American Health Legal Foundation and AAPS: Update 2005

Prosecutions:

Prosecutions are the front line in our battle against government power. Private medicine ends where fear of injustice begins.

We are the only group that stands up to the prosecutors. Thanks to your support, we have won these recent victories:

1. United States v. Dr. Mitrione: Convicted using perjured testimony, rampant in courts, Dr. Bob Mitrione was sentenced to two years in jail for a mere $75.25 in alleged billing fraud. The judge agreed that the key government witness's testimony was "false to a dramatic degree," yet refused to grant a new trial. Though the Supreme Court agrees to review only a tiny percentage of cases, our petition succeeded. On Jan 24, 2005, certiorari was granted, the judgment was vacated, and the case was remanded to the US Court of Appeals for the 7th Circuit.

2. United States v. Dr. Hassman: Victimized by a lying undercover agent, Dr. Jeri Hassman faced many years in jail if convicted for drug offenses based on her good-faith prescribing for severe pain. We spoke out publicly about the unjust prosecution and advised her to accept a plea bargain to preserve her license and avoid prison. As a result, she practices today.

3. United States v. Dr. Sell: Imprisoned for more than 7 years without a trial, Dr. Tom Sell has been victimized by false claims of mental incompetence. The government sought to forcibly inject this nonviolent defendant with mind-altering drugs, which we helped stop. We succeeded in obtaining a new psychiatric exam for him, administered by our past President Dr. Mark Schiller, and we procured his right to a trial. Dr. Sell believes that the charges of Medicaid fraud were brought in retaliation for his outspokenness against the government.

4. Limbaugh v. Florida: Targeted because of his politics, Rush Limbaugh lost his privacy in his medical records when the government seized them without notice. We were the only physicians' group to defend him, and our brief triggered review by the Florida Supreme Court. The delay has given Rush an additional year, and has helped all patients protect their medical records. In January we filed another amicus brief in favor of Rush, despite opposition by the prosecutor.

5. Yurko v. Florida: Imprisoned for life without parole, Alan Yurko was victimized by false medical claims. The autopsy report that was the basis of his conviction contained egregious errors. We helped win an extraordinary order for a new trial and his release from jail.

6. United States v. _______: Like the Unknown Soldier, many physicians we have helped remain anonymous. One example: only we advised a physician that the government was bluffing when it threatened to indict him to coerce payment of an enormous fine. Our advice enabled him to obtain a better deal. 7. Physicians we helped have made enormous contributions to medicine. Surgeon Jeff Rutgard has used the freedom we helped procure to save the vision of thousands of the world's poorest, including those in leprosy colonies. In another case, after we achieved a remarkable victory in undoing a plea bargain that had unexpected consequences, the physician has become an invaluable contributor to his community. We have further helped protect a physician against unfair asset forfeiture, and helped keep physicians out of jail when unjustly convicted.

Medical Boards:

Medical boards are agents of socialism. Physicians with addictions are allowed to practice, but physicians who pursue free-market medicine may lose their license. Medical board attorneys increasingly assert the power to revoke licenses over insurance billing disputes. In addition, medical boards now often revoke licenses simply to satisfy the media demand for a scapegoat or a hot story.

AAPS is the only group fighting medical boards, and we testified for legislative reform in New York and Texas. Our recent individual cases include the following:

1. Near the end of 2004, our amicus brief in favor of Dr. Gil Mileikowsky persuaded a California court to enjoin the state medical board against taking certain action against him. This was an extraordinary victory and sets a tremendous precedent in favor of blocking injustices by medical boards.

2. Dr. Pat Herrera became a part-time tennis coach in Alabama after the state medical board made him the scapegoat for a patient death that he did not cause. This was one of many OxyContin witch-hunts whereby physicians are victimized for drug abuse by others. Our amicus brief in his favor obtained a remarkable order by an Alabama court for the medical board to reinstate his license, without even allowing the board to hold further hearings.

3. Dr. Dan Alexander was ambushed by the front page of his small-town newspaper over scandalous allegations later proven to be wrong in court, with all legal charges dismissed. But the New York medical board revoked his license anyway, reacting to the tabloid press rather than the truth. We persuaded Pennsylvania to protect his license and reject the dreaded rule of reciprocity, and an AAPS member hired him to practice just across the border from New York.

