How Do We Mitigate Government Arrogance?
Florida Board of Medicine Finally Ends a Doctor’s Practice
Board Rule: Never Let Facts Interfere With Our Ego
Written by Duane Bradford. Last updated Wednesday May 31st, 2006
By DUANE BRADFORD
Editor’s note: Unless the state of Florida redresses the grievances raised by this physician about its regulators, this is the last in a series of seven stories about this case published on this website during the past year. For more detail, all stories may still be viewed here in the "Florida Government" section. Dr. Peterson has turned in his license.
TAMPA, April 8, 2006 - The shrill boardside manner of the doctor is now at a full boil. She is weary of hearing the man trying to declare his innocence. He is not following today’s script.
“And if you don’t be quiet,” snaps Dr. Elisabeth Tucker as she glares at the physician sitting alone before her in the dock of justice, “I’m going to ask you to cut your microphone off!”
This is not a bad Saturday Night Live routine. If you are a taxpaying Floridian, you are supporting a government acting in the late stages of defrocking a physician for prescribing aspirin. It is conduct not taught in Good Government 101.
With Dr. Tucker’s warning, the large meeting room of the Sheraton Suites here, full of 40 or so doctors either waiting to render judgment or waiting to be judged, falls into an embarrassing hush. The arrogant might of Florida government is felt. Dr. Tucker is not finished, though. She will drop another shoe entitled “disruptive physician” in a few minutes.
Dr. Tucker is a member of the Florida Board of Medicine. In that capacity, she is sitting with her 13 board colleagues, all appointed by Gov. Jeb Bush, in judgment of the medical conduct of a family physician from Inverness, Dr. Douglas E. Peterson. For most of this century, Dr. Peterson has steadfastly - his adversaries might say “stubbornly” - refused to acknowledge original board action against him in 2002 that he has been trying to tell the state he later learned was based on a false foundation. Today, he is on the agenda to provide the board with any mitigating explanation why he had not paid the state the latest $5,000 fine the board levied against him as punishment for his failure to pay the first fine.
The 58-year-old family physician receives board member Tucker’s stern warning in silence. Soon, with the volume of his voice rarely rising above a conversational tone, he slowly and methodically continues trying to explain to the group aligned in a horseshoe configuration before him why he believes the 2002 Board of Medicine, using the police power of the state of Florida, has wrongfully punished him by basing its action upon information that he subsequently learned was false. It is simple logic, he feels. But philosophy was not on this 2006 board’s mind today. As Dr. Peterson continues to explain his version of mitigation, Dr. Tucker interrupts.
“Mr. Chairman,” she tells Board Chairman Dr. Mammen Zachariah and everyone in the room, “I am not hearing anything in mitigation. I do not think it is appropriate for the doctor to argue with us about the cases again.” One of only three members of the current board who voted on Dr. Peterson’s original disciplinary action, she shows she has a stake in the events of today. With no discussion, motion or vote, or announcement by the chair, she unilaterally declares Dr. Peterson out of order. “And unless you have something to talk to us about in mitigation, we don’t want to hear what you’re saying,” Dr. Tucker added.
“We don’t want to hear whether you think it was right or wrong the first time around. Mitigation,” she emphasized. And, she added, her voice rising, “I’m gonna cut you off if you keep going where you’re going.”
Undaunted, Dr. Peterson leans into his microphone and presses on. He seems determined to advance his understanding of the term “mitigation” and how false information used against him might mitigate subsequent board punitive action. He seems to have almost a naive belief about his government that fairness and common sense will prevail. How common? Let’s see. He reckons if the original information used by the board to form a judgment against him is false - as he says he discovered after the 2002 board’s original disciplinary vote - surely that original judgment and every board action flowing from that flawed foundation cannot remain standing. And that, he believes, includes today’s $5,000 he was fined for not paying the entire original fine. His discovery of original false information, says the physician, should mitigate in favor of his decision not to pay the recent fine.
Dr. Peterson, however, is a doctor, not a lawyer, a distinction that would not be lost on any first-year law student. Never having undergone regulatory disciplinary action in his 25 years of medical practice, he does not seem to understand the rules of the legal games. “So moved” and “hearing no discussion” and “probable cause” and “clear and convincing” are not medical terms. His “informal hearing” this day was scheduled, sternly reminds board attorney Blake Hunter, only to permit Peterson to explain any extenuating circumstances as to why he did not pay the current $5,000 fine in the same case, which was levied against him because he had not paid all of the original fine. No, he must not try to explain anything else. He had that chance a few years ago and chose another path, interrupted a board staff member. And if he persists in talking about mitigating circumstances surrounding what he had learned after the board’s original judgment, he is “wasting the board’s time” and will be cut off.
