Many years ago, I treated a patient for neck and arm pain. I removed his cervical disc. The procedure was uneventful, and by all measures, he should have returned back to work quickly. (Many years later, a surgeon removed a cervical disc fragment from me and I went back to work part-time the following day). The patient, a postal worker, did not go back to work quickly. In fact he never went back to work at all. He said he was too weak to even lift a cup of coffee to his lips. He had zero objective neurologic deficits – and I was skeptical he was disabled.
Unbeknownst to me, this postal worker bragged to a fellow employee how he was scamming the system and would soon be collecting permanent disability paychecks — all courtesy of Uncle Sam. Did this new confidante succumb to envy? Hell no. He was a bigger person than that. He called his boss and a sting operation was birthed.
The FBI (or some similar federal organization) got involved. They posed as marketing experts and called the postal worker – explaining he had been randomly selected to receive a Nordic Track (cross country skiing machine – remember those?). All he needed to do was give his honest feedback about the machine. The “marketing experts” showed up in a truck and looked like they were struggling to unload the Track. My patient volunteered to help, carrying the Nordic device up his stairs. Next, my patient was videoed cranking up the resistance to the highest possible level; and cross country skiing like an Olympian. His feedback – he loved it. Thought it gave a great workout.
Remember, this was the guy who struggled with a near-weightless coffee cup.
I saw the video. A sting in action. A scam being terminated. And Mr. Postal Worker was sent to prison for attempting to defraud the federal government of cash.
I remember how amused I was to see that video – and felt justice had been served.
The following real-world vignette reminded me how arbitrary and capricious the legal world can be.
I learned of an orthopaedic surgeon who took care of a worker’s compensation patient. Ultimately, the orthopod restricted the patient’s activities to no lifting over five pounds. At some point down the road, the orthopod was asked by her carrier to view surveillance video footage. This request was made via subpoena and he was asked to testify under oath. In the video, the patient was engaged in activities that, on its face, exceeded the restrictions imposed. And the orthopod understood the video surveillance to be part of a larger fraud investigation related to the patient’s workman’s comp claim. The doctor agreed that the patient’s activity exceeded the written restrictions – as any doctor would have concluded.
His testimony became the basis for the Board of Medicine investigating his license. The Board claimed that he violated the patient’s presumed confidentiality and acted as an expert as opposed to the treating doctor. In doing so, he was told he ceased advocating for the patient and, instead, was advocating for the carrier. The Board claimed he acted unethically.
The orthopod believes that had he just clarified his words in the written record, the Medical Board would never have propelled this case. In other words, had he just stated that “my record states the following X, Y, Z. Whether or not I view the video, if you are asking me if the hypothetical activity exceeds my written restrictions, to clarify, the answer is yes.” – there would have been no ethical problem. Apparently, it’s his conclusion related to his watching the video that put him on ethical notice.
It’s difficult for me to believe that clarification of the orthopod’s written record versus stating the obvious in the context of a video could be the difference between ethical and unethical behavior; one that would put his license in jeopardy. I’m certain that this conclusion would surprise many doctors who believe when they are compelled by the state to testify truthfully vis a vis, they must do so; and indeed, do so. It surprised me. The outcome of this Board investigation is still pending.
Nothing surprises me, anymore, either about lawyers or the government. Death is looking more and more inviting as I get older!
The counsel advising the orthopedic surgeon was most certainly under legal obligation to guide, educate and coach his client in how to respond to such a question. This is a game. This is not fair or ethical behavior by the lawyer or the medical board. I personally would sue both the medical board and his counsel to the fullest extent of the law.
Just learned a new fact. The Board Medicine hired a physician “expert” to review the record to determine whether the orthopod acted ethically. The “expert” concluded he did not and now the Board is presenting the orthopod with a stipulated order suspending his license (with reinstatement provided his record remains unblemished) and forcing him to take a remedial ethics course.
Guess what? The “expert’ is a director of an organization that benefits directly from having doctors like this orthopod funnel through there. The organization does professionalism and ethics training. In other words, if the doctor signs the stipulated consent order, he would have to attend an ethics / professionalism course at an institute just like the one the expert oversees. And, on the orthopod’s nickel.
Smells like a conflict of interest.
