AAPS Update for 2007

We defeated federal prosecutors. We defeated a state hospital. We defeated the FDA … again. We forced a new federal advisory committee to obey the law. We stuck it to the Maryland medical board … again. We saved a medical staff from the clutches of a law firm that specializes in sham peer review.

In sum, we stood up for physicians who practice private medicine … and WE WON! And none of these were easy cases. All were long-shots at best.

Success breeds popularity, and we currently have seven (7) new requests for legal action to help protect private medicine. Yet our work depends entirely on your individual, tax-deductible donations. Please be as generous as possible!

Here are our highlights for 2006:

Victory #1 – August 2006

When we asked for permission from the federal prosecutor of Dr. Billy Hurwitz to file an amicus brief on his behalf, the prosecutor refused. But that did not stop us. We obtained permission from the court and filed a scathing brief that emphasized how “no civilized society treats its professionals in this manner for acting in good faith, and the conviction below should be reversed.” Dr. Hurwitz had been sentenced to 25 years in jail because a few drug addicts misused his pain prescriptions.

The most pro-government appellate court in the nation, the Fourth Circuit, unanimously overturned Dr. Hurwitz’s conviction based on our primary argument! This was a huge victory against the federal government’s attempt to control medicine, and was reported widely in the press.

Victory #2 – January 2006

We won another victory in the case of longtime AAPS member Dr. David Springer, who had spoken out against the mistreatment of patients at the Delaware psychiatric hospital. He had AAPS counsel speak at his hospital during the crisis. The State responded by refusing to renew Dr. Springer’s contract, and he sued for violation of his constitutional rights and won a jury verdict. On appeal, the Third Circuit cited AAPS in the very first paragraph of the decision and then ruled completely in favor of Dr. Springer and against the State of Delaware.

Update on a Prior Victory

Dr. Tom Sell is back together with his wife and doing well in freedom. He was never forcibly medicated by prison officials, thanks to AAPS’s multiple amicus briefs. AAPS also played a key role in obtaining his release from jail, where he was imprisoned seven (7) years without a trial. The local television station featured us upon his release.

Sticking It to a Medical Board

The Maryland medical board still doesn’t “get it.” Can’t board members read? On four occasions, independent triers of fact have found that the Maryland medical board violated patients’ constitutional right to privacy by demanding psychiatrist Dr. Harold Eist’s medical records, without safeguards for patient privacy. Twice administrative law judges found against the medical board, and two different judges for the Circuit Court for Montgomery County also found against the medical board.

But medical boards are sore losers. The Maryland medical board continues to attempt to discipline the good psychiatrist because he complied with his patients’ request to protect their records against an estranged husband and his meritless complaint. For nearly six years the psychiatrist, caught in the middle of this ugly custody battle, has been put through living hell by the medical board bent on abusing its power. We again joined an amicus brief in favor of patient-physician confidentiality, and we expect to win again.

In another medical board action, we filed an amicus brief urging the Louisiana Supreme Court to allow a physician to depose a medical board official, which the State has desperately resisted. We remain unrelenting in our legal efforts to hold medical boards accountable.

Victory #3 – May 2006

Many organizations spend a lifetime fighting the FDA without winning once. AAPS has whopped the FDA twice in the past five years.

The FDA holds the Guinness Book of World Records as the most corrupt agency in the world. Not really, but the FDA grows and abuses power without rational bounds.

An internal FDA memo revealed how it knew it lacked the power to regulate compounding pharmacies, which are useful to many physicians in prescribing little-used or patient-tailored drugs. The FDA memo admitted, “One could reasonably argue that Congress did not intend this degree of regulation over the practice of pharmacy, especially when one considers that such compounding was far more common when the relevant statutory provisions were enacted. Our position will give pause to any jurist considering this issue and may prompt an outcry from the general community of pharmacists and physicians.”

So did the FDA show restraint as required by law? Of course not. It embarked on an illegal course of regulating compounding pharmacies, until a member of AAPS sued and we filed an amicus brief against the FDA. In May, the judge announced a stunning victory for AAPS: Back off, FDA, and back off now!

Victory #4 – February 2006

We have been sounding the alarm about how hospitals are viciously engaging in “sham” or bad faith peer review against physicians who stand up for patients or outperform competitors. This has been a bigger problem at public and for-profit hospitals than religious ones, but then we heard in early 2006 that a law firm promoting aggressive peer review had infiltrated a religious hospital system.

We acted immediately on the information, traveling to the lead hospital to speak to the medical staff. Even the hospital administrators attended. We explained how the law firm of Horty, Springer specializes in training hospital administrators to remove “disruptive” physicians, with the term “disruptive” defined broadly to include almost anyone an administrator dislikes. A congenial atmosphere is quickly poisoned. A review process that was like playing touch football is suddenly converted without warning into a brutal game of tackle football, without pads.

We casually mentioned how one hospital administrator who strong-armed a medical staff in Wisconsin was forced out of town … after we got involved. The medical staff then agreed with us, and the planned changes to its bylaws proposed by Horty, Springer were tabled. Chalk up another victory for medicine.

Victory #5 – October 2006

In September 2005, we learned at our annual meeting in D.C. how the federal government had just established a new advisory committee to convert us all to electronic medical records. No thanks, we thought – we do not want the government monitoring and spying on all our medical records through a national database, or a network of databases. That will inevitably lead to pay-for-performance or outright rationing, and a complete loss of patient privacy.

But the opening meeting of this new committee featured a Who’s Who of bigwigs, and they talked like this was a fait accompli. Nothing would be stopping them and the sky was the only limit on their ambitious plans.

Then we sued. We detailed how the committee was not complying with the law. Next thing we heard the health IT czar was resigning, and then the head of CMS quit too. The committee lacked any advocate for privacy when we sued, but after our lawsuit a privacy advocate was named and a new subcommittee of attorneys was even appointed to protect privacy. Protecting privacy is impossible in a large medical database, so that alone may stop this train. The committee has also limited its ambitions and is functioning in a more restrained manner. The judge in our litigation clipped the wings of the committee further by saying the committee lacked the power to “decide” anything. Mission accomplished for AAPS.

Other Ways that AHLF Helps

We wrote an amicus brief for the Supreme Court against partial birth abortion, which Congressman Ron Paul liked so much that he joined it. We write letters for physicians who are about to be sentenced, urging leniency in a way that no one else could. In one recent case, a defendant-physician was unaware that the prosecutor would be seeking prison time. We wrote the judge to protect the physician, anticipating the prosecutor’s surprise tactics.

A physician whom we helped free from jail a decade ago continues to perform valuable mission work in the poorest areas of the world, including leprosy colonies. If it were not for AAPS – and your support – these needy patients would never have received this top quality care.

New Actions – With Your Support

We have seven (7) new requests for help. Each one of these cases is crucial to the future of private medicine, and we wish we could take a stand in all of them.

But our ability to protect private medicine for the future is dependent entirely on your generosity. No one else will help medicine in the manner that you will.

You can always view our cases on the website of the Association of American Physicians and Surgeons, www.aapsonline.org . AAPS is the most active medical organization in the country in advancing the rights of physicians and patients!

We cannot succeed without your support. No one else, and certainly not the AMA, is going to protect private medicine. Please send your contributions to AAPS or AHLF (our legal foundation) at, 1601 N. Tucson Blvd. – Suite 9, Tucson, AZ 85716, Phone: (800) 635-1196.

Donations to AHLF, which focuses on constitutional issues in defense of private medicine, are tax-deductible. Click here to contribute online with your credit card.