10 pieces of advice for medical professionals if your Board comes after you
More coming on this topic
A Medical (or Nursing or any other Board) is composed of two groups: a collection of staff, who do almost all the work and are state employees (and who might act with political malice) and Members, who hear and participate in brief discussions, then vote on each case, but do little else. Your interactions will all be with the staff, but it is the members, educated by the staff, who determine your fate.
First thing, check with your malpractice carrier as they probably cover you for up to $25,000 in legal expenses. They are likely to assign you an attorney. But sometimes they will allow you to choose your own attorney. This is worth fighting over, nicely.
Second, get a good attorney. Shop around. Do interviews. Ask the attorneys you know for advice. This is harder that it looks. Most attorneys want to handle your case their way. But you may have other ideas; I did. Check with other attorneys who know their work or talk to former clients. The most important thing you can do for yourself is to have an attorney who is on your side and works with you regarding how to conduct your defense.
Third, Boards have basically been functioning independently, and the attorneys who do Board cases usually don’t challenge the Boards on procedural issues—yet this is likely to be the best way to get the Board off your back early in the process. An attorney challenging the Board on its procedures, citing the law in your state, is likely to make the Board step back—the Board does not want to have to defend itself.
Although I initially hired attorneys who did lots of Medical Board cases, in the end it was a former prosecutor (former county DA) who was willing to grapple with my Board and fight the way I asked him to.
Fourth, be aware that the Board members are likely, in the end, to know very little about you. In my state, members of the Board only receive $1200/year for their service, which usually entails a monthly meeting. They are not paid extra to read the exhibits or the case files, and they are not paid extra for the days they sit in hearings. This means they (presumably) do not welcome extra work. They want to get through as many cases as possible during each meeting, and so they are likely to know very little about each case. They accept what the Board staff, who are state employees, tell them to do. In my case, the Board staff had already decided to suspend me before the Board members heard about the case. I know this because they told my lawyer 4 days before the meeting that was what would likely happen.
Fifth, Board members who vote on your case may be ignorant of the laws governing their behavior. The Board staff do the investigating. Then they boil down the case for a Board member. That Board member presented my case to the rest of the members. Except she presented a very biased story, leading the Board to unanimously vote to suspend my license without even a hearing. It seems they were not familiar with the statutes governing their work, because I had not met any of the criteria required to issue an immediate license suspension.
Sixth, make sure you have all the evidence necessary for your defense. The Chairwoman of the Board told me that I could not record the meeting where my case was discussed—and where my license was suspended—because it was illegal. When I asked how I might get a transcript she told me there would be no transcript. Fortunately I had already started recording when she said that to me. Hearing that a secret meeting, with no transcript, would determine the fate of my license did not sound right. So I left the device on. It turned out that the chairwoman was incorrect, and I had the right to make a record of how my case was being evaluated. So do not go to a psych exam or anything else unless you have audio or video evidence of the entire proceeding, because you are likely to need it later. I have heard from other doctors that once a mistake or a lie gets into the record, if you lack independent verification of what occurred, it is almost impossible to expunge later.
Why did they do this to me and how can you prevent them doing something similar to you? I believe the Board and staff had made a calculated bet that I would not challenge their decision because of my age and the enormous costs involved. When it costs hundreds of thousands of dollars to fully fight a Board, few doctors and even fewer nurses are able to do so. So the older ones simply retire. I was offered that option—retirement is a true win for the state. It costs them minimal time and effort to shut you down permanently.
Furthermore, the Board staff thought I was ignorant and vulnerable. I had responded to all their inquiries myself, instead of putting everything in the hands of an attorney. They assumed that they would not be challenged, because basically, they never have been. If someone wants to keep their license, generally they will be agreeable if not obsequious.
Seven, my strategy was different. If you choose my path, know what you are getting into. My voluntary acknowledgement that I was forced to tell a white lie to a pharmacist to get potentially life-saving hydroxychloroquine (HCQ) for a patient was, in the view of the Board staff, a foolish admission that I was guilty of an offense. I had made the admission in an effort to get them to reverse their policy of suppressing the prescribing and dispensing of HCQ and ivermectin. Silly me. But my case has allowed me to challenge the Board publicly regarding the fact that they had a written policy allowing hydroxychloroquine for acute COVID, while they promulgated an unwritten policy to frighten doctors who prescribed the drug with potential suspension of their licenses. This second policy had to remain unwritten, because it was illegal, arbitrary and capricious.
