Case law:

Gold v. Chassin D2d 18 (3rd Dept. 1995), denied,Y2d 805 (1996)

Statutes:

New York CPLR 3017, (McKinney’s, 1991) & Practice Commentaries by David D. Siegel

The State Board erroneously concluded that the chaperone was biased because she worked with the petitioner for a number of years, and she testified that she was at the hearing to defend him.

Point II: Whether the administrative law judge deprived petitioner of his right to a fair hearing by restricting petitioner’s inquiry into the credibility of the complainants by prohibiting cross examination of the “connectedness” of the complainants with respect to the media coverage of patient E’s medical malpractice action against petitioner and their contacts with patient E’s attorney?

The Administrative Review Board declined to address this issue as “beyond our expertise,” and directed petitioner to present this issue to this Court.

The Association of American Physicians and Surgeons, Inc. (AAPS) submits this amicus curiae brief in support of Dr. Dan G. Alexander’s petition, pursuant to Public Health Law Section 230- c, which seeks the vacating and reversal of the respondent State Board for Professional Conduct’s Determination and Order revoking Dr. Alexander’s license to practice medicine.

AAPS will focus its amicus curiae brief on the two issues stated above, as they are issues that affect every physician in New York State who is charged with improper sexual conduct during a physical examination of a patient. If these issues are not satisfactorily resolved, it will be extremely difficult, if not impossible, for any physician to have a fair opportunity to defend charges of such inappropriate conduct.

The AAPS does not in any way condone a physician who commits patient abuse of any sort, but the AAPS does recognize that a physician may be wrongfully accused of such conduct by patients. In order to protect the wrongfully accused from punishment (severe punishment in abuse case, particularly sexual abuse cases), it is crucial that the physician be accorded a fair opportunity to defend against accusations of improper professional conduct.

The Hearing Committee’s Determination and Order is arbitrary and capricious, and is not substantiated by the evidence presented at the hearing. Both its conclusions and the administrative law judge’s rulings have widespread implications for physicians and surgeons in New York State. In pertinent part for the purposes of this amicus brief, the Hearing Committee’s conclusions and the administrative law judge’s rulings:

The Administrative Review Board for State Board for Professional Medical Conduct approved the Hearing Committee’s Determination and Order after stating that the appeal raised legal issues beyond the expertise of the Board; it directed that Dr. Alexander raise the issues with this Court. The AAPS sought leave to appear amicus curiae in support of Dr. Alexander as depriving him of his right to a fair hearing has drastic implications for the physicians and surgeons practicing within New York State.

For efficiency and brevity, AAPS will only recite the facts that it will rely upon herein in its two Points. It respectfully refers the Court to the Petitioner’s Brief and Appendix for the full recitation of the facts in this matter.

Dr. Alexander

Dr. Dan G. Alexander is a physician, board certified to practice internal medicine, and licensed in New York State and the Commonwealth of Pennsylvania. (A338-39) In 1991, Dr. Alexander established a private practice in Jamestown, New York. (A286)

Dr. Alexander contracted with WCA Services Corp., a local medical services corporation, for a medical office assistant. Mrs. Ann Anderson was assigned by WCA to Dr. Alexander’s office. (A233-34) Pursuant to Dr. Alexander’s office policy of requiring a female chaperone for the physical examinations of female patients, Mrs. Anderson acted as a chaperone for all breast examinations, pelvic examinations, and pap smears of female patients. (A209, 213-14, 296)

Patient C

On December 15, 1993, Dr. Alexander conducted a physical examination of Patient C, a 19 year old employee of The Resource Center. This was Dr. Alexander’s first examination at the request of The Resource Center, which had contracted with Dr. Alexander for employee physicals, and this was Patient C’s first examination as an adult. (A112-113, 287) Part of that complete examination included a breast examination in the supine position. (A290-92)

On March 31, 1998, the Jamestown Post Journal published a front page article on the pending medical malpractice claim commenced by Attorney Roger Doyle on behalf of his client, Patient E, against Dr. Alexander. (A67) Patient C’s mother read that article, and contacted Attorney Doyle (A117a, 118). Later, Attorney Doyle contacted Patient C. (A115) Then, after her discussions with Attorney Doyle, Patient C filed her complaint with OPMC that, interalia, Dr. Alexander performed an improper examination. (A115-16) The complaint came five (5 ) years after the examination. (A115-16)

Dr. Ian Frankfort, OPMC’s expert, agreed that a breast examination as part of a physical examination was appropriate. (A159-60) Dr. Robert M. Daniels, a board certified gynecologist, testified at the hearing that a breast examination of Patient C was medically appropriate, and that he uses a method of examination similar to Dr. Alexander. (A248, 249-251)

