Social Media is abuzz with posts from parents who have received a certified letter from the Medical Board of California demanding that they sign an enclosed release which authorizes their child’s physician to release his/her medical records to the Board.
What should you do?
Actually, for a variety of reasons, I am not going to tell you what to do or give you legal advice of any kind. What I am going to do is lay out a decision tree providing you with some information which may help you decide.
That means the California Medical Board has to first ask the patient’s permission to obtain the records. Most of the time, that isn’t an issue, since many Board investigations are started by a patient complaint, so the patient is obviously willing to have the Board review his/her medical records. But if someone other than the patient complains, well then it becomes an issue. In vaccine exemption Board investigations, the complaints almost never come from the patients, but rather from school nurses or the child’s PCP, most often an HMO.
So, in these cases, the Board is obligated ask the family for a waiver/permission to obtain your child’s medical records. The letter mentions subpoenas and legal process. These letters are meant to intimate you but are vague enough so as not to make a direct threat against you. All with an eye to maximize the chance that the family will comply and send back the release/waiver.
Here is how you should analyze the letter.
You have two options:
Option 1: sign the release and send it back to the Board.
The Board will send the release to the physician, and the physician will be obligated to send the medical records to the Board. The records will be reviewed by a medical consultant. If the care involves, let’s say, a medical vaccine exemption beyond the CDC contraindications, (or to make it even more simple, if it is a permanent exemption from all childhood vaccines), the medical consultant will conclude that the exemption was not within the standard of care. Eventually, the doctor will be charged with a Board violation.
Option 2: Do nothing.
If you do nothing, for sure in a few weeks to a month or two, you will receive the same letter again. If you continue to do nothing, then either 1. That will be the end of it, or 2. It’s possible, that you might get a visit from a board investigator who will you ask you in person to sign the form. (I suppose another option would be to write back and say you don’t agree to release the records, which may or may not avoid an Board investigator’s visit)
You have two choices:
Choice 1: Sign the form
Choice 2: Tell the investigator that you’re not going to sign and politely ask him to leave. If you do, he/she will indicate in the most authoritative/mildly intimidating tone that he/she is going to have to subpoena the records from your child’s physician.
You have two possible responses:
Response 1: Sign the release
Response 2: Tell him you’re still not going to sign, and again politely tell him to leave.
What happens to you if you chose Response 2?
NOTHING. You do not have the medical records he/she seeks, so there is nothing the Board can do to you or your family.
In short, you are NOT legally obligated to sign the waiver to release your child’s medical records, and there will be no consequences to you if you refuse to do so.
What happens to my child’s physician if I do not sign the waiver?
The board will serve your child’s physician with a subpoena for the records. The physician may or may not comply. If you do not want your physician to comply, after you receive the letter from the Board, inform your doctor about the request and tell him that you do not agree to have your child’s medical records released to the Board.
At some point, the Board will go to court to compel the physician to turn over the records. Candidly, there is a very good chance that the court will side with the Board.
But that’s not your problem and is not necessarily directly relevant to your options and decision as to what you should do if you receive that Board letter.
It’s been two years since California rescinded the personal belief vaccine exemption, so since the fall of 2016, vaccine-concerned (VC) parents of school aged kids have needed to find a physician to write vaccine medical exemptions for their children.
Right after the new law went into effect, the California Medical board filed charges against one of the most prominent VC docs, Bob Sears, for writing a court-case related letter excusing a child for all future vaccination based on the mother’s report of two serious adverse events. The non-custodial father filed the complaint. The case made many docs who wrote exemptions nervous and caused some lawyers to advise their doctor clients to stop writing exemptions. Some became more nervous when Dr. Sears agreed to a significant board sanction, (including monitoring of his practice) earlier this summer. Unfortunately, despite the sanction and monitoring, according to Dr. Sears’ facebook page, the board is investigating him for several other complaints involving exemptions. (In full disclosure, I worked on Bob’s case for awhile, but everything in this post is based on publicly available information).
While all this was happening, the medical board and other state and county health agencies were looking for information about other doctors who were writing medical exemptions. They haven’t been very successful, in part because of federal school privacy laws which restrict schools from releasing student medical information,(The law’s acronym is “FERPA”), and perhaps more importantly, because one California lawyer has made it his personal crusade to help parents protect their children’s school privacy rights. (That would be Greg Glaser, Esq.)
FERPA and Greg’s protection has made it somewhat difficult for the board to take action against other doctors, because the board needs a complaint about a specific patient to open an investigation. Normally, a complaint-based investigation is limited to the patient who is the subject of the complaint. Once there is a complaint, the Board can obtain the physician’s medical records for the patient who is the subject of the complaint, either by the consent of the parents, or via a subpoena for the records served on the doc. Many docs have refused to comply with these subpoenas, citing patient privacy and lack of patient consent. Recent court cases have ordered physicians to produce patient medical records, even over the objections of the patients/parents. That makes California like all or almost all other states, in that a medical board can obtain patient medical records for a pending board investigation, and investigations are commenced by someone filing a complaint regarding a specific patient.
The normal board practice in California and other states has been to limit the investigation to the subject of the complaint.
But apparently not any more!
The board has just served a California doctor with something called “Investigative Interrogatories” and is demanding that the physician give the name and contact information of every patient for whom the physician has written a medical exemption. This seems unprecedented in California medical board practice or case law, and arguably beyond the board’s statutory authority, but that’s what the board is doing.
