The Doctor Is Out
Some Bitter Fruit From A Poisoned Tree
How False Information Can Ruin A Career
Written by Duane Bradford. Last updated Wednesday October 19th, 2005
FRUIT OF THE POISONED TREE
“Winning, rather than determining the truth, and increasing the percentage of findings against physicians rather than establishing the merits of complaints brought before it, seem to have become the goals for some members of the Florida Board of Medicine.” - Douglas E. Peterson, M.D.
IN CRIMINAL LAW,there is a doctrine that says evidence discovered through illegal search or other unconstitutional act, such as a forced confession, cannot be used to prosecute someone. It would be considered fruit of the poisoned tree and itself defective.
The theory is that the tree -- the original evidence -- became poisoned and thus taints what grows from it. For example, as part of a coerced admission made without telling a prime suspect he had a right to an attorney and did not have to testify against himself, the suspect tells the police the location of stolen property. Since the admission cannot be introduced as evidence in trial, neither can the stolen property - the fruit from that poisoned tree.
I’ve seen that theory work in criminal law.
A Sudden Turn South
As a young police reporter, I watched in fascination while vice squad officers broke down doors to make gambling cases. In at least one instance, no one had taken the trouble to obtain a search warrant. So after the frightened woman of the house stopped shrieking and the detectives finished pawing through heaps of bolita slips that would be used as gambling evidence, the case took a sudden turn south when her attorney appeared and pointedly noted this discrepancy. Alas, the evidence could not be used. The evidence had been poisoned.
That afternoon, moreover, the detectives busied themselves installing a new door they had bought with their own money.
An Arrogant Display of Power
But in civil law, lawyers say there is no “fruit of the poisoned tree” application. Whether there is or not, justice seems stretched beyond reason and fairness when a citizen can be punished by the state because of decisions that are based in part on conclusions formed from false material information. And if officials make such decisions after having been told the information is false, that, it seems to me, is an arrogant display of abusive power by the state that should not only not be tolerated, but also be investigated by a grand jury. The sad product of that kind of official conduct is that an unblemished 25 years of practicing medicine is teetering on the brink of ruin for a 58-year-old Florida family physician.
Welcome to Florida’s world of speedy medical discipline. Florida Government In Action
Accelerated disciplinary action against Florida physicians, a concept that did not displease insurance companies, was a priority of Jeb Bush when he became governor. Every member of the Florida Board of Medicine, the group that regulates medical practitioners, got that message when the governor appointed them. As a result, the regulatory bureaucracy sprang forward, and Florida vaulted to the number one spot in the nation for punishing doctors that the board deemed errant.
The Old Hidden Penalty Trick
Douglas E. Peterson’s problem, as it happened, intersected with Roy Bean Justice. Dr. Peterson, who once cared for some 3,000 patients in the Inverness area - mostly Medicare and low income - is now facing loss of substantial personal property, his Florida medical license. It is happening largely because of his decision to refuse to accept penalties levied against him by the Florida Board of Medicine that he believes are based upon poisoned information. And he is convinced that the board tricked him into agreeing to settle by knowingly failing to reveal a substantial hidden penalty that came with the agreement.
As is detailed in a series of stories elsewhere on this web site, the board voted to punish Dr. Peterson for failing to provide what it decided was an unacceptable “standard of care” for a 75-year-old woman who died in 1999 after a brief battle with new onset diabetes, mini-stroke and an internal bleeding episode of undetermined cause.
How did the board decide to punish the physician?
The woman’s son complained to the state and wanted doctors who attended his mother to be disciplined. He specifically wanted Dr. Peterson to lose his Florida license. A state investigator interviewed the son - but not the doctor. A state-paid doctor, identified as an expert, examined what information he could find and opined that there was probable cause to bring administrative charges against Dr. Peterson of failing to provide an acceptable standard of care.
The formal administrative charges of failing to provide adequate care for the patient were then brought against the physician.
One key allegation pushed by the state was that the patient complained of internal bleeding and of gastric disturbance upon her initial arrival at the Citrus Memorial Hospital emergency room back on Oct 18, 1999. As it turns out, this was false. Had this actually happened, it would have been a significant clue to the woman’s problem that doctors could address. But emergency room staff disputed this, and a consultant doctor testified in a deposition of hearing the woman tell her astonished son later that she had not disclosed a symptom of internal bleeding.Doctor Asks Inspector General To Investigate Discipline Case Somehow, though, the notion made it into the state’s investigative documents and became a keystone to the state’s argument of inadequate care. The department’s Inspector General said the law would not permit him to investigate the case. Inspector General Says He Lacks Power to Investigate Claims of Irregularities
15 Yards For Piling On
-- Then there was the mini-stroke, an event that a consulting neurologist diagnosed as a Transient Ischemic Attack. He and Dr. Peterson agreed to prescribe a daily single Ecotrin coated aspirin to avert a potential full-bloomed stroke, a standard medical treatment. The risk of harm from that single daily aspirin, they concluded, outweighed the potential of a debilitating stroke that could be brewing. That Ecotrin aspirin, concluded the state medical expert in his sworn opinion, was responsible for the patient’s death. Period. Repeated requests to the Chief Executive Officer of GlaxoSmithKline for the pharmaceutical company’s view of this opinion went unanswered. And no post mortem examination was conducted to establish a cause of death.
