Is There Accountability for Malice?

Today a jury in West Texas is hearing evidence that a nurse, acting in bad faith, tried to run a doctor out of town by filing an anonymous complaint with the Texas Medical Board. The case is Texas v. Mitchell, No. 5612 (Andrews County, Texas, presiding Judge Jim Rex).

The case is making national news, even in the New York Times. It is the first case in memory to enforce the law against misuse of the complaint process and private patient information to harass a physician.

It has been open season for false allegations against physicians for too long. Each year too many physicians are distracted or even destroyed by malicious claims about them, whether in malpractice cases, sham peer review by hospitals or health plans, or witch-hunts by medical boards.

Is nurse Anne Mitchell guilty of acting in bad faith? The jury will decide.

The blogosphere is filled with rants against the doctor, Rolando G. Arafiles, Jr., M.D.; the prosecutor; and West Texas itself. The doctor has dark skin, a foreign accent, and some unconventional ideas. But his ideas and his practice are not on trial. The question before the court is whether the nurse, not the doctor, acted wrongfully.

The broader question is whether doctors or other Americans can be disparaged, subjected at a minimum to tens of thousands of dollars in defense costs, and even deprived of their livelihood, on the basis of false, bad-faith allegations—while the complainant hides behind anonymity, immunity, and a presumption that she is only trying to protect the public.

“Accountability for false complaints is long overdue,” said Jane Orient, M.D., Executive Director of the Association of American Physicians and Surgeons (AAPS).

43 thoughts on “Is There Accountability for Malice?

  1. I am a physician who faced haressament, gender discrimination. Retaliation, and lies were spread about me. I faced legal fees defending myself to no avail. I have had to conclude that there really is no justice system in this country. I tried to fight to prevent what happened to me from happening to anyone else. I got absolutely no where. I have given up my fight and moved on in another city.

  2. There is little doubt that doctors are aimed at from all sides. If you have your own practice you will be subject to the following: admonitions from your Medical Examiners Board, inquisitions from the Labor Relations Board, unexpected visits from OSHA, lawsuits from patients, investigations from the OIG, audits from insurance companies, inquiries from the DEA and I have probably missed a few. Somewhat unbelievably, I have survived all of these. Complaints are typically filed by employees and patients who have psychiatric illnesses, so it is not so much their fault. The greater blame is with the legal firms who entertain these cases, knowing full well the claims are malicious.
    As a physician you had better have a strong constitution, rock solid faith and a family support network second to none.

  3. How about this one: OPMC prosecutor brought charges based on evidence which she planted with her own hand, then had the OPMC expert testify about it. When I complained, she replied:

    Ms. Bloch: … “the needles that I included, that was my error and I am willing to amend it”… [IHT. 147]

    Ms. Bloch: … I said that was my error. It always was the same. The syringes didn’t change. When I did the charges, I put them in per box and I did that in error. I need to amend the charges. The syringes have always been singularly. [IHT.175]

    When she did the charges? How about when she did the false evidence; the 100/box needle description that she manually entered into the spreadsheets in support of false charges? The prosecutor admitted to her “error” a.k.a. the false charges but said nothing about her own false evidence. Inexplicably, and unlike the other false evidence, upward of 45 planted dates of service or the 100 per box glove description, the needles per box of 100 description disappeared from the spreadsheets as soon as we objected to their false description, and even before their related charges were amended. But that false description, called planted evidence was there in the spreadsheets and projected on the wall the day Dr. Petranker was asked to testify about it, on August 7th, 2008 [T. 758]

    Ms. Bloch: And then A4215 are needles ANY SIZE, would a full box of needles be used?…How many needles do you typically use for this kind of procedure? Dr. Petranker: She listed two needles being used, one needle to do the local anesthetic injection and the other one is the epidural needle. (he was probably reading from my medical records, as my billing record shows 1 needle). [T. 758]

    Knowingly and with intent to mislead, the prosecutor brought false charges based on false evidence entered by herself into the spreadsheets. This is called fraud and prosecutorial misconduct.

    There is more: charges based on perjured testimony were sustained!
    Expert who misrepresented his credentials, false testimony from 3 witnesses allowed by ALJ and used to support charges, which were sustained!

    Anyone attorney would like to represent me in this case of prosecutorial and judicial abuse?

  4. I just loss a 13 year fight against Blue Cross and Blue Shield of Texas, the Medicare contractor. They did everything conceivable and the spineless judges condoned their fraudulent and criminal behaviors. How can you deny 96% of claims in the elderly for 3 consecutive years without removing the provider or revoking his Medicare number or find fraud somewhere? I was a good ole boy, I exhausted all administrative remedies, took my case all the way to the US Supreme Court and loss. They grant absolute immunity to all big insurance companies who screw the providers claiming all state law claims are preempted under the Medicare Act. BULL!!
    Listen to me doctors, you have no civil rights, no human rights, no due process under the law .or a right to a trial by jury. Forget it. Get over it. You may be a citizen, but you cannot exercise your rights. You loss those when you became a Provider for MedicarePay your taxes . and let the immigrants and medicaid queens spend our money.
    Get the Message out. NO rights, they have been waived.

  5. THIS WITCH NEEDS TO GO DOWN PUT THIS CRIMINAL BEHIND BARS FOR LYING ..THIS JURY HAS TO DO THERE JOB!!Enough of this crap remove these liars and throw them in jail or prison. which ever comes first.the little patriot!

  6. Physicians seem to be fair game for a wide variety of paramedical personnel and medical facilitators.

    This story, “A Lawsuit Over Healthcare IT Whistleblowing and Wrongful Discharge” regarding a physician’s warning about dangerous healthcare IT, is another twist on the “bullseye” that seems all too often painted on physicians’ backs.

    See the details at http://www.ischool.drexel.edu/faculty/ssilverstein/failurecases/?loc=cases&sloc=lawsuit

  7. Um… Yeah, it sucks that physicians are targets & whatnot… but in this case, it appears the complaint was in good faith. Just sayin’.

  8. What kind of crank outfit is this if you don’t have the basic intelligence to understand the specifics of this one case and the absolute nutcase the doctor is, one who should have his license revoked for promoting woo and medically unproven nonsense?

    You need to go back to medical school and learn the concept of ethics. This nurse on trial is getting the full support of the medical profession for damn good reason.

    Get real.

  9. I wonder if the AAPS has really studied the background of the story before putting up this article, and whether they realized the sort of reaction they’d be getting.

    The people “supporting” Dr Arafiles here all appear to project their own unfortunate experiences with complaints and investigations onto this case. The trial of Mrs Mitchell will not make things right for them, no matter the outcome.

    To try and make an “example” out of Mrs Mitchell seems like a really silly thing to do just from a PR point of view. Dr Arafiles appears a straight-forward quack — an anti-vaccine, pro-homeopathy, snake oil (or rather colloidal silver, alkalized water and grape juice) selling Deepak Chopra-fan — whose actions as a medical professional seem questionable to a lay-person. And judging by the restriction on his license, the reprimands by the administration, and the violations found by a state investigation, to other medical professionals as well.

    Is this really the person you wish to put forward as a shining example martyred physicians?

  10. My attacker was also “assumed” to be acting in good faith. Under oath, in deposition, he acknowledged that the actions he took against me over a coffee pot! (I’d wanted the coffee, cream, and sugar moved from the substerile core of the operating room to the lounge, five feet away and behind a door, where the microwave and refrigerator were. Shame on me, right?) He also admitted realizing the dire effects his actions could have.

    Soon afterward, the judge in my case retired — and joined the hospital’s Board of Trustees. He’d already ruled that anything said in BOT and other closed door hospital meetings could not be brought out in court, no matter how clearly they might prove malicious intent.

    That judge had already decided that, as a physician [maliciously] held on provisional privileges, I had no right to due process within the hospital system. The appellate court took longer than average to agree, right before my privileges were terminated, making further appeals moot.

  11. Physicians are common targets for plaintiff’s attorneys, Medicare “Fraud” investigators, the DEA, and State Medical Boards (particularly if they dare to responsibly treat intractable pain).

    I personally have had to defend myself against over 50 instances of anonymous “complaints” before the Texas Board, a number filed by insurers surreptitiously trying to eliminate the cost of pain medications to their insured patients.

    Finding themselves unable to find “experts” to testify against my legitimate medical treatment of this horrendously abused and abandoned segment of patients, they eventually shopped experts until they found opiophobes willing to provide anonymous opinions against me. In the last “Informal Settlement Conference”, virtually the only question the Board’s representative asked me was whether I had given an interview in a documentary about medical marijuana!!

    The National Foundation for the Treatment of Pain (www.paincare.org), of which I am the Executive Director, has established the Pain Practice Liability Association (www.pplaonline.com). Membership is the Association provides up to $500,000 of legal defense against pain-practice-related administrative or criminal attacks on physicians. Once PPLA reaches a membership goal of 5,000, we will expand legal protection defense to include all forms of legal assault on physicians which is not covered by Medical Malpractice Insurance.

    So, here’s your chance to level the playing field and not be bankrupted by malicious (or quota) prosecutions.

  12. Err, have any of you read anything on the case at hand? The doctor was selling grape juice at $40 a bottle along with assorted other quackery; the nurse reported him and released some data she shouldn’t have; and the doctor’s friend and business partner jumps in to prosecute the nurse.

    Instead of engaging in persecution complex, what is the AAPS’s position on grape juice? The reporting of dubious “modalities” (quacks love that word)? The conflict between ethical and legal obligations? Are vaccines still giving kids autism?

  13. You played your hand too quickly in the first sentence. The simple fact of the matter is that the nurse is not being charged with defamation, but rather with “misuse of state information”… Information which she sent to the Texas Medical Board. As far as I’m aware, state medical boards are privileged to any case information anyone, correctly or no, believes relevant, and in fact in this case the Texas Medical Board has blasted the prosecutor in this case for even pressing charges.

    Further, the note of the “larger question” of defense costs and such is not germane to this particular case. There was no legal suit filed by Anne Mitchell, RN, thus no defense to be mounted. In fact, as the county is pursuing the charges, Dr. Arafiles should be getting out of this pretty cheap…

    Except, of course, for the Streisand effect, in which case the larger public and Medical Board may hold it against him ethically for calling the sheriff as a personal favor to disclose the source of the original complaints. Quite frankly, I don’t doubt there are some cases in which physicians are wrongly prosecuted, but in this case, I fail to see how the prosecution is not totally out of line.

  14. Our country has abandoned its constitutional foundation, the rule of law, and the presumption of being innocent until proven guilty. The government, largely being run by lawyers, presumes doctors have deep pockets that are there for the picking. Many patients also believe the same. It is time we fight back. Get involved. Join a local Taxed Enough Already (TEA) Party group. Vote out the “Progressives” and support candidates who will uphold the Constitution.

  15. Anybody interested in buying a $40.00 bottle of white grape juice? It will FIX anything… If it looks like a DUCK!

  16. “and some unconventional ideas.”

    This article should be very convincing to people who know absolutely nothing about the case.

    “But his ideas and his practice are not on trial. The question before the court is whether the nurse, not the doctor, acted wrongfully.”

    Wow. One minute you’re complaining about false allegations, the next you’re saying it doesn’t matter if the allegations are true or false.

  17. While I cannot comment on the credibility of this doctors case, I will comment on my case involving regulatory abuse of this sort.

    I am a dentist who graduated Harvard with honors. Three months after purchasing an existing practice and terminating some existing employees per recommendation from a consulting firm, I received several regulatory complaints to OSHA, Maine Human Rights, and the Maine Board of Dental Examiners.

    While OSHA, Maine Human Rights, and others eventually dismissed the complaints upon learning that these were existing problems that I ‘inherited’ only a few months prior. The process was both exhausting and somewhat expensive.

    The Maine Board of Dental Examiners decided to open a “fishing expedition” from the original complaint alleging CDC and an isolated delagation issue. The process resulted in a permanent scar on my record including a report to the NPDB.

    Because there was no patient treatment allegations involved in the complaint process, my liability insurance would not cover. Thus, I was responsible for personal costs exceeding $75,000 after a 2-day 30+ hour adjudicatory hearing.

    Anyone on here can simply Google my name to pull up the record that contains some truths but numerous exaggerations, lies, and 1/2 truths. If the TX case gives precedent that is set nationally, Justice will be Served for the Greater Good (despite our license board regulators that insist that they care only about the greater good)!

  18. Wow, that’s a bit of a biased report. I’m a nurse in west Texas myself, I’ve seen good doctors and bad ones as well as good nurses and horrid ones. I’ve been yelled at (I’ve even had a few apologize later), hung up on, had my intelligence questioned, and seen several friends disciplined for things when people go looking for blame. Most nurses, will not retaliate. They will do their job, blow off the critisicm and act as professionally with the next case with the same doctor as if it never happened. I have seen doctors retaliate by going to the administrators about things they wanted to blame a nurse for. And in those cases, thanks to good documentation, nothing came of it. And I’ve seen doctors who will stand up for the nurses when they think they need it. For the most part, we all enjoyed the job. It seems you are slamming the nurse for bad faith reporting without even knowing all the evidence. Yes, there are tons of false reports I am sure, but it works both ways. And I’m not sure this is the best case to pick your side based on nurse vs. doctor.
    Slightly embarrassed to be from west Texas RN

  19. Regardless of the specifics of this case, I would argue that it is vitally important for AAPS to fight for due process in this broken system that allows anonymous complaints to destroy a person’s livelihood.

    A competitor, disgruntled employee, patient, or drug seeker who is unhappy with a doctor can harass and sometimes even destroy them with impunity. This must be corrected. If this doctor is a quack, he still deserves due process. He should still be able to face his accusers with representation, and the facts and evidence should be brought forth objectively.

    Many of us are unhappy with the financing and delivery of today’s medical care. Unfortunately that anger can be misdirected at doctors and other care-givers who are just as trapped and frustrated as patients. The comments of several doctors here bears out how destructive that is.

  20. The article “Is there Accountability for Malice” picked the wrong case to bemoan physician harassment.

    The nurse has just been acquitted.

    The civil case against the doctor, the sheriff and the hospital will go forth.

  21. Well, the jury did decide. Contrary to what you’d like everyone to believe – some accusations are without malice.

    Reading this site has been very enlightening – and I don’t mean in a positive way. I thought Physicians were supposed to care about their patients, but you’ve made it clear that you think you can do no wrong, and shouldn’t be held accountable for your actions, and anyone who files a complaint is labeled with a psychiatric disorder.

    That is the epitomy of the good ol boys network.

    I’ll never trust a physician again.

  22. Not Guilty.

    This says it all:

    “As I said, this was an open-and-shut case that should never have made it to a jury, and the rapidity with which the jury ruled only serves to emphasize that point. I can only hope that the civil lawsuit brought against Winkler County Hospital, Sheriff Roberts, Dr. Arafiles, and County Attorney Tidwell goes forward and teaches these good ol’ boys a lesson about abuse of public trust, failure to discipline bad doctors, and trying to punish a nurse for doing her duty in reporting questionable care delivered by the doctors that oversee her. Anne Mitchell and Vickilyn Galle lost their jobs, their livelihood, a whole lot of money, and Mitchell lived for months in fear of going to jail for up to ten years because of Tidwell’s malicious, unethical, and possibly illegal prosecution. The hospital and the public officials who so egregiously abused their public trust need to pay.”

    http://scienceblogs.com/insolence/2010/02/winkler_county_nurse_anne_mitchell_is_no.php

    I hope you folks at AAPS finally understand the issue.

  23. Hey, AAPS and Its Whining Members – Looks like justice won out in the case. Here’s hoping that the civil case against Arafiles and his law-bending pals scores win #2.

    If doctors don’t want to be held to standards of ethics, they should find another line of work. Maybe West TX prosecutor.

  24. I’m a MD student, and I am really disgusted with the AAPS article on this case. I hope you never try to court my membership. If AAPS had taken an objective stand on the case, I wouldn’t have anything against it. If AAPS had emphasized that all good physicians benefit from strict accountability in our profession, I’d give you kudos. I come from another professional field where we strictly enforce standards amongst our own people. It seems in medicine, many doctors will turn a blind eye to anything if it means defending another person with “MD” after their name.

  25. AAPS needs to get their facts together before making comments on a case they know nothing about especially when the nurse in question was found not guilty in just over an hour and the doctor is still being investigated by the state medical board.

  26. From all the emotional drivel that has appeared on this blog, I doubt that anyone will take this lead, but if you want to be truly scared about where our courts of law have taken this country, read “Fooled By Randomness” by Nassim Taleb.

  27. Honestly, the comments on this blog from doctors calling for this nurse’s head bring shame down upon physicians who have sacrificed and suffered much for doing the same things Anne Mitchell did:

    http://drjshousecalls.blogspot.com/2009/12/dr-mary-johnson-vs-randolph-hospital.html

    I am appalled by this AAPS article and its lack of due dilegence.

    YES, hospitals and insurance companies use the legal system like a battering ram. YES, there should be accountability for bad faith and malice. And YES the reform measures currently proposed in Washington are a JOKE. But if you really want to change the things that are clearly wrong with medico-legal oversight (like giving anonymous complaints credence and piss-poor whistle-blower protection), this case is THE LAST case upon which you should plant your flag. You’ve set your cause back YEARS with this behavior.

    This nurse did not deserve to be legally crucified by a bunch of good-ole-boys abusing their power.

  28. Unfortunately, AAPS has affiliated itself with the Tea Party movement, which goes into raptures over Sarah Palin at its convention and would love to see her in the Oval Office. This is the woman who gets up and spouts Bush-Cheney era talking points, to the thunderous applause of the teabaggers. This is the woman who goes on Fox News Sunday and says that Pres. Obama might do well to declare war on Iran, as if the President of the United States had the authority to declare war! This is the woman who heaps scorn on the Constitution and laws that place limits on what presidents can do, and the Tea Party eats it up. Then AAPS howls about preserving the Constitution–the Constitution of the United States, or the Constitution of Fredonia?

    The Tea Party is a wholly-owned subsidiary of the Bush-Cheney wing of the GOP. It is too bad that the AAPS has embraced it with such whole-heartedness. It is too bad that it has decided that there is no such thing as a quack doctor.

    Conservatism itself has gone mad, taking the AAPS along with it. These people do not want John Adams; they want John Birch. We need a sober, effective conservatism in this country. AAPS, the Tea Party, and Sarah Palin are the wrong remedy for a serious political problem.

  29. Ed, due respect, I was done wrong during my stint in Hillary’s “village” – during hubby Bill’s administration.

    Oversight seems to be a bit of a problem in Federal programs.

    Meanwhile, the state of North Carolina, run by Democrats, was teeming with classic good-ole-boy corruption. I’ve been pleading with liars to prosecute perjury. Perhaps you’ve heard of our favorite sons, John Edwards, Mike Sleazely, Jim Black, Ruffin Poole and Tony Rand? They’re all Dems, and all either under investigation, indictment or already in jail.

    I’m not a member of the AAPS. I like Sarah Palin (mostly because she’s taking quite a beating – very gracefully and with good humor – for sticking to her principles and her own vision), but I don’t “rapture” over her. I am an Independent and after only a year of Obama and his super-arrogant super-majority, I’m all for flinging the tea.

    In addition to “sober” conservatives, it would be nice if the liberals in this country would tone down their smug/sanctimonius “we-know-it-all-and-everyone-else-is-a-moron” condescention about 10,000 decibels.

  30. My wife is an RN. During part of her career she worked in a rural area. This area had difficulty locating physicians and tolerated poor care and bad behavior that no urban area would have allowed for more than 10 minutes.

    I have been a Licensed Health Facility Administrator for nearly 25 years and I must say that until this case, I had never heard of AAPS. Having read this article, I can understand why that is. Physician, heal thyself.

  31. I was an RN for 13 years before changing careers in 1984 to mechanical engineering (after “reschooling” for more than 3 years) from which I retired in 2000. I have also been an associate member of AAPS since the Fall of 2007, though I was aware of its existence for many years prior and supported its goal of the doctor-client/patient relationship without interference of government. This particular Perspective entry, even without the replies it engendered (some quite negative regarding the stance taken by the anonymous writer, though apparently approved by the leadership) prompts me to repeat some essential points I made just 3 days ago at another Perspective – http://www.aapsonline.org/newsoftheday/00798/comment-page-1#comment-4079 – and to add a bit more under these circumstances.

    As long as government licensure is accepted as proper and desirable for the practice of any “trade”, including medicine, then government interference, into what the voluntarily transacting parties want, will continue. The government at some level and in some manner (usually indirectly through appointed “agencies” and legal institutions), urged on by trade/professional groups in most cases, dictates what the “standards” will be, and anyone not so performing can be charged with violating some law. The desires of the transacting parties are thereby made immaterial. Also, an individual can never be sure whether s/he is in “violation” of these “standards” since such government regulations are notoriously vague and ambiguous (it gives the government much more power to have it that way); additionally, preferential treatment is a hallmark of such government regulations (and the ambiguity enables easy escape from such accusations). A guarded, if not actually adversarial, relationship of all to all is the result of such government interference, rather than easy cooperation for exchange to mutual benefit, which is the hallmark of a really free society. This is always the end result of any “democratic” approach by any group – novel approaches and methods by individual members are squelched in favor of the entrenched majority.

    I would like to see some serious discussion and real consideration, whether or not by AAPS members, regarding the possible existence and potential characteristics (with great variations likely depending on the abilities and desires of each doctor and patient/client) of the desired doctor-client/patient relationship *without* any government licensure. Only in this manner will there ever be a serious reconsideration of the wisdom and desirability of such licensure. And note that no government licensure does not imply that there could not still be different kinds of standards to which different doctors adhere, even as there are now, outside of government (Institute for Functional Medicine, American College for Advancement in Medicine (ACAM), ASTM International (ASTM, formerly the American Society for Testing and Materials), the various medical specialty boards (ABMS) to the extent that they are not an arm of government, as just a few examples). If sufficient numbers of doctors demanded that government licensure be abolished (just as they did long ago demand that it be instituted, then I think this could actually be done. (BTW, the basis for such a society where members all freely interact to mutual benefit and self-order themselves without the presence of rulers/government is, “Social Meta-Needs: A New Basis for Optimal Interaction”.)

    It is the *existence* of government boards that is the problem, not the fact that someone makes public, information regarding what transpired during hir visit to/examination by a physician or even by a concerned (or possibly “malicious”) nurse or other party.

    The Internet can and ought to be used for dissemination of non-anonymous information by which Social Preferencing, both positive and negative, is practiced by everyone in regard to individuals as well as the products and services available. By being identified, “busters/whistleblowers” of any type are assessable by everyone just as are the individuals/businesses being “busted” – this is the potential influencing power of Social Preferencing when used by many people in a fully open and public manner. The so often occurring and even promoted use of anonymity in current society, reduces the possibility for and credible value of any public rating/assessment system – and this is something that anyone being “busted” in this manner can and should loudly proclaim.
    For non-anonymous public evaluations, the evaluated person should address these openly and fully; a person should always be proud of what s/he does and be ready to defend/explain hir decisions and actions. Likewise, s/he should be ready to learn and change when another shows where an error has been made or a better choice exists – the conclusion of “better”, for hirself, resting only with the individual assessor, with others making their own assessments known via Social Preferencing. (More on Social Preferencing at http://selfsip.org/solutions/Social_Preferencing.html ) There is no role for an organization dictating decisions to be carried out by actual or threat of physical force (eg government regulatory boards) in a society where all freely interact and self-order themselves, and I contend there is no need for such an organization even before such a society comes fully into existence, particularly since learning to do without such government agencies is part of the personal interaction “growth” necessary to reach such a freer society.

    I know this has been long, but I think the issue is vitally important and too much time and emotion is being spent without examining the core problem – government licensure and, as I wrote above, a guarded, if not actually adversarial, relationship of all to all is the result of such government interference, rather than easy cooperation for exchange to mutual benefit, the hallmark of a really free society.