Why is the board doing it? Like I said, it’s been two years since the elimination of the personal belief exemption, and the board has only disciplined one doctor, despite the fact that there are still many thousands of seemingly healthy children who are medically vaccine exempt. So maybe the board is feeling the heat from the Legislature or the state and county departments of health. And because of federal FERPA school privacy laws, the aforementioned Greg Glaser, Esq., and the fact that the board can’t investigate without a specific complaint, the board may see this new tactic as a faster and more efficient process to identify the main vaccine exemption writing docs and bring them before the board on charges on dozens (or more) cases at one hearing. Seems like this could be a big problem for the vaccine writing docs.
I’ve been tasked to stop it.
If the board doesn’t back down, we’ll end up in court, or more likely two courts (superior court and the appellate court), as the loser will surely appeal.
It’s going to be interesting.
Rick Jaffe, Esq.
And by the way, if a vaccine exemption writing doctor complies and turns over the contact information of every patient who has received an exemption, seems like a good bet that the board investigators will start calling the families of every medically vaccine exempted patient and seek their permission for their physician to release the medical records. I predict no parents will agree to do so (except perhaps post-divorce pro-vax, non-custodial parents). Absent parental consent, the medical records of these patients will be subpoenaed by the board. The doctor may resist, but ultimately the courts are likely to grant the board’s request to enforce the subpoena. After the records are reviewed by a conventional doctor, there will be a recorded interview with the physician with medical board personnel asking about the rationale for all these exemptions. A few months after the interview, a board complaint (called an Accusation in California) will be filed, charging the doctor with incompetence, gross negligence, and repeated acts of negligence in writing vaccine exemptions not in accordance with the standard of care, which means the contraindications listed on each vaccine’s label (which includes the package insert). That is essentially the opinion of the main pediatric and family medicine trade associations and the CDC. News flash: these groups basically don’t think there is any medical justification for writing a vaccine exemption for a healthy child. So a doctor facing one of these Investigative Interrogatory requests might be better off trying to stop this before it snowballs into a mega case involving dozens or hundreds of patients.
That’s the question that will be answered in a California medical board case I am trying this week in downtown Los Angeles.
Back in 1996, California became the first state to allow for a doctor to recommend medical marijuana for patients with serious medical conditions. There was a lot of confusion initially as to what was required to issue the recommendation without getting into board trouble. The California law (called prop 215) by its terms granted physicians immunity from prosecution or even investigation based on their writing a medical marijuana recommendations. (Because it is a schedule I drug, it can’t be technically “prescribed.”).
Notwithstanding the immunity, doctors were prosecuted by the board for writing these recommendations. The administrative law judges, the medical board and the courts allowed for these prosecutions on the theory that if a doctor doesn’t follow standard medical procedure in making the recommendation, he or she is subject to discipline. To some it’s a very subtle distinction, but it does reflect the state of the law in California. Basically a physician has to go through the same kind of analysis and procedure to make the recommendation as he/she would for any other therapeutic recommendation. That means, a history and physical appropriate to the mental condition, informed consent, a treatment plan, follow up, and adequate medical records. Presumably, if the doctor does all that, then theoretically he or she shouldn’t be prosecuted or investigated, just because the treatment recommendation was medical marijuana.
Here are the facts of the case being tried this week
A father brings his son to see the physician. The father is a long-standing patient and has a prop 215 medical marijuana letter from the physician. He explains that the school has told him that his child is so disruptive they’re not going to let him back unless he’s put on medication. He is also disruptive at home. The physician examines the child, obtains history from the father, and observes the child for around 20 minutes, and then agrees to write the recommendation. The father signs a detailed informed consent, and the physician has typed medical record evidencing the history and exam, and states as the diagnosis probable bipolar/ADHD. (back in 2012 they didn’t have any better diagnostics possibilities)
The parents give the kid a small cookie with some marijuana in it before school each day.
miracle of miracles, the child is no longer disruptive in class and he becomes a model student. But it wears off towards the end of the day, so the school requests that the child receive a second dose after lunch.
The school doesn’t know the kid is on MM. The father naively goes to school and gives the teacher a MM cookie and asks that it be given to his child.
You guessed it!
The school freaks out, call the sheriff’s department, which opens up a criminal investigation of the father. It also calls CPS (child protection service) which obtains a temporary removal order for all four kids. The mother then takes the kids out of state, and the sheriff’s office pursues criminal charges against the father. The father sues back. Eventually, the family returns, the CPS order is dropped, and the father settles with his prosecutors. But there was a lot of collateral damage. The parents get divorced. The child has to be involuntarily committed for a few days because of rage and aggression (he hasn’t been on MM since it was originally given to him several years before his commitment), and he’s diagnosed with a newly established medical condition. All the kids and the father now live with his parents. The father is now being prosecuted for cultivation. The child is still on bad shape because the parents are refusing Ritalin or other drug therapy, and the doctor won’t write another MM recommendation.
(And by the way, the cops file a complaint against the doctor with the medical board.)
Those are some tough facts. Our experts think that all this harm was caused by the overreaction of the authorities. The Board of course blames the doctor. Neither of the Board’s experts appear to have any experience with small children (they are family practitioners) and neither think MM should be used for anything, because of insufficient peer review literature support.
We one of the country’s leading MM experts, Jeff Hergenrather, M.D. and a physician who ran the UC PACE program for physician training and rehabilitation. Doesn’t seem like a close case expert-wise.
There’s also the little matter that the case may have been filed 8 days after the statute of limitations expired. In fairness, I did spend some time resisting providing medical records (like over two years), but the statute of limitations is a harsh mistress.
Anyway, it should be an interesting case. If any of my friends happen to be in downtown LA this week, stop by: Office of Administrative Hearings, 320 West Fourth Street, Suite 630; Tomorrow (Wednesday) through Friday.
I’ll bring the popcorn!
Rick Jaffe, Esq.
I hear that a lot from CAM docs. There is nothing more emotionally satisfying for a doc being prosecuted/persecuted by a medical board than to turn the tables and sue the board, its ignorant and venal board members and its executive director. Aside from the pure joy for the doc, isn’t the best defense a good offense?