This sounds typical for the State Medical Boards. Not sure which state is involved. All I know is that a doc can do almost any horrific, despicable act in the name of treating a patient and nothing happens either via peer review or with the state board. However, a doc who tells a bad joke, any HIPPA type issues for looking at a chart, not paying income taxes or any number of much more benign issues then watch out. You could be immediately kicked off the hospital staff and have your license suspended. The state boards in many states now are impotent in even the most egregious cases, yet will penalize someone for not keeping one patient record up to date. I just don’t understand how they come to their idiotic conclusions for minor infractions and yet ignore the truly horrible issues.
Franz Kafka would be proud. No matter how you testify at an adjudication process regarding a disability or other Government claim, you are on tenuous ground. My Dad always used to say: “You may have to wait your entire life for ‘fair’ and it may still never arrive.”
Physicians who treat patients with a disability always have the shadow of their testimony following them, like the proverbial Dybbuk (a Jewish mythological entity or malevolent spirit that was supposed to be the misplaced soul of a dead person), this tends to just follow some people without their understanding or deservedness.
In Lil’ Abner, a cartoon by Al Capp, Joe Btfsplk is a well meaning clod who is always covered by a rain cloud. The damndest things happen to him, and he knows not why.
This orthopedic surgeon who allegedly played fast and furious with convoluted and obtuse ethics is now a victim of a state board with a consultant who himself is in flagrante delicto by acting as a paid attendant of a board that forces clients to him.
This is utterly the human condition. Can you avoid it? Sometimes no matter how you handle it, you may still have that rain cloud follow you. We supposedly have attorneys who are paid to keep us out of this, but once the Dybbuk lands on you, it is really hard to shake it off.
Shake it off you must. I’d recommend that the orthopod pay for the ethics course, and after he is re-instated (by playing this charlatan’s game precisely and well), just try to stay away.
Medical Boards have vastly too much power. All we can do is to try to change the laws that give them power to hire charlatans who work against us for their fees. I’ve said it before and I’ll say it again: “As a group, medical providers stay in their own separate houses, fighting against each other, when the TRUE target is outside.” In order to do that fight, it means all medical providers get together and fight together. We would do that in Congress, like every other massed interest group does.
The only way you can avoid Joe Btfsplk is by collective action. Everybody else does it. We don’t.
Michael M. Rosenblatt, DPM
We are all becoming food for a corrupt political elite mostly commanded by lawyers. If physicians hadn’t lost their balls/ovaries years ago then maybe we wouldn’t be just lambs taken to the slaughter. These engagements with Boards, etc. are much like life was under communism. The enemy defeated has now roosted quite comfortably at home.
In the 13 years that I have been a consultant to physicians and surgeons, I have NEVER seen a Medical Board “get it right”.
My advice to any surgeon or physician “invited” to present to a Board is to consult a competent health care lawyer first and to go over the details. Even with health care lawyers, some are much better than others. I suggest that the lawyer go with the doc to the Board hearing. It does not matter if the meeting is “informal”.
Certain Boards are less bad than others.
Richard Willner
The Center For Peer Review Justice
Worker’s Comp. is a dirty business. I tried it, many years ago, as an expert for the defense, and it was a disaster. After determining zero permanent disability for a patient exposed to dust 5-years-prior during remodeling at a local Costco, the patient subsequently stormed into my waiting room screaming: “Dr. Joseph is a liar”.
I feel bad for the orthopod, since trying to fight the “Board” for his license and reputation may be an exercise in futility. If the NJBME gets their claws on you, it’s hard to prevail, or even practice medicine.
My thoughts and prayers are with you, doc.
Eric
The first rule for dealing with a state medical board is to never meet with anyone or attend any type of hearing, formal or otherwise, without an attorney who specializes in defending physicians in front of medical boards. Beware of an investigator who shows up in your office with “just a few quick questions about a patient complaint.”
Second, take an aggressive stance. While formal due process may not be available at certain medical board proceedings, there still should be a demand to cross-examine the expert (in the above orthopedist’s case), demonstrate a potential conflict of interest and present an opposing expert. Courts (see below) are likely to perceive denials of such opportunities as deprivations of due process that are constitutionally protected.
Last, while it’s a long and expensive way to go, an adverse medical board decision should be challenged in the local court with jurisdiction over the board. Courts may grant an immediate stay of any final medical board decision pending its resolution in front of the court. That is particularly true where the physician’s alleged conduct does not present an immediate danger to the care of her patients as seems to be the situation in the case above.