“Well, like most of my colleagues, I don’t pick the cases. They are assigned to me by our local Chief Judge of the State Supreme Court -here it would be supposedly judge Amalfi- though in reality his court clerks make the assignments for him. And you know that if I happen to know about the case before hand that I could easily recuse myself from taking it.”
“Unfortunately, said Barbara, though my friend has contemplated dropping her lawyer and going public to the press and then sue the State Health Department, she realizes that the public is not sympathetic to ‘rich docs in trouble’ in the first place; that cases like hers make good gossip, and they and the press often take the side of the accuser as the underdog. They always presume that the accused doctor ’must have done something wrong,’ that ‘the state does not go after you for nothing!”…
“And if they end up really staining her record, (‘who cares about a disgraced doc!’), nobody will lift a finger for her,” admitted her husband Ken, “not her colleagues or her med society or the big societies like the AMA or the ACLU or even the Media. And as far as fighting her case in court, she probably will have to contend first with ‘internal hearings’ held -like Internal Affairs in the police force- in front of a Board presided by one of their sacking lawyers, internally called ‘Administrative Law Judges’ to impress and cow the accused. And remember, Barbara, that all this is very legal now as manufactured by the state legislators, by more lawyers!… Sad!”
“It is not just sad, it is unbelievable. If I were a judge I’d find it intolerable!…” said his wife Barbara.
“And I hear,” Ken went on, “that feisty doctors, for simply not admitting having done something wrong, for refusing to cooperate, for fighting them, find themselves into worse trouble as they, at the State Health Department, are really vindictive and retaliate with vengeance against ‘difficult’ docs towards their total destruction.”
After doing the dishes and pans at the sink while Ken at her side was drying them, both had a small glass of sweet Sherry as she went on:
“My friend has told me that those state disciplinarians have what they call ‘A First Count of Misconduct’ against her on account of that disputed report of hers and that they are now demanding from her to have access to ALL the records of her office. She is fighting them on that, but they’ve given her a deadline. If she does not comply, that THAT will be considered a ‘Second Count’ and THAT will be automatically grounds to pull her license… So, what she can do to keep them out of her office?”
“She can slow them down: She can present a Motion, an injunction, stating that they have no grounds for such search of her office records. She will then have to defend her Motion 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
