Robert S. Bennett – The Right Defense

Robert “Bob” Bennett, Educator and Attorney at Law of Houston, has the right knowledge and experience to help professionals defend against allegations of professional misconduct.

Bob Bennett Licensing Services for Professionals specializes in representing professions in professional matters before State licensing boards, including the State Bar, the State Commission on Judicial Conduct, and the Texas State Board of Medical Examiners (the Board). Bob Bennett has helped doctors, judges, and lawyers in every part of the state in the last ten (10) years. Depending on the allegations brought, he has generally been able to meet the expectations of his clients and negotiate a resolution that is beneficial for them.

For more information, you can visit www.bennettlawfirm.com or give us a call at 713-225-6000.

Know Your Legal Rights – Interview by Houston Sun News

Know Your Legal Rights….A Talk With Renown Attorney Bob S. Bennett

By Keryl L. Douglas, Esq.

Knowing their legal rights is imperative for laypersons, especially when confronted by authority or legal challenges; and so it is with experienced lawyers as well.  As evident from his very own personal confrontation with authority and legal challenge from the State Bar of Texas, it was imperative for Attorney Bob S. Bennett to know and diligently pursue his rights.  “They generally get it right; but when they get it wrong, it is devastating,” Bennett said of the State Bar and persons who get unjust outcomes.

Interestingly, one of Bob Bennett’s very ardent and unwavering supporters entirely convinced of Bennett’s innocence, legal experience, and character was Anthony Graves, who had been represented by Bennett since his exoneration after unjustly serving more than 18 years behind bars for murders he did not commit.  He was released on Oct. 27, 2010. As you may recall, Anthony Graves was the innocent man wrongly convicted of the 1992 multiple murders of Bobbie Davis (45), Davis’ daughter (16), and four grandchildren. Bennett began representing Graves after his exoneration when the former Texas death row inmate filed a grievance with The State Bar of Texas imploring discipline for the prosecutor who got him wrongfully convicted him of capital murder.  Bennett and Graves prevailed and the Prosecutor Charles Sebesta, with 25 years experience, was disbarred.

Robert Bennett is touted to be one of Houston’s renowned attorneys in the areas of Medical and Legal license defense.  For professionals, maintaining and protecting their licenses is a priority.  Bennett has defended professionals and their licensing for at least the last two of his approximate four decades of legal practice.  Then, in 2014, he found himself similarly faced with one of the worst kinds of threat to a legal license – disbarment.

Americans spend over $100 billion in legal fees every year. Lack of communication by consel and Fee disputes are among the leading causes of State Bar Complaints and Legal malpractice claims. Some clients file grievances in attempt to avoid paying fees legitimately and rightly owed to attorneys.  Bennett’s experience soberly shows, not even attorneys considered “great” are immune to such challenge to their licenses.

A client of Bennett filed complaint alleging failure to return fees pursuit to Rule 1.15(d).  Ultimately, after appeal, the conviction and/or disbarment on that claim was reversed by Appeals Court; its Opinion stating there was “legally and factually insufficient” evidence to support the finding of the lower Court .

In 2014, after a three day trial before then Judge Carmen Kelsey, Judge Kelsey ruled disbarment of Bennett rather than the two year suspension requested by the State Bar attorneys. Bennett appealed. A litany of people proffered encouragement, confidence in his character and practice of law (including Anthony Graves},  wrote letters, filed amici briefs, volunteered to testify at trial.  Many disagreed with the ruling and believed Judge Kelsey lacked the adequate experience to hear and properly rule on the case. Lillian Hardwick, Co-Author of “The Handbook on Texas Lawyer and Judicial Ethics,” considered an expert on such matters, told the court that the civil wrongs of breach of contract and breach of fiduciary duty can’t be equated to violations of the disciplinary rules.”

(Knowing his legal rights), Bennett appealed his case.  For further inquiry, the case is Robert S. Bennett v. Commission for Lawyer Discipline, case no. 14-14-00470-CV, Fourteenth Judicial District Court of Appeals for the State of Texas.  In 2016, the Texas Appellate Court reversed the infamous disbarment of Atty. Bennett, and he is back to what he loves: offering expert defense to professionals who’s licensing is under threat.  Bennett said he was very pleased with their argument before the Appeals Court, elated with the outcome, and very optimistic about the remaining issue of rule 3.02.  Interestingly, Judge Carmen Kelsey lost her bid for re-election.

Bob Bennett’s personal experience/confrontation is a “case study” for lawyers and laypersons alike. Bennett has offered CLE’s on relevant issues for many years before he found himself in similar circumstance.  While he and others feel the actions against him were unjust and unwarranted, he moves forward, using his experience to further help others. CLEonline.com has a program based on the grievance disciplinary case involving Bennett’s case which essentially involved every single facet of the grievance  process, from initiation to conclusion.