-- Then, said the board, Dr. Peterson visited his patient only twice in the four days she was hospitalized, a charge refuted by the doctor’s records. No, he said, he visited her three days and talked to her on the telephone on the fourth.
-- Then, although the former dean of the Florida State University School of Medicine said otherwise - as did the state’s own medical expert - board members railed away about Dr. Peterson’s treatment plan for his patient’s runaway new onset diabetes. A Tampa anesthesiologist, Florida Government In Action whose credentials as an endocrinologist may be equal to the diabetes credentials of, say, Chevy Chase, was the main board critic of Dr. Peterson’s treatment plan.
-- Then, a groin infection (that had no bearing on the patient’s death) was not treated quickly enough upon discovery by emergency room staff upon the patient’s initial admission.
After several settlement offers by board attorneys were rejected as unfair and excessive by Dr. Peterson, he finally thought he would grit his teeth and abide by a final state settlement offer in order to resume caring for his patients. He continued, though, to assert, in a hand-written statement he inserted into the offer, that he should not be held responsible for someone else’s actions or failures, A Tale of Two Physicians’ Prosecution Has a Bewildering Plotincluding his own patient’s failure to disclose serious medical symptoms or her failure to take prescribed medication. But when he showed up in Tampa for what was billed as a formal signing of the disciplinary agreement, the board had a big surprise for him. Doctor Asks Inspector General To Investigate Discipline CaseUnknown to Dr. Peterson, his patient’s son had been offered a chance to speak. Some say he took an oath to tell the truth, but the records fail to show that the son was sworn under oath.
After hearing an emotional monologue from the patient’s son that was not interrupted by any cross-examination by Dr. Peterson’s insurance company attorney, the board quickly voted to scrap the proposed settlement negotiated by its staff and to double the punishment. For good measure, it also directed that Dr. Peterson submit to a competency review course then conducted by the University of Florida. What the board failed to tell the physician, however, even though asked for details, was that the university review carried a hidden $6,500 fee that Dr. Peterson did not discover for a week after agreeing to the settlement terms.
Must State Agents Be Fair and Credible?
It was then that the physician lost all faith in the state’s credibility, fairness and moral standards. In a letter to Governor Bush, he termed the board’s action a “bait and switch” tactic that he believed legally voided any contractual arrangement he had made with the board. Had the physician known this, he vows he would never have agreed to settle the matter and would have requested a formal hearing. Viewing this omission of a material element of an agreement as a breach of a contract, he appealed on that basis. But the district court of appeal chose not to referee that issue. So he paid a $6,000 penalty he and attorneys for the board had negotiated before arriving at the formal signing in Tampa. The state accepted the payment.
His attorney at the signing, furnished by his medical insurance company, sat mute during the Tampa hearing, advising the physician to accept the inflated penalty because the board might punish him even more severely if he took his case to a formal hearing. A board member, giving new meaning to the expression “arrogant abuse of power,” raised that specter also. Much to his subsequent distress, Dr. Peterson accepted that advice. In so doing, he waived a right to a formal hearing where sworn testimony is taken, cross-examinations made, evidence weighed and, most important, a legal record created for any future appeal that may be desired.
But Roy Bean Justice bureaucracy does not give up easily. When Dr. Peterson did not follow all of the terms of the revised disciplinary action, the state levied a new $5,000 fine for not paying the final $10,000 fine. And Dr. Peterson, continuing on his collision course with license extinction, ignored that, too, for the same reasons he originally declared in letters to Governor Bush and Department of Health Secretary John Agwunobi, letters to which neither men provided a personal response. It is, says the battered physician, a matter of principle.
Today, the physician, now living on his retirement savings, awaits one final hearing regarding his failure to pay the fine for not paying the first fine. Bureaucracy marches inexorably onward. He hopes to be able to finally articulate his grievance. But the civil rules of procedure do not work in his favor, especially when no one listens. So unless the cavalry arrives at the last minute, he is not likely to prevail.
If this were a criminal trial where the standards of evidence are a tad more strict, the physician’s argument might well succeed on his assertion that the crux of the board’s action against him arose from false information: fruit from the poisoned tree.