Good sentiment for sure, but regrettably, two problems
First, board members are typically immune from damage awards regarding their decisions. That brings up a related but often forgotten point. Usually, docs want to sue the board after the informal settlement conference has failed to dismiss the investigation, or right after the board staff files the administrative case. But at this juncture, most of the board members haven’t even heard of the doc and only will learn about the case after an administrative judge issues a proposed decision.
But we’re suing in part to stop the bastards from ruling against me in the future and interfering with my right to practice, right?
That leads to the second problem, and here’s the short of it: No court has ever or will ever stop an on-going medical board proceeding.
But what if the board hasn’t followed its own rules in filing the administrative complaint against me?
Doesn’t matter. The reason, in legal parlance is ripeness (maybe also failure to exhaust administrative remedies).
Until the board makes an actual and enforceable decision on your case, there is nothing for the Court to do, because the board hasn’t taken final action, and courts only review final actions of administrative agencies, (unless specifically granted the authority to do so, and that’s almost never the case). Maybe the administrative judge and the board will agree with you after a hearing. That’s the way the courts look at it, so they wait until the board makes its decision.
But filing the case against me is public and hurts my reputation and I’m being injured now even without a final board decision.
Sorry, but that doesn’t matter. Having an administrative case or even a criminal case filed against you is not something which can be stopped by another court just because you think the board or prosecutor is wrong, out to get you, or even if you think you will suffer harm because there is a pending case against you. Very sorry, but the law just doesn’t stop cases against people because the case might injure a person’s reputation or business.
So whatever tactical reasons there might be for suing the board which has or is about to file a case against a doc, expecting that a court will actually stop the board from proceeding with its case is not realistic; it’s just not going to happen.
There might be other reasons to sue the board: Maybe you think you can wear a government agency down. Maybe you want to show that you’re a tough guy. Or maybe (and this is my personal favorite) you have such a deep respect for the legal profession, and such gratitude for the noble attorneys who defend CAM docs that you want to make a substantial contribution to their well-being.
Well, if that’s your motivation, then I say go for it!
But know that the trial court is going to deny your request to stop the board from proceeding against you, the appellate court will affirm the dismissal, and neither the state supreme court nor the U.S. Supreme court will hear your case (in case you want to make a really, really big contribution to your attorney’s financial well-being).
>Antitrust to the Rescue?
Well what about this new antitrust deal?
A new or developing thing is trying to sue boards for antitrust violations. Every CAM doc has heard that a couple years back the Supreme Court upheld the FTC’s suit against the North Carolina Dental Board’s because it tried to stop non dentists from offering teeth whitening at shopping malls. Here is the Supreme Court’s decision:
So why can’t I sue the board for antitrust restraint of trade for trying to put me out business; the board is restraining my trade?
It’s a fair question. I could tell you the answer in a one word sentence, but better to give some background and analytical tools, so you can understand what’s required to present a viable antitrust claim.
You can’t sue the state government for antitrust (and neither can the federal government)
States cannot be sued for antitrust violations. Congress understood that it couldn’t prohibit all state regulation which displaced or affected competition. This limitation of federal antitrust law was laid out by the Supreme Court in Parker v. Brown in 1943.
But what about state agencies like the medical boards which are usually controlled by professionals who are competing with the people the board is targeting?
Very good grasshopper! That was exactly the question raised and answered in the North Carolina Dental Board case.
The Federal Trade Commission sued the North Carolina Dental Board for restraint of trade because it had sent warning letters to shopping mall dental whitening stores which services were not performed by dentists. North Carolina law didn’t specifically say that teeth whitening was the practice of dentistry.
The Board tried to wrap itself in the Parker v Brown state immunity from antitrust liability mantle. But the Supreme Court said no. It held that because the dental board was controlled by “active participants” (meaning competitors of the mall dental whitening places) and because the board’s decisions were not “actively supervised” by some higher authority, the dental board was not entitled to state immunity from antitrust liability.
Not only did the Supreme Court hold that the dental board could be sued for antitrust, the FTC found that the dental board did illegally interfere with competition and ordered it to stop. So it was a complete loss for the North Carolina Dental Board.
Two questions: First, what does it mean for a board to be actively supervised? The FTC has published some guidelines. Here they are.
But I can tell you that in a state like California, where the Medical Board’s decisions are final, and can only be reversed by a superior court judge, that’s not active supervision.
The second and big point is just because a board is not immune from antitrust liability doesn’t mean that any tom, dick or doc can assert a viable antitrust claim; you still have to plausibly assert all the requisite elements of an antitrust violation. And that my friends is where an antitrust case filed in response to an administrative complaint against a doc runs into trouble.
Restraints of trade as would be asserted by a doc against a medical board would be evaluated under a “rule of reason” analysis, meaning the court considers the net effect of the restraint on “competition.” The oft-repeated mantra in antitrust jurisprudence is that “the antitrust laws protect competition, not competitors.”
An antitrust plaintiff cannot assert a valid antitrust claim, let alone win, by alleging that the restrictive action by the board harmed the doc. The doc would have to show how the board’s action harmed competition or the type of services generally.
In a board administrative case, especially one that hasn’t yet resulted in an adverse order, it’s going to be hard-to-impossible to show injury to anyone but the suing doc, (and that assumes a court would find injury to the doc, which is doubtful since the board hasn’t done anything, if the antitrust action is filed before the board makes a final decision).
To see if your case involves harm to competition, do a thought experiment: Forget about your case. What’s left? If your case is the main part of the claim, and there aren’t many other practitioners who are being subjected to the same thing, then the case doesn’t impact competition.
