|
575 Levering
Los Angeles, California
90024
August 26, 2002
Dear Dr. Oleary:
There have been several cases of abuse of due process in peer
review, including the cases of Dr. Stephen Whitlock Smith
(www.stephenwhitlocksmith.org) and Dr. Eric Gluck, JCAHO Case #18297,
as reported at the web site of the Semmelweis Society,
www.semmelweissociety.net.
As it happens, I have worked with both these doctors, having met
with The Honorable James McDermott, M.D. in 1998 to discuss the
reprisal incarceration of a whistle-blowing physician on a Federal
psychiatry ward (Dr. Smith), and having operated with the other
doctor (Dr. Gluck) on several occasions such that I am astounded he
has not been re-instated with full surgical responsibilities. I have
also been the victim of reprisal for testifying for this doctor, as
reported to my Congressman (1).
What will the Joint Commission do to enforce due process in peer
review, to stop credentials libel? If the answer is 'nothing', then
present and future doctors, especially those who are considering
military service, need to be so advised.
Sincerely,
Henry E. Butler III, M.D., FACS
cc: The Honorable Henry Waxman
The Honorable James McDermott M.D.
Dr. Verner Waite, Founder, Semmelweis Society
Enclosures (1) 1: Letter, Representative Waxman
February 2002 letter requesting Whistleblower Protection
David.Rapallo@mail.house.gov
Zahava.Goldman@mail.house.gov
Date: 02/01/2002 12:37pm
Naval Hospital Camp Lejeune
North Carolina 28547
February 1, 2002
The Honorable Henry Waxman
United States House of Representatives
Washington, D.C. 20510
Dear Representative Waxman:
I am writing as a constituent on Active Duty to request
assistance. Last year I reported to Representative James McDermott a
case of the denial of due process in the treatment afforded a
colleague at another facility (Enclosures 1-3). I was advised
to write my own Congressman should I ever be subjected to reprisal
myself. I am writing to report witness-tampering and reprisal against
myself following my testimony at a purportedly "Full and Fair
Hearing" on behalf of said colleague.
I request whistle-blower status (Enclosure 4).
Sincerely,
Henry E. Butler M.D., FACS
Medical Corps, United States Navy
Camp Lejeune, North Carolina
Enclosures (6)
1: Email 10/26/01 to Mrs. Sanders: Witness Intimidation
2: Email 10/29/01 to Mrs. Sanders and Captain Yerkes: Intimidation
3: Email 11/11/01 to Congressman McDermott
4. Reprisal against witness at a medical hearing
5. Reprisal for reporting orders to abandon patients in ER
6: Due Process (2 items)
7. Military Physicians Leave For A Plethora Of Reasons
cc: The Honorable Barbara Boxer
The Honorable James McDermott M.D.
The Honorable Donald Rumsfeld
Enclosure 1: Letter(10/26/01) Witness Intimidation; Reprisal
October 26, 2001
Dear Mrs. Sanders,
Thank you for your counsel. Please consider this letter as written
both to yourself
and to Dr. McDermott so that I can claim career protection under
Public Law
100-456 as reporting Fraud, Waste, and Abuse to a Member of Congress.
I will also contact my Congressional Representative with regard to
the pattern of reprisal I am 'enjoying' after stating I would testify
at a purportedly "Full and Fair" medical credentials hearing in
Groton last year on behalf of a colleague, Dr. Eric Gluck.
I had requested 'clarification' of an illegal order from my Rater
here, Captain Sidney Ranck, not even to talk to the person on whose
behalf I planned to appear. Captain Ranck said that one Captain
Burkhart of Groton had called Captain Thomas Cullison here to object
to the support offered to Dr. Gluck. This is either intimidation,
witness-tampering, or both. I do not know what Captain Cullison was
told, of course, but he said he had no objection to talking to Dr.
Gluck as long as it did not interfere with work. Captain Cullison and
I discussed reprisal, and his replacement as CO told me that Captain
Cullison had said I was a "Bad officer".
The reprisal my career has sustained to date is:
1. Denial of funding to attend the national surgical meeting while a
colleague here was funded. I was told I was not a 'team player';
2. Secret investigation without notice of the serious charges
(abandonment of a patient) or the date of the investigation which was
furtively conducted while I was away for two days. I was cleared and
told of the incident a week after the fact, namely that an
investigator had driven here 300 miles one-way from Bethesda without
bothering to contact the accused.
Such secret 'Star Chamber' proceeding is not what we have in mind
when we swear to defend "the Constitution of the United States
against all Enemies, Foreign and DOMESTIC." Civilian doctors
considering military service understand what is at stake here;
3. Disapproval of a request for of an age-waiver permitting
completion of 20 years on Active Duty, while I am forbidden Release
From Active Duty because of serving in a critical specialty;
4. Denial of an opportunity to work at a larger hospital.
5. Disapproval of a request to serve four more years on Active Duty.
In my judgment Dr. Gluck's hearing was biased because:
a. All the officers were subject to command influence. All should
have been civilians.
The Navy has consulted civilians at Harvard, New York, DC
General, and
Georgetown on other occasions to find doctors to hear cases. Why
was that not done, I
wonder.
a. In addition, three doctors on this panel were not peers, so this
hearing fails to qualify
as 'peer review' on two counts: It was biased and it was not
properly constituted as a
panel of peers.
I told Dr. Gluck of your advice to contact Senator Lieberman.