    Kitty Antonik Wakfer
    Casa Grande AZ

  32. The AAPS used to stand for physician independence and against bad medical practices such as giving hepatitis B vaccinations to newborn babies who don’t have a functioning humoral immune system. Sadly, the AAPS now believes that physician independence equates with allowing quacks to practice medicine unhindered by law or by word-of-mouth.

    When we clean our own house and unlicense the quacks and incompetents among us, our reputation will recover, and we won’t have so many people believing that we’re just greedy monsters taking advantage of sick people. Apparently, AAPS members and many other physicians cannot diagnose and treat our profession’s biggest ailments.

  33. Accountability for Malice is now directed to the Doctor, Sheriff, Hospital and District Attorney. Ironic that this article had the entire episode backwards. The doctor (who had previously been reported to the state medical board and was on restrictions) was in cahoots with the Sheriff (selling their snakeoil together). The hospital, in err, fired the nurses and the District Attorney followed in lockstep. Unbelievable.

    Kitty’s remark: “It is the *existence* of government boards that is the problem, not the fact that someone makes public, information regarding what transpired during hir visit to/examination by a physician or even by a concerned (or possibly “malicious”) nurse or other party.”

    This is an equally astonishing conviction. Longing for the wild, wild west of yesterday in the name of Ayn Rand’s adolescent, simplistic philosophy. Thankfully, there was a jury (government intervention) or the little guy (the nurses) could have been facing 10 years imprisonment.

  34. Pingback: Science-Based Medicine » The Winkler County nurse case and the problem of physician accountability

  35. My apologies for this delayed response; I only today checked back to this site after not seeing any replies by the afternoon of the day following my comment.

    Brian wrote:
    ** @Kitty: Yikes. **

    And what does this mean?! A monosyllabic response, and that only an exclamation, does not contribute to reasoned discussion.

    Nancy wrote:
    ** Accountability for Malice is now directed to the Doctor, Sheriff, Hospital and District Attorney. Ironic that this article had the entire episode backwards. The doctor (who had previously been reported to the state medical board and was on restrictions) was in cahoots with the Sheriff (selling their snakeoil together). The hospital, in err, fired the nurses and the District Attorney followed in lockstep. Unbelievable. **

    The use of the word “malice/malicious” has been used both in the AAPS article and by some other commenters besides Nancy. I used it only in quoting the article itself, which is precisely why I put it in quotation marks – “…(or possibly “malicious”) nurse or other party.” Imputing intention is always foolish (not to mention slanderous) unless one has very clear evidence.

    The intent or desire of a person “to harm [another] usually seriously through doing something unlawful or otherwise unjustified” (from Merriam Webster’s definition) is most often not clear unless the person has made specific verbal or written statements of his/her (hir) intentions regarding an action taken. A person simply taking the action to inform others of the activities or practices of another with which that informant does not agree/approve may be and often is without any desire or intention to cause physical harm to the party with whom s/he does not agree/approve, but just to have that person stop the activities. In a non-coercive society, one has only the liberty to inform; it would, in such a society, be solely the decision of others how they will make use of such information – purchase or not the “snakeoil” or any service/product, or to voluntarily interact or not with such informant. The governments of Texas and of all the other 50 states of the US (and all other current industrialized and developing societies) are based on physical coercion; the Sheriff, Board of Medicine, District Attorney are just a few of the State agents/agencies that are legally permitted, themselves or through their enforcers, to threaten and actually use physical force on a person to get hir to conform to edict/directive/regulation/laws forbidding voluntary transactions between citizens.

    Nancy wrote:
    ** Kitty’s remark: “It is the *existence* of government boards that is the problem, not the fact that someone makes public, information regarding what transpired during hir visit to/examination by a physician or even by a concerned (or possibly “malicious”) nurse or other party.”

    This is an equally astonishing conviction. **

    It may only be an “astonishing conviction” to some (?many ?most), if it is quoted totally without any of the supporting statements that go with it.

    Nancy wrote:
    ** Longing for the wild, wild west of yesterday in the name of Ayn Rand’s adolescent, simplistic philosophy. Thankfully, there was a jury (government intervention) or the little guy (the nurses) could have been facing 10 years imprisonment. **

    None of this provides any reasoning for why the one sentence selected from my lengthy comment is not correct, even if “astonishing”, and definitely not for why all the rest of what I wrote is also not correct. Smearing another by assuming a certain classification (almost an ad hominem) – “Longing for the wild, wild west of yesterday in the name of Ayn Rand’s adolescent, simplistic philosophy.” – does not equate with a reasoned rebuttal.

    The people in the immediate and surrounding community of the reported incident in Texas were using negative social preferencing – withdrawal of association and encouragement of others to do likewise – either in support of the doctor and Sheriff or of the nurses. Previous to the report to “The Board” anonymously by the two nurses and later actions by the Sheriff, others were choosing to obtain this doctor’s services or not, and recommending him to others or not. As I wrote previously, the problem is the current all too common practice of anonymity (used by the nurses in this particular situation) along with the legal authority to use force – this last including the actions taken by the Sheriff towards the nurses, the rest of the local/state legal process and the authority of the Board of Medicine to grant or revoke the privilege of being a practicing physician.

    Nothing that Nancy wrote has addressed the one sentence she chose to use from my comment of 7/12. She has especially not addressed the paragraph that followed that sentence providing a brief explanation of how Social Preferencing works, and its potential for a non-coercive societal ordering mechanism. Such selective quoting does nothing to promote reasoned discussion – what is sorely needed by physicians and anyone who does or may want to seek their services. However this format of article comments does not lend itself to high level discussion – if that is what AAPS would truly like to promote on this and related matters regarding non-government intrusion in the physician-patient/client relationship. Instead, some form of threaded group or forum structure that easily enables inline replying to a quote of a previous message with previewing capability -something like Usenet or Yahoo/Google groups – is what is necessary for that purpose.

    Kitty Antonik Wakfer
    Casa Grande AZ

  36. As a foreign physician myself I think that the situation of doctors in this country comes close to indentured servitude. It appears that doctors have little protection and are required to submit to any possible request by using the so called medical professionality argument. The medical responsability of doctors is being misused to justify any demands on physician and deprive them of their rights ,making of them special class of citizens. Now hospitals are being asked to update a file on physicians every four months with evaluations of different parameters, most of them arbitrary and debatable. All this is catching physicians into a web so tight that they are at risk every day for being investigatedand lose their livelhood. this goes together with all the disruptive physicians requirements place on hospitals. It is a very threatening environment and no doctors now dares to speak up his or her mind. As a result hospital are entirely controlled by administrators with their emphasis on making money and political correctness.

  37. Is there accountability for malice?
    Maria-Lucia Anghel, MD

    This is a long story, but in “summary”, my OPMC/DOH, NYS Hearing was largely a third-party non-jurisdictional billing dispute of United Healthcare, which used OPMC to enforce it. United Healthcare is the official insurance for New York State employees.

    State Public Health Law requires that a physician be given the opportunity to be interviewed by OPMC staff. OPMC Web site states that the purpose of the interview is to weed out non-jurisdictional issues. OPMC has no jurisdiction or authority over billing disputes.

    OPMC did not offer me an interview on Patients C-D-E-F-G; no interview on 5 patients, whom I had seen between 1994 and 2007, over almost 14 years. The Department of Health misused its mission and abused its power when it deprived me of my right to be interviewed on the bulk of the case: the billing dispute, over which OPMC has no jurisdiction. Without due process, the dispute was fast-tracked and fabricated as “substantial” patient care issues and “fraud”.

    When my counsel became unable to continue representation due to extenuating circumstances (unexpected illness), around the beginning of May, 2008, my request for adjournment to allow the new counsel to prepare for a lengthy and complex case like this was denied by both the ALJ and the Hearing Committee. The new counsel had only one month to prepare and this was no expedited hearing. On May 2nd, aware that I was looking for replacement counsel, the ALJ ordered that a Prehearing be held on June 11th, 2008 (date certain), followed by June 23rd, the first day of the Hearing, and disingenuously wondered why I could not be offered an interview – an interview on 5 patients spanning over almost 14 years while keeping the date certain!

    With no care or sense of accountability for truth and accuracy, the DOH brought hundreds of baseless, false, and even conflicting charges, and used whatever it took, false testimony, false evidence and fraud, to misconstrue a case of “fraud”. The DOH misrepresented self-evident facts, and displayed no integrity when it protected and turned a blind eye to the false testimony and false evidence offered by its witness, an employee of United HC, whose billing dispute it advanced. The DOH brought false charges based on false evidence in United HC’s spreadsheets, which it knew about and withheld from us, or should have known about, because prior to any charges, it had critically examined and compared my medical and billing records against United HC’s billing spreadsheets for over four months. The DOH called its witness’ false testimony (under oath) and false evidence-containing spreadsheets credible and accurate.

    Putting the winning of her case above the truth, and herself above the law, the prosecutor herself tampered with evidence, when she created false evidence on which she based false charges. Upon our objection to the false evidence, she said mea culpa about the charges – that was my error… I said that was my error – but not a word about the false evidence, when in fact, knowingly and willfully she had her expert testify about the false evidence that she herself had planted! The Department of Health abused its immunity when it circulated several CD copies containing different false evidence, when only one CD was admitted in evidence.

    The ALJ abused his discretion on multiple rulings, but after he questioned why this CD is different than three of them, he failed to act when he should have. Next day, his false revelation it is a program with my computer confirmed his acquiescence to the methods of the Self-Righteous, even if they corrupted justice. When he became aware that the prosecutor had created and entered indicting false evidence into the spreadsheets, he remained silent on her misconduct, and was satisfied with her offer to amend the false charges, which she amended to a new set of false charges!

    The DOH also used non-jurisdictional issues like fees, or cost-effectiveness, non-participation with United HC, and insurance verification to make its case of “fraud”.

    The DOH brought ridiculous charges that inappropriately and without accepted medical indications and justification I “prescribed” over-the-counter Tylenol, Motrin, Calcium and Vitamin D and that I did not measure the circumference of a patient’s thigh, based on Dr. Petranker’s shameful “expert” testimony and the Committee sustained them!

    Two patients testified: Patient A, whose testimony the Department suspiciously withdrew after it was heard, and Patient B, whose perjured testimony and charges the Department refused to withdraw. The DOH called Patient B a credible witness. Charges based on perjured testimony are a shameful injustice, but they must be the norm at the DOH. The ALJ saw no wrong in maintaining them and denied our request to dismiss them, and the Hearing Committee, under the ALJ’s guidance, assigned no credibility rating to Patient B, the only witness whose credibility it “forgot” to rate, but sustained all the charges on Patient B! None of the three, the Prosecutor, the Judge or the Hearing Committee had any problem with charges based on perjured testimony.

    After it subpoenaed my medical and billing records in November 2007, the DOH scrutinized them for about 4.5 months before it brought its charges on April 21st 2008. Meanwhile, my records were also reviewed by its expert, Dr. Petranker, who issued his opinion in February, 2008. During the Hearing, Dr. Petranker never said a word about the false evidence he had come across when he crosswalked my medical and billing records against United HC’s billing spreadsheets, when he should have. The DOH based its charges largely on Dr. Petranker’s review of my records.

    Knowingly and willfully, the DOH brought false charges that I billed for labs that were never performed, even though the Department had done its own close inspection and comparison of my medical and billing records against United HC’s billing spreadsheets and it knew or should have known that those labs and tests had been done. In its three sets of charges, the DOH also relied on Dr. Petranker’s preliminary report and testimony, but in the Hearing, Dr. Petranker testified that all the labs and tests that I billed for had been done, they were in the chart. The DOH brought false charges that I billed for tests that I never performed so as to justify prosecuting United Healthcare’s billing dispute, over which it had no jurisdiction, were it not for the word fraud[ulently billed]. Consequently, the DOH placed knowingly and willfully, i.e. fraudulently, at the beginning of almost each and every charge. The DOH amended its charges twice: in May 2008 and on September 26th 2008, a time when Dr. Petranker’s testimony had been heard and ended, but never amended the false charges that I billed for tests that I never performed, even though it knew or should have known that they were false, based on its own fishing expedition and Dr. Petranker’s testimony.

    The Department’s expert, Dr. Petranker, was a hospital-based anesthesiologist who had no credentials or authority to testify about either Pain Management or Internal Medicine office practice. Dr. Petranker misrepresented his credentials, repeatedly called himself a pain management doctor and recklessly testified about unfamiliar topics: pain, internal medicine etc. The DOH used Dr. Petranker’s deceiving, unqualified and self-contradicting opinions in support of practically all charges, and also had him certify false evidence (Patient B’s, United HC’s and prosecutor’s), on which charges were based.

    Dr. Petranker was the only witness that was allowed to use his own personal computer during the Hearing, for smooth talking points, I suspect, another unfair practice that prejudiced me. But when my turn came to testify, the ALJ always made sure that I had nothing in front of me, except for what he handed me.

    The Committee was not told for 6 months that United Healthcare’s spreadsheets contained false evidence which had been testified about and relied upon in the charges. The prosecutor withheld that information from the Committee and the ALJ condoned her silence. The DOH placed its self-interest, certainly not the public interest it was meant to protect, above justice. The prosecutor quoted Mr. Stephano to have realized his human error only in the Intrahearing, a phony admission good-for-nothing, because the Committee had no access to it, either then, or later, a hypocrisy and an offensive downplay of inadmissible conduct. Finally, 3 weeks before the Hearing ended, United Healthcare’s agent, Mr. Stephano, produced a circuitous, incomprehensible Sworn Affidavit, that confirmed his false testimony, but did no justice for his false evidence, neither of which bothered or was even noticed by the prejudiced and sleepy Committee, as judged by its credibility rating: Mr. Stephano was found to be a credible witness, and by its decision. The prosecutor never withdrew Mr. Stephano’s false evidence which she said she would, but knowingly and willfully, relied on it in her charges, which the Committee sustained!

    The Hearing Committee restricted both my expert’s and my own testimony to a Questionnaire – a crass prejudice and violation of my rights that no other witness was subjected to.

    One of the three Committee members was away in Florida where he listened in from for three months, until the Hearing ended. The ALJ assured us that he would see the testimony by video conference, or else he will come back, neither of which happened. [IHT. 245]

    The Committee’s bias and own self-contradictions contributed very much to the revocation of my license. During the Hearing, the Chairman of the Board undeservingly called Dr. Petranker a bona fide pain doctor, which he clearly had no credentials for; but in the Det&Order, the Hearing Committee misrepresented and downgraded my credentials, as a recently recertified anesthesiologist, leaving out that it was Pain Medicine I had recently been recertified in, a subspecialty of Anesthesiology in which Dr. Petranker was neither certified nor eligible to certify in, and which should have disqualified his testimony as inexpert to begin with. Our objection to such mischaracterization was objected to by the prosecutor and overruled by the ALJ, betraying the pervasive prejudice and unfairness of this administrative proceeding, with no checks and balances at any and all levels. But the Committee’s ultimate bias and inconsistency – the Judas kiss – was its Interim Decision, that everything that I did was indicated and justified, that I met the standard of care based on all evidence so far, including testimony and medical records. It was at this time of the Interim Decision that the Hearing Committee restricted my testimony to a Questionnaire, which precluded my defense, when the DOH, using the same evidence, including medical records, brought back charges understood to have been dismissed and the Committee sustained them! Contradicting its own decision, the Hearing Committee signed off on all these returning charges, skillfully crafted and intertwined by the DOH like a spider web, each of which alone justified the revocation of my license and a whopping $240,000 fine!

    The billing dispute – From the testimony of United HC’s agent – Mr. Stephano: We are currently the second largest insurer in the world….Ingenix is a subsidiary of United Healthcare Group.. Ingenix is, in essence, the data capture, data mining and investigative arm that United Healthcare Group utilizes with regard to the rest of United Healthcare’s claims business. [T. 919-921]. … Mr. Bateman: You said you were very successful in those cases? Mr. Stephano: Yes. Mr. Bateman: Successful in those cases means you got money back to United Healthcare; is that right? Mr. Stephano: I recovered funds that were previously paid and we halted the future submission of similar claims. Mr. Bateman: In preventing to having to pay out money on future claims? Mr. Stephano: Exactly. [T. 1153-1154]

    United Healthcare’s cherry-picking from my billing was sheer data-mining. Judge Zylberberg: What was the purpose of creating the spreadsheet? Mr. Stephano: I developed this spreadsheet to reflect the services that were billed, not how we paid them. My focus was to identify how services were billed…From my perspective, the labs were the big component of that. ….Judge: How did you pick these patients? Mr. Stephano: …her patient base was approximately a 30 to 40 patients. I looked at patients that had the biggest billing history….It is pointless to look at a patient that has no claims or one claim. The chosen records were admitted by Mr. Stephano not to have been representative of my patients. Mr. Bateman: Is it fair to say that the five patients contained on that chart that you assembled are not necessarily representative of Dr. Anghel’s submission? Mr. Stephano: It is not all of her patients. I was asked to produce this information for by the Health Department. Judge Z: Which was my question is, how did these patients get picked? Mr. Stephano: I was asked to provide information on these five patients by the Department of Health. [T. 1113-1114]

    Details:

    Dr. Stephan Petranker, medical expert for the Department of Health
    Mrs. Bloch, prosecutor for the Department of Health
    Mr. Bateman, my counsel
    Mr. Stephano, United Healthcare employee in the Investigative Unit
    Judge Zylberberg (the ALJ)
    Mr. Heckert, POLEP Director
    Ms. Thelian, billing expert
    Dr. Putterman, Chairman of the Hearing Committee
    Dr. Levinson, Member of the Board
    Mr. Ducey was a lay Member of the Board
    Patient B (a perjured witness) testified on behalf of the DOH

    False Evidence and Deceiving Testimony

    False evidence made its way in this hearing when Mr. Stephano, a United Healthcare employee, introduced in evidence a CD/billing spreadsheets (created in December 2007) as accurate computer printouts of my billing from June 1st 1994 to June 30th 2007, which in fact had been manually compiled and contained false dates of service. Dr. Petranker testified about and certified the false dates of service in the spreadsheets which were used in support of the following charges: Excessive Tests and Treatment, Negligence, Gross Negligence, Incompetence, Fraudulent Practice and Failure to Maintain Records [T. 1294-1296]. Dr. Petranker, an anesthesiologist without credentials or expertise in either Pain Management or Internal Medicine, an emperor without clothes!, cavalierly testified on both. Practically all charges were based on his reckless testimony.

    Under oath, Mr. Stephano certified as business records the spreadsheets/CD he took credit for having created, and again under oath he testified that all of the data represented on those spreadsheets were maintained and stored by United Healthcare in its electronic database system, and done so in the regular course of its business. [T. 1022]

    Well, we intuitively know that United HC does not maintain and store false evidence in the regular course of business or at least, it would not delegate Mr. Stephano to testify in court about that.

    After we objected to the false evidence, it took 6 months, from August 2008 to February 2009, for Mr. Stephano to submit, as late as 3 weeks before the Hearing ended, a Sworn Affidavit with a partial list of false dates of service, in which he went round and round explaining away why those dates were found in the spreadsheets, and not in any of my records. In it, Mr. Stephano referred to the ….service dates for which no corresponding billing submission by the Respondent nor entry in her medical record could be found as … the dates in question, even though there was no question about their falsehood, the false dates of service were certain. Under oath, for the 3rd time now, Mr. Stephano affirmed: In order to provide the information requested by DOH, the various blocks of claims data had to be brought together onto a new (new?) spreadsheet via a manual process….IT programmers who run data requests from various departments apply their own preferences in setting up the job extracts…. Accordingly, the manual compilation the two extracts (sic!) was a tedious… sometimes dates of service may not always be in the same order … especially when significant time has passed between data requests. Manual compilation? … But under oath Mr. Stephano testified that the spreadsheets were computer printouts of data generated at the time business was conducted; really, computer printouts of manual compilations of false dates that could not have been generated at the time business was conducted – a.k.a. false testimony about false evidence. Also, significant time (?) between data requests had not passed. The dates “in question” were from 2004, only three years prior to their creation in 2007. We can only imagine what happened to “that order” where significant time had really passed, as Mr. Stephano emphasized for us. Mr. Stephano’s Sworn Affidavit also references below quote from his own testimony: Ms. Bloch: But regardless of that, they still reflect the accurate date of service as indicated by the physician or the provider? Mr. Stephano: Yes. Yes. [T. 1009] [T. 1005-1009]

    In no other court would spreadsheets proven to contain manually-inserted false evidence still be called accurate computer printouts. Of course, we know that to be false: the 23 false dates of service are just that: false, not accurate. Here is Mr. Stephano’s partial list of dates in question (false dates):

    For Patient C, 1/8/2004, 1/9/2004, 1/26/2004, 1/28/2004, 4/5/2004, 4/6/2004, 4/21/2004, 4/22/2004, 4/28/2004; for Patient D: 2/3/2004, 2/5/2004, 3/10/2004, 3/12/2004, 3/19/2004, 4/2/2004, 4/8/2004, 4/14/2004, 4/29/2004; Patient E: 1/5/2004, 1/13/2004, 1/21/2004, 2/6/2004, 3/10/2004. (23 dates in total)

    Mr. Stephano concluded in his Sworn Affidavit: …and it should be noted that no other date errors in the 88 pages of data contained in Exh. 12A were identified.

    His last sentence was just as false as his Sworn testimony was. A travesty of an Affidavit, Mr. Stephano’s Sworn statement spoke nothing to the fraudulent use of the flawed spreadsheets, the Affidavit was non sequitur, non-responsive and worthless. Mr. Stephano admitted to 23 dates in question, but I counted 37 false dates in my spreadsheets, over the same time period January-April, 2004 alone. The additional 14 false dates are: Patient C: 3/9/2004; Patient E: 3/11/2004, 3/25/2004, 3/26/2004, 4/1/2004, 4/20/2004, 4/21/2004, 4/30/2004; Patient G: 1/8/2004, 1/9/2004, 1/27/2004, 3/16/2004, 4/16/2004, 4/22/2004.

    Dr. Petranker testified about this batch of false evidence, these dates were used in support of Charges of Excessive Tests and Treatment, which also went to Charges of Fraudulent Practice, Negligence, Gross Negligence and Failure to Maintain Records.

    On Mr. Stephano’s false evidence, kept in the dark, away from the hearing committee (from December 4th 2008 Intrahearing) – Judge Z: But the hearing committee has no idea that this – -these are the facts that have come out at the intra-hearing, so they don’t know. [IHT 378]

    When Mr. Stephano issued his too late Sworn Affidavit 6 months after we objected, a calculated withholding, the Hearing Committee had already heard all the testimony from Dr. Petranker, and any statement Mr. Stephano made that late in time meant nothing to the Committee, who would not have known or remembered that many of those false dates were later to be used in support of above Charges. Ms. Bloch: I have the Affidavit from Mr. Stephano [IHT. 465], from February 9, 2009 Intrahearing.

    For the false evidence he “created”, and for his skillful way of ducking the question about the false evidence, upon the DOH’s recommendation, the Committee rated Mr. Stephano a credible witness!

