Legal Precedents & Principals:

 

Illegal vs. Criminal Actions:

All illegal actions are not criminal; one proposed definition is that a crime or offence (or criminal offence) is an act harmful not only to some individual or individuals but also to a community, society or the state ("a public wrong"). Such acts are forbidden and punishable by law.[1][4]

 

There are numerous types of legal specialties as noted by www.lawyers.com.  Many of these specialties would be appropriate to bring action against the NCMB, NCMS & NCPHP.  The NCMS is clearly legally entwined in the pattern of corruption of the NCMB & NCPHP as noted by the requirements of NC General Statutes Chapter 90, which governs the NCMB.

 

Many law firms have concerns that the state of NC will claim “sovereign immunity” if pressed by a plaintiff on the actions of the unregulated, unsupervised NC Boards. 

 

To date, the NCMB has been able to hide behind their claim of Sovereign Immunity, claiming protection from facing charges of negligence and willful wrongdoing.  Luckily the phrase used throughout North Carolina General Statute Chapter§90 contains the clause "in good faith" which limits their ability to hide behind this claim.  The NC Medical Board has waived its sovereign immunity for tort claims against the state to the extent provided by the Tort Claims Act

 

In Williams v. Pasquotank County, Eric’s estate sued the county and the department for the young man’s wrongful death, alleging that the “swimming hole” was unsafe.  It’s conclusion;

“The North Carolina Court of Appeals’ decision in Williams was undoubtedly a significant one for the Williams family and Pasquotank County. But if the decision attains greater long-term significance, it will be found in the guidance the opinion provides to future courts and the clarity the court attempted to bring to an important but confused area of the law. Whether it will ever achieve that significance is—for now—up to the North Carolina Supreme Court. A petition for discretionary review is pending.”

 

The NC Supreme Court upheld in Bynum v. Wilson City [367 N.C. 355 (2014) on pp. 361-362 that if fees are collected by a state agency did not categorically render the County immune from plaintiffs’ tort claims.  While this ruling applied to the Wilson County, it could be generalized to include other state agencies, as the County is essentially a state agency charged with governing the affairs of Wilson County.

 

The NCMB collects annual license renewal fees.

The NCMS requires annual membership fees.

The NCPHP charges participants a monthly fee.

 

Precedent is important in legal issues; it has clearly been set in this regard.  Essentially, the NCMB is a business because it collects fees and has no adequate state-level oversight.  

 

An argument may be made that the NCMB enjoys the lack of competition, as it’s the only licensing agency in the state for physicians and mid-level healthcare providers.  Consider the situation in this era of “telemedicine” however.  If a physician on another continent is using telemedicine to review imaging studies or perform another procedure or provide opinions etc., duly licensed by the locale in which they practice, but don’t have a full NC license, are they not practicing in NC without a NC license?  This would remove the lack of competition and further remove the sovereign immunity enjoyed.

 

Furthermore, State licensing boards composed of market participants do not enjoy automatic immunity from antitrust laws, the Supreme Court ruled.  The FTC sued the NC Dental Board because it prohibited teeth whitening services from operating independently in shopping malls.  The SCOTUS ruling was heavily influenced by the lack of appropriate oversight of the NCDB by the NC State authorities.  The state has been negligent in their oversight of their professional Boards.  This was noted by the NC Office of the State Auditor in their report of August 2014 regarding ALL professional and licensing boards in the state failing to meet their requirements by the state regarding filing required reports on time and other issues.  Any criminal act by state employees can remove their claim to sovereign immunity as noted in the case of Sanon v. City of Pella (Iowa).

 

Immunity;

2013 article from Trey Allen of UNC School of Government on the Immunity of the State and Local Governments from Lawsuits in North Carolina;

1.     Sovereign immunity is the state’s immunity from most kinds of lawsuits unless the state consents to be sued.  Governmental immunity is generally understood to be that portion of the state’s sovereign immunity  which extends to local governments.

2.     Claims not barred by sovereign or governmental immunity.  Contract claims Neither the state nor a local government is immune from a claim for breach of a valid contract; by entering such a contract a governmental body waives immunity and consents to be sued for damages for breach of its contractual obligations. 

3.     Claims for violations of the North Carolina Constitution. A plaintiff may not proceed with a claim directly under the NC Constitution when an adequate alternative remedy is available.    Corum v. University of North Carolina, 330 N.C. 761 (1992).    For example, the availability of a tort claim for false imprisonment prevented a plaintiff from pursuing a claim that she was wrongfully imprisoned in violation of the state constitution. 

4.     Claims arising under federal law. Given the complexity of the topic, a few points will have to suffice regarding lawsuits under 42 USC § 1983 for deprivation of federal rights.  Although the 11th Amendment to the United States Constitution generally bars federal lawsuits against the states, local governments are not considered an arm of the state and are therefore not entitled to immunity from § 1983 actions.  Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978).  Local governments may be sued for federal constitutional violations attributable to their official policies or customs. Individual local government officers and employees also may be sued under § 1983.    Legislative or judicial immunity – discussed below – may shield public officials sued individually from liability for legislative, judicial, or quasi judicial acts.  Other public officials may have a qualified immunity/good faith defense, which means they are subject to payment of monetary damages only if they knew or should have known that their acts were unlawful.  