Apparently there is some difficulty getting through one of the
staffers, so I suggested Dr. Gluck call you for advice, much as you
have assisted Dr. Stephen Whitlock Smith and myself.
Thank you again.
Henry E. Butler III, M.D., FACS
Commander, Medical Corps, USNR
Sanders, Jane 206-553-7170, 202-225-3106 jane.sanders@mail.house.gov
Enclosure 2: Disregard For Standards of Conduct, Letter to Mrs.
Sanders and to
Senior Medical Corps Assignments Officer
Naval Hospital Camp Lejeune
North Carolina 28547
October 29, 2001
Dear Mrs. Sanders:
I took the liberty of forwarding Friday's letter to Captain Sandra
Yerkes, our Senior
Medical Corps Assignments Officer. Like Dr. McDermott and myself, she
is a
psychiatrist and keenly aware of the dangers of possible abuse of
same, as in the case
of Dr. S. W. Smith who was imprisoned on a military psychiatry ward
after reporting substandard care to an Inspector General. Dr. Smith
and I met with Congressman
McDermott in April, 1998 to discuss his case.
If my attempt to complete my Navy career fails, I will request
another Interservice
Transfer or resign my commission, which is what my family advises.
Unanswered
reprisal of this kind for participating in a supposedly "Full and
fair" hearing has a
chilling effect on retention and recruitment, as suggested some years
ago by Senator
Glenn in my wife's case of credentials tampering, and needs to be
prevented.
The best way to prevent such abuse is publicity--televised
Congressional hearings
showing several officers in white uniforms. I would be happy to be
among them. I
would like to make clear that the issue here is not the Navy, but the
abuse of the
Navy's ideals by a few individuals. The Navy is an honorable
organization. Reprisal
for objecting to Captain Ranck's illegal order not to talk to another
American citizen
is wrong, just as cheating at the Naval Academy is wrong, just as
defaming and
suspending Dr. Gluck is wrong. Only a few midshipmen cheated.
Similarly, most
officers would not commit reprisal. So, at issue is what leaders do
when they have to
discipline their own--that is the measure of leadership. If they
refuse to do the right
thing, then many of us will have to serve elsewhere.
As Oliver Wendell Holmes said, "A man must share the action and
passion of his time, at peril of being judged not to have lived."
Henry E. Butler III, M.D., FACS
Enclosure 3: Report of Fraud, Waste, Abuse to Congressman McDermott
Naval Hospital Camp Lejeune
North Carolina 28547
November 11, 2001
The Honorable James McDermott M.D.
United States House of Representatives
Washington, D.C. 20510
Dear Congressman McDermott:
Having witnessed what I believe to be violations of prohibitions
against fraud, waste,
and abuse, I respectfully request both DODIG and Congressional
investigations of the
treatment afforded Dr. Eric Gluck, USNR, of Groton, Connecticut, with
particular
attention to:
A. Possible conflicts of interest under the local Tri-Care contracts
with respect to Post Retirement Employment and Off-Duty Employment
(moonlighting), and,
B. Career protection for myself under Public Law 100-456, as amended,
written by
yourself and Senator Boxer.
I would be happy to travel to Washington at my expense to discuss
these matters.
I believe that Dr. Gluck's skill and potential contribution to the
health of patients covered
under Tri-Care have been wasted. He is a fine surgeon. I have
operated with him
approximately 12 times, perhaps more than any other Navy surgeon, and
would happily
have him operate on my family and myself. The loss of his services
may be costing the taxpayers over $500,000 per year. Both DOD IG and
GAO investigations are in order,
because more than toleration of abuse and waste are at issue: The
treatment afforded him
is demoralizing to other military surgeons. Recruitment and retention
are issues; Anti-
Semitism may be an issue in the serial apparent harassment afforded
his career as a civilian surgeon new to the Navy. This matter may be
a lesser version of the Dreyfus Case.
I also believe there has been reprisal against myself (See below) for
testifying on his behalf at a "Full and Fair" hearing last year. I
was declared not be a "team player" and was called a "bad officer" as
reported to my incoming CO. Captain Sandra Yerkes, the Navy's Senior
Medical Corps Assignments Officer, kindly approved my Request for Age
Waiver and informs me that the Assistant Secretary of the Navy did
likewise: I may yet be permitted to complete 20 years on Active Duty.
Therefore this "bad officer" will re-apply to serve the remaining 1.6
years beyond his present contract (Item 5, first letter) to
complete his career.
In the unlikely event of further apparent reprisal, such as another
rejection by my commanding officer or inequitable hardship
assignments after Captain Yerkes rotates to a new station next
summer, I will report per instruction of Mrs. J. Sanders to my
Representative to request investigation on my behalf.
Sincerely,
Henry E. Butler III, M.D. F.A.C.S.
Surgeon, Medical Corps, USNR
Enclosure 4 Reprisal Against A Witness At A 'Full and Fair' Hearing
I am a constituent from Westwood, stationed temporarily in North
Carolina while my spouse lives 211 miles away in Virginia. In July,
2000 Captain Sidney Ranck was the Deputy Commander at the Naval
Hospital in Camp Lejuene, N.C.; he was also my Rater for Fitness
Reports when he issued an illegal order that I not converse with Dr.
