Fasten your seat belt.
Opinion by Consumer Advocate Tim Bolen
Yes, this story about the American Association of Physicians and Surgeons (AAPS) chewing up the Texas Medical Board in a Federal Appeals Court is already all over the internet. However, not one of the stories tell you what’s going on behind the scenes. And, that’s where the action is.
Now, it’s very clear that AAPS sued the Texas Medical Board a while back, in Federal Court, making some very specific allegations – but – the case didn’t attract much attention, because, you know, lawsuits happen all of the time – right?
Wrong. This case was a sleeper. In other words, the strategy, right from the start was to low-profile it. The fact is this case is a bombshell, designed to rip the quackbuster conspiracy from its roots, and spray Roundup on the stump. This case is converging quickly with the Doctor’s Data v Stephen Barrett Federal Court case.
What? The two cases are related?
Right about now the quackbusters are probably buying Kaopectate by the case. Certain of them are out clothes-shopping, buying a larger pant size to cover up the constant wearing of Depends. Here’s why…
First, read this summary language from the Appeals Court Decision….
The Association of American Physician and Surgeons (“AAPS”) sued the Texas State Board of Medical Examiners (“the Board”) under 42 U.S.C. § 1983 for declaratory and injunctive relief against alleged constitutional violations including the Board’s use of anonymous complaints and retaliatory actions against physicians. The district court dismissed the case based on AAPS’s lack of standing, noting an absence of “Fifth Circuit authority directly on point for the types of claims raised in this cause.” Weighing in on this issue, we conclude that AAPS has standing to bring this suit on behalf of its members. The judgment is therefore vacated and the case remanded for further proceedings.
Then, read the case description from the Appeal…
“AAPS sued the Board on behalf of its members for what it describes as pervasive and continuing violations of members’ constitutional rights. AAPS alleged first that the Board manipulated anonymous complaints. Illustratively, Kalafut targeted physicians using anonymous complaints filed by her husband, and anonymous complaints allegedly were filed by a New York insurance company seeking to avoid paying a physician for claims.
Second, AAPS alleged that the Board knew that the former chairman of its Disciplinary Process Review Committee, Keith Miller, was operating with a significant conflict of interest, but it took no corrective action and failed to disclose the conflict to the public or the physicians subject to discipline. Dr. Miller was allegedly an expert witness for plaintiffs in up to fifty malpractice cases during his tenure as chair of the committee and generated business for himself as an expert by improperly disciplining physicians.
Third, AAPS alleged that the Board arbitrarily rejected a decision in favor of a doctor by an administrative law judge from the State Office of Administrative Hearings, and then issued a sanction that damaged the physician’s reputation. Fourth, AAPS asserted that the Board violated AAPS members’ privacy by releasing unproven facts and records concerning disciplinary cases.
Finally, AAPS alleged that the Board has retaliated against physicians who have complained about the Board by subjecting them to disciplinary proceedings and derogatory public comments. AAPS alleged violations of the confrontation clause and the due process, equal protection, and free speech provisions of the Constitution, and violation of federal statutory privacy requirements.”
So, where were we, and what happens next…
Andrew Schlafly, the attorney for AAPS had Deposed two key witnesses related to the lawsuit; Keith Miller MD, mentioned above, and the doctor husband of the Texas Board President Roberta Kalafut. It wasn’t going well for the Board. Then Andy demanded specific Discovery information of the Board – and the Board went into orbit, realizing, I think, that the end was very near. The Board filed a Motion to Dismiss the case, claiming AAPS had no standing to sue – and the Judge agreed. The 5th District Appeals Court, as we noticed, Reversed the Judge.
The two Depositions were VERY revealing. Very, very revealing.
So now, probably in mid-January “Discovery” in the case will resume. Information will be demanded that the Texas Medical Board has hidden for a very long time – and they are going to have to turn it over, like it or not.
And, that’s when the fun begins. Why?
Because the Texas Medical Board has relied on the Anonymous Complaint format to justify spurious attacks on doctors. AAPS will simply demand two things for sure: (1) copies of every complaint filed against its members, and (2) copies of every complaint filed against EVERY MD in the State for the last five years.
When this info is provided, I suspect, and the Court will demand it, several things will happen, one of which will be the convergence of the two Federal Court cases.
Why will this converge the two Federal Court cases? Because we already know, for instance, that Stephen Barrett, himself, filed about five separate Anonymous Complaints against Jesus Caquias MD, mentioned in the Doctor’s Data v Stephen Barrett Federal Court case, and offered himself as an expert witness against Caquias. More, bobbie baratz, Barrett’s buddy, and president of the NCAHF, was the ONLY witness against William Rea MD, the Doctor who had six anonymous complaints filed against him by a New York insurance company who didn’t want to pay him.
More – when the AAPS gets copies of the complaints filed against EVERY doctor in Texas all they have to do is send a copy of that complaint to the Doctor victim with a questionnaire – and the fur is going to fly – with a major scandal in Texas that’s NOT going to settle down for a very long time.
If you haven’t read the Yahoo story on this, read it now..
And, stay tuned. There is more coming.
Tim Bolen – Consumer Advocate