(Dinner with Shirley MacLaine, Pamela Costello, M.D., and Bill Wolfe, D.D.S.)
Awhile back I reported that the New Mexico Medical Board was going after a prominent integrative medical practitioner because she was prescribing and selling herbal protocols as primary therapy for the treatment of various environmentally caused neurological conditions, supposedly in violation of the AMA ethical guidelines.
New Mexico is one of a handful of states that incorporates the AMA’s ethical guidelines as rules of practice, the violation of which are disciplinable offenses. Ironically, the AMA never intended its ethical precepts to be used as practice guidelines to discipline doctors. How do I know this? Easy, after each general ethical precept, the AMA places the following cautionary language: “The Opinions in this chapter are offered as ethics guidance for physicians and are not intended to establish standards of clinical practice or rules of law.” So why have some states like New Mexico decided to disregard the very limitations placed on these precepts by the AMA? Good question.
Ethical precept 9.6.4 puts severe restrictions on the sale and even the use of nutritional supplements. (I won’t repeat my detailed discussion of this section in my prior post http://rickjaffeesq.com/2017/03/22/can-cam-docs-legally-prescribe-and-sell-herbals-and-nutritional-supplements-as-therapy-without-bad-things-happening-prescribe-yes-sell-well-see/.)
The effect of the rule is to make it basically AMA unethical and New Mexico disciplinable for a physician to sell supplements out of his/her office or via a web site. Previously, when the New Mexico Medical Board found out about a physician’s sale of supplements via a Board complaint, the doc has been forced to stop, which apparently prompted a few to quit the state.
I got involved after the case was presented to a panel of the Board to see if there was a violation. Based on the AMA “guideline,” the panel gave the doctor the same ultimatum as it had to other docs: stop selling supplements or face formal charges. That didn’t make sense to me for a few reasons, not the least of which was that she wasn’t just selling supplements for general health or immune purposes. Rather, she was using natural remedies as primary therapy, which because of training requirement set by the manufacturer, the products were only sold to company trained practitioners for dispensing to their patients.
The AMA seems to cover this type of practice in precept 9.6.6 which allows the sale of drugs, devices and “other treatments.” That seemed like a better fit and it didn’t have all the anti-supplement nonsense contained in 9.6.4. So after I came into the case, we asked the prosecutor to re-present the case to the board panel. Because the Board’s statute of limitation to file the case was fast approaching we suggested we would be agreeable to waive the limitation period in the hopes he would ask the panel to change its mind based on this new information.
And then a funny thing happened…. Actually, nothing happened. We didn’t hear back from the prosecutor for over a month. We had expected to receive a formal waiver of the statute of limitations, to be signed by the doctor, and we would have advised her to sign it. The proposed settlement had contained such a waiver, and we expected to get a proposed written waiver. But we never got it. Instead, over a month later, we got basically the same settlement agreement with the same prohibition against the sale of supplements, and the same waiver of the statute of limitations as in the original settlement proposal, but this second settlement proposal was over a month after the statute of limitations had expired. Hmmm.
I decided to take another run at the prosecutor to change his mind about the case. I gave him case studies showing the miraculous results achieved by the doctor on non-functioning patients who tried and failed many conventional modalities. We also showed him that almost all New Mexico integrative practitioners were selling supplements for general health, in direct violation of the AMA rules. I even showed him that the University of New Mexico’s Integrative Medicine Clinic was selling supplements to patients, and the University was teaching medical students about the use of herbal remedies.
This case against the doctor arose because her office staff did not timely respond to the patient’s request for medical records. So I had the doctor take a medical records keeping course (which the board requested in the two settlement proposals) and offered that she would accept responsibility for the oversight, as a full settlement of the case.
But the prosecutor was a tough guy and insisted that she comply with the AMA supplement guideline, the way the other doctors faced with board action had done. As incentive (read threat), after he sent the first settlement proposal, he said that if she didn’t take the deal, he’d go after her license. When he finally filed the case, he made good on his threat by throwing in a charge of incompetence for using herbal remedies, which could result in license revocation.
Despite all my efforts at persuasion, I couldn’t get him to back-off. I started to think about an appropriate time to file a motion to dismiss based on his failure to timely file the case. Filing the motion wouldn’t make dealing with him or the Board any easier. But frankly, I was tired of all his crap about supplements and how he was going to take out my client for being a supplement distributor.
Maybe I was waiting for a sign, and I got it. On a routine email exchange on a Monday, he announced that he was leaving the board on Friday and going into private practice. That was good enough for me. The following Monday I filed a short motion to dismiss based on the fact that the complaint (called a “Notice of Contemplated Action” in New Mexico) was filed more than two years after the Board had notice of the patient complaint, which makes the case dismissible under New Mexico law. I’d let the new prosecutor figure out how to deal with the fact that his predecessor never presented us with a written waiver of the statute of limitations even though we offered to enter into such an agreement.
Turns out the Board didn’t have a replacement for him, so he ended up responding to our motion. Awkward! I didn’t think much of his responding papers.