Eric Gluck, a surgeon in Groton, Connecticut who had asked me to
testify on his behalf at a "Full and Fair Hearing" as to his
competence. Captain Ranck said that the Groton Hospital Commander,
Captain Burkhart, had called the (former)Hospital Commander here,
Captain Thomas Cullison. When our legal officer, LCDR Andrew F. Blum
J.D.,
(Telephone 910-450-4980) advised me that Captain Rancks order was
not legal, I
asked for a meeting with him and Captain Cullison. The four of us
discussed the matter. Captain Cullison said it was all right to
talk to Dr. Gluck. However, approximately
one month later, I was denied routine funding to attend the premier
national surgical meeting while a colleague here was funded in the
usual fashion. The elected Chief of the Medical Staff, Dr. Kevin
Delahanty, when asked about the denial of routine funding designed to
keep doctors up to date, said that because I was not a team player,
the funding had been denied. He did not say how he arrived at this
opinion.
A second instance of reprisal occurred three months later. I
was accused of abandoning a patient and was secretly investigated
(without notice)--despite the fact that Captain Cullison had himself
not only observed me treating the patient in the ICU but had also
been introduced by myself to 5 members of her family at ~3:20 P.M. on
6 January 2001.
The secret investigator was Captain Michael Malanoski. He drove
300 miles one way here from Bethesda to spend two days while I was
out of town, never announcing that he had been here or spontaneously
offering to state his findings. Upon learning that he had paid me a
visit, I called him. The secret investigator is also our surgical
specialty advisor to the surgeon general. He said I had not
abandoned any patient and that there were no charges to address. I
told him I found the entire sequence disturbing and fundamentally un-
American, to quote Senator Boxer, as a secret trial without notice.
Notice is the barest element of due process.
Nonetheless, he told me that because of this 'trouble' with Captain
Cullison that I may not return to Portsmouth, Virginia where my wife
lives, because the above-sequence sets a 'bad example' for doctors-in-
training. I replied that if defending one's reputation or that of a
colleague is deemed unacceptable as a model for doctors in training,
then Captain Ranck's illegal gag order therefore will de facto be
allowed to stand and convey its 'chilling effect' on both the public
perception of military 'justice' and on the retention and recruitment
of doctors.
Intimidating a witness at a supposedly "Full and Fair" hearing
is in the best tradition of 'secret military tribunals' which we
claim to deplore in this country. The argument that defending the
rights of others sets a 'poor' example is patent: It is either bias
or a shill for wanting to divide the organization into a favored
inner cadre rarely given harsh duty, and an outer cluster of 'worker
bees' perpetually vulnerable to separation. It is, in a word, no
way to run the World's Finest Navy. The Officers' Commissioning
Oath is to "...defend the Constitution of the United States against
all enemies Foreign and DOMESTIC."
I respectfully request Congressional investigation/confirmation of
these matters (Enclosures 1-4) and corrective legislation to protect
physicians from libelous peer review, credentials reprisal,
harassment, and even confinement (Enclosures 5) so as to encourage
them to remain on Active Duty in a time of war (Enclosure 7). Should
private legislation be required to preserve the pay, position, and
pension of whistleblowers not otherwise protected by PL 100-456 as
amended, I respectfully request such legislation for others as well
as for myself.
I have been told (Enclosure 4) that I am a 'Bad Officer' because
of the 'trouble' engendered by supporting the due process rights
(Enclosure 6) of a colleague, that as a 'Bad Influence' on younger
doctors I may therefore not return to work at a hospital near
where my spouse and parent temporarily reside. For compassionate
reasons, I request to remain in my present assignment, if I am not to
be permitted to move to the Portsmouth Naval Hospital 100 yards from
where my spouse lives, until my mother there has died.
On a larger scale, Congressional hearings may be in order to see
whether the present Tri-Care law is a disincentive for military
doctors to be allowed to treat patients at all, because of costs to
the for-profit Tri-Care corporations with which the government has
contracted. Were these organizations non-for-profit, there would be
no ethical The incorporation of the 'HMO model' may create a conflict
of interest in which officers soon-to-retire are contracting with
private for-profit corporations (Humana, Aetna, Anthem, Cigna, etc.)
with which they seek employment following their retirement from
Active Duty. This may, de facto, be a kind of "Enron Medicine", with
multiple layers of self-serving bureaucratic waste which taxpayers
should not support.
Enclosure 5: Reprisal for reporting orders to abandon ER patients
This letter is a formal request for Whistleblower Protection for two
Active Duty Physicians in deployable specialties who have reported
being under medical credentials reprisal by certain elements of their
respective commands.
Whistleblower Protection Request Case # 1: Stephen Whitlock Smith,
MD, Lieutenant Colonel, Emergency and Internal Medicine Physician on
Active Duty with the US Army Medical Corps
Whistleblower Protection Request Case #2: Eric Gluck, MD, Lieutenant
Commander, Laparoscopic Surgeon on Active Duty with the US Navy
Medical Corps
Details follow
----------------------------------------------------------
30 January 2002
General Richard B. Myers
Chairman of the Joint Chiefs of Staff
The Pentagon
Washington, DC 20318-9999
Telephone 703-697-4272, FAX 703-697-8758
Subject: Could Wartime Retention of Army Doctors Be Harmed by
Credentials Reprisal of US Military Physicians in the Deployable
Specialties of Emergency Medicine and Surgery?
Joint Request for Whistleblower Protection for Two Active Duty
Physicians
Dear General Myers:
This letter is a formal request for Whistleblower Protection for two
Active Duty Physicians in deployable specialties who have reported
being under medical credentials reprisal by certain elements of their
respective commands.