Patient D

On October 31, 1995, Patient D presented at Dr. Alexander’s office for a pre-operative physical examination. (A210a) Pursuant to office policy, Mrs. Anderson was present, as Dr. Alexander determined that, given Patient D’s health and medication, the pre-operative examination required him to perform a breast examination. (A170-72) Patient D testified, as did Dr. Alexander, that the examination did not take more than thirty (30) seconds. (A147, 293) Mrs. Anderson testified that she was present during the entire examination and saw nothing inappropriate take place (A215-24) Dr. Robert Daniels, a board certified gynecologist, opined that the breast examination technique was proper. (A254)

Patient D’s scheduled foot surgery also required an assessment of her femoral pulse. Mrs. Anderson, who was familiar with taking femoral pulses, was present for the taking of this pulse, and saw nothing improper. (A218-22, 236) Both Dr. Alexander and Mrs. Anderson testified that femoral pulse was taken by Dr. Alexander placing his right hand at the ligament between the upper right thigh and groin area and applying pressure (A218-21, A293-95) As for hand movement, OPMC’s own experts testified that due to Patient D’s obesity, Dr. Alexander may have had to move his hands to find the pulse. (A173)

Patient D complained to her podiatrist that Dr. Alexander had performed a breast examination and applied pressure to the “pelvic area.” (A335) Dr. Alexander’s office was called about this complaint by another physician, and Mrs. Anderson recorded the substance of Patient D’s complaints and her contacts with the other physician offices involved in Patient D’s chart. (A333)

Members of Patient D’s family continued as patients with Dr. Alexander: father, mother, and grandmother. (A119a, 124) Patient D told her sister of the alleged incident, and the sister continued to take her grandmother to appointments with Dr. Alexander. (A119a) Patient D’s sister is Patient B.

Contemporaneous with the examination, Patient D complained to OPMC that the breast exam was improper. In 1995 OPMC investigated, and closed it case. (A298) But after reading the Post Journal article (A67) regarding Patient E’s malpractice case against Dr. Alexander, Patient D submitted a new complaint to OPMC, three years after her initial complaint. In this complaint, she claimed that Dr. Alexander improperly rubbed her vaginal area. (A125) During her testimony at the hearing, she amended her complaint again by complaining of vaginal penetration. (A122)

Patient E In November 1995, Patient E presented as a new patient to Dr. Alexander’s office complaining of a variety of acute health issues. Although asked, she did not divulge that she was under the psychiatric care of Mr. Joseph Scapplitte of the Jamestown Counseling Center. (A231). Mr. Scapplitte testified that he diagnosed her with histrionic personality disorder based upon the existence of seven of eight criteria, including theatrics, self-dramatization, and sexually seductive or provocative behavior. (A231, 241-47) He also testified that she did not cooperate with treatment, and left his care in November 1999. (A246-47)

On February 19, 1998, Patient E filed a malpractice lawsuit against Dr. Alexander claiming over medication and sexual molestation. (A 67) Patient E and her attorney then caused a front page article to appear in the Jamestown Post Journal on Tuesday, March 31, 1998 in an attempt to force Dr. Alexander to settle the suit. The article was entitled, “LAWSUIT ALLEGES MALPRACTICE, MOLESTATION,” with the opening paragraph of the article claiming multimillions of dollars in damages for over medication, sexual molestation and negligence. (A 67) In December 1999, Patient E voluntarily discontinued the suit, with prejudice.

The State Board’s finding that the chaperone’s testimony was “bias[ed]” is not supported by substantial evidence.

The American Medical Association, together with the New York State Medical Society and other medical societies and professional associations, have encouraged physicians to make chaperones available during medical examinations, especially gynecological exams of female patients by male physicians. In fact, AMA’s Council on Ethical and Judicial Affairs, in its June 1998 Report, recommended to the AMA that physicians use chaperones, and the AMA adopted the recommendation in its Policy Compendium for physicians. In pertinent part, the Compendium states:

(See AMA’s Policy Compendium, pp. 120 and 296, together with the June 1998 Report of the AMA’s Council on Ethical and Judicial Affairs, copies of which are attached to this Amicus Brief for the convenience of the Court.)

In addition, the June 1998 Report cited above reiterates the general consensus that an examination of the pelvic, testicular, breast or rectum heightens the importance of a chaperone. (See June 1998 Report, p. 2)

A chaperone offers a patient: (1) assurances of the professional character of the exam; (2) attention to the patient’s well-being; (3) a respect for the patient’s concerns; and (4) an understanding of the patient’s vulnerability. A chaperone offers a physician legal protection; in the event of a false accusation or misunderstanding with a patient, the physician has a third party witness as to his/her innocence. (See June 1998 Report, p. 1) In other words, the AMA’s chaperone keeps both the physician and patient honest-----and away from “she said/he said” battles.