Groups around the nation are calling for reform: transparency, fair judicial processes, uniformity and lack of bias in grievance/disciplinary processes, investigations, findings and decisions by State Bars; more easily accessible and consumer-friendly processes and websites, etc.  Attorney Bob S. Bennett said” The Sunset Review Committee is working with the Texas State Legislature regarding reform of the Texas State Bar.”  The Houston Sun anticipates reporting on the outcome of this reform effort.

A complete video of the Bob S. Bennett Interview may be found soon on the Houston Sun website, as well as at https://vimeo.com/200990526/c96479cd89, and other sites.


This article is written by Houston Sun News.

Happy 2017!

Happy New Year!

Wishing you good times, good cheer, and a memorable 2017!

 

All of us at the Bennett Law Firm
want to thank you for your business, loyalty, and
support in 2016. Let’s make 2017 a great year together!

Get an Insider’s View of

The Texas Disciplinary Rules and Process

CLEonline.com is pleased to present a special online CLE program that describes the grievance disciplinary case involving Houston attorney Robert S. “Bob” Bennett, who was unjustly disbarred for the violation of Texas Disciplinary Rules of Professional Conduct 3.02 and 1.15(d). He appealed. Two years later, through his hard work and perseverance, Bennett’s reinstatement followed after a panel of the Fourteenth Court of Appeals reversed and remanded the decision. Bob is the only attorney in the history of the Texas Bar who has taken on the 100,000 member organization and won a reversal of disbarment.

Virtually all facets of the disciplinary process came into play from the time the grievance was filed until its conclusion, causing Bennett’s disbarment and reinstatement to comprise a case study of the Texas Disciplinary Rules and the grievance process, useful for any attorney who may be the subject of a grievance or avoidance thereof. This CLE is authored by Ethics Expert Lillian Hardwick. You can register for this seminar by clicking this CLE Seminar link.

If you need a CLE program regarding this topic, please let us know by contacting our office at (713) 225-6000 or by email at bob@bennettlawfirm.com.
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Reminder!

The Highland Lakes Bar Association CLE Event
Robert S. Bennett will be speaking at the Highland Lakes Bar Association’s CLE
event on Friday, January 27, 2017 in the meeting room in the back part of the restaurant. Lunch can be ordered from the menu.

Topic: “What You Need to Understand About the Office of the Chief Disciplinary Counsel to Protect Your Fees.”

When: Friday, January 27, 2017 at 12:15 pm to 2:15 pm.

Where: Francesco’s Italian Restaurant at 701 U.S. 281 North in Marble Falls, Texas 78654. It is in a small strip center on the east side of 281 south of the intersection of 281 and Highway 1431.

CLE: Course Starts at 12:15 p.m. 2 hour CLE Ethics.

Mr. Bennett, former Assistant United States Attorney, and former President of the University of Houston Law Center Alumni Association, will discuss what you should know and what you can do when your client starts complaining about your fee arrangement. Also covered will be how recent decisions have provided some guidance on when the Office of Chief Disciplinary Counsel believes a disciplinary rule has been violated, whether mediation should be used or not and lessons learned from his personal experience. Mr. Bennett will also will discuss fee agreements, recent grievance decisions, and possible reforms in the upcoming Texas Legislative Session.

Along with Mr. Bennett, Ethics Expert and Co-Presenter Lillian Hardwick will be speaking on her topic: “Pending Changes to the Attorney Disciplinary Rules & System.”

Her presentation will cover how the Legislature has conducted its Sunset Review of the State Bar of Texas and recommended changes to the way the attorney disciplinary rules are generated. Also covered will be the suggestions made in response to complaints from the public and grieved lawyers alike about ambiguities in how grievances are processed and how sanctions are assessed.

Paid 2017 member attendees will receive two (2) hours of free CLE credit reported direct to the State Bar. If you wish to be a member of the Highland Lakes Bar Association for 2017 dues are $50. You may bring a check payable to “HLBA” to the January meeting or mail it to:

The Highland Lakes Bar Association
P.O. Box 1044
Burnet, TX 78611

We hope to see you at the meeting!

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How to Handle a PDL from the Texas Board of Law Examiners
The Texas Board of Law Examiners (BLE) sends out a Preliminary Determination Letter (PDL) which may raise issues about your good moral character and/or fitness.

Does this mean you cannot become a lawyer?

Not necessarily. What it means is the BLE has some concerns that need to be addressed before you can become a licensed attorney.

