Louisiana, my birth state and where I did med school, is taking some advanced measures to aggressively restrict the abusive power of its state medical board, the La. Board of Medical Examiners. Over the past several years, efforts had been made to re-write the law governing the board’s powers to abruptly halt a physician’s practice while it investigated that physician.
We know from experiences of other boards , completely lacking oversight, that corrupt dealings enter the picture and before you know it, you’ve got a malignant complaint against a physician being pushed along – and even generated by – the medcal board, often utilizing the “anonymous complaint” mechanism.
Our continuous efforts to confront these abuses are paying off.
As soon as a colleague informed me of the La. bill, I wrote a letter to the bills sponsors supporting the measures and advocating for both an audit of the medical board and an independent investigation of its proceedings. I promptly heard back from Rep. Jackson acknowledging and thanking me for my correspondence.
Here’s what I wrote:
Wednesday, April 11, 2018
Sen. John Milkovich
Rep. Katrina Jackson
Dear Sen. Milkovich and Rep. Jackson:
Your excellent legislative initiatives just came to my attention this morning and I note that Rep. Jackson’s House Bill 778 is being considered in committee today.
I am the organizer of a private national working group – the Coalition for Physician Advocacy – which has been meeting for nearly five years studying issues of abuse of physicians’ rights by state medical licensing boards (“MLBs”), Physician Health Programs (PHPs) and hospital-based peer review committees conducting sham peer review.
A physician myself, I began coaching physicians around these issues over five years ago as a result of my own Kafkaesque nightmare with the NC Medical Board (NCMB) and the NCPHP.
Over five years, I and my colleagues have reviewed hundreds of cases of what can only be seen as gross abuse of power by medical boards and their associated state PHPs which then order these physicians to costly out of state “preferred programs” for what amounts to extended involuntary hospitalization for non-existent – but newly PHP diagnosed – conditions with no chance of contest or appeal. We have reason to believe that multiple physician suicides have occurred. Even less focused on is the profoundly detrimental effect on patient care. Medical boards and PHPs have shown callous indifference throughout and in fact have refused to investigate complaints about their own procedural abuses.
Many states have Medical Practice Acts which appropriately empower medical licensing boards to remove a physician from clinical practice if sufficient reason exists to believe that that physician has an impairing condition which might harm patient care. However, numerous state medical boards across the country seem to have taken that discretionary power to an extreme, not only abruptly interrupting without sufficient warrant a physician’s career but also causing great jeopardy to that physician’s patients.
I lost a patient to suicide as a result of this unwarranted intrusion.
Your respective Physicians Bill of Rights bills on first perusal seem exactly on target.
Allowing MLBs to continue in these privilege-abusing ways will continue to harm physicians and patients and will let the national physician community know that Louisiana (incidentally my home state and where I attended medical school) is a dangerous place for physicians to practice. One should not risk their licensure there as its state laws permit its due process denying medical board to make findings of guilty until proven innocent with resultant irreversible career annihilation and patient harm.
What has been done here is the equivalent of empowering the LA Drivers License Bureau and the entire law enforcement and judicial network to revoke a citizen’s drivers license for a simple yellow light infraction and make their gainful employment impossible while the state engages an enormous investigative apparatus to “study this driver’s habits” and determine whether they’re “safe to drive.” This is prosecutorial abuse taken to extremes. Such power was never envisioned by this or any legislature to enable an occupational licensing board to trample the civil and due process rights of a professional willy nilly just because the law allowed them to use their discretion in determining who they thought might be impaired.
In fact, I don’t believe the proposed Physicians’ Bill of Rights goes far enough in protecting the rights of physicians and other similarly licensed healthcare providers. Should we speak, I’ll share with you other proposed protections which have emerged from our multi-year study.
Public Citizen’s stance is both a fallacious argument and a ruse. Evidence strongly suggests that they’re little more than a disguised lobbying group for medical boards. Just because a state medical board is investigating a complaint does not connote that patient care is jeopardized. Nor does such concern, even if substantial, justify abuse of constitutional rights, neither that physician’s nor certainly more generally. Their fallacious argument is equivalent to saying that because there might be a drunk driver in a car, and driving cars while drunk is a danger to the public, all cars can be stopped and searched and their drivers licenses removed until they’re cleared. What absurdity!
It is important to note here that the two national bodies which grandly set policy and invariably weigh in on policy discussions of this nature – The Federation of State Medical Boards and The Federation of State Physician Health Programs – assert that they have no role in oversight of their member organizations. In fact, neither organization provides any means of filing grievance regarding its member organization’s illegal activities. Thus, along with complete lack of state oversight, each physician is forced to fight this abuse on their own in an invariably protracted, costly and ultimately futile manner.
It also bears noting that there is a class action lawsuit in one state against its medical board and PHP (Michigan); and in another state (Florida), a bill was recently passed prohibiting its PHP from conducting any evaluation or treatment activity. Another state’s judge found its medical board members individually liable for the denial of due process of a physician wrongfully brought before it.
An additional though insufficiently exposed concern is that state medical boards, certainly in North Carolina, may be operating as free-standing tyrannical governments unto themselves with utterly no active state oversight. The NC State Auditor found as much in her 2014 reports, first of NCPHP and then of all boards and commission in NC. In fact, after complaints of fraudulent diagnosis being conducted by NCPHP, in a year-long Performance Audit, NC Auditor Beth Wood found that NCPHP had violated the due process rights of 1,140 physicians over the preceding decade. It was operating with no oversight by the NCMB as required and that NCMB also had no oversight. A recipe for disaster perhaps? As noted by Auditor Wood, state government has a duty to exercise diligence over its agencies, especially those to whom it has entrusted police powers. I can provide these audit reports to you if desired.
I urge the committee to either vote in favor of this bill or, perhaps in light of the multiple related bills under consideration, to take the matter under further advisement and seek expert consultation. You may wish to know that our Coalition for Physician Advocacy study group’s membership consists of a major writer-advocate of PHP reform; an MD JD whose focus is on disability law, mental health issues and litigation stress; a former vice chair of psychiatry at a well-recognized academic center; and an established addictions psychiatrist who is multiply boarded and is also a retired brigadier general. All have come together to address what we collectively feel are major abuses of privilege by some state medical boards and PHPs.
The La. State Board of Medical Examiners in saying that they are conducting themselves to the letter of the law is quite revealing. What they’re trying to convey is that it is precisely because the law permits them to conduct themselves in these abusive ways is the exact reason why modification to the law is urgently needed.
I also write to encourage you to dually engage the state auditor in conducting a performance audit of the La. State Board of Medical Examiners and its adherence to due process protections. In this investigation, specific attention ought to be paid to the assertions by its Executive Director that only 4% of complaint cases are referred for formal investigation. A very close examination of these forty plus cases should be undertaken by independent consultants to determine how these cases were handled, i.e how these complaints were processed, whether due process was honored, and whether continuity of patient care was ensured. I strongly suspect your findings will be alarming.
I also believe that you should impanel an independent task force to examine the actual processes and impact of this Board’s operations. Of course there will be resistance; and that is all the more reason to proceed with haste.
What MLBs do not seem to understand is the profoundly detrimental effect of the complaint investigation process itself. A recent study published in the esteemed British Medical Journal found a 100% increase in depression, anxiety and suicidal ideation in those being “investigated by” their medical board. I’ve had physicians tell me they’d rather have ten malpractice suits than deal with the medical board’s rights abusive process.
Thank you for your advocacy of physicians’ rights and patient wellbeing. I would welcome the opportunity to discuss these matters with you further and serve as an informational resource as you develop these initiatives.
Kernan Manion, MD