Dr. Bennett's Freedom of Speech Upheld
In a very unusual action, Judge Edward J. Fitzgerald,
III, of the Merrimack County (NH) Superior Court has enjoined
the medical licensure board from prosecuting a physician as a
result of three complaints based on his communications with
patients (Terry M. Bennett, M.D. v. New Hampshire Board of
Medicine, No. 05-E-478).
Patient A complained that Dr. Bennett had made
offensive remarks to her concerning her obesity. The Board
also resurrected an allegation made 4 years earlier that Dr.
Bennett had advised Patient S, who had an inoperable brain
tumor, to buy a pistol and shoot herself. Dr. Bennett denied
ever having made such a remark and noted that the patient
apparently "becomes confused" and is not "clear about what was
real." The complaint had been dismissed as unfounded. Later,
Patient D complained of Dr. Bennett's answer to a question
about whether she could contract hepatitis B from her son:
"Not unless you're having sex with him."
The Board refused to allow Dr. Bennett to depose his
accusers and was planning to allow them to testify
anonymously, thus denying the doctor the right to cross-
examination.
The Court held that postponing review until after entry
of final judgment by the Board "might result in immediate and
irreparable harm to the petitioner in that he could lose his
license to practice medicine as a result of an unfair
abridgment of his rights." As the doctor is 67 years old, he
could lose his ability to practice for the rest of his
professional life, as appeals wended their way through the
system.
The Court noted that there were no allegations of
inappropriate or inadequate care, or evidence of adverse
health impacts from the doctor's statements. And "to the
degree that the Board has defined unprofessional conduct, it
has specifically stated that rude behavior is not generally
actionable unless accompanied by other acts...." A "remarkably
subjective standard," which leaves determinations about
treating a person with "dignity and respect" to the
"sensitivities of the listener," is not the "narrow type of
regulation that could comply with constitutional
requirements."
Physicians do not forfeit their freedom of speech by
obtaining a professional license. Indeed, it is "within the
public interest to foster open and frank discussions between
physicians and patients," even though "the Court does not
condone in any way the type of comments made by the
petitioner."
The Motion for Injunctive Relief and the Court's Order
are posted at www.aapsonline.org under "Licensure."
Tip of the Month: Few realize that the IRS has
strict internal procedures preventing the disclosure of tax
returns to others in government. Many jurors, for example,
falsely fear access by the prosecutor to their tax returns.
Such access would not be allowed. Just as phone wiretaps are
very rare, disclosure of tax returns by the IRS is very rare.
But prosecutors can seize tax returns found during a search of
an office or home, even though not listed on a search warrant.
The first question by a prosecutor after a search can be: "Did
you get his tax returns?"
HIPAA Status and Electronic Information
An entity that only receives, but does not
transmit electronic health information, such as
remittance advice, is not a HIPAA-covered entity (see
http://questions.cms.hhs.gov; search on "receive health
information electronically").
Court Rejects Absolute Immunity
Bruce Feyz, M.D., was referred by his hospital for
psychiatric examination and placed on indefinite probation
when he persistently defied standing orders and wrote
individualized orders. He requested that nurses obtain the
medication history by asking patients what pills they take,
instead of copying directions from prescription bottles.
Dr. Feyz subsequently brought suit against this private
hospital, "alleging civil rights violations, invasion of
privacy, breach of fiduciary duty and public duties, and
breach of contract...." [Bruce B. Feyz, M.D. v. Mercy
Memorial Hospital et al., Supreme Court of Michigan No.
128059 (June 24, 2006)].
The Court rejected the proposition that judges are not
competent to intervene in peer review matters, which
effectively turns qualified into absolute immunity for
hospitals:
[W]e are not persuaded by the
argument that courts are incompetent
to review hospital staffing decisions
as a basis for adopting the judicial
nonintervention doctrine. This claim
overlooks the reality that courts
routinely review complex claims of
all kinds. Forgoing review of valid
legal claims, simply because those
claims arise from hospital staffing
decisions, amounts to a grant of
unfettered discretion to private
hospitals to disregard the legal
rights of those who are the subject
of a staffing decision, even when
such decisions are precluded by
statute.
The Court also adopted the "actual malice" standard,
holding that a review entity is "not immune from liability if
it acts with knowledge of the falsity, or with reckless
disregard of the truth or falsity, of information or data
which it communicates or upon which it acts."
Patients Beware: Filling Prescriptions a Crime?
Richard Paey, a wheelchair-bound chronic pain patient
now serving 25 years in a Florida prison, sent AAPS a
handwritten letter and a news clipping (John Tierney, "Just
Doing His Job," New York Times 1/31/06). Paey filled
prescriptions from an out-of-state doctor for 25 pills/day,
containing less total oxycodone than a single high-strength
OxyContin pill. Prosecutor Scott Andringa told the jury that
the doctor wasn't practicing proper medicine; therefore, the
prescriptions were illegal and Paey shouldn't have filled
them.
If his appeal fails, Paey suggests that AAPS advise
patients not to have out-of-state prescriptions filled in
Florida.
Paey refused to take a deal requiring him to testify
against his doctor. But then the doctor gave hostile
testimony, claiming not to have authorized the contested
prescriptions.
