forensic drug testing where the test results must be able to meet rules of evidence in administrative, civil or criminal proceedings, clinical drug testing* is part of a patient examination performed by a clinician with whom the patient is in a therapeutic relationship. The testing is used for the purposes of diagnosis, treatment, and the promotion of long-term recovery. Clinical drug test results must meet the established standards of medical practice and benefit the therapeutic relationship, rather than meeting the formal legal requirements of forensic testing. Drug testing in medicine employs the same sound procedures, safeguards, 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.

Changing Public Policy and Regulatory Authority to Increase Power and avoid Accountability

 The Federation of State Physician Health Programs has been able to construct this scaffold with no meaningful opposition and below the public radar. They have done this by removing accountability at multiple levels.  By preventing access to information and erecting a system without oversight no consequences exist to deter misconduct and abuse.  The same tactics and strategies will be used as they expand this to other populations.

The Federation of State Physician Health Programs trumpets the the 12-step chronic relapsing brain disease model of addiction as defined by A.A. because it supports the drug and alcohol assessment, testing and treatment industries goals of more and more testing and treatment. For example  a 2011 FSMB Policy on Physician Impairment identifies, defines and essentially legitimizes “potential impairment” and “relapse without use.”

A PHP Should be empowered to conduct an intervention based on clinical reasons suggestive of potential impairment.  Unlike the Board which must build a case capable of withstanding
legal challenge, a PHP can quickly intervene based on reasonable concern."

“Empowered” to conduct an “Intervention” for reasons “suggestive” of “potential” impairment means a doctor can be pulled out of practice for anything.  It essentially gives them carte blanche authority. Due process and fundamental freedoms of choice are removed.

in 2011 The ASAM issued a Public Policy Statement on coordination between PHPs, regulatory agencies, and treatment providers recommending  that  only “PHP approved” treatment centers be used in the assessment and treatment of doctors.  A recent audit of the  North Carolina PHP found financial conflicts of interest and no  documented criteria for selecting the out of state treatment centers they used.  The common denominator the audit missed was that the 19  “PHP-approved” centers were all ASAM facilities whose medical directors can be seen on this list.

The FSMB House of Delegates adopted an updated Policy on Physician Impairment at their 2011 annual meeting distinguishing “impairment” and “illness”  stating that Regulatory Agencies should recognize the PHP as their expert in all matters relating to licensed professionals with “potentially impairing illness.”

According to the FSPHP, physician illness and impairment exist on a continuum with illness typically predating impairment, often by many years.”

The policy extends PHP authority to cover physical illnesses affecting cognitive, motor, or perceptive skills, disruptive physician behavior, and “process addiction” (compulsive gambling, compulsive spending, video gaming, and “workaholism”). It also defines “relapse without use” as “behavior without chemical use that is suggestive of impending relapse.”

G. Douglas Talbott defines  “relapse without use”  as  “emotional behavioral abnormalities” that often precede relapse or “in A A language –stinking thinking.”  AA language has entered the Medical Profession and no one seems to have even noticed.

The FSPHP political apparatus exerts a monopoly of force. It selects who will be monitored and dictates every aspect of what that entails.  It is a, in fact, a  rigged game.

The Need for Regulation, Oversight, and Accountability

Accountability is necessary to prevent corruption and requires both the provision of information and justification for actions. What was done and why?   Accountability also necessitates consequences-the ability of outside actors to punish and sanction those who commit the misconduct.  Without these constraints corruption is inevitable.

In  2012 Drs. John Knight and Wes Boyd recommended the medical community outside of PHPS provide oversight and demand accountability.  In  Ethical and Managerial Considerations Regarding State Physician Health Programs  they noted the financial conflicts of interest between PHPs and their “approved  centers,  coercion and abuse and even possible violations of the Nuremberg Code of Medical Ethics yet their paper generated little interest in the medical community.  The North Carolina PHP audit  revealed financial conflicts-of-interest and no oversight by the state medical society or board and that abuse of doctors could occur undetected due to the complete absence of accountability.  State Auditor Beth Woods told  the British Medical Journal in a recently  published article that the state program had holes in it “big enough to drive a truck through.”

In  Ethical and Managerial Considerations Regarding State Physician Health Programs Knight and Boyd state:  “Because PHP practices are unknown to most physicians before becoming a client of the PHP, many PHPs operate outside the scrutiny of the medical community at large. Physicians referred to PHPs are often compromised to some degree, have very little power, and are, therefore, not in a position to voice what might be legitimate objections to a PHP’s practices.”  And when objections do occur many take the side of the PHP, complacent in their belief that these are just altruistic and competent doctors just helping sick colleagues and protecting the public and valid complaints are deemed nothing more than “bellyaching.  In reality the ethical and criminal misconduct occurring in PHPs rivals that of Dr. Farid Fata,  the Detroit Oncologist who intentionally misdiagnosed patients with cancer so he could make money off unnecessary chemotherapy treatment.  Dr. Fata’s egregious betrayal of trust and unconscionably vile acts resulted in an appropriate response.

Screen Shot 2015-04-13 at 9.53.44 AMThe exact same misconduct is being perpetrated by PHPs but being overlooked, justified or otherwise ignored.  Dr. Fata intentionally misdiagnosed patients with cancer who did not have cancer so he could give them chemotherapy to make money.   PHPs are intentionally misdiagnosing substance abuse and behavioral disorders in physicians who do not have them in order to give them unneeded treatment and force them into monitoring contracts for profit and control.

This  undermines the very integrity of the profession.  It is particularly vile when the betrayal of trust involves doing the opposite of what was entrusted.   Abuse of positions of power, trust and influence in the field of medicine need to be both prevented, recognized and addressed.    Oversight, regulation and accountability are essential  if this is going to be accomplished.  There are no exceptions.   Policies and procedures must be enforced in a consistent manner.

The medical boards, medical societies, and departments of health have given the state PHPs carte blanche control and absolute power.  They refuse to even investigate accusations and they have convinced law enforcement that this is a parochial matter best handled by within the medical profession. As a result, valid complaints of crimes are not taken seriously.  This refusal to investigate  or even acknowledge valid and factual complaints of professional misconduct has not only prevented the exposure of  wrongdoing and corruption but deepened it.    The Federation of State Physician Health Programs and “Like-minded docs” must be recognized for what they are.  Front-groupsscreen-shot-2016-10-04-at-3-49-21-pm for the drug and alcohol assessment, testing and treatment industry.   This is glaringly obvious and you don’t have to look that deep to figure it out.  And these are the very same groups being proposed as advocacy bodies for addiction treatment and public policy change.  It is not that hard to figure out what they will be advocating for –more diagnoses, more testing and more treatment.

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The American philosopher Eric Hoffer noted:

“The only way to predict the future is to have power to shape the future. Those in possession of absolute power can not only prophesy and make their prophecies come true, but they can also lie and make their lies come true.” 

The “PHP-blueprint”  is built on the very foundation Hoffer describe and unless you want mandated randomized  non-FDA approved drug and alcohol testing with “swift and certain” consequences at future visits with your doctor you will need to speak up.

This occurred in the medical profession rapidly and with little notice and that is exactly what will happen here.

 “Every time we turn our heads the other way when we see the law flouted, when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom and decency and justice.” 

Robert F. Kennedy

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The proposed advocacy for addicts provides an altruistic cover enabling the group to pursue legal, regulatory and healthcare public policy change on behalf of addiction treatment for self benefit.

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ASAM Weekly is a publication of the American Society of Addiction Medicine (ASAM) circulated by E-mail to “more than 25,00 addiction professionals” every Tuesday.  It provides timely news briefings of top stories related to addiction medicine. The current issue includes a  National Survey on Drug Use and Health study correlating substance use with suicidal ideation;  original research  suggesting a strong link between  alcohol use and”thwarted belonging”  ( wanting and needing to be with others being socially isolated ) with both homicidal and suicidal ideation in a group under community corrections supervision by the criminal justice system; a study of privately billed services looking at the economic impact of the opioid epidemic on the healthcare system (Fair Health White Paper) which found a 1000% increase in opioid related treatment and service costs between 2011 and 2014;  and an article written for the  Huffington Post entitled  “When ‘All or Nothing’ Means Life or Death”  that questions the abstinence based model that currently monopolizes addiction treatment in the United States which the author notes  “is not only harmful and killing people,” but also “defies much of what we know about addiction.”

