Synopsis of Dr. ' Hearing Before Medical Licensing Board Dec 18th

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The following summary has been provided by Sandy Berenbaum. It is also posted

on Kay Lyons' website:

_http://lymesite. com/Dr%20% 20Hearing% 20FINAL.htm_

(http://lymesite. com/Dr%20% 20Hearing% 20FINAL.htm)

FOR DISTRIBUTION:

Dr. ’ Case - Synopsis

Memorandum of Decision

CT Medical Licensing Board Meeting

December 18, 2007

Background: The Panel assigned to hear Dr. ’ case completed their

review of the evidence presented over the course of 11days of hearings that had

begun on March 28, 2006, and handed down recommendations. If these

recommendations were accepted by the Medical Licensing Board, Dr. would be

fined $10,000, and be subjected to having his patient care monitored by a

physician for a period of two years. The process would be put into place within

60 days, with the monitoring physician reporting back to the Medical Board

periodically. The attorneys had the opportunity to submit briefs and to provide

oral arguments to the Medical Licensing Board at their monthly meeting. The

Board would then decide whether to affirm the findings of the panel, to dismiss

it, or to modify it in some way. Their findings would be binding on Dr. ,

unless the ruling was overturned on some level of the appeal process.

This hearing was to determine whether the Medical Licensing Board would

accept, reject, or modify the panel’s Proposed Memorandum of Decision. Over

100 people attended the meeting of the Board, to support Dr. . Those who

assembled, many Lyme patients or parents of very ill children, felt the high

anxiety and stress of the day, realizing that the Board would be ruling on

whether Dr. would be free to practice medicine as he has until this date,

using his extraordinary clinical skills to treat the children who come to him.

Those in attendance maintained decorum throughout the day. Aside from a

controlled and dignified moment of spontaneous applause for Attorney Pollack,

when he completed his closing arguments in support of Dr. , the room was

quiet.

The chairman of the Board, Dennis O’Neill, announced that he recused himself

from voting, but would conduct the discussion. In light of the fact that a

discussion leader would have a certain amount of power to control the

discussion, one might wonder why someone who recused himself would not also step

down when it came to leading the discussion, as well.

An announcement was made that 145 letters had been received by the Board

from the public. They were marked as an exhibit, but for identification only.

The chairman announced that each attorney would be allowed 30 minutes for oral

arguments, turning down Attorney Pollack’s request for 1 hour.

Attorney Tillis, representing the DPH, stated that, in general, the DPH

* Tillis asked that the time element be tightened up, forcing the

choice of monitoring doctors more quickly, with the first review by the Board to

come in 60 days (rather than the choice be made within 60 days.)

* “A little bit thornier, but not unprecedented,†stated Tillis, DPH

requested that the monitor file the report stating that Dr. was “

practicing safely and effectively, and in compliance with the standard

enunciated in this decisionâ€.

(Writer’s note: this would imply that Dr. is currently NOT

practicing safely and effectively, and would certainly imply that the hearing

process had established a standard of care! From what I see, the monitor would

be required to monitor “standard of careâ€, not just whether Dr. wrote

a prescription without first seeing the patient! )

Attorney Tillis continued to argue that Dr. failed to reconsider his

diagnosis when the children’s blood work did not come back positive. Attorney

Tillis argued against what he stated as the respondent’s argument that the

Board had no business entering into the question of standard of care. Tillis

reviewed issues presented at the hearing: tick exposure low where the

children lived, the patients didn’t have that the “specific†symptoms of

Lyme disease [specific symptoms having been asserted by Dr. Eugene Shapiro in

his testimony]. Tillis claimed that the argument was not about Lyme disease but

about Dr. ’ diagnostic methods, and not about the diagnosis itself.

Tillis further pointed out that one of the physicians on the panel, Dr.

Senechal, “in the course of the hearings suggested that the primary diagnosis

should have been anxietyâ€, brought out by family problems. ]

(Writer’s note: Is it the role of the panel or Board member to determine

having examined the children in question?)

Attorney Tillis included in his oral arguments information that ran contrary to

the testimony given at the hearing, indicating that Dr. made a

“presumptive diagnosis of Lyme†when the mother called, 4 or 5 months prior

to examining the children. Although Dr. had written a prescription for a

single renewal of 5 days of zithromax for a paroxysmal cough diagnosed by a

local doctor, he had not diagnosed or treated Lyme until he had examined the

children in May.

Attorney Tillis continued to argue that Dr. ’ diagnosis was wrong, and

that he did not consider other diagnoses, thus failing to do a differential

diagnosis, to rule out other conditions. He called for a “finding of fact to

show that [Dr. ] did not make a differential diagosis. All three of the

panel members refused to include that in the findings, Dr. Fuller stating that

the lengthy list of testing that Dr. conducted showed that he had, in

fact, conducted a differential decision not to include a failure to conduct a

differential diagnosis in the findings. This finding by the Board and panel runs

counter to many of the points made by Attorney Tillis.

Attorney Pollack proceeded to oral arguments. He eloquently summarized Dr.

’ defense, highlighting the following:

* A father involved in a custody dispute, resulting from a

post-divorce action against him for failure to pay medical bills, attacked the

doctor who treated his children.

* The father had made repeated attempts to gain custody of the

children, and when he was unsuccessful, he voluntarily moved hundreds of miles

away, severely limiting the contact he was able to have with his children.

