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Volume 64, No. 2 February 2008
To practice the profession of medicine in the United States
today, one needs permission from the government.
Without a license from a politically appointed agency, years
of training and service are wasted. Today, that license can be
revoked arbitrarily, ruining lives and depriving patients of a
trusted and sometimes unique source of care.
Faced with a Kafkaesque, unaccountable regime of
administrative law, physicians dare not speak out.Therefore, AAPS
has taken the unprecedented action of bringing action as an
association against the Texas Medical Board (TMB).
In a case filed in the U.S. District Court for the Eastern
District of Texas, Texarkana Division, AAPS seeks declaratory and
injunctive relief to "end the pervasive and continuing violations
of constitutional rights of its members."
Following up on testimony presented to the state legislature
on Oct 23, 2007 (transcript and recordings posted at www.aapsonline.org
), AAPS asserts that the TMB abuses process in allowing anonymous
complaints; operates with improper conflicts of interest; has
arbitrarily rejected the decision of an administrative law judge;
breaches the privacy of targeted physicians; and retaliates
against those who speak out.
Sources of anonymous complaints include physician
competitors and insurers who do not wish to pay claims.
Chief disciplinarian Keith Miller, M.D., who resigned from
the TMB (AAPS News, November
2007), possibly to avoid testifying, served as a plaintiff's
witness in up to 50 malpractice cases during his tenure on the
TMB, without disclosure to the public, and may have even
generated malpractice cases by improperly disciplining
physicians.
Physicians can supposedly appeal unfair rulings from
informal settlement conferences, but the threat that TMB will
disregard a favorable decision and retaliate with harsher
penalties deters physicians from exercising their rights.
The requested relief could prevent imminent future injury
and enable AAPS members to redress past injury by reopening
tainted proceedings.
The AAPS lawsuit is the first time the TMB has been sued
over abuse of power, according to its general counsel Robert
Simpson (Abilene Reporter News 12/27/07).
An article in the Houston Chronicle generated a
large number of public comments, some hostile to physicians, but
many supportive: "The Board has a quota they try to meet and have
shown themselves willing to falsify information...to achieve
their goal," stated one. "If you're a patient and don't think
this affects you, you're wrong" there's increased cost,
decreased access, and intolerance for patient noncompliance.
One physician writes to AAPS that he left Texas because of
concern over the large number of formal investigations and
disciplinary actions every single month. "At its current pace
every physician in Texas will be disciplined for something."
Historical Reflections on Licensure
Today, it is a matter of dogma that licensure is essential
to protect the public from quackery, incompetence, false
advertising, and embezzlement. Decades ago, AAPS had a Committee
of Correspondence to debate the question of licensure, and at a
meeting in New Orleans, Herb Titus presented the case that
licensure amounted to an unconstitutional grant of a title of
nobility. It is now considered heretical even to consider an
alternative.
At the 1992 annual meeting in Scottsdale, long-time AAPS
member Murray Feldstein, M.D., reported that most licensing
boards in America had been abolished by the middle of the 19th
century. Medical care was appalling, but patients were free to
visit cultists or sectarians, whose unscientific practices were
often less harmful than more orthodox but also unscientific
treatments. Irregulars fell out of favor as medicine improved,
without government help. "Competition works!" Feldstein said.
When licensure became important, around the turn of the 20th
century, it was initially under the control of organized
medicine. Perhaps it helped protect the public; certainly it
restricted competition and drove up fees.
This government-conferred privilege, however, comes with a
price. At first, licensure was based on competence and ethical
behavior. Then, Massachusetts tied it to acceptance of Medicare
assignment, and a federal district court decided that to pass
constitutional muster, a requirement only need "bear a rational
relationship to a legitimate state purpose" (see p. 3).
"In other words, with the license to practice medicine comes
the duty to serve state-dictated goals," writes Henry Mark Holzer
(J Legal Med 1990;11:201-220). Worse, the appeals court
in this case determined that the ban on balance billing was
simply a "rule," and licensees needed to obey the rules. " Rules'
are rules,' no more, no less," he explains.
Who Makes the Rules, Who Decides, and Who Benefits?
To use Holzer's term, physicians are in a state of license
servitude. In some states such as Wisconsin, Florida, and
Pennsylvania, they can be delicensed for failure to pay enough to
a malpractice compensation fund. But some rules are not
specifically legislated; "unprofessional conduct" can mean almost
anything. Physicians must satisfy the Board, which may simply
acquiese to the whim of staff or dominant members.
With secret proceedings, lack of due process, and absence of
oversight, boards can end careers of doctors targeted for
innovative therapy, failure to use politically favored therapies,
or threatening the revenues of less popular doctors while
disingenuously invoking "public safety."