In his weekly editorial Editor-in-Chief William Haning refers to prescription database finding that the number of opioid prescriptions written in Tennessee last year outnumbered the number of people in Tennessee.  He appropriately notes this should “stun the readership” as it should. He notes several other articles this week “remind us that most of the public is not terribly interested in whether somebody has an addiction”  or the socioeconomic impact of addiction. He states “the public really can’t be expected to care” is someone with a substance use disorder is using substance and may not even be “realistically expected to care very much” about those who recover.

“What they do and rightly care about,” Haning declares,  “is the outcome of substance usage” and the public “is much more impressed by and will react to the consequences, ” As consequences he points to the two articles concerning suicidal and homicidal ideation and a report concerning sexual assault and violence from the University of Wisconsin .  He goes on to state:  “It causes an understandable lack of sympathy when a group of illnesses imparts injury to others.”  He lists crime, trauma in the workplace, spread of infectious disease and impact of childhood development of the disordered family as additional outcomes or consequences.

Haning notes a dilemma for those in recovery–they want to advocate for others but do not want to draw attention to themselves as the attention is far different from a diabetic or parent of a child with muscular dystrophy pushing for increased research or approval of a new medication.  He points out a national organization advocating for the treatment of the mentally ill exists (NAMI) that is comprised largely of those being treated but  “no strong national equivalent exists for substance use disorder yet” with two “organized bodies” as exceptions:    “physicians who have themselves entered recovery (IDAA), and another, smaller body of physicians in recovery who are engaged in the treatment of SUDs” These “organized bodies” have generally been focused on “ensuring identification of and care of their colleagues and patients” but have more recently become involved in the “pursuit of public policy changes.”  

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Propoganda, Truth and Credibility

In   Propaganda: The Formation of Men’s Attitudes  Jacques Ellul discusses the underlying assumptions and ideology that give rise to propaganda and the structures and belief systems needed for propaganda to flourish.  Propagandists  move with an “assortment of soothing and easily digestible notions.”  He discusses how easy it is for most people to accept propaganda as the individual does not want information but only value judgments and preconceived positions.  On the surface Haning’s proposal is rational and seems like a good idea. Who could argue with it?

It is important to recognize what Haning is referring to.    IDAA is an acronym for International Doctors in Alcoholics Anonymous , an AA fellowship of more than 9500 doctors.  The organized body focused on ensuring “identification” of “colleagues” are the state physician health (basically employee assistance programs for doctors).  47 of them are under the management of the  Federation of State Physician Health Programs (FSPHP).  The organized body focused on “care” of “patients is a group called   Like Minded Docs (LMDs). Collectively these groups represent the physician health program model and it is being promoted as “gold standard addiction treatment” based on a 2009 study called the“PHP-blueprint”  that reported remarkable success rates (80%).  The  high success rate is attributed primarily to close linkage with 12-step programs and the use of “residential and outpatient treatment programs that were selected for their excellence.”

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Mechanics and Mentality

The “PHP-blueprint” is abstinence based and 12-step participation is mandatory.   Random frequent drug and alcohol testing is used with zero-tolerance. A positive test results in an out-of-state “PHP-approved” assessment center and concepts such as “potentially impairing illness” and “relapse without use” are accepted.  The core organizational structure includes the state PHP, commercial drug testing labs and a number of  out-of-state “PHP-approved” assessment and treatment centers.  The PHP’s have no regulation or oversight.  The testing, assessments and treatment are out -of-pocket cash only.The assessment and treatment centers have very little oversight and because the  commercial drug-testing labs use non-FDA approved laboratory developed tests (LDTs)  they are not regulated.  No agency exists to provide sanctions for faulty or even fraudulent testing.  No internal or external avenues of complaint exist.  It is essentially a closed system in which no outside opinion is acknowledged let alone addressed.    Transparency and accountability are absent. Due process is absent.   Every “PHP-approved” facility is represented by a Like-Minded Doc and many of the doctors involved in the drug-testing process are also on the list of LMDs.   It is a rigged system and explained  here.    Choice in assessment and treatment is removed and the “PHP-approved” facilities engage in “diagnosis rigging” and are willing to label people with diagnoses when they do not in fact meet the diagnostic criteria for that diagnosis.  Pervasive problems include:

–Labeling normal variations in behavior as pathological

–Failing to receive proper diagnosis and effective treatment in those who need it

–Forcing unneeded evaluations and treatments including forced committment

Pervasive and Serious Concerns

Physician Health Programs- More Harm Than Good?  was the first article critical of  PHPs. “Physician health programs under fire” was recently published in the British Medical Journal (BMJ). The lack of accountability and financial and ideological conflicts of interest are addressed.  Complaints include coercion,  threats, “diagnoses rigging,” lab fraud and false diagnoses to  to support unneeded treatment.    The physician health program model is a major factor in the current suicide epidemic in doctors.

Profit Motive and Plans for Expansion

In his Editorial Haning  mentions a “national organization for advocacy of treatment of the mentally ill” called NAMI and this stands for the  National Association of Mental Illness (NAMI). It is considered a pharmaceutically funded front-group founded by Abott Labs, Pfizer, Eli-Lilly and pharmaceutical manufacturers.  They all market drugs for mental illness.    Mother Jones reported  $11+ million over 5 years from Big Pharma, and an Eli Lilly executive directed operations from their headquarters..  A U.S. Senate investigation revealed Big Pharma contributed $23 million in a just two years and until forced by the Senate Finance Committee to identify its corporate donors  had refused to do so. The “Campaign to Stop the Stigma of Mental Illness”  was started by NAMI and the group claims one out of five adults will suffer some form of mental illness in their lifetime.    The system is designed to provide a seemingly altruistic agenda but is in actual fact driven and funded by groups who profit from labelling more people mentally ill.     It is, in fact, the very same business model as what we see here but the primary profiteers are not Big Pharma but Big Rehab -the multi-billion dollar drug and alcohol testing, assessment and treatment industry.images-4

What is planned is explicitly spelled out in the  ASAM White Paper on Drug Testing . This is a Trojan horse for expanding the “PHP-blueprint.”  The business mode is similar to the razor or printer model.  The razor or printer does not generate a profit, the razor and printer cartridge replacements do recurrently.  PHPs are simply employee assistance programs (EAPs). Selling the PHP (i.e replacing an existing EAP) does not turn a profit, the non-FDA approved drug and alcohol testing does (and the referrals to the “approved” assessment and treatment centers.    The New York Times reported that the size of the US drug-screening industry grew from $800 million in 2000 to $2 billion in 2013.

Infrastructure Already in Place 

The drug and alcohol assessment, treatment and testing organizations are already present To replace an EAP with the PHP model  it is only necessary to convince an employer or  administrative agency in charge of professional licensure.   If elected as public policy advocates for addiction treatment they will most assuredly be lobbying and working on state and federal laws and aligning themselves with licensing boards to remove due process and civil liberties by “medicalization”.  This could impact anyone from our elderly, to our military, pregnant women, nursing mothers and school children. It is a testing and treatment  Trojan Horse.   They will be pushing public policy to coerce people into treatment who do not need treatment.

screen-shot-2016-09-28-at-1-33-33-amCreating Bogus Risks of Danger

Linking patient harm to “impaired” doctors is one of the primary propaganda techniques used by the FSPHP to forward the assessment, testing and treatment agenda. Be creating fear in hospital administrators, medical boards and the public ( “The Junkie in the O.R.” ) This appeal to  consequences (argumentum ad consequentiam) is suggested by Haning in the editorial. He states the public will react to consequences such as crime, trauma in the workplace, spread of infectious disease and “impact of childhood development of the disordered family “as potential consequences. The PHP system uses a medical license as “leverage” but any other license or benefit provided by the state could be used in the same manner.   This is what is called “contingency management” and how this is done is discussed in the ASAM White Paper on Drug Testing.

