Unfair
Disciplinary Proceedings by Boards
by Andy Schlafly, Esq (no login)
New York State Assembly, Committees on Health, Higher Education,
and Codes. January 31, 2002.
Good afternoon. I'm Andy Schlafly, General Counsel for the
Association of American Physicians and Surgeons ("AAPS"). I am a
member of the New York Bar, and specialize in administrative law.
AAPS is a nonprofit national group of thousands of physicians,
including many practicing in New York. We were founded in 1943 and
are dedicated to promoting the ethical practice of medicine and
defending the patient-physician relationship. AAPS is almost
exclusively membership-funded. We file amicus briefs in defense of
physicians who are unfairly treated in disciplinary proceedings,
as in the case of Dr. Dan Alexander v. State Board for
Professional Medical Conduct, Civ. No. 89006 (N.Y. App. Div. 3rd
Dept. 2001).
We have many physician members in New York who feel pressured and
intimidated to protect their own licenses by altering their care
to patients. They are faced with the choice between avoiding the
wrath of insurance companies and delivering the best possible care
to their patients. This intimidation interferes with the ethical
practice of medicine, and ultimately hurts patients.
Physicians feel threatened because they have fewer rights than
almost anyone else in a judicial proceeding. Physicians can lose
their license based on very little proof, and inadequate due
process. Physicians are vulnerable to manipulation of the process
for economic reasons, rather than true concern for patient health.
For example, we see unexplained targeting of certain types of
physicians for discipline. Physicians who treat Lyme Disease are
frequent victims of investigations, but not due to any complaints
by their patients. Third-party payers, who find the aggressive
treatment of Lyme Disease costly, have too much influence over the
disciplining of a physician.
AAPS has a member in New York who even predicted that he would be
investigated because of his proactive treatment of Lyme Disease,
and he was. His patients love him because his treatments are so
effective. But those who pay for the treatments find it profitable
to delicense physicians who are costly. Economic harm should not
be a basis for revoking or restricting a physician's license. A
clear showing of medical harm to patients should be required.
If an insurance company is unhappy with a physician, then it has
full recourse to our court system to bring a lawsuit, whereupon
the physician-defendant would have the safeguards of due process
rights essential to the fair administration of justice. These
rights include meaningful prior notice of the charges against him,
right to a public hearing, right to full cross-examination of
witnesses, right to a decision based only on information in the
record, and right to a meaningful appeal. But these basic due
process rights, which are so fundamental to fairness, are
glaringly absent from disciplinary hearings. Third party payers
alleging economic harm can more easily delicense a physician than
prevail in litigation against him.
It is ironic, and unjustified, that a physician enjoys greater
rights in defending a fraud action than he does in a disciplinary
proceeding with his license at stake. It is likewise irrational
that a physician enjoys greater rights in contesting a simple
speeding ticket than in a disciplinary proceeding threatening his
livelihood. If a physician is sued by a patient, an employee, or a
neighbor, he enjoys the due process rights we all find essential.
But if he is subjected to a disciplinary proceeding, the most
essential due process rights are not there to protect him.
Patients are the ultimate victims of this vulnerability of their
physicians. Patients deserve the undivided attention and care of
their physicians, without intimidation by third parties. Instead,
the unfair disciplinary process creates a conflict-of-interest for
physicians, such that they must choose between taking precautions
to defend their license versus acting in the best interest of the
health of their patients. When those choices are in conflict, the
patient's health suffers. In some cases, patients lose their
trusted physician entirely based on an unfair proceeding that is
shielded from the accountability of public scrutiny.
Specific Proposals.
Physicians should have the right to request a public hearing to
obtain the benefits of public scrutiny. The interests of hundreds
of patients are at stake when suspension or termination of a
physician's license is adjudicated. Physicians should be able to
invite their patients to attend the proceedings, and physicians
should have the right to open the proceedings to the entire
public. Defendants have a right to public trial. Why should a
physician's rights be any less?
Physicians should have the right to full cross-examination of the
witnesses testifying against him. Currently, the Administrative
Law Judge (ALJ) can and does limit cross-examination. Rules of
Evidence, essential to protecting the rights of the accused, are
not followed. They should be. Cross-examination is the best
defense against perjury. Without public scrutiny, and with
cross-examination often limited, the essential safeguards against
perjury are missing.
In one case, a physician lost his New York license to practice
because the ALJ cut off cross-examination of witnesses on issues
crucial to the disciplinary hearing. Defendants in legal
proceedings have full rights of cross-examination. Why should a
physician's rights be any less?