Having gone through undergraduate school, having attended law school, having even passed the BAR, you will not become an attorney unless you get permission from the Texas State Board of Law Examiners. This means that you need to make an important business decision of whether you’re going to hire an attorney, whether you’re going to do this on your own, or whether you call Bennett Licensing Services and let us help you make the decision. We, of course, recommend hiring an attorney. Our firm has an unsurpassed success record with the Board. Bob Bennett and Bennett Licensing has 175 reviews on Avvo.com; more than any other attorney in Texas.

For more information, please watch on how to handle a PDL:

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Better Early than Late
by Tommy E. Swate M.D, J.D, SM.Hg

It is always an honor and privilege to be asked to represent a healthcare professional when he/she is being attacked by a licensing board at any stage of the proceeding. But so many times, I wish that our firm had been contacted at the earliest stage of the attack. This wish usually comes to mind at 2 a.m. in the morning when our firm is attempting to complete a motion or pleading due the next day. Many times physicians ask our help after a case has proceeded to an advanced stage. We are available to help at any stage of a proceeding, but would prefer earlier than later.

Just recently we were asked to prepare an appeal of a license revocation for a doctor just 48 hours prior to deadline for filing an appeal. At certain stages of a formal proceeding brought by the Texas Medical Board or any licensing Board there are deadlines to file certain motions and pleadings.
These deadlines are rigidly enforced against the healthcare professional. If you miss a deadline you lose, no matter how meritorious your case. If every issue is not included in the pleadings or motions you lose on the issues that are not plead. You may not get an opportunity to amend your pleadings in certain situations.

An example of this deadline situation is the requirement to file a Request for Rehearing after the Texas Medical Board has formally revoked a medical license. You might think that if you don’t file a Request for Rehearing you can just go directly to an appeal. This is not the case. The Request for Rehearing not only must be filed, but all issues you wish to appeal must be included in the Request for Rehearing.
In a recent case, the physician had defended himself before the State Office of Administrative Appeals. The physician had done an incredible job of defense, but the Administrative Judge found for the Texas Medical Board as you might expect. From talking with the physician, I found that the Board’s attorney had taken advantage of the physician’s lack of legal training every step of the way.

Just 48 hours prior to the deadline for filing a Request for Rehearing, the physician employed our firm. Of course he did not know about the various booby-trap deadlines. I certainly wished that he employed our firm early; so that I would not have been required to work “early”. If he had waited two more days his license revocation would have been permanent with a loss of his right to appeal the Texas Medical Board’s unjust actions.

Fortunately, we were able to file the Request for Rehearing and preserve his right to appeal the Texas Medical Board’s license revocation. The whole administrative scheme for revocations of a health care license is replete with booby traps for the unwary. These traps are designed to benefit the bureaucracy in its effort to further the government employee’s agenda.

I urge every healthcare professional that is threatened by a licensing board to contract legal representation as early as possible. Not only will you have a better chance of defeating the government bureaucracy, but it makes better emotional and financial sense for you to do so. Many professionals assume that when they receive correspondence from the Board that regulate their health care license that the “Board” is making the allegation after some consideration. This assumption is far from the truth; government employees are making the decisions. In most cases, the employees are not licensed in the practice area.

In this time of stress, you need clear heads guiding you to a successful outcome. If you need legal representation against a licensing board, don’t wait! Contact Attorney Tommy E. Swate for a free consultation by phone at 713-225-6000 or by email (swatemd@aol.com).

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Protecting Licenses Since 1974

Office Locations:
North Houston: 525 North Sam Houston Pkwy East, #570
Downtown: 401 Louisiana St #504
Austin and College Station by Appointment
Nationwide

Contact Information:
Office: 713.225.6000 Bob’s Cell Phone: 832.506.4592
Email: bob@bennettlawfirm.com
Website: bennettlawfirm.com

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Bob Bennett relies on his nearly 40 years of experience in his practice in defending professionals against allegations of professional misconduct. Moreover, he draws on the skill and dedication of other experts where appropriate.

Don’t let stress tie you down in 2017.  Bob Bennett understands the anxiety and insecurity that can accompany allegations of professional misconduct. Take action in 2017, and let us help you.

We have helped hundreds of professionals across numerous professions in a variety of licensure issues. We offer free initial consultations, flexible hours and a convenient office location in the historic district of Downtown Houston with ready access to parking and public transportation. Contact our office at 713-225-6000 or contact Bob Bennett at 832-506-4592 or by email: bob@bennettlawfirm.com to schedule an appointment to discuss your licensure issue with a compassionate and trustworthy expert.