Well what about the chilling effect the case will have on other CAM docs, or the fact that this case will be a “springboard” to other cases?
Sorry, the courts have rejected that argument, because it’s too speculative. Here are two cases where the doc sued the board for antitrust, and got thrown out of court for lack of antitrust injury, despite their springboard or chilling effect argument.
There has to be hard and specific evidence of that the board’s actions will have a negative effect on competition, like there was in the North Carolina Dental Board case where the stated purpose of the warning letters was to put the non-dentist teeth whitening clinics out of business.
North Carolina provides another example of what it takes to successfully allege an antitrust case against a professional board. The North Carolina Acupuncture Board, at the behest of the acupuncture trade association sent out letters to physical therapists to cease and desist doing “dry needling” because the acupuncturists thought that the technique belonged to them exclusively. The PTs sued for antitrust violations. The acupuncture board tried to dismiss the case, but the judge allowed the antitrust part of the case to go forward, because the PTs alleged antitrust injury, i.e. the board’s action alleged a specific negative effect on competition, not just an individual PT. Here is the case:
1. If a board tries to stop a group of providers not licensed by the board but which offers the same services of the board’s active participants, that states antitrust injury and a viable antitrust claim (assuming the other requirements are met, but
2. It is impossible, or close to it, for a doc to successfully sue a medical board for antitrust violations if the basis of the antitrust suit is that the board has started or is about to start a disciplinary action against him/her.
So if you’re going to sue a board for antitrust because the board has started a disciplinary action against you, have a realistic idea of what you can get out of it, and what you won’t.
On March 3, 2017, the Texas Medical Board (TMB) will decide on a sanction for Stanislaw Burzynski, M.D. Ph.D. in the current case against him. Because I am his long-time former attorney who handled both of his prior medical board cases and was the attorney on this case until a few months before the hearing, I have a unique perspective. But there’s a caveat: I am still bound by the attorney/client privilege. However, it’s a free country, and I can give my opinion based on public documents, what was told to me by people on the other side, and my perspective.
Some Background about Medical Board Cases
Over the last three plus decades I have defended medical mavericks in board cases in maybe thirty states. In most states, medical board investigators investigate the complaints and a panel of the medical board members decides whether a complaint will be prosecuted. Medical board cases are prosecuted by the medical board’s litigation department (like in Texas) or the state attorney general’s office (e.g., California). Ultimately, the members of the medical board decide the case, usually advised by the medical board’s general counsel (like in Texas) who is the boss of the litigation department, which prosecutes the case. Very cozy and efficient isn’t it?
The above cartoon is how it looks from the defense table in these cases.
In fairness, most states now have an administrative law judge (ALJ) who is independent of the board, and who either hears the case, or advises the board members about the legal issues (Washington is an example of the later). But even in states where the ALJ hears the case and issues a decision, the ALJ is just issuing a “proposal for decision” (PFD) which is sent to the board for review. In most states, the boards have almost complete discretion to accept or reject all or any part of the ALJ’s PFD, and can simply write its own decision based on the record in the case (like in California).
The frustration for defense counsel in these administrative cases is that you could get a perfectly reasonable decision from a neutral, professional judge, only to have it completely rejected by the medical board, just because….
However, the board’s reinstatement lasted less than two hours. We got an immediate TRO freezing the board’s decision, then a preliminary injunction pending the protracted appeals process. By the time the Court of Appeals affirmed the board’s order two years later, it was moot and no longer had any practical effect. (Described in detail in my book). I don’t think the board was happy with Burzynski or his lawyer.
Many years later, in its 2011 legislative session, the Texas Legislature recognized the general problem of the medical board making arbitrary changes to ALJ’s decisions and passed a compromise, partial fix. Before I tell you the fix, here’s what you need to know about administrative law decisions, regardless of whether they are made by a judge or a board. Each decision has three parts: findings of fact, conclusions of law, and a sanction (if a violation is found).
Prior to the 2011 change in the law, the TMB like most administrative agencies, could accept, reject or change any of the three components of an ALJ’s PFD. However, after the 2011 change, the TMB lost its ability to alter or reject a finding of fact or a conclusion of law. The compromise was that Texas ALJs could no longer issue proposed sanctions. The upshot was that if the ALJ found no violations, the TMB’s only remedy was to appeal the ALJ’s decision to the Texas district court, and good luck with that.
On the other hand, if an ALJ sustains some allegations of misconduct, meaning the judge issues findings of fact and conclusions of law against the doc, the Board decides the sanction.
Burzynski/Medical Board: Round 2
The TMB went after Dr. Burzynski again between 2010 and 2012, and that case was governed by the new law. Right before the hearing in April 2012, I received a favorable legal ruling which effectively cut the heart out of the board’s case. Because the ruling was unchangeable by the board based on the 2011 law, the board was forced to withdraw its case against Burzynski. That was very good for us, because it’s always better not try a board case. It was even better because the medical board was forced to dismiss its own case.
It was probably sort of humiliating for the TMB since many in the medical establishment and the quack busters/sceptics were adamant that that Dr. Burzynski’s license be revoked and that his clinic be shut down. The board didn’t get it done.
After losing that case, the TMB almost immediately went after Burzynski again. This was a continuation of what the various branches of government had done to him in the 80’s and 90’s. I called it “whack-a-mole” in my aforementioned book.
So starting in 2013-2014 the board began anew. It started with a simple complaint piggybacking on some warning letter the FDA wrote about Burzynski’s web site promoting the clinical trials. The board claimed that the FDA letter was proof of false advertising under state law or the letters themselves were actionable.
