Opinion by Consumer Advocate Tim Bolen
Last Friday, August 19th, 2005 I sent out a newsletter called “Medical Board Brutality.” It was about the newest antics of the California Medical Board Staff – an organization, I believe, to be completely corrupt – and not worth saving. Like the story about Hercules and the Aegean stables, the best thing that could happen is for someone to re-route the Sacramento river right through 1426 Howe Avenue (the medical board offices) – and for the same reason….
The responses were startling. In short, my disdain for the Administrative Law System, and the way it is abused against licensed health professionals, is SHARED worldwide.
I want to thank all of those who responded with a letter to the Presiding Judge of the Appeals Court. If you haven’t yet sent yours in, please do so. You can get the details about what to do by clicking here.
In short, my earlier newsletter details an assault against a “lay representative” helping people through the Administrative law process. Charles Benninghoff had complained to an Administrative Law Judge that the Medical Board, and the prosecutor in the case, had “biased” the State’s witness – a violation of the agency’s own rules of conduct – and the State retaliated against Benninghoff, claiming he was “practicing law without a license…”
The Medical board went to a “friendly” Superior Court Judge and got an order seizing Benninghoff’s office, leaving his clients in the lurch. Benninghoff filed an Appeal to the Fourth District Court of Appeals – and here we are.
So, how is the plot thickening?
Well, the situation is WORSE than I originally indicated. The corruption is far deeper, and far more extensive, than I thought. It extends deep into the bowels of the California Attorney General’s (AG) office. Sit back, and read this…
It turns out that the whole case against Charles Benninghoff centers around two letters, so-called “legal opinions” of two employees of the Attorney General’s office, one named Alfredo Terrazas, and the other, Robert McKim Bell…
So, who are these people?
First I’ll tell you who Alfredo Terrazas is.
Those of you who have been long time readers of my newsletter will remember the series about the infamous “California Medical Board v. Sinaiko” case – and the huge cost, and embarrassment, it caused the California Medical Board over the seven years it took to complete. It was the “Sinaiko” case that first brought the wrath of the California Legislature on the staff, in the form of an official “Enforcement Monitor.”
The “star” of the show, on the Medical Board’s side, during the “Sinaiko” case, the man that lost the biggest case in the medical board’s history, was prosecutor Alfredo Terrazas. It was his “legal opinions” and his grasp of the law (or lack of it), that was so contemptuously shot down by the California Court of Appeals. Terrazas’s case, and his concept of what constituted health care, and his concept of the the law surrounding health care, brought together the largest, angriest, and most diverse, group of opposition I’ve ever seen anywhere. And, it was deserved.
The hallmark of the “Sinaiko” case was Terrazas’s flagrant prosecutorial misconduct laid out in a fifty-one page document I’m going to give you access to right here. But the keynote was Terrazas’s continued use of a “fake” witness (Samantha Simons), with a “fake” complaint. You can read about it, and view the documents , by clicking here.
Like in the situation Benninghoff complained about, Terrazas not only sought to “influence” the State’s witnesses in the case, but he, against the orders of a Judge, slipped the“fake” document, by the “fake” witness, into the presentation to the appointed Medical Board members as “Exhibit #21.”
In other words, there is a long history of abuse of the system, and misconduct on the part of the Medical Board staff and the AGs assigned to that function. And, Mrs. Terrazas’s little boy Freddy is right in the forefront.
Why is this important? Read on…
As you may remember, the support network for “Sinaiko” ended up including not just the North American Health Freedom Movement, and the Progress in Medicine Foundation, but the Center for Public Interest Law (the group that actually WROTE the California Medical Practices Act), the California Medical Association (CMA), The American Association of Physicians and Surgeons (AAPS), the Union of American Physicians & Surgeons (UAPD), and many others – just too many to name here.
Unlikely bed-fellows – on most days.
The “Sinaiko” case brought factors together, in California, which significantly changed the way medicine is regulated. For, the general feeling was that the whole situation surrounding the “Sinaiko” case was just plain wrong. The finger pointing was, for the most part, ALL at Alfredo Terrazas.