With patient confidentiality as the hallmark of the physician patient relationship, the AMA also suggests that an “authorized health professional should serve as a chaperone whenever possible.” (See June 1998 Report, pp. 2-3; AMA Policy Compendium, pp. 120 and 296) In addition, “. . .physicians should establish clear expectations about respecting patient privacy and confidentiality to which chaperones must adhere.” The AMA recommends health care professionals as they understand the nature of the physical examination, and are held to the standards of safeguarding a patient’s privacy and confidentiality. (See June 1998 Report, p. 1; AMA Policy Compendium, pp. 120 and 296) The status as a health care professional also affirms the formal nature of the examination.

Many physicians across New York State offer chaperones as a matter of routine. Most obstetricians/gynecologists, internists/family practitioners, and emergency department physicians automatically provide chaperones; these subspecialists perform the vast majority of pelvic, testicular, breast and rectal examinations. Consistent with the AMA’s recommendations, Dr. Anderson, an internist, created an office policy and implemented the practice of a chaperone being present during the examination of female patients. Consistent also with the AMA recommendations, Dr. Alexander had Mrs. Anderson, a health care professional, present as a chaperone during his examinations of female patients.

At the hearing, Mrs. Anderson testified that nothing unusual took place during the examination of Patient D. The Hearing Committee, however, rejected her testimony because of her “obvious interest in the well-being of the Respondent after working closely with him for several years.” (A33) It also found her testimony biased as she stated on the record, “he did nothing wrong,” and “I am here to defend him.” (A33)

First, while she may have testified that “he did nothing wrong” and “I am here to defend him” (A33), the Hearing Committee’s reliance on these statements to show bias is misplaced. Mrs. Anderson, being present in the room with Patient D, testified at the hearing, under oath, that she did not see Dr. Alexander do anything wrong. And the fact remains that she was called as a witness by Dr. Alexander’s attorneys to defend Dr. Alexander, more likely than not because they anticipated that she would testify at hearing that she saw did not see Dr. Alexander do anything wrong. If it was anticipated that she would testify at the hearing that she witnessed Dr. Alexander sexually abusing a patient, she would have been called as a witness for the State claiming “he did it” and “I am here to prosecute him.”

Second, but more important, the rejection of the chaperone’s testimony because she worked with the physician is extremely disturbing to the medical profession in New York State. The AMA’s Committee on Ethical and Judicial Affairs studied the issue of chaperones carefully. It composed a recommendation that meets the needs of the patient and the physician, respects and maintains patient confidentiality, and is practical and cost effective to implement. Its recommendation was adopted by the AMA, and included in the AMA’s Policy Compendium. Then, with one baseless conclusion, without benefit of any meaningful analysis, the Hearing Committee obliterated one of the three accomplishments of the chaperone recommendation. While the use of chaperones for legal protection of the physician may be “less praiseworthy but more pragmatic” as a basis for providing chaperones (See June 1998 Report, p. 1), the fact is, in our litigious society, physicians are falsely accused by patients of sexual abuse.

The Hearing Committee did not define “working closely with,” but arguably it used the phrase to mean (1) an established professional rapport between the chaperone and the physician; and (2) a pecuniary relationship between the two, either as employee or independent contractor. Under the AMA policy, these two elements seem inherent to meet the goals of convenience and comfort of the patient, the protection of the physician, and the preservation of the physician/patient confidentiality.

Perhaps there is an inherent presumption of bias of a chaperone who has a working relationship with a physician---professional rapport, pecuniary or both. Certainly, though, this inherent presumption is a rebuttable one. Vigorous and broad-based cross examination of the chaperone for an intimate and detailed assessment of the chaperone’s credibility, and, if possible, corroboration of facts with other witnesses and/or experts, are two litigation tools that could easily be employed to rebut the presumption.¹ Given the importance of the chaperone to the patient’s physical and mental well-being, and to the physician’s integrity, reputation and medical license, holding that such a presumption is rebuttable, and adopting such a standard for the rebutting of the presumption, are both more than justified.

Inherent presumptions or not, rebuttable or not, it is interesting to note that Dr. Sorrentino, OPMC’s own expert witness, had a contrary view to the Hearing Committee’s stance on the bias of the chaperone based upon a close working relationship. In his September 22, 1998 letter to OPMC, he opined, “Office workers rarely stay with a doctor especially if they are aware that deviations from standard behavior are occurring and they usually know what is going on in the office.” By his affirmative statement, he seemed to find in his experience that great credence should be afforded to the moral compasses of chaperones, themselves.