FSPHP/FASAM/LMD

screen-shot-2016-09-29-at-7-11-01-amThe primary architects of this system can be found on a list of Fellows of the American Society of Addiction Medicine. The list can be seen  here and includes  G. Douglas Talbott,  Robert Dupont, and  Paul Earley whose contributions to the current paradigm I have detailed in previous posts.   The list also includes  Greg Skipper  who introduced the first non-FDA approved  laboratory developed test for alcohol and is currently promoting  Soberlink -another junk science gadget that is prominently advertised as the top header in the current issue of   ASAM Weekly.

The list of like-minded docs was taken down from the website several months ago. Below is a screenshot taken the week prior.  On this list are Dupont, Earley, Skipper and the medical director’s of every single “PHP-approved” assessment and treatment center and it must be a small world after all because if you look at this list it has the name “Bill Haning” on it.  You will also find him on the list of ASAM Fellows.

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Defending MA BORM Deb Stoller’s Five-Year Concealment of Fraud–Nothing Left but Logical Fallacy and Lies

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“To be sure, and to put this matter to rest for the Court once and for all, the Board has retrieved from off site storage those materials before the Board in December 2011. The documents that Dr. Langan claims were “suppressed” are in fact there—and this should not be surprising given the Board’s many orders since that time, all of which have disclaimed any reliance on the July 2011 PEth test.”

“Documents are typically entered into the electronic repository after being used or after a proceeding not before”

—Assistant Attorney General Bryan Bertram who is defending the Board of Registration in Medicine (“Board”) before Justice Hines in my case before the Massachusetts Supreme Judicial Court.

Related:  MA Board Attorney Deb Stoller’s Fraud Upon the Court

Screen Shot 2016-08-06 at 3.58.19 PMThe excerpt above is taken from the 2006 Massachusetts Board of Registration in Medicine  Annual Report and describes the Board’s  Document Imaging Unit.   The Document Imaging Unit scans agency documents into an electronic database and according to the Boards 2009 Annual Report has “allowed the agency to standardize and automate its processes for storing and retrieving documents.”   The  quotes above it are from Assistant AGO Bryan Bertram in response to recently acquired documents proving that Board attorney Deb Stoller was provided irrefutable, undeniable and  unequivocal evidence of forensic-fraud between the Massachusetts PHP (Physician Health Inc.) and a drug testing lab but concealed it and has been concealing it for over five-years.

The appeal to an imaginary storage unit and cart-before-the horse logic are just two of many absurdly illogical and nonsensical statements that he has used to defend the indefensible.

On June 8, 2016  I requested a handful of documents from the Board of Registration in Medicine under a new Records Reform Act that had up until now been refused.   146 pages of docs were received within 24 hours and can be seen here:   Langan PDF copy

Only one of the five documents had a legible date-stamp on it.   The rest were blurred and indecipherable. Requests for clarification have been stifled with the last response from the Board on  June 17th claiming they were “working on it. ”  Multiple subsequent inquiries have been ignored.  Verifying these dates should be simple and take a matter of minutes.  Why all the fuss?

The only document with a legible date stamp was a December 15, 2011 letter  from my attorney  requesting  an attached “litigation packet ” be considered at a December 21, 2011 Board proceeding.  (I had requested the “litigation packet” as one of the documents but had never seen the letter).    Needless to say it wasn’t.

 

 

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Both the letter and the 47-page “litigation packet” are date-stamped   January 17, 2012.

The letter is addressed to physician health and compliance unit (PHCU) Board counsel Deb Stoller and cc’d to her underling Tracy Ottina.  The documents show clearly that the two were in possession of these documents  prior to a December 21st Board hearing.  They are date-stamped 27 days after the hearing and to support his claim that    “documents are typically scanned into the electronic repository after being used or after a proceeding, not before” Bertram uses the transcript of the same proceedings as an example as the December 21  document is date stamped  December 29 (8 days after the proceeding).  Apples and oranges.  Scanning a a transcript of a proceeding into the Board’s Digital Imaging Unit the following week is  understandable  but scanning a document that was submitted as evidence to be heard at that same proceeding  27-days after it took place and 18-days after the record of the proceeding was scanned is not.  It is very fishy for a number of reasons and defies common sense.

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But  Bertram claims the date-stamp is meaningless and wants to put the matter to rest once and for all.   In his  response opposing  a Motion to Produce Documents  (he does not want to produce them) he provides 3 footnotes (presumably to give an impression of legitimacy)  providing confirmation that the documents had been  carefully considered  at the December 21, 2011 proceedings by reviewing not only its minutes and records but procuring the original documents that were being stored off-site.

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Bertram also claims PHS has not committed any crimes because they have not been charged with any crimes.  This is called denying the antecedent or inverse error.  It is a logical fallacy where the consequent is an indicative conditional  claimed to be false because the antecedent is false. ( A, then B; not A, therefore not B).    

If it is raining, then the grass is wet.
It is not raining.
Therefore, the grass is not wet.

The argument is invalid because there are other reasons for which the grass could be wet such as spaying it with a hose.   There are multiple reasons for which someone who committed a crime has not been charged with a crime.

There is always a time-frame between the two and many who commit crimes never get caught.    Luck, stealth, cleverness, and multiple other variables might be involved.  Jimmy Savile molested and raped scores of children for decades and he was never caught.  As a major fundraiser for hospitals this fiend had free rein to prey on sick and helpless  little kids in hospital beds .

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They have not been charged with any crimes because the very agencies capable of charging them with crimes are ignoring or otherwise overlooking them for various reasons.  If I see someone being stabbed in the back  I can reasonably conclude they committed a crime. Savile got away with what he did because of a culture of deference. Because he was powerful others made allowances for him.  Monsters thrive in a culture of deference.

 

A Culture of Deference

According to Policy 94-002 (which has disappeared from the Board’s website) Board counsel for the Physician Health and Compliance Unit (PHCU) was created outside the Enforcement Division of the Massachusetts Board of Registration in Medicine (Board).  PHCU advises the board on issues related to drug and alcohol abuse and mental or physical impairment that may affect a doctor’s ability to practice and unit staff prepare and present cases to the board’s complaint and licensing committees to make sure identified impaired physicians comply with the terms of any rehabilitation agreements. According to Policy 94-002 the responsibilities of PHCU Board counsel include “serving as a hearing officer in some cases and resource in all cases involving physician health and compliance issues.”

The Board appoints a “hearing officer” to conduct an adjudicatory proceeding according to the procedures set forth in the Massachusetts Administrative Procedures Act. Mass. Gen. L. ch. 30A. It is the hearing officers responsibility to make all decisions regarding the admission or exclusion of evidence. Administrative procedure requires that hearing officers consider the probative value of the evidence and file it in the Administrative Record.

Massachusetts Board of Registration in Medicine PHCU Board counsel is run by attorney Deb Stoller with attorneys Robert Harvey and Tracy Ottina.  They have been given the power to act as “hearing-officers” on cases and present cases to the Board and  recommend disciplinary action.

Medical Boards provide deference to their physician health experts and their in-house compliance counsel who have been given the power of  judge, jury and executioners.

They give little thought or time to what is presented as predetermined fact. That the Board is not under any active supervision from the executive branch has been confirmed in writing to the Massachusetts Legislature by Governor Charles Baker in a letter accompanying his Bill (H.4188) which aimed to finally establish a framework for active supervision and oversight over the Board.

