Article to Criminologist                                                     Sept., 1,’05
“Corruption at the Texas State Board of Medical Examiners”

     I am poignantly reminded of the scene from the Shawshank Redemption in which the editor for the local Maine newspaper is seen opening a manila envelope with incriminating evidence sent to him by the escaped convict hero played by Tim Robbins.  Immediately, the next scene shows someone briskly slapping down a newspaper on a desk with the provocative headline, “Corruption at Shawshank”.  That is how I feel about the situation at the Texas state board.
     This state agency is using their considerable power and prestige to target certain physicians they have apparently decided have quality of care issues.  Many times in order to assure that the targeted physician comes before an informal conference, totally controlled by the board, they use reviewers with a reputation and history for unprofessionalism, hyperbole and inaccuracies.  My reviewer had received complaints from the local physician community for slanted and unprofessional reviews of other doctors and was brought before the Board of Censors of the Dallas county medical society.  With some of the doctors, the board purposely and deviously did not follow SB104 which established guidelines for fair and impartial physician review.  It mandated that at least 3 doctors would evaluate a case if there were disagreements about standard of care.  But to follow SB104 would possibly thwart their efforts to ensnare the doctor and allow the accused to avoid attending an informal hearing which makes the Spanish inquisition seem like a beacon and historical paragon of justice and equity.  What is even more disturbing about this policy and tactic is that the board does not pursue and adequately investigate certain physicians with a worse quality care history if they are politically prominent or connected with a group or strongly supported by a hospital. Dr Chalifoux’s loss of license was due to the board’s biased and unjustified action.  The state board violated the spirit of fairness by using the 2 same retired neurosurgeons to review all of his cases.  As a result of their prejudicial, inaccurate and manipulative opinions the state board listed 18 cases against him.  The SOAH judges threw out 15 of the cases and 2 of the 3 remaining cases in my opinion and many other experts were very minor.  The one serious charge was very controversial with conflicting opinions from a variety of specialists but the critical fact was that other neurosurgeons in Texas have a malpractice case with at least one large award and death.  There was nothing about the EF case that made it much worse than other cases with the same outcome.  Yet the board in spite of the evidence and their prior decisions terminated his license.  Dr. Pate, MD who sits on the board was opposed to removing his license for 1 unfortunate case because you would then have to revoke the licenses of a substantial number of doctors in Texas.  Dr. D. Garza, another member was quoted as exclaiming, “I don’t care….” One state has recently awarded him a license and another state is allowing him to retain his license after a thorough review of the cases in Texas by a number of unbiased and competent neurosurgeons some of whom are professors of neurosurgery.  This further makes the boards actions seem unenlightened, manipulative, vindictive and wicked.
     I testified for Dr. Chalifoux even though I had been before the board several times involving illegitimate peer review actions by certain hospitals.  In spite of having been completely exonerated, the new regime in their zeal to prosecute doctors considered my acquittals as a mistake and miscarriage.  The fact that I was helping Dr. Chalifoux coupled with my testimony at the Sunset committee only infuriated and emboldened them more.  One of the hospitals that I had a peer review action was at Columbia Plaza Medical Center.  Though the hospital lied to the board about some of the facts and never sent any formal charges, only 4 charts, the board would not investigate this gross abuse and manipulation of the peer review process.  The neurosurgical group at that hospital was in direct competition with me and Dr. Chalifoux.  They were doing inappropriate surgeries and receiving preferential referrals from other Columbia hospitals in violation of Medicare rules.  The anti-competitive actions were the result of collusion between the administrators at several Columbia hospitals.  There was no way either Chalifoux or myself would ever receive fair treatment.  Their complication rate was high and one of their members has over 7 major settled malpractice cases with some resulting in paralysis and death.  In spite of that malpractice history and numerous patient complaints, the board failed to pursue any reasonable investigation.  Of course, one of the doctors in the ophthalmology group of the then president of the board was friendly with the head of that neurosurgery practice.  From a political perspective we were anathema to the board and tagged as troublemakers.
