The Facts Did Not Matter: One Physician’s Experience with the State Board of Medicine

A long time ago, I believed in the integrity of our legal system. Not anymore. Not after what I experienced in 2006 at the hands of the Pennsylvania State Board of Medicine. I’ve often said sarcastically, never let the facts get in the way of a good legal action. In my case, the State Board didn’t.

Let me take you back to 2002. There was no opioid epidemic at the time. In fact, physicians were being criticized for not treating pain aggressively enough. Pain was deemed to be the fifth vital sign, and at every encounter the patient’s pain level was supposed to be graded. The teaching was that we needed to use painkillers to alleviate suffering. National pain organizations taught that addiction was a function of the patient, not the drug, and that opioid doses could be escalated without a ceiling because opioids do not cause end-organ damage other than respiratory depression. We were taught to use a long-acting opioid as a maintenance drug, with short-acting agents for breakthrough pain. There was even news of a lawsuit against a physician in California because he had not provided adequate pain relief for a dying patient. Against this backdrop, I met the patient who would change my life.

Case Description

I first saw MM in January 1996. She was a 60-year-old woman with multiple psychosocial issues, who presented with chronic widespread pain. She had seen many physicians, without benefit. In many cases, her symptoms had been dismissed. She came with her husband, who (I later learned) doubted that his wife was in pain and felt that she was seeking attention. He resented the financial implications of her reports of pain.

I evaluated her for underlying arthritic causes of chronic pain, but her workup was negative. I diagnosed her with fibromyalgia, based on her history of widespread chronic pain, characteristic tender points with an otherwise negative exam, and negative labs. She was already on Vicodin when she saw first me, but it was not adequately controlling her pain.

After evaluating her, I began to adjust her medications, and I titrated her pain medication up. I subsequently placed her on a long-acting opioid and used short-acting opioids for breakthrough pain, exactly following the recommendations that were current at the time. I assessed and reassessed her reports of pain and continued to slowly titrate the doses up, while monitoring for toxicity. Keeping in mind the precepts of aggressively managing her pain, with the then-accepted idea that there was no ceiling dose, I eventually got her up to a very high dose of OxyContin. This was less than ideal, but it was controlling her pain, and she was tolerating the medication without difficulty. She remained on this stable dose for a period of almost four years. It was then that the trouble started.

The Investigation

MM was admitted to a hospital for a completely different issue. The doctors there noted the high dose of opioids and informed the patient and her husband that this was not optimal. The husband responded by reporting me to the State Board of Medicine, which launched an investigation.

My chart was well documented, with detailed notes on what I had done and why.

Usually this would not have been a problem. My chart was well documented, with detailed notes on what I had done and why. Unbeknownst to me, however, the State Board had an underlying agenda. It was looking to set an example for physicians who prescribed indiscriminately, and I happened to fall into the trap. This would not have been an issue, as the facts of the case would have exonerated me; however, it was clear that the Board was not interested in the facts, as evidenced by the “expert” witness called in. It was also clear that the Board did not care about how its false accusations might affect me or my future. I expected more from a regulatory agency.

Dr. Z, the expert witness, was plain and simply a hired gun willing to do the Board’s bidding for a price. He had completed one year of a rotating internship in family practice in the 1960s. He did not do a residency and had no rheumatology training. He had not seen a patient in 14 years and made his living providing “expert testimony.” Had this been an actual lawsuit, he would have been disqualified from testifying based on the 2002 Act 13 mandates in Pennsylvania, which decreed that any expert must have training in the same area as the defendant and must be in active practice or recently retired. Dr. Z met neither of these criteria. That did not stop the state from using him.

Dr Z’s review of my chart can only be described as stunning. I had to ask my attorney if he had actually given my entire chart to Dr. Z, as it was clear that he had not read it. He made a number of baseless assertions, such as remarking on the absence of a patient history or physical examination in the chart, when, in fact, there were a complete history and physical in the chart. His 16-page report contained at least 25 errors of fact. It is one thing to criticize me on my choice of medications or medical judgment. It is another to criticize me for not doing something that the chart clearly shows that I did. As another example of his incompetence, he stated that I failed to document fibromyalgia tender points, when this also was clearly documented. More than 25 errors of fact! This was unconscionable. He based his medical “opinions” on one superficial article on fibromyalgia. His testimony was highly questionable in terms of its accuracy and its validity. Nonetheless, his errors and the argument that this “expert” was not qualified fell on deaf ears. The state did not care, as his testimony served its underlying agenda.

The trial was approaching, and I was a nervous wreck. My integrity, skills, and competence were being impugned, and I was outraged at the written report of this “expert.” My license and my career were at stake, against an opponent who was not interested in fairness or justice.

The Trial

In July 2005 the case went to trial, and I finally met Dr. Z. He extended his hand to me and numbly I shook it. That single act of civility has haunted me ever since. How could I possibly have accepted the hand of someone who willingly tried to destroy me without regard to the truth? I just have not been able to come to terms with that.