Whistleblower Protection Request Case # 1: Stephen Whitlock Smith,
MD, Lieutenant Colonel, Emergency and Internal Medicine Physician on
Active Duty with the US Army Medical Corps
Sir, you already know my case from my correspondence to you of 8
January 2002, and todays report is my update containing new
evidence that apparent violations of Regulation and Statute have
indeed occurred.
In summary, I am a Vietnam Conflict and Desert Storm Veteran. I
received all of my medical training from the US Army: Medical School
Army Scholarship at George Washington University, Residency Training
in Internal Medicine at Fort Gordon, and Residency Training in
Emergency Medicine at Madigan Army Medical Center, Fort Lewis,
Washington, where I am presently assigned.
I was Major General Kevin Kiley's Chief of Emergency Medicine at
Landstuhl and reported to him and others the following dangers to our
emergency patients:
1) Orders by his subordinates in his name for physicians to
abandon care of critically ill patients
2) Repeated maintenance failures of beeper systems contributing
to the unnecessary brain injury of a child
3) Repeated maintenance failures of obsolete ambulances, while
new ambulances were being diverted to the black market
4) Later, the death of a two-week-old female infant left to die
needlessly against the request of Congressman Henry Hyde (on file
with Congressman Dicks and Senator Thurmonds offices)
Department of Defense Inspector General Report number 67218
corroborated my report of cases to General Kiley. The findings blamed
two officers under General Kiley's command for the problem (sentinel)
cases, and I believe that these officers did not properly inform
General Kiley of the facts.
I received a Meritorious Service Medal from Major General Kevin Kiley
for my courage in reporting these tragic cases. I learned
tremendously after my courageous act of filing a formal Inspector
General complaint on behalf of General Kiley's command at Landstuhl.
I believe that my actions protected him and his command and the
patients from any more sentinel events in that TriCare Region, in
ways that are even now being realized.
The interrogations resulting from my original Inspector General
report caused some elements of the past Madigan Army Medical Center
Command great anger towards me for being the Army whistleblower
responsible. Fortunately for my family and me I won the resulting
credentials reprisal case that the past Madigan Commander had
launched against me simultaneously with the start of the Department
of Defense Inspector Generals entry into the Landstuhl case.
The tone changed markedly with Madigans change of commanders. I was
awarded Category IV Unrestricted Credentials by the current Madigan
Army Medical Center Command and was guaranteed a special rating chain
to preserve my Whistleblower Protection. Certain errors in my
professional files may have occurred during the same time period as
the Landstuhl Whistleblower cases were being reported, and the
current Madigan Command promised to honor my Privacy Act rights to
correct such errors. Past Army Surgeon General Lieutenant General Ron
Blanck respected my Privacy Act and Whistleblower Protection rights
by expunging officially some dozens of documents which had been
placed unlawfully into my Madigan Credentials records, some by
persons unknown or unacknowledged.
During my Privacy Act research, I found that my wartime service
records from Vietnam and Desert Storm were missing from various
records, and I appealed recently to the same Major General Kevin
Kiley, my former Commander and now the Chief of Medical Corps Branch,
for assistance. General Kiley has replied that he will assist me.
Meanwhile, a marked and unwelcome alteration to my Medical
Credentials File maintained at Madigan Army Medical Center was
detected on 14 January 2002. An apparently spurious document was on
top of two evaluations of my credentials performance by two past
supervisors, while any evaluations by my current official
supervisors were missing. The document in question resembles a DA
Form 5374-R Performance Assessment. It appears to bear the signature
block of an officer very junior to myself who is not in my rating
chain, and shows the period covered as 16 July 1999 (one year before
the junior officer in question even arrived at Madigan) through 15
July 2001. It shows an X but without the required initials, marking
UNSATISFACTORY boxes under the following categories: emotional
stability, professional conduct, ethical conduct, leadership, and
participation. My title as Acute Care Physician for Department of
Medicine is left unmentioned, and the boilerplate insertion in the
Comments section reminding of the requirement that unsatisfactory
areas should be addressed is left unanswered and blank. There are
other variations that make the document stand out as not lawfully
constituted, not authentic. I met with COL Virgil Deal, Commander of
Madigan, who denied any previous knowledge of the document in
question.
Whoever placed such a document in my credentials file, in the Page
One position on top of other evaluations of me that I recognized as
authentic, did so in a way sure to embarrass the Command if there
were an inspection. Moreover, an unsuspecting credentials clerk might
possibly read the form over the phone to my future prospective
employers.
I respectfully request that my Madigan Army Medical Center
Credentials Records be rid of any unlawful documents and restored to
the Category IV Unrestricted Credentials as promised by the current
Madigan Command in response to my lawful request that the Privacy
Act, Whistleblower Protection, and all other guarantees of
Regulation, Directive, and Law.
Whistleblower Protection Request Case #2: Eric Gluck, MD, Lieutenant
Commander, Laparoscopic Surgeon on Active Duty with the US Navy
Medical Corps
Dr. Eric Gluck, a Jewish active duty Navy Laparoscopic surgeon with
affiliation to Yale Medical School, was doing Laparoscopic surgery at
Groton Naval Hospital for 3 years until 2000, and saved between 2 and
4 million TriCare dollars compared to what civilian physicians would
have charged TriCare to perform traditional (non-Laparoscopic)
surgery. Previous Navy surgeons assigned to Groton did not have the
years of specialty laparoscopic training that Dr. Gluck has. The Navy
had agreed to pay Dr. Gluck a $40,000 yearly bonus because the
laparoscopic surgical training allows Navy hospital to treat more
complicated cases in house. This saves the US Government money.