Then the case metastasized into a 204 page complaint, alleging hundreds of violations for dozens of patients both in and out of clinical trials, ethical clinical trials violations, advertising violations, and billing insurance violations. It was a cacophonous symphony of crazy medical propositions (like that after a patient had brain surgery which successfully, but temporarily removed a malignant brain tumor, it was wrong for Burzynski to treat him without another brain biopsy, even though those brain tumors inevitably grow back and he already had radiological evidence of recurrence), and inane medical theories, (like all of his cancer patients in his private medical practice had to be on clinical trials). It was probably the longest and most over-the-top complaint ever filed by the board, but our answer was also probably the longest and most detailed.
It was evident from the tone of the complaint and confirmed by conversations with staff that the TMB was out to ruin Burzynski and show the entire country that his treatment didn’t work, that he knew it, and that he was a fraud and charlatan, preying on the most vulnerable, the terminally ill. The stated goal was to thoroughly discredit him, his treatment and his clinic in such a forceful manner that the revocation of his license, which was the goal, could not be questioned by any reasonable person. It seemed to me these guys were also looking for payback for their previous legal failures and the prior failures of the Department of Health and various other state and federal agencies to put him out of business. (And I take part of the blame/credit for helping that not happening).
When you’ve got lemons, make lemonade, so this case was an opportunity to show that Dr. Burzynski was a medical pioneer, that he was helping some, and in fact saving the lives of patients who would have died without him.
I worked on and prepared the case for the better part of two years. I left the case a few months before the hearing and was replaced by a team of lawyers from two highly regarded boutique law firms. The head of the team was Dan Cogdell, a luminary in the Texas criminal defense bar. We had worked together on Burzynski’s two federal criminal trials in the mid 1990’s. Over the decades, I have met a few lawyers as good as Cogdell, but never anyone better.
I lost touch with the case, but was pleased to learn that in October 2016, ALJs threw out all of the serious accusations and especially the alleged standard of violations which allegations I thought were idiotic, and most of the dozens if not hundreds of specific misconduct alleged against Burzynski. But the judges did sustain eight or so relatively minor offenses, like failure to supervise unlicensed physicians, aiding and abetting the unlicensed practice of medicine, some specific informed consent charges, and some inadequate documentation. Here is the decision. https://cis.soah.texas.gov/dmwebbasic/tokweb27.ASP?WCI=opendocument&SKEY=407545_0_9_63&localtimezone=480
The press considered the decision a victory for Burzynski and major defeat and embarrassment for the board. Despite all the bluster in the board’s complaint about what a quack and charlatan Burzynski was and how he was hurting patients and conducting illegal and unethical human experimentation, the ALJs rejected all of those charges. The ever colorful and entertaining Cogdell was quoted as saying that the decision was a pimple not cancer.
Perhaps most rewarding as the former attorney were the ALJs findings that Burzynski was a medical pioneer and had helped some of his patients, which is exactly what we told the judges we’d prove from the get-go. Based on the ALJs’ decision, Cogdell and his diligent, highly skilled trial team did excellent work, and Burzynski and his patients have much to be thankful for.
So this is now the third time in twenty plus years that the TMB has tried and failed to prove that Burzynski is providing a worthless treatment and/or is hurting people, and the second time a judge found that he was helping people (the first being the original board case).
But per the Texas administrative rules discussed above, because the ALJs did sustain some charges, the Board gets to decide on the sanction.
Like many medical boards around the country, the TMB publishes disciplinary guidelines. http://texreg.sos.state.tx.us/fids/201505185-1.html.
The guidelines have a have a low and a high range of sanctions. Many sanction even on the low range seem onerous to me. Some of the sanctions on the high range seem crazy oppressive for some relatively minor violations.
Not surprisingly, board staff prosecutors are asking for severe sanctions; stayed license revocation, pending completion of a lengthy probation period, $360,000 in fines, restitution of almost 20k, oppressive monitoring, informed consent approval, plus the standard CME course work and passing the jurisprudence exam. (The board staff’s proposed sanction awaiting the board’s signature on March 3rd is attached as a pdf at the end). My view is that the way the proposed order is written, he’ll never get out from under it, which is exactly what the board intends.
My problem with board staff’s proposal is threefold. First, structurally, the board is wearing too many hats. The board decided to prosecute to case, prosecuted the case and now gets to decide the sanction. Legal though it is technically, I have a general problem with that. I think most reasonable people would think that the same entity which investigates, decides to prosecutes, and prosecutes shouldn’t decide on the sanction. The fact that there are nominally separate departments doesn’t change the inherent lack of fairness in the process. It’s only in administrative law, which has fewer constitutional protections than regular legal proceedings, that the government can get away with this kind of thing.
My specific problem is that people are only human. I don’t see how the board can be fair, given its prior – let’s say, unsatisfying previous experience with Dr. Burzynski. The proposed sanction order was drafted by or under the supervision of the Board’s head of litigation, who works under the board’s general counsel, who by the way, was the head of litigation who worked out the dismissal of its 2012 case against Burzynski.
I know and like these guys, and most of the board’s attorneys are competent and diligent (though they are overworked and underpaid, if anyone in the Legislature is listening). I also respect the many members of the TMB whom I’ve appeared before, but still…. I don’t see how they can be objective in this case. Despite their politeness and overt professionalism, I’ve sensed a great deal of ill will towards Dr. Burzynski, probably in part because, heretofore, things haven’t gone as they and Burzynski haters have hoped. Based on media reports, many in the mainstream fault the board for the fact that Burzynski is still out there. I think that will color the board’s judgment in deciding on the sanction.
My other problem is that I think, generally speaking, conventional medical professionals do a poor job properly evaluating and valuing medical mavericks. Board members in all or most states are picked by the governor. They aren’t necessarily the best or smartest physicians. Generally, the governors pick politically connected docs and/or those who package the most money for the Governor’s election campaign. They are typically medical insiders who know how to get along, and who are in the high priesthood of what I call the church of medical orthodoxy. Their orientation is not forward thinking, and in the case of Texas, I think the medical board unnecessarily stifles medical innovation.