While on the one hand you should NOT respond directly to the Board but instead have your attorney do so, as they may use what you tell them to incriminate you, my case is different. I was mostly concerned about challenging their unwritten policy to suppress the use of HCQ and IVM. So I was okay with opening up this area of inquiry and duking it out with the Board. There were a lot of lives at stake.
Eighth, do not try to be friendly to a Board. When a Board begins to investigate you, you have left the world of medicine and science and moved into a world of law. You will win or lose based on the law, or other forces, not on whether you are a nice guy. Do not deal with them directly.
Hopefully, if the investigation gets going, your attorney will cite chapter and verse to the Board about how you were within your rights and they will decide to drop your case and move on.
Ninth, the Board may ask you for bizarre things, but you may not need to fulfill their request. I know of several doctors who were told to fly out of state to go to a special place for a neuro-psychological or psychiatric evaluation. There are psychologists and psychiatrists closer to home who may not be beholden to the Board; why can’t you choose your own evaluator? Your lawyer should protect you from this. If you do wind up going for any kind of evaluation, videotape it and have a witness if possible.
In my case, the Board suspended my license, then asked for a lot of additional information. We had to file a lawsuit against the Board to stop a psych exam and halt giving them lots of additional information.
However, another lawyer pointed out a bit later that the Board had already punished me. It did not get “free discovery” after the fact—it was not allowed a fishing expedition to try to justify my suspension with evidence it collected after the punishment had been issued.
Tenth, you need a community. We at Childrens Health Defense in the US and in Europe (the same tactics are being used in both places) would like to establish a place where doctors can anonymously connect online with each other. Boards in the US are going after hundreds, if not thousands, of doctors who failed to follow the COVID narrative. They want you to feel alone and vulnerable. But you are not. Let me know how to connect you and help you as best I can.
There are good legal arguments why they cannot convict you for misinformation, for using drugs for early COVID treatment, and for speaking the truth about the COVID vaccines. In fact, the Federation of State Medical Boards, which has been pulling the state Board’s strings behind the scenes, acknowledged that the First Amendment is a huge hurdle to the charge of misinformation in this publication. In my case, shortly before my hearing started, the Board attorney dropped the charges of misinformation, of off-label prescribing, and begged to avoid discussion of COVID vaccines. So, there is progress.
The Federation of State Medical Boards, however, came up with new strategies Boards could use to get around the First Amendment and justify punishing independent doctors who dispute the COVID narrative. The same tricks are being used across the country. I am working to get a lawyer to craft the legal arguments against them, with citations, which we will post. Here is what the FSMB told the Board to charge doctors with if misinformation won’t work:
1. Failure to adequately obtain informed consent by not providing adequate or truthful information to patients about proposed treatments
2. Engaging in conduct that is likely to bring the profession into disrepute (unprofessional conduct)
3. Engaging in unethical conduct by harming the public
4. Using experimental forms of therapy without proper informed patient consent, without conforming to generally accepted criteria or standard protocols, or without proper periodic peer review of results.
Failure to adhere to an applicable standard of care
And the FSMB goes on to make further legal suggestions:
In assessing a licensee’s alleged infraction, state medical boards may wish to consider which factors addressed in the above examples are relevant and addressed in their Medical Practice Acts as bases for imposing disciplinary action. Potential questions and considerations for the board include:
o Did the spread of disinformation occur during the course of provision of care or in the context of an established physician-patient relationship?
o Did the infraction involve conduct on the part of the licensee, or speech only?
o Was the licensee acting in a professional capacity or as a private citizen?
o Does disinformation (in public or private) indicate high likelihood that the same
disinformation is being provided to patients?
o Did the infraction result in harm to the health of the licensee’s patient(s) or did it result in broader harms to the public health?
o Was demonstrable harm involved? Was it direct or indirect harm?
o Did the licensee knowingly disseminate disinformation? That is, can intent be
established?
Note how misinformation got turned into disinformation. However, these are new crimes invented by the COVID thought police, and (although recently criminalized in California) the ‘crimes’ of misinformation and disinformation are almost certainly unconstitutional.
Finally, there is extensive case law supporting the concepts of bodily autonomy and informed consent. Colleen Huber, ND, has compiled much of it here. This will provide support for doctors who have issued vaccine waivers.
Doctors are notoriously quiet about their interactions with Boards. But it is time to work together, develop the best legal strategies, fight back and win some cases—and once we shame the Boards and publicize the fact they have in fact been acting to harm the health of our citizens, this particular form of oppression will, I hope, stop.
