The recent decision appealed to the Iowa District Court seems pretty heavy-handed considering the decision was overturned in part because, among other things, accusations by unconscious patients without corroboration of physical evidence caused this physician to lose his license for one year. The District Court reversed this finding and remanded back to the Board to reconsider the improper sexual contact allegations and findings. As citizens we don’t have to like the accusations, these certainly make everyone uncomfortable, but as lawyers and triers of fact (the IBM sitting in hearing) our decisions must rely on credible evidence and not public sentiment or mere suspicion. The IBM’s decision can be absolutely wrong in retrospect but still be correct legally when the evidence was lacking. In this case the evidence was clearly lacking and the ruling in my opinion was incorrect.
Pain management doctors under the Iowa Board of Medicine’s microscope – I will not detail the facts in light of the Board’s decision being partially vacated and remanded for further development of the record. Personally, I see this decision is clearly wrong and heavy-handed against the physician. Based on what I’ve read I would not have arrived at the same decision.
Current State of the Proceedings -
In a press release dated October 12, 2012 the IBM issued its understanding of a Pottawattamie County District Court Order of October 11, 2012. The Court upheld part of the IBM’s Order filed on March 29, 2012. Counts I and III of that Order were affirmed (Count I was not appealed.) but reversed as to Count II. The Board’s order regarding the anesthesiologist can be read here and an amended statement of charges of January 12, 2012, along with the action on March 30, 2012 referring to the Board’s Order on March 29, 2012 and an April 20, 2012 Order Re: Respondent’s Application For Stay.
The Record -
- Open Minutes, December 8, 2011, Consideration of Emergency Adjudicative Order and Statement of Charges regarding File Nos. 02-2009-323 and 02-2010-180, Iowa Board of Medicine
- Initial Charges, Press Release and Open Minutes of Iowa Board of Medicine, January 12, 2012
- Open Meeting Minutes, March 29, 2012, Iowa Board of Medicine
- Findings Of Fact, Conclusions of Law, Decision and Order, March 29, 2012 (Starts on the 4th page of this PDF document.), 15 page decision, Iowa Board of Medicine
- Press Release, Iowa Board of Medicine, March 30, 2012
- Amended Charges,
- Open Minutes, April 19, 2012, this one included “Opportunity for Public Comment and Chair’s Report” and include a statement by the physician.
- Order RE: Respondent’s Application For Stay, Iowa Board of Medicine, April 20, 2012
- Agenda, July 26, 2012
- Order Of Court, Iowa District Courts Decision, Pottawattamie County, No. CVCV 107353, September 7, 2012
- Agenda, September 20, 2012, Iowa Board of Medicine
- Open Meeting Minutes, September 22, 2012, Iowa Board of Medicine
What were the formal charges, the allegations?
- Count I – Sexual Misconduct, 148.6(2)(i) and 653 IAC 23.1(10), 23.1(5) and 13.7(4)(a)-(c).
- Count II – Unethical or Unprofessional Conduct, 147.55(3) and 272C.10(3) and 653 IAC 12.1(4)
- County III – Professional Incompetency, 147.55(2), 148.6(2)(g) and (i) and 272C.10(2), and 653 IAC 23.1(2)(c), (d), (e) and (f).
So what are the issues that caused concern and should be avoided?
- Seeing patients at the office when it was otherwise closed.
- Treating patients under sedation without anyone else present. See 653 IAC 23.1(5)
- Failing to obtain “proper written consent from the patients” when the treatment will render the patient unconscious.
- Failing to monitor and document the patient’s vital signs during procedures that render the patient unconscious.
- Allowing patients to drive home following deep sedation.
- After saying he would stop practicing a certain way, he repeated the practice that was under scrutiny. (See page 13 of the District Court Order.)
What was the resulting disciplinary sanction?
- A $10,000 fine.
- License suspension for a period of one year from the date of the original suspension.
- Completion of a Board-approved professional boundaries program.