The cause of all of the “Sinaiko” commotion was the misconduct, and decidedly “bigoted,” and clearly “anti-due process” legal opinions, and maneuvering, of Alfredo Terrazas. Simply, (1) Terrazas felt that it was improper for a defendant (in this case, Sinaiko) to be able to defend himself/herself. He convinced an Administrative Law Judge, named Ruth Astle (who slept through much of the hearings) to disallow any of Sinaiko’s top-of-the-line “expert witnesses,” basically, because they DISAGREED with his witnesses, and he, Terrazas, claimed that (go ahead and laugh), that “only medicine that was generally accepted in the mainstream was allowed in California – everything else was health fraud.”
The California Appeals Court, in the “Sinaiko” case, I think, must have thought that they’d run across a total nut case when they read Terrazas’s arguments – for their reaction, and their ruling, was appropriate to that finding.
With Terrazas, it’s not about justice, or disciplining bad doctors, its about “winning.”
Terrazas bragged to Sinaiko’s first attorney that “I never lose a case. I use the ‘death of a thousand cuts’ attack. I make as many accusations as possible so that even if you win on 999, I still win on one. And, I’m going to take your client’s license to practice medicine away from him.”
Shula Edelkind, the Executive Director of the Progress in Medicine Foundation, the group that raised the money for the “Sinaiko” defense, also gathered information to help Sinaiko. One of the most interesting documents (fifty-one pages long) I’ve seen come out of the case is called:
“Request for a Formal Investigation of: Mr. Alfredo Terrazas, State Bar # 78403, Deputy Atty Gen of CA, 2101 Webster Street, 12th Floor, Oakland, CA 94612-3049, (510) 622-2220, for misconduct in his prosecution of the case of Medical Board of California v. Robert Sinaiko, MD”
In that Terrazas did the following: False Statement of Fact, Concealed Material Information, Misquoted Scientific Materials, Misquoted the Testimony, Produced Inappropriate “Experts”, Misquoted and Misread the Medical Charts of Patients, Betrayed the Confidentiality of the Patients, Made Inappropriate Assumptions as to the Aim of Therapy, Cited as Authority a Decision that had been Overruled, Introduced into Evidence Materials Barred from Consideration, Colluded with Another to Deceive the Court, Used Slander, violated the ABA Code of Professional Responsibility, EC 7-13, Attempted to Show “Guilt by Association,” Took Advantage of Defense Naiveté .
At the request of the Attorneys representing Sinaiko, the document was held back “until the case was finished.”
Well, the “Sinaiko” case is finished… you can read the whole complaint by clicking here. Like me, you’ll be shocked that someone of such low ethical, and moral character would be allowed to work as a prosecutor. You’ll be even more shocked to find out that while the “Sinaiko” case was winding to conclusion, Terrazas was PROMOTED and now heads the Licensing Division.
So be assured that his policies are now ALL of the prosecutors policies.
Just think – now every licensed professional in the State can get the same treatment Sinaiko got…
So, who’s Robert Mckim Bell?
Thought you’d never ask.
Robert Mckim Bell is the attorney for the California Attorney General’s office that went to the Federation of States Medical Board (FSMB) meeting in Chicago in 1996. The purpose of that meeting, and the presentation called “Fraudulent Medical Practices” was to criminalize innovation in health care – and call it “health fraud.” As the panel moderator, James W. Wren MD said:
“Our first session this morning is entitled: “Fraudulent Medical Practices: Watch and Be Wary.” This topic is particularly timely because of the increased attacks on medical practice acts around the country by a number of proponents and practitioners of alternative medicine.”
Bell’s role, on behalf of the “quackbusters,” was to show FSMB members how to use the prosecutorial system to stop, or prosecute, innovation in health care. You can read his speech, at the convention, by clicking here. You’ll be shocked.
