Microsoft word - app391.doc

Brief recap of the case

My years of battling with the administration of LA County + USC Medical Center over their
closure of my Pain and Palliative Care Consultation Service for cancer and AIDS patients and
the subsequent poor but highly lucrative treatment of pain and symptoms of terminal disease is
documented in my book, Whistleblower Doctor—The Politics and Economics of Pain and
Dying.
In February 1998, my medical team admitted a 59 year old man, B.R., with tuberculosis,
alcoholism, liver failure, and a leg clot. The admission history indicated that the patient was
homeless and unemployed, but I discovered much later that the patient had an apartment and was
employed as a fast food cook. The patient and his daughter had lied about the social situation to
avoid receiving a hospital bill.
I began anti-tuberculosis medications along with the anticoagulants heparin and Coumadin. After
5 days in hospital, the patient was improving and we started discharge planning. Given the
medical and social situation, I made the judgment call to stop the anticoagulants, reasoning that
the risks of bleeding to death from Coumadin given for the standard three months was greater
that his risk of dying of lung clots. Unfortunately, he died of lung clots about one week later.
The LA County – Department of Health Services called my decision medical malpractice and
fired me over this one case. I lost my Civil Service appeal of the termination. Cases resulting in
termination of a physician must be reported to the California Medical Board, so the CMB
launched an investigation of the case. The investigation resulted in the “accusation” that my error
in stopping the anticoagulants at day five resulted in the patient’s death.
I argued in the Administrative Law pre-Hearing before Deputy Attorney General (DAT) William
McKim Bell and Judge Vincent Navarette that, since the patient was alcoholic and alcoholism is
an absolute contraindication for prescribing Coumadin, my stopping the anticoagulants was
within the standard of care. Before hearing at the CMB hearing that my defense would be that
alcoholism is an absolute contraindication for the use of Coumadin, DAG Bell had no intention
to call the patient’s daughter, B.P., to testify. About one week after that pre-hearing, he
dispatched a CMB investigator to re-interview B.P. Based on that second interview of the
patient’s daughter and whatever other talks he and LA County administrators had with her, he
decided to bring B.P. as the star witness against me.
Blindsiding my attorney and me at the CMB hearing before Judge Stuart Waxman, DAG Bell
brought the patient’s daughter who testified that her father was not alcoholic, homeless, or
unemployed. Judge Waxman cited the daughter’s testimony that her father drank up to two quart
bottles per weekend day of Colt-45 Malt Liquor rather than a six-pack of cans of beer daily in
ruling that the patient was NOT alcoholic. He further ruled that I was grossly negligent in not
knowing that the patient was not alcoholic. Since the patient was not alcoholic, Judge Waxman
reasoned that the standard three-month course of Coumadin was indicated, and I was grossly
negligent for stopping this drug. I testified that, if faced with the same clinical circumstances in
the future, I would again stop the anticoagulants on day five. Calling me incorrigible and a
danger to any future patients, Judge Waxman revoked my medical license over this one case.
After testifying against me in the CMB Hearing, the daughter sued LA County – Department of
Health Services and me for money damages in the case. Consequently, I had the right to have her
deposed. In that deposition, she recanted the previous testimony about her father’s alcohol
consumption, saying he drank an unknown quantity of beer in cans AND Colt-45 Malt Liquor in
quart bottles. When we showed her a 40-ounce magnum of Colt-45 Malt Liquor, she said what
she thought was a quart bottle was really 40 ounces. She had no idea that Colt-45 Malt Liquor
contained 6.25% alcohol versus 5% for beer. The County DHS ended up settling with the
daughter for $175,000 over my objections. My attorney in this case was paid by the LA County –
Department of Health Services, and, in the end, he did their bidding.
The January 14, 2010 hearing before Administrative Law Judge Daniel Juarez

