Lawyers Weekly Article and Letters to the Editor August/September 2020

August 3, 2020 Massachusetts Lawyers Weekly front-page article Decisions show overreach of M.D. licensing board: Defense Lawyers: DALA  rulings part of larger pic by LW reporter Kris Olson.

August 13, 2020 Letter to the Editor from ex-board chair Dr. Candace Lapidus Sloane, M.D. : Displeased with story on M.D. licensing board

8/27/2020 Letter to the Editor from attorney W. Scott Liebert in response to Sloane letter :  Lawyer takes issue with comments of medical licensing board chair

9/10/2020 group Letter to the Editor from 25-defense bar attorneys in response to Sloane letter :  Remarks of medical licensing board’s ex-chair alarm lawyers

8 thoughts on “Lawyers Weekly Article and Letters to the Editor August/September 2020

  1. Yup I had left Massachusetts for another state in 2010. So my license was inactive in MA. I signed a consent decree in a different state – NOTHING HAPPENED IN MA – and Candace as head of the Board in MA took away my “inchoate right to renew” my MA license – a punishment reportable to the National Practitioner Databank.

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    • This sort of MA Board action is interesting from a legal perspective. I believe that they can be challenged in a federal court sitting in diversity jurisdiction. The MA long-arm jurisdiction statute, M.G.L. c. 223A, §3, seems not to provide the MA medical board power to establish personal jurisdiction and the question would turn on other federal doctrines that may be used to establish personal jurisdiction. I have not looked for case law on this issue and I am not offering legal advice.

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  2. I can tell you from my own experience that these physicians health programs have complete and total control over your career once you land on their radar for whatever reason. I’d elaborate on why I am in the program but I’m terrified of being identified and possibly retaliation. They have been caught red-handed falsifying drug screens in the past.

    I will verify that you absolutely will be sent to one of the “php-approved facilities” that will likely be out-of-state, will not accept insurance, and cost as much as $1000 per day. They’ll keep you for 60-90 days by the way, hence no insurance coverage (there is likely no indication for a length of stay that long). They claim that physicians are a special population that need specialized care.. I’m guessing that’s where the POLYGRAPH machines come into play. Likewise they are equip to treat “pre-impairment” which is a condition that doesn’t exist outside their own publications.

    I was floored when I realized that they could indeed refuse to let me go to any of the board-certified and fully accredited treatment facilities within my own state. They can do this by law. That is evidence enough of over-reach, but that’s not all. Though the PHP programs’ roles are to simply refer you for evaluation, you’ll soon find that they have their hands in treatment as well. The PHP have an understanding with these “php-approved” centers that every referral will be kept for an absurdly long and medically indefensible amount of time. There are ample letters on this website, the Student Doctor Network forums, and many other sites that describe the fabrication of diagnoses to suit the PHP such as with substance use disorders and personality disorders.

    After all of this ($40,000 – $80,000 later) you’ll have to sign a monitoring contract with them, likely for a period of 5 years. This will include witnessed drug screening to the tune of $200-$300 per month. Other provisions are having to attend AA meetings, having a work-site monitor, and therapy sessions at least in my case. This contract they say is “purely voluntary” but if you refuse to sign it you can likely kiss your career goodbye. Your license will be suspended or revoked until you comply with their every command. Interestingly, one of the blanks on the contract states that they are the sole interpreter of “compliance” and basically they can alter the contract at any time you’re part of the program.

    The over-reach of these programs are simply too much to fit in a comment here. When I found myself in this process and realized what was actually going to happen I braced myself, and it did. I was so surprised that something like this can actually take place. These organizations have no oversight whatsoever and the boards are complicit with it all. There is little to no appeals process. It amounts to coercion and extortion.

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    • And these coerced contracts signed under extreme duress and undue influence are legally invalid -a systemic issue still under the radar of legal experts and attorneys in contract law. It is an offer you cannot refuse not unlike The Godfather. The problem is it is an “indirect threat” initiated by the PHP but carried out by the medical board so the ruse is not obvious. But it doesn’t matter who breaks your legs – Corleone or his thugs- it’s still coercion under threat of serious harm and that makes it completely void.