5.     Sovereign immunity for tort claims against the state. The state has waived its immunity against tort claims to the extent provided by the NC Tort Claims Act (“TCA” or “Act”).  The Industrial Commission has exclusive, original jurisdiction over claims covered by the TCA.    See Guthrie v. North Carolina Ports Auth., 307 N.C. 522 (1983).   Nonetheless, the state may be brought into a tort action in superior or district court as a third party or third party defendant pursuant to Rule 14(c) of the NC Rules of Civil Procedure. The TCA permits recovery for injuries caused by the negligence of state officers, employees, or agents acting within the scope of their duties under circumstances that would subject the state to liability if it were a private individual.  G.S. 143291(a).  

6.     Governmental Immunity for tort claims against local governments. Governmental immunity bars tort claims against local governments for injuries caused by their employees or agents acting within the scope of their duties in the performance of governmental functions.  It does not protect a local government from tort claims arising from the performance of proprietary functions.  A term describing the duty or capacity of a city to enter into business ventures or to perform discretionary acts in the best interests of the citizens.

7.     Claims under state law against an individual public official or employee. Public officials and employees may be sued in their official or individual capacities.  An official capacity claim is really nothing more than a claim against the governmental body, and the governmental body, not the official or employee, is on the hook for any damages awarded.   Governmental immunity bars an official capacity claim to the same extent it would bar the claim if the governmental body were named as the defendant.  Mullis v. Sechrest, 347 N.C. 548 (1998).    An individual capacity claim seeks damages from the public official or employee personally.  See Williams v. Holsclaw, 128 N.C. App. 205 (1998).  While governmental immunity does not protect public officers or employees from individual capacity claims, they may be shielded by other immunities, several of which are described below. 

8.     Legislative immunity. Like members of the General Assembly, local elected officials enjoy absolute immunity from claims arising from their actions so long as they were (1) acting in a legislative capacity at the time of the incident resulting in the alleged injury and (2) their acts were not illegal.  Vereen v. Holden, 121 N.C. App. 779 (1996); Scott v. Granville County, 716 F.2d 1409 (4th Cir. 1983).  These officials had been previously notified of the shortcomings and illegal activities of the “Big 3”, their acts transcended negligence to the level of tort claims against them.

9.     Judicial immunity. Judges are not liable in civil actions for their judicial acts, even when done maliciously and corruptly.  Cunningham v. Dilliard, 20 N.C. 485 (1839); State ex rel. Jacobs v. Sherard, 36 N.C. App. 60 (1978).  The immunity applies even when the judge acts in excess of jurisdiction, but there is no immunity when the judge acts without jurisdiction at all. 

10.  Public official immunity Public official immunity bars civil claims against public officials for actions taken within the scope of their duties unless those actions were malicious or corrupt.  Epps v. Duke Univ., 122 N.C. App. 198 (1996).  This immunity does not extend to public employees, who may be held personally liable for injuries caused by negligence in the performance of their duties.

11.  Statutory Immunities; Defense of local officials and employees and payment of claims against them; The statutes governing counties, cities, and public schools all authorize, but do not require, the governing board to provide for the defense of current and former board members, officers, and employees against civil or criminal claims based on acts or omissions allegedly within the scope of employment.  G.S. 153A97 (for counties); G.S. 160A167 (for cities and counties); and G.S. 115C43 (for public schools).    Collectively G.S. 160A167 and G.S. 115C43 allow, but do not require, boards of county commissioners, city councils, and school boards to pay civil judgments entered against the same categories of current and former board members, officers, and employees for acts or omissions within the scope of their duties.   No such claims may be paid, though, unless the governing board has adopted uniform standards stating when payment shall be made.  For school boards, the uniform standards must also specify when the board will pay for the defense of claims.

Occupational board liability for negligent acts:

2012 North Carolina General Statutes Chapter 93B - Occupational Licensing Boards. Section 93B-16 - Occupational board liability for negligent acts.

Universal Citation: NC Gen Stat § 93B-16 (2012)

93B-16. Occupational board liability for negligent acts.

(a) An occupational licensing board may purchase commercial insurance of any kind to cover all risks or potential liability of the board, its members, officers, employees, and agents, including the board's liability under Articles 31 and 31A of Chapter 143 of the General Statutes.

(b) Occupational licensing boards shall be deemed State agencies for purposes of Articles 31 and 31A of Chapter 143 of the General Statutes, and board members and employees of occupational licensing boards shall be considered State employees for purposes of Articles 31 and 31A of Chapter 143 of the General Statutes. To the extent an occupational licensing board purchases commercial liability insurance coverage in excess of one hundred fifty thousand dollars ($150,000) per claim for liability arising under Article 31 or 31A of Chapter 143 of the General Statutes, the provisions of G.S. 143-299.4 shall not apply. To the extent that an occupational licensing board purchases commercial insurance coverage for liability arising under Article 31 or 31A of Chapter 143 of the General Statutes, the provisions of G.S. 143-300.6(c) shall not apply.

(c) The purchase of insurance by an occupational licensing board under this section shall not be construed to waive sovereign immunity or any other defense available to the board, its members, officers, employees, or agents in an action or contested matter in any court, agency, or tribunal. The purchase of insurance by an occupational licensing board shall not be construed to alter or expand the limitations on claims or payments established in G.S. 143-299.2 or limit the right of board members, officers, employees, or agents to defense by the State as provided by G.S. 143-300.3. (2002-168, s. 1.)