The motion was to be heard by the full Board. I figured they wouldn’t be too fond of me or my client for trying to dismiss a case on a technicality, based on its mission to protect the public and considering the fact I did offer to enter into a waiver of the statute of limitations. I also didn’t think I had much of a chance to have the Board make a public finding that its own prosecutor screwed the pooch. Hmm. What to do?
I have a saying or rule which I try to follow. You have to give a board/judge the will and the way to rule for you. But even though my motion was legally correct, I had given the Board neither. After more thought, I figured it out. I filed another motion to dismiss in the interests of justice, and argued that the supplement issue was a matter of great public interest that was better addressed in a rule-making rather than a disciplinary process, in part because all integrative practitioners, including the University of New Mexico’s own clinic were already selling supplements. I also showed the Board the doctor’s truly impressive case studies. My goal was to go to the hearing and immediately pivot to the interest of justice motion, so as not to have to deal with the unpleasantness of the Board’s own prosecutor’s screw-up. It was a good plan, but it was not to be.
Things got really interesting right before the hearing. The prosecutor recused himself from the case because he was going to have to be a witness explaining why he didn’t obtain a written wavier of the statute of limitations from the doctor. (The irony was that Mr. Tough prosecutor charged the doctor with incompetence, and yet he was the one going before the Board testifying about his conduct and competence. Who says the universe doesn’t have a sense of humor and karma.)
The other super interesting thing was that one of the patients whom the doctor was dramatically helping is Shirley MacLaine. She lives part-time in New Mexico. As luck would have it, she was going to be in town on the day of the hearing. I insisted that the doctor contact her and try to have Shirley come to the hearing. It was going to be a very tough day with personal attacks directed my way, so some star power wouldn’t hurt. More metaphysically, based on her life and books, she seemed to be a very powerful force, (as in “the force is strong with that one”), and I really needed all the help on that front/dimension I could get.
We all showed-up at the hearing. My plan to pivot to the interest of justice motion failed. The Board insisted of focusing on the statute of limitations motion, despite my repeated efforts to talk about how the public would be better served by the Board considering the supplement issue in a rulemaking capacity and to dismiss the case to allow that process to take place.
As expected, as I argued that the prosecutor missed the deadline under the law, he as a witness and some of the Board members went after me, questioning my professionalism honesty and integrity. But zealous advocacy is the job, and taking some incoming is sometimes a part of it.
We went at it for over an hour and a half. The former prosecutor testified in effect that I was a sleaze ball, and me arguing that he didn’t do the one thing he had to do, get a written waiver, while imploring the Board we should really be talking about creating a public forum for input on the supplement issue.
For over an hour I got nowhere, or so it seemed, but then one Board member asked me a question which suggested that the former prosecutor should have gotten a written waiver, and I ran with it. Then the chairman of the Board asked me how important a right it was for someone to have statute of limitation protection, and how would that right best be protected. Terrific question! From then it was all downhill. Some of the other members starting asking similar questions, then the Board said they heard enough and excused us to go into executive session.
We waited almost half an hour. In the lobby, some board employees came out from their offices to meet Shirley. She was gracious and engaging. We both chatted-up the new prosecutor, whom I’d be dealing with if the Board denied our motion. Shirley was apparently fascinated by the proceeding. She had never been to a board hearing or seen the kind of legal back and forth. She told the prosecutor she was going to do a feature film about the case, and asked the prosecutor – a fit and attractive woman of Hispanic decent, who she wanted to play her in the movie. They prosecutor loved it. They had a lengthy discussion about different actresses and they decided that Jennifer Lopez would be offered the part. We had a great time waiting, laughing so loud at times that the Board members inside must have wondered what was going on.
Finally, we were called back into the room. The chairman announced that they were going to vote on two motions. Ok, I had only argued one, but I had put in strong papers on my interest of justice motion. The first motion was the limitations motion. One-by-one they voted. We lost that vote by a wide margin.
Then the chairman called a vote on a motion to terminate the proceedings against the doctor. No interests of justice, no nothing, just a motion to end the case. We won that motion by a wide margin. And so the case against the doctor ended. It took a while for it to sink in. We thanked the board profusely.
You know the saying “when you make the sale, sit down.” Well I don’t subscribe to it. I wasn’t done. I told the Board members that I hoped they would consider the physician sale of supplements issue because integrative physicians and the people of New Mexico deserved to have input. In response, the Board chairman told us that the Board had decided to address the issue at an upcoming meeting, and, he invited me to return and make a presentation to the Board. I immediately accepted.
Finally, I told the Board members that I was giving them all homework. They had to decide who they wanted to play them in the movie. Everyone got a good laugh, and I’m sure they left the meeting amused and had a good story to tell their families.
I’m hoping to enlist some of the American College of Nutrition luminaries and other of my high-profile integrative physician friends to take a trip to Santa Fe and help make the case for rescinding that idiotic AMA “guideline.”
And finally, the one burning question which I’m sure is on everyone’s mind:
Who’s going to play me? George, Brad or Ben.
Happy Independence Day to you Dr. Pamela Costello, holistic neurologist extraordinaire, and thank you Shirley MacLaine.
Rick Jaffe, Esq.