The North Carolina Medical Board Needs To "Step Up To The Plate" Before It Tells Medical Whistle-Blowers To Put Their Heads On The Block

Over the last few weeks I've had some fairly deep conversations with friends and family - several of whom are worried about my health and long-term happiness.

Why do I still fight, they ask (even as they express admiration for my tenacity)?

The answer can basically be found in the abject hypocrisy of the "President's Message" published in this year's Spring 2009 North Carolina Medical Board Forum . . . to which I posted a rebuttal on this blog several days ago (a rebuttal that was moderated off the NCMB's website . . . not that I think it really matters).

The PRESIDENT of the NCMB, Dr. George Saunders, more than makes my case for ongoing GROSS NEGLIGENCE on the part of the North Carolina Medical Board (not to mention JCAHO and NC/USDHHS).

In his message to we-the-beleaguered-troops, Dr. Saunders lectures us on our responsibility . . . our duty . . . to report bad care . . . to "blow the whistle" on colleagues who screw up (it's in blue because it's just so "progressive").

. . . often, the Board finds that physicians and other medical professionals know about substandard care or other issues but say nothing until problems snowball and patients are harmed or even killed. Worse, sometimes physicians and others may say nothing even when a situation is out of control . . .

. . . most medical professionals are not comfortable in the role of whistleblower. None of us wants to be the cause of a colleague losing his or her medical license. It may surprise some of you to know that the Board believes its licensees have an obligation to report incompetence or misconduct to the appropriate authority, whether that authority is the Medical Board or not . . .

He goes on to post the NCMB position statement . . . adopted in November 1998.

It is the position of the North Carolina Medical Board that physicians have a professional obligation to act when confronted with an impaired or incompetent colleague or one who has engaged in unethical conduct.

When appropriate, an offer of personal assistance to the colleague may be the most compassionate and effective intervention. When this would not be appropriate or sufficient to address the problem, physicians have a duty to report the matter to the institution best positioned to deal with the problem. For example, impaired physicians and physician assistants should be reported to the North Carolina Physicians Health Program. Incompetent physicians should be reported to the clinical authority empowered to take appropriate action.

Physicians also may report to the North Carolina Medical Board, and when there is no other institution reasonably likely to be able to deal with the problem, this will be the only way of discharging the duty to report.

This duty is subordinate to the duty to maintain patient confidences. In other words, when the colleague is a patient or when matters concerning a colleague are brought to the physician’s attention by a patient, the physician must give appropriate consideration to preserving the patient's confidences in deciding whether to report the colleague.

So. Since 1998, the North Carolina Medical Board has had a policy in place that specifically addresses a physician's duty to report medical badness.

Let's review how that pertains to me.

In mid-January 1998, Dr. Mary Johnson, just days from finishing up a public service obligation to the National Health Service Corps (at the "controlled affiliate" of "non-profit" Randolph Hospital) . . . and working under a threat based on trumped-up accusations (it apparently being her obligation to cow-tow to local VIP's even when they were way-out-of-line) . . . answered a call in the middle of the night from a terrified LDRP nursing supervisor who told her a newborn baby was dying because another doctor did not know what-in-the-hell he was doing.

Randolph Hospital had "marketed" this doctor to the community as having skills and training in Neonatology & Pediatric critical care that he did not, in fact, possess.

It's called false advertising. I think the Medical Board has a position statement on that now.

Dr. Johnson first offered personal assistance, but when the doctor refused that, she decided she could not just roll over and go back to sleep. She chose to put the patient first - even over her own career and happiness - and go in/do her job.

The child survived. Her parent send Dr. Johnson a Christmas card every year.

JCAHO would call it a "sentinel event". Except they didn't.

The next morning, Dr. Johnson defied the specific threats of administrators and reported the incident to Randolph Hospital Peer Review.

In other words, Dr. Johnson did everything by the book.

Barely two weeks later, she was out of a job . . . and in a very creative/very warped interpretation of the "voluntary termination" clause of her contract, banned from practicing ANYWHERE and told to keep her mouth shut for the duration of a six-month "notice" (the handling of the provost's "resignation" at N.C. State gives us an opportunity to contrast and compare in an upcoming post).

The hospital brass, you see, was more concerned about its image than the fact a child had nearly died "inside" its walls (yes, that was a swipe at the hospital's latest beyond-lame ad campaign).

Only AFTER she was served "notice" of termination did Dr. Johnson receive notification that the case had been peer-reviewed, and YES, if she thought a child was dying under someone else's inadequate care, she had an obligation to intervene and report.