Reportedly, civilian surgeons at Backus Hospital (Groton,
Connecticut) objected to their loss of millions of dollars of TriCare
income because an active duty Naval surgeon was doing laparoscopic
surgery in house at the Naval Hospital, instead of referring the
business to them.
Reportedly, the Commander of Groton Naval Hospital suspended Dr.
Gluck's hospital privileges for more than one year, apparently bowing
to secret pressure from the civilian surgeons. There is even
documentary evidence provided that the Commander ordered the
interception of a US Postal Service letter addressed to Dr. Gluck
with the apparent motive of causing a lapse in his hospital
privileges at Backus Hospital when the letter was delayed until after
the credentials renewal expiration date.
Documents are attached which appear to corroborate that the Groton
Naval Hospital Inspector General LCDR Helmholz found many violations
of Naval Regulations in the way that Dr. Gluck's medical privileges
were removed. (See attached Bad Faith Peer Review Ignores Due Process
Right Groton Naval Hospital Inspector General Report 8 May 2001.)
Reportedly, the Groton Naval Hospital Commander suppressed the
Inspector General report, and apparently disobeyed its direction,
refusing to allow Dr. Gluck to volunteer his surgical services in
support of the War on Terrorism and is reportedly now threatening Dr.
Gluck with Court-Martial on the basis of an anonymous complaint which
remains mysterious. Dr. Gluck remains on Active Duty at Groton, but
the Commander is still apparently refusing to restore his full
credentials and his $40,000 Professional Pay.
Apparent misinformation was provided to Dr. Glucks civilian attorney
by the Command:
1) An apparent promise that the civilian attorneys fees would
be at least partially paid by the Navy, and
2) A reported communication to the same attorney in the recent
past that Dr. Gluck had indeed been paid his Professional Pay, while
such pay is in fact still being withheld. The apparent reason for
these items of misinformation supplied to Dr. Glucks attorney was
allegedly to produce disharmony and financial disagreement between
Dr. Gluck and his capable civilian attorney. This has apparently lead
to a dispute in which the attorney is suing Dr. Gluck for
approximately $100,000 on 4 February 2002.
A summary of issues is the following:
1) Alleged anti-Semitism
2) Alleged fraud, waste, and abuse, and reprisal against a Naval
surgeon for saving the US Government more than 2 million dollars
3) Alleged suppression of an Inspector General report
4) Alleged Continuing reprisal against Dr. Gluck, by denial of
full credentials and $40,000 yearly Professional Pay, because Dr.
Gluck saved more than 2 million dollars of the taxpayer's money in
house
5) Alleged false information supplied by Dr. Glucks Command to
his civilian attorney to reduce Dr. Glucks credibility with his
capable attorney
SUMMARY: Waste, Fraud, and Abuse of Deployable Medical Personnel
Resources
In the days before 11 September 2001, past Army Surgeon General Ron
Blanck estimated that numbers of Army physicians were below 60% of
that required to maintain readiness. The specialty training that the
US Government has provided to each healthcare provider in deployable
specialties like Emergency Medicine and Surgery has cost US taxpayers
many tens and hundreds of thousands of dollars over many years. The
two cases chronicled in this report indicate that waste, fraud, and
abuse in the form of meaningless credentials reprisal is being
perpetrated upon military physicians who are utilizing their
specialty training to make or recommend quality improvements within
the purview of their expertise. Moreover, these happenings involve
apparent violations of Whistleblower Protection, Regulations,
Department of Defense Directives, Standards of the Joint Commission
on Accreditation of Healthcare Organizations, and Statutes, all of
which were established to prevent the waste, fraud, and abuse that
has been described. Why would physicians with wartime specialty
training stay in the military as a career if credentials reprisal
were unopposed by law.
As a proud member of your American military organization, and as a
Veteran of both the Vietnam Conflict and the Gulf War, I respectfully
request your oversight of investigation and your consideration of
redress of these wrongs.
Points of contact are as follows:
Dr. Glucks home phone 860-448-0287
Groton Inspector General LTCR Helmholz 860-694-4123
Respectfully,
Stephen Whitlock Smith, MD
FACEP, FACP (elected 1991, 1994)
Lieutenant Colonel, US Army Medical Corps
Department of Medicine
Madigan Army Medical Center, Fort Lewis
Tacoma, Washington 98431
253-968-3528
Stephen.smith@nw.amedd.army.mil
=========
==============0000000000000000
6. Due Process (2 items)
i) "SHOULD DUE PROCESS BE PART OF HOSPITAL PEER REVIEW?
(Here is an editorial in the Southern Medical Journal, March, 1993
Volume 86, Number 3, pages 368-9, by Scott E. Segall, JD, Judge, El
Paso Criminal Law Magistrate Court and William Pearl, MD, William
Beaumont Medical Center, El Paso. It might also read,
"Should ALL Medical Peer Review Respect Due Process?")
-------
"SHOULD DUE PROCESS BE PART OF HOSPITAL PEER REVIEW?
Medical peer review is the process by which a committee of physicians
investigates the medical care rendered by a colleague in order to
determine whether accepted standards of care have been met. The
professional or personal conduct of a physician may also be
investigated. If the committee finds that the physician departed from
accepted standards, it may recommend limiting or terminating the
physician's privileges at that institution. If the physician's
privileges are restricted for more than 30 days, federal law requires
the peer review committee to report that fact to the National
Practitioner Data Bank (1).