Andringa told 60 Minutes that it was
"reasonable" to infer that Paey was a drug dealer, although
two months of surveillance yielded no evidence. He told
Tierney that while he was not "thrilled" about the case, "I'm
only proud that I did my job as a prosecutor." Paey is likely
to die in prison.
Dr. Rottschaefer Moves for New Trial
The U.S. Supreme Court denied Dr. Bernard
Rottschaefer's petition for writ of certiorari (AAPS
News, October 2006), but he has
again filed a motion for a new trial on the basis of
depositions in malpractice suits. This sworn civil testimony
reveals that every single witness against him lied in the
criminal case, falsely claiming not to have had a medical
complaint.
Correspondence
A Seat at the Table. The AMA has a long history of
compromise and "go along to get along" on government-run
medicine. Doctors fear that if they appear "confrontational,"
the public will think they are not "compassionate" and that
they oppose "medical care for all." Meanwhile, the AMA tells
its membership that it can't risk its ability to have a say in
what is going on. Curiously, the AMA always seems to come away
from the table with some sort of deal that serves as a revenue
source for the AMA. CPT codes are one example. I believe that
P4P guidelines will be another. This is a well choreographed
dance that we have seen before. Physicians need to learn to
recognize it.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
Legislative Remedies. We lose every time we ask
legislators to do us a favor. Remember that Mark Twain called
them the only distinctly native American criminal class.
Del Meyer, M.D., www.medicaltuesday.net
Non-Insurance. We enrolled in one of the faith-based
medical cost-sharing programs in 1997 and began talking about
it in our office. We received a "cease and desist" order from
the state of New Jersey, though we weren't selling anything
and received no commission. We were hauled before the
Department of Banking and Insurance, and after a two-hour
inquisition were able to persuade them that this was not
insurance but people voluntarily banding together to help each
other out. We must avoid confusing words like "deductible,"
"premium," and "co-pays." About 10 years later, we have saved
nearly $100,000, while remaining "covered" for big bad
unforeseen medical events that thankfully did not occur.
Alieta Eck, M.D., Somerset, NJ
The Free Market Is Out There. I am telling my
uninsured patients to travel. I have sent blood specimens to a
suburb of Chicago since finding out how expensive local labs
are. I told an uninsured man with worsening saddle anesthesia
to drive to Boston for an MRI; he saved $400. The oligopoly of
hospitals will be worthless if people refuse to patronize
them, just as Martin Luther King showed that a racist bus
company could be attacked fiscally with a boycott. He who
feeds the mouth that bites him must soon wear a prosthetic
hand.
Edward J. Harshman, M.D., Thomaston, ME
Safety Valve. More Medicare beneficiaries are
showing up at my clinic, telling me they can't get into a
doctor who accepts Medicare for 2 to 3 months. I am seeing
only those who have Medicare Part A, but not Part B, on their
cards. The waits to see a doctor are getting longer, so that
some are resorting to my clinic even though (as they tell me)
I am not a "real doctor" because I don't accept third-party
payment even though I am boarded in both internal and
emergency medicine.
It's simple economics: if you don't pay doctors to
provide medical care, they won't provide it, regardless of
demand.
I might now be called the "overflow doctor" or the
"doctor to the uninsured." I refuse to participate in an
irrational, wasteful, impersonal system. If the government
does not reach the ultimate coercion level, requiring doctors
to accept public insurance as a condition of licensure, I will
always have work to do. Eventually, I will probably be able to
charge whatever I want for my time and skills, as retiring
baby boomers choose to transfer their wealth to good doctors,
rather than allowing it to be confiscated by government after
they die.
Robert S. Berry, M.D., Greeneville, TN
Prices. Where else besides in "sliding scale"
clinics and socialized health "insurance" is price based on
the income of the buyer? This destroys the informational
content of the price, which is not supposed to be a punishment
for consumption but rather a measure of the values of buyers
and sellers.
Greg Scandlen, Consumers for Health Care Choices
Agreement Irrelevant. It doesn't really matter
whether one agrees with market theory, any more than it
matters whether one agrees with gravity or the first law of
thermodynamics. Gravity is "unfair" to elderly people who fall
and suffer injuries. The first law is unfair to those damaged
by wind. And market theory is unfair to those who aren't
interested in providing value to receive value. Tough. Reality
exists.
Sean Parnell, Heartland Institute, Chicago, IL
The Value of Medical Care. Medical services are
worth what consumers are willing to pay in a free market; not
a penny more. Physicians must either accept that fact or give
up on the idea of consumer-directed medical care.
Thomas W. LaGrelius, M.D., Torrance, CA
Judging Doctors. I've had my best referral
experiences operating on the theory that left to themselves,
competent people usually prefer to associate with other
competent people. It follows that if you find one competent
person, he will refer you to others. This is all you really
have to go on when information asymmetry is permanent and not
in your favor.
In medicine, government is doing its best to see that
competent people don't clump. Physician referrals are viewed
with suspicion. And specialty hospitals, oh the horror!
Instead, we get systems of ratings by the substantively
uninformed.
Linda Gorman, Independence Institute, Golden, CO