Disclaimer: These codes may not be the most recent version. North Carolina may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

 

Can A HIPAA Violation Give Rise to a Private Cause of Action?

| by Edward Vishnevetsky| 

Enacted in 1996, the Health Insurance Portability and Accountability Act (HIPAA) requires covered entities to maintain the confidentiality of patients’ medical records and other protected health information.

If an entity violates HIPAA, the Department of Health and Human Services may impose a civil or criminal penalty against the violator. But what if the HIPAA violation causes calculable harm? Can a person or entity sue for a HIPAA violation?

Generally, no. HIPAA does not give a person or entity the right to file a lawsuit based on a HIPAA violation. However, recent cases may offer a new twist on an old rule.

In 2006’s Acosta v. Byrum, the plaintiff, Heather Acosta, used the privacy and security provisions of HIPAA to establish the standard of care owed by a defendant, Dr. David Faber, with regard to Acosta’s medical records.

The court noted that Acosta did not bring a claim under HIPAA itself, but simply used HIPAA to establish the “duty of care owed by Dr. Faber with regard to the Privacy of the plaintiff’s medical records.” The court further noted that Acosta stated in her complaint that, when Dr. Faber provided his medical access code to Byrum, Dr. Faber violated the rules and regulations established by HIPAA.

The court reasoned that this allegation did not state a cause of action under HIPAA because Acosta merely cited HIPAA as evidence of the appropriate standard of care, which is a necessary element of negligence. Because Acosta did not sue Dr. Faber for violating HIPAA and simply used HIPAA to establish the standard of care, Acosta was not precluded from bringing her claim.

 

A recent case, Hinchy v. Walgreen Co., also examined the use of HIPAA as evidence of the standard of care for a pharmacist’s duty of confidentiality and privacy in regards to private patient information. In Hinchy, the defendant, Audra Peterson worked as a pharmacist at the Walgreens which plaintiff, Abigail Hinchy, used as her sole pharmaceutical provider.

Hinchy claimed that Peterson’s actions fell below the standard of care provided by HIPAA, and that Walgreen’s was liable since Hinchy’s records were accessed under the scope of Peterson’s employment.

The jury found for Hinchy and awarded her $1.44 million in damages, making it the first case where substantial damages were awarded in which HIPAA was used as evidence of the standard of care.

 

To recap, individuals do not have a private right to sue covered entities for violations of HIPAA. However, individuals have found a way to circumvent this preclusion by filing causes of action in state courts.

 

In Acosta and Hinchy, state courts have allowed plaintiffs to use HIPAA as a standard for the measurement of the duty to maintain confidentiality in negligence, privacy, and professional liability cases. 

Due to the broadness of state tort laws pertaining to negligence and privacy and the substantial damages awarded in Hinchy, covered entities should re-evaluate their HIPAA compliance program and ensure mechanisms are in place to safeguard against violations of HIPAA.

Edward L. Vishnevetsky, an associate at Munsch Hardt, focuses on health law and commercial litigation.

The NCMB has oversight and is responsible to the Joint Legislative Program Evaluation Division a bicameral, non-standing committee composed of the following legislators.

These types of Board issues are long-standing, spanning many states, years and health professions.

 

Clearly the actions of the NCMB ARE CRIMINAL due to their pattern of repetitive illegal actions resulting in multiple injuries!

1.     Formal hearings by the NCMB do not follow state law for legal proceedings. 

2.     Generally, defense attorney objections are overruled while Board attorney objections are sustained. 

3.     Witnesses for the Board are not segregated as the photo shows away from each other, allowing them to compare stories.

4.     The same cannot be said of defense witnesses. 

5.     The hearing panel does not include the entire Board; only certain members are empaneled. 

6.     The NCMB legal department, theoretically choosing panelists who can be partial to the NCMB legal departments arguments, can set up the empanelment.  Their legal department “stacks the deck” against the licensee by their choice of board members on the panel.

7.     Panel members are briefed by the board attorneys before the hearing—there is no impartiality.

8.     Legal requirements, including the most basic tenet of US law that the accuser must testify in front of the accused are disregarded despite objection from the defense. 

9.     The administrative law judge (retired) that sits on the panel allows all of these violations of legal courtroom procedure.

10.  Every bit of evidence against the accused is presented in a distorted and inflammatory manner regardless of the facts of the case.

11.  Any legal representation must be encouraged to submit as much evidence as possible. 

12.  Any licensee appearing before a NCMB panel should plan on losing in front of the NCMB panel; appeal to the Wake County Superior Court provides the only impartial review available—but they won’t look at additional evidence.  Any and all defense evidence must be presented in front of the NCMB Formal Hearing Panel in order to be admitted for consideration by the Wake Superior Court!

Legally, a Medical License is deemed to be property; specifically the property of the practitioner, not of the Board of Medicine.   Disciplined North Carolina licensee’s can and do get licensed in other states.  We have discovered several NC-disciplined providers who have been able to get licensed in other states with little difficulty.  One can go on with their career and life.  It’s should also be possible to go back before the NCMB with the release of the state audit to remove the effects of misdeeds of the NCMB.  

Tennessee & South Carolina seem to have more reasonable medical boards.  Providers who have lost their NC license have been known to get licensed in these states.

 

Texas and Maryland are to be avoided.