  3. This is a complicated area at the intersection of law, medicine, and the administrative state. To appreciate the real harms and injustices of the system in Massachusetts and in all the other states, an observer needs to find a focal plane that allows one enough perspective to appreciate true generalizations across states while recognizing that fine details of statute, regulation, policy, and case law may be outcome-determinative in a particular jurisdiction.

    While it has been decades since I obtained my medical degree and my early board certifications, I am only now engaged in formal legal study. It is improper and potentially-sanctionable for me to give legal advice as a law student or to apply the laws of any jurisdiction to the facts of any real-world case. So, nothing I write here should be construed as legal advice or formal legal analysis. My comments are offered under the umbrella of academic freedom.

    It is important to evaluate how writers in this field use words. Many common words such as “coercion”, “duress”, and “contract” have different meanings when written in ordinary usage and when used as legal terms of art. Usually, only close cases (and a tiny minority of those) ever see the inside of a courtroom before a real judge. The courts are a factory for extremely fine distinctions that when upheld on an appellate level become preserved in the amber of the binding common law. Some of these distinctions are tortured, illogical, and even preposterous. However, in the final analysis, splitting legal hairs in a courtroom only needs to be infinitesimally superior to splitting heads outside a courtroom. While it is a low bar, this cobweb of wisdom and absurdities in the common law is a pillar of civilized society.

    The administrative state is a fourth branch of government that few people learn about in Civics classes. It combines executive, legislative, and judicial functions with very relaxed standards for separation of powers. It favors administrative efficiency over the preservation of individual rights within its limits. The administrative state exists in different incarnations in the 52 US jurisdictions and not counting its incarnations in the territories and in the military. There are similarities across jurisdictions. (All happy families are alike.) But there are also unpredictable differences in the details. (All unhappy families are unhappy in their own particular ways.) The administrative states in different jurisdictions are mostly unhappy families.

    When a physician speaks about coercion or duress, understand these terms as ordinary language unless they are used as medical terms of art. A physician may have a reason to be aggrieved about the actions of state regulators, and he or she may feel coerced, but legal coercion, duress, incapacity, misrepresentation, and the like may or may not be present. Moreover, I think that it is unsettled whether medical board consent decrees are strictly understood as contracts in most jurisdictions. They may be contracts or they may be alternatives to sanctions imposed as an administrative penalty. And this is just one of many key terms with important and possibly ambiguous meanings in medical regulations and statutes.

    Add to that general vocabulary problem, the insight that the administrative state is rarely self-correcting. It does not make binding common law in most jurisdictions. When the administrative state does make self-directed adjustments, these changes are usually in the furtherance of efficiency rather than justice. Other changes in the administrative state usually require action by the judicial or legislative branches.

    Also, the professional population in administrative law may be experts in the workings of the administrative state while the victims of the administrative state usually seek a remedy for injustice. Those remedies usually require litigation or the real threat of litigation in real courtrooms. Many practitioners of administrative law have never seen the inside of a real courtroom and their threats of having a real alternative to negotiated agreements may be hollow. Working in the administrative state successfully and staying in business requires the cultivation of relationships and general support of the status quo in a volume business that produces income from billable hours. There are very few rabble-rousers.

    Real and gross abuses do exist in the medical regulatory state. Traditionally, states regulate physicians under the general police powers thought to be implied by the Tenth Amendment. The use of the commerce clause in the physician licensing process is not only dormant. It is in suspended animation at best and fossilized at worst. The tradition of this police power being delegated to the states arose at a very different time when conditions were qualitatively different. That said, this state police power has not been preserved by inertia. It is jealously guarded by individual states and by well-funded national special-interest lobbies.

    Some states have taken the position that forced medical diagnosis and treatment imposed by medical boards should not be understood using medical categories at all. These forced measures can be understood as sanctions. Sanctions imposed by the administrative state can be punitive, financially-ruinous, and have vast collateral consequences since they are understood as punishments rather than evidence-based or effective treatments. The pain caused by these board orders is not a “bug” in the administrative law system. The pain is a feature.