Bob Bennett Licensing Services for Professionals, 525 N. Sam Houston Parkway East, Suite 570, Houston, TX 77060

Bob Bennett & Associates – USMLE/NBME Irregular Behavior Hearing

Bob Bennett & Associates and the USMLE/NBME Irregular Behavior Hearing

USMLE-robert-bob-bennett-attorney-houstonBob Bennett & Associates has become one of the foremost defenders of physicians in medical licensing disputes in the nation. Few firms attempt, much less excel in overcoming, the daunting task of protecting able-minded medical graduates from one of the most feared obstacles in their medical journey: an accusation of irregular behavior by the United States Medical Licensing Board. Mr. Bob Bennett is one of the only attorneys in the nation currently dealing with USMLE licensing matters, with nearly 40 years of legal experience. Mr. Bennett has been before the USMLE Committee for Individualized Review countless times, and is well-versed in the intricacies of the USMLE testing process, as well as its sometimes capricious actions.

Unfortunately, for future USMLE test-takers, the purported behaviors that could ultimately lead to an allegation of irregular behavior are simply too vague and too vast to cover in this short article. It would be infinitely easier to explain the reasons why one should hire professional help of the highest caliber in order to dismiss these potentially career-ending accusations.

For one, it is important to understand exactly just how vague the guidelines by which USMLE judges irregular behavior truly are. This ambiguous nature allows USMLE to scrutinize any out-of-the ordinary behavior, causing potential trouble for the unsuspecting medical candidate. According to USMLE’s 2013 Bulletin of Information, “irregular behavior includes any action by applicants, examines, potential applicants, or others when solicited by an applicant and/or examinee that subverts or attempts to subvert the examination process.” As evidenced here, the average medical student is left in the dark as to what actions specifically can land them in hot water.

One such case involved a young candidate who graduated from an Ivy League medical school unknowingly acted in a way that USMLE took to be an attempt at subversion of its examination process. The student wrote the number of questions skipped, or failed to answer, on one of the two tissues provided at the beginning of the exam, in order to calculate her highest possible score after she had left the testing room. The medical student did not mean to disrupt, alter or delay the process of testing in any way, being fully aware that the entire exam was being videotaped, as well as to the presence of very vigilant proctors. Unfortunately, in a rather absent-minded state, a result of sitting for a ten-hour examination, the student stuffed the tissue into a jacket pocket; the action was seen by a proctor, who then asked the student to throw away the tissue before she left the building. Confident that she had made nothing more than a simple mistake, she threw the tissue in the trash and left promptly after signing out. Regrettably for the USMLE, the tissue was not preserved, but instead destroyed; this action was a violation of the spoliation law, which stipulates the accuser must present evidence that is being used against the defendant for review by their legal counsel in order to potentially contest its validity before a determining body.

Mr. Bob Bennett successfully handled this case, making this due process challenge, along with providing ample witness testimonies and convincing interpretations of the USMLE Bulletin of Information, much of which proved extremely detrimental to the standing of the Committee and ultimately resulted in a favorable ruling for the client, for which she was immensely grateful. After she was notified of her verdict, she remarked that “Mr. Bennett was one of those individuals who helped me and supported me during a difficult time. He is excellent advocate and is the correct person for USMLE cases and other medical profession cases. He works hard and will help and guide you. I strongly recommend him and suggest him to be your legal attorney.”  The short review can be read in its entirety at www.avvo.com.

NBME-bob-bennet-robert-houstonRather than making matters worse and attempting to handle a case of this nature (one that could have been committed in a moment of ignorance, but could end with a life-changing verdict), it is important to acknowledge when one is in need of help. Appearing before the Committee for Individual Review (CIR), located at the USMLE/NBME offices at 3750 Market Street, Philadelphia, Pennsylvania, is no easy task: the strenuous study of the USMLE guidelines, the gathering of witness testimony, the rigid organization and years of experience speaking before a board of professional medical authorities requires efficiency on a large scale. A matter of such high importance should not be done without the years of litigation experience that only an attorney can provide.

When the CIR receives a formal appeal or response to an accusation from a legal entity, they know they will now be dealing with a candidate who refuses to take a threat against their medical career lightly. Putting on a solid defense to the USMLE/NBME may be the only way to salvage a burgeoning medical career.

However, action must be taken as soon as you receive a letter detailing your actions. A response must be submitted to the Board, acknowledging your right to a fair hearing and due process. Failure to comply with these standards will result in permanent action that will affect a candidate’s ability to apply to residency programs, take any future step exams of the USMLE, the ability to obtain a license in another state, or to participate in countless other medical employment opportunities.

With the proper representation, on the day of the hearing, the candidate will be responsible for nothing except making sure he is bodily and mentally present before the Committee. Bob Bennett & Associates will make sure that everything is done so that the best possible outcome results from these proceedings.