There is no federal statute that requires peer review committees to
observe due process, which the Supreme Court has defined as (1)
giving written notice of the actions contemplated, (2) convening a
hearing, (3) allowing both sides to present evidence at the hearing,
and (4) having an independent adjudicator (2). Prior to the Health
Care Quality Improvement Act of 1986 (HCQIA) (3), the effects of an
adverse peer review finding were restricted to the hospital involved.
Because the HCQIA mandates the reporting of disciplinary actions of
peer review committees to the National Practitioner Data Bank,
such a report could harm a physician's career throughout the nation
(1-4).
Medical peer review is usually based on the screening of medical
records, which places physicians with poor record-keeping skills at a
disadvantage, and ignores the fact that medical records are often a
poor indicator of the quality of care (5). Additionally, there is
no requirement that the physician be given notice and an opportunity
to be heard, and there is no requirement that members of the peer
review committee be unbiased. The HCQIA recommends that the physician
should get notice of the allegations, time to prepare for a hearing,
a list of witnesses, the right to legal counsel, and an impartial
fact finder. However, the act concludes "A professional review body's
failure to meet the conditions described in this subsection shall
not, in itself, constitute failure to meet the standards of this
act)." This failure of the HCQIA to require due process calls into
question the fundamental fairness of the medical peer review system.
The reason that due process should be a part of any fact-finding
endeavor was stated by Justice Goldberg in SILVER v NEW YORK STOCK
EXCHANGE:
'Experience teaches...that the affording of procedural safeguards,
which by their nature serve to illuminate the underlying facts, in
itself often operates to prevent erroneous decisions on the merits
from occurring (7).'
The purpose of requiring due process is to ensure that the actions
taken are not arbitrary, capricious, or unreasonable. Where there is
no due process, the system invites abuse (8).
Peer review in its current form fails to protect an investigated
physician from committee members having an economic or personal bias.
Economic bias occurs when a committee member has a financial interest
in the outcome. If the challenged physician is a partner or
associate, any error that he may have made is likely to be considered
to have been unavoidable. On the other hand, peer review has already
been used to force a competing physician out of practice (9). Such
economic bias denies due process (10). The United States Supreme
Court struck down a decision from Ohio's municipal court system in
which the judge was partly paid from the fines he assessed. The Court
found that the system gave an incentive to rule one way rather than
the other (10).
Personal bias is inevitable when coworkers judge each other. Some
people are very likable, and others illuminate the room by their
absence.
Federal law prohibits a federal judge from hearing cases in which his
impartiality might reasonably be questioned or in which he has a
financial interest (11). The same standards should apply to member of
a peer review committee. The potential for abuse when these suggested
procedures are not followed would indicate the need for mandatory due
process.
Due process, which is designed to limit these abuses, is not required
by the Constitution of the United States unless there is government
action that affects a liberty or property right (12,13). The case of
PAUL v DAVIS illustrates the legal meaning of property rights as
applied to employment (14). The police labeled the plaintiff as a
shoplifter and advised local businesses to watch him carefully. The
plaintiff sued, claiming that the government was injuring his
reputation without due process. The Supreme Court ruled against the
plaintiff, but stated that should there be an effect on employment,
then such injury would invoke the constitutional protection (14).
The sole reason for reporting the results of peer reviews is to
restrict the practices of incompetent physicians. Congress cited the
following as the very reason for the act:
'There is a national need to restrict the ability of incompetent
physicians to move from state to state without disclosure or
discovery of the physicians'...incompetent performance (15).'
The right to practice medicine without a governmental agency
erroneously reporting that a physician has been deficient in his
actions is a constitutional property right. Rights, even
constitutional rights, can be waived by express agreement, or by
the failure to assert those rights. State institutions, however, may
not make waiver of a constitutional right a condition for employment
(16).
In 1986, New York State enacted a system of physician discipline that
includes a hearing presided over by an administrative law judge, to
ensure due process (17,18). Although this system provides due
process, it has the glaring problem of giving control of hospital
privileges to lawyers. A far better solution is for peer review
committees to be required to observe due process. Lawyers and other
non-physicians may have a role as consultants, but should not be
voting committee members.
The effects of an adverse peer review decision are no longer limited
to the relationship between a physician and a hospital. The decision
becomes part of the National Practitioner Data Bank. Medical peer
review must provide physicians the protections of due process.
Scott E. Segall, JD
Judge, El Paso Criminal Law Magistrate Court
William Pearl, MD
William Beaumont Army Medical Center
Box 70614
El Paso, Texas 79920
The opinions or assertions herein are the private views of the
authors and are not to be construed as official or as reflecting the
views of the Department of the Army or the Department of Defense.
