Opinion by Consumer Advocate Tim Bolen
Every entity develops a personality, and a life, of its own. Public agencies are no exception. Sometimes an entity develops so negatively that there is simply no point in saving it. There is virtually nothing worth keeping. The Maryland Board of Physicians is one of those entities.
The problem is that every State needs to regulate certain kinds of health professionals – specifically those that, because of their offerings, can seriously damage consumers. But sometimes, as in the case of the Maryland Board of Physicians the seeming solution becomes worse than the problems it is there to prevent.
In the case of the Maryland Board of Physicians there has simply been an organized misuse of a public agency by an interest group, and the Maryland legislature is attempting, through a process, to rein in that group, and bring back honesty, integrity, efficiency, and common sense to a process.
Is it working?
Maybe. Maybe not.
What’s REALLY happening in Maryland…
Let’s start with a nutshell.
On May 23rd, 2012 the Maryland Board of Physicians held its regular monthly meeting divided into two parts: Open and Closed sessions.
In Open session, during the May meeting, the Board approved the licensing of several hundred health care professionals, gave the new Executive Director a plaque from the Federation of State Medical Boards, issued a contract for services to the University of Maryland to study the Board, began the process of training Medical Board members to work faster, and began to deal with Sunset Review recommendations
Closed session, as you will see below, lasted four hours and twenty minutes (260 minutes total), and during that period the Board decided the fate of thirty four (34) licensees under its control, devoting a full eight minutes and fourteen seconds, on average, to each case.
Eight minutes and fourteen seconds. Each.
The last time I looked an MD devoted at least four years to University, four more to Medical School, three years of Internship, two more for Board Specialty, and performed as required, constant CMEs for the length of their career. In short, an MD pours his or her life into their practice so that, in Maryland, an appointed Board of Physicians (people who have nothing else to do in their lives) can disturb their own comfortable month with the onerous task (sarcasm intended) of deciding the future of the medical professional unlucky enough to be called before them.
And each victim gets their full attention for eight minutes and fourteen seconds.
Below is an excerpt from those example meeting minutes.
CLOSED SESSION: “Pursuant to Maryland State Government Annotated §10-501 et. seq., on a motion made by Ms. Contee, and seconded by Mr. Rose, the Board unanimously voted to close its meeting on May 23, 2012 at 9:40 AM, in rooms 108/109 for the purpose of complying with the Maryland Medical Practice Act that prevents public disclosures about particular proceedings or matters. Pursuant to Md. Hth. Occ. Ann. 14-411 (a) and (b), the Board is prohibited from disclosing any information contained in a proceeding record or file of the Board”
SUMMARY OF CLOSED SESSION:
There were nineteen cases presented to the Board for charging. There was one case for vote to charge and summarily suspend. There was one case for return to Board. There were two cases for notice of intent to deny. There was one case for Board vote to issue an order to show cause. There was one case for petition for termination of suspension. There was one case for petition for reinstatement. There was one case before the board for consideration of a cease and desist order. There were three cases for ratification of consent orders. There was one case for ratification of letter of permanent surrender. There was one case for board vote for summary suspension. There were three exceptions hearings. There was one post deprivation hearing. (total of thirty four).
Eight minutes and fourteen seconds. Each.
Let’s look at this…
At the May 23, 2012 meeting, the very lives of thirty four health professionals in Maryland were decided , if we think about it, by a process that simply cannot work. Cases, involving the total future of health professionals, simply cannot be reviewed in eight minutes and fourteen seconds.
If you are a licensed health professional in Maryland there is absolutely nothing amusing about the actuality of the operation of the Maryland Board of Physicians. Nothing at all.
And, maybe its not going to get any better.
Wait a minute – Isn’t there an investigation of the Board going on? Instigated by the Maryland legislature?
Yes, there is. But, the Board went out and got a so-called “independent” study, and they are pushing the results of that through, hoping to mollify, next January 2013, the Senate and House legislative committees that control the Sunset Review process.
Are they fixing the real problems of the Board?
Nope – its all like whitewashing a fence. Simply painting over the rot. Hiding the insect infestation. Hoping a prospective buyer won’t look too closely.