    Here is the Department of Health’s position on this false evidence:

    Ms. Bloch:…I and our law student, who was here last time, went through the entire spreadsheet, compared it to Dr. Anghel’s record to look for each of the entries in the spreadsheet and see if she had an office note. [IHT. 286]. What we came up with is identifying her — Patient C through G…I would say the greatest number of all the dates on the spreadsheet was probably no more than a dozen to be generous, of all the dates where we could not find either a progress note or an electronic billing. They …were all.. in the early part — early months of 2004….I had called Mr. Stephano and said, you know what we found. Can you account for why there are this group of dates that we can’t find substantiation for? He went back to what he had done and realized that, in fact, it was his error, …he had to compile …[IHT. 288]…All the information, both before January of’ ’04 and after, came from the United Healthcare main computer source. …But…, having to manually match up some dates, inadvertently put in …dates that were actually processing and payment dates. So, for the group of dates that we have identified that we cannot find the match, it is because they weren’t service dates. They were inadvertently put in as service dates, but were, in fact, dates that claims were processed and mailed…checks were mailed out to the members. But, they are, as I said, a few.[IHT. 289]…a minuscule percentage…of the entire dates billed for. [IHT. 291]…I could have Mr. Stephano do an Affidavit that will just set forth where those errors were and how they were made or I would be happy even to withdraw those dates as part of the spreadsheets and leave everything there [IHT. 291] Judge Z: …does that mean …those dates are process dates? Ms. Bloch: They are just like a group of dates, like maybe in Patient C, …nine dates that we couldn’t find a match for. And I asked Mr. Stephano, you know, where did those dates come from? And he realized that he made an error. It was his human error, that those dates are just what– you know…when a check went out. Judge Z: Okay. So a process date? Ms. Bloch: Right….But I don’t think it matters because we just take those dates out. Those are incorrect dates in the — …spreadsheet. It just was including billing date — processing dates in a spreadsheet under …service dates.[IHT. 292-4]. Ms. Bloch: Judge, come on, because there are nine that are inaccurate, and he has an explanation… Mr. Bateman: Judge, just so we are clear, that is nine that Ms. Bloch acknowledges on Patient C. Judge: Nine on one patient? [IHT. 303] Mr. Bateman: …the Department has an obligation to make sure the spreadsheet was accurate in the first place. And for that matter, Stephano had an obligation to make sure that it was accurate in the first place. as to the codes when it came to needles and boxes of gloves…the answer was, well, we will just do a second amendment to the Statement of Charges. [IHT.304-305]
    Mrs. Bloch stated that she and the law student counted no more than a dozen to be generous dates, which of course is false …, a minuscule percentage of manually compiled dates, … it was his error, Mr. Stephano’s human error, the dates which do not matter because we just take those dates out, that she would be happy to withdraw, but never did, which were in fact process dates, not service dates; they were dates when checks were mailed out to patients..Now we are to believe that patients received payment checks for Stephano’s false evidence.
    As to the minuscule percentage, the error rate is calculated per time interval during which it occurred, from 1/1/04 to 4/30/04, the way these false dates were projected, not over 14 years, which would dilute the error and make it meaningless. We did not see the 14 years projected up on the screen, but we and the Committee surely did see this 2004, 4-month batch that Dr. Petranker testified about, time and again. [T. 758; 760-762; 1294-1296; 1497-8; 1538; 1556-9; 1633-1653; 1667-1688]; [IHT. 178-179]
    On the several CD versions of only one (original) CD (soft version of spreadsheets) admitted in evidence, which did not contain the same false evidence:

    Judge Z counted 33 in his CD (on the day he went on record about it): So we have 33 – -my calculation is 33…. [IHT. 332]. I counted 37 in mine. Mr. Stephano admitted to 23. (I am referring just to the Jan-April, 2004 batch.)

    Judge: Just indicate for the record that this CD that I have, which is a copy, dated May 2008, does not have March 10th or March 11th, 2004. [T. 1653]

    Both March 10th and March 11th were in the 2004 false batch of evidence. From September 23rd, Intra-Hearing [IHT. 129]:
    Judge: You have to deal with this discrepancy in the CD. …No, no, not the part about the fact that you know what is on the CD may or may not be in the medical records….The discrepancy between your CD and my CD, that is a problem. Ms. Bloch: I have no idea how to account for that. I didn’t make the copy. And all I could say is this is the one that is in evidence. We will make a new copy and see what happens for you. I mean, I have no idea why that happened. Judge: But it is not just one. THIS ONE IS DIFFERENT THAN THREE OF THEM. Mrs. Bloch: I have no knowledge of this, I have no knowledge base. I have no experience with the…my ability to use a computer is very limited by present standards and certainly with respect to spreadsheets and this data…this is what is in evidence and that is what I am going to go by”. Judge: But which one is the original? [IHT. 131]. Judge: …there is no way to make a copy and drop just a couple, …delete just a couple of lines in an Excel sheet. It doesn’t make sense. …[IHT. 132-133] …Mr. Bateman: …that screen up there right now, line 767 to 800 indicate that it is a pretty comprehensive error. Judge: There are a whole bunch of them. [IHT. 136]… I don’t have those flags in mine. And also, this is something else that I noticed… Go to line 760, go up just a little bit. Now go to the left…here is something else that makes absolutely no sense, line 760, which is really 12/8/03, which is your line 761…[IHT. 138] Patient D doesn’t appear straight. Mr. Bateman: It becomes indented as of January 21st of 2004 on the flow chart that we are looking at on the judge’s disk. For some reason, it gets indented from this line forward. [IHT. 139] Judge: There is absolutely no reason for that. Mr. Bateman: I’m sorry, in 12/8/03, your line 760 is indented. Ms. Bloch: You know what, if we are talking about what is on a copy, this is the original (indicating), This is what is in evidence.[IHT. 139] Judge: ..it is not that it is just a copy or a bad copy, where did this copy come from (indicating)? [IHT.140] You can’t copy it, a CD, and make an error like that. This has to come from something. Ms. Bloch: I mean, I don’t have an answer. This is silly. … I could have Roy come in and explain that. [IHT. 140] Well, … Roy (Nemerson) never came to explain it.
    Mr. Bateman: …but now we have other exhibits that are just as contaminated. The 17s, which were, quite frankly, Judge…the 17 exhibits, which is the CPT codes, listed by frequency and date for each of the patients, the Department’s response to my objection to that was, oh, it is nothing more than just a turntable or a turning of what is in here. Ms. Bloch: And it is what is in there. Judge Z: Except that that.. Mr. Bateman: Except that that is not accurate. Judge Z: No. But, as you pointed out to me, that doesn’t have that date. Mr. Bateman: The April 29th date. [IHT.153-154] … Ms. Bloch: I don’t know the answer to why there are these little changes [IHT. 156].
    Mr. Bateman: …we are now learning that the disk is inaccurate for some strange, unidentifiable reason, a copy and copies of the disk have different data completely and there are more inconsistencies than I could point out. [IHT. 157]
    Also, false evidence that was not present in all circulated CD copies was the result of manual insertion of a description of needles by a box of one hundred, code A4215, one that never existed in any code book (always defined as individual needles) and thus could not have been erroneously computer-generated; indeed, such insertion could have been done only manually, and done so with malice, as I would argue.
    From September 23rd 2008 Intrahearing (continued):
    Ms. Bloch: … “the needles that I included, that was my error and I am willing to amend it….I think, even on the spreadsheet, the needles indicate that they are per needle….I am willing to amend …the charges are inconsistent with what even the spreadsheet indicates on the needles”. [IHT. 147]
    Ms. Bloch: … I said that was my error. It always was the same. The syringes didn’t change. When I did the charges, I put them in per box and I did that in error. I need to amend the charges. The syringes have always been singularly. [IHT.175]
    When she did the charges? How about when she did the false evidence; the 100/box needle description that she manually entered into the spreadsheets in support of false charges? The prosecutor admitted to her error a.k.a. the false charges but said nothing about the false evidence. Inexplicably, and unlike any other false evidence, Mr. Stephano’s false dates or the 100 per box glove description, the needles per box of 100 description disappeared from the spreadsheets as soon as we objected to their false description, and even before their related charges were amended. But that false description, called planted evidence was there in the spreadsheets and projected on the wall the day Dr. Petranker was asked to testify about it, on August 7th, 2008 [T. 758]
    Ms. Bloch: And then A4215 are needles ANY SIZE, would a full box of needles be used?…How many needles do you typically use for this kind of procedure? Dr. Petranker: She listed two needles being used, one needle to do the local anesthetic injection and the other one is the epidural needle. (he was probably reading from my medical records, as my billing record shows 1 needle). [T. 758] [T. 3300]

    Knowingly and with intent to mislead, the prosecutor brought false charges based on false evidence entered by herself into the spreadsheets. This is called fraud and prosecutorial misconduct.

    Judge: It is suspect. It is suspect. To me, it is suspect at this point. [IHT.177]
    The next day, Judge Zylberberg’s findings about the CD discrepancies were no longer suspect; this CD is different than three of them became a program with my computer (sic!) [IHT. 196] Judge Z chose the path that least disrupted his conscience, the Department’s case, its reputation, and its high profile status: I am going to treat this the same as I treated Patient B (the perjured patient)…the credibility…[IHT. 198], and assigned them to the Committee’s credibility basket. His computer, not the CD, was a much more acceptable culprit.
    Both Mr. Stephano (the 2004 batch and more) and the DOH (100 needle/box description of A4215 code) brought false evidence into this Hearing, which the DOH used in support of false charges.
    The Judge never addressed the false evidence inserted by the Department in the spreadsheets; he took no action on the 100/box needle description, when he should have; he accepted the prosecutor’s Amendment to the Charges without a question about the false evidence that led to them. Throughout this Hearing, the remedy he chose for false testimony and evidence was credibility, amnesia, silence and no action: a) “credibility” instead of dismissing the testimony of perjured Patient B who lied about her credentials, and on whose credentials charges were based (see my Letter of Grievance); credibility, instead of dismissing the spreadsheets for the false evidence they contained; b) amnesia – the Judge instructed the Hearing Committee to delete from its memory Patient A’s withdrawn testimony, after it was heard; c) silence and no action on the Department’s insertion of false evidence and on its false charges; silence and no action on Mr. Stephano who under oath testified falsely 4 times; silence and no action on Dr. Petranker’s misrepresented credentials, and on his deceptive and reckless testimony; the Judge overruled our objection to the bona fide pain specialist mischaracterization of Dr. Petranker by the Chairman of the Board (see my December Letter of Grievance); d) The Hearing Committee, with judicial guidance, no doubt, restricted my expert and my own testimony. And credibility, amnesia, silence, and restricted testimony did zilch for justice, as he unduly protected those who misused their privileged immunity.
    In response to our objections, on September 26th 2008, the Department of Health filed its Second Amendment of Charges related to the “little errors” in the spreadsheet definition of the needles (v.s.), and also of gloves (per box of 100), whose definition from pair to 100/box had changed over the years, while the code remained the same.
    Ms. Morales Bloch: Mr. Bateman keeps saying that it is unreliable, that there are code changes, that there are a number of errors. And I haven’t heard what they are. He keeps making that argument, but hasn’t raised any specific. So, I agree if he has specifics, it should go before the committee. But I haven’t heard any specific other than the gloves. Mr. Bateman: Judge, first of all, in all fairness, it was the Respondent who brought to Ms. Bloch’s attention the issues with respect to the allegations on billing for supplies—Ms. Morales Bloch: Yes. Mr. Bateman: Excuse me. (Continuing) – which resulted in the amended charges. [T. 337-339]

    Dr. Stephan Petranker’s deceptive testimony- the expert for the DOH

    Through misrepresentation and omission, and without any credentials, (fellowship and Pain Board certification), or any special training, knowledge or experience in Pain Management, Dr. Petranker claimed expertise he did not have. (I called omission failure to disclose something that was required to be disclosed). He managed to mislead and influence the Hearing Committee’s decision to such an extent, that the Committee’s Chairman called him a bona fide pain specialist and the Committee rated him a highly credible witness. Not true expertise, but his unauthoritative opinion is what he proffered in this hearing while he irreparably hurt me, my career and my livelihood, a loss that a physician (and I) will never recover from. Expert witnesses enjoy almost unlimited immunity, and Dr. Petranker abused this privilege. Testimony like his hurt me and my family beyond what words can describe, it hurt my patients, but also the medical profession, and the society in general; and while it may have established case law, it will also hurt more doctors in the future. Dr. Petranker a) misrepresented his pain expertise, and b) his hospital-based vastly anesthesiology practice was irrelevant to the scope of my office-based, pain and internal medicine practice …as a pain management specialist, I would not even have had this patient…from Dr. Petranker’s testimony [T. 1283]; he actually called himself a pain management specialist.

    From Dr. Petranker’s Curriculum Vitae:

    Woodhull Hospital and Mental Health Center, Chair, Department of Anesthesiology and Pain Management
    2 years in General Surgery residency, PGY I, PGY II (1985-1987) Brookdale Hospital
    2 years in Anesthesiology residency CA-1, CA-2, btw. 1987-1989. Brookdale Hospital.
    No fellowship listed, in any subspecialty
    No pain practice between 1995-1998(9)
    Diplomate, Board of Anesthesiology: 4/93
    Pain Board Eligible: 1991

    During the hearing, Dr. Petranker was asked if there were any updates he wanted to make to his CV. Ms. Bloch: Is that a correct C.V. or are there any additions or some things that are no longer applicable? He said yes, and went ahead to update his military record [T. 673], but said nothing about updating the record on Pain Board eligibility, when he should have. Indeed, Pain Board eligibility (1991) was not a qualification that Dr. Petranker could claim either 13 years later, in 2004, a time when he revised his C.V., (indicated in rev. 7/04), or, even less so, 17 years later, in this 2008 testimony. When Pain Management acquired the status and recognition of a subspecialty, privileged with its own board certification, a blank statement of eligibility was issued by the ABA to all anesthesiologists. But that Pain Board Eligibility was never intended to be open-ended, and in fact it was short-lived, soon to be followed by rigorous requirements, which included a fellowship and being registered to take the board exam, according to the board-certification process. When Dr. Petranker inserted Pain Board Eligible: 1991 (or failed to remove it), as if that were still the case 17 years later, he knew that he had never sat for the Pain Board exam or sought any special training or fellowship in Pain Management, so as to qualify for ongoing credentials he never really had. When asked (cross, Mr. Bateman):… Would it be fair to say that on the clinical side the primary work that you do is in the area of anesthesiology and not pain management? Dr. Petranker: Yes. [T. 1172]. .. Mr. Bateman: Are you board certified in pain management? Dr. Petranker: No. T. 1172] Mr. Bateman: Now, do you see patients in the clinic area in the area of pain management? Dr. Petranker: No. [T. 1173]

    Not board-certified in Pain, no fellowship in Pain, doing primarily anesthesia, not pain management, but listing Pain Board eligibility since 1991 as a credential for Pain expertise, and calling himself a pain management specialist.

    Mrs. Bloch (Prosecutor): And could you just describe your – some of your past medical practice as it relates to both pain management and anesthesiology? Under oath, Dr. Petranker answered: I began with pain management in 1989 during my fellowship in anesthesiology. [T. 671]

    So, he began with pain management (in which he had no fellowship) in 1989, during a fellowship in anesthesiology? But he did not list in his C.V. any fellowship in anesthesiology. If he even had such a fellowship in anesthesiology, then why wouldn’t he list it in his C.V.? According to his C.V., which he had an opportunity to update, Dr. Petranker never sought additional training or fellowship beyond his 2 years of clinical anesthesia CA-1 and CA-2. He did not misspeak, he actually knowingly misrepresented his qualifications, when he claimed to “have begun with pain management” in 1989 during his fellowship in anesthesiology, a fellowship that is undocumented in his C.V., which could not have been an oversight, and which, if it existed and had been documented, would not have spoken in support of his pain expertise, but against it. As an expert witness, Dr. Petranker had a duty to disclose his credentials, but through misstatements and omissions of material facts, he effectively misrepresented himself as a pain management specialist, a qualification that he did not possess.

    Dr. Petranker placed “beginning with pain management” near “during my fellowship in anesthesiology” so as to create a perception of an association between “pain management” and … “fellowship”. He misrepresented his credentials factually, through omissions, and through language: through word selection, placement and association. He was the only witness that was allowed to use his own computer during his testimony. [T. 1437]

    In cross. Mr. Bateman: …You testified in your earlier training that you had done a fellowship in anesthesiology? Dr. Petranker: That’s correct. Mr. B: That was in anesthesiology, not pain management; is that right? Dr. Petranker: Correct. Pediatric anesthesia fellowship and part of that fellowship entailed pain management. At that time, there was no specific fellowship available. Mr. Bateman: When was that? Dr. Petranker: In 1990, I graduated…I’m sorry, I did my—it was in Pittsburgh, sir…let me go on back for you.19..1987 to ’88. [T. 1220].

    His C.V. says nothing about 1990… or Pittsburgh. Did he accidentally speak the truth? So … which is it? Did he do a Pediatric anesthesia fellowship, which also entailed pain management? When was that? His answer 1987-1988 [T. 1220] could not have been the year, because he was doing his CA-1 at that time. And then why didn’t he list it in his C.V.? If he never did a fellowship, as indicated in his C.V., then he misrepresented when he testified that he did one. We know residency rotations during the 2 years of clinical anesthesia are not fellowships. His C.V. clearly reads: CA-1, CA-2 1987-1989 (CA stands for Clinical Anesthesia). So, he had 2 years of CA, at the end of which there is no fellowship listed. If he did a fellowship in his CA-3 then he misrepresented his qualifications by omitting it from his C.V.. But is he misrepresenting now that he did a fellowship when in fact he didn’t, or when he omitted it from the CV? And IF there was no specific fellowship available at that time, as he concluded, then why did he call it a fellowship? The 2 years of anesthesia residency CA-1 and CA-2 leave no room to account for Pediatric anesthesia fellowship by this or any other name. A Pediatric anesthesia fellowship that also entailed pain management is not something an anesthesiologist would omit from his C.V., especially when he went out of his way to misrepresent his Pain Board eligibility all the way from 1991 and when he could and should have added the entailed pain management to his claim of Pain expertise, if that had been true. If in fact Dr. Petranker did do a fellowship in Pediatric anesthesia, as he testified, but which conflicts with his C.V. where he did not list it, and which in fact could not have also included pain management, as he testified, then he did so to conceal the obvious unrelatedness of Pediatric anesthesia to Pain Management, which would have disqualified his claim to pain expertise.

    Furthermore, under oath, Dr. Petranker falsely testified that at that time, there was no specific fellowship available. I did my residency in Anesthesiology CA-1 and CA-2 between 1986-1988 and my last year between 1988-1989 was my fellowship year. The fellowship had recently been introduced and that was true nationwide. So, a fellowship was available at that time. Dr. Petranker completed his CA-2 a year after I completed mine. If a fellowship was available between 1988-1989 when I did my fellowship, then, that much more would a fellowship have been available a year later, after 1989, the year when he finished his CA-2. See his CV CA-1, CA-2 1987-1989.

    Dr. Petranker testified falsely, equivocated, omitted and misrepresented his credentials and practice in Pain Management, with the intent to mislead: to project expertise in Pain, a field in which he lacked credentials and authority, and that was no innocent oversight.

    Dr. Petranker omitted to list in his C.V. a Pain practice of 3-4 years, in “my community of pain management experts”, a practice to which he testified in cross-exam, whose name he did not remember, and whose office space also burned down.

    When asked by Mr. Bateman: Have you, during your career seen patients in an office setting outside of a hospital for pain management? Dr. Petranker answered: Yes. Mr. Bateman: Okay. When was the last time that you operated in that capacity? Dr. Petranker: 1999. Mr. Bateman: And where was that? Dr. Petranker: Long Island, Deer Park Avenue. Mr. Bateman: In a private practice? Dr. Petranker: Yes. Mr. Bateman: Is that listed on your resume or your CV? Dr. Petranker: Let me—Mr. Bateman: Do you have it? (Handing) Dr. Petranker: No, it is not. Mr. Bateman: What was the name of that practice? Dr. Petranker: It escapes me right now. I was working as part of an internal medicine practice in Long Island. I
    don’t recall the actual name of the practice. It has since—the office space burnt down and I don’t know that they reestablished. Mr. Bateman: And that was back in 1999? Dr. Petranker: That is correct. Mr. Bateman: How often were you working in that office? Dr. Petranker: Three times a week. Mr. Bateman: Full days? Dr. Petranker: Yes. Mr. Bateman: Were you seeing patients for internal medicine as well? Dr. Petranker: Yes. Mr. Bateman: And some of those patients were pain management issues? Dr. Petranker: Yes. Mr. Bateman: Okay. Dr. Petranker: The bulk of them, sir. [T. 1175-1176]

    Mr. Bateman:…. office-based pain practice I know you testified about a practice that you worked at in, was it 1995, in Deer Park? Dr. Petranker: Deer Park ended in 1998. Mr. Bateman: Ended in 1998. And in 1998, in an office-based setting, if you can tell me, was it the practice to use fluoroscopy in an office-based setting for these types of injections? Dr. Petranker: It was emerging at that time. We were gaining momentum in my community of pain management experts to go ahead and to use fluoroscopy. [T. 1226-1227]

    Whether Deer Park ended in 1998 or 1999, strikingly, Dr. Petranker “forgot” to list Deer Park in his CV, “an office-based pain practice” where, he testified, he worked between 1995-1998 (but also 1999), say for 3-4 years, and where he was gaining momentum in his community of pain management experts. Why would he not include in his CV a pain practice in his community of pain management experts that would have been such a credit toward his momentum gained in pain management? [T. 1227] …Even if that place burned down…

    Without credentials for pain management expertise, Dr. Petranker testified and referred to himself as an expert: We were gaining momentum in my community of pain management experts to go ahead and to use fluoroscopy. [T. 1227]

    Dr. Petranker included himself in “that” community of pain management experts, but surprisingly, forgot to list “that” practice in his C.V.

    Dr. Petranker’s entrepreneurial talents (an MBA degree holder) when he organized a pain program spoke for his business, not medical specialty credentials. After Dr. Petranker introduced himself as the Director of Anesthesiology and Pain Management, and by the time he ended his 4 full days of testimony, so successful he was in misrepresenting his pain credentials and expertise, that Dr. Putterman, Chairman of the Board, asked him: As a bona fide pain specialist, were the procedures performed indicated in terms of patient care? (betraying that he had successfully been misled by Dr. Petranker’s misrepresentations). Mr. Bateman (my counsel): Judge and Mr. Chairman, just for the record, I object to the form of the question referring to the doctor as a bona fide pain management specialist. The testimony indicated that he, in fact, is not. Ms. Bloch (prosecutor): I don’t know if there are any facts about it. I object. Mr. Bateman: Doctor, just for the record, I have to object. Judge Z: Your objection is overruled. Dr. Petranker: …the answer is no. [T. 1756-1757]. Both the prosecutor and the Judge objected to the truth: that Dr. Petranker lacked credentials for expertise in Pain. Mr. Bateman: Are you board certified in pain management? Dr. Petranker: No. T. 1172] Mr. Bateman: Now, do you see patients in the clinic area in the area of pain management? Dr. Petranker: No. [T. 1173]

    As if it had not been enough that Dr. Petranker misrepresented his credentials, so too the Hearing Committee misrepresented my credentials. From the Committee’s Determination and Order: Respondent (the undersigned) was Board-Certified in Anesthesiology in 1995 and recently recertified in 2007 (p. 5 of Det. And Order). This was not an oversight, unless the Committee fell asleep during my testimony, (which, no pun intended, it did: both Mr. Ducey and Dr. Putterman took naps during the Hearing) but was done so, in an effort to show that both I and the Department’s expert Dr. Petranker had the same credentials, so as to legitimize his testimony. The Committee knew or should have known, from my testimony and the Transcript, that I was a double Board-Certified (BC) Pain Management anesthesiologist, BC in Anesthesiology in 1995, BC in Pain Management in 1996, and recertified in Pain Management in 2006. [T. 1756-1757]. Dr. Petranker’s misrepresentation of his expertise was not harmless, because his testimony was heavily relied upon in the Committee’s Determination.

    Under oath, in his testimony, Dr. Petranker misrepresented his qualifications in both Pain Management and Internal Medicine, in which he also lacked knowledge, training, experience and familiarity. Dr. Petranker testified with impunity on three topics in which he lacked the credentials that would qualify him as an expert witness: (Office-based) Pain Management, Internal Medicine and billing.