 

Bennett and Katz – ADA Obligations to Deaf Patients

 By Sherri R. Katz and Robert S. Bennett 

Katz-bob-bennett-houston-attorneyWhat are the responsibilities of a health care provider regarding providing a sign language interpreter for a deaf patient, and can a doctor refuse to treat this deaf patient without being subjected to an allegation of discrimination?

The short answer is that health care providers should carefully consider an established and/or a new patient’s request for a sign language interpreter to ensure effective communication with the patient in compliance with the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

Hypothetical Facts

 ADA-bennett-houston-bobA doctor’s office is contacted by a new patient to schedule an appointment with the doctor.  Patient is deaf, and is in contact with a communication access group that supports the efforts of hearing impaired individuals.  Patient, via the access group representative, informs the doctor that he has an obligation to provide a sign language interpreter for patient.  This information is also provided in writing, with various documents attached, such as materials from the National Association of the Deaf.

These materials include a public two-page letter to U.S. Rep. Howard L. Berman dated 8/28/1992 from Acting Assistant Attorney General; a two-page public letter to a doctor dated 6/29/1992 from Deputy Director of the ADA Civil Rights Division; and a two page American Medical Association memo prepared by the AMA Office of the General Counsel.

The patient requests that the doctor provide a qualified interpreter to ensure effective communication, due to the possible complexity of the communication involved.

Discussion

Compliance with americans with disabilities act and the Rehabilitation act

 

Healthcare providers are prohibited from discriminating against deaf individuals by both the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973.  The Rehabilitation Act has long prohibited programs receiving federal funds from discriminating against individuals on the basis of disability.

Section 504 of the Rehabilitation Act guarantees that person with disabilities will receive “meaningful access” to programs and activities receiving federal financial assistance.  Several courts, including the 5th Circuit, have held that the receipt of Medicare and Medicaid funds constitutes “federal financial assistance” and thus subjects health care providers to the mandates of section 504.[1]

Title III of the Americans with Disabilities Act (ADA) followed the reasoning of the Rehabilitation Act and extends protection to disabled individuals in the private sector by prohibiting discrimination against individuals with disabilities by places of public accommodation.  Private health care providers are considered places of public accommodation.  Title III of the ADA applies to all private health care providers, regardless of the size of the office or the number of employees.  It applies to providers of both physical and mental health care, and includes offices of private physicians and dentists.

The protections of disabled persons under Title III of the ADA are not as broad as those provided by section 504, since section 504 encompasses any program or activity that receives federal funds.  However, the rights and responsibilities established by the ADA and the Rehabilitation Act are nearly identical and the two statutes are, for the most part, distinguished by the fact that section 504 applies only to entities receiving public funding.  A claim brought under the Rehabilitation Act is interpreted in the same manner as a claim brought under the ADA

Under Title III of the ADA, health care providers have a duty to provide effective communication, using auxiliary aids and services that ensure that communication with people who have a hearing loss is as effective as communication with others.  This duty is to ensure that that an individual with a disability, such as hearing loss, is not excluded, denied services, segregated, or otherwise treated differently than other individuals.  The duty to provide effective communication applies to customers, clients, and other individuals with hearing loss who are seeking or receiving services from the health care provider.

According to Title III, appropriate auxiliary aids and services can include equipment or services a person needs to understand aural communication.  This includes qualified interpreters, assistive listening devices, notetakers, written materials, television decoders and telecommunications devices for the deaf (sometimes called TTY’s or TTD’s).

However, Title III of the ADA does not require the use of any auxiliary aid or service that would result in an undue burden on the health care provider, or in a fundamental alteration in the nature of the goods or services provided by a health care provider.  However, the health care provider still has the duty to furnish an alternative auxiliary aid or service that would not result in a fundamental alteration or undue burden.

An individual doctor’s liability under both Title III of the ADA and section 504 of the Rehabilitation Act depends upon the degree of control he exercises over the practices and policies that led to the alleged discrimination of a disabled individual.  It is clear that doctors practicing in their own offices are subject to both Title III and section 504 because they exercise ownership and operation of their own offices’ policies and practices.[2]

There is, however, limited relief for patients claiming a denial of auxiliary aids under Title III of the ADA.  Because a private plaintiff suing under Title III can obtain only injunctive relief, and not compensatory relief, the plaintiff has to satisfy standing requirements, which has evolved into the theory used by a number of courts which have dismissed plaintiff’s claims on lack of standing because of inability to show that the injury complained of would likely occur again in the future.[3]

By contrast, a plaintiff suing under Section 504 of the Rehabilitation Act can recover compensatory damages.  But section 504 does not provide a federal medical malpractice tort remedy.[4]  And, there have evolved provisions whereby the auxiliary aids provisions of Title III of the ADA have proven particularly well suited to public enforcement actions brought by the Department of Justice or the United States Attorney’s Office for that particular jurisdiction.