    
     Now they are coming after me.  I had a malpractice case filed in which a patient, JF, died.  The plaintiff attorney is not going to pursue this case after the pathologist hired by him testified that the patient had an existing arteritis and extensive pre-existing vertebral artery dissection that resulted in his stroke and multisystem organ failure leading to his eventual demise clearing me of any wrongdoing.  But this didn’t stop the board because they saw a great opportunity in this patient’s death to finally get me.  In direct violation of the legislature’s directives codified by SB104, they only used that prejudicial neurosurgeon in Dallas who had reviewed previous cases concerning me and had a reputation among many neurosurgeons and orthopedists of being very rigid, inflammatory and imprecise in his opinions.  His previous judgments of me were always inaccurate, biased and unprofessional and had been routinely discredited in the past.  What is even more disturbing was that several members of the board at various times had voiced their assessment of his opinions as grossly malicious.  One doctor, Buddy Siebenlist, MD, at an informal hearing actually apologized saying, “that the board is not always responsible for the expert”.  The board and Dr. Patrick knew that allowing this particular doctor to review the case was like putting a red cape in front of a bull.  With the predicted expert evaluation by this churlish and opinionated neurosurgeon, they railroaded me down to Austin and were able to manipulate the informal hearing and offered me such an outrageous and unjustified penalty that I had no choice but to decline.  The civilian representative, David Baucom, on the informal hearing panel stated that he had never read a more vicious and malignant review in his whole time with the board.  At the SOAH hearing, this physician coyly and shockingly admitted during cross-examination by my lawyer that he was biased.  They got another expert for the SOAH trial who was the Orthopedic spine surgeon used by the plaintiff attorney.  He is from TBI, hardly a bastion of operative conservatism, and is known to be biased towards me as documented from a deposition by a prior fellow at his institution.  This doctor admitted before the SOAH judge that he never reviewed the facts concerning this patient prior to his initial consultation and by doing that violated his code of ethics.  He had no problem accepting the fee from the attorney.   
     Even though I clearly showed that I did not violate the standard of care the final result remains unclear at this point since one can never be certain about the allegiance, judgment and integrity of the administrative judges.  In addition to the various picayune charges brought against me, the lawyer for the board accused me of doing unnecessary surgery even though the patient was approved in accordance with TWCC rules in which another neurosurgeon agreed that the operation was justified and reasonable.  In addition, Dr Kim, chief of spinal neurosurgery at Stanford and Dr. Melgar, chief of spinal neurosurgery at Tulane both testified that the surgery was indicated and appropriate and I did nothing to cause his demise.  But the board when it wants to destroy a doctor doesn’t have to be reasonable and can make the most outrageous claims and accusations supported by very biased reviewers.  Even if the physician’s actions and results are clearly consistent and conform to other similar specialists throughout the state, the board doesn’t care and never lets the facts dissuade them from their anointed rounds of persecution and retribution.
     In my case, the board cynically and illegally failed to follow established guidelines for reviewing and investigating the criticized case because they knew that an honest evaluation by impartial reviewers would exonerate me.  Even though I was trying to correct an unsavory situation at several Columbia hospitals and suffered a retaliatory peer review action in which the board completely exonerated me, they are now condemning me for that occurrence in concert with their accusations concerning patient JF in order to finally silence and discredit me and protect certain influential doctors at these hospitals.  An independent outside review of my cases versus the neurosurgical group would undeniably show that the quality of care deviations and failures belong to this group.  Recently, various physicians have surreptiously told me that the Plaza facility has had what appeared to be a noticeable number of patient complications attributable to the neurosurgeons practicing there.      