Against the advice of nearly everyone, I acted as my own attorney. I had no money to hire
anyone to represent me.
The hearing began with a battle for admissibility of documents. After the judge approved all of
the documents submitted by Deputy Attorney General (DAG) Klint McKay, he turned to my
documents. (Mr. McKay’s supervisor was Mr. Bell my former prosecutor.)
I first submitted a deposition of the daughter B.P. taken about two weeks after the Decision
against me in the first hearing for my medical license. Objecting to the admission of B.P’s
deposition and other documents related to challenging Judge Waxman’s Decision in the original
case, DAG McKay submitted a brief to the judge. His legal argument was based primarily on the
doctrine “Res Judicata” (i.e., cases Decided in one fair trial cannot be litigated a second time). In
response to McKay’s brief, I argued that the previous hearing was not fair because the star
witness gave perjured testimony. Indeed, Mr. McKay’s brief allowed that B.P. may have
committed perjury in testifying against me.
Since Mr. McKay had faxed me the brief at 6 pm on the evening before the hearing, I asked for a
continuation of the hearing to allow me time to put together an opposing brief. The judge denied
my continuation request and sustained the DAG's motion to bar the depositions. Judge Juarez did
comment that, to a layman, it might seem strange that a judgment obtained with perjured
evidence could not be later attacked. However, such is the law.
I plan to appeal the outcome of this hearing whether I win or lose. To me the goal is to have the
original revocation rescinded, not simply to have my license reinstated. For the legal scholars
among you, any thoughts on legal arguments to include in a brief to counter McKay’s points and
authorities opposing admission and to support the admission of the depositions and associated correspondence into evidence? The issue of the lack of a constitutional right not to be framed by perjured testimony has recently been in the news in two cases. One involved two black teenagers in Iowa who were framed by racist prosecutors in a murder case in the 1970s. Of particular interest, the case probably would have been won in the Supreme Court by the plaintiffs. However, realizing that they would lose in the Supreme Court, the Iowa County that employed the racist prosecutors settled with the wrongly convicted men, who each served 26 years in prison, for $12 million. The other case involves Don Siegelman, former Governor of Alabama, who was arguably framed by Karl Rove and others on a bribery charge. That case is ongoing, and the outcome will probably depend on whether U.S. Attorney General Eric Holder reviews the work of Bush-era prosecutors in the Justice Department. As it stands, Americans have no Constitutional right not to be framed by perjured testimony, and no Supreme Court Decision establishes a legal precedent providing legal recourse for people who are framed by prosecutorial misconduct. The Supreme Court will soon decide whether they will hear arguments in the Governor Siegelman case. DAG McKay adamantly opposed the admission of any documents that he thought might be supporting my decision to stop the anticoagulants in patient B.R. However, since the main issue at the hearing was whether I had “rehabilitated” myself, the judge did admit all but one of my published articles into evidence. I argued that, since my only offence involved my decision to stop anticoagulants in this one patient, the only relevant rehabilitation was for me to research and study the evidence-basis for treatment of people with deep venous thrombosis (clots in the leg). The judge deferred his decision about whether to admit a survey of practicing physicians that my expert witness Dr. Matthew Conolly and I had done about the B.R. case and published in my book, Money Driven medicine—Tests and Treatments That Don’t Work (Appendix 5). After the battle over admission of documents, I took the stand in my own defense. Mr. McKay reminded me that the burden of proof that I have been rehabilitated was with me. As a prelude to my main comments, I said that hematologists are the main subspecialty of internal medicine involved with bleeding, clotting, and anticoagulation therapy. I said that I had done three years of subspecialty training in hematology-oncology and was American Board of Hematology certified as a hematologist since 1978. I testified that I had served in the LAC+USC Hematology Department for three years before moving to the general internal medicine section. The DAG objected that this was a back door way to retry the B.R. case and challenge my conviction. I argued that these were preliminary statements related to my rehabilitative research and study defense. The Judge allowed the testimony but cautioned me not to try to reopen the B.R. case. I then began to describe a survey of doctors about the B.R. case (Appendix 5 see above). I read the conclusion of the paper: Medico-legal cases involving deaths or serious injuries in patients with deep venous thrombosis who have pulmonary emboli, treatment-related bleeding, or other complications should not be determined on the testimony of one or even a few ‘expert witnesses.’ In order to determine the ‘community standard of care,’ surveys of practicing physicians should be done to determine the diversity or uniformity of opinion in the medical community. Mr. McKay objected that I was reopening the B.R. case. At that point, Judge Juarez decided not to permit this survey to be included into evidence. (Legal scholars: is this grounds for appeal?) I next preceded through four of my review articles about anticoagulation of deep venous thrombosis that had been published in peer-reviewed medical journals. Mr. McKay objected to the inclusion of each of these articles into evidence. I argued that their inclusion was essential to explaining my rehabilitation, since the revocation of my license had to do with anticoagulation. Judge Juarez allowed the articles into testimony but only let me read the conclusions from the abstracts rather than discuss the methodology and results in detail. On cross examination, Mr. McKay referred to a transcript of my interview with him last July. Specifically he pointed to his question to me: “So with respect to patient B.R., do you think you made any mistake in your treatment of him?” I had answered, “No.” Before Judge Juarez, Mr. McKay asked me if I had the same opinion today. I said that I had changed my mind and would treat a future patient differently based on my rehabilitative research of deep venous thrombosis. Mr. McKay objected about me presenting a last minute change in my opinion. He indicated that the interview transcript showed that I was steadfast in my opinion that I had done the right thing, despite the bad result. I pointed out that I had emailed him a detailed elaboration about my changed opinion and the medical rationale behind it. Mr. McKay said he did not receive that email. I testified that, if in the future I have the same clinical circumstances as in the B.R. case, instead of beginning the anticoagulants on admission to the hospital and stopping them on day five; I would not begin the anticoagulants in the first place. Of course, in Mr. McKay’s mind there was no difference been my new opinion and my old opinion. In his view, I could only be rehabilitated if I admitted that I made a mistake by not continuing the Coumadin for three months and promised to always do that in future cases. Because I made my changed opinion the crux of my argument that I had rehabilitated myself, Judge Juarez overruled Mr. McKay’s objections and allowed me to describe in detail the two articles from the medical literature that formed the basis of my changed opinion. My email to Mr. McKay dated July 9,2009 described those articles and my rationale for not beginning anticoagulants. Since he had not received the email, I had accidently blindsided him. Because he expected me to say that I would do the same thing I did before in a future B.R. case, he did not have a medical expert available to rebut my testimony. On that basis, I think that I should win or at least have good grounds for an appeal. (Legal scholars may weigh in on this.) Since Mr. McKay recommended to the Court that my license should not be reinstated, the reputation of the Office of the Attorney General and his boss Jerry Brown is on the line. If Judge Juarez rules in my favor; it really attacks the validity of the original hearing, since I did not concede that I should have continued Coumadin for three months. If Judge Juarez rules against me, I hope to have a fairer venue than the Administrative Law Court for my appeal. I would hope to be able to subpoena the patient’s daughter to testify and find lots of physicians that would testify in support of my handling of the case.

Source: http://thehealtheconomy.com/WD/app391.pdf