4. Dr. Anna Lee has been subjected to an unjust action board action because insurers do not want to pay her bills. In New Jersey, as in many states, an insurer can avoid its accounts payable by having a doctor delicensed. Dr. Lee's patients were thrilled with her drug-free treatments for pain, but the attorney for the insurance companies has a connection with the medical board. We are working to end this unjust manipulation.

5. Medical Board v. ______. In New York, Wisconsin, Texas, Michigan, Illinois, Missouri, Nevada and Arizona, we have helped additional physicians who shall remain unnamed. In one case, we sent a letter of protest to each individual board member. Furious, the Attorney General wrote us a letter demanding that we never do that again. But the board then cleared the physician.

6. The press and now President Bush have proposed federal standards for state medical boards. AAPS opposes such a federal takeover of medicine. It is far better to retain some accountability on a local level.

Hospitals or Sham Peer Review:

If medical boards are agents of socialism, then hospitals are their comrades. Woe befalls any physician who courageously speaks out for quality care or competes against his hospital.

1. A hospital in the Midwest hit Dr. "John Doe" with a hurtful entry in the National Practitioner Data Bank after he spoke out against mistreatment of patients by a powerful member of the hospital staff. Seeking redress, Dr. John Doe sued to force the Data Bank to comply with the due diligence requirements of the Privacy Act before posting inaccurate information. Nothing happened in the case until we sent a strong letter to the Judge. Subsequently he ruled that the Privacy Act does apply to the Data Bank, setting a great precedent.

2. Dr. David Springer lost his future work at a Delaware state psychiatric hospital because of speaking out against poor patient care there. Visiting him and speaking to his medical staff, we provided advice as needed. He sued the hospital, citing an unconstitutional retaliation against his exercise of free speech. A jury held in his favor, but the hospital is appealing it and we will file a brief to defend this important victory.

3. We have helped many other physicians against "sham peer review." In particular, we have filed stinging briefs deploring misuse of the summary suspension procedure against physicians who speak out for patient care or advocate free enterprise.

Free Enterprise:

The engine of free enterprise is the right to enter into contracts. For 7 years, we have helped physicians opt out of Medicare so that they can serve patients on a private contractual basis. We have also helped with forms for "opt out" procedures to protect against the Stark law.

The best approach to tort reform is educating patients and enlisting them against the lawsuit lottery. AAPS has also worked to defeat bad judges, and helped win startling victories in Illinois and West Virginia last November in ousting powerful liberal incumbent state judges.

In 2004, we filed an amicus brief on behalf of free enterprise and Dr. John Gilbert in Kentucky. Hospitals demanded that he obtain a certificate of need to compete with them in connection with MRI units. Competition is something to be encouraged or at least allowed, not suppressed.

Regulation:

The regulatory state is no friend of free enterprise. HIPAA (Sen. Kennedy's Health Insurance Portability and Accountability Act of 1996) spawned thousands of pages of regulations that strangle medicine. We sued to overturn the regulations, and our lawsuit established the "country doctor" exemption that enables physicians to avoid HIPAA altogether. In Texas, with the help of an activist member, AAPS was able to change its state law to protect the "country doctors" there.

The American Medical Association monopoly over the CPT (Current Procedural Terminology) is part of the problem, and we successfully established precedent in the Veeck litigation that no one can own a legal requirement like the CPT. The CPT is a dinosaur, with extinction in its future. Cash practices often ignore the codes altogether now.

We recently sued to overturn the onerous regulation requiring physicians to provide translators. The publicity has already caused the government to back off on enforcement.

High-Profile General Cases:

Medical practice does not survive in a vacuum. Occasionally, AAPS joins or writes a brief defending a broader principle essential to freedom. We signed onto the key brief in favor of the freedom of association of the Boy Scouts, and prevailed before the Supreme Court. We were the lead party in a brief opposing partial-birth abortion, and Supreme Court justices cited us frequently in their opinion. We filed a brief supporting release of the photos of the deceased Vincent Foster under the Freedom of Information Act, as we believe government must be subject to public scrutiny. We have also defended the internet, an important resource to our efforts, against encroachment by government as through copyright.

These briefs are low-cost efforts, often filed in conjunction with other groups that may work with us on medical issues.

We serve our members and recognize that all political issues are interrelated, and will respond to any requests you have for amicus briefs in the future.

It is only through the generosity of our members that we can fight for freedom in medicine. God bless your for your help!