For inexplicable reasons, the hearing examiner allowed the testimony of this “expert,” despite his lack of qualifications. During the testimony, the “expert” continued to make ridiculous assertions that demonstrated his lack of knowledge with the current practice of medicine and specifically with the practice of rheumatology. His testimony further demonstrated that he had not read my chart thoroughly. He again repeatedly drew conclusions criticizing my care, which were not supported by the facts of the case. He was on the stand for a day and a half.

After my own expert, who was Board certified in pain management, refuted the nonsense spewed by the prosecution’s “expert,” it was my turn. I was grilled by the prosecuting attorney, but I had an answer for every question. Everything the state challenged was clearly documented in the chart. It was apparent that my testimony was very damaging to the state’s case against me, as I was only on the stand for 20 minutes, compared to the day and a half that the state’s “expert” testified. By the way, this was not a malpractice case, so my insurer would not cover the costs. I paid out of pocket for my defense, to the tune of $30,000 when all was said and done.

Then it was over. I waited nervously for a result and tried to resume normalcy.

The Ruling

Seven months later, in late February 2006, the hearing examiner issued a ruling that exonerated me of all counts except for the fact that the patient had had an 11-month period where she was not seen, but still received prescriptions. Because of this it was ruled that I must take a Board-approved course on how to prescribe opioids (interestingly, the “expert witness” happened to run such a course). The ruling by the hearing examiner ignored the fact that I had seen this patient 35 times prior to this 11-month period, and that she had been on a stable dose of medicine at that time for almost three years. It also ignored the fact that the patient missed three scheduled appointments during this period. The ruling specifically stated that I was “subject to disciplinary action in that I failed to meet or maintain minimum standards in regard to medical reevaluations while continuing to prescribe controlled substances.” It was also determined that “The evidence is insufficient to establish that the care and treatment rendered by respondent constitutes unprofessional conduct in the practice of medicine.” The examiner also noted, “It is clear that Respondent had the patient’s best interest in mind.”

Furthermore, with regard to the 11-month period that MM went without being seen, he wrote “While particularly troublesome, Respondent’s prescription of OxyContin during this period of time did not drop below the minimum standard of care.” Despite these words IN HIS OWN REPORT, he ruled against me as noted.

State Board Review

The State Board immediately reviewed the case. It ignored subsequent briefs from the Pennsylvania Medical Society on my behalf objecting to the qualifications of the “expert.” It said that it did not need his testimony anyway, yet without his testimony, there was no case at all against me. This was befuddling and infuriating, but again was consistent with the Board’s hidden agenda.

The Board issued a final ruling on July 5, 2006, stating that it supported the Hearing Examiner’s position. Despite the Hearing Examiner’s report, which specifically stated that there was insufficient evidence for unprofessional conduct, the Board reported that the basis for action was “unprofessional conduct.”

So now what? The end result of this was that I had to take an online course on prescribing opioids that did not teach me anything that I did not already know. The State Board assured me that as a result of this case, it would subsequently apply Act 13 requirements to its experts. If the Board had followed this rule to begin with, this case would have been dismissed from the outset.

Lessons Learned

I hired an attorney to countersue, but was told that in order to do so, I had to first get a ruling from the State Supreme Court, as expert witnesses and the State Board have immunity. I wanted to get sanctions against Dr. Z, but he was already in his late 70s and had decided not to renew his license. I was powerless. He had already done his damage to me emotionally. I firmly believe that I have a component of post-traumatic stress disorder (PTSD) related to this case, although I have not been formally diagnosed. I have required counseling, however. Even now, 11 years later, I am shaking as I write this. In the interim, my innocence is lost. I do not trust the State Board of Medicine. I will no longer write prescriptions for narcotics. I now refer my chronic pain patients to pain management colleagues.

In my opinion, this case was a travesty. It was not until later that I learned from some political connections about the State Board’s predefined agenda. I am lucky that my chart was well documented, which enabled me to escape from a dangerous opponent with not much more than a slap on the wrist.

I recognize that there is a code of silence when one is involved in legal action that must be broken.

What have I learned? I make sure that my charts are extremely well documented. I encourage my partners and other physicians to do the same. I have become very active in organized medicine, serving in the past as chair of my county’s medical legal committee, and currently as chair of my county medical society and on the Board of my state medical society. It is helpful to have as much support as possible. Furthermore, I recognize that there is a code of silence when one is involved in legal action that must be broken. It is imperative that we speak out against these types of injustices. I have done just that. I have submitted letters to the editor of my newspapers and articles such as this one. I have learned that we need to publicize our experiences to our patients, legislators, and other physicians. The sense of isolation when one goes through something like this can be overpowering. Despite the possible PTSD, this episode has made me stronger. I do not want anyone to go through what I have gone through, questioning myself, my skills and my worth. Hopefully, by telling my story, it will give other physicians strength to endure what they may be going through and will encourage them to share their stories. I firmly believe that publicity and sharing our experiences are our best tools against legal injustice. I hope you will all agree.

Editor’s Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the views and opinions of the Journal, its Editorial Board, or American Association for Physician Leadership®.