As independent units within the board who act as hearing officers and present cases the PHCU may be working with PHS in the same manner as the drug-testing labs engaging in laboratory fraud and the “PHP-approved” assessment and treatment centers that are “tailoring” diagnoses. It appears that Stoller and the PHCU is not representing the best interests of the Commonwealth  but those of the state physician health programs and under current management state PHPs represent the best interests of the billion dollar drug and alcohol assessment, testing and treatment industry.  The PHCU’s are clearly part of the racket.  It is a rigged game with a stacked deck existing within a culture of deference.

Obtaining the evidence is one barrier that has prevented exposure of this corruption. Another is the unwillingness of agencies available to hold them accountable. PHS has no oversight or accountability and the labs and assessment and treatment centers have minimal oversight. As these are non-FDA approved lab tests the FDA provides no oversight.   They  have  pushed public policy recommending  regulatory agencies provide deference to their authority and expertise.

This creates an organizational systems failure as the Board is deferring to the state physician health program and the states attorney Generals are deferring to the Board.   Each  complacent  in the integrity and good-faith of the agency before it.   This creates a complete organizational systems failure.

Governor Baker’s recent move to control professional boards seemed a promising step and I provided detailed documentation to the Director of Constituent Services at the Office of the Commissioner for Public Health,  Helen Rush-Lloyd ( Helen.Rush-Lloyd@state.ma.us   617-624-5223 ) who informed me on June 7 she would provide the name of the appropriate contact person to respond.  The email can be seen here: Physician Health and Compliance Unit.   Last I heard it was turfed to attorneys at the Board by whoever the appropriate contact person was and I have not been able to get a name.  As this too appears to be a dead-end it is important to find out who is responsible.  This is a system in which they often place their own people into positions where they can block, punt, deflect, dismiss and otherwise derail valid complaints.  For example they have a “point-person”on the Massachusetts Medical Society ethics committee who blocks valid complaints from ever reaching review.  They are turfed at the door and I would not be surprised if they placed one of their own or one of their apologists into this venue as well and this requires the provision of a name to see who is responsible and who should be held accountable.

The totality of evidence provides clear and convincing proof that PHCU Board counsel Deb Stoller has been suppressing evidence for years. The filed Administrative Record was missing every item I submitted including a critical document he claims was lost due to my “hand-delivery” of it.   I still cannot wrap my head around the connection between hand-delivery and losing it. I believe he’s so entrenched in his pervasive denial of facts and outside opinion and so used to shifting the burden and blaming me he couldn’t think of anything else.

One thing is for certain. The Board does not want to produce the records to Justice Hines. I realized this after I filed the “Motion to Expand the Record” as Bertram made it clear on multiple occasions the Board would not object to anything I filed with the Court to add to it.   Had I not known about the 10-day time limit to file the a motion to expand the record the Court would be limited the documents provided and none of mine were included. This is another administrative law trick frequently used to control the information that is seen.  If the December 2011 documents were considered then I would like to hear the logic.  The documents in question show black letter law crimes. They show specific crimes.   Any schoolchild could detect them.   The documents show flagrant forensic fraud  between Dr. Luis Sanchez and the VP of Lab Operations at USDTL Joseph Jones and this is  representative of the top-down corruption and unethical tone at the top that pervades this system.

None of the forensic fraud or perjury or concealment has ever been addressed by the Board and missing  evidence and unaddressed key arguments provide clear and convincing proof that Stoller has been concealing evidence for years.

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  Dr. Luis T. Sanchez, M.D. served as the Director of the Massachusetts physician health program, Physician Health Services (PHS) from 1998 until 2013.   He is past President (2005-2009) of their national organization, the Federation of State Physician Health Programs (FSPHP).

In  Disruptive Behaviors Among Physicians   stresses the importance of  of “clear expectations and standards”  and  values and codes-of-conduct in the practice of medicine and calls on physician leaders  “commit to professional behavior.”

One measure of integrity is truthfulness to words and deeds.  These people claim professionalism, ethics and integrity.  Colluding with a laboratory to intentionally misrepresent laboratory data is laboratory fraud and covered under Title 18 of the United States Criminal Code (Wire fraud 18 USC 1343, False Statements 18 USC 1001, Conspiracy 18-USC 371, False Claims 18-USC 287 and Obstruction of Justice 18-USC 1505). I believe all of these are applicable here. In addition Dr. Sanchez violated M.G.L 156 (B) Section 69 by making false statements to a state agency.  Later documents show clear evidence of his perjury and concealment.   August 6, 2014 to Langan with health materials.

The fact that medical boards and public health departments are aware of criminal acts being committed  by this “authority” and others like him yet do nothing to address its existence will inevitably lead to worse.  A culture of deference allows this type of behavior to fester and thrive for years and even decades.  If dictatorships can be defined as systems in which there is a prevalence of thinking in destructive rather than ameliorative terms then the the physician health movement fits.

Many of the  “PHP-approved attorneys” who ostensibly represent doctors who are under PHP monitoring but only do so within the boundaries of the PHPs wishes are former board attorneys and assistant AGOs.  My suspicion is that the PHPs have preferred attorneys they use within the AGOs administrative legal division and the agency at large is unaware of what happens within this system.

Lord Acton warned that we should not make moral allowances for powerful people just because they are powerful. If a common man murdered someone, Acton explained, he should hang. But when a king or queen murders, we make allowances for it. “I would hang them higher than Haman, for reasons of quite obvious justice, still more, still higher, for the sake of historical science” Acton wrote.  The same dynamic applies here.

One thing is for certain.  There should be zero-tolerance for forensic fraud perpetrated by those in positions of power.   This is  worse than Annie Dookhan as her victims were abstractions.  She did not see the damage that resulted from her laboratory misconduct.

And as far as I can find, these documents are the most elaborate and complete representation of the mechanics of forensic fraud available and show the sequential steps between the requesting party and complicit lab.   The documents also show how easy laboratory misconduct is accomplished as well as the moral detachment of the involved parties.

Bertram knows these are crimes.

 I have also informed him that since 2011 there have been multiple suicides related to allegedly falsified alcohol tests at the same lab seen here and the ongoing concealment  of laboratory fraud is equally abhorrent as those who engage in it. I am unclear of his motive in defending a cover-up of forensic fraud in the wake of other lab scandals but  one other thing is for certain.  When  this racket is exposed the record will show who knew about it and when.  

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The 146 pages provided within 24 hours is the package containing the December 11, 2011 docs and all the others with smudged dates.  I already have the documents but I need the dates.

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Bertram 11:16:15 e-mail requesting he address the issues

Bertram e-mail 11:16:15 requesting he address key arguments.

Bertram e-mail 12:7:15

 

 

 

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Please donate–Making significant gains.

//funds.gofundme.com/Widgetflex.swf

 

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Fraud Upon the Court

“Fraud Upon the court” occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the court makes void the orders and judgments of that court.

Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985 states: “Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted.”

It has recently become evident that the  Director of the Board of Registration in Medicine’s Physician Health and Compliance Unit, attorney Deb Stoller,  has been unethically and unlawfully withholding and concealing documentary evidence that is not only exculpatory to  me but reveals that  Physician Health Services (PHS) engaged in misconduct and fraud.   She has essentially been concealing their crimes.

The “Administrative Record” filed by the Board was absent copious documentation of major importance and all of it was submitted through the care of Ms. Stoller.  The missing documents include multiple petitions and supporting documents that are neither irrelevant nor superfluous. Each of these documents contains sufficient indicia of reliability to meet probative value.Concealing material fact, misrepresentation and making false statements to a state administrative agency is unethical. It constitutes abuse of power and fraud.

Fraud on the court occurs where a party tampers with the fair administration of justice by deceiving “the institutions set up to protect and safeguard the public” or otherwise abusing or undermining the integrity of the judicial process. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944).