Worse, they are streamlining the process, making it easier for the board to handle WAY MORE CASES per month. Just think how efficient they’d be if they were able to reduce their examination time for each case down to under three minutes. Maybe under two minutes?
In short, if the Board has its way, after this so called Sunset Review process is finished, they will be able to screw more health professionals faster, totally eliminating the nuisance of legally required “Due Process” for Doctors, and other health professionals, under its view.
Why would the current Board want this? Because the Board members, prosecutors, and staff attend, and take seriously, the prosecution guidelines laid down by the Federation of State Medical Boards (FSMB) at their annual meetings. The FSMB uses the statistics outlined every year by Sidney Wolfe’s Public Citizen annual report called “Public Citizen’s Health Research Group Ranking of the Rate of State Medical Boards’ Serious Disciplinary Actions, 2009-2011.”
Public Citizen’s annual report rates Medical Boards against each other, numbering them from one (1) to fifty-one (51) depending on the number of successful prosecutions using a “so many prosecutions per thousand doctors” formula. This highly touted, but totally ludicrous, guideline forces Medical Boards to prosecute, not actual bad doctors, but anyone and everyone for any reason – just to get the numbers up. If you don’t get your numbers up Public Citizen writes to the Governor of your State.
And that means that there is an unwritten, unspoken, quota system.
When this happens all the rules go out the window and medical boards become rubber stamp operations for prosecution cabals. And that’s what we have in Maryland – a prosecution cabal. From 2003, when Maryland was ranked 48th overall, to 2011 when Maryland went to 27th in the notch-on-the-gun competition.
Let’s apply this generous(?) allocation of eight minutes and fourteen seconds to a specific case…
On July 30th, 2012 the Maryland Board of Physicians issued a 39 page “Final Decision and Order” finding that, among other things, that David Geier had been “Practicing Medicine Without a License.” They had REVERSED the Administrative Law Judge (ALJ)’s finding.
They had heard David’s case in Closed session, May 23rd, 2012, allocating the average eight minutes and fourteen seconds total for arguments for both sides. But, as you will see below, the Board, in its consideration, was faced with some severe problems trying to fit all this in:
(1) The fact that the Administrative Law Judge (ALJ)’s Proposed Decision was for complete Dismissal of the charges, and she explained why in a thirty nine (39) page Decision document. See excerpt below.
CONCLUSIONS OF LAW
I conclude that the Respondent did not practice, attempt to practice or offer to practice medicine. Md. Code Ann., Health Occ. §§ 14-101(n), 14-601 (2009 & Supp. 2011). I further conclude that, as a result, the Board may not fine the Respondent. Md. Code Ann., Health Occ. § 14-606 (2009).
I PROPOSE that the charges filed by the Board on May 16, 2011 against the Respondent be DISMISSED.
You can read the entire Judge’s Proposed Decision here. Basically, her reasoning was that NONE of the Board’s witnesses were credible. And ALL of David Geier’s witnesses, including himself, WERE credible.
(2) The twenty-one member Board had to read hundreds of pages of pleadings from the attorneys for both the Board and the Defense, outlining the case.
(3) The twenty-one member Board had to read hundreds of pages of transcripts from the three days of the ALJ hearing – probably thirteen hours of testimony, plus legal arguments.
(4) The twenty-one member Board had to read what are called “Exceptions,” probably about eighty pages, filed by both sides after the ALJ issued her Proposed Decision.
(5) The twenty-one member Board had to hear short oral arguments from the attorneys for both sides during the hearing.
(6) The twenty-one member Board had to deliberate in private.
(7) The twenty-one member Board had to agree on a Decision.
(8) The twenty-one member Board had to write a Final Decision and Order, in detail – which was issued July 30th, 2012, and was, itself, 39 pages long, totally, with great detail, reversing the ALJ’s Proposed Decision…
As you can see – the twenty-one member Board used their eight minutes and fourteen seconds very well…
Hiding the insect infestation…
Of course a twenty-one member Maryland Board of Physicians cannot make such decisions in an average eight minutes and fourteen seconds.