To truly protect the public, board processes must be open to
public scrutiny. Texas, now the subject of the most complaints,
could set a precedent for reform elsewhere.
The freedom to contract the right of individuals to decide
what services to buy and at what price is one of the fundamental
rights of man, argues Sue Blevins of the Institute for Health
Freedom (Cato Policy Analysis No. 246, Dec 15, 1995). Licensure
restricts that freedom. While the justification is always public
protection, the lobbyists who push for imposition or
strengthening of licensure laws invariably represent the
occupation in question, not its customers, observed Milton
Friedman.
"I am myself persuaded that licensure has reduced both the
quantity and quality of medical service.... It has forced the
public to pay more for less satisfactory service," he wrote.
Dr. Feldstein argues that licensure laws, by restricting
supply, are at the root of the medical cost crisis. They also
hamper the introduction of better technology. To what effect?
In the center of England's second largest city, the Heart of
Birmingham primary care trust proposes abolishing 76 existing
general practices and replacing them with 24 branded units, each
predicted to see up to 15,000 patients a year. The idea is to
copy the franchised expertise of fast-food restaurants. GPs are
fiercely resisting the change, which is claimed to have the
"overwhelming support" of the public (Telegraph
11/13/07).
After leaving his paid job as a university professor in
1991, Roger Scruton had to learn how to induce people to pay for
his skills. He discovered that "employing others, if conducted
according to the rules of the welfare state, is a great
mistake." Under socialist morality, the employment contract
is more sacred than the marriage vow. One has to pay an employee
for not working just as one does for the "occasional spasm of
industry." A worker who is dismissed has a thousand grounds for
suing, thus getting the employer to set him up for life.
The welfare state has made older people redundant before
their time, and young people unemployable. The path back from
error is never easy, but Europe may yet survive.
For the 11th year in a row, the U.S. Government
Accountability Office (GAO) was unable to express an opinion on
the consolidated financial statements of the U.S. government
because of serious material weaknesses.
"If the federal government was a private corporation and the
same report came out this morning, our stock would be dropping
and there would be talk about whether the company's management
and directors needed a major shake-up," said Comptroller General
David Walker.
There was some progress: GAO can now state an opinion on the
2007 Statement of Social Insurance.
As of September 30, 2007, the federal government's fiscal
exposures totaled $53 trillion, up $20 trillion since 2000 a
burden of $175,000 for every American, Walker said.
WellPoint, UnitedHealth, and Coventry report blockbuster
profits from their government revenue (AM News
11/26/07).
CMS has issued a proposed National Coverage Determination
(NCD) that Medicare will not pay for cardiac CT angiography a
better, safer, faster, cheaper method for patients not enrolled
in clinical trials.
According to an MGMA cost survey, the multispecialty
practice cost was $56/relative value unit (RVU) in 2005. Revenue
in 2005-2007 was $47/RVU from worker's compensation, $38 from
Medicare, and $27 from Medicaid.
The Massachusetts plan touted by Gov. Romney in an ABC
presidential debate will cut provider payments by 3-5%.
"There is no justification to be paying more than Medicaid
rates," said Commonwealth Care CFO Patrick Holland.
Except of course to obtain access to care. One reason
providers endorsed the plan was a promise of greater pay than
they received from Medicaid (Consumer Power Report
1/2/08).
For all the fiscal strain, politicians have an ace in the
hole, notes Arthur Robinson: www.moneyfactory.gov.
People elsewhere in the world make things for us, and we send
them output from that factory in return. Now that much of
America's printing is being outsourced to countries where
industries are not being taxed and regulated into bankruptcy (and
can even use unrecycled paper), we could increase productivity by
having the Chinese manufacture both the goods and the money. The
only drawback is that they might use the money to buy our
remaining assets....
"My practice...needs a full-time nurse and receptionist
dedicated exclusively to quality-improvement initiatives. We've
been marked down for patients not having had appointments,
immunizations, or tests that they have in fact had.... Checking
the accuracy of the information used against us is a full-time
job.... The notion that any of these programs actually improves
the quality of care is speculative and debatable" (Vonnegut M.
N Engl J Med 2007;357:2652-2653).
The state's promise to provide medical care amounts to an
obligation to shift the burden of payment to somebody other than
the beneficiary: to the taxpayers in general, or to certain
groups such as physicians. Licensure is a key component of the
state's ability to impose on physicians.
