Pubdate: Mon, 04 Jun 2001
Source: Albuquerque Tribune (NM)
Copyright: 2001 The Albuquerque Tribune
Contact:  http://www.abqtrib.com/
Details: http://www.mapinc.org/media/11
Author: Sherry Robinson

BOARD HAS BEEN UNCOOPERATIVE, UNFAIR, DOCTOR'S ATTORNEY SAYS

Attorney Frank Spring says defending Dr. Joan Lewis' case before the state 
Board of Medical Examiners has been a Mad Hatter's tea party in which 
nothing is quite what it seems. Spring complains that the Attorney 
General's Office, which is prosecuting the case, has withheld information, 
refused to define the parameters of the case and unnecessarily run up Lewis 
costs to defend herself. Six months after taking the case, he says, "we 
don't know who the witnesses are, what the exhibits will be or the rules of 
trial.

We're sort of nowhere." Spring, who is experienced in licensing 
proceedings, attempted in December to lay the groundwork of his case. 
During a meeting, he first asked the board to agree that New Mexico's Pain 
Relief Act governed the case. The Attorney General's Office was unaware of 
the law, he says. The meeting ended with no pretrial agreement. The 
process, Spring explains, typically "requires them to put their cards on 
the table so a defense can be mounted.

It's elementary." Unable to gather information he felt he needed, Spring 
began submitting briefs. Each one hit the wall. He was unable to pin down a 
more precise charge than "injudicious prescribing." Bennett Cohn, 
prosecuting the case for the Attorney General's Office, wasn't inclined to 
define issues and facts. After Spring asked the hearing officer to take 
judicial notice of the Pain Relief Act, Cohn responded that Spring "says 
he's got this law. . ." Hearing officer John Romine, a Farmington 
orthopedist and board president, denied the request, saying he "cannot 
determine what laws and rules apply to this case." In a letter to Spring, 
Cohn wrote, "While I would rather abuse you than disabuse you, the best 
understanding of this case is self-evident to anyone with a medical degree.

Old Chinese proverb says, 'Those who rely on Pain Relief Act end up with no 
license.' Of course, since Dr. Lewis isn't Chinese, the proverb may not 
apply to her." The comment raised eyebrows in the legal community. In an 
amicus brief filed by patients, doctors and medical ethicists, Robert 
Schwartz wrote, "It is inappropriate for an administrative prosecutor to 
threaten a respondent with the loss of her license in return for raising a 
legitimate statutory defense." Schwartz, a University of New Mexico law 
school professor, said even his students were surprised by the 
inappropriate tone of the letter. Kathryn Tucker, an attorney for the 
Compassion in Dying Federation, says: "It's bizarre and inappropriate for 
the prosecuting authority to indicate the law won't be complied with. It 
puts the case apart from others." Romine responded to Spring's briefs with 
a protective order, which means the board doesn't have to answer. 
Information gathering for a licensing action is a little different than a 
courtroom trial.

The Uniform Licensing Act provides for depositions and limited requests for 
information. It neither allows nor forbids the requests Spring made, 
according to Schwartz. It does permit depositions, the most costly form of 
information gathering.

The board's primary expert witness, has canceled two depositions, saying he 
was unprepared. Concerned about the rising cost of Lewis' defense, Spring 
asked to limit expert testimony.

The board declined. "What worries me about the process is that it's so 
expensive to respond to a notice of contemplated action," says Schwartz. 
"Malpractice insurance doesn't cover this kind of proceeding. There is a 
substantial financial incentive to reach a compromise. There's never a hearing.

There's no opportunity to review what's been done. "The board has suggested 
it will call a dozen witnesses, which pushes the cost to $100,000. 
Physicians aren't poor, but it's hard to take $100,000 out of your wallet 
and put it on a lawyer's desk. It's tremendous power in the hands of the 
board." In the amicus brief, he wrote: "There is simply no explanation for 
the actions of the hearing officer and the administrative prosecutor, 
except that both wish to impose such a substantial burden on Dr. Lewis that 
she will be financially unable to conduct her defense.