Obviously there is something else going on here, something we are not supposed to see, something we are not supposed to realize, something that is being carefully hidden from the public and the Maryland legislature’s Sunset Review process. A false structure. A sham.
But sometimes that sham, that false structure, is so obvious that key players don’t even try to hide it.
Example – Victoria Pepper, the AG prosecutor, had to, as outlined in step (5) above, present an oral argument to the Board. Instead, she told the Board, in no uncertain terms, that this Geier situation was already decided and that they, the Board, were to REVERSE the ALJ’s Decision immediately “to retain continuity.” A few minutes later the twenty-one member appointed Board did just that – no readings of papers, no discussion, nothing. They did what they were told.
So much for “Due Process.”
Pepper’s presentation reflected the REAL situation here – the fact that the Board, as it was sitting, was a false structure, a scam. Decisions were being made elsewhere, outside of the required by law due process.
There has developed in Maryland, as has happened in other States, a secret management group, a prosecution cabal, and they make all the prosecution victim decisions, write all the briefs, present to the ALJ (which they consider an annoyance), write the Exceptions to the ALJ’s Decision to the Board, tell the Board what Decision to make, then write that Decision, and deliver it. Victoria Pepper proved that in one quick example – with no attempt to even hide, or disguise, the reality.
There is NO real Due Process at the Maryland Board of Physicians. None at all. I’d guess that all the decisions are made in the first few minutes of the review of the presentation of a Complaint. More, this cabal is ineffectual – spending so much time targeting their selected victims, like the Geiers, that they have no time left for hundreds of unread, un-acted upon, legitimate complaints from consumers.
And that’s not what boards are supposed to be about.
Let’s look at details…
Mark and David Geier’s cases are going to a REAL courtroom where the actual circumstances surrounding the total lack of Due Process can be examined. So, let’s look at why that is going to happen.
(1) In the David Geier case, discussed above, the Administrative Law Judge (ALJ) had recommended total Dismissal of the charges against David Geier, and told why, in thirty-nine pages of detail. Just below, in an excerpt from the ALJ’s Proposed Decision, is the basic outline of the case.
(1) Did the Respondent issue a diagnosis regarding Patient A, and thereby engage in the practice of medicine, while unlicensed to do so?
(2) Did the Respondent recommend a treatment for Patient A to Parent A, and thereby engage in the practice of medicine, while unlicensed to do so?
(3) Did the Respondent initiate or direct the cessation of treatments of Patients B, C and D, and thereby engage in the practice of medicine, while unlicensed to do so?
(4) Did the Respondent order laboratory tests for Patient A, and thereby engage in the practice of medicine, while unlicensed to do so?
(5) Did the Respondent bill for services that he performed that covered activities that only a physician is permitted to bill for? If so, does this constitute the practice of medicine?
I admitted seventeen exhibits on behalf of the State and seven exhibits on behalf of the Respondent. A detailed exhibit list is appended to this Proposed Decision.
The State presented a single live witness: Linda Grossman, M.D., who was admitted as an expert in the practice of medicine, billing codes, and billing for services in a medical office. In addition, the State presented the testimony of Parent A from the Summary Suspension Hearing and the testimony of Joshua Schafer, the Board’s investigator, from the Charges Hearing. The Respondent testified on his own behalf and did not present any additional witnesses.
The real importance, in the ALJ’s Proposed Decision, is what she says about the Witnesses in the case, especially the mother of Patient A. The excerpt just below shows what the ALJ was looking at:
The State contends that the Respondent took action in five areas within the exclusive jurisdiction of a licensed physician, and that he did so without supervision or specific direction from his father, Dr. Geier, in violation of section 14-601: First, on May 19,2008, the Respondent alone met with Parent A and her son, Patient A and conveyed information to them that constituted a “diagnosis.” Second, during that visit, the Respondent outlined a “treatment” for Patient A. Third, after the visit, the Respondent ordered laboratory tests for Patient A under his own authorization. Fourth, the Respondent discussed symptoms, initiated and stopped treatments with other patients on his own, without direction from Dr. Geier. Fifth, the Respondent initiated billing for medical services, again, on his own, without direction or supervision from Dr. Geier.