But it’s not just me saying so. In both the current Burzynski case and the case in the 90’s, the ALJs questioned how medical progress would occur if the board could sanction a doctor like Burzynski for being an innovator. It’s a point which the Texas Legislature should take to heart.
So what’s the solution?
The Texas legislature should finish the job it started back in 2011. Change the law and let the ALJs decide the whole medical disciplinary case. If the board doesn’t like the result, let it appeal to the courts (with the aforementioned “good luck”). Texas ALJs are very, very good, (even if they occasionally don’t see the brilliance of my arguments or the righteousness of my clients). Plus, as discussed, there are written guidelines with high and low sanction levels and exacerbating and mitigating factors. Public health will be well-protected by allowing Texas ALJs to decide the entirety of medical disciplinary cases.
Sunset review won’t help Burzynski next week, but I think if some of the TMB savvy legislators like Bill Zedler or Lois Kolkhorst, or even a formidable guy like Lt. Governor Dan Patrick (whose show I recall doing a long time ago) take an interest in this case and let the board know they’re watching, and that this could be the last case the board ever decides, maybe just maybe……
The elimination of the PBE (personal belief exemption) via SB 277 has put a lot of pressure on vaccine concerned California pediatricians to write medical exemptions for the children of vaccine concerned parents. The recently dismissed San Diego federal anti-SB 277 lawsuit showed that at least one school board is collecting information about the docs who write these medical exemptions and will forward the information to the medical board for prosecution.
Based on some non-binding legislative history, and some personal discussions with legislators, the vaccine concerned community was hoping that the medical board could not or would not assert jurisdiction over docs who write these exemptions. That seemed completely unrealistic to me based on my experience dealing with medical boards. These guys just don’t give up jurisdiction on their licensees’ conduct.
In case you had any doubts, the board has made it official in its recent executive summary. Here is its position which couldn’t be clearer:
“The passage of two legislative bills increased the Board’s authority to investigate allegations of misconduct. * * *
In addition, SB 277 (Pan and Allen, Chapter 35) effective January 1, 2016, deleted the personal belief exemption from the existing immunization requirements. The Board will investigate any complaints in which a physician may not be following the standard of care in these two new areas.”
(From page 6: http://www.mbc.ca.gov/Publications/Annual_Reports/annual_report_2015-2016.pdf)
So there you have it. It’s basically open season on docs who write full vaccine exemptions, because according the pediatrician groups and the CDC, there are almost no medically justifiable reasons to excuse a child from all childhood vaccinations.
So what can be done about it? In the very short term, nothing really. Many pediatricians will probably be wary of writing medical exemptions.
Still, here are a couple hints. If your child had some prior vaccinations and had a serious adverse event associated with (not necessarily provably caused by) a prior vaccine, you may be able to obtain an exemption from the right doc, which decision would be literature supported. Make sure you bring documentary proof of the prior adverse event(s). The doc will need it for his records. Prior auto immune problems in the child or family members? That might help as well. Again, bring documentation. Help your pediatrician make the case and help him document the exemption. That’s the best protection for you and your doc. Admittedly, right now there is no medical board authority indicating that this would justify or exculpate a doc who writes an exemption on this basis, but I hope to change that within the next six months, in connection with my work on the current medical board case I’m working on, so stay tuned.
Next, an obvious mid-term solution is to amend SB 277 by making medical exemption decisions unreviewable by the medical board. As stated, there is some legislative history indicating that SB 277 was not intended to have the medical board second-guess the decisions of docs who write these medical exemptions. Realistically, passing such an amendment is a long-shot, but it’s time, energy and money better spent that filing another frivolous SB 277 constitutional challenge. (By the way, whatever happened to the dismissed San Diego federal lawsuit which was supposed to be refiled October 1st?) My suggestion: start working your legislators to get some feedback on whether it’s a possibility. If it is, that’s where the community should put its efforts and money.
Finally, there’s a soon-to-be publicly announced group of vaccine concerned docs, which is open to the public. It’s called Physicians for Informed Consent.
These folks have done more good for the vaccine concerned community even before they’ve officially started than all the lawsuits combined, but I can’t talk about that now. Go to their Facebook page, sign up and support them. They have and will continue to make a difference.
“I represent Dr. Bob Sears in the California Medical Board’s case against him for writing a medical exemption from vaccination.
We take the board’s accusation seriously. But this case is very clear: this child had two unusual and severe vaccine reactions and his situation warranted a medical exemption. To continue vaccination could have put the child at risk of further harm.
All physicians have an ethical duty to do no harm to a patient. This is no less true when a child suffers serious side effects from any medical intervention.
We anticipate this case will do much to further public education on the importance of recognizing severe vaccine reactions and providing informed consent for medical care. ”
(I’m just kidding, but the proponents selling this stuff aren’t)
In the last 30 years, I have heard all manner of crazy legal ideas propounded by nonlawyer “legal experts” which supposedly immunize or protect licensed and/or unlicensed health care practitioners from government oversight, investigations and prosecutions. Most of the ideas are based on the one of the first 10 constitutional amendments (12, if you’re Donald Trump).
For example, take the Ninth Amendment, which provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This is the so-called unenumerated rights amendment. Some lay legal experts took the position that doctors and others had an un-enumerated right to give or receive any treatment they want regardless of the wishes/laws of the federal or state government. It supposedly gave people all kinds of other rights and abilities not to comply with federal or state law. I recall one of the leading “legal experts” on this was a guy named Conrad LeBeau. If I’m not mistaken, he was prosecuted for some kind of criminal offense, raised the argument in his defense, and to no surprise to anyone other than him and his co-believers, he was convicted and went to prison.