      Where is the corruption?  It is as old as human civilization in which a powerful governmental entity fails to properly do its duty which in this case is protecting the people of Texas from incompetent and impaired doctors because they are more concerned about protecting powerful and influential doctors and their own self-aggrandizement.  There may not be any documented financial kickbacks, at this time, but there is the retention and enhancement of their political power and control of a dominant regulatory function which carries its own reward in so many ways.  As an example, Lee Anderson and his ophthalmology group were able to go after a competitor, Harold Granek, MD, with trumped up charges initiated by his partners.  One can never underestimate the vanity and self-importance that goes along with being on the board.  Dr Roberta Kalafut, a physiatrist from Abilene, and now president of the board apparently will stretch the truth to feed her egomania.  Though she did a physiatry fellowship at Sinai hospital in the Baltimore area not affiliated with John Hopkins Medical Center, she falsely implies that her training was partly involved with that famous and prestigious institution.  Many physicians who have come before Dr. Kalafut state that she is rude, bombastic, abusive and accusatory and rarely concerned with the actual facts.  Dr. David Dunning of Cornell and Dr. Justin Krueger of University of Illinois did a study in which they found no lack of conceit among the incompetent.  In their article in the Journal of Personality and Social Psychology, they wrote, “not only do they reach erroneous conclusions and make unfortunate choices, but their incompetence robs them of the ability to realize it”.  These psychologists would find a fertile field of research with this topic at the TSBME.  Dr. Jose Benavides is a glaring example of such incompetence.  He and a civilian dealt with the complicated case involving JF at my informal hearing.  He basically spent the entire time lecturing me about the importance of a neurosurgeon consulting a neurologist in order to determine if a cervical operation was reasonable and appropriate.  Though their findings were fairly benign and were that one, I should have documented who was covering for me and two, should have had the radiologist redictate his post-myelogram CT scan report, they decided to give me many years of probation and have 50% of my cases reviewed prior to any surgeries.  Such a draconian punishment was not justified from their insignificant findings and clearly was pre-arranged with Dr. D. Patrick in violation of the board’s rules and regulations concerning the informal hearings independence in assessing punishment.  The other disturbing aspect of Dr. J. Benavides is that he has been on the board for more than the allotted 4 years.  There is a clique of physicians at the board that have exceeded the requisite 4 years of service.  L. Anderson has served 8 years with expiration in 2007, Benavides and Garza have served 6 years, Kirksey has served 10 years with a recent re-election and term expiration in 2007 and finally Miles and Price have served 8 years and were just reelected.  Selinger has been on the board 6 years and was re-elected.  Her husband is a state senator which is suppose to disqualify her.  The Federation of state medical boards of the U.S. only recommends that a doctor serve on the board for no more than 4-6 years.  There is good reason for that.  Many very thoughtful individuals realize that some doctors may become arrogant, motivated by personal ambition, too opinionated and unable to dispense punishment in a fair and equitable manner partly due to relationships and prejudices that develop over many years when serving in such a high profile position.  But probably the most serious concern is that some physicians mesmerized by their stature will forsake their independence and do almost anything to remain on the board.  There can be a corruption and subversion of ethics, justice, probity and the true spirit of the law.   In order to fool the legislature concerning their total commitment to deal with real physician problems in a consistent, legitimate and nondiscriminatory manner and allow the politicians to exclaim that, “We are ridding this state of bad doctors”, they artificially increase their numbers of prosecution by nefarious and illegitimate means against some good doctors. 