References
1. Health Care Quality Improvement Act of 1986, 42 USC &11133
2. VITEK v JONES, 445 US 480 (1980)
3. Health Care Quality Improvement Act of 1986, 42 USC &11101
4. Iglehart JK: Congress moves to bolster peer review: the health
care quality improvement act of 1986. N Eng J Med 1987; 316:960-964
5. Steffen GE: Quality medical care, a definition. JAMA 1988; 260:56-
61
6. Health Care Quality Improvement Act of 1986, 42USC &11112(b)
7. SILVER v NEW YORK STOCK EXCHANGE, 373 US 341(1963)
8. BOARD OF REGENTS v ROTH, 408 US 564 (1972)
9. Green R: Hospital peer review in a hostile environment. J Med
Assoc Ga 1987; 76:138-140
10. TUMEY v OHIO, 273 US510 (1927)
11. 28 USC $455
12. US Constitution, Amend XIV
13. Board of Regents v. Roth, 408 US 564 (1972)
14. Paul v Davis, 424 US 693 (1976)
15. 42 USC $11101(2)
16. Rutan v Republican Party of Illinois, 110 SC: 2729 (1990)
17. New York State Laws of 1986, Chapter 266
18. O'Keefe DE, Conway GL: Physician discipline and
professional conduct. NY State J Med 1988; 88:146-148
ii)
Part 12: Due Process/Majority Rule = Non Review
by Robert V. West, MD JD FAAEM
Modern peer review is a spin off from the obligatory quality
assurance and utilization reviews that are attendant to participation
in payments under the Social Security Act (see 42 U.S.C. 1320(c)).
Prior to the federal minimum standards for peer review, which
Congress enacted in 1986 granting qualified immunity to physicians
who participated as the judge and jury, most physicians were
reluctant to review and critique the work of their colleagues.
Furthermore, the physician being reviewed must be afforded due
process according to the protections granted by the hospitals
medical staff bylaws.
Most physician peer review issues in a hospital involve questions of
privileges and credentials. From the standpoint of both the physician
being reviewed and the peer review participants, the nucleus around
which the process revolves is the formal medical staff hearing. If
the peer review process is conducted according to the medical staff
bylaws, if the bylaws are consistent with the due process
requirements of state and federal law, and if the finding of the
hearing panel is consistent with a reasonable belief that quality
patient care is the issue, the physician will have little chance to
obtain a reversal of a decision adverse to his interest via a court
challenge. If the court finds that the physician has been afforded
due process, (i.e., the foregoing standards have been met), then the
court will leave to the professionals, (i.e., fellow physicians), the
professional judgments regarding quality of care. On the other hand,
if the court finds the peer review process was conducted in an
arbitrary and capricious manner or if it finds objective evidence
that issues other than purely professional ones relating to the
delivery of quality care were the basis for the decision (e.g., turf
battles), then the court may not only find for the physician who was
being reviewed, but it may also award that physician punitive
damages. Therefore, it is incumbent upon all physicians involved in
the peer review process to understand all its phases and the forces
which affect it.
The pre-hearing activity in peer review is investigative and
informal. It may be triggered by any complaint or suspicion of which
the hospital administration or its medical staff becomes aware. That
investigative period may last for months during which time records
will be reviewed by personnel associated with the hospital and
possibly by experts outside the hospital. The physician being
reviewed may be unaware of that early activity; nevertheless, the
medical staff has not only been actively reviewing the physicians
performance, but it may also have had significant legal counsel along
the way, likely provided by hospital attorneys. Often the first
indication a physician receives that an investigation is being
conducted is receipt of an invitation to appear before an "action"
committee for the purpose of explaining the physicians management of
one or more patients.
Depending on the bylaws the physician may not be permitted to have an
attorney present during that proceeding. It is important to
understand that during an appearance before the "action" committee
the physician being reviewed may not be entitled to examine the
evidence being considered and is often not entitled to present
evidence other than oral explanations. There are "action" committee
procedures in place which prevent the physician being reviewed from
presenting office records or other supporting medical evidence which
exists outside the hospital medical records. The recommendations of
the "action" committee will be transmitted through the credentialing
process and ultimately a decision about the physicians hospital
practice will be made by some entity, often the executive committee
of the medical staff, sometimes the board of trustees of the
hospital.
If restrictions are placed on a physicians practice, the physician
will have an opportunity to appear before the hearing committee. It
is only at this time, according to most bylaws and in keeping with
due process, that the physician is entitled to receive documentation
of the evidence upon which the decision to restrict the physicians
practice was made and which will be considered during the hearing.
That evidence can include transcripts of committee records and
reports of experts.
At this point it is helpful to identify the forces that are
interacting in the peer review process. The process becomes
relatively more public as a result of the proceedings of the "action"
committee. Members of the medical staff and hospital personnel are
more acutely aware of the questions being raised. The leaders of the
medical staff and the hospital administration have become united by
the process. The administration has provided administrative and legal
support; the physician leadership has provided professional judgment.
Frequently the medical staff becomes polarized between supporters of
the leadership and supporters of the physician whose practice has
been restricted. The hospital administration is interested in
avoiding the perception that it is not acting in the best interest of
future patients. A "fault line" of confrontation has been created.
Most important is to realize the fine line drawn between exclusion
from a roster and revocation of your hospital privileges. In
California, the minority rule under Fenton, removal from a roster
elevates your claim to a revocation of privileges. In most states
(majority rule), your hospital privileges may be left intact denying
you the option of peer review, but you can be removed from the
schedule at the discretion of the "closed" system contract manager.
Similarly, in most states employment at will means you can be left
off the schedule for a good reason, a bad reason, or no reason at
all. Only if your privileges are revoked, can a physician under the
hospitals mandatory compliance with federal minimum standards invoke
the quasi-judicial powers of the hospital-based peer review committee
as it relates to the granting or denial of hospital privileges. The
only legal recourse you have in a non-review state as a safeguard to
this process is if you can allege and prove tortious activity on the
part of the hospital peer review panel. This challenge must allege
malice as to the motives of the peer review panel in order to
overcome their qualified immunity.