The burden of proof in a disciplinary proceeding to revoke a
physician's license is shockingly low. The standard is the lowest
"preponderance of evidence" test, which simply requires that
something be considered more likely than not. That standard is
much lower than the criminal "beyond reasonable doubt" standard,
and also lower than the "clear and convincing evidence"
requirement for many civil actions, such as fraud.
It is unconscionable that a physician can lose his license, and
hundreds of patients lose their doctor, without a showing of
"clear and convincing" proof of wrongdoing. If there is a 49%
chance that the physician did nothing wrong, then he and his
patients should receive the benefit of the doubt. Yet in one case,
revocation of a physician's license was imposed even though the
factfinder admitted that there was a substantial chance the
physician acted properly. The New York State Board for
Professional Medical Conduct expressly based its decision to
revoke the physician's license, destroy his livelihood, and
deprive hundreds of patients their trusted physician, on a mere
"51%" probability. Given this low standard, a physician could win
a case in court and yet still lose his license in a disciplinary
proceeding. That injustice must end.
The low standard of proof jeopardizes the traditional reliance by
physicians on chaperones in the examining room to defend against
baseless allegations. A New York physician lost his license when a
patient contradicted the testimony of a chaperone that nothing
improper happened in the examining room. The State Board claimed
that the chaperone was biased because she had been retained by the
physician. The reliance by physicians, including many members of
our organization, on chaperones to defend against allegations is
now in doubt. If the standard were "clear and convincing
evidence," then chaperone testimony could not be so easily
rejected.
Physicians should not lose their license when their own accusers,
and family members of accusers, continue to see the physicians for
care with full knowledge of the disciplinary proceedings.
Uninterrupted use of a physician by patient or patient's family
should create a presumption that the patient is satisfied with the
physician's services. Nor should the State be interfering with the
patient-physician relationship by restricting or terminating the
physician's license while the relevant patients continue to demand
the doctor's services.
The standard for judicial review of these disciplinary proceedings
is also far too deferential. The courts assume that physicians
have benefited from full due process, when in fact they have not.
The findings of fact are assumed to be true on appeal, when in
many cases they should be reviewed de novo. For example, any
findings in a decision revoking or restricting a physician's
license, which are not supported in the record, should require a
remand rather than affirmance. On at least one occasion, the
Hearing Committee declared that the physician had a "deep seated
psychological problem," without anything in the record to support
that psychoanalysis. Despite this and other errors in the factual
finding, the revocation in that case was nevertheless affirmed. A
remand should be required, as in other areas of administrative
law.
The government should not be permitted to shop around for experts
until it finds someone willing to testify against the physician.
Rather, government experts at these disciplinary proceedings
should be selected from an objective group of physicians, as
juries are. There should be guidelines requiring that those
experts review information by both sides to the dispute.
If the government expert feels that there is no case against the
physician, then that should dispose of the matter. Instead, the
government can and does simply look for additional experts until
it finds one of its liking. We have even seen the government fire
one of its experts because he, after reviewing the facts,
testified for an accused physician. This government manipulation
of experts is inconsistent with the objectivity and high standards
that should be required before revoking a physician's license.
Physicians need discovery rights with respect to the experts and
hearing committee members, who effectively determine the outcome.
Like true defendants, physicians need to be able to explore and
eliminate possible conflicts-of-interest that create bias in the
proceedings. Judges have broad duties to publicly disclose
information about themselves. So should experts and those who sit
on these disciplinary hearing committees. There should be an
analog to the voir dire in jury trials to eliminate potential
bias.
Rarely should the State be telling patients that they cannot see a
particular physician because his license has been restricted,
suspended, or terminated. Only the most egregious, documented
cases of violation of trust should be candidates for license
revocation. Patients should have as broad and diverse selection of
physicians as possible, without government or third party
interference.
Conclusion.
The Association of American Physicians and Surgeons opposes the
intimidation of physicians through deprivation of their rights at
disciplinary proceedings. This interference destroys the integrity
of the patient-physician relationship and the ethical practice of
medicine. Please consider the reforms suggested by AAPS and others
at this hearing.
Thank you.
Andy Schlafly, Esq., AAPS General Counsel, 908-719-8608
aschlafly@yahoo.com>
Subject: Weitzel, Sell, Mitrione, Privacy, Sinaiko
Date: 03/03/2002 12:13pm
To: AAPS Board
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