 

Unfortunately, being caught with a trivial, unintentional error in the application process can be quite rewarding for the Board.  The NCMB generates thousands of dollars monthly from providers who unintentionally make mistakes in filling out the misleading application form, as a review of the minutes from these meetings will attest. 

 

This has been a long-ongoing process as noted by the length of time period that these fines and punishments have spanned.  There appear to be no plans to clarify the form and kill the golden goose of this extra income.  These errors are also annuities of a sort for the Board; licensees are generally rewarded with a “Public Letter of Concern” to accompany their initial fine for having a “wrong” answer (arbitrarily in the mind of any Board member) on their application.  This letter of concern will be publicly displayed on the Board’s website so that if the practitioner should ever inadvertently offend a future patient, there’s a much greater chance of that patient writing future complaints to the Board about that “bad” doctor!  This increases the opportunity for the NCMB to call such a “bad” provider in front of an investigative committee for further actions as we have demonstrated on this site.  In one author’s experience, an admonition was given that the directions on the form should have been ignored in a certain area, since they were followed, a public letter was placed in that practitioners file.  Other providers are faulted for not following every direction to the letter-including ambiguous directions.

 

Once an unfortunate practitioner falls under the scrutiny of the Board, the adventure drastically intensifies!

 

Unlike the story given by multiple “defense” attorneys specializing in dealing with the Board, practitioners actually DO have legislative protection!  The Board illegally ignores the North Carolina General Statutes set in place to govern it.  One of the defense attorneys actually commented to a witness and an author regarding when representation by an attorney was needed would be in situations in which:  “Those circumstances might include when the physician is being threatened with being taken out of practice, rather than a two year, then return to practice.”  In other words, if the NCMB plans to permanently revoke the medical license, get an attorney; otherwise it’s probably unnecessary and unlikely to be helpful. 

 

Truth be told, one author’s experience has been that attorneys who regularly deal with the Board often act as covert agents of the Board.  Interviews with various practitioners have revealed that some of them were advised BY THE BOARD which attorneys to use.  One of these defense attorneys demanded an up-front retainer of $75,000 before he would do any work to represent to represent a client before the Board!  There is a lot of money to be made by those playing on the Board’s field.  The Board regularly refers its licensee’s who have come to their attention to a select group of attorneys that it regularly works with; attorneys who have been shown to cooperate well with the board, to not have their accused clients best interests at heart.

 

The term “Consent Order” is basically the licensee’s agreement to accept a disciplinary action proposed by the NCMB Legal Department.  The attorneys for the Board typically greatly exaggerate the outcome of not accepting a proposed consent order by threatening the licensee that if the offer is refused, the Board will be much more harsh than what is being offered.  A review of hundreds of actions by the Board Members themselves, reveals that they are MUCH more lenient than the attorneys of the NCMB Legal Staff who routinely bully the licensees.  Negligence actions are treated much more leniently than other actions; a patient’s death due to practitioner negligence generally merits a “Public Letter of Concern”, getting clean and sober after self-referral to the NCPHP has generally resulted in years spent out of practice despite recommendations of the treating facilities.  The NCPHP only refers licensees to the facilities of the NCPHP’s choice; practitioners rarely have any say regarding where they go for treatment.  The most harshly treated providers are uniformly in the 40-65 year age range—the highest income-producing period of a physician’s life.

 

Review of “Consent Orders” by the NCMB demonstrates major components;

1.     Findings of Fact*

2.     Statements of Law

3.     Final Order

*Rarely are the “Findings of Fact” factual, more often than not, they are grossly distorted “Findings of Fiction” worded in a manner to defame licensees while attempting to validate the action taken by NCMB attorneys.

 

Typically, the Consent Order is “given” to the practitioner with serious warnings from both the Board attorneys and the “defense” attorneys that the order is the practitioner’s best option to avoid drastically more dire consequences (which is absolutely NOT borne out by the historical record). 

 

There are dire consequences, usually not appreciated by those that sign "Consent Orders".

 

It is generally a VERY bad idea to sign a consent order.  Would you rather have your future decided by one Board attorney, possibly somebody “with an attitude”, or a group of your peers?  A careful review of a decade’s worth of Board Actions reveals that Consent Orders, while often able to return the physician to practice at an earlier date, are MUCH more harsh than going to a formal hearing by the Board. The attorneys who work with the Board on a regular basis often prefer and encourage their clients to accept such a consent order. 

 

If you feel that your attorney is not representing your best interests, you are entitled to his records regarding your case (Section "D" of this link)

Due process is entirely absent from these proceedings; there cannot be due process while coercion and duress are employed, a regular occurrence with the Board’s legal department.

 

If a formal hearing is chosen, licensees have the right to mandate that any witness that testifies must be physically present in the hearing room.  The attorneys for the NCMB will object to this, but precedent has been set.  It is often difficult for witnesses to travel to Raleigh, often for an 8:00 AM hearing.  This strategy can be helpful for cases involving allegations over trumped-up or minor events.

 

US Constitutional Rights guaranteed by at least the 5th (prevents “double jeopardy”, being tried more than once for a given offense and compelling a person to be a witness against themselves), 6th (speedy trial) and 14th (due process) amendment among others are routinely violated.  A former member of the NCPHP Board of Directors recently volunteered that the reason for routine use of documents specifying suspensions of licensure that are immediately stayed is that “this prevents any wiggle room for the offender in the future”.  The rough translation of this is that it’s a systemic and systematic violation of the rights guaranteed by §NC General Statutes.  It also demonstrates the close cooperation and collusion between the NCMB & NCPHP.  The NCPHP should strongly object to this strategy that they openly condone!