Dr. Tucker’s microphone disconnect warning is the highlight of yet another skirmish in a war that has been grinding along since charges of inadequate patient care were brought against Dr. Peterson in 2001 following the death in 1999 of a 75-year-old woman patient hospitalized on Oct. 18, 1999 for a transient ischemic attack (a mini-stroke) and a raging case of onset diabetes. After initially responding to her diabetes treatment, she died in four days following a massive internal hemorrhage of undetermined cause. There was no post mortem examination, so the exact cause of death is not known. Her son complained to the board, blamed the physician for his mother’s death, and administrative charges were brought against the physician.
One doctor, Bruce Berman of Tequesta, hired by the board as an expert witness, examined the case. He said he believed there was probable cause that Dr. Peterson had not provided an appropriate “standard of care” to the patient. He speculated in sworn testimony that the woman died because Dr. Peterson, in consultation with a neurologist to prevent a full-bloomed stroke, prescribed one enteric coated aspirin (Ecotrin) a day during her four hospital days. Coated aspirin, while presenting risk of bleeding, is standard blood-thinning treatment. Dr. Peterson and the neurologist reasoned that the prevention of a stroke in the 75-year-old patient outweighed risk. Dr. Berman also offered:
1. An allegation that her diabetes management plan was inadequate - a claim later collapsed by the medical expert himself and also by former Florida State University School of Medicine Dean Joseph Scherger, according to Orlando attorney Jennings Hurt in his assessment of Dr. Scherger’s review of the case. The 2002 board never learned of Dr. Scherger’s medical opinion. But it did listen to one of its members, a non-practicing anesthesiologist, decry the diabetes management plan just as though he was not venturing into medical territory outside of his knowledge specialty.
2. An allegation that Dr. Peterson visited the patient in the hospital only two of five hospital days there. This allegation was rigorously refuted by Dr. Peterson, who said he made bedside visits four of the five days, speaking with the patient, nurse and lab staff on the phone on the fifth.
3. An allegation that nothing was done following her complaints of abdominal distress when she was first hospitalized - a claim shown to be false by hospital records and by staff doctors who assert no such complaints were voiced by the woman on that Oct.18, 1999 day when she was first admitted to Citrus (County) Memorial hospital for examination.
So the state prepared administrative charges that the physician be disciplined for failure to provide what it termed was a recognized standard of care for the patient. After months of dickering between lawyers of the state and Dr. Peterson’s insurance company attorney, both parties - reluctantly by the physician, signed an agreement. It called for Dr. Peterson to pay a $3,500 fine, costs, perform some community service and take a continuing medical education course. The board called a meeting to formally consider that recommended settlement.
At this point, those familiar with this case seem to agree that the physician may have been better advised to have had his own attorney representing him - instead of the insurance company’s lawyer, James Miller of Orlando, whose focus may have been distracted by the doctor’s looming $25,000 coverage cap.
In that original 2002 “formal signing” board meeting, the group heard much of the administrative case against Dr. Peterson and broke for lunch. When they resumed the hearing, Dr. Peterson was startled to learn that his patient’s son, the complainant in his case, had been invited up to present testimony. The doctor had not been told of the witness’ appearance and was unprepared for what lay ahead. His insurance company lawyer sat mute. The son gave an emotional speech about the death of his mother, some of which, according to Dr. Peterson, “was rife with misstatement of facts.” The son blamed Dr. Peterson for his mother’s death and pleaded with the board to prohibit the physician from ever practicing medicine in Florida again. Dr. Peterson attempted a rebuttal, but his presentation demonstrated that he had been caught flat-footed and was not prepared for that task. His insurance attorney still said nothing of substance. The board soon piled on, some members making highly prejudicial remarks, including some comments, according to Dr. Peterson, that revealed a startling lack of fundamental medical knowledge.
Invigorated by the claimant’s rousing testimony and acutely aware of the governor’s push for them to make more cash settlement cases, the 2002 board voted that day to dump the originally proposed consent agreement that had been signed by the lawyers of both sides and replace it with a disciplinary proposal nearly tripling the penalties. It was, says Dr. Peterson, a “bait and switch” trick by the board - baiting him into signing a proposed consent agreement that he could live with, then at the last moment in what was to have been a formal signing event switching it - as its rules permit - to one he believed to be grossly unfair, a punishment coming nowhere close to fitting the situation.
At this critical juncture, the physician could have rejected everything the board had done and demanded a formal hearing by an administrative law judge who would use the strength and credibility of evidence and witnesses in determining a recommended order. That choice was his right. (He had attempted it early on in his case but had been persuaded by the board’s legal staff to negotiate a consent agreement instead as a way of settling the dispute.) The board gave him a week to think it over. But, advised by his insurance company lawyer and a board member to settle, not to take that more costly and possibly more punitive administrative hearing route in resolving the scrap, he finally relented and accepted under protest the board’s revised order, which included a waiver of his right to appeal.
As time passed, he learned of what he says is the incorrect information that the board had used in arriving at its disciplinary decision. He also learned that the state had not shared significant exculpatory evidence found in an investigation of the hospital. He also learned that an attending nurse had not told him crucial information learned from the patient. Frustrated by his inability to persuade the board to review its action, he paid the originally proposed $6,062.43 in settlement terms but refused to pay any more. He also failed to persuade the Secretary of the Department of Health, the department’s inspector general, Governor Bush or his own state senator to look into the conduct of the board.