The precedent for the constitutionality of licensure dates
to an 1889 case, Dent v West Virginia. Dent was indicted
for practicing without a license under a 1882 law, after being
denied a certificate from the state board of health. His medical
college was deemed not "reputable," and he had been in practice
in W.V. only since 1876, not for 10 years prior to 1882. He
claimed that the statute unconstitutionally deprived him of his
vested right to practice medicine, the only means of support for
himself and his family. The U.S. Supreme Court upheld Dent's
conviction, ruling that the law "was intended to secure such
skill and learning in the profession of medicine that the
community might trust with confidence those receiving a license
under the authority of the state."
In Schware v Board of Law Examiners, Justice Black
underlined the authority of the states, under the Tenth
Amendment, to legislate to protect health, safety, and morals.
"Leaving aside the important question of whether the state's
imprimatur on a professional's skill and learning is the best way
to protect the public from incompetents," writes Prof. Mark Henry
Holzer of Brooklyn Law School (op. cit.), "the qualification
criteri[on] traditionally has been the only requirement imposed
on the medical license."
The statute tying licensure to a ban on balance billing was
challenged by the MMS and the AMA in Massachusetts Medical
Society v Dukakis. Not only did the Court rule that
relationship to the fitness to practice was not the appropriate
standard, but that it wouldn't matter even if it were
the standard. The state could permissibly determine, in law, that
providing "cost-contained services to the elderly is a necessary
part of what it means to be fit and capable to practice," wrote
the judge.
"This opened the door to endless other servitudes," notes
Prof. Holzer, based on the doctors' "monopoly" to practice. The
U.S. Supreme Court refused to review the affirmance by the U.S.
Circuit Court of Appeals.
If the Federation of State Medical Boards has its way,
physicians will have to meet onerous requirements to prove their
competence each time they renew their licenses. Moreover, they
will have to document participation in "quality assessment"
programs in their practice. Those who take time off from practice
will face an expensive re-entry procedure, such as hiring
monitors for their practice and undergoing "evaluation by a
formal assessment program." (See www.fsmb.org and AAPS
News, March 2007).
Specialty societies would make windfall profits from selling
recertification materials.
In comments submitted to
FSMB, AAPS suggested: "If medical licensure boards are
perceived as doing a poor job, then their performance
should be assessed." Legislatures should establish a standing
oversight committee to set ethical and performance standards, and
assure that the board is meeting them. Expectations include
respect for physicians' rights, use of competent investigators,
truthfulness, transparency, and reasonable penalties.
Would doctors be protected against unwarranted licensure
actions or sham peer review under socialized medicine if they
speak out against the government to advocate for patients?
Pharmacist Jeffrey Fudin thinks that "the government will destroy
their careers." At least, he says, "that's what they do in the
[Department of Defense] and [Veterans Administration] health care
systems." The Office of Special Counsel, the agency that is
supposed to protect whistleblowers has become, he states, a
covert agency that spends millions of dollars to assure that
federal whistleblowers have almost no chance to win a case. See,
www.VAWBC.com,
www.vawhistleblowers.com, and AAPS News, December 2006).
California recently passed a law intended to protect medical
staff members from retaliation for filing formal complaints
against hospital facilities for subpar treatment or conditions.
This extends a law that previously applied only to patients,
nurses, and "other health care workers."
The California Hospital Association fears that the law could
hamper peer-review proceedings. But Gregory Abrams, former legal
counsel for the California Medical Association, says that
hospitals could stop an unwarranted lawsuit against peer review
through the anti-SLAPP (Strategic Lawsuits Against Public
Participation) law. This law prohibits filing actions to chill
free speech on public issues, and the California Supreme Court
has held that peer review serves this public function.
The law also gives the court the discretion to block
doctors' discovery requests for peer-review-related documents
while the hearings are proceeding (AM News 1/14/08).
Since the Prescription Drug Monitoring Program became
operational in Alabama in 2006, it has been checked more than
30,000 times by doctors, medical licensure boards, and law
enforcement. This tracks all prescriptions for scheduled drugs,
class II through class V. Checking is not required, but is an
option for a doctor or pharmacist who becomes suspicious about
patients' "doctor shopping" for drugs. Most queries are by
physicians; medical regulatory boards made 1,881 requests between
January 2006 and September 2007.
"When you see where someone is writing more prescriptions
than anyone else, you have reason to wonder," said Larry Dixon,
executive director of the Alabama Board of Medical Examiners. The
database has expedited ongoing investigations; no charges have
been filed yet (www.privateofficer.com).
Doctors who file electronically must include their NPI,
along with any older IDs, on all Medicare claims by March 1.
Those who send paper claims to clearinghouse to file
electronically on their behalf must also comply.