    Dr. Petranker testified that he had done caudal epidurals in an office setting. Mr. Bateman: Have you had experience, in an office setting, doing caudal epidural injections? Dr. Petranker: Yes. [T. 1176] But when asked if it is acceptable for the patient to be in a sitting position, he answered: For a caudal steroid injection? … Yes, it is acceptable….It would be an awkward position to do this. [T. 1194-1195]

    Indeed, not only would it be awkward, but a downright impossibility. Dr. Petranker displayed total unfamiliarity with performing a caudal, which could only be done in prone or lateral decubitus position. Placing a needle in the sacral hiatus of a sitting patient would be beyond inaccessible, as the patient would be sitting right on it! If he had had experience (done) a caudal (which he testified he had), he would have known that sitting position is never an option with a caudal. Sitting in the expert chair and claiming that it is acceptable to do a caudal with the patient in a sitting position is an insult to those who actually do them. His claim to (unwarranted) expertise was not harmless.

    Dr. Petranker criticized me that I failed to measure the circumference of the patients’ thighs (???). The patient he was referring to was in her late 30s, active, and had no muscle atrophy whatsoever. Mr. Bateman: …I believe it was Patient A, you talked about …the importance of muscle mass in a patient. Do you remember that? Dr. Petranker: It is one aspect that should be investigated, yes. Mr. Bateman: Okay. And how, in a pain management practice, in an office setting, should one go about doing that?….Dr. Petranker: At least with an inspection and physical and based upon suspicion take out the tape measure. Mr. Bateman: And again, if there are suspicions – Dr. Petranker: Sure. … every patient does not get measured. (Of course, all that physical exam had been done, documented in the chart, and there was no suspicion to … take out the tape measure..) [T. 1220-1222]

    On proving charges of fraudulent practice, not through a preponderance of the evidence, but through a preponderance of speculation, perjured (Patient B), and false testimony and misrepresented expertise (Dr. Petranker): Det. and Order, #81, p. 22 of 66. [T. 255-257, 310-314, 889-890]

    Patient B had been fired by her previous employer Berdon Healthcare Consulting over her misrepresented credentials. Mr. Bateman: They told you that they couldn’t keep you any longer because you had misrepresented your credentials; is that right? Patient B: That there was a misrepresentation, yes. [T. 343-348] … Mr. Bateman: Patient B testified extensively that she received a nursing degree from Stony Brook University and then as a result was for some time a licensed registered nurse in New York State. We have documents from both the New York State Education Department as well as Stony Brook University of searches that they’ve done which have indicated that there was no record of this individual receiving a nursing dergree from Stony Brook nor is there any record in the Department of Education that this individual was ever licensed as a registered nurse. And if she were to return here today we intended to impeach her about that. [IHT. 451-452, Feb.9]

    The prosecutor held information about Patient B which she should have released:
    Ms. Bloch: I have information which says why, part of why she won’t appear again. ….Judge Z: Do you have information as to why she wouldn’t appear? [IHT. 534-536]

    The DOH never withdrew Patient B’s perjured testimony nor did it dismiss any related charges; the judge ruled her perjured testimony “a credibility issue”.

    In its post-Hearing brief, the Department of Health wrote in its Proposed Findings of Fact (p.2) that the Committee found Patient’s B testimony credible. What does it say about a DOH that calls and proposes to the Hearing Committee that perjured Patient B’s testimony be called credible?

    On witness credibility, the Committee took the Fifth on Patient B (no doubt with judicial advice) and abstained from assigning her any credibility (Det and Order p. 28-31 of 66), yet the charges remained. Perjured Patient B was the only witness that the Committee assigned no credibility rating to – a minor disagreement between the Committee and the DOH, which the sleepy Committee resolved by its failure to dismiss a single Factual Allegation on Patient B.

    In her 2005 Interview with OPMC (Office of Professional Medical Conduct), when asked why she alleged that she had had facet blocks, not an epidural, Patient B stated that immediately after injection she was able to get off the table and walk normally and also that the needle used was not long enough. In the 2008 Hearing, when asked why she believed that she had had a facet injection, Patient B again stated: Because the needle didn’t appear long enough to be what an epidural would be into the spine. On how long an epidural needle is, Patient B answered: between 4 and 6 inches (wrong!) When asked if it was possible it was three-and-a-half inch long, she answered I have no way of knowing [T. 310]. No way of knowing is right, but testifying like an expert, backed up by a DOH that bases charges on testimony such as hers, and then subjects them to the ultimate seal of certification: Dr. Petranker, who testified that the needle for the epidural was both substantially longer than, and the same length as the facet needle. The typical length is 3.5 inches, but the DOH took Patient B on her false word in 2004 (that the facet needle was shorter than the epidural needle), which also revealed to have been perjured in this 2008 Hearing. When asked if she saw the needle that I used that day, Patient B answered: It was sitting on a tray next to me, yes. Mr. Bateman: …did you see her do anything – did you see the needle any other way than just sitting on the tray? Did you see her using it at all? Patient B answered: No, I didn’t see it. Only on the tray. [T. 310-313]

    Next, the prosecutor, Ms. Bloch, asks Dr. Petranker to “certify” the needle length:

    Ms. Bloch: I would ask you, if you could, to describe for us what…difference there is between a caudal epidural and a facet joint injection [T. 680] …Dr. Petranker: The needle is significantly longer with an epidural…[T. 682]

    Dr. Petranker’s testimony that the needle was significantly longer with an epidural than with a facet block was no trivial detail. Mrs. Bloch (the prosecutor for the DOH) needed Dr. Petranker to validate Patient B’s (perjured) testimony that the epidural needle was longer and validate he did. Indeed it was on Patient B’s perjured testimony that she had been a critical care nurse (we proved that she had never been an RN), and that she “knew” (see earlier I have no idea) the needle for the epidural was longer than for the facet block that the DOH based and sustained its charge that knowingly and willfully falsely billed the insurance company for an epidural when in fact performed a facet block. (Factual Allegation B#7, Det. and Order, p. 49 of 66, which went to Charges of Fraudulent Practice) Our motion to have Patient B’s perjured testimony and charges dismissed was denied by the Judge and needless to add, never offered, and objected to by the DOH. Patient B testified that she believed that I performed a facet injection, rather than an epidural injection. The needle she observed was shorter than one used for epidural (Det. And Order, p. 22 of 66, #81).

    But the needle would not be longer, in fact, for a caudal, it would desirably be shorter than the usual 3.5 inch long needle used for a facet block.

    Later, Dr. Petranker again testified: There is a substantial difference between the …length of the needle between what I would use for a facet joint block and what I would use for an epidural. [T. 889]

    But in cross, when asked the same question, Dr. Petranker answered that typically the length of an epidural needle would be the same as a facet needle: …The typical epidural needle is about three-and-a-half inches long. …With the facet joint block type of needle…typically you start with a three-and-a-half inch needle AS WELL. Mr. Bateman: Typically, in both instances you would use a three-and-a-half inch needle? Dr. Petranker: Yes. [T. 1210-1211] So, in effect, Dr. Petranker testified that the epidural needle was both substantially longer than and the same length as a facet block needle. Dr. Petranker’s false testimony was not harmless.

    On caudal epidural injections and nerve block injections, when asked how long has it been since you have done either of those in an office setting?, Dr. Petranker replied: 1999. [T.1177]

    Dr. Petranker offered multiple conflicting opinions on the same topic.

    On office-based epidural steroid injection under fluoroscopy, Dr. Petranker (a hospital-based anesthesiologist) went back and forth on standards. He testified that in 2008 it was standard of care to use fluoroscopy …Mr. Bateman: In 2008, would it be your testimony that it is the standard of care …in an office-based setting,… when an epidural injection is done, steroidal epidural injection that fluoroscopy be used? Dr. Petranker: Yes. [T. 1234] The next day, when asked: Are you aware of any written standards or guidelines that exist as to when fluoroscopy should be used for epidural injections in an office-based practice? Dr. Petranker replied: I am not aware of any standard on that. [T. 1467]

    Dr. Petranker testified falsely that in an office-based pain management practice, , based on the complaints by this patient and the condition of this patient, the standard of care is to get a neurological consult before doing epidural steroids. [T. 1194] Only a moment earlier, he had testified, about the same patient B: For this particular patient, with this particular set of constellation of problems, it is not a universal standard [T. 1193]

    Dr. Petranker testified that an epidural should not be done without a prior MRI, that a reasonably prudent physician should order and wait for the MRI before doing any procedure; that it was not within the standard of care to proceed with the lumbar epidural steroid injection without getting an MRI first, which is false. [882-883, 1203-1204]. His declaration of such standard of care harmed me and it harms the justice system, as case law has been established in the past on false knowledge.

    On not knowing what he was talking about, on the same issue, Dr. Petranker contradicted himself in his direct exam with Mrs. Bloch and in his cross with Mr. Bateman. Mrs. Bloch: If you turn to the visit for December 21st, is there a procedure again only three days later? Dr. Petranker: Yes, there is. Mrs. Bloch: Is that appropriate? Dr. Petranker: No. [T. 1571]. But … 4-5 pages later: Cross with Mr. Bateman: Doctor, you were asked by Mrs. Bloch a question about a visit on 12/21..then the patient returning three days later and having a nerve block injection.. Ms. Bloch asked you if that is appropriate. …the chart notes that Dr. Anghel saw the patient, examined the patient and told the patient that if the pain increases or becomes worse to return to the office. And the chart notes that the patient, in fact, did return to the office…and indicated that the pain had increased …three days later…and it was at that point that Dr. Anghel did the injection; is that right? Dr. Petranker: That’s correct. Mr. Bateman: And is there anything inappropriate with a physician assessing….waiting to see…before deciding when to do a nerve block injection? Dr. Petranker: As part of a greater assessment that would be one of the ingredients of a greater assessment, and I agree with that. Mr. B: Thank you. [T. 1575-1576]

    When asked what the epidural loss of resistance technique was, Dr. Petranker first described the trajectory followed by the needle, using names of ligaments that do not really exist and which, if conceding a memory lapse on their names, would still be pierced in reverse order from his description, again reflecting inadequate knowledge for expert testimony. The practitioner feels that the needle is locked into the intervertebral ligament, and then the spinous ligament. Dr. Petranker admitted this to be a useful technique. Mr. Bateman: Do you find that to be a useful technique? Dr. Petranker: Yes, I do. But when asked if on Patients A and B I used the loss of resistance technique, Dr. Petranker replied: Inappropriately, as the sole method of achieving a space. I use the loss of resistance technique exclusively when doing for instance, labor analgesia. But I don’t use that technique as my sole methodology of locating the epidural space for pain management procedures.[T. 1241-2].

    The proper nomenclature and sequence is: supraspinous ligament, interspinous ligament and ligamentum flavum, not intervertebral ligament and spinous ligament. As to the sole method of achieving a space, whatever he meant by that, his expert testimony is not about his methodology and what he uses or does not use, – we already know from his CV and testimony that he is testifying as an expert without expertise, through impermissible improprieties of the “system” and judicial error. Dr. Petranker’s mission was to testify on standard of care, the practice of medicine at the time of the event. (Just a mention: there was no patient harm with any of these patients, who had been seen between 6/1/1994 and 6/30/2007) . The hearing room/courtroom is one place where testifying physicians educate or deceive others about that standard and deceive he did.

    On Dr. Petranker’s high self-esteem and pride for his sheer ignorance about the indications of fluoroscopy: When doing pain management, I need to make sure of the precise needle tip location, because I am treating a specific type of radiculopathy. Failure to have the needle in the proper position means that I can’t be assured that I am delivering the anesthetic agent to the right place. Whereas, when I am doing it for postop labor analgesia, if I get close to the anticipated location, with the spread of the local anesthetic that I am putting in, as well as the catheter to give additional medications subsequently, the precision isn’t as important as it is for specific nerve block and steroid injection. So, while the technique is the same, the importance of the precise needle tip location is different. [T. 1247-1248]

    First, postop labor analgesia does not exist; postop and labor analgesia are two notions that are exclusive of each other. But the reason why fluoroscopy is not used in labor analgesia is not that precision is less important. The precision is just as important (if not more so) for labor analgesia as it is for pain management, and neither the spread of the local anesthetic, nor the catheter will make precision less important. Having done a fellowship in Obstetric Anesthesia and one in Pain Management, having acquired Board Certification in Pain Management and also Recertification, I find it offensive that Dr. Petranker used this administrative proceeding to proffer his ignorance on the topic. His inexpert testimony was not only dangerous, but it actually harmed me, because practically all charges made reference to Dr. Petranker’s blissful testimony. Admitting again that he misspoke or that he did not know what he was saying does not rectify the harm that he has inflicted. His expert testimony was a farce.

    On doctors’ communication, in Cross, re: …that before treatment should be rendered, all of the treating physicians who were seeing that patient should be communicating with each other; is that right? Dr. Petranker testified: Yes. Mr. Bateman: And is it your testimony that the treatments that were performed by Dr. Anghel on Patient A and B should not have been done without that type of group communication? Dr. Petranker: That is correct. Mr. Bateman: And in your experience, is that what is done—is that the standard of care in office-based pain management? Dr. Petranker: Yes. [T. 1198-1199].

    On Patient A, Dr. Petranker testified: … After three epidurals, steroid injections that didn’t give me a positive result, I would not give the fourth. [T. 1252]

    I would not give the fourth shows either inattentiveness to the fact that only three (an arbitrary number), not four epidurals had indeed been given, or bad faith in mischaracterizing what

  38. (continued, or resumed) I would not give the fourth shows either inattentiveness to the fact that only three (an arbitrary number), not four epidurals had indeed been given, or bad faith in mischaracterizing what had actually been done…three epidurals [T. 3141-2]

    His testimony was relied upon in Charges of Excessive Treatment.

    On the limitations of palpation, Dr. Petranker testified: When a practitioner, just on palpation alone chooses landmarks and goes ahead and– puts in the needle, they are only accurate to the correct spinal level about 30% of the time or so. (Then…10 percent of the time, the needle tip is not actually in the epidural space)….30% of the time, you are wrong– well, out of 100 cases that means 70 percent-70 of those cases the needle would be at the correct level… [T.1227-1228]…

    Let’s recapitulate: accurate 30% of the time…and 30% of the time you are wrong, meaning 70% correct. With (confusing) explanations like these, who needs clarifications? When asked: Doctor, because you used some of these statistics when you testified last time, where do you get that data from? Dr. Petranker: That is my review of the literature. Mr. Bateman: In this particular case, when you say, your review of the literature, in preparing for this case? Dr. Petranker: Yes. Mr. Bateman: Okay. What articles did you find that lead you to that conclusion? Dr. Petranker: I don’t know the names of those specific articles. Mr. Bateman: Do you have those articles with you? Dr. Petranker: No, I don’t. Mr. Bateman: Did you reflect in your notes anywhere what articles you found? Dr. Petranker: No, I did not. [T. 1228-9]

    On failure to recognize a commonly used scale when characterizing deep tendon reflexes, in cross: Mr. Bateman: Now, did I understand you to say that the scale or the description of the findings of the deep tendon reflexes should have been expressed differently? Dr. Petranker: Typically, it is [T. 1196] … Mr. Bateman: Dr. Dulai (neurologist) tested deep tendon reflexes on Patient A; is that right? Dr. Petranker: Yes. Mr. Bateman: And did Dr. Dulai use the same scale as Dr. Anghel? Dr. Petranker: Apparently. Mr. Bateman: Now, you had testified before, I think you said that you—other than with Dr. Anghel, you had never seen that scale used before? Did you say that? Dr. Petranker: Yes, I did. Mr. Bateman: In fact, Dr. Dulai used the same scale? Dr. Petranker: Seems so. [T. 1236-1237]
    Reckless testimony without knowledge is just as dangerous as false testimony with knowledge.

    On Internal Medicine

    In cross-exam, when asked what is it about your training and experience that qualifies you to see patients in the capacity of an internal medicine physician, Dr. Petranker answered: I was working along with an internist and the pieces that I was seeing in terms of patient management was done in coordination with the internist. Mr. Bateman: Have you ever seen patients in the capacity of an internal medicine physician? Dr. Petranker answered: Yes. Mr. Bateman: …when you saw patients for internal medicine issues, you always did it with the assistance of an internal medicine physician? Dr. Petranker: Always under the relationship with an internal medicine specialist, either they were there in person or there would be chart review along with the internist. [T. 1374] When asked whether that internal medicine practice was listed in his CV, Dr. Petranker answered: Let me…No , it is not. …I don’t recall the actual name of the practice…the office space burnt down and I don’t know that they reestablished. [T. 1175-1176].

    Mr. Bateman: In your opinion, in your experience and training, are you qualified to see patients and treat patients on your own…for internal medicine issues? Dr. Petranker: At this point, I would not practice internal medicine with what I know now, no. Mr. B: When you say you would not do it, are you qualified to do it? Dr. Petranker: Through training, yes.
    [T. 1375]

    Dr. Petranker never had any training in internal medicine, but considered that he was qualified to see patients for internal medicine issues on his own. But when asked if an anesthesiologist (me), who in their training, did two years of internal medicine and through experience and work, would qualify to see patients and treat patients as an internal medicine physician, he answered: no. So, through his training, which excluded internal medicine, Dr. Petranker considered himself qualified, but through my training which included 2 years of internal medicine (a PGY-1 and a PGY-2) he considered me unqualified. [T. 1372-1375].

    Mr. Bateman: And what is it about your experience and training that qualified you to see patients as an internal medicine physician? Dr. Petranker: Being in a supportive environment and the level of complexity of the cases that I was dealing with…Mr. B: And in your residency, did you-how much time did you spend training in internal medicine? Dr. Petranker: A fair amount, as part of my residency training, touched upon internal medicine issues and problems. Mr. B: Would it have been more than a year? Dr. Petranker: As you sum together the total body of experience, yes.

    I had 2 years in Internal Medicine (PGY I and PGY II) and this is how training in a specialty is meant and understood. But, Dr. Petranker claimed qualifications in Internal Medicine based on his residency training (which was not in Internal Medicine), on a supportive environment, the level of complexity, and on his total body of experience, (more than a year equivalent) … all that emptiness, without one month of training in Internal Medicine.

    Dr. Petranker testified like an expert on Internal medicine issues, based on a supportive environment, complexity, total body of experience, no Internal Medicine training, on his never being alone, but always with an internist, in a practice whose name he neither remembered, nor listed in his CV, and which also burned down. Not unlike when he began with pain management during his fellowship in Anesthesiology, which was in Pediatric anesthesia that also entailed pain, which was not listed in his CV, and took place during his CA-1, at a time when there was no specific fellowship available, yet he called it a fellowship, and when he took credit for 17 years of Pain Board eligibility, but never had any training or fellowship in Pain or any Pain Board certification.

    When asked: Doctor, you don’t consider yourself an expert in the area of internal medicine; do you? Dr. Petranker: No, I do not. Mr. Bateman: And you would not testify as an expert in the area of internal medicine; would you? Dr. Petranker: No, I would not. [T. 1458]

    Dr. Petranker gave the answer that was expected of him, in conformity with his lack of qualifications in internal medicine, but his testimony demonstrated that he in fact did testify as an expert in the area of internal medicine. Here is Dr. Petranker’s (in)expert testimony on the proper diagnosis of diabetes:

    Ms. Bloch: Let’s first do the issues of diabetes…And can you tell us your opinion as to whether the diagnosis of diabetes was made appropriately on this patient and whether or not the follow-up was appropriate in this case? Dr. Petranker: I saw nothing regarding the workup of diabetes overall. For instance, fasting blood sugar determinations and so on. So, that leads me to say that the diagnosis of diabetes was unsubstantiated. “The work-up”? So, in spite of abnormal glucose and Hgb A1C results, documented antidiabetic medications, in this patient with a long history of diabetes, Dr. Petranker found the diagnosis of diabetes unsubstantiated… based on what? On the fact that he saw 1) nothing regarding the fasting blood sugar and 2) on the so on, (especially on the so on). Dr. Petranker’s discontent with the lack of fasting blood sugar and the so on speaks volumes about his knowledge gaps on the diagnosis of … an already diagnosed and long history of diabetes. His irresponsible testimony was not harmless. [T. 1481]

    After Dr. Petranker disagreed with my diagnosis of COPD on Patient C, he was asked in cross …and what would you expect to see under these circumstances which, for you, would support the conclusion and diagnosis of COPD? Dr. Petranker: I don’t know what defines COPD. But it is greater than just wheezing and cough. Mr. Bateman: And what would yellow sputum indicate to you…?…and bilateral wheezing…And Doctor, what – what is Advair prescribed for?…if you could read that straight down? Dr. Petranker: I think it is bronchodilator, on cortisone inhaler and O2 at home.[1406-1409] Dr. Petranker was quick to gratuitously dismiss my correct diagnosis of COPD, but did not even know the definition of COPD.

    On Patient C, April 2nd, Direct, Mrs. Bloch: …what is the evidence in this record that the patient was suffering from dehydration? Dr. Petranker: I didn’t find any. [T. 1263-1265]
    But in Cross, again on Patient C, same April 2nd, 2003, on urine specific gravity SG, Dr. Petranker testified that 1030 was a normal value. When challenged, he said the normal range was up to 1035. Because Dr. Petranker believed that 1035 was a normal specific gravity, he testified in direct (v.s.: I didn’t find any) [T. 1265] In Cross Mr. Bateman: Specific gravity, 1030…That particular number, is it your opinion that that is a normal number? Dr. Petranker: I believe it is….Mr. Bateman: Okay. That is not a high number in your opinion; is that right? Dr. Petranker: …It is on the higher end of the normal range in my recollection. I think normal range is up to 1035 or so. … Well, this particular specific gravity, I believe, is within normal range. … So, in essence this is a normal urine analysis. [1380-1383]

    It was based on Dr. Petranker’s assessment that this was a normal urinalysis (which in fact was abnormal), and his “expert” opinion that he didn’t find any evidence of dehydration on Patient C, on 4/2/2003 [T. 1265] that factual allegation C5 and related charge of fraudulent practice was based on and sustained.

    Testimony on medical records: Mr. Bateman: Are you aware what the requirement is in NYS as to how long a physician is required to maintain … medical records for patients that they have seen? Dr. Petranker: I don’t know the standards. Mrs. Bloch objected: This is not a hospital-based issue.