That decision to pay what he originally agreed to pay - but not the board’s “switched” version - created a collision course with the Florida Board of Medicine and the vast prosecuting bureaucracy of the powerful Florida Agency for Health Care Administration. And state medical bureaucracy was anxious to promote a newly energized prosecution program. Governor Bush had urged the board to discipline errant doctors through negotiation and fines - rather than taking the slower route through the independent Division of Administrative Hearings where a formal record is built, testimony is taken, witnesses subpoenaed and the weight of evidence is judged by administrative law judges in something of a civil law atmosphere.
In an interview at the time, Bush explained his strategy for quicker action by the board. “The Board of Medicine has changed its policy under our tenure,” he said, “to increase enforcement and use fines as a means of disciplining doctors instead of going through the lengthy process of disciplinary actions through the administrative procedures.” Issuing a citation, said the bean counters, costs state regulatory boards an average of $99, in comparison with $755 for taking a complaint through the entire disciplinary process.
The 2002 chairman understood money. He was Zachariah P. Zachariah, brother of the current chairman and, according to Aziz Haniffa, National Correspondent of India Abroad, was a leading Indian-American fundraiser for the Republican Party and the Bush-Cheney 2004 campaign.
The new Bush strategy brought lightning judgments. In short order, Florida rose from around 39th in the nation to number one in the number of physicians prosecuted during a year. Officials of the Department of Health were thrilled. Then-Secretary Dr. John O. Agwunobi gave credit for what he termed was a “swift and efficient” accelerated prosecution policy to Governor Bush. The planets were not properly aligned for the welfare of Dr. Peterson, however, when his case converged with the governor’s new speedy justice strategy.
Evidence of lingering board umbrage over Dr. Peterson’s lengthy case surfaced in today’s hearing. From the child-like scolding and lecturing of Chairman Zachariah, to the admonition of Vice Chairman Mark S. Avila, to the strident warnings of board attorney Hunter, a sense of resentment emerged. But none of it matched the pique displayed by board member Dr. Tucker, one of only three current members of the board to vote for Dr. Peterson’s original disciplinary action in 2002. It was she who, near the end of the 20-minute hearing in Tampa today, dropped the other punitive shoe. She moved to require Dr. Peterson to submit to a “disruptive physician” evaluation by a “Doctor Harmon” of Miami. Larry Harmon, PhD, is a psychologist who has developed a method of evaluating a physician for disruptive characteristics and, if found to exist, suggesting how the conduct might be changed.
A brief internal discussion followed her motion. Board attorney Hunter seemed concerned about the new penalty. He explained to Dr. Tucker that, “a penalty needs to be tailored to what the charge is. In this particular case,” he added, “the charges are ‘failing to comply with the terms of the final order’ - the previous final order. He hasn’t been charged with being unable to practice with skill and safety or anything like that.” Dr. Tucker persisted, and, with no discussion by the board as to what the program entailed or what action by Dr. Peterson generated this penalty, the board voted unanimously to add that requirement to the list of Dr. Peterson’s penalties.
Attorney Hunter was later asked to explain the meaning of his discussion with Dr. Tucker. He declined, writing that Dr. Peterson’s return of his license made an explanation “moot.” What triggered this penalty? Had Dr. Peterson been yelling and cursing at hospital nurses? Was he so narcissistic that no one could bear to bring him bad news? Were his patients fearful of him barking orders at them? Just what did cause that motion?
In an email message in response to a request for clarification of her motion, Dr. Tucker did not suggest that the penalty was in response to any issue connected to the charges against Dr. Peterson. It was, she wrote, the product of Dr. Peterson’s behavior defending himself in the hearing room this day. There was no explanation of the psychologist’s evaluation program - the time involved in it or the cost, and Dr. Harmon declined a written request to discuss that. A Google search for Dr. Harmon’s program yielded some information, including the following:
"Disruptive behavior includes such conduct as using foul and abusive language, threatening associates, criticizing staff in public, and relying on intimidation to manipulate others. Recent case law defines disruptive physician behavior as conduct that disrupts the operation of the hospital, affects the ability of others to get their jobs done, creates a ’hostile work environment’ for hospital employees...or begins to interfere with the physician’s own ability to practice competently."
At the close of today’s informal hearing, the new penalties were read and approved by the board without discussion:
· The physician would be indefinitely suspended from practicing medicine until he complied with previous final orders.
· He must pay administrative costs of $2,234.22 (for a total due of $11,842.80 in fines and costs.)
· He must appear before the board prior to reinstatement.
· He must submit to Dr. Harmon’s “Physician Development Program” evaluation.
· He would receive a letter of reprimand from the board.
Without further comment, the board unanimously approved the penalties. Dr. Peterson was given a final moment before his 20-minute hearing ended. “Once again,” he said, “I’m not being allowed to address the veracity of the charges that were first made against me.”
None of the 14 board members had any questions.