 

Practical Considerations

 

Although “effective communication” is mandated by section 504 and Title III of the ADA, the term is not defined specifically by the regulations of either statute.  Likewise, case law has not provided a precise meaning of the term either.  By looking at general dictionary definitions, “effective communication” appears to encompass the idea that knowledge is shared in a manner that is capable of bringing about a desired result.  This would refer to the communication between the patient and the medical staff which successfully conveys knowledge, thoughts, and opinions successfully between doctor and patient.

Although healthcare providers have a duty to ensure effective communication with deaf patients, they do have some choice as to the aids and services they will provide. The auxiliary aid requirement is flexible, and the health care provider can choose among various alternatives as long as the result is effective communication for the deaf patient.  The effectiveness of an auxiliary aid or service is measured by a flexible standard that takes into account the nature of the communication and the length and complexity of the communication involved.

There is some argument that a health care provider, as a recipient of federal funding under section 504, is required to give primary consideration to a deaf patient’s request for an interpreter.  In a policy letter released by the Office of Civil Rights, which is still in effect today, it was stated that health care providers should give a level of deference to a patient’s choice of auxiliary aid or service because, in most circumstances, the deaf person is in the best position to judge which means of communication will give him or her equal opportunity in health service.  This deference means that the patient’s judgment in choosing effective communication must be considered of utmost importance.

In addition, the Department of Justice expects that the health care provider will consult with the deaf patient and “consider carefully” his or her self-assessed communication needs before acquiring a particular aid or service.[5]

Sometimes, a healthcare provider might be tempted to use family members or friends of the deaf patient to interpret, in an attempt to comply with the effective communication requirement.  If a health care provider is considering this alternative, they should proceed with caution.  The use of family members as interpreters has been recognized as failing to meet the proper standards for confidentiality and privacy for the deaf patient.  In addition, a family member or friend will likely lack specialized training in signing medical terminology.

Moreover, regulations to the ADA expressly recognize that family members and friends are generally not consider “qualified” interpreters, by stating that the family member or friend may not be qualified because of personal involvement, or considerations of confidentiality that may adversely affect the ability to interpret effectively, accurately, and impartially.[6]

Although it may be the situation that the cost of providing an auxiliary aid or service, such as a sign language interpreter, may exceed the charge to the patient for that very same service, it is widely believed that the health care provider is expected to treat the costs of providing the auxiliary aid as part of the annual overhead costs of operating a business.  It must also be remembered that the health care provider cannot charge a patient for the costs of providing auxiliary aids, either directly or through the patient’s insurance carrier.[7]

If the health care provider does provide a sign language interpreter or other auxiliary aid or service, the business may claim a tax credit of up to 50 percent of eligible access expenditures that are over $250 but less than $10,250.  Eligible access expenditures include the costs of interpreters or TTY’s, or providing other auxiliary aids and services.[8]

Conclusion

There is a need for accurate, immediate, and effective communication in medical settings.  By using a sign language interpreter, a health care provider would avoid any problems in the failure of a deaf patient (or family member) to communicate vital information to his health care staff, such as the patient’s health history and current symptoms.  Further, without the aid of a sign language interpreter, a health care provider might not be able to explain medical procedures and options, including obtaining informed consent from a deaf patient to perform an indicated and necessary medical procedure.

Any lack of effective communication between a deaf patient and a health care provider could possibly lead to misdiagnoses and/or problems in treatment.  This, in turn, could potentially lead to a standard malpractice claim against the health care provider, in addition to potential claims under Title III of the ADA or section 504 of the Rehabilitation Act.

It is usually the conclusion that the nature of the possible repercussions of failing to provide a sign language interpreter, measured against the relative expense of retaining such an auxiliary aid for the deaf patient might lean toward providing the sign language interpreter that the patient has requested.

Communication with the patient might result in an agreement to utilize a different auxiliary aid or service rather than a sign language interpreter to meet the ADA’s requirement of effective communication, but caution might suggest giving deference to a patient’s analysis of her situation and her request for a sign language interpreter.

The cost of this auxiliary aid must be absorbed as office overhead, and cannot be billed directly to the patient or her insurance carrier.  However, consultation with the health care provider’s tax advisor is recommended to discuss the options available to claim the cost of auxiliary aid or services as a tax credit.

Bennett and Katz practice in Houston, Texas.

 

 


[1] See Frazier v. Board of Trustees of NW Miss. Regional Med. Center, 765 F.2d 1278 (5th Cir. 1985).

[2] See Mayberry v. Von Valtier, 843 F. Supp 1160 (E.D. Mich. 1994)(court applied both Title III and section 504 to an individual doctor who allegedly failed to provide a sign language interpreter to a profoundly deaf patient during office visits).