The State’s evidentiary support for these allegations rested upon the LIVE testimony of its expert, Dr. Linda Grossman, who reviewed the medical records, the TRANSCRIBED testimony of Parent A, the Board investigator, Mr. Schafer, Dr. Geier, and the Respondent, documents in the medical records that are in the Respondent’s handwriting and/or are initialed by him, and billing records which reflect that Dr. Geier’s office billed insurance companies for services, represented as consults with a physician, in which the Respondent acted alone. The State did not present any witnesses from the Respondent’s office who could have directly corroborated or refuted the asserted practices of the office.
More, she says:
Credibility of Parent A
Parent A testified before me by videoconference in the Summary Suspension Hearing. I admitted the transcript of that testimony as State Exhibit 12 and also had the benefit of her Complaint (State Ex. 1) and her telephonic Board interview (State Ex. 4). The same evidence was presented to me in the Summary Suspension Hearing. In the Proposed Decision following that hearing, I wrote the following:
The single parent witness I did not find to be credible was Parent A. …. The reliability of Parent A’s recollections disintegrated on cross-examination when she admitted that there might have been someone else in the treating room, and when the “diagnosis” was revealed to be little more than an observation. Because Parent A and Patient C did not return to the Respondent’s office for any treatment, and because I did not find Parent A to be a reliable reporter as to what occurred in the Respondent’s office, Parent A’s testimony was not the basis for any of my findings related to the Respondent’s treatment of children with autism.
Finally, I found an unusual “crusader-like” tone to Parent A’s complaint as exemplified by, although not limited to, her concluding paragraphs:
“Even if Dr. Geier is a competent physician, it is inexcusable for him to allow his unlicensed son to treat patients in his practice; to allow children to be diagnosed with fictitious diagnoses; to order diagnostic tests requiring massive amounts of blood for no apparent medical reason; and to issue exorbitant bills for services incompetently rendered by non-credentialed personnel, or never rendered at all. I hereby request that the Board take immediate action on this complaint so that other autistic children, their families and insurance providers may not be exploited by … [Dr. Geier and the Respondent]. State Ex. 1 at 10062 (emphasis added). “
I understand the desire of a good citizen to report what she believed was improper conduct. I understand that this desire may have been heightened by what she believed constituted insurance fraud; however, this language is akin to an attorney’s dramatic closing argument to a jury. Its tone is inconsistent with what I would expect to see in a complaint from a consumer who had only two brief contacts with the Respondent’s office, and those three years apart. Thus, Parent A’s complaint encouraged me to be skeptical of whether she formed her subsequent statements to support the conclusion I have quoted above, rather than simply recollecting the events of the visit in an honest, straight-forward manner. In summary, I have relied upon Parent A’s recitations essentially only where they were corroborated by other evidence or where her statements were uncontradicted. I maintain my skepticism about her reliability as a witness.
Reading between the lines here, I suspect the ALJ was beginning to smell a rat in Parent A. Parent A’s language in her testimony, complaint, and interviews smacked of coaching from the “skeptics” or Kathleen Seidel.
Rules for Expert Witnesses…
Expert Witnesses are terribly important. The American Medical Association has guidelines.
The State of Maryland, in its infinite wisdom, several years ago, passed a law regarding the Maryland Board of Physicians’ use of Expert Witnesses and Reviewers. They were very specific. The law requires the Board to use TWO Expert Reviewers, and in the event that they disagree, a THIRD Reviewer must be brought in. The issue all along, in all of the Geier cases was that the Board originally did use two Reviewers, but one of them didn’t apparently find anything wrong with the Geiers. So, instead of getting a third reviewer, Victoria Pepper just dropped the one who’s analysis didn’t agree with her case as presented.
More, Pepper’s Expert Witness/Reviewer has never seen an Autistic child as a patient. In fact, the witness has not seen ANY patients in over thirty years, nor has she worked in a doctor’s office in all that time – yet Pepper insisted she was qualified to testify about Autism, office billing, record keeping, etc.
The court system is going to love all this…
So, stay tuned…
Tim Bolen – Consumer Advocate