__________
Let me end on a positive note. International law is on our side. A total of 172 countries are parties to the International Covenant on Civil and Political Rights:
According to the 1948 Universal Declaration of Human Rights, Article 19,
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
According to the 1966 International Covenant on Civil and Political Rights,
"Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
And the Nebraska Attorney General protected doctors and pharmacists in Nebraska from their Boards, explicitly allowing them to prescribe HCQ and IVM. His opinion is a tour de force, which goes into detail about why the CDC, FDA and NIH guidelines are contradictory, unscientific and should not be followed. It should be cited in every case.
I went through some of this plus a lot of civil litigation. Great comments. I would add: never respond to legal challenges by yourself. Whoever is on the other end will see you as a soft target. Always use a lawyer. That said, you need to craft your responses and the rest of your defense. It's your problem and you are overwhelmingly likely to be the smartest guy in the room. Average lawyer IQ is 115, for MDs, 125, nearly a standard deviation higher. If you don't understand what they say, it's their fault, not yours. They are working you.
Your lawyer is but a counselor. You are the only one who understands the entire situation: your plans, finances, insurance costs, reputation, etc. etc. Take charge but take advice from them as you would a radiologist.
If you find an attorney who is competent and cares, PAY them. Never be late. For all the others, have a low threshold for firing them. Any excuse will do. They may hit you with a big bill as retribution on the way out. You can often ignore this. You may have to write a threatening letter. They usually are ignoring your wishes, missed a deadline, or made some other mistake. Be creative.
Again, if you find someone with your own professionalism, hold them tight. The majority have little "patient first" ethical structure and the most kindly description of their species is opportunistic. If you smell someone taking advantage of you, they are. Draw limits and look around. No one is irreplaceable.
The last thing is that you will have to do all the work. Make the briefs, do the research, and cooperate by training your lawyers about the issues and sometimes the law. Expect this.
There are occasional situations where you have to hire a co counsel to watch the first one. I'm mentioning this not because it's common, but so you can have it in your databank.
Meryl. I think this is important for every doctor challenging any medical board on these issues. Look up the "Hesinki Declaration" of the World Medical Association. Note that AMA is a member organization of the World Medical Association. The original ethics statement by the World Medical Association was adopted in 1964, it was revised and each time approved by the member organizations in each updating. Now the most recent approved version is 2013 which has precedence over all the other prior versions. In the 1964 version it says this: "In the treatment of the sick person, the doctor must be free to use a new therapeutic measure, if in his judgment it offers hope of saving life, reestablishing health, or alleviating suffering."
Thus, when the NIH published their first guidance on Covid for practicing physicians, they said something like (paraphrased) "We recommend no treatment because the research has not been done, and we have no earthly idea what would help or hurt, so therefore, don't do anything unless they turn blue from no oxygen, and then go ahead and admit to hospital and put them on a ventilator. If you want to prescribe meds, get them into a clinical trial and let them be a guinea pig for pharma, or lab rat, if you will." I know it was not exactly that, but when I read it the first time, I was horrified, and I thought - there is no one with any ethics at all, for them to have said that - don't treat. They are so totally enamored of clinical trials, they can't treat without a randomized placebo controlled clinical trial they can't treat patients who are in danger of dying because "we don't know." I would say, the WMA guidelines, which speak of treating if there is HOPE of saving a life or HOPE of alleviating suffering, to give it a try. A far cry from what NIH said. And this is even worse in that, back when it was SARS a few years back, Fauci at the time recommended HCQ for SARS, so now it is a different corona virus and he has no clue what could possibly work? And with Ivermectin, and HCQ both, there were enough positive trials early on and data from many countries to give "hope." Hope of saving lives. The most recent iteration of the WMA ethics statement was very similar.
