Another post for doctors who are being harrassed by their Boards

These are the standards for emergency license suspension in Maine, and they are probably similar in your state. Has your Board followed the rules? Mine didn't.

As is made clear in the first sentence of this Maine Statute, no allegations were made by anyone that any of the allowed reasons for suspending a license applied to me. I suspect the Board members never read or didn’t understand this. The legislature makes the law. The state agencies and Boards simply apply the laws that the legislature has passed. That is how our system of governance works.

Doctors who are being investigated need to read the laws governing Board behavior, over and over, so they know what their rights are. And they need a lawyer who will demand those rights are respected.

https://legislature.maine.gov/statutes/32/title32sec3286.html

Chapter 48: BOARD OF LICENSURE IN MEDICINE

Subchapter 2: LICENSURE

§3286. Emergency action

Upon its own motion or upon complaint, the board, in the interests of public health, safety and welfare, shall treat as an emergency a complaint or allegation that an individual licensed under this chapter is or may be unable to practice medicine with reasonable skill and safety to patients by reason of mental illness, alcohol intemperance, excessive use of drugs, narcotics or as a result of a mental or physical condition interfering with the competent practice of medicine. In enforcing this paragraph, the board may compel a physician to submit to a mental or physical examination by a physician or another person designated by the board.

But the thing is, the Board was not enforcing this paragraph when it ordered me to undergo a neuropsych exam, as no one had claimed I had any of these problems. The statute does not say the Board can use such exams as a punitive measure (I was told to pay $2100 for the exam) nor as a fishing expedition for evidence to be used against the doctor. The Board needs a reason to believe I had one of these conditions, and they had absolutely no reason to think so. They can’t use age as a reason, as age discrimination is a crime in the US.

Failure of a physician to submit to this examination when directed constitutes an admission of the allegations against the physician, unless the failure was due to circumstances beyond the physician's control, upon which a final order of disciplinary action may be entered without the taking of testimony or presentation of evidence. A physician affected under this paragraph must, at reasonable intervals, be afforded an opportunity to demonstrate that the physician can resume the competent practice of medicine with reasonable skill and safety to patients.   [PL 2013, c. 355, §13 (AMD).]

I am ready to demonstrate I can resume the practice of medicine. When do I get the chance? So far I have not been offered this opportunity by the Board.

For the purpose of this chapter, by practicing or by making and filing a biennial license to practice medicine in this State, every physician licensed under this chapter who accepts the privilege to practice medicine in this State is deemed to have given consent to a mental or physical examination when directed in writing by the board and to have waived all objections to the admissibility of the examiner's testimony or examination reports on the grounds that the testimony or reports constitute a privileged communication.   [PL 2013, c. 355, §14 (AMD).]

This part of the statute, I have been told, is unconstitutional because it waives due process. The Fourth Amendment says there are no fishing expeditions without ‘probable cause’ or some type of evidence before your ‘security of person’ can be violated. Since we have a copy of the Board’s file on me, we know they had no evidence supporting a mental health investigation. Their demand was, instead, a political maneuver, which the Board has no authority to do. It is instructive that the Board felt no shame regarding its impersonation of a Soviet show trial.

Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…”

Injunctions must issue immediately to enjoin the practice of medicine by an individual licensed to practice under this chapter when that individual's continued practice will or may cause irreparable damage to the public health or safety prior to the time proceedings under this chapter could be instituted and completed. In a petition for injunction pursuant to this section, there must be set forth with particularity the facts that make it appear that irreparable damage to the public health or safety will or may occur prior to the time proceedings under this chapter could be instituted and completed. The petition must be filed in the name of the board on behalf of the State. 

In an attempt to meet the “set forth with particularlity the facts” requirement the Board listed various things I had said in interviews and listed other minor or invented issues, such as off-label prescribing (how could they not know off-label prescribing was perfectly legal and all doctors who write prescriptions do it???) but they produced no claims nor evidence that anyone was harmed or was in danger, nor did they specify what was lacking in my practice of medicine. I look forward to filing suit against the Board members in their personal capacity for ignoring (breaking) the laws that they are responsible to uphold and fairly apply, after my hearing has concluded.