 

The subject of the “index case” regarding abuse by the NCMB & NCPHP sent documentation of that index case to Governor McCrory’s office.  Todd Batchelor, Aide for Community & Consumer Affairs, forwarded it to the NC Attorney General Roy Cooper.  The attorney general’s duties include defending state agencies in the event of litigation; Mr. Batchelor essentially handed the plaintiff’s evidence to the defense attorney!  It was thoroughly ignored, no acknowledgement of its receipt was ever provided to the complainant.  A meeting was held with an assistant district attorney for Wake County, where all NCMB appeals are to be handled.  It was rejected on the grounds that the case involved civil law; the DA only deals with criminal issues.  Finally, it was submitted to John Watters of the NC State Bureau of Investigation who also declined to address the issues raised in the complaint.

 

Accordingly, parties including the index case researched the problem, documenting the past decade of abuse by the NCMB.  The information was provided to the NC Office of the State Auditor initially.  According to Tim Hoegemeyer, their chief legal counsel, the material was ignored because the NCOSA had been charged to investigate the NCPHP.  He refused to comment on the wrongdoing of the NCMB during a telephone conversation with one of our investigators.  The detailed analysis presented on this website has been received yet again by the Wake County DA, Mr. Watters of the NC SBI and the Charlotte Field Office of the Federal Bureau of Investigation (FBI) as documented by the return receipts of the certified letters sent to the agencies.   

 

Pre-Signed Prescriptions;

A review of the current NCMB website was unable to locate any information that formally addressed this concern.  Most licensees have at one time or another in their career pre-signed or even pre-written Rx’s for their patients. A pre-signed Rx may be left in the office for emergency use when the physician is unavailable, generally locked up where only the office manager would have a key and must clear use of it with the signing practitioner.   An archive of the NC Medical Society from 1996 addressed this issue, that the NCMB would not tolerate such actions.  The winter issue of the 2012 Bulletin addressed this topic on page 8.   A review of the search box on the reveals 139 citations, the vast majority of which chronicle their prosecution of physicians who have engaged in the activity, which is not listed in any of their position papers/statements.  It only appeared in the Winter 2012 Bulletin and prior publications.

 

The NCMB Policy for the use of Opiates for the Treatment of Pain;

Involves a complex 58-page document that specifies all of the NCMB requirements for use of opiate medication.  This policy is so far removed from that of other states in the US.  It provides a very useful function; any time that the NCMB wishes to persecute a prescriber who has prescribed opiates, they will rarely find that all of the required documentation is in the patient’s chart.  This enables the NCMB to strike!  The unfortunate clinician will find themselves in the talons of the NCMB as they are whisked into a nightmare.

 

Use of Chart “Reviewers” by the NCMB;

The NCMB uses reviewers that will give them the report that they want to see about a given practitioner.  The reviewers are paid well for the simple task of reviewing charts from what the Board deems to be a “questionable” or “substandard” clinician.  It’s widely recognized that anybody can play “Monday morning quarterback”, easily criticizing actions of another.  Professionals and others will also realize that the “practice” of medicine requires science, and art; the “sense” of the patient’s perception of their own needs, this is a big part of the art of medicine.  Rarely do two practitioners practice medicine in exactly the same way every time.   Members of the group responsible for this site have felt this effect first-hand.  The use and abuse of chart reviewers is not limited only to the Board however; this has been a contentious issue in the medical malpractice arena for decades.

 

Licensees of the NCMB have a legal responsibility to report unprofessional behavior and can lose their license for failure to do so!

The NCMB provides a sense of Continuous Quality Improvement (CQI), which has been a big buzzword in medicine and many other sectors of the economy.  Basically, it refers to how to continually improve performance.  Inadequate practitioners are “selected out” and given the opportunity to improve to meet the current standards.   That’s the theory.  Sometimes, the overseers can be inadequate; then what happens?

Violations of Ethical Guidelines are by definition unprofessional conduct.  Licensees of the NCMB are required by the NCMB to report such violations according to § 90-5.2.  Board to collect and publish certain data (d) Failure to provide information as required by this section and in accordance with Board rules or knowingly providing false information may be considered unprofessional conduct as defined in G.S. 90-14(a)(6).  (2007-346, s. 6; 2009-217, s. 2; 2013-152, s. 5.)

 

Failure to report unprofessional behavior among other physicians, including NCMB members is itself an example of unprofessional conduct.  The NCMB can discipline licensees who fail to report another professional discipline and sanction for such a failure to report.  When the NCMB itself is suspected of engaging in unprofessional conduct, the report is best made those listed on the "Officials" page.  Per statutes, any legal issues involving the NCMB that require an appeal go through the Wake County Superior Court District 10

 

When reporting unprofessional conduct by the NCMB and/or unjust treatment, it’s best to provide full documentation including any consent orders and an explanation of the inaccuracies, errors and fraudulent representations in the consent order. Additionally, special attention to §North Carolina General Statutes Chapter 90: http://www.ncga.state.nc.us/gascripts/statutes/statutelookup.pl?statute=90 violations should also be clearly explained. 