     The Texas board gets a failing grade for not appropriately dealing with fraudulent hospital peer review.  Their cowardly disinterest in not investigating incidents of wrongful peer review throughout Texas has consequences for health care quality and physician competition.  In 2004, the board exonerated 68% of doctors who had an unfavorable peer review action.  This statistic is even more disturbing and alarming in that the evidence against these doctors must have been extremely slanted, fabricated and unconvincing for this agency to clear them.  This percentage closely approximates the statistic estimated by Dr. Fielder.  In the book, “Health care crisis-the Search for Answers, edited by B. Jennings, MA, D. Orentlicher, MD, JD, and M. Dewar, MD, JD, John Fielder, PhD, has a chapter on peer review in which he states that as much as 70% of peer review is initiated for economic reasons.  He describes a disturbing pattern of reliance on peer review to remove unwanted doctors for underlying financial reasons.  Peer review more often than not protects bad doctors at the expense of good doctors who are generally non political and simply want to take care of their patients.  The board was not the least concerned about this trend and failed miserably to closely examine this phenomenon.  Such a high exoneration rate implies that many good doctors are being targeted by their competition in an unfair and unethical manner.  Maybe, some of those hospitals are hiding unfavorable morbidity/mortality statistics of certain influential and big income producing doctors which could be determined by a review of the THCIC data.  This why the Colorado board requires that a terminated physician from a hospital who is cleared must be reinstated on the medical staff.  Some perceptive individuals feel that when an innocent and competent doctor is removed from a hospital staff it allows the competition to gain a greater dominance.  Sometimes, this results in an arrogant mindset, poor patient care, increased morbidity/mortality, and overutilization.  This can occur more readily when there is no counterbalancing input within the hospital staff to the dominant group or well established doctors.  Always be mindful that the doctors generally picked for the board are political appointees nominated for the amount of their donation to politicians and not for their professional standing and integrity.  The newspapers in Texas are no better. Even though a cardiologist in Dallas recently won a $360 million lawsuit against a prestigious hospital and three doctors for anti-competitive and unjust peer review, the press is fearful and hesitant to investigate and inform the public about this very important case even though it has significant ramifications for quality of care because of the economic and political stature and power of hospitals in this state.
     Clearly, the TSBME will not or cannot forcefully and effectively condemn and investigate illegitimate and anti-competitive peer review that has untoward consequences for the people of Texas.  Of course, the members of the board benefit from the present peer review system that protects the more influential doctors.  Neither can the public rely on the politicians, organized medicine, newspapers or hospital administrators to ensure that they are routinely receiving the best treatment.  That is because none of these entities are committed to promoting or establishing a realistic system at the hospital level that is truly accountable and to formulating a democratic peer review framework that forces those doctors irrespective of their standing with real documented deficiencies to correct them, undergo remedial training or to avoid certain procedures or surgeries.  If the public thinks peer review is working then one only has to examine the events at the Tenet hospital in Redding, Ca.  Apparently, hundreds of patients had inappropriate, unnecessary coronary artery bypass surgery.  Although, it appears there were doctors who knew about this situation which involved collusion between the administration and several physicians, none of them dared to report their concerns or take any decisive or assertive action due to their fear of reprisals or loss of referrals by those in control both at the administrative level and physician level.  Although, numerous patients were being hurt, neither the credentials committee, nor the medical executive committee, nor even the board of trustees did anything to remedy or change this alarming and despicable situation.  Peer review did not protect any patients in Houston from Dr. A. Scheffey who had over 60 malpractice cases and multiple deaths.  This and similar situations maybe not as blatant occur all the time and many times potential whistleblowers are fearful to report or criticize quality of care issues in hospitals.  The public needs to demand a change to insure that unfavorable conditions are fixed.  The recent legislation that permits doctors to report a maloccurrence and be protected from potential litigation is only a small step forward since it is not an all inclusive revamping of hospital peer review which would lead to a proactive atmosphere rather than a reactionary response totally dependent on physician self-reporting. 