- Completion of a Board-approved medical record keeping program.
- Upon reinstatement of the medical license, possible probation.
How to avoid this situation?
- See patients only during normal office hours or through the hospital setting.
- Always require another person to be present when the patient is sedated.
- Always obtain written consent.
- Always advise the patient to have someone who can drive home.
- Monitor the vitals of all patients when being sedated.
Had these simple practice rules been followed we would not be here today discussing this case.
What did the Iowa Board of Medicine find for facts, conclude according the law, decide and order? See the March 29, 2012 Findings Of Fact, Conclusions Of Law, Decision And Order.
What did the Iowa District Court order?
The district court upheld the Board’s decisions regarding Counts I and III but reversed on County II.
Iowa Code section 272C.6(1) permits the doctor to have a private hearing.
Conclusion: After reviewing the decision and considering the evidence it’s difficult to justify why the Board took the doctor’s license for a year? Are the accusations of two patients who were under sedation enough to refute physical evidence processed by the DCI that provided no support for the facts as stated (supposition) by the accused?
If the Board’s decision rests on professional incompetency related to where, when and how the procedures were conducted couldn’t those concerns have been addressed by supervision, as opposed to complete suspension of medical privileges? The results of the Board’s action will completely destroy the doctor’s current practice and deny him access to a viable future in Iowa.
What about the other patients who did not complain and who’s care will be adversely affected?
Why didn’t they allow him to work as an anesthesiologist with other physicians or in a hospital setting? If these decisions are to be based on the facts in the record then this record does not seem to support the harshness of the decision. Read in the doctor’s own words how this has affected his family.
“The punishments for these alleged violations I feel are grossly unprecedented. In the past, cases that the Board has reviewed and disciplined, a physician that’s not been found guilty of misconduct, he was immediately reinstated to practice medicine. None of these physicians was required to undergo a professional boundaries evaluation. The fine of $10,000 seems to be extremely harsh when you look back at the archives of discipline.”
“As for a medical record-keeping course, I mean truthfully, it’s probably never a bad thing for any of us physicians to go back and review that, and I am not opposed to doing that. I think that is a reasonable request.”
“But these punishments are unjust and they pale by comparison though to the unbelievable and unnecessary negative tone of the Board decision, I felt.”
“The press release has changed my life and the lives of my ... wife, [name omitted], and my kids. We were a well-respected family in the community; donated our time to community and invested in community. And now as a result of this (decision) and the press release (that) followed, we essentially have been shunned.... My children have been harassed and bullied. My wife and I have struggled with depression and grief. We found it to be grossly unjust what was said about us, myself in particular.”
“Financially we have been devastated. I have not received a paycheck in five months. I am having a very difficult times supporting my family. I have been assessed this fine of $10,000 which I can’t pay. I currently can’t afford an evaluation in Atlanta. My prognosis for surviving the next month, eight months without work is grim and that’s based on the punishment. And, a full year punishment is not essentially a full year because even if you are reinstated it takes ... at least two months to go through (hospital) credentialing, and provided I am able to get that. So, it’s actually more than a year.”
“I have sold my car; I’ve cashed in retirement (savings). Unfortunately, my house is 40 years old and somewhat in need of dire repair. In today’s depressed market, we’ve discussed about selling it but probably would just get enough to pay off the loan. It’s been a bad year for us.”
“Three months prior to my suspension, my daughter was hit by a car. She suffered a skull fracture and subdural hematoma, spent several days in the ICU where she fully recovered. We are still recovering from those medical bills as well.”
“What I am asking you to reconsider my ability to practice medicine in the area of anesthesiology. I’ve had, had a long and highly successful, unblemished career in this area. In the 16 years, I have never had any event where I’ve harmed any patient and I have never had any bad outcomes. I trained in NASA to resuscitate astronauts, I’ve taken care of U.S. senators, and celebrities, and humble farmers of Iowa, and all had very good outcomes.”
Where's the evidence?
Right or wrong? You be the judge.