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Medical Justice

Making healthcare safe for doctors


Healthcare Reform

David versus Goliath. One Doctor’s Quest for Justice.

03/11/16 4:43 PM

Physicians regularly renew their medical licenses. A typical question on the application reads:

Since you last renewed have you become aware of any medical condition that impairs or limits, or could possibly impair or limit, your ability to practice medicine safely? (If you are an anonymous participant in the Physician Health Program and in compliance with your contract, you do not need to list any medical conditions related to that contract).

Medical Condition includes physiologic, psychiatric, or psychologic conditions or disorders including, but not limited to, orthopedic, ophthalmologic, or neuromuscular problems, speech or hearing impairment, or infectious disease.

 

On the surface, this question seems innocent – and reasonable.

 

If a doctor is struggling with psychiatric or medical problems, it could impact patient care. Right?

 

But, I’ve heard from doctors who disclosed they were treated for post-partum depression; or situational depression; or self-limited anxiety. Such doctors disclosed to their Board and learned the burden was upon them to prove they were safe to practice medicine. And that burden can prove quite expensive.

 

And some doctors are reported to the Board suggesting the physician may be impaired.

 

One doctor on the receiving end of such a report has had enough.

 

He just sued the North Carolina Board of Medicine and the Physician Health Program. Such state-based entities are typically afforded qualified immunity from any litigation. A plaintiff would likely have to demonstrate malice to prevail. A tall order, indeed.

 

His story, as published in Medscape, follows:

 

A lawsuit filed by a physician against the North Carolina Physicians Health Program (NCPHP) claims loss of significant and potential earnings as well as public humiliation, irreparable harm to his professional reputation, and severe emotional distress.

Kernan Manion, MD, a practicing psychiatrist for some 30 years, is suing the NCPHP as well as the North Carolina Medical Board (NCMB), the North Carolina Medical Society, several past and present medical board officials, and current NCPHP Chief Executive Officer Warren Pendergast, MD.

The suit alleges “arbitrary and unlawful application of summary suspension procedures” resulting from “intentionally and/or negligently abusive practices” and other common law, statutory, and constitutional violations.

In court documents, Dr Manion, who has never before been disciplined by any licensing entity in any state and has never been found liable for malpractice, said he was forced to inactivate his medical license in February 2013 after “wrongful and flawed” diagnoses conducted by the NCPHP and its agents.

He describes the experience with the PHP as “a Kafkaesque nightmare.”

According to events outlined in a statement of facts, Dr Manion, who maintains he has never suffered from mental or emotional health problems or from alcohol, drug, or any other form of substance abuse, was dismissed in September 2009 from his position as a civilian contracted psychiatrist with the Deployment Health Center at Naval Hospital Camp Lejeune.

He had raised concerns, which he described as “whistleblowing,” regarding what he felt was deficient care of active duty service members with posttraumatic stress disorder.

Dr Manion brought claims against his employers, alleging retaliatory discharge, after which he says he was harassed and followed, prompting him to contact local police.

Shortly thereafter, Dr Manion said he was notified by the NCMB that someone at the police department had expressed “concern” about his mental health and that the NCMB had opened an investigation.

Malice?

On his own initiative, Dr Manion obtained a comprehensive psychological evaluation, which, he said, concluded that he did not have a delusional disorder and that recommended that he be permitted to retain his unrestricted medical license. Despite this, says the statement, the NCMB ordered Dr Manion to undergo an assessment by the NCPHP, which he did.

That assessment, carried out by Dr Pendergast, concluded “wrongly and negligently or intentionally and with malice” that Dr Manion was mentally ill and in doing so, “relied upon only the unofficial information provided by the police office, reviewed no clinical records, and failed to interview any collateral sources as is required in such evaluations.”

Dr Pendergast apparently then recommended that Dr Manion complete a comprehensive psychological evaluation at an out-of-state mental facility. Such facilities, says the court document, often charge thousands of dollars and require that physicians incur costs for travel and spend multiple days, if not months, away from their medical practice.

According to the court document, PHPs have been criticized for “rampant fraud and abuse” and that the NCPHP and NCMB are “riddled with conflicts of interest.”

An audit carried out by the North Carolina state auditor, and reported by Medscape Medical News, found no abuse by the NCPHP but did state that there were “multiple conflicts of interest inherent in the relationships between NCPHP and its preferred assessment and treatment centers and an alarming potential for abuse and violations of the process rights by NCPHP.”

The filed court document also states that there was “no reasonable basis” for the NCMB and the NCPHP to conclude that Dr Manion was impaired and unfit to practice medicine, “conclusions that forced him into a Kafkaesque nightmare that ultimately concluded in the loss of his license and his livelihood.”

Dr Manion said he proposed an alternative in-state evaluation, but in January 2012, “based wholly” on its “intentionally flawed diagnosis and recommendation,” the NCPHP again voted to order Dr Manion to undergo evaluation and treatment at an out-of-state facility.

According to the court files, the NCMB brought formal charges against Dr Manion that alleging he failed to cooperate with the NCPHP. Dr Manion claims he submitted to yet another evaluation to assess his mental health status against his will.