I recall that people also tried to get to the same place with the 10th Amendment, which provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
That hasn’t worked out either, in the sense that there are no published cases which have disallowed a federal or state agency from investigating, suing or prosecuting a physician because the physician’s 10th Amendment rights.
But by far, the most popular constitutional panacea which supposedly completely immunizes licensed practitioners from federal and state oversight is based on the First Amendment’s so-called right to associate.
First things first, and a news flash for many: The text of the First Amendment does not include any language concerning the right to “associate” or to form an “association.” Rather, the right to associate was created by the Supreme Court. For the legally interested, in NAACP v. Alabama, 357 U.S.449 (1958), the Supreme Court held that freedom of association is an essential part of the First Amendment’s freedom of speech provision because effective speech often requires that people join or associate with others. The free speech written right, in conjunction with the written right to “assemble” and petition the government, (also part of the First Amendment), constitute the basis of the Supreme Court’s creation of the implicit judge created constitutional right to associate.
There is a body of case law defining and explaining the right to associate, but it deals with the circumstances under which organizations can exclude people who want to join a group, or whether organizations or businesses can decline to provide services to specific groups of people. For example, the Jaycees was a business related group for men. The Supreme Court held that their members’ right to associate did not allow them to exclude women, because the exclusion was not based on the expressive aspect of the excluded group. On the other hand, a private organization, say an LGBT group, can exclude homophobes from membership because they might adversely effect the group’s ability to express its LGBT point of view.
The other big issue in the right to associate jurisprudence is whether private groups can discriminate against certain people by not provide services to them (i.e. racial minorities or gays). Short answer: They can’t.
I’ve told you the two big jurisprudential/litigation areas involving the right to associate. What doesn’t exist are cases which hold that the right to associate allows health care professionals to engage in illegal or unprofessional activity, and more importantly, that the right to associate somehow divests the federal or state government from asserting jurisdiction over people who may be engaged in illegal activity, or actions which violate some state law or professional standards (like the standard of care).
In short, I have yet to see a reported case or decision on an online case service such as Lexis, West Law or Pacer which held – meaning that the controlling principle of the case – was that a state or federal government did not have the right to investigate or prosecute a person for health care services because the service offerer and recipient were members of an association.
Every time I talk about this non-existent panacea right to associate in public, I ask the audience that if they know of a reported case, to send me the case citation. I have yet to receive a single case citation. The only time I’ve ever seen the issue addressed in a court case was in a Washington state FDA prosecution where the defendant himself raised the issue in a motion to dismiss. His lawyer apparently wouldn’t file the motion, so the defendant filed the motion himself. The judge refused to address the motion because the defendant was represented by counsel.
Circling back to the right to associate, as I said, it’s not in the text of the First Amendment, it’s a judicial creation found to be a necessary component of free speech (and possibly the right to assemble and petition the government). Since the judges created it, the parameters, boundaries or limits of the right are only what the judges say they are. And the judges (and in particular the Supreme Court) haven’t created any kind of generalized right to associate, let alone a generalized right which divests the government from exercising its police powers. I am certain that the Supreme Court never will create such a right because it would interfere with the government’s police powers. It’s a fool’s bet to bet against the government’s ability to address, rectify or punish conduct which it deems illegal or against public health. (My message to the vaccine concerned as well, per previous posts).
So what about the “legal experts” who are advocating (read, selling) right to associate kits and $2,000 seminars? From what I can tell, when they do cite cases, they cite the non-binding language (called “dicta”) from unrelated cases. One of the first things lawyers learn in law school is to separate the holding of the case, which is the principle of law the case stands for, from the dicta which is the personal opinions or other non-essential parts of the opinion which are not considered binding or precedential. Another thing these folks talk about is the letters they’ve written on behalf of practitioners which supposedly stopped an investigation. Recently, I’ve heard about confidential settlements which they can’t talk about.
Hint: for licensed practitioners, I’ve never heard of a confidential settlement with a medical board. I don’t think it exists because it’s against public policy. A board’s job is to protect the public, and between that and open records, I don’t think a confidential settlement with a state medical board is a thing.
This is all nice and possibly even interesting, but does any of it have any practical impact on practitioners? I think so. Some of you folks have bought into the right to associate (non) thing (literally and figuratively), and make your patients join your “medical association.” That’s fine and harmless.
But suppose you get a board subpoena for medical records of one of your patient/members. You have two choices. Give over the records or use the “right to associate” argument and decline to produce the records. That’s a decision with big consequences.
Failure to provide medical records pursuant to a lawful, self-executing subpoena is a prosecutable violation of the medical practice act. The result of your refusal will probably be a court order to compel you to turn over the records. (And the judge will issue the court order notwithstanding your right to associate argument for the reasons stated above).
What do you do then? If you don’t comply with the court order, next thing is a motion for contempt. Judges don’t like putting Docs in jail, so you’ll get a short reprieve, probably, but in the end, there’s a good chance that if you don’t comply, you could get a few free meals courtesy of the state.
Think I’m kidding or exaggerating? I haven’t personally seen this happen to a Doc, but a long time ago, in a faraway place (Manhattan), a lawyer refused to turn over to me a client’s case files. I got a court order compelling him to do so. He still refused, so I filed a motion for contempt. The judge gave him another chance and he still refused, so the judge signed the contempt order.