Though some doctors complain that transition to the new
system has become a bureaucratic nightmare, as claims are
rejected owing to mismatches in personal information between new
and old identifiers, CMS is unlikely to delay the deadline.
Physicians who have been using both old and new identifiers
should try filing some claims with the NPI only.
One solo, incorporated physician had to re-enroll in
Medicare to get a group PIN. He might miss the deadline because
of a re-enrollment backlog (AM News 1/14/08).
New Sham Peer Review Tactic. In my talk at the annual
meeting, I showed a slide depicting a consigliere (legal
counselor) leaning over and advising the godfather regarding an
issue of immunity as related to their business.
The caption: "I know it looks like a bullet hole in his
forehead, but if we call it peer review' they can't touch us."
An attorney in the audience informed me that hospitals are
beginning to employ "physician investigators" whose job it is to
"investigate" allegations against other physicians. They do their
own "peer review" and submit a report with recommendations for
"corrective" action.
My education in sham peer review is ongoing. Nothing
hospitals do, however bold and aggressive, to exert control over
physicians surprises me. My slide isn't too far off.
Government Improving Our Lives? Do people believe that
attorneys general are disinterested observers, saints trying to
make things better for people by imposing ever more insane
process requirements on arrangements that have evolved over
hundreds of years and generally have good reasons?
Those who believe that probably also think that we have a
market system in medicine. I think a better explanation for AGs'
behavior is that they saw that Guiliani had a very successful
career after he practically invented the perp walk and exploited
the RICO statutes to go after people like Michael Milken on
technical violations of increasingly arcane securities laws. The
template is clear: Pick a rich target. Gin up some charges. Start
a media firestorm. Campaign as the champion of the common man.
Propose a government agency to rebuild the wrecked landscape that
your self-serving campaign created.
Investigate any business up one side and down the other and
there will be some "criminal" finding based on some email
somewhere. When the AG can subpoena records to "look" for
criminal activity, anyone who angers a government official
becomes a potential target.
[Now apply this to licensure boards....]
On Anonymous Accusations. Prior to the French
Revolution, the nobles filed "lettres de cachet," which were
sufficient accusatory letters to the throne to allow arrests to
be made without disclosing the name of the accuser. It appears
that the Texas Medical Board thinks this system is OK because
"less than 2% of complaints are anonymous." The TMB needs to
learn that in this country the accused is supposed to be able to
face his accuser; otherwise cross-examination is precluded.
TMB Destroys 50-Year Career. A surgical scrub
technician who had been discharged from the Army with a bad back
asked me for pain medication. I had seen him doubled up with
pain, and I was sure his pain was genuine. He said it was
difficult to see his HMO doctor. I gave him several scripts for
previously prescribed codeine. He said the medication enabled him
to work a little longer before he had to have two crippling
operations that rendered him totally disabled. Community First,
his HMO, reported me to the TMB for not keeping records: my first
infraction in a 50-year surgical career.
At my so-called hearing, I was permitted to say only two
things: my name, which they couldn't take away, only tarnish, and
"yes, ma'am" when asked whether I understood the rude lecture
given by a colleague. I was not allowed to present copies of
records of the patient's surgery, nor to present my case on my
own (the cost of an attorney was prohibitive).
My penalty was 40 additional hours of CME (I did 100). Also,
I had to pass a medical legal test on which I scored 63. I was
told I could repeat the test but would have to appear before the
board again. In the meantime, I had a life-threatening heart
attack, so I voluntarily surrendered my license. They said there
could be no appeal.
I had no intention of appealing, but even murderers get the
chance to appeal. My name was published in the board newsletter
as being guilty of poor medical treatment on the basis of this
one case. I have no regrets that I am no longer a part of the
medical profession. I would discourage anyone from going into the
profession, since I would not want anyone else to go through the
humiliation and disrespect accorded me by the board. If my health
improves enough to permit travel, I will leave Texas, my lifelong
home, and never look back.
It is too late for me, but I truly hope something can be
done to protect practicing doctors. Investigation of the board is
long overdue. The hearing I received was truly un-American and a
farce. Thank you, thank you, thank you.
Board Malfeasance. Problems with physicians' discipline
are not limited to Texas. Texan physicians and their patients
have unprecedented courage to expose this dangerous situation.
State medical boards, set up to protect the public from
unqualified practitioners, have become, owing to lack of any
external oversight and accountability, state-sanctioned
sanctuaries for incompetence and malfeasance. They are actually
putting the public in grave jeopardy. Thousands of patients are
being denied access to quality medical care as a result of ill-
conceived attempts to correct past errors of excessive leniency.
Additionally, rampant corruption flourishes owing to lack of
checks and balances.... [from letter to Gov. Rick Perry].
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