    That’s right, she used the wrong witness, because Dr. Petranker’s testimony on hospital standards was irrelevant to office-based procedures. [T.1178-1187]

    On his unadulterated claim of expertise in chart documentation, as it pertains to Pain Management, … specialty, Dr. Petranker testified: I certainly personally review charts that have some sort of anesthesia implication, pain management implication, sedation questions because these are areas of my particular specialty.[T. 1663]

    On sufficiency of medical documentation and standard of care, with no expertise, using his own arbitrary standards, and hospital operating room standards, which did not apply to office-based procedures, Dr. Petranker looked to basics and worked his way up. Mr. Bateman: And when you draw a conclusion or give an opinion as to the sufficiency of that medical documentation and whether it meets the standard of care, what are you looking to to establish the standard of care? Dr. Petranker: I look to a) basics of note writing. I look to history, physical examination, basics and then work my way up, depending on the complexity. Mr. Bateman: Would you agree with me that when you followed a standard like that , reasonable physicians can disagree as to the sufficiency of documentation in the medical records? Dr. Petranker: There can be disagreement…I look to b) standards, such as New York State health codes that require certain monitoring being done in an operating room as an example. Therefore, the results should include the results of that monitoring. …during operative procedures, blood pressure has to be monitored. Therefore the standard of documentation would include the blood pressure readings during that case. Mr. Bateman: …Standards for monitoring in an operating room, those don’t apply to an office setting: do they? Dr. Petranker: Those standards do not. Mr. Bateman: So can you tell us what if any regulations, standards, treatises, documents, guidelines that you looked to and used in this case to draw your conclusions about the sufficiency of the medical records for Dr. Anghel? Dr. Petranker:…Standards are not published on office-based procedures. However there are guidelines. Mr. Bateman: When you say there are guidelines, where are they? Dr. Petranker: American Society of Anesthesiology has guidelines on sedation and procedure monitoring..Mr. Bateman: ..Were Patient A or patient B…or any of the other patients sedated by Dr. Anghel? Dr. Petranker: No. [T. 1177-1180]

    The Committee based its Determination that I failed to maintain medical records, (a false charge), entirely on Dr. Petranker’s expert testimony. [T. 1177-1185] Since charges of negligence and gross negligence (without any patient harm) were also based on “failure to maintain medical records”, those charges can also be traced back to Dr. Petranker’s testimony. ….All those charges, which alone justified my license revocation and a maximum penalty of $10,000 per charge, multiplied by the number of patients, when Dr. Petranker did not even know the standards: I don’t know the standards.[T. 1184]. He did not know the standards, but testified like a pro. When asked about the retention of medical records, in cross. Mr. Bateman: Dr. Petranker, when you started testifying about Patient D, you testified about your opinion as to the maintenance of records and your opinion specifically that the patient’s chart or record should be maintained for as long as a physician is seeing that patient; is that a fair characterization of what you said? Dr. Petranker: Yes. … Mr. Bateman: ….is it your testimony that all of those records should be kept for a ten-year period? Dr. Petranker answered: Yes. Mr. Bateman: How about a 20-year period? …Dr. Petranker: …if you were treating a patient for cardiac disease over a 20-year period, then I would suggest that it should be kept….So long as the problems that the patient has remain an open issue, I believe that it is prudent to keep the medical records on that patient. Mr. Bateman: No matter how long…? Dr. Petranker: …for cardiac disease over a 20-year period of time then, yes, I would maintain those records on that disease. Mr. Bateman: Doctor, are you aware of any statute or regulation or any other codification which holds a physician to that standard? Dr. Petranker: No. [T. 1529-1531] (In NYS the number of years records are required to be kept is 6 years, but the Committee bought into Dr. Petranker’s perpetual retention of medical records.)

    Dr. Petranker found that my performance was substandard on every single issue and specification of charge. Dr. Petranker was rated a highly credible witness by the Committee Det. and Order, p. 28 of 66).

    With no prior knowledge or experience in billing, Dr. Petranker also testified on my billing, even though not he, but the Finance department was responsible for billing at his hospital. [T. 1178]

    Misleading expert testimony is a very serious offense: it drains the defendant physician’s physical, emotional, and financial health, it deprives him of livelihood and liberty to practice, it affects his career forever; it creates judicial precedent on a false standard, with incalculably nefarious consequences to many more physicians, patients and society; it stains and discredits the medical profession, it wastes large amounts of money, it raises the cost of justice, it leads to higher malpractice premium and higher cost of health care. Cross-examination is no safeguard, misleading opinions can go unnoticed and consequently unchallenged. Neither the legal system, nor even physicians (outside the field) may recognize deceptive testimony for what it is.

    Dr. Petranker’s reckless testimony about United HC’s false evidence and outside his expertise – The false evidence that Dr. Petranker affirmed was used in support of the following charges: Excessive Tests and Treatment, Negligence, Gross Negligence, Incompetence, Fraudulent Practice and Failure to Maintain Records [T. 1294-1296].
    The DOH and the Hearing Committee relied on Dr. Petranker’s reckless testimony. The Hearing Committee concluded: Respondent continuously performed injection procedures on Patients C through G (Det&Order, p. 12 of 66)…The medical records also established that patients made numerous visits … (Testimony of Dr. Petranker) (Det&Order, p. 38)

    With no credentials in Pain, Dr. Petranker testified: … I would, as a pain specialist [T. 1328-1329] … But, frankly, I am a pain management doc. [T. 1368] Dr. Petranker: Once again, I don’t do hands-on pain practice. [T. 1620]

    Mr. Bateman: Dr. Petranker, you are not board certified in pain management; is that correct? Dr. Petranker: Correct. Mr. Bateman: You did not participate and finish a fellowship in pain management; did you? Dr. Petranker: No. Mr. Bateman: You haven’t operated in an office-based setting for the practice of pain management, since I believe you said it was around 1998; is that correct? Dr. Petranker: Correct. [T. 1774-1775]

    Patient C

    Ms. Bloch: this particular group is January 9th, 2004 running through April 21st, 2004….And. between that period of time, how many occasions was there an injection because of nerve root plexus disease? Looking at the January 9th 2004, January 28, 2004, March 9th, 2004, all the way through the line 1279 (indicating)?…1279 is on April 21st, 2004. …what is the frequency that you observe and what is your opinion with respect to that regarding this diagnosis and these procedures? Dr. Petranker: It is a very frequent diagnosis and procedure. Ms. Bloch: Do you have an opinion as to whether that is appropriate, based upon your review of the chart? Dr. Petranker: Based upon the review of the chart, it is of inappropriate frequency. [T. 1294-1296].

    Based upon the review of the chart …. But the review of the chart reveals that Dr. Petranker irresponsibly certified false evidence without even reviewing the chart– he falsely testified that he reviewed what could not have been reviewed because it was not in the chart. I reviewed both Patient C’s chart and my billing records, I checked and compared the dates of service with those projected in the spreadsheets, between Jan 9th, 2004 and April 21, 2004. My billing records show only two dates of service from 1/1/04 -4/30/04 when the diagnosis of nerve root/plexus disease (ICD: 353.8) was used and a nerve block performed. Mr. Stephano’s spreadsheets show five additional dates of service for the same diagnosis of nerve root/plexus disorder. These 5 additional dates of service, when a diagnosis of nerve root plexus disease appears in the spreadsheet, but not in my billing records are: 1/9/04; 1/28/04; 3/9/04; 4/5/04; 4/21/04. The spreadsheets also falsely show that a nerve block “injection procedure” and/or supplies were billed on each of these five false dates. On 4/21/04 not one but two nerve blocks falsely appear in the spreadsheets: intercontinental nerve block 64421 and cervical epidural 62310. This is an error rate of 6/2=300%, which means that for each true date of service, the spreadsheet yields three false dates of service or blocks … these little changes, as “the Department” called them.

    Patient D

    Dr. Petranker: And then, in terms of the frequency of the injections of the blocks, similar to the other cases, the blocks are done with great frequency. [T. 1500]….the foundation for doing these blocks was inadequate. The frequency of the blocks was too great. [T. 1521].

    Mr. Bateman: So, is your testimony that when you testify here about the frequency with which Dr. Anghel performed certain tests or did certain procedures, that you were sometimes getting those answers …from the billing chart and sometimes from the medical chart? Dr. Petranker: I used both together to form an opinion, one helped to guide the other. Mr. Bateman: Okay. Just so it is clear, is it your testimony that when you are speaking today about what you found and your opinion as to testing…you always checked the medical chart for documentation in that regard? Dr. Petranker: No….Frequency, sir- – I used the billing to help me decipher the frequency of the intervals. And I also referred, of course, to the medical record also. The spreadsheet helped me to see the events. Mr. Bateman: In that regard, you relied on the adequacy and the accuracy of that spreadsheet information; is that correct? Dr. Petranker: Yes. [T.1537-1538]

    So, for frequency, Dr. Petranker did rely on the (in)accuracy of the spreadsheets, and admitted that he did not always check the medical records and that is reckless testimony, especially since he also misled the Committee when he testified that he used both the spreadsheets and my medical records.

    The spreadsheet that was projected in support of this frequency falsely indicates that a cervical epidural block 62310 was done on 2/5/04 and another 62310 on 3/10/04. Drugs were also indicated to have been billed on both dates. My medical and billing records show that only one such block was performed and billed, on 1/26/2004, for Patient D between 1/1/04 and 4/30/04. For Patient D, the spreadsheet yields an error rate of 200% on nerve blocks during the projected period of time: 2/1, meaning that for each true block two additional blocks are falsely shown.

    In response to Mr. Batman’s question …on your review of the chart, was there, in your opinion, documented justification to do any of the nerve blocks that were done on this patient?, without any credentials in Pain Management, any fellowship or special training, any board certification in Pain, Dr. Petranker testified: None of them had the foundation in place to go ahead and to do that block. [T. 1551]

    Patient E

    Ms. Bloch: Now, another condition that we see diagnosed and treated over time is, as you could see on the spreadsheet, sciatica. Can you speak to your review of the record and this diagnosis and the treatment specifically with the repeat injections? Dr. Petranker: Similar to what I have testified before….then the patient underwent many injections on a regular basis. …Ms. Bloch: With respect to this sciatica and the back issues, was there ever – - what, if any, consultants would a reasonably prudent physician seek? Dr. Petranker: When doing so many blocks in the same way … [T. 1607-1608]

    The projected spreadsheets falsely showed five nerve block procedures on the following dates: 1/5/04 intercontinental nerve block 64421; 1/21/04 lumbar epidural 62311; 2/6/04 intercontinental nerve block 64421; 3/26/04 lumbar epidural 62311; 4/21/04 sacro-iliac joint block 27096. None of these 5 dates and blocks appears in my medical or billing records.

    As he could see on the spreadsheet, and based on his review of the record, similar to what he has testified before, Dr. Petranker testified about frequency (many injections on a regular basis)…excessive treatment and standard of care (what a reasonably prudent physician…) i.e. negligence and gross negligence

    My medical and billing records from 1/1/04-4/30/04 show only two dates of service where a nerve block procedure was done: 3/16/04 – 62311 (lumbar epidural) and 4/7/04 – 27096 (Sacro-iliac joint block). But the projected spreadsheets falsely showed 5 additional nerve blocks, which represent a 250% error rate: 5/2, meaning that for each true nerve block procedure, the spreadsheet indicates 2.5 two and a half additional, false nerve blocks.

    DOS: 11/7/03, 99070 shows as billed twice in the spreadsheet, but only once in my billing records (2 supply trays billed on the same day)
    On Patient G

    From the Hearing Committee, after issuing its decision that everything I did was indicated and justified: Respondent continuously performed injection procedures on Patients C through G (Det&Order, p. 12)

    The projected spreadsheets falsely indicated 5 nerve block procedures that were never done: on 1/9/04 – sacro-iliac joint block 27096; 1/27/04 – thoracic facet blocks 64470 and 64472; 3/16/04 – sacro-iliac joint 27096; 4/16/04 – sacro-iliac joint block 27096; 4/22/04 – thoracic facet blocks 64470 and 64472. My medical and billing records indicate that from 1/1/04-4/30/04, a nerve block procedure was done one time only, on 3/23/04. This is a 500% error rate, where – 5/1 means that for each true nerve block, the spreadsheet shows five false/additional nerve blocks.

    The Hearing Committee concluded: …numerous medical services that she did not provide (Det&Order, p. 40)…the excessive tests and treatment ordered by Respondent for her own enrichment, standing alone, warrant revocation and imposition of a fine. (Det&Order, p. 42)

    “The Department” used Dr. Petranker’s testimony on false evidence in support of charges of Excessive Tests and Treatment (v.s.) … what is the frequency that you observe?… and …it is of inappropriate frequency… Dr. Petranker’s testimony on standard of care based on false evidence led to charges of incompetence, negligence, gross negligence, and excessive tests and treatment. Both Charges of negligence and gross negligence share deviation from standard of care, the standard of care that Dr. Petranker testified about, based on false evidence. FOR THE DOH, FALSE EVIDENCE IS just a DISCREPANCY, A LITTLE ERROR, not worth our time. Ms. Bloch: Why are we wasting this with Dr. Petranker? Does he need Dr. Petranker to say, is there a visit for March 25, 2004? Look through the record. No, there is not a visit. Mr. Bateman …Ms. Bloch, Dr. Petranker testified…sorted it by CPT code then sorted it by diagnosis code, asked him about frequency… [IHT. 178-179]. But what Ms. Bloch failed to reveal here is that it was she who chose to project these false dates of service up on the wall precisely for frequency, then had Dr. Petranker testify about them and then concluded excessive frequency of tests and treatment, incompetence (the charge that was dismissed), negligence, and gross negligence, failure to maintain records, each of which was so egregious as to justify my license revocation and a maximum penalty of $240,000. (Det&Order)

    Dr. Petranker’s reckless testimony about Internal Medicine issues

    The Hearing Committee found that Dr. Petranker … was careful not to overreach in stating his opinions. (Det&Order, p. 28 of 66). This conclusion is overwhelmingly contradicted by Dr. Petranker’s careless and unrestrained opinions on all of the issues he testified about, including Internal Medicine, in which he never had any training whatsoever.

    From September 23rd, 2008 testimony – Mr. Bateman: Doctor, you don’t consider yourself an expert in the area of internal medicine; do you? Dr. Petranker: No, I do not. Mr. Bateman: And you would not testify as an expert in the area of internal medicine; would you? Dr. Petranker: No, I would not. [T. 1458]

    Not an expert in the area of internal medicine, and would not testify as an expert in the area of internal medicine, but he testified as an expert on every aspect of internal medicine: history and physical exam, frequency of visits, tests and appropriateness of treatment, and standard of care.

    The Hearing Committee concluded: The evidentiary record also established that Respondent ordered excessive tests-not for the patient’s benefit, but to generate income. The medical records also established that the patients made numerous visits and that tests were administered more often than customary. (Testimony of Dr. Petranker) [Determination and Order, p. 38 of 66, where page numbers were purposely omitted, because they would have pointed out that 1) Dr. Petranker relied in his testimony on Mr. Stephano's false evidence; 2) that Dr. Petranker admittedly testified without knowledge [T. 1428].

    Testimony on tests: Holter monitor, EKGs and visits (Patient C through G)

    On Patient C, who had a history of HTN, COPD, hyperlipidemia etc., Dr. Petranker testified that complaints of palpitations and hypertension did not justify a Holter monitor…The patient’s not hypertensive. Blood pressure is 140/80 and the physical exam showed no pal—no heart rate abnormality. So it is an unsubstantiated assessment. Ms. Bloch: And the Holter monitor? Dr. Petranker: Unsubstantiated as well. Ms. Bloch: Is there any basis for doing a Holter monitor on a yearly basis? …Once a year, is there any basis for that? Dr. Petranker: No. [T. 1343-1344].
    Dr. Petranker testified in direct and cross several times on Patient C’s COPD, including his treatment with Advair, O2, cortisone inhaler etc. [T. 1297; 1304; 1407-1410; 1470-1471]. Dr. Petranker did not know that COPD in need of oxygen and Advair was no routine medical context for a Holter monitor and my medical record clearly indicates that. He did not know that a Holter monitor was medically indicated for this patient’s palpitations, HTN and COPD, but replied : …As a routine? No. [T. 1343]. In cross, Dr. Petranker was asked: Having patient C be tested once a year was not an appropriate treatment? Dr. Petranker: For this—yes, for this particular patient. Mr. Bateman: And in your opinion, if you could say this, should Dr. Anghel have had the patient go through the testing of the Holter monitor at all based on your review of the record? Dr. Petranker: Once I could understand, but not with the- – not with the frequency that I saw. Mr. Bateman: If you know, what is the recommendation for a patient who is suspected of having cardiac disease? How often should that patient be tested by a Holter monitor? Dr. Petranker: I do not know the standards of that aspect of the care [T. 1427-8; 1435]
    Dr. Petranker admitted that he did not know the standards of that aspect of the care, but went ahead and irresponsibly testified that the Holter was unsubstantiated and too frequent.
    EKGs – The projected spreadsheets falsely indicated that from 1/1/04-4/30/04 I did two EKGs for Patient C: on 1/8/04 and 1/26/04. My records show no EKG during this time period. PFTs also are shown on 4/6/04, but none in my records for the same time period.
    Office visits, still on Patient C – The projected spreadsheets falsely showed that from 1/1/04-4/30/04 five office visits were billed on the following dates: 1/8/04, 1/26/04, 4/6/04, 4/22/04, 4/28/04. These visits do not appear in my records. (The medical record established that patients made frequent visits … Testimony of Dr. Petranker, who admitted that for frequency he relied on spreadsheets: Frequency, sir, I used the billing to help me decipher the frequency [T. 1537-1538] (Det&Order, p. 38 )

    On Patient D, who had diabetes, hypertension, hyperlipidemia [T. 1539], Dr. Petranker testified: ..I saw …. frequent Holter monitoring being done with similar results on the subsequent Holter monitoring. [T. 1517]

    ….. Mr. Bateman: Doctor, with respect to your testimony about the frequency of Dr. Anghel having Patient D, and I believe you testified a little broader to other patients, having patients utilize a Holter monitor, you, essentially, indicated on direct examination, did you not, that you noted that when there was a complaint of palpitations, the patient was given a Holter monitor; is that right? Dr. Petranker: With frequency, yes. Mr. Bateman: With frequency. [T. 1554]

    As to the frequency of Holter monitoring, where the projected spreadsheet falsely indicated that a Holter was billed for Patient D on 2/3/04, my 7-year medical and billing records between 12/18/00 and 12/07, where his last visit was on 11/11/04, show two Holter monitors: 12/5/01 and 1/8/03, two Holter monitors in four years..

    Office visits – The spreadsheets falsely indicate that four office visits were billed between 1/1/04-4/30/04, on the following dates: 2/3/04 for office visit-5, 99215; 3/12/04 for office visit-5, 99215; 4/8/04 for office visit-4, 99214; 4/29/04 for office visit-5, 99215.

    On Patient E.- Ms. Bloch: …we look on the spreadsheet and we have the subsequent Holter monitors and we already saw the EKGs, was the care and treatment regarding cardiac issues appropriate in this case? Dr. Petranker: No, they were inappropriate. Ms. Bloch: Why is that? Dr. Petranker: The Holter monitor was gotten for the recurrent palpitations, documented on the chart. There was a problem. Patient continues to complain. But then where is the follow-up piece, with further evaluation as to why this is here? So, to have the patient return on many occasions with the same complaint and then the same diagnostic done, leaves the issue adrift. Ms. Bloch: Now with all these visits and with doing the Holter monitor, EKG, the electrocardiogram… – -is there any record of what, if any, medications the patient is on? Dr. Petranker: The – -no, there isn’t. Ms. Bloch: Is that appropriate? Dr. Petranker: That is inappropriate…. [T. 1597-1598]

    Starting with Dr. Petranker’s testimony in direct that there was no record of my medication,
    and moving to cross – Mr. Bateman: Ms. Bloch asked you concerning your review of Patient E’s record, whether there were any notations in the record concerning medication or medications that Patient E was taking at the time that the various tests procedures that you testified about were done. And you indicated that there was no documentation concerning medications; is that right? Dr. Petranker: No, I don’t believe that is correct…I mentioned that it was inconsistent throughout the chart. [T. 1635]

    Well, the Transcript shows that he indeed testified that there was no record of any medications with any of these visits, which is false, and then, during his cross exam, he denied saying it.

    As to all these visits… EKG… Holter, that De. Petranker testified to, spreadsheets falsely show:

    DOS: 3/10/04, two office visits, office visit 99214 and office visit 99215 are billed on the same day. This date does not appear in my billing or medical records. I am mentioning it separately because not only is it a false date, but the false date shows two office visits billed on the same day.

    DOS: 3/11//04, office visit 99214 – not shown in my medical or billing records.
    DOS: 3/25/04, office visit 99215 – not shown in my medical or billing records.
    DOS: 4/20/04, office visit 99214 – not shown in my medical or billing records

    DOS: 12/8/03, office visit 99215 is billed twice in the spreadsheet, (2 office visits billed on the same day) but only once in my records
    The spreadsheets falsely show, but my medical and billing records do not, that an EKG was billed on two consecutive days: 3/10/04 and 3/11/04.

    DOS: 9/8/05, EKG 93000, and office visit 99215, and PFTs 94010 are shown as billed twice, but my medical and billing records show them only once.

    On Holter monitoring…Mr. Bateman: … when you say that they were done too frequently, how frequently were they done on Patient E? Dr. Petranker: Can I refer back to the spreadsheet? Ms. Bloch, can you help us out? …Spreadsheet on frequency of Holter monitor….1/21/06, 2/19/05, 4/29/04—yearly. [T. 1642-1653]

    Mr. Bateman: And with respect to Patient E, as well as a number of the other patients that you have testified to concerning your opinion as to sufficiency or frequency of testing, procedures, again, as you testified last time or as to the last patient, that in determining the appropriateness of that frequency you also looked at Exhibit 12, the spreadsheet that shows by procedure, by code what was done; is that right? Dr. Petranker: Correct. My decisions were based upon the medical record and the billing information [T. 1633-1634]
    … Mr. Bateman: Now is it your testimony that that applies to all of the office visits that you reviewed? Dr. Petranker: Yes. Mr. Bateman: And all of the procedures? Dr. Petranker: One falls on the previous one….so that would be correct. …substandardly handled. [T.1645]

    Dr. Petranker testified that, in his review of my charts, he crosswalked the tests and procedures and saw that they were all done [T. 1397; 1532], but made no comment on the false evidence that he should have also come across when he compared (crosswalked) Exhibit 12, the spreadsheet, and the medical record. Just the way he found that all the tests that I billed for were done, so too he should have found the 2004 batch of false evidence that he later testified was too frequent. He either did not review my medical records and testified recklessly that he did, or did review them, but then, upon seeing the false evidence in the spreadsheets, he failed to reveal to us that the (frequency in the) spreadsheets was unreliable, yet continued to rely on the spreadsheets for frequency, while parroting dishonestly and also based on the medical records. Either way, he clearly relied on the spreadsheets, not on the medical records, he had no problem misrepresenting (equivocating) what he in fact relied on, no problem certifying false evidence, no problem testifying without credentials or knowledge on issues of internal medicine which he assured us he would not do. Dr. Petranker had the responsibility to verify the accuracy of what he testified about and disclose any conflicts that he came across. Dr. Petranker was under oath when he said that his conclusion was based on medical records, and mentioned them expressly, but also said that for frequency he relied on spreadsheets. Since the two conflict with each other (where the billing spreadsheets show what my billing and medical records do not), his testimony cannot be relied upon. And if he did review them, as he testified, he had the responsibility to bring up the conflict between the two. After all, he testified that he used spreadsheets for frequency, and frequency is exactly the point here: the spreadsheets show things that did not happen, as shown below:

    Mr. Bateman: In your review of the chart for Patient E, is there an office visit on March 26th of 2004? …March 11th of 2004? Dr. Petranker: There is nothing in the record for the 11th. Judge: Can you pull up all of the dates? …I asked Ms. Bloch to put up all of the dates on the screen. Mr. Bateman: Doctor, while you are at that…can you tell me whether or not there is a patient visit by Patient E with Dr. Anghel on March 10th of 2004? Dr. Petranker: No, there is not. Mr. Bateman: Could I ask Ms. Bloch if you could sort Exhibit 12 by EKGs? Ms. Bloch: By what? Mr. Bateman: By EKGs. …Doctor, I am just going to ask you to take a look at the chart, as it is sorted by EKGs, and bring your attention to September 8th of 2005. That indicates, does it not, that there were two EKGs done? Dr. Petranker: Yes, it does. …..Mr. Bateman: Doctor, that indicates that- -an EKG was done on March 10th of 2004? Dr. Petranker: That is correct. Mr. Bateman: There is the same indication for March 11th, the very next day of 2004; is that right? Dr. Petranker: That’s correct. Ms. Bloch: I am going to object at this point…this is not the right person to go through this with. I mean, if the records are here and he has this- – if he wants to just compare them or present it to the committee, why is the doctor looking and comparing the record with this? If he wants to ask him questions about care and treatment, that is what this expert is here for. Judge: they are appropriate questions. Keep going. Mr. Bateman: …your review … when I just asked you, indicated there was not only not an office visit on that day but there was no indication that an EKG was done on that day; is that right? Dr. Petranker: That is correct. … Judge: Just indicate for the record that this CD that I have, which is a copy, dated May 2008, does not have March 10th or March 11th, 2004. Mr. Bateman: Can I ask, the CD that you were looking at; does it have that repeat of 9/8 of 2004 for the EKGs? Judge: Yes. [T. 1645-1653] [T. 1667-1688]

    When my counsel, Mr. Bateman, objected to the false evidence in the spreadsheets, [T. 1680-1688]: 4/21/2004, 4/29/2004, 4/30/2004, 3/10/2004, 3/11/2004, 3/25/2004, 3/26/2004, on Patient E, Ms. Bloch disingenuously asked: Why are we cross-examining Dr. Petranker on what is a discrepancy between what is an insurance billing and what is in the record? He is testifying as to the standard of care and what was done as he viewed in the record? But Dr. Petranker testified that he did not know the standard on that aspect of the care [T. 1428] and for frequency he relied on spreadsheets, not on medical records. [T. 1517; 1537-1538]

    Patient F – In my records from 12/15/00 to December 2007, when my records were subpoenaed, and where her last visit was on 7/11/03, Holter monitoring was used twice: on 1/13/01 and 7/19/02.