[3] See Aikens v. St. Helena Hospital, 843 F. Supp. 1329 (N.D. Cal. 1994)(dismissing ADA claims for lack of standing).

[4] See Grazn v. Charter Hosp. of NW Indiana, 104 F.3d 116 (7th Cir. 1997).

[5] See 56 Fed. Reg. at 35566-67.

[6] 28 Code of Federal Regulation, section 36.104 app. B (1995).

[7] 28 Code of Federal Regulation, section 36.301 (c).

[8] You should consult your tax adviser for the most current federal tax regulations regarding claiming a tax credit for auxiliary aids and services.

bennett-houston-texas-medical-board

TMB – Physician Options for Early Termination of an Agreed Board Order

By Bob Bennett, Ashley Tse and Sherri R. Katz

bennett-houston-texas-medical-boardThe Bennett Law Firm tirelessly advocates on behalf of health care providers before the Texas Medical Board (TMB) as well as all other licensing boards for other health care providers. After representing numerous physicians, physician assistants, dentists, and nurses, the most frequent question is how to petition for termination of an Agreed Board Order. This article explains the steps needed to petition the TMB for an early termination and assesses the chances of success. While many doctors worry about walking the fine line between petitioning for an early termination and upsetting the TMB, this article encourages doctors to utilize the TMB’s own Board Rules and procedures in petitioning for early termination of an Agreed Board Order.

 

The Texas Medical Board is the state agency charged with keeping Texas patients safe through the licensure and regulation of Texas physicians. The TMB staff also serves as staff for the Texas State Board of Acupuncture Examiners and the Texas Physician Assistant Board.

This “Agency” section of the website is meant to help you find relevant information about the three boards the agency supports including board meeting dates and agendas, key legislation impacting the agency, mandated reporting to the legislature and governor, employment opportunities with the agency, contact information, and mandated state agency policies.

Agreed Board Orders are commonly entered after an Informal Settlement Conference before a panel of TMB members. (i) Recently, the TMB has been cracking down on physicians by imposing an increasing number of disciplinary decisions. In 2006, the TMB administered over three (3) times more disciplinary decisions than in 1999. (ii) Conversely, the number of granted terminations of Agreed Board Orders declined by roughly 30% from 1999-2006.(iii)

bennett-houston-bob-attorney-lawyer

(iv)

¹While not always exactly the same, petitions for termination of agreed orders from other healthcare licensing boards are typically analogous to the rules and procedures established by the TMB.

bennett-houston-bob-lawyer
(v)

Factual Background of Dr. Doc²: Sample Case     The representation of physician Dr. Doc, who unsuccessfully petitioned to the TMB for an early termination of an Agreed Board Order, serves as a good fact scenario for this article.  Dr. Doc is a 70 year old physician with over 36 years experience. He is licensed in two states and is Board Certified in Orthopedic Surgery. He has two bad knees and is physically unable to stand long enough to perform surgery. Dr. Doc has been subjected to two Agreed Board Orders in the past five years.

For six months, Dr. Doc treated his secretary’s sibling with pain killers to help reduce chronic pain due to an injury involving a hot welding iron. Dr. Doc examined this patient twice during the six month period, after which time Dr. Doc felt the patient was a borderline abuser of medication. Subsequently, the patient was referred to a different physician closer to the patient’s residence which was over 175 miles away from Dr. Doc’s office.

In 2002, Dr. Doc with counsel, entered into an Agreed Board Order for three years. The TMB enforced the Agreed Board Order for prescribing or administering a drug or treatment that is non therapeutic in nature or not therapeutic in the manner the drug or treatment is administered or prescribed. Dr. Doc was ordered to maintain a logbook of all prescriptions written for controlled substances or drugs with a potentially addictive potential. He was also ordered to obtain extra CME hours, have his practice monitored by another physician, and pay a fine. Dr. Doc complied with the Order and in three years, the order terminated.

Less than six months later, Dr. Doc entered into an indefinite Agreed Board Order where he would cease performing any procedures that require the use of implants without first obtaining permission from the board.  Dr. Doc voluntarily resigned all surgical privileges.

The second Agreed Board Order stemmed from the TMB deciding Dr. Doc failed to meet the standard of care in his performance of orthopedic surgery on two patients. With the first patient, a 60 year old male, the board held the standard of care was violated by the physician’s choice of an internal fixation device of a plain 14-hole plate placed on the anterior surface of the femur of a comminuted fracture that extended into the condylar area. Furthermore, when the repair failed, the Respondent did not immobilize the patient. The second patient, a 62 year old female, the board held the standard of care was violated when a component that did not match the bone preparation was used and cemented in place. The board found that the component does not easily fit on the bone and brute force would have been necessary to impact this component into a bone that had not been cut for it.

