OT (somewhat):US Supreme Court Upholds Ongom; Quackbuster Plan of '96 Foiled

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US Supreme Court Upholds " Ongom; " Quackbuster " Plan of '96 " Foiled...

Opinion by Consumer Advocate Tim Bolen

Wednesday, April 25th, 2007

The New York ad agency that actually runs the US " quackbuster "

operation has to be, this week, taking extra blood-pressure

medication, avoiding telephone calls from angry clients demanding to

know why the " Plan of '96 " isn't going to work as promised, anymore.

Why? Because the State of Washington took the " Ongom " decision to

the US Supreme Court and that Court UPHELD the Washington Supreme

Court decision. This is very good for cutting-edge heath

professionals, and very bad for those trying to stop innovation in

health care.

For years, nationwide in the US, State Health Boards (Medical,

Dental, Chiropractic, Psychology, Physical Therapy, etc.), and

others, would get offers from the " quackbuster " scam operation

to " help them prosecute cutting-edge health practitioners - for a

fee. " The " package deal " would include services to help set up the

case, write the formal " Accusation " in the most flaming language

possible, distribute the " Accusation, " with commentary, to the Press

so as to ruin the practitioner publicly, and testify as an " expert

witness " in the hearing. For the " quackbuster " front-men it became

quite a lucrative cottage industry.

One example, I remember, was when little Bobbie Baratz ( S.

Baratz MD, DDS, PhD) put a $72,000 package together for the

Wisconsin Department of Regulation & Licensing (DORL) attacking

Green Bay MD Eleazar Kadile, his wife, his beliefs, etc. Baratz was

blown out of the case when Kadile's strategy/legal team analyzed

Baratz's Resume/CV and asked the Judge in the case, for a three-

day " credibility hearing " on Baratz. The Judge granted the hearing -

and that was the end of the case. Baratz sank himself with his own

testimony. It was fun to watch. You can read about that day by

clicking here.

So, what does this have to do with " Ongom? " And what's " Ongom? "

" Ongom, " or in its full case name, " Ongom v. State of Washington

Department of Health, Office of Professional Standards. " is the most

important Court decision in the history of " Administrative Law " in

the United States. Why? Because it changed the rules, making it

much tougher for State prosecutors to harass health, or any

licensed, or unlicensed, professionals by using, and abusing, the

system. Much, much, tougher. In short, it changed the " level of

evidence " required to discipline professionals.

How? Like this - There are three levels of evidence standards used

in the US Court System. From the lowest to the highest they read

like this: (1) " Preponderance of Evidence, " (2) " Clear and

Convincing Evidence, " and (3) " Evidence Beyond a Reasonable

Doubt. " Generally, the first two are used in Civil Court cases,

whereas the last is used in Criminal Court cases.

For years the " Preponderance of Evidence " standard was used in State

Administrative law hearings. But since " Ongom " that's no longer

permitted. The higher standard, the " Clear and Convincing Evidence "

standard must be used. What's the difference? A lot.

Black's Law Dictionary defines " Preponderance of Evidence " as " The

greater weight of the evidence; superior evidentiary weight that,

though not sufficient to free the mind wholly from all reasonable

doubt, is still sufficient to incline a fair and impartial mind to

one side of the issue instead of the other. This is the burden of

proof in a civil trial, in which the jury is instructed to find for

the party, that on the whole, has the stronger evidence, however

slight the edge may be. "

Then, Black's Law Dictionary defines " Clear and Convincing Evidence "

as " Evidence indicating that the thing to be proved is highly

probable or reasonably certain. This is a greater burden than

preponderance of the evidence, the standard applied in most civil

trials, but less than evidence beyond a reasonable doubt, the norm

for criminal trials. "

But what does this mean, practically, for health

professionals?

Well, for one thing, it means that, as of April 23, 2007, the date

of the US Supreme Court decision in " Ongom, " anything, and

everything, on quackwatch.com is not usable in a State

Administrative Hearing - nor can it be used even to bring charges,

or an accusation against a health professional. A prosecutor, a

Board, or State employee, knowingly using such unacceptable evidence

is risking their personal assets, for such an action can, and

should, be used to breach their " immunity. "

A Defendant, or Respondent, has every right, now, to go after the

State if they use quackwatch drivel. Why? Two reasons: (1) There

is no " science " in quackwatch offerings. Hence, there is no valid

information. So, it can't make the evidence standard. (2) Barrett,

himself, has been officially declared, in a PUBLISHED Appeals court

decision, to be " biased, and unworthy of credibility. "

For another thing, it means that no " quackbuster " bozo can have

anything to do with an Administrative hearing anymore. They no

longer have the qualifications to offer anything at hearing. And

THAT means that those of you out there that may be currently " being

investigated " have a new move on your chessboard. It's this - Send

an immediate Public Record Act request to the

department " investigating " you. Demand that they provide you with

any, and all, communications with (1) Barrett and

quackwatch.com, (2) the Federation of State Medical Boards, or

(3) anyone outside of their own organization on the subject they

are " investigating " you for. They are required by law to give you

this information. If you find any of that - go after the so-called

Investigator for " due process " violations immediately.

Stay tuned...

Tim Bolen - Consumer Advocate