Bell was at the podium with top “quackbuster” John Renner. Bell said, in his introduction:
“I’m flattered to be included in such a prestigious organization’s program. I am an obscure lawyer from California. I think I came to the attention of a couple of your board members as a result of litigation conducted a couple of years ago for the State Medical Board of CA. involving a chelation physician which was of rather large magnitude. We had a successful outcome in that case, I’ve been asked today to talk from the perspective of a prosecutor about what it takes to investigate and successfully prove a case. “
The “lay representative” situation comes from an enactment of the California legislature in 1995 – Senate Bill 523.
Quoting attorney Jim Link:
In 1989, the California Law Revision Commission retained Professor Emeritus Michael R. Asimow as the chief consultant to guide the Commission in drafting a legislatively-mandated overhaul of the then-existing 1945 Administrative Procedure Act (APA). As a result of his efforts for the Commission, the treatise, “The Adjudicative Process, (1995) was drafted and published. In that treatise, Professor Asimow wrote: “I believe that the APA should provide that a party can be represented by anyone of his choice, before any agency, whether or not a licensed attorney. The prohibitive cost of legal services, and the very limited availability of legal services for the poor or pro bono representation, means that most parties to administrative proceedings cannot afford lawyers. Indeed, non-lawyer advocates may do a better job than lawyers in specialized tribunals such as tax or welfare cases or in cases raising scientific or technical issues ….”
The Legislature enacted Professor Asimow’s recommendation in SB 523 of 1995 which replaced the old 1945 APA with Government Code §§ 11400, permitting lay representation using the nomenclature “attorney or authorized representative.” Professor Asimow’s recommendation is now firmly implanted in the statutes, regulations, various opinions of Administrative Law Judges, and the case law of courts of record that have examined the issue.”
Lay Representatives handle cases for a fraction of the fees charged by attorneys and, as professor Asimow says: “Indeed, non-lawyer advocates may do a better job than lawyers in specialized tribunals such as tax or welfare cases or in cases raising scientific or technical issues ….” Like Medical Board Cases?
The Staff of the California Medical Board, once again frustrated in their efforts to “win” cases with underhanded techniques, has reacted to subvert the law enacted with SB 523.
And now we get to the meat of this story.
The California Medical Board Staff is corrupt. They are, in my opinion, the LAST people I’d want in place to regulate health care in California – or anywhere. They started out badly, and they promote from within to continue their bad attitude. “Cheating” on prosecutions is something they do without consideration.
Last year one of the better “Lay Representatives,” Charles Benninghoff, got a hold of a copy the “Initial Report of MBC Enforcement Program Monitor.” Of interest to him was Chapter VIII, the “Expert Reviewer Program” In it he found the rules for “expert witnesses.” And, section six, about “bias,” was quite revealing, for it said…
“In a deliberate effort not to bias expert witnesses, MBC’s Enforcement Operations Manual instructs investigators, MCs, and DAGs to ensure that materials given to expert witnesses at the outset of their review do not contain information that might bias the expert (such as prior disciplinary action or malpractice history of the subject physician) or the opinion of any other physician who has reviewed the case. The manual directs investigators, MCs, and DIDO DAGs to ensure that the reports the CCU reviewer and district office medical consultant do not contain explicit opinions about whether the subject physician’s conduct departed from the standard of care.”
Except, of course, the Staff has NO SUCH POLICY. They do exactly the opposite, and go out of their way to influence the “expert witnesses.” Some of that information Benninghoff used, successfully, against the board’s case for one of his clients – and all hell broke loose. The Medical Board Staff went into a screaming, lie-down-on-the-floor-and-kick-the-feet, rage.
Why did the Med Board Staff do that? Because they had lied to the Enforcement Monitor about their ACTUAL policies – and Benninghoff caught them at it. Remember that the “Enforcement Monitor” is working for the Legislature to correct Staff problems – so getting caught in the act was not a good thing.
The Retaliation…
The Med Board Staff went after Benninghoff by filing complaints with the State Attorney General’s office, and the California State Bar – claiming Benninghoff was“engaging in the unauthorized practice of law.” They went to the State Bar Association Court with their claim, and when that didn’t work, they went to a Superior Court Judge.