The United States Court of Appeals for the First Circuit skillfully defined the concept of fraud on the court in Aoude, supra at 1118, as follows: “A `fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”

Ms. Stoller is in violation of the Rules of Professional Conduct including Mass.R.Prof.C. 3.4(c). Fairness to Opposing Party and Counsel which states in part: A lawyer shall not: (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

Mass.R.Prof.C Advocate Rule 3.3 Candor Toward The Tribunal reads:
(a)A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false; (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal,; (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

And under Mass.R.Prof.C. 8.4(c, d, h. It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (h) engage in any other conduct that adversely reflects on his or her fitness to practice law.

The Supreme Judicial Court (SJC) reviews the Board’s decisions in part for constitutional error, see Mass.Gen.L. ch. 30A, Sec. 14(7), and is permitted to gather evidence “in cases of alleged irregularities in procedure before the agency [when those irregularities are] not shown in the record.” Mass.Gen.L. ch. 30A, Sec. 14(5). The Court may look beyond the record if it appears the agency deliberately or negligently excluded documents that may have been adverse to its decision.

 

On a writ of certiorari, the court’s review “is confined to the record and is for the purpose of correcting legal error, [and therefore] the inquiry about the presence or absence of genuine issues of material fact, germane to summary judgment procedure, is inappropriate. . . . [The reviewing court] need only inquire whether the commission’s decision was ‘legally tenable and supported by substantial evidence on the record as a whole.”‘ Gloucester v. Civil Serv. Comm’n, 408 Mass. 292 , 297 (1990), quoting Commissioner of Health & Hosps. of Boston v. Civil Serv. Comm’n, 23 Mass. App. Ct. 410 , 411 (1987). See G.L.c. 31, s. 2 (b); Mayor of Revere, supra at 319-322.

Fraud is distinguished from negligence, ignorance, and error by virtue of the fact that it is intentional; involving some level of calculation. Negligence is: “the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.”   In a professional context, it is defined as: “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm… it is characterized chiefly by inadvertence, thoughtlessness, inattention, and the like.”.  Fraud, in contrast, is not accidental in nature, nor is it unplanned.  Those who commit fraud know what they are doing and are deliberate in their efforts. They are also aware that it is unethical, illegal, or otherwise improper.

Fraudulent intent is established by examining the documentation of decisions and behaviors associated with those under suspicion. As explained in Coenen: “Manipulation of documents and evidence is often indicative of such intent. Innocent parties don’t normally alter documents and conceal or destroy evidence.”

As explained in Black’s Law Dictionary,  fraud is an intentional distortion of facts and truth for the purposes of inducing another to give up something of value that they possess or to relinquish a legal right that they might otherwise retain. It is additionally defined as a “false presentation of a matter of fact whether by words or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed which deceives and is intended to deceive another.”

I believe it is safe to conclude that the parties here participated in fraud.

The “litigation-packet” did not merely show “chain-of-custody” issues but forensic fraud. Misrepresenting invalid forensic test results as valid is the definition of forensic fraud. Ms. Stoller should have immediately assessed the “clear-weight” of this evidence, entered it into the docket for reconsideration and given me an opportunity to be heard. She did not.

The Federation of State Medical Board Policy specifically requires strict “chain of custody.” She violated the Board’s very own standards and then blocked me from returning to practice by putting barriers in place, refusing to allow independent evaluations and protracting the time –drawing this out in order to cause as much damage as possible to my family and me.

PHS has convinced the Board not to “second-guess” their decisions and apparently the Board has convinced state AGOs to not “second-guess” theirs; each presupposing the integrity of the individuals and validity of the decisions of the agencies in question. As a result complaints by doctors of serious crimes and abuse are ignored. Fact and truth do not matter as the agencies blindly support one-another. This removes all aspects of accountability including answerability and justification for one’s actions. It is a flawed system.

In the past the SJC has overturned the Board’s decisions on due process grounds, see, e.g., Morris v. Board of Reg. in Medicine, 405 Mass. 103, 110, 539 N.E.2d 50, 54 (1989) (vacating Board decision because proceedings “denied [the physician] fairness in a due process sense.”).

 

This interference with the administration of Justice, abuse of authority and denial of constitutional rights warrant the Board Orders be reversed, vacated and corrected. “The touchstone of due process is protection of the individual against arbitrary action of government.” (Wolff v. McDonnell, 418 U.S. 539, 558 (1974). “[i]n a just society those who govern, as well as those who are governed, must obey the law.” (United States v. Leon, 104 S. Ct. 3430, 3457 (1984) (Stevens, J., dissenting).

The Courts have held that the Massachusetts and Federal Administrative Procedure Acts require both the agency and the court to consider the entire record, including testimony given at the hearing. In Friends of Edgartown Great Pond v. DEP, 446 Mass. 830, 845 (2006), the SJC recognized that the agency must consider the hearing evidence, finding the agency hearing complied with the Administrative Procedure Act requirements because “the record illustrates that over the course of the five-day hearing, the administrative law judge carefully considered all of the relevant evidence.”

The record compiled here illustrates that over the course of four years the Board not only failed to carefully consider any of the relevant evidence but most likely never saw any of it.

Our Constitution mandates that level of legal process due to reflect “respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)

Ms. Stoller violated multiple professional regulations, ethics and the law in an ongoing campaign in which she blocked the administration of justice. By concealing the truth she prevented both exculpatory evidence favorable to my case and detrimental to the opposing party (involving misconduct and crimes from ever coming to light. It is quite clear the full Board never saw these documents. The fact that the latest Board action did not have any of the documents or petitions submitted over the past year is prima facie evidence of Fraud on the Court.  Ms. Stoller needs to be held accountable and I am requesting the SJC uses whatever power it has available to make certain this occurs. Ms. Stoller needs to be disciplined for her actions and this discipline needs to be commensurate with her crime.  In this case nothing less then disbarment and criminal charges would fit that bill.

Physician Suicide and “Physician Wellness” –Time to start talking about the elephant in the room!

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Physician Suicide and the Elephant in the Room

Michael Langan, M.D.

Although no reliable statistics exist, anecdotal reports suggest an alarming upsurge in physician suicide. This necessitates a reappraisal of known predisposing risk factors such as substance abuse and depression but also requires a critical examination of what external forces or vulnerabilities might be unique to doctors and how they might be involved in the descent from suicidal ideation to suicidal planning to completed suicide.

Depression and Substance Abuse Comparable to General Population

Depression and substance abuse are the two biggest risk factors for suicide. The prevalence of depression in physicians is close to that of the general population1,2 and, if one looks critically at the evidence based literature, substance abuse in medical professionals approximates that of the general population.  Controlled studies using DSM diagnostic criteria suggest that physicians have the same rates (8-14%) of substance abuse and dependence as the rest of the population 3 and slightly lower rates compared to other occupations.4,5 Epidemiological surveys reveal the same. Hughes, et al.6 found a lifetime prevalence of drug or alcohol abuse or dependence in physicians of 7.9%, markedly less than the 14.6% prevalence reported in the general population by Kessler.7

State Physician Health Programs

Perhaps it is how physicians are treated differently when they develop a substance abuse or mental health problem.

Physician Health Programs (PHP) may be considered the equivalent to Employee Assistance Programs (EAPs) for other occupations. PHPs meet with, assess and monitor doctors who have been referred to them for substance use or other mental or behavioral health problems. Originally developed as “impaired physician” programs, the PHPs were created to help doctors who developed problems with substance abuse or addiction as an alternative to disciplinary action by State Medical Boards. These programs existed in almost every state by 1980. Often staffed by volunteer physicians and funded by State Medical Societies, “impaired physician” programs served the dual purpose of both helping sick colleagues and protecting the public. Preferring rehabilitation to probation or license revocation (so long as the public was protected from imminent danger)  most medical boards accepted the concept with support and referral.   However, most EAPs were developed with the collaboration of workers unions or some other group supporting the rights and interests of the workers.  Not so with PHPs  as there is no such organization representing doctors.   PHPs developed in the absence of regulation or oversight.    As a consequence there is no meaningful accountability.   