I found out when the lawyer had a late in-the-day court appearance and had him arrested on the steps of the Manhattan federal courthouse. Because of the late hour, the judges were already gone, so the lawyer spent the night in jail (the Tombs, as I recall). They brought him to the judge the next afternoon (it took some extra time because I apparently misfiled the paperwork). He didn’t look or smell too good. I got the files the next day. Eventually, in large part because of what he did in that case and another case where he pulled the same trick, he was disbarred. Maybe I caused that too, but it was a long time ago and who remembers.
I tell you this for a couple reasons; to show that bad things can happen and escalate if you don’t follow lawful orders. The lawyer I went after wasn’t a bad lawyer; he just made some poor choices (and his actions pissed me off). Why is that relevant?
Flash to CAM Docs: the members of the state medical boards are politically connected conventional doctors. By and large, these folks think that CAM is worthless if not harmful to patients, and all you CAM Docs are just in it for the money or stupid, or both. (Maybe a slight exaggeration, but that’s my perspective as a result of appearing at most of the state medical boards over a few decades). The idea that a CAM practitioner would do something which is a slam dunk violation of the medical practice act, and confirms board members’ view of your evilness or stupidity (or both) seems like a poor choice.
Two final things:
We had a hearing in the other case in which the lawyer refused to turn over records. The federal judge was a white haired southern gentleman. The first words out of his mouth were: “Mr. Sheridan, you remind me of a slab of meat rolling towards the buzz saw, and for the life of me, I can’t understand why you’re running towards that saw.”
And finally this: A Texas fellow who is one of the main “legal experts” selling the right to associate and other do-illegal-stuff-and-get-away-with-it miracle kits hit the fed’s radar screen. He was arrested for securities violations. I guess he argued that because his customers were members of his association and maybe some of the other stuff he peddled, the feds couldn’t touch him. The judge apparently disagreed. The jury convicted him and he went to prison. The good news is that he’s out now and back selling these kits, insisting that they work just fine.
TMB personnel face damage claim for illegally trying to search and seize medical records
In the late 1980s, my New York law firm did some work for Robert Atkins involving the New York medical board, (aka the Office of Professional Medical Conduct). The board wanted the records of a number of his ozone therapy patients. The patients didn’t want their records released, so Bob Atkins hired our firm to try to quash the subpoena. We made precedent, but not in a good way. The New York appellate court ruled against us and held that the board has a right to medical records, even over the objection of the patient. In virtually every state, with some variations, a medical board can obtain patient medical records in the absence of patient consent and despite HIPAA. (The one exception is California where if the patient doesn’t want his or her records released, the medical board has to go to court to convince a judge that there is good cause for releasing the records. I am doing one of those cases right now.)
How this usually shakes out is that a physician receives a letter from the board about a complaint and asks for medical records. The letter will also usually include a subpoena and a business records affidavit form so that the medical records can be admissible in an administrative proceeding. The board’s letter usually gives the physician a few weeks to respond and turn-over the records.
Not too long ago, the Texas Medical Board tried something different for a doctor who they suspected might be operating an unregistered pain management clinic. A medical board investigator along with a DEA agent showed-up at a physician’s office and demanded access to certain medical records on the spot using presenting an instant subpoena (subpoena instantar).
The physician wasn’t in. The investigators probably falsely represented to the physician’s assistant that if she didn’t comply, the doctor would get in trouble and might lose his license. The investigators conducted a search of the premises and looked at the records. The doctor wasn’t happy and filed a federal lawsuit against the investigators, the executive director of the medical board and the state, for declaratory relief for a number of things as well as for damages. Suing medical boards is extremely satisfying emotionally, but very costly and basically never results in a positive, dispositive legal decision. That is because the courts don’t like interfering with ongoing state administrative proceedings, and the federal courts are even more hesitant to get involved in, let alone stop a state administrative action. In fact, practically speaking it is virtually impossible to have a state or federal court stop a board action. The state law concept is called “exhaustion of administrative remedies” and the federal law doesn’t stop board actions under what is called the “Younger abstention” doctrine which says that federal courts shouldn’t interfere with on-going state administrative actions.
The other key concept is “sovereign immunity” which means that you can’t sue the state or the federal government for money damages, unless the sovereign specifically gives an individual the right to do so. No state gives an individual the right to sue it for damages for an illegal search. One rationale is that the state cannot act illegally. On the other hand, individual investigators can act illegally, and as a result, an individual investigator can be sued personally for constitutional violations in some circumstances, the main circumstance being if there was a clearly established constitutional right, and it is assumed that investigators know what those clearly established rights are.
Most of the Texas physician’s lawsuit was dismissed in the defendants’ initial motion to dismiss. But the judge did two wonderful things for the future benefit of Texas doctors. First, he held that the search of the doctor’s office was illegal. Second, he let the case go forward on the damage claim against the individual defendant investigators. For many reasons, it is doubtful that the doctor will ever get any money from the investigators or even recoup his attorneys’ fees. But the judge’s decision, might just stop or slow down this whole subpoena instantar thing which in effect turns a legal subpoena into an illegal search and seizure warrant.
So if you practice medicine in Texas, and board investigators show-up at your office and demand you turn over medical records immediately, you could consider telling the investigator that he/she is violating your clearly established right to be free from an illegal search and seizure and that a violation of that right may result in a suit against the investigator for damages. If you’re not the confrontational type, then just tell them to leave the papers and you’ll have your attorney get back to them. Maybe even have a copy of the judge’s decision handy. (A pdf of it is at the end of this blog).
A caveat: this case applies only to a Texas medical board subpoena/investigator. If you have a DEA registration and dispense controlled substances (even things like testosterone or other scheduled BHRT’s) the DEA has the right to present an inspection notice, enter your office and inspect your DEA paperwork (inventory, dispensing logs, orders, receipts, basically everything piece of paper you are required to maintain under DEA paperwork requirements). So make sure all your paperwork is in order. If it isn’t, well just make sure it is.