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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.

You want to practice good medicine with peace of mind. We want to help.

Contact us to learn how we help.