    My personal opinion is that physicians can take some simple preventive measures to preserve their federal statutory and constitutional rights before medical boards. The Federation of State Medical Boards takes the written position that the process of applying for or renewing a medical license should be taken as an implied surrender of rights under numerous statutes including the Americans with Disabilities Act, the Rehabilitation Act, the Genetic Information Non-Disclosure Act, 42 CFR Part 2, and a host of others. Licensing questionnaires almost always seek responses to inquiries that are not permitted under ADA Title II. Answering these questions may be understood as consent or ratification of the surrender of civil rights. Lying is not a recommendation but refusing to answer an illegal question is different. Of course, the administrative state may want to use a standard of candor while it will need to use a stringent standard, possibly even perjury, in real litigation.

    State PHPs are mostly supported by licensing charges or licensing surcharges held as state custodial funds. With exception of a single state, PHPs are monopolies that offer diagnostic rubrics and treatment pathways that are 12 steps, Christian evangelical programs that are held to be religious enough in content to run afoul of the First Amendment. At the time of license application or renewal, the use of these funds to support a religious medical monopoly established by active medical market participants can be objected to by attestation in writing. The latter claim is particularly worrisome for medical board members because damages arising from forced participation in a de facto state monopoly expose medical board members to liability in their individual capacities for damages under the Sherman Act.

    The advantage of taking preventive steps is that physicians can be the plaintiffs in federal court and bring claims for declaratory and injunctive relief against state officials with an Ex Parte Young claim. This gets around the state 11th Amendment immunity that shields medical board members from actions based on Reconstruction Era laws that sought to enforce the 14th Amendment (Section 1983 claims). However, some medical boards are contained within administrative umbrella agencies that have divisions that accept federal funds. In every US Circuit, acceptance of federal funds is understood as consent to being sued for violations of the Rehabilitation Act and the 11th Amendment immunity is waived. Also, as a plaintiff, a physician is a master of the civil complaint and can raise issues and select among courts with jurisdiction to hear the claims. There is much less likelihood of being trapped in inadequate state administrative forums with uncertain rules and procedures in which a person, who need not be a real judge or a lawyer in some cases, will hear the case.

    Some physicians in late-career, especially those faced with license renewal in the face of a clinical environment with real death-dealing potential posed by the COVID pandemic, may decide that they are in a position to pick these fights in real courtrooms that apply binding precedent and that can make binding precedent at the appellate level. Also, if a state regulatory agency backs down and changes illegal procedures, this fact can be made public without going to court at all. Denizens of state administrative law practice are unlikely to recommend these approaches for many reasons. Litigation is anathema to them and the administrative status quo is a livelihood. There is the real possibility that physicians under no significant time or money constraints could bring these claims without an attorney at all. In principle, the ACLU could be interested but, as a practical matter, physician mistreatment by the administrative state is not a priority for them and these cases are bounced out to boutique firms.

    Countless preventive legal strategies might be employed by a subset of physicians to advance the interests of the profession. Networks of physicians can offer mutual support in these actions without engaging in unlicensed legal practice if due care is taken. Such networks would be easier to create than physician labor organizations but they could be effective in the sphere of making rights-based claims. Those are achievable goals.

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    • If the tactics and ignorance of details such as requirements that due process be followed in every case the PHP or Medical Board initiates an investigation, then ignorant and trusting law abiding physicians like me would never agree to consents for release of information which are coerced by the personnel of the PHP and Board investigator, then there might be fewer qualified, capable and competent physicians who are traumatized every year unnecessarily. In. my experience there also needs to be huge advancements in the oversight of the Regulatory Agencies who are required by law to follow orders and rulings issued by the ALJs. In Washington State the regulatory authority is absolutely thrilled by a controversial case where sex,drugs and alcohol are mentioned. At NO time do they ever weigh the actual medical knowledge and expertise a physician exhibits as they practice their craft.

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  4. PHP contracts, medical board settlement agreements, and medical board consent decrees are all different instruments in contract law. There are different means by which they create enforceable contracts and there are differences in court jurisdictions to hear and/or remedy disputes. This subject gets into the details of state contract law jurisprudence. For example, in Massachusetts, state courts of general jurisdiction are able to hear cases about agency settlement agreements on the general grounds of contract law but the same courts have only a more limited power to review agency consent decrees. Warner Ins. Co. v. Comm’r of Ins., 406 Mass. 354, 548 N.E.2d 188 (1990)

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