    Patient G – From December 18, 2000 to December 2007, where the last visit was 11/9/04
    I used a Holter monitor for Patient G one time only, on 3/15/03.

    From my March 3rd, 2009 testimony (still on Patient G): Ms. Bloch: So you- -it is your opinion, you gained a view that the medical community, what is acceptable is, for insurance purposes as well that you can do a Holter monitor about once a year, so you do them? Dr. Anghel: When there are medical indications, yes, I do them. And if there are medical indications you have to start the sentence that way because it is because of the fact that there are medical indications that I do them. It is not because the insurance allows it. [T. 4763-4766]
    From my March 3rd, 2009 testimony, on Excessive Treatment, based on Dr. Petranker’s reckless testimony:

    Ms. Bloch: Doctor, … you were treating the patient, you were doing cardiac meds, … you were doing Holters. [T. 4755]

    So, I was doing Holters, but the record shows one Holter in 7 years. (v.s.)

    From September 24, 2008 testimony (we are still on Patient G) – Ms. Bloch: and what is your opinions to the Holter monitor use? Dr. Petranker: Similar to before. Perhaps the first one (??) could be justified in trying to understand the patient’s spectrum of dysrhythmias, but then what was actually done about it on the subsequent visits. And similar to, as I have testified before, that management was adrift. [T. 1725]

    In similar to before, Dr. Petranker testified to a pattern without even verifying if one existed, and which in fact did not exist. Similar to before, he had previously testified that he had no clue about that aspect of the care. My medical and billing records show only one Holter from 2000-2007, the only one that he could have inspected in my medical records. Dr. Petranker had the responsibility to check the accuracy of his statements before generalizing. If Dr. Petranker had checked my medical record, he would have also seen what was actually done about it before concluding without any expertise in internal medicine that that management was adrift (about the one Holter). Dr. Petranker should have also seen in my chart the cardiac consult that followed the Holter. cardiology consult, thus had no justification to preface his answer with similar to before…and conclude that that management was adrift.

    Dr. Petranker’s irresponsible testimony about excessive abdominal sonograms

    On Patient C…Dr. Petranker: But frankly, I am a pain management doc. And when complaints of digestive disorders come in, I don’t typically manage that part of the workup. Ms. Bloch: …Dr. Anghel…did an abdominal sonogram…Would that be indicated? Dr. Petranker: At some point maybe. But not at this juncture. Ms. Bloch: And is it within the scope of a pain management specialist to have an ultrasound in their office and do abdominal ultrasounds? Dr. Petranker: This is the first time I have heard of it. It is unusual. Ms. Bloch: If we look at the spreadsheet, which we have up on the screen and it is sorted by the CPT code for ultrasound examinations…The diagnosis of cholecystitis was there any evidence of that on these occasions? Dr. Petranker: No. Ms. Bloch: And was there an indication for doing these sonograms on at least the occasions that you saw in the record? Dr. Petranker: No. Ms. Bloch: ..was it within the standard of care and how did it depart? Dr. Petranker: It was not within the standard of care. … The patient had multiple complaints …and then the complaints…was (sic) outside the scope of pain management work. [T. 1368-1370]
    Without credentials and authority in either Pain Management or Internal Medicine, [T. 1368-1370; 1774-1775], Dr. Petranker alleged to be a pain management doc. who didn’t typically manage that part of the digestive workup, he assured us that he would not testify on internal medicine issues, yet had no problem testifying that an abdominal sonogram would not be indicated. Mrs. Bloch sorted the spreadsheets by CPT code for abdominal sonogram and asked Dr. Petranker if there was any evidence for the diagnosis of cholecystitis, a diagnosis that never appeared in my medical records. The diagnosis of cholecystitis was falsely charged as being billed for no medical justification on all pertinent patients. My medical records never indicated cholecystitis, but cholelithiasis…[T. 4540]. Mrs. Bloch asked if there was any evidence; where, in the…spreadsheets? Is that where people look for evidence, in the billing spreadsheets; not in the medical records? Dr. Petranker correctly answered that there was no evidence in the spreadsheet, especially since complaints of digestive disorders and billing were not his forte. But then, in answering if there was an indication …on the occasions you saw in the record, having previously admitted to his limitations and lack of expertise in digestive disorders, Dr. Petranker went ahead and testified that that aspect of management was not within standard of care and that I practiced outside the scope of my specialty, which the DOH concluded was Fraudulent practice, Excessive Testing, Negligence and Gross Negligence.

    On Patient D – Dr. Petranker’s inexpert and reckless testimony on frequency

    In Direct – on Patient D, with no expertise, Dr. Petranker testified:. Again, the test was done, then it was documented, let go and then the patient would come in again with a similar complaint. Again, the test would be done and again documented, but not then chased down. Ms. Bloch: Is that the same with respect to the other visits indicated on this spreadsheet of 11/20/01, 4/30/03, 4/20/04 and 4/29/04? Dr. Petranker: Yes. [T. 1498]

    In Cross – Mr. Bateman: … with respect to this sand or to stones, Actigall would be an appropriate medication to try; is that right, if you know? Dr. Petranker: I am not familiar with that level of in-depth treatment of pancreatic and gallbladder disease….Mr. Bateman: Was there evidence of stones in the chart? Dr. Petranker: There was evidence of it in terms of the use of the word cholelithiasis by Dr. Anghel in the record as well as sand in the gallbladder. Sand is cholelithiasis. Mr. Bateman: You have no particular area of expertise in pancreatitis or gallstones or any of the things that you testified about, those conditions that we just discussed now; do you? Dr. Petranker: No, I do not. 1547-49]

    As to 4/29/04, a false date from Stephano’s batch, Dr. Petranker said yes, without objecting to the false evidence, as this date appeared only in United HC’s spreadsheet, but neither in my medical, nor billing record. For frequency, Dr. Petranker again relied on the spreadsheets without checking my medical and billing records which would have shown no 4/29/04. His testimony was quoted in the Det&Order in support of Charges of Excessive Tests and Fraudulent Practice. (Det&Order, p. 35 of 66)

    Dr. Petranker: Frequency, sir—Mr. Bateman: In that regard, you relied on the adequacy and the accuracy of that spreadsheet information; is that correct? Dr. Petranker: Yes. [T. 1538]. [T. 1556-1559].

    Later, when asked the same question, about the same patient, Dr. Petranker testified that in his answer he relied both on the spreadsheet and on the medical records.

    Mr. Bateman: Doctor, looking at, I think it is Exhibit 12, the billing chart that indicates, does it not, that an abdominal ultrasound was done by Dr. Anghel on this patient April 29th of 2004; is that right? Dr. Petranker: That is correct. Mr. Bateman: Okay. And you said that you looked at and considered and made your decision and are testifying here as to issues of frequency by using this chart; is that right? Dr. Petranker: Along with the medical record. Mr. Bateman: Okay. Could you just, because I wanted to ask you some questions, can you show me in the medical record the chart entry for the abdominal ultrasound on April 29th of 2004? Dr. Petranker: Do you have a page reference? [T. 1556-1557]….Mr. Bateman: So, there is no indication in this chart that abdominal ultrasound was done on April 29th, 2004 by Dr. Anghel on this patient as is reflected in Exhibit 12; is that right? Dr. Petranker: That would be correct…. Mr. Bateman: But do you see Exhibit 12 on the wall? It does indicate that an abdominal ultrasound was allegedly done on April 29th of 2004 – - Dr. Petranker: True. Mr. Bateman (continuing): – - Is that right? Dr. Petranker: That is correct. Mr. Bateman: The chart does not reflect that; does it? Dr. Petranker: No, it does not. [T. 1558-1559].

    Again, if Dr. Petranker had truly relied on medical records as he testified, he would have noticed that the spreadsheet showed what my medical and billing record did not, at which point he should have brought up the discrepancy in the hearing. As an expert witness under oath, he is held responsible for the truthfulness and accuracy of his testimony. And if he did not rely on the medical records, but only on the spreadsheets, then that is how he should have answered that question: that he did not rely on both, but only on the spreadsheets.

    (Continued on Dr. Petranker’s inexpert testimony about abdominal sonogram):

    Patient E

    Mr. Bateman: Doctor, you testified about the March 29th, 2001 visit and Dr. Anghel’s decision to do an abdominal sonogram. And when Ms. Bloch asked you when that decision to perform that test was appropriate, you paused and said that it was aggressive. Do you remember that? Dr. Petranker: I do. Mr. Bateman: Okay. And tell me if I am right about this, that you proffered that the complaints by the patient most likely could have been caused by a bad meal? Dr. Petranker: Possibly. Mr. Bateman: You said that? Dr. Petranker: I did say it, yes. Mr. Bateman: So…would it be fair to say that reasonable physicians, with experience and training, could disagree about whether an abdominal sonogram is aggressive or not or whether it was appropriate under the circumstances? Dr. Petranker: Yes, sir. Mr. Bateman: It was certainly not outside the standard of care? Dr. Petranker: …no, there is not one for this. [T. 1631-1632]

    Patient F – My 7-year record shows that in all the years I saw this patient, I did an abdominal sonogram twice: 2/13/01 [T. 4700] and 3/20/02 [T. 4706] When asked by Ms. Bloch to testify about my doing a sonogram, Dr. Petranker displayed unmatched ignorance and no grasp of what a sonogram of different body regions entails: The basics, such as a pelvic exam, the results … were not there and then a surprising disconnect, while an ultrasound was being done of the belly, why not move the probe a couple of centimeters down and also take a look at the uterus and see what is going on there? [T. 1714]

    Patient G – On this patient, my 7-year record shows that I did an abdominal sonogram one time only.
    …Dr. Anghel: …a sonogram …. What I have here is seven year record (indicating). So that discourse of once a year doesn’t really pertain all that well to him, since I only did it one time in seven years, right? [T. 4767] (The date was 9/7/01)
    False charges based on false evidence
    Respondent further inflated her billing for Patients A through G by claims of repeated blood draws via arterial puncture rather than by venipuncture. In each instance, Respondent diagnosed volume depletion and noted “poor venous access”. However, there was no evidence in the records to support these claims. [Det. And Order, p.34 of 66; p. 10-11].

    The only times that there was no evidence in the records to support these claims were the dates of false evidence in United HC’s spreadsheets, as shown below:

    Patient C – The spreadsheets falsely indicate that between 1/1/04-4/30/04, I did arterial punctures on the following 4 dates: 1/26/04, 4/5/04, 4/21/04 and 4/22/04, while my medical and billing records do not.

    Patient D – The spreadsheets falsely indicate that between 1/1/04-4/30/04, I did arterial punctures on the following 6 dates: 2/3/04, 3/10/04, 3/19/04, 4/2/04, 4/14/04, 4/29/04

    Patient E – Dr. Petranker on arterial punctures: …the frequency of these arterial punctures is questionable. [T. 1610] The spreadsheet falsely indicates that 36600, an arterial puncture was billed on 3/10/04 and on 4/30/04, but neither my medical nor billing records show them.

    From September 24th 2008 testimony – Mr. Bateman: … Exhibit 12A …April 30th of 2004…The record on 4/30/2004 is arterial puncture, withdrawal of blood for diagnosis. Dr. Petranker: The diagnosis is volume depletion. Mr. Bateman: Doctor, … I am going to ask you, is there a chart entry for a visit by Patient E with Dr. Anghel on April 30th of 2004? Dr. Petranker: No, there is not….Mr. Bateman: If you take a look..do you see any chart entry for a visit with Dr. Anghel by Patient E for April 21st of 2004? Dr. Petranker: I don’t believe so….Mr. Bateman: But no entry for 4/21 of ’04; is that right? Dr. Petranker: I don’t believe so. [T. 1667-1675]

    As to Failure to Maintain Records, another false charge, I satisfied the NYS Education Law, I kept my records as the law required: 6 years after the last visit.
    The Committee based its Determination that I failed to maintain medical records not on the law, as it should have, but on Dr. Petranker’s expert testimony. [T. 1177-1185] about a concocted standard of practice predicated upon a competency in communication that is being taught today to medical students and up in Albany, which does not appear in the law. Since charges of negligence and gross negligence (without any patient harm) were also based on “failure to maintain medical records”, these charges too can be traced back to Dr. Petranker’s testimony.
    Mr. Bateman: Are you aware what the requirement is in NYS as to how long a physician is required to maintain … medical records for patients that they have seen? Dr. Petranker: I don’t know the standards. Mrs. Bloch objected: This is not a hospital-based issue. [T.1178-1187]

    I concur.
    The Determination and Order (p. 32 of 66) correctly states that a physician is required by law to keep patient records for six years after the last visit (ALJ Exhibit # 11); [T. 4817-4818], which I fully satisfied, but then it introduces a fabricated standard of care, based on the testimony of Dr. Petranker, who admitted: I don’t know the standards….Det. &Order: generally accepted standards of practice mandate that all records from the beginning of treatment forward need to be available in order to establish what has been done and to trace the evolution of disease, [T 1260-1262] is 1) a great distortion of Dr. Petranker’s testimony, who was merely 2) proffering his biased opinion, not the generally accepted standards of practice, 3) a misrepresentation and a mockery of what standards mean, a prima facie absurdity, because, of all professions, it would single out physicians and raise their bar to a standard that no other profession is held to, which amounts to never discarding any records. This conclusion appears so prejudiced on its face, that without even subjecting it to any test or scrutiny, one can tell it is misguided and non-sensical. Another example of bias from Dr. Putterman [T. 4223]: I guess I want a little bit more than the statutory requirement of six or seven years. How do you see your medical records with your patient care? Dr. Putterman’s unreasonable demand for a little bit more than just complying with the statutory requirement shows bias and lack of understanding of his own mission, never mind mine.

    Again, Dr. Putterman, the Chairperson, on his misunderstood forever retention of medical records: …in terms of record keeping. I think you are under the illusion of an urban myth. The professional responsibility of record keeping is that as long as the patient is active in your practice, the records are supposed to be retained. That isn’t a law. That is a sign of professionalism. [T. 2052]. The Committee is supposed to decide on my retention of medical records based on what the statute requires, not based on Aristotelian virtue ethics.

    Here is what the Chairman of the Committee, Dr. Putterman, said about how the Committee got instructed on Failure to Maintain Records, in violation of 6530(32): not about the law, (accuracy and 6 years from the last visit) – what he calls the evidence-based medicine – but professionalism, as is being taught in Albany at this point in time.

    Dr. Putterman: …does this record in front of us meet the standards that you set for yourself professionally? I am asking you….if this record meets your standards for recordkeeping?… Our issue is to ascertain whether or not the physician is practicing, not just on the basis of the evidence-based medicine … but in terms of the professionalism that is required for maintenance of a license. It is not CME based medicine, but it is the professionalism…, as is being taught up in Albany at this point in time, the six issues that the medical students are being addressed in terms of professionalism as the AIM and everybody else has established, what we have to be able to tell the Department is that the records that are submitted meet the standards of professional behavior in terms of all six core competencies besides the evidence-based medicine. From that perspective, does this meet the standards reflection of the six competencies. In terms of communicating with the patient, communicating with the colleague, risk management, all of those issues? … I am sure you are aware I have to evaluate this from my perspective. Is this a reflection of a competent physician? [T. 3045-3047]

    …We didn’t plan it this way, but my colleague’s question goes to the competency issue. One of the competencies has to do with the ability…to communicate with your patient and …to communicate within the system. An if there are no records in here, I would say that this record, in those two cases alone, show a lack of competence. I am not questioning medical judgment. We are not going down that road at all. I am just talking about the medical record and its reflection. And my colleague just brought up at his point in time where one of the competencies is the ability to document, communicating with your patient and communicating within the system. So, if we are not—if we don’t see referral letters back and forth and we don’t see follow-up on patient behavior, that, to me, will signify the lack of competency in important issues of professionalism. [3057-3058]

    Ms. Thelian testified that: … from a coding and billing perspective matched against documentation guidelines, her charts were well documented. You could see the continuity of care. They were well documented records. So you can pick up and follow along on the additional visits or the follow-up [T. 4849-50] The Committee rated Ms. Thelian a credible witness. The Committee failed to explain why it found my records adequate when it decided that everything I did was medically indicated and justified based on medical records and testimony, in satisfaction of the law, but inadequate based on competencies that are being taught to students and up in Albany today, on which the law is silent.

    Notwithstanding the requirements of both law and standards of practice, Respondent failed to keep records for the requisite periods of time (same page, 32 of 66). This is a false charge, because in fact, as shown above, in satisfaction of the law (standards of practice do not appear anywhere in the law!), I did keep records for the requisite periods of time. The quote that even if she had maintained records, they would be of no use since she would never refer back to them [T. 4222-4227] conveniently leaves out what else I said [T. 4221], just a page earlier: …if there were serious medical problems that made it important for me to make reference to some part of the history, then I would keep records older than the seven years…which …I would just extract and make it part of the new record, just that particular, important part…I would keep the important information, make it part of the more recent chart…if there is any important event that has relevance to the present state, yes, I’ll make a note of it… No different than what the standards of medical record retention are (AMA’s Code of Medical Ethics, Opinion 7.05).

    The medical records … lack accuracy, veracity, clarity and usefulness. (p. 32 of 66) The records and testimony clearly established that the Respondent’s medical records served mainly as a vehicle to support her claims for insurance reimbursement rather than to provide meaningful medical information. As a result, the Hearing Committee concluded that the Respondent failed to maintain records which accurately reflected medical care and treatment rendered to Patients A through G, in violation of Education Law 6530(32)….The Committee voted in support of Specifications Nineteenth through the Twenty-Fifth. That is to say 7 Specifications or Charges, one per patient, since there were 7 patients A through G.

    The same medical records, (and all of the evidence presented so far) on which the Committee based its interim and final decision cannot be the basis for 1) everything she did was medically indicated and justified, and at the same time 2) lack accuracy, veracity, clarity, usefulness, used as a vehicle to support insurance reimbursement, rather than provide meaningful medical information, and be the basis for charging that I failed to maintain records which accurately reflected medical care and treatment rendered. Such inconsistencies in the Det&Order exude flagrant bias and self-contradiction on the part of the Hearing Committee.

    It was reversible judicial error if the judge instructed the Committee that the law on medical record retention had no statute of limitation, as he implied in the Pre-Hearing [T.110]. Judge Zylberberg: Are you saying if you have a patient, a physician has a patient, continuing care starting in 1972, patient stays with you for thirty years and you now we’re in 2002, every six years you purge that patient’s records? Judge’s own obvious bias on indefinite retention of medical records may well have made its way in how he instructed the Committee.

    But the ALJ knew exactly what the law required – Judge Z.: You have to hold onto it for at least six more years or from the last visit. [T. 4230]

    In the Determination and Order, Significant Rulings, p. 5, the Hearing Committee concluded that the respondent had the requisite skills in her specialty and treated patients with those skills. Because the Hearing Committee was satisfied with Respondent’s medical skills, on February 24, 2009 (17th day of Hearing), the Hearing Committee issued an interim decision, as follows: The hearing committee is of the opinion and concludes that the medical care provided to patients C, D, E, F, G meets minimal standards of care based on the records that we have and the testimony of both experts and Dr. Anghel to date. [T 4546-4547].

    In addition, the AO’s response to the Department’s clarifying questions was: “Based on records…and on all of the evidence presented so far, yes, ”

    Mrs. Bloch: “…does that include…that everything that she did was medically indicated and justified? Judge: Yes. Dr. Levinson did you hear that question? Dr. Levinson: I did. Judge: Do you agree with my answer? Dr. Levinson: I do. Mrs. Bloch: They are finding that all of the labs and things on these instances were indicated and justified? Judge: Based on the medical record. Mrs. Bloch: Based on the medical record? Judge: Correct. Mrs. Bloch: And not on her testimony? Judge: No, no. Based on all of the evidence presented so far.” [T. 4645-4646] ….Judge: I think I said based on the records and the evidence presented so far….their determination is based on all of the evidence that they have received. [IHT. 488-489]

    The evidence did not demonstrate a lack of skill or knowledge on Respondent’s part. To the contrary, the Respondent was found to be a knowledgeable physician. (Determination and Order, p.39)

    In its Interim Decision, the Committee discarded Dr. Petranker’s opinion that everything I did was substandard [T. 1694, 1713, 1714, 1742-1743, 1752-1753] when it concluded that everything I di

  39. (continued)

    In its Interim Decision, the Committee discarded Dr. Petranker’s opinion that everything I did was substandard [T. 1694, 1713, 1714, 1742-1743, 1752-1753] when it concluded that everything I did was medically indicated and justified based on medical records and testimony, (not Dr. Petranker’s); but after it restricted my testimony and defense, it adopted everything it had discarded. A trap. The Committee returned everything that it had cleared me of only now under the guise of Fraud, Negligence, Gross Negligence, Failure to Maintain Records, Excessive Tests. Judge: That could be a fraud issue. Ms. Bloch: It is a fraud issue. [T. 4604-4619] The everything she did was medically indicated and justified and she met the standard of care became excess, fraud and negligence, predatory behavior to generate income, and the medical records that the Committee had relied upon in the earlier decision became contrived, used as a vehicle to generate reimbursement, once it silenced me with its questionnaire – D&O p. 38 of 66) not what a prudent physician would do, and thus outside standard of care, and outside the scope of my practice, based on Dr. Petranker’s testimony.
    In Cross, Mr. Bateman: Did you consider, when you reviewed this record, that Dr. Anghel may have also been seeing Patient C as an internal medicine or primary care physician? Dr. Petranker: No. [T. 1372]
    Outside the scope of my practice notwithstanding my 2 years of Internal Medicine post-graduate residency training [T. 2084-2085], the many years of practicing office and hospital – based Internal Medicine [T. 2109; 2116]; and holding a certificate (from Thomas Jefferson University, Philadelphia) that allows me to to do and interpret abdominal sonograms. Ms. Bloch: Are you trained in doing abdominal sonograms? Dr. Anghel: Yes, I took a course in … abdominal sonography. Ms. Bloch: And where did you take that course? Dr. Anghel: Thomas Jefferson. [T. 4293; 4733-4]
    Since it cannot be said that the Committee decided that everything I did was both medically indicated & justified and also excessive, to enrich myself, and that I met the standard of care based on medical records (and testimony) which it knew were fraudulent, any return of charges under a different name based on the same medical records and testimony, and after limiting my testimony and precluding me from commenting on decided issues, cannot stand.
    Ms. Bloch: So why would you be doing ultrasounds when the patient is regularly seeing the gastroenterologist? Dr. Anghel: You asked me that question and I answered it.
    Obviously the interim decision did not preclude the DOH from asking previously-answered questions, which this time were framed under fraud. Ms. Bloch, in response to Mr. Bateman’s objection over the return with a previously answered question, said: It is a fraud issue. Dr. Anghel: I take offense that doing a sonogram would be a fraud issue. Ms. Bloch (testifying that the sonogram was an overlap of care – but this is how the Department charged for fraud: based on the unsworn expert testimony of Mrs. Bloch that there was an overlap). So, you thought that that was necessary…Well, see, Doctor, you’re doing a procedure that you bill $500 for? Dr. Anghel: Medically speaking, we can talk about the price later, but right now… Ms. Bloch: No, Doctor. I am talking about the price now. Judge Zylberberg…you have to answer the question. Dr. Anghel: But she has two questions here and that is why I want to go one at a time. She said: What makes you think that there was a medical indication for you to do an abdominal sonogram? … and billing $500. So, now I have two questions. Before I go to the price, I want to address the medical necessity first. …There is no overlap between what he was doing and what I was doing. These are not duplicates of the same test. Abdominal sonogram looks at something and the ERCP looks at something else. So, one does not replace the other. Ms. Block: You don’t think this is excessive treatment over-utilization of a procedure so that you could charge the patient $500 to do a procedure instead of sending the patient back to her gastroenterologist? [T.4602-4619]
    Building on her case of fabricated fraud for the practice of medicine: Ms. Bloch: You just want to take and be able to do these procedures on these patients yourself and bill for them rather than send her back to the gastroenterologist; correct? Dr. Anghel: No, no, no. I had seen this patient, I believe, – - before she started seeing Dr. Immanuel. So it is not that I wanted to take over from him. [4622]. … Dr. Immanuel was mainly a proceduralist. He was very much focused on endoscopic procedures, was not really set up to do abdominal sonograms…I did abdominal sonograms for Patient F for reasons that Dr. Immanuel would have done or have liked to have one done. Dr. Immanuel had wanted … to see an abdominal sonogram…- he put it in his plan, sonogram. [T. 4672-4674]

    The same tests, labs, procedures, treatment, everything she did, all LABS and CARE that were… found medically indicated and justified and dismissed the charge of incompetence cannot also be ordered over and over regardless of the documented complaints or diagnoses, found to be excessive, used for the purpose of inflating her billings, without evidence to support them (D&O, p. 34) and lead to charges of fraudulent practice, only this time the tests were billed instead of performed, when in fact they were performed and billed the same way. Also, arterial punctures and tests found medically necessary suddenly became not indicated, continuously performed, unusual, more expensive, billed to maximize my income, and concluded to be false billings.