© Copyright 1997-2000 American Academy of Emergency Medicine
All rights reserved
----------------------------------------------------------------------
Enclosure 7: February 2001 Letters To The Editor of US Medicine
Military Physicians Leave For A Plethora Of Reasons
I have been reading several of the articles in your publication
concerning military physician retention. I have recent experience
with military medicine and find much of what has been written very
accurate.
I do wish to add some things:
During my four year stint in the military I did not witness one
single physician with the rank of O-4 or below remain in the military
beyond their initial obligation for HPSP or USUHS. Thus, from what I
have seen, military physician retention at the rank of O-4 and below
is zero. This goes for all specialties across the board.
The only physicians I have seen stay are those in ranks of O-5 and
above who seem "stuck" in the system for whatever reason. But, they
are certainly in the minority and are mostly in administrative non-
clinical jobs.
This all combines to produce a practicing military medical corps that
is consistently youthful and relatively inexperienced.
Why this severe military physician retention problem? Obviously, the
military is not a good place to practice medicine. Here are some
contributing factors:
Low Pay and Difficult Working Conditions. Why continue to work for
the federal government, [which] is consistently demanding more and
more from physicians, when one can go to the private sector and still
work as hard but be much better compensated for it?
This is true for all specialties and is a "no-brainer."
Inadequate Retirement Plan. The retirement plan is not a good deal
for physicians. This is because it is based upon "base pay" only, and
is not based upon the total income.
Too much Managed Care. The military now seems to have a love affair
with managed care, and has forced it upon its physicians. Unless one
shares this passion for managed care, practicing medicine in the
military, especially as a "PCM," is demanding, difficult and
frustrating.
This is mainly because one does not have the autonomy to limit the
amount of HMO patients in his or her practice. Military medicine (in
the MTF) is now 100 per cent HMO.
One primary care physician who recently left the military described
the experience as "hellish" because of this. This leads to the next
reason.
Lack of Autonomy. All physicians place a high degree of value upon
this, whether they are willing to admit it or not. Most, if not all,
physicians are strong-willed, independent people or they would not
have the "right stuff" to get into and through the rigors of medical
school and residency. (If the military allowed them a residencywhich
is a whole other problem.)
Military physicians, simply because of the organization they are in,
have less autonomy than any others. Granted, this is given up when
one chooses to "sign on the dotted line" and accept money from the
government for medical education. But as soon as freedom can be
regained, most take advantage of the opportunity.
However just because one "belongs" to the military does not mean that
there needs to be as much micromanagement of military medical
practice that there now seems to be. This micromanagement is a direct
result of total "managed care."
Loss of Traditional, "Old-Fashioned" Medical Values. Military
medicine now seems to be concerned more with numbers such
as "metrics" and "productivity." Whatever happened to the patient?
The patient seems to have become lost in all this. In fact, the
patient no longer exists at all; this is evidenced by the fact that
the patient has become a "customer."
Pardon me, but a "customer" is someone who buys a hamburger from
McDonalds. A "patient" is someone who seeks the help of a physician.
But wait, the physician has been lost also, the physician no longer
exists either but is now a "provider." So, we
have "customers" "accessing" "providers." This doesnt sound like
medicine at all. Sounds more like business doesnt it?
So, there we have it folks, military medicine is now all about
business. What is business all about? MONEY. So, what is military
medicine all about now? MONEY.
Yes, private practice is about earning money also, but it is not the
prime focus. Believe it or not, most physicians I know did go to
medical school because they wanted to help people. People are what is
most important in their lives, not making money. On the other hand,
the prime focus of military healthcare as a whole now seems to be
centered around money.
What does this have to do with physician retention? Practicing
medicine in such an overly cost-conscious environment is often very
difficult and frustrating because of the limitations that are imposed
in an effort to preserve that which is valued the most: money.
What limitations? Limited pharmacy formularies, strict referral
criteria, and the many other limitations imposed by managed care.
Career Progression Leads Out of Clinical Medicine. In the military,
achieving higher rank (and thus higher pay), almost certainly means
leaving the practice of medicine for a "desk job." This is a good
thing for physicians who dont want to practice medicine anymore, for
whatever reason. But for most who want to continue the full time
practice of medicine AND experience career progression, there is only
one direction to go: out.
Promotion Dependent upon Unnecessary Non-Applicable Professional
Military Education. In the military, physicians cannot be promoted
beyond the rank of O-4 without "Professional Military Education."
This "PME" is not geared toward medical officers in any way shape or
form, but rather is totally oriented toward line officers. For a
physician who wants to become a line officer, this is probably a
necessary thing, but how many of those are there?
Furthermore, I doubt we will ever see a medical officer in command of
a line organization.
Little or No Professional Development. The military continues to deny
medical school graduates the opportunity to obtain a seamless medical
education from medical school through residency before entering
practice. The military has come under congressional heat for this and
deserves every bit of it. Hopefully, Congress will keep the pressure
on to put an end to this archaic practice. No need is so great as to
justify this. All too often, these unfortunate physicians must serve
out their entire time with incomplete medical training, because the
military
then refuses to provide them with the additional education they need
and ask for, or they are so disillusioned and disappointed with their
military medical experience (after what has happened to them) that
they just want to get it behind them. This goes for GMOs and GMO-
flight surgeons.
Speaking of GMO-flight surgeons, isnt it baffling that its pilots
among the militarys most valuable human assetsare being cared for
by its least trained physicians? Go figure.
This list is by no means exhaustive. I could go on and on, but I
think most would agree that I have hit the big ones. Will anything
be done to correct all this and thus the physician retention problem?
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