It does mention if possible to get "consent" from the patient or their guardian, though it does not say it must be signed consent. I always do very careful, detailed patient education with every med I prescribe, and Ivermectin is known to be very safe, and none of my paitents have died, but I don't know why "informed consent" necessarily would have be written to count with outpatients, considering that if they buy it and put in their mouth, seems to me that is implied consent. Also, I do not see this as "experimental" at all even though some of these meds have their detractors, as well as fraudulent research having been created as proof against their use. If you look at documents from the FDA from the past, and also the FDA website from not so long ago, you will see that the FDA clearly admits that their mandate from Congress is only to regulate new drugs coming to market, and they do regulate what drugs can come to market, and they regulate what indications the meds can be MARKETED for - they regulate the drug companies. They have ZERO authority to regulate physicians, ZERO authority to regulate regulate what we prescribe and when and to whom and for what. None. They admitted this in, I think, a 1982 newsletter, the FDA Bulletin. They particularly said that off-label prescribing was legal and ethical and often beneficial to the patient. I am aware just for example that when Lamictal was in trials for being approved for epilepsy, it was observed that Lamcital (lamotrigine) also seemed to help people with Bipolar Disorder. Because at the time, there were not very many options for treating Bipolar, psychiatrists started using it rather often, even while some small studies weere done, then clinical trials were undertaken. This fits with the WMA ethics in that there definitely was "hope" of alleviating suffering even though it didn't have an FDA indication for Bipolar. Eventually it was approved for Bipolar, and it was somewhat simiarl with Depakote, that it came into use in psychiatry because of need for more meds that would work for more people, and that hope of alleviating suffering. In psychiatry, these meds have been used for decades now, and not always for the narrowly defined diagnosis categories specified by the FDA. They may have studied it for one type of Bipolar, but everyone uses it for other forms of Bipolar or even other psychiatric diagnoses. According to what the FDA has said in the past, there should be no negative connotation about prescribing something that is "unlabeled." Once it is approved, it has to be safe to be approved, and if in your medical judgment you think it will help the patient, you as a physician can do it, and they said we can use it "unlabeled" because there is no specific labeling information for whatever diagnosis we might want to use it for, but "unlabeled" would be preferred rather than saying it is an "unapproved" use. It does NOT require "approval" by FDA for us to use it according to our judgment of what may help our patient. Same thing, if a patient gets a rare cancer, we don't say "So sad, too bad, you die." We find some similar cancer med and use it even if it is an "unlabeled" use. You will find certainly purists among academics who will gnash their teeth at anyone prescribing "off label," but you can also find other studies, besides the FDA's words on this and the WMA documents, to support unlabeled prescribing as normal and a good thing. Here are links to two versions of the WMA ethics statements that I have used in the past:
World Medical Association (1975). Declaration of Helsinki 1975. Retrieved from
https://www.wma.net/what-we-do/medical-ethics/declaration-of-helsinki/doh-oct1975/
World Medical Association (2013). WMA Declaration of Helsinki – Ethical principles for
medical research involving human subjects. Retrieved from https://www.wma.net/policiespost/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-humansubjects
And from the FDA which I found from a document in which I had referenced these:
FDA (2018). Understanding unapproved use of approved drugs "off label." Retrieved from
https://www.fda.gov/patients/learn-about-expanded-access-and-other-treatmentoptions/understanding-unapproved-use-approved-drugs-label (Current as of 02/05/2018).
FDA (1982, April). Use of approved drugs for unlabeled indications. FDA Drug Bulletin 12(1),
4-5. Retrieved from http://circare.org/fda/fdadrugbulletin_041982.pd
One of the nice things about the WMA statements - they would potentially be usable in any country, or most, since most national medical associations are members of the World Medical Association.
On patient autonomy which is really paramount in informed consent these days moreso than in the past - two potentially helpful items and I would say, read carefully and think about them.
Chervanek in particular - it's about OB ultrasound, so you would not immediately think it is pertinent, but it is. It says that the patient may have very different values, beliefs and preferences than the MD, and they may even be idiosyncratic, but still, the physician has some responsibility to help the patient to receive her preferred treatment - I'm paraphrasing here, so read what it actually says, but that seems to me that if we have some evidence that Ivermectin is safe and effective, and the patient wants that instead of some treatment the academics like better - okay, so the dean of the local medical school and everyone on the faculty loves, loves, loves Paxlovid and the Pfizer vax, but your patient for idiosyncratic reasons of her own only wants vitamins, herbs, and Ivermectin - why should she not have her autonomy to make this choice? So these two are good with autonomy -
Chervenak, F.A., & McCullough, L.B. (1989). Ethics in obstetric ultrasound. Journal of
Ultrasound Medicine, 8, 493-497. Retrieved from
https://onlinelibrary.wiley.com/doi/pdf/10.7863/jum.1989.8.9.493
Hall, D.E., Prochazka, A.V., Fink, A.S. (2012). Informed consent for clinical treatment.
Canadian Medical Journal, 184(5): 533–540. Retrieved from
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3307558/
I am sure there are many good articles on patient autonomy, but I do very much like these.