     Maybe, I have been too critical and disparaging of the Texas board and don’t have a deep appreciation and understanding of their grand design.  I know of many neurosurgeons and orthopedic spine surgeons in Dallas/Tarrant counties who have done surgeries that could easily be viewed as inappropriate, who have had poor surgical results with complications, who have had patient complaints, who have exhibited unprofessional attitudes and behavior and who have been lest than honest with their patients about indications and results.  With the properly selected reviewer, many of these physicians will undoubtedly have to travel down to Austin for an informal hearing, where the board could do with them as it wishes.  There is a surgeon in Houston scheduled for an upcoming SOAH hearing as a direct result of the opinions of a well known doctor who does not have a great reputation for fairness and perspicacity among his peers and was one of the reviewers involved with Dr. Chalifoux.  Apparently, this consultant was upset about the number of worker comp. cases this Houston spine specialist was performing placing him as one of the top worker compensation billers in Texas.  This consultant is to face a trial soon stemming from a lawsuit filed by a neurosurgeon in the Valley in which the allegation involves producing and disseminating an incorrect and unprofessional report against the doctor in the Valley.  But this reviewer and the board should not stop with just this Houston physician.  I know of a neurosurgeon in Arlington who billed over $2 million from workers comp., much more than the doctor in Houston.  He does many fusions and many of his patients continue to be symptomatic.  Lest I forget, there is an orthopedic spine specialist in the mid-cities area who billed as much as the surgeon facing the SOAH experience.  Surely, this consultant can get the board to investigate these suspicious specialists.  If we are going to have an inquisition, we should not narrow our scope or goals but must think big.
     This board’s gestalt reflects the fundamental problem afflicting modern medicine with its rampant corporization and pursuit of economic gain.  The failure to be fair, judicious and consistent in all their actions.  Though the board clearly deserves kudos for some of its efforts in improving and enhancing the investigation, prosecution and punishment of some physicians particularly those with drug, alcohol and sexual problems, that doesn’t absolve them of other undesirable practices and characteristics, such as abusive and unjust prosecution.  The type of behavior exhibited by the board is rampant throughout medicine and is reflected in all arenas of endeavor such as malpractice testimony, peer review hearings, hospital investigations, clinical consultations and etc.  A profession that cannot ensure justice for all allows an atmosphere of cynicism to develop and subverts a sincerity of motive or rectitude of conduct.  Into this moral void, medicine is too often dominated by only the more powerful, influential and venal members of our profession.  The malpractice crisis is partly due to excessive unprofessional and slanted testimony.  The AANS just sanctioned one doctor and suspended 2 physicians from the organization for making statements that were not consistent with standard of care during malpractice litigation.  This is but the tip of the iceberg.  Unfortunately, for many physicians similar testimony used against them is protected by immunity constraints and cannot so easily be exposed and criticized.
      This essay is not written to absolve me of any personal responsibility or legitimate criticism.  Rather, it is to alert the public that the state medical board and many hospitals do not dispense sanctions and punishment in a fair, consistent, judicious and appropriate manner.  This undeniably leads to health care quality problems and failures since influential and powerful doctors can avoid blame and have no reason to improve or modify their behavior and arrogance.  The politicians and hospital administrators would have you believe that everything is fine and proudly point to an occasional headline about some doctor being punished.  Such a situation is similar to vociferously publicizing an anti-crime campaign that in reality only arrests petty criminals and leaves organized crime members and corrupt officials alone.  A few doctors are not the cause of the IOM study that suggest thousands of patients die needlessly in hospitals every year from a wide variety of problems some related to physician omissions and commissions.  Nationwide, the pace of change is painstakingly slow and the death rate has not changed much.  It is much easier to attack the messenger than the message.  My predicament reminds me of a refrain from Plato’s, “Apology”, “Yes, Socrates, but what is the origin of these accusations which are brought against you; there must have been something strange which you have been doing?  All these rumors and this talk about you would never have arisen if you had been like other men: tell us, then, what is the cause of them, for we shall be sorry to judge hastily of you.”
     Sir Francis Bacon said, “We are much beholden to Machiavelli and others that write what men do, and not what they ought to do.”  Machiavelli in his treatise stated the human nature does not change only institutions.  Consequently, many of the present board members should be purged.   
     When the entire French general staff tried to railroad Dreyfus even though they knew he was innocent in order to protect their reputation and avoid recriminations, there was only Emile Zola to defend him and tell the truth.  Thank goodness that the Criminologist has the courage to expose rampant injustice within the medical community whether it involves, medical boards, hospitals or insurance companies.

   John B. Payne, DO