Violations of US Constitutional Rights should also be clearly spelled out as well as any HIPAA violations including listings of alleged illnesses (which could include addiction issues—especially those which have been successfully treated) and any disabilities, which are covered under the ADA

The Americans with Disabilities Act became law July 26, 1990.   Employment, Disability, and the Americans with Disabilities Act: Issues in Law, Public Policy, and Research on page 175 reviews how State Bar Associations & Medical Boards are not current in their application of the law.   

In 1993 the New Jersey Medical Society sued the New Jersey Medical Board, challenging the questions on the both the application for licensure and licensure renewal forms regarding questions about prior substance abuse and mental illness.

The US Department of Justice published a brief outline in July 2009 reviewing the basic concepts of appropriate application of the ADA.  There are also periodic updates published by the US Department of Justice, Civil Rights Division that provide updates, case reviews, assistance with information and technical assistance in interpreting the application of the ADA.

Frederick Romberg who has dyslexia sued for and was granted accommodations from the National Board of Medical Examiners on 2/23/11.

 

As recently as August 2014 the Louisiana Supreme Court ruled on the Louisiana Bar Association’s application of the ADA on admissions to its state Bar.

 

On June 22, 1999, the United States Supreme Court held in Olmstead v. L.C. that unjustified segregation of persons with disabilities constitutes discrimination in violation of title II of the Americans with Disabilities Act. The Court held that public entities must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity.

The Supreme Court explained that its holding "reflects two evident judgments." First, "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life." Second, "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."

Thus, any state agency that takes it upon itself to mandate segregation without clear and convincing professional opinion supporting their action is in clear violation of the ADA.

 

Predictably, it didn’t take long before scholarly legal articles were written supporting the fact that restricting medical licensure based on illness is wrong, that reporting the illness worsens the situation. 

Twenty five years later, district courts continue to interpret and clarify acceptable application questions.  Boards may ask questions concerning disabilities, although prudential concerns limit the scope of these questions. For example, an impairment actually must limit the applicant’s ability to perform the specific job.        Broad questions about mental illness are not allowed. To satisfy judicial scrutiny, questions about mental illness must specifically address presently occurring illness.

The US House of Representatives Subcommittee on the Constitution, Committee on the Judiciary, addressed the application of the Americans with Disabilities Act to Medical Licensure and Judicial Officers on May 22 1997.  Key concepts delineated by the Committee dealt with the relevance, as well as the necessity of exposing a mental health history in a prospective medical practitioner or judicial officer and the requirement for a necessity exemption; such information could not be asked unless it was proven to be absolutely necessary for a licensing Board or Judicial Selection Committee to ask the proposed question of the applicant or person under consideration.

 

As published in the journal Academic Medicine in June 2009; Most state medical licensing applications contain questions that ask about the physical or mental health and substance use of physician applicants. Many licensing applications appear to be in violation of the ADA, even 19 years after enactment of the regulation. These questions do not elicit responses by which professional competence can be judged. The presence of these questions on licensing applications may cause physicians to avoid or delay treatment of personal illness.

 

In September 2009, Dennis Smith, the Assistant Attorney General of Maine, addressed the concept to the Maine Board of Licensure in Medicine, endorsing a restriction on the licensure application form in that state in keeping with the June 2009 article.

  

Damage to professional reputation is another area in which tort law is applicable.  In one notable case in South Carolina a $30 million verdict was awarded.  The initial award was overturned on appeal in July 210, at which time the plaintiff committed suicide.  The stress of these events can be immeasurable.

 

In November 2010, the NCMB changed its licensure application to reflect current mental illness or impairment, however for any practitioner licensed prior to that, discrimination against them may persist.

 

Fact or Fiction (What Actually Happened vs. the NCMB’s Perspective:

What the “Consent Order” on the NCMB Public Website contains is often quite different from what really happened from the providers perspective.

 

Effects of North Carolina Medical Society Membership:

The North Carolina Medical Board has a long history of improper dealings with the North Carolina Medical Society (NCMS) as detailed in the 2007 lawsuit with it’s complaint that statutorily, the NCMS solely nominated physicians to the NCMB.  Further, the complaint demonstrated numerous cases in which members of the NCMS were preferentially treated by the NCMB despite wanton and egregious unprofessional conduct that dealt severe penalties to practitioners who were not members of the NCMS.  Members of the NCMS who had committed gross negligence completely escaped disciplinary measures by the NCMB. 

 

The 2007 lawsuit appeared to have changed the relationship between the NCMB & the NCMS.  In 2013 there were no members of the NCMS on the NCMB, which is unusual, considering that the NCMS currently has a membership of 12,200 of the 36,000 physicians currently licensed in North Carolina.  The NCMS represents only a third of the physicians in the state, yet NONE were members of the NCMS.  With the 2007 lawsuit, it became evident that any open relationship between the NCMS & NCMB could be worrisome.  The NCMB had a reputation at the time of protecting members of the NCMS.  In 2014 that changed when Timothy Lietz, MD and Debra Bolick, MD were appointed to the NCMB.  Luckily, for the members of the NCMS the protective effect of membership from the NCMB appears alive and well.  When undergoing disciplinary evaluations and actions, members of the NCMS have enjoyed a far easier ride than non-members.  The fact could be that very few of the physicians who belong to the NCMS commit misdeeds (statistically speaking however, with a sample size of 12K+ members, it’s far more likely that the population is not selective, that it represents practitioners as a whole).  Numerous clinicians interviewed by the creators of this site volunteered that one of the initial questions asked of them during Investigation Committee meetings of the NCMB pertained to their membership in the NCMS. 