    ON NEGLIGENCE and GROSS NEGLIGENCE

    The Committee concluded that 1) I had the requisite skills in my specialty and treated the patients with those skills. (Det. & Order, p.5 of 66)…The evidence did not show a lack of skills or knowledge. To the contrary, she was found to be a 2) knowledgeable physician (Det&Order, p. 39 of 66). Therefore, based on 1) skills and 2) knowledge, incompetence was dismissed.
    … Because the Hearing Committee was satisfied with those skills, it issued an interim decision…that the care meets the minimal standards of care. (Det&Order, p. 5 of 66).. based on the records and the testimony. So, meeting minimal standards of care should have cleared me of negligence and gross negligence for C-G Patients, but the Committee contradicted itself in the Det&Order when it sustained charges that it had already dismissed. See definition below.

    Negligence is defined as failure to exercise the care that would be exercised by a reasonably prudent licensee under the circumstances. It involves deviation from acceptable medical standards in the treatment of a patient (from the Definitions of Professional Misconduct under the New York Education Law, November 23, 1999, signed by Henry M. Greenberg, General Counsel, NYS DOH). That is …DEVIATION … IN THE TREATMENT OF THE PATIENT, not record-keeping regardless of the patient welfare.

    Gross negligence may consist of a single act of negligence of egregious proportions, or multiple acts of negligence that cumulatively amount to egregious conduct. Multiple acts of negligence occurring during one event can amount to gross negligence on a particular occasion…There is adequate proof of gross negligence if it is established that the physician’s errors represent significant or serious deviations from acceptable medical standards that present the risk of potentially grave consequences to the patient.

    DOH’s Charges of Negligence and Gross Negligence were based on 1) Charges of Incompetence (which were dismissed in the D&O), 2) Failure to Maintain Medical Records and 3) Excessive Tests and Treatment.

    The Determination and Order (p.39) reads: The evidence did not demonstrate a lack of skill or knowledge on Respondent’s part. To the contrary, the Respondent was found to be a knowledgeable physician…The Committee concluded that the record did not establish that Respondent practiced the profession of medicine with incompetence, as defined. Accordingly, the Committee voted to dismiss the Tenth specification of professional misconduct. Since incompetence (lack of requisite skills to practice medicine safely) was charged on all 7 (A-G) patients, when the Committee decided to dismiss it, because the Respondent had the requisite skills, treated patients with those skills (p.5),…and was found to be a knowledgeable physician (p.39), combined with the interim decision on C-G Patients, that medical care met minimal standards of care, one concludes that this is also the kind of care that would be exercised by a reasonably prudent physician under the circumstances, which ipso facto should also lead to the dismissal of negligence charges. A physician does not meet the standards of care if he practices with negligence and imprudence. When standard of care is met, as declared in the interim decision, Charges of Negligence and Gross Negligence are dismissed. Exercising care as reasonably prudent physicians would under the circumstances is embedded in standard of care, which the Committee found in its Interim Decision that I met, or the care exercised by reasonably prudent physicians under the circumstances meets the standard of care. Since both negligence and gross negligence involve deviation from acceptable medical standard of care, having met the standard of care should exclude charges of negligence and gross negligence.

    The Committee decided that standards of care based on records that we have…plus the clarifying question everything she did was medically indicated and justified …They are finding that all the labs and things on these instances were indicated and justified? Based on the medical record…based on all the evidence we have so far. Where the Hearing Committee relied on medical records when it concluded that I met the standard of care, the same medical records cannot also be used to support breach of standard of care, in support of negligence and gross negligence. Both the interim Decision and the Final Decision specifically mention their reliance on medical records but led to diametrically opposed decisions.

    The case law cited by the DOH has no relevance here, because 1) the interim decision was that I met the standard of care and 2) the basis for having met the standard of care was explicitly … the medical records; the standard of care was found to have been met precisely on medical records (and on all the evidence we have so far … They are finding that all the labs and things on these instances were indicated and justified? Based on the medical record…based on all the evidence….). 3) I fully satisfied the Statutory requirements for record-keeping, 6530(32). The Committee would have never concluded and expressly mentioned that I met standard of care based on medical records, which were … inadequate. …the Committee’s Determination reads: … meets minimal standards of care based on the records that we have and the testimony of both experts and Dr. Anghel to date. [T 4546-4547].

    In addition, the AO’s response to the Department’s clarifying questions was: “Based on records…and on all of the evidence presented so far, yes, ” [T4645-4646]

    A reasonably prudent physician would not destroy medical records for patients still under
    treatment, and would also review the records to maintain appropriate continuity of care. (Det&Order)

    The Code of Medical Ethics reads otherwise. If discarding old medical records were such an offense to indicate unreasonableness and imprudence, the Opinion on medical records of the AMA Code of Medical Ethics would not read the way it does.

    From OPMC Web site: How long must a physician keep medical records?

    Physicians must keep patient records for six years after the last visit. Records for children are kept for one year after the child’s 18th birthday.

    +On Retention of Medical Records, Opinion 7.05 in the Code of Medical Ethics, 2008-2009 Edition reads (p. 192):
    (1)Medical considerations are the primary basis for deciding how long to retain medical records. For example, operative notes and chemotherapy should always be part of the patient’s records. In deciding whether to keep certain parts of the record, an appropriate criterion is whether a physician would want the information if he or she were seeing the patient for the first time. (3) In all cases, medical records should be kept for…the length of time of the statute of limitations for medical malpractice claims, which in New York State is 30 months (the filing must be done within 30 months/2.5 years from the disputed event). Whatever the statute of limitations, a physician should measure time from the last professional contact with the patient. (7) The records of any patient covered by Medicare or Medicaid must be kept at least five years. (8) In order to preserve confidentiality when discarding old records, all documents should be destroyed.
    “Based on records…and …the evidence presented indicated that what respondent did was medically indicated and justified” is in flagrant conflict with the charge of excessive tests that were not medically necessary. The tests, the labs, the care, the treatment “everything she did” cannot be both “medically indicated and justified” and at the same time be excessive, not medically necessary, negligent, grossly negligent, used to inflate billings, and also included in fraudulent practice of medicine.

    On Charges of Fraudulent Practice

    Re: Another example of Respondent’s false billings is the repeated use of the highest level of consultation code (CPT 99245). [ Det. and Order., p. 34] (I verified date-by-date in my billing records)

    As to the repeated use of the highest level of consultation code CPT 99245, the number of times this code was used hardly qualifies for use, let alone repeated use.

    On 7 patients, over a 7-year time period from Dec. 2000-November 2007, the highest level 99245 was billed for a total of 6 times.

    Patient A, code 99245 was billed 1 time on 10/11/2001
    Patient B, code 99245 was billed 1 time on 1/5/04 (she was seen one time only)
    Patient C, code 99245 was never billed
    Patient D, code 99245 was billed 1 time, on1/17/2002
    Patient E, code 99245 was never billed
    Patient F, code 99245 was billed 3 times: 10/1/2001, 1/22/2002, and 1/6/2003
    Patient G, code 99245 was never billed

    Re: Respondent submitted claims for CPT 99245 level consultation on at least 87 occasions for Patients A through G (including 31 claims for Patient C during a 4 year period). The medical records do not reflect any comprehensive history or comprehensive examination. The records maintained by Respondent are devoid of coordination of care, or reports to referring physicians. The Hearing Committee concluded that these claims were false, and that Respondent knowingly submitted these false claims. (Det and Order, p. 35)
    These are false charges. My medical and billing records show a total of 6 consultations in 7 years, on the 7 patients at issue, that’s 81 consultations shy of the alleged 87 consultations. The allegations of 81 extra occasions, over no indicated time period for verification, which include yet another unspecified 4-year time period (any guesses which 4 years?), and which by the way do not reflect any comprehensive history or comprehensive examination and the records maintained by Respondent are devoid of coordination of care, or reports to referring physicians, and therefore they were false claims. Such reference to their inadequate documentation, reports and coordination, which comes from Dr. Petranker [T. 755-757], implies that an opportunity existed and was taken by him to check them for adequacy, at the end of which he would have concluded that all of the 87 of them were inadequate. But in my medical (and billing records) records from 2000 to 2007, on the 7 patients, only 6 consultations could have been checked for adequacy, because there were only 6, not 87.

    Dr. Petranker had no expertise in billing or documentation requirements for office based procedures which included consultations and office visits …. On sufficiency of medical documentation, Dr. Petranker looked to basics and worked his way up, I look to basics of note writing. I look to history, physical examination, basics and then work my way up, depending on the complexity. Mr. Bateman: Would you agree with me that when you followed a standard like that, reasonable physicians can disagree as to the sufficiency of documentation in the medical records? Dr. Petranker: There can be disagreement…[T. 1177—1185]

    OPMC never brought a billing or coding expert. Ms. Thelian, a certified professional coder, whom the Committee found a credible witness, in her testimony on the sufficiency and adequacy of documentation, stated: from a coding and billing perspective matched against documentation guidelines, her charts were well documented. You could see the continuity of care. They were well documented records. So you can pick up and follow along on the additional visits or the follow-up [T. 4849-50]

    On whether …Dr. Anghel accurately billed the insurance companies for .. high level comprehensive office visits, Ms. Thelian testified; They were comprehensively documented. They met the requirements according to the coding rules and regulations. Mr. Bateman: And you found that those were appropriately billed? Ms. Thelian: Yes, I did. Her opinion applied to all comprehensive E&M and consultation codes. [4865-4882 Direct] On Patient A, …October 11, 2001 [T. 4875-6]…this would be a consultation because we see documentation…History of Presenting Illness …So, we do meet at least four elements of the HPI…we have past social history..So we have our two of the history areas. And again that is going to give us a complete PFSH [T. 4877-8] …that is a comprehensive physical examination, because it is eight or more body areas or organ systems….as to the documentation for the other visits….They are similar. And her follow-up visits are documented in the same fashion. Her consults…are documented in the same fashion. [T. 4879-4881]

    Re: … The Hearing Committee concluded that these claims were false, and that Respondent knowingly submitted these false claims. (Det and Order, p. 35)

    The Hearing Committee never explained why it found Ms. Thelian to be a credible witness when she testified, yet not the credible professional coder’s opinion was what it relied upon, but the arbitrary and inexpert look to basics and worked my way up opinion of the hospital based Dr. Petranker on office-based practice documentation.

    Furthermore, based on the same documentation, whose sufficiency Ms. Thelian credibly testified about, (the medical records and all the evidence so far), the Hearing Committee determined that everything I did was medically indicated and justified and met the standard of care. [Det and Order and T. 4645-4646]. The medical and billing records, (which show that code 99245 was only scarcely used: a total of 6 times in 7 years among 7 patients), could not have been deemed false by the Committee, which would have never decided that I met the standard of care based on false medical records.

    On choosing to use her knowledge for her own unjust enrichment rather than for the benefit of her patients (Det&Order, p. 39 of 66) in the context of … insurance verification, to prove … yes, Charges of Excessive Tests (and Negligence & Gross Negligence and Fraudulent Practice):

    Ms. Huggins (a former employee of mine): …she accepted in and out-of-network and we verified whether they were eligible or not. Ms. Bloch: So it didn’t matter. She would take any insurance; correct?…So she just wanted to know that she would get the money that went to the patient; right? [T. 2649].

    So, this goes to the misconduct of insurance verification, therefore…unjust enrichment.
    Charges of unjust enrichment are present in every single one of the 7 Charges, without exception. No opportunity was missed to insert predatory behavior and narrow economic interests at the expense of patients’ welfare, … although the Hearing Committee has no credible evidence that any of her patients suffered any harm. (Det&Order, p. 40) and after deciding that everything I did was indicated and justified. My patients’ welfare was never compromised and much less compromised based on false charges, based on false evidence and false testimony.
    On the false charges that I billed for “labs that were never performed”
    Mr. Bateman: I want to ask you about the lab work similar to a question that I asked you on Patient C. did you look through and examine the results of the blood tests done by Dr. Anghel on this patient,, not the outside labs, the – - again, what I am calling the strips, which are the results of blood tests? Dr. Petranker: Yes, I reviewed them and then cross walked it back into the medical record. Mr. Bateman: And they matched up; is that right? Dr. Petranker: The ones I reviewed did. Mr. Bateman: And for the sake of – - since we know you’re going to be testifying as to other patients today, did you do that for all the patients that you examined charts on and have testified or will testify? Dr. Petranker: I did it across all the cases and similarly the ones that I checked were, indeed, documented in the medical record. Mr. Bateman: Indicating the lab tests were, in fact, done? Dr. Petranker: That’s correct. [T. 1532]
    My medical records were extensively scrutinized by the DOH following its subpoena and then testified about by Dr. Petranker: Similar to the other tests… the test was done, … documented …Again, the test would be done and … documented. September 23rd. [T. 1397; 1497-8; 1532]… The labs were done … all these tests were done. [T. 1599] The DOH falsely charged under Excessive Tests and the Hearing Committee sustained (D&O, p. 37 of 66) that knowingly I submitted false claims for laboratory tests which were never performed (Factual Allegations H), without any support in the entire record and in spite of Dr. Petranker’s testimony to the contrary. [T. 1397; 1497-8; 1532; 1599]
    … The evidence overwhelmingly established that Respondent’s primary motive in operating a laboratory was to generate reimbursable insurance claims.
    So, I billed for labs that were never performed on Patients A through G and at the same time I operated a lab to generate income. Well, which is it? If the labs were never performed, then there was no operating a laboratory.
    I never billed for any labs on Patients B and G; they were all sent to outside laboratories. And all the labs that I billed for on Patients A and C-F were done and testified to have been done by Dr. Petranker.
    For resubmitting unpaid bills, the Department designated the charge of double billing, even though Mr. Stephan testified: I don’t know of any law that precludes it. [T. 959]…..Mr. Bateman: Now, you…gave some testimony earlier on the abilities of United Healthcare or Empire’s computer systems to identify and reject claims that are submitted for the same service more than once? Mr. Stephano: Correct. Mr. Bateman: That the computer has the ability to kick those out? Mr. Stephano: Correct. Mr. Bateman: And how long has that system been in place? Mr. Stephano: A very long time….Mr. Bateman: Have you found it to be a good system identifying double claims or repeat claims? Mr. Stephano: It is fairly robust, yes. [T. 1117-1118]

    On cost-effectiveness which is not what this proceeding is supposed to be about, and on fees, which are non-jurisdictional for the DOH,

    How much can a physician charge for services? (from OPMC Web site)

    Generally, physician fees are not regulated in New York State. Complaints regarding fees are not under the jurisdiction of the Office of Professional Medical Conduct unless they represent fraud (for example, a charge for tests or services not provided)
    http://www.health.state.ny.us/professionals/doctors/conduct/frequently_asked_questions.htm#additional_information

    Ms. Bloch: And certain modalities are less costly than others, correct? Dr. Argoff: I think that is fair to say, of course. [T. 3143]. Ms Bloch: With respect to cost-effectiveness, did you happen to look at Dr. Anghel’s billing for Patient A? Dr. Argoff: let me establish that I am not a medical or healthcare economist. And so, I don’t consider myself in a position to be an expert….I have not been asked…to prepare a chronicle or otherwise procedure-based economic model of whether or not it makes sense to treat somebody… nor do I profess to be an economist. Relentlessly, Ms. Bloch went on: Do you think cost effectiveness is a consideration …Dr. Argoff: I think that cost-effectiveness is an important consideration that has not yet been subject to rigorous research.[T. 3164-3165]

    Mr. Stephano: From a fee structure perspective, the doctors can set their own rates on what they choose to charge.[T. 970]

    Mrs. Bloch, relentlessly, on billing fees to build her case of fraud: Now, which is more–…more expensive—which would a physician charge more for; a facet joint injection or trigger point injection? … Well, which takes longer and more skill and more time? [T. 3156-3157]

    So bent was Mrs. Bloch on hearing that the facets were more expensive, that she even conceded the reason: they took more skill and more time….but conceding the reason did not prevent her from misconstruing the “more expensive” as fraud.

    Mrs. Bloch asked Dr. Argoff his opinion on more cost-effective modalities: What about if there was an attempt –if Dr. Anghel was trying to increase the Neurontin and Elavil and giving the medication a chance to work and maybe some physical therapy… is that more cost effective? [T. 3168, 3172]

    … Physical therapy, Neurontin and Elavil [T. 3340-3344]….these are the same Neurontin and Elavil, that not only I prescribed for Patient A, along with physical therapy (see also Patient A’s medical record), but actually got charged by OPMC/DOH for having done so. -Factual Allegations A. 5a and A. 5b (Det&Order, p. 47 of 66): Inappropriately and without medical indication and/or justification, prescribed and/or maintained Patient A on various medications, to wit: Neurontin, Elavil.

    So, the DOH suggested that I recommend….the very thing it charged me with having recommended.

    The Department of Health misused its power when it charged me with A5a to A5i, that I recommended Neurontin, Elavil, Tylenol, Motrin, Calcium, Vitamin D (even over-the-counter medications and supplements!!!), based on Dr. Petranker’s lack of expertise, and then suggested that for cost-effectiveness I recommend the same drugs, Neurontin and Elavil. These Factual Allegations went to Charges of Negligence and Gross Negligence (Det&Order, p. 64 of 66) and the Hearing Committee sustained all of them.

    On OPMC-admitted non-jurisdictional fees, Ms. Bloch: …the Respondent… charged $13,690. … would you compare that with … the prospect of discussing with the patient the surgical costs and the idea of surgery versus doing epidurals and treatment to the tune of $13, 690…Dr. Argoff: So, let’s have a polite and respectful reality check. If those five procedures were done in a hospital-based pain center, the cost would probably be…….at least twice as much. … Ms. Bloch: You didn’t address the question, Doctor. We are not going to get very far if I ask a question and you answer a different one. Dr. Argoff: That was not what I intended to do. The next step in my response was going to be, if this patient had surgery, the cost would be multiple times more. Judge: That wasn’t the question. [T. 3166-3171].

    Actually, “the surgical costs and the idea of surgery versus doing epidurals” were very much the question, and that is what Dr. Argoff answered, but we can also see here Judge’s own bias on Dr. Argoff’s testimony, later misconstrued to be so non-responsive, as to justify him to direct the Committee to restrict Dr. Argoff’s testimony. The Hearing Committee would have never come up with this idea on its own and without judicial guidance.

    It cannot be said that the DOH and the Hearing Committee did not base their charges of Fraudulent Practice on non-jurisdictional fees.

    On Patient B, whose labs were sent out – Ms. Bloch: Doctor, there’s nothing better than the labs except that what you are doing is you are billing for those labs and that affects the cost of health care…[T. 4045-4047]

    The DOH accused me for non-participating with UHC for greed, for the purpose of ”charging more”:

    Ms. Bloch: So, it pays for you not to be a participating provider; right?..It is more profitable to be a non-participating provider and charge these rates; and in fact, they pay better as a non-participating provider; right? [T. 3253-4]

    In the U.S., physicians can still choose between participating with insurance companies or not.

    Mr. Stephano: The State legislature mandated that it be created that way so that when patients chose to go out-of-network the benefit is available to them to go out-of-network. [T. 924]

    Ms. Bloch: (cross with me)…Now, with respect to your coding for the office visits, it is your understanding that you can charge separately for an office visit even though you do a procedure? [T. 3267]

    Ms Bloch knew or should have known the answer to be yes, but went ahead to conclude greed for profitability, just the way she did with my non-participation with UHC. …Ms. Bloch: …if a procedure is performed a physician can separately bill for an office visit? Mr. Stephano: Yes. A physician may bill for a separate office examination. If the purpose of that examination is to address a symptom or a problem that is different from the primary purpose for the procedure…[T. 963-4]

    Re: Respondent also knowingly billed for assorted supplies in connection with injection procedures, which she did not use. These supplies included gloves, betadine swabs and alcohol swabs among others….On: The above examples which we have drawn from the records are far from an exhaustive list. The records in evidence for each patient demonstrate hundreds of similarly false claims. (Det&Order, p. 35-36 of 66)

    These charges are false for the following reasons: 1) Supplies were dispensed and used, as needed; 2) UHC reimburses supplies that are either dispensed or used – Stephano’s testimony, see below [T. 1031-1033]; 3) billing exactly and only for what was used was not an option (nor a condition of reimbursement for UHC, as we saw in 1).

    Supplies were dispensed – From Ms. Huggins testimony:

    Ms. Bloch: How many would you say were being ordered in a week? Ms. Huggins: In a week? I don’t think it was every week, maybe every two or three weeks. There would be boxes – - maybe three boxes, I would say maximum four boxes, we would request from the outside lab. [T. 2642-2643]

    Charges of fraudulent practice based on a United HC spreadsheet description of 100/ box glove, which did not exist in 2001, and on fees:

    On Patient A, Ms. Bloch: And then A4927 is a box of sterile gloves (the spreadsheet described a full box, instead of one pair of gloves).

    Ms. Bloch: You charged $24 for a box of 100 gloves?…Mr. Bateman: Didn’t it say per 100 on the screen? Ms. Bloch: That code was for per pair.(sic)…So you charged $24… [T. 4561-64] But that code was per pair of gloves, and the amount of $24 was for 2 pairs of gloves, to be exact. Mrs. Bloch projected up on the wall a spreadsheet description of 100 gloves per box, when in fact the description was per pair of gloves. That code was for per pair (in her own words). The 100/box spreadsheet description of gloves remained in the spreadsheets from the beginning to the end of the hearing, even after related charges were amended. The other false spreadsheet description, the 100/box needle description disappeared from the spreadsheets upon our objection, even before the charges were amended.