The administrative law judge deprived petitioner of his right to a fair hearing by restricting petitioner’s inquiry into the credibility of the complainants by prohibiting cross examination of the “connectedness” of the complainants with respect to the media coverage of patient E’s medical malpractice action against petitioner and their contacts with patient E’s attorney.

For hearings involving physician misconduct, the Appellate Division, Third Department has already clearly articulated its rule:

The Court further stated that a physician should be permitted to explore matters bearing upon the credibility of complaining patients including “the possibility that patients C and D had been influenced by media coverage of Patient A’s civil trial, or were disposed to misrepresent the events underlying their complaints about petitioner’s conduct.” Gold, supra, at 24.

It stated that it determined credibility in part by considering the arguments of the defense against the credibility of each witness: impeachment. However, the Hearing Committee denied the physician “elementary fairness” by prohibiting his attorneys from full and vigorous latitude in their cross examination to impeach the complainants as required by this Court in the Gold case. Dr. Alexander should have been afforded a full opportunity to cross exam the complainants to impeach their testimony and demonstrate that the five were in fact quite influence by and “connected” through this malpractice media coverage.

Patient E filed a multimillion dollar lawsuit against Dr. Alexander on the basis of sexual molestation. Within a mere six weeks of the commencement of the suit, Patient E and her attorney tried to litigate the case in the press with a front page article in the Jamestown Post Journal. This newspaper claims to have a significant circulation in its community: 80% of the City of Jamestown zoned households (a City population of 35,000), and more than 50% of the households in a 30 mile radius including Chautauqua County and Cattaraugus County, New York, and Warren County, Pennsylvania. (See the Post-Journal’s home page at www.post- journal.com)

Specifically, Patient E and her attorney caused a front page article to appear in the Jamestown Post Journal on Tuesday, March 31, 1998. The article entitled, “LAWSUIT ALLEGES MALPRACTICE, MOLESTATION, ” opened as follows:

From the content of the article, the average reader could reasonably conclude that the malpractice suit was worth at least $16 million.

Patient A made her first complaint of sexually improper comments four years after the alleged incident, and only after her husband conversed with Patient E about her pending medical malpractice suit, and she in turn spoke with Patient E’s attorney. Patient B filed her complaint of sexually improper comments after the publication of the article also. Patient C made her first complaint of sexual abuse five years after the alleged incident, and only after her mother read the article in the Post Journal regarding Patient E’s suit, and speaking with Attorney Doyle. A few years before the article, Patient D filed a complaint with OPMC, but OPMC, after a full investigation, closed the case. Patient D refiled her complaint after reading of the malpractice case in the Post Journal; however, her allegations changed from touching in the “pelvic” area to improper touching in the pubic/vaginal area. At the hearing, she changed the allegation to vaginal penetration.

Tragically, the Hearing Committee failed to appreciate the inflammatory nature of Patient E’s malpractice claim being litigated in the media, and the resulting “connectedness” of the complainants. The New York State Legislature and the Governor of New York recognized the inflammatory nature of malpractice claims when they enacted subdivision c of CPLR 3017. This subdivision prohibits a plaintiff’s from including a demand for specific monetary damages in his/her medical malpractice complaint. It was reasoned that by keeping the statement of a demand figure away from a jury, a jury would be left to its own deliberations without being prejudiced with a demand in mind. It was also reasoned:

The Record contains plenty to make one reasonably suspect that Patient E’s malpractice claim brought the other complainants out of the proverbial “woodwork.” The timing of the complaints after the media play of the malpractice suit, and the similar nature of the complaints, alone substantiate the suspicion, to say the least. And, ironically, this case presents all of the factors described by Professor Siegel in his Practice Commentaries to CPLR 3017: a medical malpractice claim, in a less populous community, announced by a blaring headline, with a demand for high money damages clearly stated in the media coverage, and the malpractice claim turned out to be meritless. (Patient E voluntarily discontinued the claim, with prejudice in December 1999.)

Gold, supra, requires, and the rational for subsection c of CPLR 3017 underscores the mandate, that these “piggy-back” claims be thoughtfully, thoroughly and vigorously analyzed by cross examination. The process must ensure that the physician’s license, and his livelihood, are not being stripped because the patients were “influenced” by the news media, or were “disposed to misrepresent the events underlying their complaints.” The lure of litigation monies, revenge, fame, misunderstanding of medical examinations, or a simple dislike of a physician’s bedside manner are not grounds for revoking a medical license in New York State.

This Brief, Amicus Curiae, is respectfully submitted on behalf of the AAPS, Inc. in support of the Petitioner, Dan G. Alexander, MD.

Dated: June 5, 2001 ______________________________

Janet M. Thayer
255 Washington Avenue Extension
Suite 205
Albany, New York 12205
(518) 452-8815