However, the Randolph Hospital Medical Executive Committee (also the Peer Review Committee), composed of physicians, made no move to address the actions Randolph Hospital Executives (aka "suits") took against Dr. Johnson. It was a lowly employment matter.

Meanwhile everyone lied to her patients about what was going on (many of whom were given the impression she abandoned them). Dr Johnson deserved her "privacy" . . . even when she didn't particularly want it.

Because North Carolina is a "right-to-work" state, and (despite their unique duties & obligations) physicians enjoy no special rights or protections under those laws, if Dr. Johnson wanted the truth to come out, there was little she could do except wait the notice out. During that time, her practice was decimated and absorbed - both by RMA and the local doctors she had considered allies and friends . . . allies and "friends" who, despite knowing that what had happened was beyond wrong, looked the other way.

Meanwhile, Dr. Johnson pleaded for help . . . first to officials in the North Carolina Department of Rural Health . . . and later to the U.S. Department of Health & Human Services . . . in Raleigh and Atlanta and Bethesda and Washington - all the while tap dancing around privilege and confidentiality and privacy.

It was a tediously slow process . . . with phone messages never returned and letters rarely answered. Dr. Johnson got a little help from Congressman Howard Coble. But not much.

After her "notice" was up (in August 1998), Dr. Johnson filed a complaint with the North Carolina Medical Board. The Board, despite formally adopting a position statement just a few months later (before the complaint was, in fact, "resolved"), glossed over what happened . . . barely slapping the doctor who falsely advertised his abilities and whose arrogance/ignorance nearly killed a baby on the hand . . . and doing absolutely NOTHING to assist Dr. Johnson.

In February 1999, Dr. Johnson filed a lawsuit against RMA. Within days of filing the lawsuit, her hospital privileges were rescinded (hospital lawyers pulled a big sneaky and advised the Medical Executive Committee they could just accept a resignation she had withdrawn) without her knowledge or any kind of notice/hearing.

In the summer of 1999, Dr. Johnson, responding to a request for feedback from the NHSC, gave it - and submitted a complaint directly to Clinton DHHS Secretary Donna Shalala. It was copied to several other regulatory agencies (including the Medical Board and JCAHO) on a "need-to-know" basis.

And it was stamped "CONFIDENTIAL" on EVERY SINGLE PAGE.

Dr. Johnson was still doing everything by the book.

Apart from removing Randolph Medical Associates from its list of approved provider sites, and making RMA pay her malpractice tail, the Federal government did absolutely NOTHING to assist Dr. Johnson legally regarding the destruction of her practice in Asheboro . . . despite the fact that their own site agreement specifically required (1) adequate/fair peer review mechanisms to be in place and that (2) her continued practice in the area could not be impeded in any way.

Dr. Johnson also met with JCAHO twice. Despite adopting all sorts of recommendations about dealing with "disruptive physicians", JCAHO informed her that it had no mechanisms in place to deal with administrators who behaved badly.

It still doesn't.

In the summer of 2000, Dr. Johnson, struggling mightily to make ends meet on the road (as she had been black-balled for miles around Asheboro), was served with a "libel" lawsuit - filed by Randolph Hospital over selected excerpts from her complaint to Secretary Shalala.

It's called a SLAPP suit and it was intent was purely malicious - to humiliate and financially destroy her.

It backfired.

The case was settled in 2001. Running from their own accusations of "libel", hospital lawyers and executives pleaded "poverty" to Dr. Johnson, saying that they were "nearly bankrupt" and could not afford a large settlement. Her own attorney (Steve Schmidly) told her that punitive damages were not taxable. Worn down, emotionally drained and physically exhausted, and all but financially devastated, Dr. Johnson accepted the offer of $125,000. She did not even get attorney's fees.

But the award was taxed. There was very little left after all the bills were paid - certainly not nearly enough to get another practice off the ground. And terms of getting that practice off the ground, after the settlement, Randolph Hospital executives could not have been more asinine & uncooperative. And when she did some digging (something her lawyer should have done), Dr. Johnson was soon to discover that the practice/hospital were far from "nearly bankrupt".

You see, hospital executives who paid themselves $200,000 and $300,000 and $400,000/year (look it up) had repeatedly lied about the "confidentiality" of their books, their salaries, and the salaries of the doctors to whom they handed over Dr. Johnson's patients & practice. It put Dr. Johnson's settlement (not even one year's salary in the wake of three years of hard work decimated . . . and another three years spent litigating) in a whole new light.