    On Charges of Fraudulent Practice based on billing for gloves, whose definition changed from one pair of sterile gloves to 100/box gloves, sterile or non-sterile, while the code remained the same:

    Judge Z: Then they are changing what happened in ’94. They can’t do that. And I didn’t understand that that was the position. [IHT158]…No, but it shouldn’t change on the computer. That is a problem with United Healthcare. ..It is like saying the light was red and then ten years later, I changed my definition to what red is, so now it is green. [IHT. 159]…I don’t think it is right. [IHT. 160].

    Judge Z: ..If somebody commits a crime in 1993 and you charge them, there is no statute of limitation, you charge them in 2005, there was a change in the law in 2000, do you go to the state of the law in ’93 or do you go to the state of the law in 2005? Mrs. Bloch: I don’t think this is the same thing. Judge Z: Well, you changed…he changed the definition. [IHT. 161]

    Judge Z:…if in 1998 the definition is X, it should stay X forever. And if it changes in ’99, then it is Y. But on the computer system it should lock, it should stay X forever. Doesn’t matter if they print it in 2000 or in 2050, it should say what it was when it was. And that is inappropriate for them to change it. [IHT. 187, Sept. 23]

    From the Det&Order: Respondent also billed for sterile gloves using CPT code 4927, for each injection procedure (D&O, p. 36 of 66). This is grossly false. As shown below, not only did I bill for sterile gloves only between 2000-2002, but I did not bill them for each injection procedure even during that period of time.

    Dr. Anghel: …. By the way, many, many, many times I did not bill supplies. [T. 4476]

    From 2003 to 2007, of all patients A through G or C through G, I billed A code supplies one time and one time only: on Patient C, DOS: 5/8/03, betadine sticks. This was the last A code, and the only A-code I billed on any of these patients after 2003.

    The Hearing Committee (referring to gloves) affirmed:…However, Ms. Thelian noted that in all relevant years, this code only applies to the use of gloves during end stage renal disease or dialysis. None of the seven patients in this proceeding were being treated by the Respondent for end stage renal disease, nor was she providing dialysis treatment. (D&O, p.36 of 66).

    Since I never billed this code on Patients B and G, not seven, but five is the correct count of patients. That this code applies only to the use of gloves in end stage renal failure or dialysis is only correct to the extent that such billings were for use of gloves on Medicare patients, which I never billed on Patient G. (Not because I knew this detail – I just knew that Medicare did not pay doctors, but only facilities for A-codes) But commercial carriers are not bound to this exception. If they had been, UHC would have never paid for gloves. HCPCS is a 3-level coding system (Level I, published by the AMA, Level II, published by HCFA and Level III, which does not matter to us here). Because Level II is published by HCFA and not by the AMA, it has HCFA’s fingerprint on it; it’s written with an eye for Medicare coverage, not for commercial carrier coverage. Yet, commercial carriers have adopted this book with A and J codes, and they have since been reimbursing them or not, according to their own policies. The AMA lacks proprietary rights on supply codes, so it could not publish such book. Only HCFA does and Medicare coverage does not apply to commercial coverage. (From St. Anthony’s HCPCS Level II Code Book, 1999 Edition, Introduction, p. 1).

    HCFA: The Health Care Finance Administration, the part of the US Department of Health and Human Services (HHS) that is responsible for administering Medicare and Medicaid.

    http://www.medterms.com/script/main/art.asp?articlekey=3658

    HCFA is not expected to write rules that apply to private/commercial carriers, so Ms. Thelian’s testimony that gloves were only covered for dialysis patients was (partially) correct only when applied to all insurers in general, which included Medicare, but incorrect in the case of private carriers: UHC.

    From September 23, 2008 Intrahearing, when Mrs. Bloch agreed to amend the charges: Ms. Bloch: I am willing to amend the charges to say prior to 2002 she charged per glove and subsequent to 2002, she billed per box.

    When Ms. Bloch amended the glove charges, she in fact not only kept the same description of full boxes of 100 gloves in the spreadsheets for the Committee to see, but she amended them to a new set of false charges, because the amendment reads that on C-G Patients, from 1994 (or 1995 etc.) to 2001, I billed for individual gloves and that is false, because I did not start billing for gloves until year 2000; then it says that from 2002 to 2005 or 2007 etc. I billed for full boxes of gloves. The records show that I stopped billing for gloves after 2002.

    On Patient A I billed for A codes from October-November 2001.

    On Patient B I never billed for A codes

    On Patients C, D and E I billed for gloves between 2000-2002.

    On Patient F, I billed for gloves between 2000-2001

    On Patient G, I never billed for A code supplies.

    I billed for gloves from 2000 to 2002, not from 1994 to 2007, as the amended charges read.

    For Patient C, I billed for gloves from 2000-2002, not from 1995-2005. That’s 2 years, not 10 years, as shown by the Factual Allegations below: Billed Patient C for gloves from 1995-2001 and from 2002-2005.

    For Patient D gloves were billed from 2000-2002, 2 years not 7 years, as shown by the Factual Allegations: Billed Patient D for gloves from 1996-2001 and from 2002-2004.

    For Patient E gloves were billed from 2000-2002, 2 years, not 10 years, but the Factual Allegations read that I billed for Patient E gloves from 1998-2001 and from 2002-2007. The spreadsheets show first DOS: 10/5/1999, not 1998, so billing for gloves could not have predated my seeing the patient.

    For Patient F, gloves were billed between 2000-2001, 1 year, not 4 years but the Factual Allegations read that I billed Patient F for gloves from 1998-2001 and from 2002-2003.

    For Patient G, gloves or supplies were never billed, but the charges read that I billed
    for gloves from 1994-2001 and from 2002-2004, 9 years. Billed for Betadine swabs and needles are also false charges.

    The DOH charged me with Fraudulent Practice for billing for full boxes of 100 needles , A4215, a code description that never existed, but which the prosecutor fraudulently entered into the spreadsheets and projected up on the screen for the Committee to see.
    Not only did that false evidence disappear from the spreadsheets, but when the prosecutor changed the first set of false charges full boxes of needles to individual needles, she effectively changed the first set of false charges (boxes) to the second set of false charges (individual needles), because A4215, the code for needles is reimbursable: there is nothing wrong with billing for supplies used. Dr. Anghel: By the way, the amended charges with individual needles and sterile gloves, I am not sure why those charges remain, because I don’t understand what – - those supplies were used, so I don’t understand the fraud part of it. [T. 2521-2522]

    The Committee signed off on all the DOH’s charges, never checking or doubting their accuracy. By restricting my testimony, the Committee prevented me from defending allegations that were never addressed in the restrictive questionnaire, and sustained them in its Det&Order.

    On inclusive in the procedure – there is nothing fraudulent about billing for supplies used. Ms. Bloch: When you see that code and it is processed, is it processed based upon a physician’s claim according to this code that 100 gloves were used; correct?

    Mr. Stephano: It is processed on the belief that a box of gloves was either DISPENSED or USED during that appointment. T[1031-1033] – processing of what is DISPENSED, and not necessarily dispensed and used.

    Same with betadine sticks/box. When the option to pay or bill for the exact amount used does not exist, and only what’s dispensed is payable or billable, fraud cannot be inferred. [T. 3293-3300]

    The charges that I billed for supplies that I did not use (gloves, betadine) are false, based on Mr. Stephano’s testimony that UHC reimbursed what was dispensed.

    Judge: …if there is no code for less than a box and you don’t use a box, what do you bill for? Ms. Thelian: Okay. You don’t, because it would be considered inclusive to the cost of the procedure. Or what you would do is bill either a surgical tray, when that code was in existence, or you would bill for the medical supplies or you would simply—IT DEPENDS ON THE INSURANCE COMPANY —or you would bill those specific codes that do have codes that refer to that particular procedure. Judge: And same question with the gloves [T. 5061-63]

    Billing for procedures that third-party payers consider “inclusive” does not hold a doctor to a “No bill rule”, nor is that fraudulent in any way. What is inclusive for one insurance is reimbursable for another. Insurers do not process the same bills the same way. This is common knowledge, I don’t need to reference it, but both Mr. Stephano and Mrs. Thelian testified about this issue.

    Charges of fraudulent practice based on fees: OPMC Web site reads: billing fees are non-jurisdictional

    Mrs. Bloch: And so, on this visit, you—and you charge, here you charged $700 for an ultrasound? Dr. Anghel: Shall I confirm that? Okay, yes. Ms. Bloch: And that is, you believe, a reasonable and customary charge for that? Dr. Anghel: I do. For the year ’03 and possibly for the present time, yes. Ms. Bloch: Now, if we go to the next one on—Dr. Anghel: Of course, if we go by the distorted formula that Ingenix has used and so did United Healthcare, you get a distorted image of what should be charged. [T. 4480-4481]

    Ms. Bloch: So…what would be the fee for surgery or a procedure…? [T. 3288]

    Ms. Bloch: Can you just explain to the committee, either in 2001 or over time, how you developed what fees you charge for what services or supplies or medications. [T. 3366-3367]…the same fees that OPMC Web site reads are non-jurisdictional.

    On how I arrived at fees, the cost of doing business, not out of thin air, but….$5,000 per course of fluoroscopically-guided procedures on cadavers, for a while I went almost every month…the malpractice, my training, everything. … for five years I was getting paid 20,000, 30,000 a year…[T. 3366—3367; 3371-3375]…Ms. Bloch: When were you trained on fluoroscopy? Dr. Anghel: All these cadaver courses were done under fluoroscopy. And so, before the cadaver course would start, we would have theoretical lectures on fluoroscopy, never mind that I purchased a number of videos that I watched and books. …since 1995 [T. 3408]; [T. 3254; 2560]
    Here is how Dr. Petranker answered the same question on how he trained in fluoroscopy:
    Mr. Bateman: Where did you receive your training and how did you receive your training in the use of fluoroscopy? Dr. Petranker: First, it was by reading, then in my residency program, and then in my own hospital, we have a pathway where you present to the radiology department and they grant privileges, based on competency skills. [T. 1621]

    So, 1) reading about it; 2) residency from 1987-1989 (fluoroscopy for pain management in residency in the 80s? Nobody got trained in fluoroscopy in residency in the ’80s); 3) a pathway in his own hospital; that would be Woodhull Hospital (2002-present), 13 years after his residency, where you present and they grant privileges based on … competency skills that still beg the question: when and how did he acquire them? Any doctor who uses fluoroscopy in his practice would recognize this to be a phony claim to fluoroscopy training. Earlier, Dr. Petranker had testified: “we were gaining momentum on the use of fluoroscopy in my community of pain management experts” in the ’90s [T. 1226-1227], but his CV speaks nothing about any involvement in such a community, nor did he mention that momentum in his answer to how he trained in the use of fluoroscopy.

    On Patient A-related Charges, after Patient’s A testimony was heard, and upon my counsel’s subpoena of Patient A’s drug records from a CVS pharmacy, the Department immediately withdrew Patient A’s testimony. The DOH said it would withdraw charges which it never did. Factual Allegations A7c, A11 remained [IHT. 50-51] and went to charges of Fraudulent Practice, Negligence, Gross Negligence and Failure to Maintain Records.

    From July, 24th Intrahearing, on Patient A-related charges:

    Judge: Why aren’t you calling Dr. Deiparini? Ms. Bloch: because I am withdrawing these charges. She was going to testify that she never had any communication …she never spoke…she that was going to go those charges, of, you know, not providing consult, and I am withdrawing those charges so, therefore, I don’t need to call her. She was not going to testify beyond that scope. [IHT. 50-51]

    Well, the charges that I did not provide a consult were never withdrawn; they stayed: (D&O, p. 19 #59 and #60, p. 20 #63, #65).

    The Judge instructed the Committee to delete Patient A’s testimony from its memory as if once heard that were even possible, and denied our request to dismiss all related charges.

    The CVS drug records contained: three pages of controlled substances: 90 scripts, between 4/7/2000 through 10/20/2004, most of them prescribed by Dr. Deiparini, the witness the DOH decided to cancel. The last script was on 8/23/2006.

    Judge: … CVS has submitted some response, which I don’t know anything about yet. Ms Bloch: Which I have received. Mr. Bateman: Yes…a response… I forwarded it to the Department. [IHT. 16-17]

    Mrs. Bloch misled us when she stated in the July 24, 2008 Intrahearing:…. it was late in the day, that there is information–I obtained information that I have not, in any way substantiated, but it is information that may, if known by counsel, could have been used as potential cross-examination information going to her overall credibility, not credibility with respect to the particular issues. I learned yesterday, after I spoke to Mr. Bateman, concerning Exhibit 4. And what I learned was that, in 2004, which is three years subsequent to the events, the information is that she did become habituated to certain controlled substances. And that she engaged in some activity in an attempt to obtain that medication. I also learned that, however it was a limited period of time, and that my information is that she obtained treatment. And that since 2004 there has been absolutely no issue so that at the time of her testimony would not be a basis for any concern. [IHT. 27]……I think that right now…I cannot….we received information, uncorroborated information, that there was some substance reliance by her in around 2004, that she engaged in some activity to obtain those drugs, and that she then received treatment.[IHT. 48-49]

    Mrs. Bloch deceived us when she stated that 1) Patient A became habituated in 2004, which is three years after the events, when in fact the CVS records that she received and inspected showed drug activity for 4.5 years, between 2000-2004, during the year 2001 that I had seen her, not three years after the events. She also deceived us when she said that 2) she would cancel the testimony of Dr. Deiparini, the main prescriber of Patient A’s drugs, because…the DOH was withdrawing those charges on consult anyway, when in fact it never did.

    Those subpoenaed records span over four and a half years of drug use/abuse, not exactly started in 2004…. ended in 2004 … a limited period of time, in 2004 , which is three years subsequent to the events, so that at the time of her testimony would not be a basis for any concern….[IHT. 27]. As I explained and said to Mr. Bateman, it really is events three years after her encounter with Dr. Anghel. [IHT. 34] The CVS drug records of Patient A clearly prove that to be false.

    Mrs. Bloch also misstated the lack of corroboration: we received information, uncorroborated information… But the CVS records were corroborating very well with my medical records, at least with respect to the drug use, if not with the engaging in some activity … From my testimony: Dr. Anghel: Because she had also told me that she was on Percocet and Valium and Robaxin. And all these three drugs are addictive. [T. 2409-2411]

    Just a few of the many false charges

    Knowingly and willfully falsely billed for laboratory work on Patients A through G when in fact said laboratory work was performed on equipment in another physician’s office (Factual Allegation H4)… These are false charges: 1) Patients’ B and G tests were always sent to an outside lab; 2) Patients’ A and C-F labs were performed in office, never in another physician’s office; 3) they were never falsely billed. [T. 3384]

    Failed to obtain and/or note an adequate and complete medical history and/or history of the current complaint from Patient G (and from every single patient). This is a false charge because it makes a violation of what is not a requirement. Every single progress note has a history of the current complaint. As to the adequate and complete medical history from day one, when patient was first seen, this is not what the Education Law 6530(32) requires. 6530(32) requires that evaluation and treatment be documented in records that are to be maintained for 6 years from the last visit. All my medical records fully satisfied the laws and medical ethics Opinions in the Code of Medical Ethics. This allegation went to charges of negligence and gross negligence and failure to maintain records (Det&Order, p. 13, 14, 15, 32).

    Failed to perform and/or note a complete and appropriate physical exam on every single patient. This is a false charge not because a pertinent physical exam is present on each and every date of service (it is!), but because it charges that a complete and appropriate physical exam be performed, a thing that is neither specified nor required by the law. What the law does not require cannot be an offense, and much less a chargeable one. This allegation went to charges of negligence (in the absence of patient harm!), gross negligence (in the absence of patient harm!) and failure to maintain records. Nowhere can failure to perform and/or note a complete and appropriate physical exam be found in the definition of failure to maintain records. This is an opinion, not what the law requires. (Det&Order p. 13, 14, 15)

    Failed to reconcile and/or note a medication history for Patient G (and all patients) and the medication prescribed. This is a false charge, (a Factual Allegation on every single patient) not because the medication is pertinently listed in the medical record, but because the Education Law does not define violation of 6530(32) as inclusive of a reconciliation list. The notion of a reconciliation list was introduced in 2005 by the Institute of Medicine and was adopted around 2006 by the Joint Commission as a recommendation and requirement for hospitals, which clearly leaves out doctors’ offices. (Joint Commission oversees hospitals, not doctors’ offices). Also, Patient A, B, C, D, F, and G were last seen in 2004. This allegation was listed as a contributor to charges of negligence (in the absence of patient harm!), gross negligence and failure to maintain records. (Det&Order, p. 16)

    http://www.jointcommission.org/sentinelevents/sentineleventalert/sea_35.htm

    Knowingly and willfully drew blood from Patient G for analysis, (Allegations #4 and Det&Order, p. 10 #15) as set in Paragraph H below. . All 4 a. b. and c. charges are false, because as set in Paragraph H, they pertain to lab work done in the office, when blood work in the office was never done for Patient G. His labs were always sent out. In addition, knowingly and willfully drawing blood is not an offense, but bringing gratuitous and false charges is and it also is reprehensible prosecutorial conduct. The prosecutor knew that lab strips and tests did not apply to patient G, yet knowingly and willfully went ahead with charges on labs and strips which she knew were false. Ms. Bloch: They relate to patient C through, I believe G is not included in this. [PHT. 57] Ms. Bloch: What about patient G? Mr. Stephano: Patient G was Medicare primary. [T. 1035] Paragraph 4 a. b. and c. went to charges of fraudulent practice, negligence and gross negligence. (The Hearing Committee concludes that Respondent engaged in systematic fraud in billing Patient A through F insurers and Medicare for Patient G for numerous medical services that she did not provide to those patients and/or medical supplies that she did not use on those patients. (Det&Order, p. 40) – The last sentence contains another false charge: Patient B was seen one time only, and no numerous medical services or medical supplies were ever charged. As to the false charges of billing for medical services that she did not provide, Dr. Petranker’s testimony proves the contrary: Mr. Bateman: …the strips…the blood tests. Dr. Petranker: Yes. I reviewed them and then crosswalked it back into the medical record. Mr. Bateman: And they matched up; is that right? Dr. Petranker: The ones I reviewed did. Mr. Bateman: …did you do that for all the patients that you examined charts on and have testified or will testify? Dr. Petranker: I did it across all the cases and similarly the ones that I checked were, indeed, documented in the medical record. Mr. Bateman: Okay. Indicating the lab tests were, in fact, done? Dr. Petranker: That’s correct. [T. 1532]

    On Patient E: Dr. Petranker: The labs were done, urine analyses were done, EKGs were done, abdominal sonography, as an example, all these tests were done. [T. 1599]

    Knowingly and falsely billed the insurance company for performing arterial punctures to obtain blood samples from Patient G (and other patients). These are false charges. From 12/18/2000 to 12/2007, where the last visit was 11/9/2004, a total of 10 venous punctures and 2 arterial punctures were done over a 4-year time period. Furthermore, the Committee decided that my treatment/care, everything she did was medically indicated and justified. This contrasts sharply with above returning charge. This allegation was listed as a contributor to charges of fraudulent practice, negligence (in the absence of patient harm, and after the Committee found that I met the standard of care) and gross negligence.

    Patient G – all 6 a. b. c. d. are false charges.

    Knowingly and willfully falsely billed the insurance company for: a. full boxes of betadine swabs; b. needles used for injection procedures; c. From 1994 to 2001 individual pairs of sterile gloves; d. from 2002 to 2004 full boxes of sterile gloves. These supplies were never billed for this patient. Paragraph 6 a. b. c. d. went to charges of fraudulent practice, negligence and gross negligence. (Respondent engaged in systematic fraud for billing Medicare for Patient G … for medical supplies that she did not use – Det&Order, p. 40)

    Failed to refer and/or note a referral for Patient G to specialist physicians for consultation regarding the diagnosis Respondent made and/or suspected as set forth above (Factual Allegation). The medical records … of Patient G (and all patients) are devoid of coordination with other providers. (Det&Order, p. 15) To the contrary, the medical record includes consultations, references and notes of communication from, to and with the cardiologist [T. 4742; 4756-4757], urologist [T. 4752-4755] and ophtalmologist [T. 4758-4760], clearly indicating other consultants’ involvement in Patient G’s care….Respondent billed for services that she did not provide. (Det&Order, p. 15) is another false charge, a conclusion drawn from the previous false charges. No coordination is a false charge, not only because it was done and documented, as noted above, but because coordination does not even appear in the CPT description of office visits. But this is how the DOH made its case of fraud on all patients: based on Dr. Petranker’s testimony that my records lacked referrals and coordination of care, therefore I billed for services that I did not provide, therefore I committed fraud….and then ….hundreds of similarly false claims. (Det&Order, p. 36), … the excessive tests and treatments ordered by Respondent, done for her own enrichment, standing alone, warrant revocation and imposition of a fine (Det&Order, p. 42)

    This charge contradicts Committee’s own Decision that everything she did was indicated and justified. [T. 4644-4646] After the Committee issued its interim Decision, the Department brought back charges of breach of standard of care in its Proposed Findings and the Committee sustained practically all the charges that it had dismissed in its interim and final decision. For example, standard of care which the Committee decided had been met (Det. & Order, p. 5), was brought back in negligence and gross negligence under Failure to Maintain Medical Records and Excessive Treatment and Tests.

    Knowingly and willfully used false diagnosis codes in billing Patient G’s insurance company for her treatment, procedures and/or laboratory studies. This is a false charge in its entirety. No false diagnosis codes were used in billing for either the treatment or procedures of this or any patient and no laboratory studies were even done on Patient G, never mind billed, because they were all sent out. This allegation was listed as a contributor to charges of fraudulent practice, negligence and gross negligence.

    Knowingly and willfully falsely billed Patient G’s insurance carrier for high level comprehensive office visits when in fact said services were not rendered. This is a false charge. From 12/18/2000 to 12/2007, where 11/2004 was the last visit, a high level visit 99215 was billed one time and one time only. The vast majority of office visits for Patient G were 99213, a code for low level visits and occasionally 99214, a code for intermediate office visits, not high level comprehensive office visits, as falsely charged. This allegation was listed as a contributor to charges of negligence and gross negligence.

    Failed to maintain a record of treatment for Patient G from on or about October 26, 1994
    through on or about December 18, 2000 – and on all patients. This is a false charge. The records are in evidence. They were retained uninterruptedly from December 18, 2000 to the time they were subpoenaed, around the beginning of December 2007, in compliance with the Education Law 6530(32), which requires that medical records be retained for 6 years (not eternally) from the last visit , which was 11/9/04. Paragraph 12 was listed as a contributor to charges of fraudulent practice (!), negligence (!) , gross negligence (!) and failure to maintain records.

    Knowingly and willfully created a medical record for Patient G which did not accurately reflect the care and treatment rendered to the patient (same charge on all patients). In obvious conflict with this false charge (and an inconsistency), the Committee decided that, based on the same medical records cited above, and on all of the evidence presented, everything she did was medically indicated and justified [T. 4644-4646]. This allegation was listed as a contributor to charges of negligence, gross negligence and failure to maintain records.

    Failed to maintain a medical record for Patient G in accordance with accepted standards and in a manner which accurately reflects her care and treatment of the patient (same charge on all patients). This is a false charge, as the record fully complies with the Education Law 6530 (32), with the Statute of limitations on medical malpractice and with AMA’s Code of Medical Ethics on standards for retention of medical records, Opinion 7.05. This allegation was listed as a contributor to charges of negligence, gross negligence and failure to maintain records.

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