In Ethical and Managerial Considerations Regarding State Physician Health Programs published in the Journal of Addiction Medicine in 2012, John Knight, M.D. and J. Wesley Boyd, M.D., PhD who collectively have more than 20 years experience with the Massachusetts PHP state that:

“Because PHP practices are unknown to most physicians before becoming a client of the PHP, many PHPs operate out- side the scrutiny of the medical community at large. Physicians referred to PHPs are often compromised to some degree, have very little power, and are, therefore, not in a position to voice what might be legitimate objections to a PHP’s practices.”8

Noting that “for most physicians, participation in a PHP evaluation is coercive, and once a PHP recommends monitoring, physicians have little choice but to cooperate with any and all recommendations if they wish to continue practicing medicine,” Knight and Boyd raise serious ethical and managerial questions about current PHP policies and practice including conflicts of interest in referrals for evaluation and treatment, lack of adherence to standards of care for forensic testing of substances of abuse, violations of ethical guidelines in PHP research, and conflicts of interest with state licensing boards.

Knight and Boyd recommend “that the broader medical community begin to reassess PHP’s as a whole” and that “consideration be given toward the implementation of independent ethical oversight and establish and appeals process for PHP clients who feel they are being treated unfairly.” 8 They also recommend the relationship of PHP’s between the evaluation and treatment centers and licensing boards be transparent and that national organizations review PHP practices and recommend national standards “that can be debated by all physicians, not just those who work within PHPs.”8 Unfortunately this has not happened. Most physicians have no idea that the state physician health programs have been taken over by the “impaired physicians movement.”

In his Psychology Today blog,  Boyd again recommends oversight and regulation of PHPs.   He cites the North Carolina Physicians Health Program Audit released in April of 2014 that reported the below key findings:

As with Knight and Boyd’s paper outlining the ethical and managerial problems in PHPs, the NC PHP audit finding that abuse could occur and not be detected generated little interest from either the medical community or the media.

Although state PHPs present themselves as confidential caring programs of benevolence they are essentially monitoring programs for physicians who can be referred to them for issues such as being behind on chart notes. If the PHP feels a doctor is in need of PHP “services” they must then abide by any and all demands of the PHP or be reported to their medical board under threat of loss of licensure.

State PHP programs require strict adherence to 12-step doctrine9 yet many of the physicians monitored by them are neither addicts nor alcoholics. Some do not even have substance abuse issues and there are reports of “disruptive” physicians being diagnosed with “character defects” at the “PHP-approved” facilities that do these assessments.   PHPs require abstinence from drugs and alcohol yet use  non-FDA approved Laboratory Developed Tests in their monitoring programs. Many of these tests were introduced to commercial labs and promoted by ASAM/FSPHP physicians.10-12

LDTs bypass the FDA approval process and have no meaningful regulatory oversight.   The LDT pathway was not designed for “forensic” tests but clinical tests with low risk.   Some are arguing for regulation and oversight of LDTs due to questionable validity and risk of patient harm.13

These same physicians are claiming a high success rate for PH programs9 and suggesting that they be used for random testing of all physicians.14

As with LDTs, the state PHPs are unregulated, and without oversight. State medical societies and departments of health have no control over state PHPs.

Their opacity is bolstered by peer-review immunity, HIPPA, HCQIA, and confidentiality agreements. The monitored physician is forced to abide by any and all demands of the PHP no matter how unreasonable-all under the coloration of medical utility and without any evidentiary standard or right to appeal.

The ASAM has a certification process for physicians and claim to be “addiction” specialists. This“board certification” is not recognized by the American Board of Medical Specialties and is not a recognized medical specialty. The goal of the ASAM is to be recognized as the experts in addiction medicine with the consensus expert opinion based on the 12-step prohibitionist brain disease model. The ASAM has aligned itself with a number of inpatient drug treatment centers  (Hazelden, Talbott, Marworth, Bradford,etc) and are heavily funded by the drug testing industry.   It is in fact a “rigged game.”

State PHPs are non-profit non-governmental organizations and have been granted quasi-governmental immunity by most State legislatures from legal liability.

By infiltrating “impaired physician” programs they have established themselves in almost every state by joining, gaining power, and removing dissenters. Groupthink and 12-step indoctrination are the goals. By advertising as advocates for doctors who are “caring,” “confidential resources,” “giving help,” and advocating for “colleagues in need” the outward appearance is one of benevolence.

The biggest obstacle is that this system allows them to throw the normal rules of conduct under the imperative of a higher goal assumed to trump all other consideration. Those outside of programs either defend or ignore the reports of ethical and criminal violations, complacent in their trust of these “experts” claiming they are just helping sick doctors and protecting the public.

With no oversight or regulatory body involved this is all done with impunity, immunity, and undercover. They use the accusation of substance abuse as an indication to disregard the claims of the accused. The physician is left without rights, depersonalized, and dehumanized. The imposition of confinement, stigmatization, lack of oversight of the organizations, peer-review protected confidentiality, and lack of procedural protection is a one-way train to hopelessness and despair.

By establishing a system that of coercion, control, secrecy, and misinformation, the FSPHP is claiming an “80% success rate” 15and deeming the “PHP-blueprint” as “the new paradigm in addiction medicine treatment.

The ASAM/FSPHP had a major influence on the DSM-V where drug abuse and dependence are no longer separate entities. They are also working behind the scenes to get legislation to randomly drug test all physicians.

They are now after the “disruptive physician” and the evidentiary criteria are fairly low and red flags include “deviating from workplace norm in dress or conduct” and being tardy for meetings.

They have identified “the aging physician” as a potential problem because “as the population of physicians ages,””cognitive functioning” becomes “a more common threat to the quality of medical care.”

The majority of physicians are unaware that the Federation of State Medical Boards House of Delegates adopted an updated Policy on Physician Impairment in 2011 that uses addiction as an example of a “potentially impairing illness.”  According to the Federation of State Physician Health Programs …”physician illness and impairment exist on a continuum with illness typically predating impairment, often by many years. This is a critically important distinction. Illness is the existence of a disease. Impairment is a functional classification and implies the inability of the person affected by disease to perform specific activities.”

“Process addiction” was added as a potentially impairing illness including compulsive gambling, compulsive spending, compulsive video gaming, and “workaholism.” According to the FSPHP “the presence of a process addiction can be problematic or even impairing in itself, and it can contribute to relapse of a physician in recovery. As such, process addictions should be identified and treated.” They define three levels of relapse including the novel “relapse without use.”

Bullying, Helplessness, Hopelessness and Despair

Perceived helplessness is significantly associated with suicide.16 So too is hopelessness, and the feeling that no matter what you do there is simply no way out17,18 Bullying is known to be a predominant trigger for adolescent suicide19-21 One study found that adolescents in custody who were bullied were 9.22 times more likely to attempt suicide than those were not bullied.22

Heightened perceptions of defeat and entrapment are known to be powerful contributors to suicide.23,24 The “Cry of Pain” model 25,26 specifies that people are particularly prone to suicide when life experiences are interpreted as signaling defeat which is defined as a sense of “failed struggle” or loss of social position and resources.. The person is unable to identify an escape from or resolution to a defeating situation, a sense of entrapment proliferates with the perception of no way out, and this provides the central impetus for ending ones life.

There is also evidence that rescue factors such as social supports may play a role in preventing suicide. These rescue factors act buffers to protect against suicide in the face of varying degrees of life stress.27,28 The study of female physicians revealed meetings to discuss stressful work experiences as a potential protective factor, 29 and support at work when difficulties arose appeared to be a protective factor for the male physicians.30   Research involving Finnish physicians found that control over one’s work and organizational justice were the most important determinants of work-related wellbeing.31,32 Organizational justice is related to fairness and refers to an individuals perception of an organizations behaviors, decisions, and actions and how these influence one’s own attitudes and behaviors and has been identified as a psychosocial predictor of health and wellbeing33 34Low organizational justice has been identified as a notable risk factor for psychological distress and depression.35,36

A recent report indicates that job stress, coupled with inadequate treatment for mental illness may play a role in physician suicide..