In 2003, Dr. Johnson reported multiple instances of perjury, contempt and fraud to local, state and Federal officials. She also reported the lawyers involved in the fraud (including her own) to the N.C. State Bar.

It's 2009.

Let's reveiw what the North Carolina Medical Board and the N.C. & U.S. Departments of Health and Human Services, and JCAHO have not done in eleven years to plug all of the black holes of medical and legal oversight Dr. Johnson fell through:

(1) Specifically, the NCMB/JCAHO/NC&USDHHS have done NOTHING . . . ZERO . . ZIP . . . NADDA . . . to see Randolph Hospital executives held accountable for their clearly UNETHICAL and ILLEGAL actions against a physician in public service WRONGFULLY TERMINATED for doing her duty and SWINDLED at settlement after turning to the justice system (after she was ABANDONED by the government she served) for vindication.

Again, perjury has no statute of limitations. I'm supposed to buy/accept that one oversight agency cannot pick up the phone and call - or make strong recommendations - to another? That Bob Morrison and Steven Eblin, big fish in a small dying pond, are untouchable?

How fundamentally LAME is that?

(2) More globally, in terms of protecting the duties the state requires, the North Carolina Medical Board and/or the North Carolina Medical Society and/or JCAHO and/or DHHS have done NOTHING . . . ZERO . . . ZIP . . . NADDA . . . to see that North Carolina employment laws are modified to protect physicians (especially physicians in public service) from unjust/wrongful termination.

(3) The North Carolina Medical Board and/or the North Carolina Medical Society and/or JCAHO and/or DHHS have done NOTHING . . . ZERO . . . ZIP . . . NADDA . . . to advance medical peer review reform . . . and ensure a little thing called "due process" is ensured during hospital (and Board) disciplinary actions.

It's only a constitutional right.

(4) Furthermore, the North Carolina Medical Board and/or the North Carolina Medical Society and/or JCAHO and/or DHHS have done NOTHING . . . ZERO . . . ZIP . . . NADDA . . . to protect medical whistleblowers from the kind of deliberately malicious, cruel, vicious retaliation tactics Randolph Hospital executives unleashed up Dr. Mary Johnson.

I've been a little blue and very out-of-sorts lately . . . very disillusioned with & disheartened by eleven years of wrong is right and down is up . . . weary-to-the-bone of well-meaning people telling me that I need to get over it and move one . . . to accept what happened as just the way things are and that there's nothing to be done. In an e-mail the other day, a friend (who really does gets it) said this:

Why yes, you are one of the most angry and bitter people I know. You are also one of the most mal-treated, run over, screwed, burned, nailed and plain 'ol F*CKED OVER people I know.

As I've said before, I've considered leaving medicine. My friend (giving me an earnest variation of the "keep putting one foot ahead of the other" & "you've got to do what let's you sleep at night" speeches) later suggested that I should try to keep on giving without expecting anything in return.

"It's the Christian way", he said (knowing it would get a rise).

Here's the thing about that. I gave and gave and gave in Asheboro and really did not expect anything in return except to be treated fairly and with just a tiny bit of respect . . . to be left alone and be allowed to live the life I felt destined to lead . . . in the home I chose to return to and serve.

I did not deserve to be mal-treated, run-over, screwed, burned, nailed or plain ol' F*CKED OVER for simply doing my job (by people who call themselves Christians no less).

It's just wrong. And unacceptable.

And it was, in fact, the state of North Carolina's job . . . and the Federal government's job . . . to keep that from happening . . . to protect the duties they required.

I've got a lot of thinking to do over the next month or so. For eleven years, the North Carolina Medical Board's "strategy" has been to ignore my situation . . . to pretend that I do not exist.

Yet their current President is now on-the-record that patients do indeed come first, and physicians have a duty to report bad care.

He just doesn't address the inconvenient truth that when those doctors blow the whistle they cannot rely upon ANYTHING or ANYBODY to protect them. They can, in fact, expect to be maltreated, run-over, screwed, burned, nailed and generally F*CKED OVER.

Now if, to facilitate "change", I have to hire a lawyer and file a lawsuit against any or all of these agencies in order to see justice done . . . not to mention justice re-defined/clarified for doctors in North Carolina . . . do "ya think" I'll settle this time until the earth in Raleigh is absolutely, utterly scorched?

Perhaps it's time that the doctors & lawyers at the North Carolina Medical Board & North Carolina Medical Society re-thought their strategy.

Sooner rather than later.