* Dr. is a man of considerable talent and skills, and a long

history of treating Lyme disease [over 10,000 patients].

* Dr. had a conversation with a school professional to discuss

ideas to avoid having the child expelled, and suggested homebound instruction as

an alternative. Subsequent to homebound instruction, the child returned to

school and did very well.

* Treatment of the children was being monitored by the mother, who was

a highly experienced, “remarkably clear-headed†health care professional,

and there were no adverse effects.

* This hearing is about a situation where the patients were not

victims – there was nothing wrong in the process of diagnosis or treatment.

The patients, in fact, got well.

* No member of the hearing panel had any extensive experience

diagnosing and treating Lyme disease. They were “depending on Dr. [Eugene]

Shapiro†who has a “really restrictive view of Lyme…â€

* The public health commissioner [the person who ultimately was

responsible for making the decision to pursue this case] had publicly stated and

confirmed in correspondence that the department’s view was that it was too

early to determine a single “best practice†for Lyme disease given the

unsettled state of the science. He had stated at public hearings that the

department would not initiate an action against a physician because he was

treating chronic Lyme disease. These public statements of health care policy are

at odds with the fact that the Commissioner allowed this case to be pursued—an

inconsistency which the Commissioner has failedto adequately address. Dr.

Senechal, a member of the hearing panel, had said, early in the proceedings,

that this hearing was not to determine the standard of care for Lyme disease,

yet

subsequent hearings contradicted that statement. Throughout the hearings,

there has been a considerable effort to “mince†words on the part of the

both the Commissioner and the panel, presumably to avoid taking the public heat

for their actions. Given that a number of the charges are directly related to

Lyme disease diagnosis and a number of the findings are based on these charges,

attempts to mischaracterize the nature of the proceedings as the violation of a

standard of care for “any†disease are disingenuous at best.

* It is “fundamental denial of due process for an agency to say they

won’t set a standard, and then do it…In March, 2006, DPH stated that

“there isn’t a single standard of care for Lyme disease. Yet they want Dr.

monitored on the basis of this standard of care.â€

* “It is absolutely without foundation for them to find that he did

not change his diagnosis after the second blood tests came back…[when it is ]

clear that serology is not accurate.â€

* Drs. Fallon, Shea and ’ testimonies were “mischaracterized†by

the DPH attorney.

* Extensive literature supports Dr. ’ medical practices, where

Lyme disease is concerned. In responding to a question from the Board, regarding

the hearing, Attorney Pollack stated “…the proof [of whether the hearing was

fair] is that the result is very seriously flawed.â€

The extraordinary lack of fairness evident in these proceedings is

represented by the remarks of one panel member, when she was asked the crux of

the matter by a Board member. Her response was “The crux of the issue is that

the physician prescribed the medication solely on the word of the mother,

without seeing the children, and he continued to prescribe medication and

treated these children before he had seen them, when, in our opinion, there was

no evidence that he had Lyme disease.†In point of fthat Dr. had

prescribed any medication for Lyme disease prior to

providing each of the children with a 2 hour examination. Regarding her stating

that, in the panel’s opinion, there was no evidence that the patient had Lyme

disease might lead one to believe that the panel was diagnosing this child, in

fact, without examining him.

The question of fairness of the entire proceeding came into play once again when

one member of the medical board derided Attorney Pollack, with personal attacks,

prior to the Board voting on whether to accept the panel’s recommendations to

sanction Dr. . Responding to Attorney Pollack’s oral arguments, the Board

Member stated, “Your argument has more holes than a watering can…. Each of

the arguments you raise can be trodden upon…This Board is not trying to set a

new standard of care for Lyme disease; it is to reapply the standard of care

that is there. It is obvious to me that this standard of care has not been

breached once but many times.†Again, given that the Board had not

yet voted, it seemed wholly inappropriate that this Board member would make

these remarks, and further state, “We don’t believe Dr. cured

anything. "

The Board ultimately approved the Memorandum of opinion, requiring Dr. to

choose a pediatrician to serve as monitor within 60 days, to pay a $10,000 fine,

and to submit to monitoring for a period of 2 years. There will be future legal

actions taken that could reverse this decision, through an appeals process, but

for this lengthy and difficult hearing, many were wondering why a respected

physician with a prestigious background would be subjected to legal proceedings

that so obvious lacked due process. Throughout the hearings, Dr. has been

represented by the team efforts of Attorneys Elliott Pollack and Lorraine

, who has provided knowledge of Lyme disease and its attendant legal

issues. [Note: Attorney is the co-author with Ray Stricker, MD, of the

publication, “Treatment of Lyme

Disease – A Medicolegal assessment,†published in the journal Expert Review

of Anti-infective Therapy, August, 2004 (p. 533-57), an excellent review of the

“two standards of care†issue.]

Despite the outcome of this day’s events, Dr. and Attorney Pollack

feel confident that they will prevail. There will be opportunities for this

ruling to be reversed, and they both appear ready to continue the fight, to

protect Dr. ’ right to treat efficaciously, and, more importantly, for

the right of chronic Lyme patients to be able to choose medical care that

effectively treats this devastating disease.

Sandy Berenbaum, LCSW, BCD

Brewster, New York

(845) 259-9838

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