Using data from the National Violent Death Reporting System the investigators compared 203 physicians who had committed suicide to more than 31,000 non-physicians and found that having a known mental health disorder or a job problem that contributed to the suicide significantly predicted being a physician.1

Physicians were 3.12 times more likely to have a job problem as a contributing factor. In addition, toxicology testing showed low rates of medication treatment.  The authors concluded that inadequate treatment and increased problems related to job stress are potentially modifiable risk factors to reduce suicidal death among physicians.

They also warned that the database used likely underestimated physician suicides because of “underreporting and even deliberate miscoding because of the stigma attached.”

I can think of nothing more institutionally unjust than an unregulated zero-tolerance monitoring program with no oversight using unregulated drug and alcohol testing of unknown validity.

We have heard of numerous suicides due to these institutionally unjust programs.   Three doctors died by suicide in Oklahoma in a one month period alone (August 2014).   All three were being monitored by the Oklahoma PHP.   I went to an all boys high-school of less than 350 students yet a classmate a couple years ahead of me died by suicide a few months ago. He was being monitored by the Washington PHP. His crime?  A DUI in 2009–a one-off situational mistake that in all likelihood would never have recurred.  But as is often the case with those ensnared by state PHPs he was forced to have a “re-assessment” as his five-year monitoring contract was coming to an end.  These re-assessments are often precipitated by a positive Laboratory Developed Test (LDT) and state medical boards mandate these assessments can only be done at an out-of-state “PHP-approved” facility.    Told he could no longer operate and was unsafe to practice medicine by the PHP and assessment center he then hanged himself.  And at the conclusion of Dr. Pamela Wible’s haunting video below are listed just the known suicides of  doctors; many were being monitored by their state PHPs–including the first name on the list– Dr. Gregory Miday.

None of these deaths were investigated. None were covered in the mainstream media.   These are red flags that need to be acknowledged and addressed!    This anecdotal evidence suggests the oft-used estimate of 400 suicides per year (an entire medical school class) is a vast underestimation of reality—extrapolating just the five deaths above to the entire population of US doctors suggests we are losing at least an entire medical school per year.

As physicians we need to demand transparency, oversight, regulation and auditing by outside groups. This is a public health emergency.

To wit:

They first came after the substance abusers and I did not speak out because I was not a substance abuser.

They then came for those with psychiatric diagnoses and I did not speak out because I was not diagnosed with a psychiatric disorder.

They then came after the “disruptive physician” and I did not speak out because I was not disruptive.

They then came after the aging physician and I did not speak out because I was young.

They then came after me and there was no one else to speak out for me.

  1. Ford DE, Mead LA, Chang PP, Cooper-Patrick L, Wang NY, Klag MJ. Depression is a risk factor for coronary artery disease in men: the precursors study. Archives of internal medicine. Jul 13 1998;158(13):1422-1426.
  2. Frank E, Dingle AD. Self-reported depression and suicide attempts among U.S. women physicians. The American journal of psychiatry. Dec 1999;156(12):1887-1894.
  3. Brewster JM. Prevalence of alcohol and other drug problems among physicians. JAMA : the journal of the American Medical Association. Apr 11 1986;255(14):1913-1920.
  4. Anthony J, Eaton W, Mandell W, al. e. Psychoactive Drug Dependence and abuse: More Common in Some Occupations than in Others? Journal of Employee Assistance Res.1992;1:148-186.
  5. Stinson F, DeBakely S, Steffens R. Prevalence of DSM-III-R Alcohol abuse and/or dependence among selected occupations. Alchohol Health Research World. 1992;16:165-172.
  6. Hughes PH, Brandenburg N, Baldwin DC, Jr., et al. Prevalence of substance use among US physicians. JAMA : the journal of the American Medical Association. May 6 1992;267(17):2333-2339.
  7. Kessler RC, Berglund P, Demler O, Jin R, Merikangas KR, Walters EE. Lifetime prevalence and age-of-onset distributions of DSM-IV disorders in the National Comorbidity Survey Replication.Archives of general psychiatry.Jun 2005;62(6):593-602.
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  10. Skipper GE, Weinmann W, Thierauf A, et al. Ethyl glucuronide: a biomarker to identify alcohol use by health professionals recovering from substance use disorders. Alcohol and alcoholism.Sep-Oct 2004;39(5):445-449.
  11. Skipper GE, Thon N, Dupont RL, Baxter L, Wurst FM. Phosphatidylethanol: the potential role in further evaluating low positive urinary ethyl glucuronide and ethyl sulfate results.Alcoholism, clinical and experimental research. Sep 2013;37(9):1582-1586.
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Michael Langan, M.D.

“Implicit faith belongs to fools, and truth is comprehended by examining principles”-Algernon Sidney (1683)

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The photo above was taken at the 104th Annual Meeting of the Federation of State Medical Boards (FSMB) held in San Diego April 28-30 and tweeted last night in reference to the partnership between the FSMB and the Federation of State Physician Health Programs (FSPHP) with the caption:

“How a healing profession heals itself #FSMB2016 partnerships #FSPHP trust and faith in oversight and system.”

Within the the allotted 140 character twitter limit this succinct observation is nevertheless very revelatory.   Both systems and the oversight of systems demand accountability and answerability to outside and independent agencies.  Trust and Faith are not in the equation.  Why has this lesson not been learned?

Answerability requires the obligation to answer questions regarding decisions and actions. Accountability requires transparency, explanation and justification. What was done and why?  Standards, rules, regulations, codes, laws and other objective benchmarks need to be applied by outside actors.  This is critical. It is the very essence of oversight.

“Trust and faith in oversight and system” is both  oxymoronic and nonsensical. “Faith and trust” in oversight equates with an “absence” of oversight.  “Faith and trust” in systems inevitably results in “systems failure” and therein lies the problem.

Blind faith and deference to authority has led to a systems failure  in the regulation of the medical profession.   Physician health programs (PHP’s) have convinced state medical boards to give them complete deference.  Medical board’s in turn have convinced state attorney generals and law enforcement to give them complete deference.  This has led to a complete systems failure.  No investigatory or oversight body exists.  No one is minding the minders. It is a complete and utter free for all.

Making sound decisions about regulation calls for an understanding of the problem it is intended to solve. Legitimate policy must be based on recognized institutions and experts. Regulatory changes demand methodologically sound science and evidence-based facts arrived at through rigorous peer review and professional oversight. The science must be reliable and unbiased. Legitimate policy must be based on recognized institutions and experts. If the information regulatory agencies rely on to discipline doctors and protect the public is unreliable then serious consequences can occur.

The validity and reliability of opinions lie in their underlying methodology and evidence base. Reliance on the personal authority of any expert or group of experts is the fallacy of appeal to authority and a more apt and accurate twitter caption to the photo above would be Algernon Sidney’s 1683 statement that:

“Implicit Faith belongs to Fools, and Truth is comprehended by examining Principles”

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Forensic Fraud Beyond Annie Dookhan–It’s Time to Wake up to the Reality of Systemic Corruption Between State Physician Health Programs (PHPs) and Drug-Testing Labs.

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The attached documents show the Massachusetts physician health program ( PHP), Physician Health Services, inc. (PHS) and a commercial drug testing lab United States Drug Testing Labs, inc. (USDTL) engaging in red-handed flagrant forensic fraud.

This is not lone-nut  Annie Dookhan drug-testing falsification  but misconduct indicative of top-down systemic corruption done via fax and thus appears to be standard operating procedure.

Screen Shot 2015-05-04 at 8.19.51 AMThe documents herein are part of a “litigation packet” (the documented chain-of-custody required for all forensic testing) for an alcohol biomarker test (PEth) drawn July 1, 2011 and reported as a positive on July 19, 2011 to the Massachusetts Board of Registration in Medicine (” Board”).  The “litigation packet”  is considered a legal document and it is generated in real time to document where, and under what conditions a given specimen is at a given time.

