in front of a state judge like myself hoping that HE will stop them or at least limit their search. Their lawyer will show the judge why they need it.”
“But even if their search is limited to just a few records, they will find, nit picking, grounds to impeach her! They for sure find flaws in random records of anybody, even if they are from a saint. Nobody’s perfect!”
“Yes, for sure they’ll find, or invent, the flaws they need! Unfortunately, the hearing Judge, whoever he is, will consider that ‘First Count of Misconduct’ a VALID reason for the search of more records.”
“And she won’t be able to show the judge with her own experts that such ‘First Count’ is baloney, a piece of crap?”
“Probably not. The judge will recuse himself from contemplating all her evidence to determine if she is guilty or not; he will tell her that he is there just to allow the search or not; not to condemn or exonerate her on the more general issue of misconduct, even if such search is only to facilitate such. He won’t even make room for a full trial. Perhaps, if he feels bad for her, to show understanding, he may limit their search to just a few cases or dates, ignoring the sure, eventual bad outcome of such search. Allowing only a small search will annoy OPC and its employees, especially those ‘Administrative Law judges.’ But by ordering her to submit ‘just a handful of charts’ he will extricate himself from risking his job and his position as a state judge.”
“So at this point, with such bleak picture, what should she do?”
“If she does not want to let the state wolves search all or part of her records, she has to file a Motion for an injunction right away. Yes, tomorrow. That will give her some time, a couple of months. OPC’s lawyers will have to reply -within 30 days- with a Motion of their own, to dismiss hers. After that, the court clerk will give her a date in court -in another 30 days or so- to defend her Motion in front of a single judge, whoever is assigned to it. Then she can get extra time by requesting a delay. And while this is happening, the Wolves of OPC won’t be able to touch her records.”
“But eventually, even if she delays things a few months, she’ll have to comply?”
“Yes. She could get further delays after the judge’s decision, most likely unfavorable, by appealing it to the State Court of Appeals, but that will only give her a little extra time, and to gain each delay she will have the headache and work of the paper work and trips to the clerk -if she does it herself- or the mounting costs of each step if she uses a lawyer, which most doctors do. State judges won’t just ‘cancel’ OPC’s request to search of her records. In most cases, only the lawyers are in front of the judge; and often, just the papers. At some point she will have to comply. So if she files that Motion now she will have approximately 8 months or so before she has to allow the search of at least a bunch of records.”
“That’s nasty!”
“My friendly advice for her right now is -if OPC has nailed on her that ‘First Count of Misconduct’ and already wants her records- that she moves away ASAP finding a job in another state (or country) before they come up (or manufacture!) a ‘Second Count.’ I hope her family, social and economic situation lets her do it and that she can abandon everything she has here. I see no other way. And she should hurry to do it while her record is still officially clean. As it stands, ‘One Count of Misconduct’ won’t be on her public record, it won’t stain her irreparably, so she has to move right away, now!”
“Wow! That’s drastic! And such advice of yours -of moving away- is not given by most defense lawyers, that I am aware of!” said Barbara. Why not?”
“Because malpractice and misconduct lawyers do not want their active cases to just move and disappear so they lose too soon important clientele who generally pay. And if she does not disappear from this state, I am 99% sure that within a year or so they’ll pull her license. Then, once that happens, she won’t be able to switch or get her license in any other state – or country. Other countries medical boards and societies these days also check your professional background and contact the disciplinarians here before they reciprocate you in their place or country, like the EU!”
“But that’s horrible!”
“Yes, it is, of course assuming one’s innocence. But it is understandable, and protective of the public, if one is guilty. A truly lousy or dangerous person who may hurt others in medicine -or teaching, for that matter- once convicted, should not be able to just set up shop some place else”…
“I can see that. But I have hard time accepting it as it is now done, all without impartiality, one sided! Calling now a physician lousy, incompetent or dangerous is often untrue in all fairness, at least as it is done now here by this state…”
“You actually have a point there, Barbara, it is all one sided! But -besides leaving the state as soon as the accused can- there is one other important point: Lawyers don’t tell their physician-clients early enough to keep their mouths shut in front of OPC workers. When they are called for an interview by OPC a doctor can invoke the 5th Amendment and say not a word. Unfortunately the doctor himself is too naïve at the beginning and does not even think he needs a lawyer or have a lawyer present in those interviews – especially if he thinks he hasn't done anything wrong…
“You are right, Ken. If I were called by OPC to answer any questions about a patient complaint against me, I probably would feel initially ‘no sweat’ and innocent. I would go there and blabber carelessly!… With what you tell me, if one day they are also after me, I probably would be wiser now and keep my mouth shut!”
3
Meet Dr. Phillips. A Medico-Legal Case Of Hers
Dr. Nora Phillips, a well kept, just-over-50, tall and slender, good looking brunette, was a neurologist in private practice not too far from central Buffarin in western New Work. Her solo practice was in a medium-size, multi-specialty medical building, next door to the city block -formerly used by a major insurance company- where Dr. Barbara Good’s large group of orthopedists occupied its entire two floors. Patronizing the same nearby coffee shops and restaurants, as well as admitting patients to the same hospital, both doctors had become close friends over several years.
Their type of practice was very different, but they occasionally shared a case, an isolated trauma patient with some injuries, first evaluated, treated and followed by Barbara. Some times her friend Nora, interested in chronic pain (from impacts in motor vehicle accidents, from work or sports) was called to review the papers of a case or for an ‘IME’ that involved an actual Neurological examination; rarely, to her dislike, she also had to testify in court on such cases, especially if her opinion was disputed.
Dr. Barbara Good was told by her friend and colleague, over a cup of coffee next door, that she had recently seen a case of a motor vehicle/pedestrian at low speed, with much personal damage claimed by an injured woman but disputed by the insurance company. The case reminded Dr. Good of the case her husband the judge had just had in court and about which they had both talked at length over dinner. Dr. Phillips told her that the injured ‘patient’ had not even had a scratch or any physical signs of any impact or bump to any part of her body to justify ANY symptoms or monetary claim. She told her friend that she expected her report would infuriate the patient once she saw it, even though she had appeared in her office very pleased ‘with the doctor’s thoroughness:’
“A woman on the side of a road, part of large group of people gathered to watch some sort of off-the-road sporting event, was ‘touched’ in her low back by the front bumper of a pickup truck slowing down to stop and park. Witnesses had said it was nothing. All was negative in the E.R. including her X-Rays, and also when I saw her,” Nora said. “She liked me in the office -so she said and thanked my staff- but went crazy when she saw my report that stated I saw nothing wrong with her.
“And as I expected, I have already received a certified letter from the Health Department’s OPC demanding that I turn over to them my consultation on that woman.”
“That alone will have made your heart skip,” said Barbara.
“Yes.