If Dr. Lewis is bullied into accepting some kind of a settlement in which 
she admits some wrongdoing in order to maintain her license and her ability 
to earn a living, other physicians in the state will be frightened into 
avoiding aggressive pain management." Spring says a typical case before 
state licensing boards might involve an error in judgment or an allegation. 
It's usually resolved with a fine, some community service or continuing 
education. "There's not much in the way of safeguards" for professionals, 
and the courts give boards wide latitude.

Most of the time, the client becomes stretched thin financially. "You make 
the best deal you can and get out," Spring says. "The choice they would 
like her to take," says Schwartz, "is to give up her practice and start 
again as a junior doctor or never practice again." On March 16, Romine, 
Spring and Cohn held a pretrial conference. What followed, according to the 
meeting transcript, was nearly two hours of wrangling. Saying he didn't 
have to disclose the details of his case, Cohn refused to define facts, 
disclose witnesses or even agree that the Pain Relief Act applied to the 
case. He agreed grudgingly to specify which charge related to which patient 
- -- information the board normally provides to doctors when they're charged. 
All Spring had, after three months, was the board's notice of contemplated 
action, a four-page document with boiler-plate language listing six unnamed 
patients, together with a list of medications and a time frame. Cohn came 
up with three names a week later and never did provide the other three 
names, Spring says. The two lawyers debated at length whether the Pain 
Relief Act applies. Romine observed that it's "obvious to all of us that 
the board thought that the practice didn't fall within the (board's) 
guidelines." When Spring asked for more time to prepare, Romine accused him 
of stalling so his client could keep practicing. "I think I have a right to 
prepare my case," Spring said. "I think I have a right to know what the 
witnesses arrayed against us will be." "I left thinking there's no way to 
have an orderly hearing," Spring says. "I can't ask the other side any 
questions." Cohn calls Springs complaints "ludicrous" and "foolishness." 
"Most of the documentation comes from Dr. Lewis' own files," he says, 
saying Spring "speaks with a forked tongue." "They are free to raise the 
Pain Relief Act as a defense," he says. "It's not up to me to raise it. I'm 
under no obligation to stipulate to his defense. If they choose to use it, 
I can overcome that if I have certain kinds of evidence, which I have." 
G.T.S. Khalsa, the board's in-house attorney, isn't prosecuting the case 
because of a conflict, but he says that in normal board proceedings 
"whatever evidence will be produced at the hearing, they will get. It's 
usually patient records and prescriptions, which come from them anyway.

You can't surprise people at hearings, especially if a doctor's license is 
on the line. If you do, you can't use it. It's not a game. It's serious 
business." Spring has filed the first writ of mandamus of his 20-year 
career, asking the state District Court to stay the hearing until the board 
names an unbiased and independent hearing officer. "The hearing officer 
has, in effect, allowed the administrative prosecutor to do as he pleases," 
the petition says. Says Cohn, "It's a figment of her imagination or her 
council's to think the board is prejudiced against her." In the amicus 
brief, Schwartz wrote: "The board has erected a series of barriers" to a 
fair hearing.

It failed to inform Lewis of the Pain Relief Act notice, required by law. 
It refused to provide Dr. Lewis with any specific notice of what she had 
done wrong.

In fact, the board has refused ever since to provide the particulars of the 
alleged transgressions, and the only hints she has received about what she 
will be defending at the hearing have come from the board's denial that the 
Pain Relief Act applies and the administrative prosecutor's smirk that the 
case is 'self-evident to anyone with a medical degree.'" Schwartz says: "It 
will require judicial intervention to get a fair hearing." He also takes 
aim at Cohn's "exceptional zeal in pursuing this case" and questions 
"whether his real interest is providing the respondent with a fair hearing 
or winning at any cost."
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