This evaluation concluded that he was delusional “based chiefly on information…received from Dr Pendergast about Dr Manion and not based on medical evidence or corroborative fact checking,” according to the statement.

“Frightened and Threatened”

Told to inactivate his license and immediately resign from his position as medical director at a clinic or have felony charges brought against him for practicing without a license, Dr Manion said he was “frightened and threatened” into inactivating his license on February 9, 2013.

In trying to reactivate his license in December 2014, Dr Manion agreed to submit to another evaluation, which concluded that he “is not delusional, that he is fit to practice medicine, and that the prior evaluations conducted by or at the direction of NCPHP…are flawed and incorrect,” says the statement. It adds that the assessor believed that Dr Manion’s “display of anxiety, distress and intensity is proportionate to the circumstances which have occurred.”

Despite this, Dr Manion said the NCMB wanted him to submit to another NCPHP evaluation in order to activate his license, but he objected to undergoing another assessment.

As a result of these events, Dr Manion claims he has suffered, among other things, loss of significant earnings and potential earnings and the burden and cost of defense against unwarranted action, as well as “public humiliation, irreparable harm to professional reputation, and severe emotional distress.” The suit also claims one of his former patients committed suicide because of interruption of highly specialized care.

The broadly applied policies and practices of the NCPHP “draw unimpaired licensees into a Kafkaesque ‘damned if you do, damned if you don’t’ catch-22 scenario that almost always ends in severe and underserved harm,” says the statement.

The document estimates that Dr Manion has suffered and continues to suffer damages “in excess of $75,000.”

The suit was filed February 8 in the US District Court, Eastern District of North Carolina, Western Division.

“Unprofessional Conduct”

Medscape Medical News contacted the NCMB for comment, and spokesperson Jean Fisher Brinkley provided the following statement: “NCMB is aware of Dr Manion’s lawsuit but cannot discuss it as the matter is pending litigation.”

However, Brinkley provided a link to public documents on the NCMB website related to the disciplinary case at issue in the lawsuit, which includes “a detailed account of the Board’s concerns regarding Dr Manion.”

According to the October 10, 2012, Notice of Charges and Allegations, the NCMB outlined two charges against Dr Manion: “failure to respond reasonably to a Board inquiry” and “unprofessional conduct.”

On the first charge, the NCMB claims that in failing to undergo an assessment at Acumen Assessments Inc, which is the recommended out-of-state treatment facility, as required by a Board order issued February 27, 2012, Dr Manion’s conduct “constitutes a failure to respond, within a reasonable period of time and in a reasonable manner,” to inquiries from the Board concerning any matter affecting the license to practice medicine, within the meaning of the state’s general statutes.

On the second charge, the NCMB states that Dr Manion’s failure to undergo an assessment at Acumen, as required by the Board, “constitutes unprofessional conduct, including, but not limited to, departure from, or the failure to conform to, the ethics of the medical profession and is the commission of an act contrary to honesty, justice or good morals” within the meaning of the state’s general statutes.

According to the NCMB, for both charges, there are grounds under the general statutes for the Board “to annul, suspend, revoke, condition or limit Dr Manion’s license” to practice medicine.

In addition, the legal notice describes concerns about Dr Manion from a single police officer who reported them to the NCMB in 2010.

According to the NCMB, the police officer was subsequently interviewed by a Board investigator. According to an account of this interview, the officer alleged that Dr Manion spoke to the Wilmington Police Department chief of police in November 2010 and expressed concerns that he was being followed and that a tracking or listening device had been placed on his car.

According to the NCMB report, the officer outlined other instances that were cause for further concern.

Medscape Medical News contacted the NCPHP. However, Dr Pendergast declined to comment, noting that the “NCPHP cannot comment on this matter as it is pending litigation.”

What’s the take home message?

The state has unlimited resources to prosecute claims. If you are on the receiving end of a Board inquiry challenging your fitness to practice medicine, you need experienced counsel one microsecond after you receive such notice. Such counsel should understand on a deep level all nuances of administrative law and how to take advantage of every opportunity afforded by due process. The longer you go without such guidance, the longer your road will be to get back to normalcy.

Posted by Medical Justice | in Healthcare Reform | 14 Comments »
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Michael Gorback
Guest
Michael Gorback

Not so much Kafkaesque as Orwellian.

Jeff West
Guest
Jeff West

These PHP programs are about control and power. The referrals to specialized???treatment center are like minded using pseudo manipulative assessments. I was tested three times over 5 months. On the third attemp I was so disgusted that I just answere the questions without much thought. It was them I was diagnosed as having a nariccistic personality. They finanilly got what the wanted. They did not inform of the diagnoses but they did report to the Board. I volunteered into the program as source to help prevent me from becoming an alcoholic. I was promised that I would have full confidentially… Read more »