The documents here include  a faxed memo from PHS to USDTL 7/19/2011 requesting an identifying ID#  and a “chain of custody” be added to an already positive test.  Seldom is a document available that shows how the perpetrators of laboratory fraud do it–this is complete from start to finish.

A chain of custody is generated in real time. It cannot be done retroactively.

To do so constitutes fraud.

With no compunction, concern, or consternation this sociopathic mercenary subordinates science in order to put coins in his purse and complies with this improper request and adds a unique ID number to an already positive specimen.

Moreover, when the test was questioned the, PHP requested that USDTL support the test as a valid positive. And Joseph Jones did so with full knowledge there was no chain-of-custody and the ID # and date of collection were added.  The alliance is consistent with a civil conspiracy and the crimes are felonious.

The act is also flagrantly antithetical to the process of Medical Review Officer (MRO) review —one of the basic tenets required of all forensic drug tests and requisite to report one as positive.

But like an arsonist firefighter,  Jones does the exact opposite of what he is supposed to.   With complete disregard of the basic codes of conduct and MRO guidelines he reports as positive a test that would not meet the minimum requirements for an at home over-the -counter clinical lab to consumer test let alone let alone one of forensic import.

A test with multiple fatal flaws and no chain of custody, no collection date,and absent any clue of a unique identifier was in fact reported as a positive to please a client.  It is egregious, indefensible, and unconscionable.  It is illegal.  Most importantly it is immoral.

Positive drug and alcohol tests can end lifetime careers, tear apart families, and trigger suicides. And I am hearing of more and more suicides caused by these laboratory tests done by Dr. Jones and corrupt illegitimate authority like Dr. Sanchez.

The consequences are grave and far reaching.  An organizational culture capable of willing participation and continued support of forensic fraud cannot be trusted.

Cognizant that the consequences to the donor are significant and possibly irreversible and catastrophic exhibits a careless disregard for truth that is unconscionable.  That this was done without hesitation or thought is egregious.

It is purposeful and with undeniable malice. It represents institutional and sinister corruption. And it exemplifies the top-down sociopathic, predatory, and uncaring organizational culture that is undermining democracy and eroding civil liberties.

But the most disturbing fact of this is that those who should do something about it blind themselves.

The Board of Registration in Medicine protects Dr. Sanchez. He is apparently allowed to commit any crimes he wants and it is worth reading through all of the documentation as he compounds felonies over time.

The political abuse of psychiatry and false diagnoses are acts that violate the most basic and fundamental medical and social ethical codes. They should be met with zero tolerance by the medical community as well as society at large.

Remarkably the Massachusetts Department of Health and Human Services is also aware of this. Apparently learning nothing from the Annie Dookhan case, certain individuals have hemmed and hawed for over six months without any response in a torpid stasis.  As protectors of the public health one would think there would be some urgency to address the fact that a state contracted agency is engaging in undeniable laboratory misconduct and fraud.

The crimes are many and include state and federal crimes as well as violation of the HIPAA criminal statute as they changed a “forensic” sample to “clinical” in order to bypass chain of custody. They then changed it back to “forensic” and misrepresented it as such up until recently.

This needs to get be addressed outside the medical profession.  As  a society and culture within a society and culture the  prevalence of thinking has become destructive rather than ameliorative under the influence of the “impaired physicians movement.”    The ease with which pernicious ideas and attitudes have pervaded the regulatory and organizational and regulatory culture of medicine is frightening.

The fact that medical boards and public health department are aware of criminal acts being committed  by this “authority” yet do nothing to address its existence will inevitably lead to worse .

If dictatorships can be defined as systems in which there is a prevalence of thinking in destructive rather than ameliorative terms then the “physician wellness” paradigm” shoe fits.    There are multiple warning signs that the profession of medicine is becoming subordinated to the guiding philosophy of the “physician wellness” movement,

One thing is for certain.  There should be zero-tolerance for forensic fraud perpetrated by those in positions of power.   Any intentional laboratory fraud guided by malice is egregious but the scope and severity of what was done here involving collusion to fabricate evidence to coverup the crime, and concealment of the truth when the lab was forced to correct the test by an outside agency is  particularly egregious.    The fact that Dr. Luis Sanchez hid the fact that he was made aware of the corrected test on October 4, 2012 and  reported non-compliance with requirements that directly resulted from that very test for “damage control” under “color of law” is unconscionable.   But the fact that he did these things and lied about it is undeniable.  The facts are self-evident.

This is much worse than Annie Dookhan as her victims were abstractions.  She did not see the damage that resulted from her laboratory misconduct.  These people knew what they were doing, knew it was wrong and did it anyway.   And unlike Annie Dookhan, Sanchez saw the damage he was causing as that was his intent.

As far as I can find, these documents are the most elaborate and complete representation of the mechanics of forensic fraud. They show the sequential steps between the party requesting it and the response of the complicit lab.  The documents illustrate how easy laboratory misconduct is accomplished and the moral detachment of the involved parties.  The fact that it involves top-down corruption cannot be overestimated.

The most obvious crime is the violation of M.G.L 156 (B) section 69 involving reporting false statements.

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The fact that this was test was ordered as a “forensic” specimen then changed to a “clinical” specimen makes it a HIPPA violation as changing it to “clinical” created  “protected health information” (PHI).     In fact, the only reason I was able to obtain the October 4, 2012 document proving Dr. Sanchez lied was due to a change in the HIPPA-Privacy Rule enabling “patients’ to obtain laboratory results without authorization from the agency that ordered it.   Without this allowance Sanchez would still be maintaining he did not find out about the correction until December.   Well the documentary proof shows he lied.

Moreover, PHS is not a treatment provider and cannot order clinical specimens.  It is an ultra viresact outside of their designated scope of authority as a non-profit organization.

What Sanchez did here is also in violation of the HIPAA criminal statute.

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The elements of a criminal offense under HIPAA are fairly straightforward.  To commit a “criminal offense” under HIPAA, a person must knowingly and in violation of the HIPAA rules do one (or more) of the following three things.:  use or cause to be used a unique health identifier, obtain individually identifiable health information relating to an individual or disclose individually identifiable health information to another  person.   Criminal penalties under HIPAA, tiered in accordance with the seriousness of the offense, range from a fine of up to $50,000 and/or imprisonment up to a year for a simple violation to a fine up to $100,000 and/or imprisonment up to five years for an offense committed under a false pretense and a fine up to $250000 and/or imprisonment up to ten years for an offense committed with intent to sell, transfer, or use individually identifiable health information for commercial advantage , personal gain, or malicious harm.

Requesting the sample be changed to “clinical” created PHI and the fact that it was under false pretense and intended to cause malicious harm is quite evident.

Although PHS is not a covered entity Quest Diagnostics is and as a business associate they can be linked by the conspiracy statute:

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And that is why outside forces need to be involved. These are serious crimes and they have created serious consequences.  I have heard of multiple suicides in doctors caused by these tests.  How many doctors have died as a result of Jones colluding with  individuals just like Sanchez?   The results of these tests can have grave, far reaching and even permanent consequences.  They can ruin careers and destroy families.   Sanchez and Jones know this.  Their moral disengagement here shows an absence of empathy and complete disregard of what consequences may result.

The Board of Registration in Medicine is protecting Dr. Sanchez and the DPH has its head in the sand.

It is my understanding that groups like PHS have led law enforcement to believe that all matters involving doctors should be handled by the medical community.  This has created barriers as doctors reporting crimes have found it difficult to get them investigated or even reported let alone charged.

Law enforcement needs to address this. This needs to be exposed.

.I have been told that in other states where similar situations exist in which the truth is unable to penetrate the proper channels it should go directly to the Governor.

I would like to get these documents to Governor Charlie Baker and any help in making this happen would be appreciated.

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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 USDLT videopresentation.

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. TheyScreen 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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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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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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