 

What would be the relevance or purpose of that?

 

The NCMB also is noted for it’s long institutional and vengeful memory.  The physician who initiated the 2007 lawsuit was later excessively when a patient he had by all evidence from the NCMB website treated appropriately, died unexpectedly after therapy.  Everybody dies.  Death is not automatic evidence of wrongdoing or malpractice.  There was no evidence of either in the case of the physician who blew the whistle in 2007 based on the report of the NCMB disciplinary action on their website!   This practitioner gave permission to relay the story of his public documents during a private phone call.

 

It should be noted that few of the actions of the NCMB are public; some actions involve dismissing unwarranted cases against physicians.  The NCMB receives about 1,200 complaints a year.  The Board also has the ability to issue private sanctions.  The only material available to these authors for review is what has been listed on the public website for the NCMB.  Decisions about whether disciplinary actions was excessively harsh, reasonable or overly lenient were made by these authors after reviewing hundreds of public Board Actions in North Carolina and thirty other Medical Boards

 

The purpose of this site is to educate practitioners regarding the rights that NCMB licensees have in their dealings with the NCMB & the NCPHP.   The other purpose of this site is to review the arbitrary and extremely variable nature with which the NCMB disciplines its licensees for real and perceived transgressions.

 

Legal protection is also provided to NCMB licensees by Chapter 150B of the NC Administrative Procedure Act; http://www.ncga.state.nc.us/enactedlegislation/statutes/html/bychapter/chapter_150b.html

 

In many cases, the attorneys of the NCMB and even the “defense” attorneys routinely violate the statutes above.  The NC State Bar Association has a strict NC State Bar Association Professional Code of Ethics.  Any practitioner that believes that either the attorneys of the NCMB or the defense attorneys have violated statues of legal codes of ethics, please review §NC General Statutes Chapter 90 (link above) and the Bar’s Code of Ethics.  If there have been violations of either of the above, then filing a Grievance with the Bar is the next step;

 

Joe Commisso

NC Bar Director of Investigations

NC State Bar

PO Box 25908

Raleigh NC 27611

jcommisso@ncbar.gov

 

Anybody choosing to file a grievance against NCMB attorneys should please be sure to include R. David Henderson Esq. Executive Director of the NCMB & Thomas Mansfield Esq. the NCMB Legal Department Director.  Include the statutes/ethical codes violated in the complaint (often ethical codes in Section 8; Maintaining the Integrity of the Profession are violated).

 

If there is any future intent to go after those involved for damages, having the Bar sanction an attorney before any lawsuit is filed will speed the process along!

 

The Federation of State Medical Boards has a formal policy on Impaired Providers: http://www.fsmb.org/pdf/grpol_policy-on-physician-impairment.pdf .  Many states also have formal policies.  North Carolina currently is not among those states.

 

A Review of Other State Medical Board Disciplinary Actions was undertaken:

The most recent information obtainable was from Citizens Watch www.citizenswatch.org which has data from 2008-2010

From their report, Louisiana had the most discipline given to their physicians with 5.98 actions/1000 physicians, Alaska was in second place with 5.47 actions/1000 practitioners, Ohio had 5.36/1000.   In 2013, North Carolina had 6.6 actions/1000 practitioners, well over and above the rates any other state has had.

 

North Carolina Statute 90-21.22 gives the NCMB authority to enter into an agreement with the NCPHP for the NCPHP to evaluate physicians and complaints against physicians.  Specifically, the referenced Statute addresses "investigation" of complaints, among other issues including the provision of due process. 

 

Unfortunately, the NCPHP does not investigate the veracity or integrity of any complaint against a physician (which they are required to do by NCGS Chapter 90), but instead proceeds as if the complaint--even an anonymous complaint--is correct and true.  This leads to investigation with the presumption of guilt until proven otherwise, in violation of NCGS 90-21.22, without the mandated provision of due process.

 

Effectiveness of the North Carolina Physicians Health Program a Physician Advocacy Group for Impaired Practitioners:

The NCPHP was established by the NCMS in 1988 as a formal program to assist and advocate for practitioners who are impaired by a variety of ailments.  This organization is charged to advocate for practitioners contracted to it before the Medical Board and other groups such as Hospitals regarding staff privileges and insurance companies that would otherwise reject a physician from being able to participate in the care of that managed care organizations panel of patients.  It was established as a non-disciplinary agency charged to help return impaired practitioners back to productive practice.  Although it has a role in those with physical and mental illnesses, the most common use of this agency is for practitioners impaired by substance abuse and behavior issues.  Warren Pendergast MD, a general psychiatrist without certification in any subspecialty areas chairs the NCPHP.   Despite this, he refuses to accept diagnostic assessments from at least one addiction-certified specialist.  Notably, Dr. Pendergast also chaired the Federation of State Impaired Physician Programs in 2013 despite his lack of additional credentials in related fields.

Logan Graddy MD is another psychiatrist who joined the NCPHP in 2013. 

 

Joseph Jordan PhD is a Licensed Professional Counselor with the group.   