The attack on Benninghoff at the State Bar Association Court didn’t work, it seems, because experts in the field of Administrative law, including the man who had written the last (1995) revision of the Administrative Act, Professor Michael R. Asimow of the UCLA School of Law, JUMPED in with Amicus (Friend of the Court) Briefs defending Benninghoff’s (or anyone’s) right to practice as a “lay representative” in Administrative proceedings.
Then the California Legislative Counsel wrote an opinion favoring Benninghoff. Then an Administrative Law Judge wrote an Amicus Brief favoring Benninghoff. And, more…
And, the war was on… for the California Medical Board Staff, about as competent as goose fuzz, needs every “trick” it can muster.
So, they took the case to a Superior Court Judge, asking for an Emergency hearing, claiming that the “safety of the public was at stake.” They demanded that Benninghoff’s practice, and all of his business assets be seized immediately. The judge, even after reading the expert’s opinions, sided with the Medical Board reps, claiming, in one of the STUPIDEST comments I’ve ever heard, of the OFFICIAL Legislative Counsel’s opinion: “SOME YOUNG WOMAN THAT IS A LEGISLATIVE AID TO SOMEBODY WRITES AN OPINION THAT SUGGESTS THAT YOU CAN [UNDERTAKE LAY REPRESENTATION]. I MEAN, YOU KNOW, IT IS JUST A CONFUSING SITUATION. SO, THAT SHOULD BE CLEARED UP.”
Where do we get Judges that can’t recognize an OFFICIAL Legislative Counsel’s opinion, and thinks it’s something written by a legislator’s aide?
This Judge issued an order seizing Benninghoff’s property – and before Benninghoff could get back to his office, Medical Board reps were in his office, with their guns, packing up his computers, files, and anything that wasn’t nailed to the floor.
And, here we are. Heading, at the speed of light, towards the California Fourth District Appeals Court. You can read the whole brief by clicking here. First, read the “Introduction to Petition for Extraordinary Writ.” Then, if you want, read the whole thing.
Why your action is important…
This case is about “who can represent entities in Administrative hearings.” It is clear that the staff of the California Medical Board wants “we the people” to have only two choices when it comes to representation in an Administrative hearing (1) A mega-expensive attorney, or (2) run the risk of representing yourself. They, for sure, don’t want anyone to get help from a knowledgeable layman.
The California legislature, in its wisdom in 1995, revised the Administrative procedures Act (APA) to specifically include the language allowing “lay representatives”to not only assist Medical Board victims, but to actually “represent” them in those hearings specifically because “The prohibitive cost of legal services, and the very limited availability of legal services for the poor or pro bono representation, means that most parties to administrative proceedings cannot afford lawyers. Indeed, non-lawyer advocates may do a better job than lawyers in specialized tribunals such as tax or welfare cases or in cases raising scientific or technical issues ….”
The Fourth District Court of Appeals will see this case, because of the “Extraordinary Writ” (fast tracking) of the legal brief, within a few weeks. Time is of the essence, for several reasons. (1) Benninghoff’s client records were seized – leaving the clients, not only without any representation, but without any records to work with to get new representation. They are now at the mercy of the corrupt medical board staff – with zero means to defend themselves. (2) The medical board staff has shut down a perfectly legitimate business, and destroyed Benninghoff’s income – strictly in revenge for him exposing their lying to the MBC Enforcement monitor about their “expert witness” policies. They did this to cover up a legislative investigation of their own operation and protect their nefarious activities.
What to do…
Simply write a letter to the Presiding Judge, either by email, or FAX, or snail mail. Anything will work – just so you do it now, or very soon. If you click here, you’ll be taken to a page that gives you every tool you need. The page has the letter all laid out for you, with the points you need to make to the Judge about the case, the proper addresses, and the people who will be given a copy. If you email it to the address shown, our team will personally deliver your letter.
On a personal note…
I’ve known Chuck Benninghoff for years. It was he, when he was still a practicing attorney, that got me involved with the health freedom movement. It was he, up on a mountain pass, seven miles from a trailhead, that talked me into representing my first “cutting-edge practitioner.”
I’m sending my letter tonight…
Stay tuned…
Tim Bolen – Consumer Advocate