Louise Briggs Andrew
Guest

Unfortunately, medical licensure boards have as a result of pressure from plaintiff attorney backed “consumer” organizations like Public Citizen, been under pressure for several decades to increase the numbers of disciplined doctors that they can tally. Public Citizen founder Sidney Wolfe has been a frequent speaker at Federation of State Medical Boards meetings. These presentations as well as many articles widely promulgated by Public Citizen have pitted MLBs against each other in an informal competition to step up doctor disciplinary numbers. It is unfortunate that boards have chosen to target physicians with very common mental illnesses or even more common… Read more »

George S
Guest
George S

Did the NC medical board truly suspend his license? Website says his license is inactive but it is unclear whether the physician let it expire or whether it was revoked. Board implies it had vacated an earlier order, though (click the Actions-Adverse & Administrative Tab):
http://wwwapps.ncmedboard.org/Clients/NCBOM/Public/LicenseeInformation/Details.aspx?&EntityID=8111&PublicFile=1

Michael M. Rosenblatt, DPM
Guest
Michael M. Rosenblatt, DPM

Physicians who go through the peer review process first believe that they have “constitutional protections” during this process. But there are none. The “protections” are procedural and are put in place to protect the members of the board/hospital/venue that is “investigating/and or implementing a decision.” They are not in place for the subject of the hearing. As a subject of the hearing process, you have no rights. Traditionally counsel who try to help defend (or even sue) the hearing organization are “used” to situations where Constitutional protections exist. Since there are no such protections, counsel’s methods of dealing with clients… Read more »

Brad
Guest
Brad

Unfortunately, I have experienced first hand the quandary SMB(s) have when trying to balance protecting the public and professional autonomy. It appears that this conflict often has unresolved tendencies to apply quick fixes without empirical scientific evidence of success. Nowhere in the SMB(s) disciplinary orders is this more obvious than substance abuse with physician ‘burnout’ when professionals are arbitrarily and unconstitutionally ordered into proselytizing and fading religious 12-step dogma, such as alcoholics anonymous. My own experience makes it clear that the SMB’s are heavy on process with little freedom or tolerance for critical thought.

Ricki Mitchell MD
Guest
Ricki Mitchell MD

Always remember in these cases, the doctor is guilty until proven innocent. The burden of proof is on the doctor.

john
Guest
john

I, too, have been on the receiving end as a physician leveraged out by the accusation of the hospital in NC. When I left for a job in a neighboring state, I was reported to the NCMB as “relinquishing privileges while under investigation or the threat of investigation” which ultimately led to NCMB investigation and reporting to NPDB as a matter of ” duty” by the hospital. I agree with most of the above comments but would recommend two courses of action- one, get legal counsel that specializes in “board actions” as doctors are guilty until proven innocent and hearsay… Read more »

Jay Nichols
Guest
Jay Nichols

Why is it that the physicians that are truly doing harm are often exonerated, while the ones who have been put on “witch hunt” status are vilified? The “we police our own” concept that the public assumes is being used to protect them is a farce. It’s more of a “police state our own”. There is a university teaching hospital that turns it’s mistakes over to the private sector to fix for them. With a guaranteed salary and the protection of a state supported university, they don’t have to practice “good” medicine. Due process should be for everyone, not just… Read more »

Michael M. Rosenblatt, DPM
Guest
Michael M. Rosenblatt, DPM

Some state medical boards have “unholy” relationships with various venues they require “errant” physicians to enroll in for rehabilitation. In some cases, actual funding of the SMB is derived directly (or indirectly) from the physicians who appear before them in crisis. On one hand, an outside observer could reason that the physicians who appear before the boards should be financially charged and bear part of the burden of this administrative process. On the other hand, when the funding comes in irregularly, as it often does in government regulated organizations, there is a great temptation to force some plaintiff’s into what… Read more »

Scott
Guest
Scott

I was victimized last year by the Medical Board. Went to hearing with good attorney. They told him to just shut up. They then had someone not in my specialty rake me over the coals, holding me to standards the he made up as he went along. They either didn’t read documentation, or totally discounted it. Anything I said was a lie, I was guilty, it was decided regardless of anything I would say. I went an appeal and it wasn’t much better. Next stop was in front of an administrative judge, which I would have done, but I decided… Read more »

Michael M. Rosenblatt, DPM
Guest
Michael M. Rosenblatt, DPM

Scott, you did the right thing. But it’s not as though you had a choice. You were doomed before you and your attorney entered the room. A factor you did not bring up in your note was that medical boards frequently bring up “controversies” in medicine and hold them against you. There are always controversies in medicine. No medical board has the right to shine a light on you and hold you culpable because you choose ONE particular side of a controversial issue. Yet that is done all the time. At the CPRJ, there are some “unusual” approaches taken that… Read more »

Michael F. Mascia, MD, MPH
Guest

Wounded Healers we are …

Thrown under the bus by the boys and girls who play “nice” with ALL in the sandbox I call The Business of Medicine.

This is my story … http://www.veritashc.org/about-us/michael-f-mascia-md-mph/

Care to join us? Let me know via email.

Dr. Mike
Michael F. Mascia, MD, MPH

Jeff West
Guest
Jeff West

I have the emails of all licensed dentists in N.C. We have the same problem as the medical PHP. I challenge you to communicate with them. It will also improve your web site and membership. I can be contacted at jwest11830@aol.com