 

Dr. Pendergast has historically mandated that practitioners have diagnostic evaluations done only at the facilities among the set group that the NCPHP “approves of”.  Despite the fact that a given facility is licensed to do diagnostic evaluations, assessments by “NCPHP-unapproved” facilities have been deemed “unacceptable”.   As with the NCMB, they appear to do this after they’ve decided the fate of a given practitioner.  This appears to be similar to the NCMB’s use of “Reviewers” to evaluate physician competency.  The NCPHP uses the same group of facilities located outside of the state of North Carolina.  In a state with five medical schools and twenty-five post-graduate degree mental health programs, there is not a single facility within this state capable of evaluating NCPHP-referred practitioners as demonstrated by their referral patterns.

 

It causes one to wonder what other “arrangements” are in effect.

 

At least one practitioner has successfully challenged (and prevailed) in this type of bias by the NCPHP & NCMB.

 

More than one member of the group responsible for this website has been told by the professionals of the NCPHP that; “just because you are here, in front of the Board, there is a presumption of guilt; you must be willing to assume some degree of punishment because of that fact…”.  This statement being made after review by the parties involved and with the involved defense attorney stating to the professional of the NCPHP that the Board agrees that there is no evidence, that an investigation has not been completed regarding allegations made against the provider involved.

Advocacy; noun, plural adŠvoŠcaŠcies. the act of pleading for, supporting, or recommending; active espousal: He was known for his advocacy of states' rights.

 

This is the level of support & advocacy given to those charged to the care of the NCPHP; “just because you are here, in front of the Board, there is a presumption of guilt; you must be willing to assume some degree of punishment because of that fact…”  Evidently, the NCPHP forms the opinion that practitioners who have signed contracts provided by the NCPHP for their protection and advocacy do not even deserve the presumption of “innocent until proven guilty” that is a cornerstone of US law.

 

The NCPHP is allegedly an “advocacy” group.  Participants in the program sign a contract given to them by the program.  In many cases the level of “advocacy” is advice to “sign the consent order that the NCMB has given you”.  That is NOT advocacy!  One or the other parties can cancel contracts at any time for failure to perform, to meet the terms of the contract.  This has been done with practitioners under contract to the NCPHP as well, practitioners CAN and SHOULD cancel their contracts if the NCPHP has failed to advocate per the terms of the contract!  Consideration can be given to a new contract with different terms if desired and appropriate.  There are sites with more information on dealing with agencies such as the NCPHP an example of such an agency would be www.ncpag.org.

 

Administered by the NCMS Foundation, the NCPHP subsequently evolved into a not-for-profit 501(c)3 corporation.

 

Others have argued that the organization conducts diagnostic evaluations of those providers referred to it, arguing that it is not properly accredited as an agency that has the proper certifications and licenses to diagnose and treat anybody. 

The response of the NCPHP to this claim is that it does not diagnose or provide therapy, it merely performs "peer review"noun  evaluation of a person's work or performance by a group of people in the same occupation, profession, or industry.

 

Peer Review Requirements:

NCMB licensees have certain rights whether they are considered patients or being subjected to peer review by the NCPHP.  The NCPHP has maintained that they are not treating NCMB licensees as “patients” but are actually performing “peer review”.  The Health Care Quality Improvement Act of 1986 makes it clear that any physician who is to be subjected to peer reviewed must receive a written notice at least thirty days in advance of any peer review hearing.  That notice must include:

1) A statement that a professional review action has been proposed to be taken against the physician

2) The reason for the action

3) An indication that the physician may request a hearing and any applicable time limits for making the request

4) A summary of the physician's rights in the hearing, to include:

Notification of and permission for representation by an attorney or any other person of the physician's choice.

Accused physicians must be allowed to present their case to an impartial decision maker.

This may include examining the evidence, presenting and questioning witnesses.

Appealing the decision to a neutral reviewer.

It is consistent and the physicians subject to review know the rules.

Submit a written statement at the conclusion of the hearing.

Have a record made of the proceedings.

The physician is entitled to have a copy of the hearing including the findings and recommendations at the conclusion of the hearing.

 

The NCPHP is not in compliance with any aspect of The Health Care Quality Improvement Act, and the NCPHP does not afford the accused physician any of the mandated due process rights or protection of any kind as is required by this act.

 

Any practitioner who has concerns regarding their treatment by the NCPHP should contact info@woundedhealersnc.net .  Unfortunately, the Federation of Impaired Physician Programs will not assist practitioners in this dilemma.  This is likely a reflection of the relationship of Dr. Pendergast to that group.  However other options are available:

Licensees also enjoy the most basic protections provided by the US Constitution including its amendments and by HIPAA.

 

If you are a practitioner who has been harmed by the NCPHP, there are resources available for your protection.  

 

A summary of the APA Code of Ethics is in order, as well as what can be done with that information.

 

Another option is to file a complaint with the North Carolina Board of Licensed Professional Counselors.  Joseph Jordan PhD is the Clinical Director, as a PhD he is not governed by the Medical Board, this is his board.  Unlike Dr’s Pendergast & Graddy, he won’t be protected by the NCMB.  A good start to filing a complaint would be to request a complete copy of the file that the NCPHP would have on you as a licensee who has been contracted to them.  The NCPHP won’t release the complete file, in violation of state and federal statutes.  This is a good basis for a complaint by itself.  It should also be included in the Civil Rights complaint.  Additionally review of the NCBLPC Code of Ethics carefully cross-referenced to your experience will also be helpful in formulating an accurate and thorough case against the NCPHP and it’s Clinical Director.