Dr. Doc resigned his hospital privileges and agreed not to perform surgery of any type.  He got a job with a non-profit organization and after a year of full compliance, Dr. Doc petitioned for early termination of the second Agreed Board Order. The TMB granted a hearing on the petition, which allowed Dr. Doc to argue his case for termination before a panel of only two board members. At the conclusion of the Informal Show Compliance hearing (ISC), the two-member TMB panel denied Dr. Doc’s petition for termination of the Agreed Board Order. No definitive reason was given by the TMB for denial of Dr. Doc’s petition.

In all fairness, one may ask, if Dr. Doc is physically unable to perform surgeries, why he desired to seek to terminate his Agreed Order early? Dr. Doc wishes to accept a position with an insurance company, which involves sitting behind a desk examining workers compensation claims. In order to perform this job, at a salary many physicians would never consider, the insurance company requires that Dr. Doc be in good standing with the American Board of Orthopedic Surgery. However, while under the current Board Order he may lose his certification.

Therefore, the Agreed Board Order restriction has created an insurmountable hurdle which prevents Dr. Doc from the surgical table and from seeking some employment. If the Agreed Board Order intends to protect the general public, why is the TMB wasting valuable time and resources to impose a Board Order that prevents him from performing a job other physicians would not consider? Only the members sitting on the TMB know for sure.

Suggestions for Seeking Termination of an Agreed Board Order

Step 1: Filing a petition:     Rule 187.43 of the TMB governs how a physician may petition for an early termination of any type of Board Order.(vi)  A physician seeking an early termination may only petition to do so once a year unless their Agreed Board Order states otherwise. Assuming that the Agreed Board Order does not contain a special provision on early termination and the physician is in full compliance, the first step is to write a petition to the TMB.

The petition should be similar to the formal response a physician or his attorney filed when the TMB initiated the evidentiary proceedings. A successfully argued petition grants the physician an ISC termination hearing before the Board. The standard to successfully petition for an ISC termination hearing is drastically lower than the standard used to actually have the Agreed Order terminated. Many times, the only thing required in order to be granted a hearing is proof that the physician was in full compliance with the Agreed Board Order.  In the Dr. Doc example, this firm successfully argued that he was in compliance with all conditions of an indefinite Agreed Board Order and the Hearing was set.

Step 2:  ISC hearing     The ISC termination hearing is similar to the Informal show compliance proceeding and settlement conference which typically results in the Agreed Board Order in the first place.  In an ISC termination hearing, usually a three-member board panel is present, along with the TMB staff attorney, the petitioning doctor, and the doctor’s counsel, if counsel has been retained. The procedure followed is for the TMB Staff Attorney to state if they are opposed to the termination. If no opposition, the physician presents evidence on why the termination should be granted. At the conclusion of the ISC termination hearing, the TMB panel elects to either grant the petitioning doctor’s request for termination of the Agreed order, makes some type of modification to the Agree Order, or decides to deny the petitioning doctor’s request for termination thereby making no change to the Agreed Board Order.(vii)

There is nothing informal about the ISC termination hearing, and an action by the TMB carries as much weight, if not more, than some criminal proceedings. When terminating an Agreed Board Order, the support of counsel is a key factor in obtaining the best result possible from an ISC termination hearing because it shows the TMB that as a physician you are serious about the situation at hand and allows the development of evidence and argument that require legal training.

In accordance with the APA §2001.081, “the determination of the disciplinary panel may be based not only on evidence admissible under the Texas Rules of Evidence, but may be based on information of a type on which a reasonably prudent person commonly relies in the conduct of the person’s affairs.”(viii) Furthermore, TMB Rule 187.43 (a) explains that “the decision to…terminate a board Order shall be a matter for the exercise of sound discretion by the board.”(ix) This establishes that the burden of proof is up to the TMB panel’s discretion. It also shows that counsel may be very creative in what evidence is presented. There is no objective burden of proof standard that the physician must show to successfully argue a termination.   TMB Rule 187.43 (a) creates difficulty in arguing for termination because what may have enabled one physician to successfully argue for termination of an Agreed Order might not work for another physician with a similar case.(x)

TMB Rule 187.43 (d) lists circumstances that weigh greatly in favor of the petitioning physician when the board considers whether or not to terminate an order.  These factors include:

  1. whether there has been a significant change in circumstances which indicates that it is in the best interest of the public and the licensee to modify or terminate the order;
  2. whether there has been an unanticipated, unique or undue hardship on the licensee as a result of the board Order which goes beyond the natural adverse ramifications of the disciplinary action (i.e. impossibility of requirement, geographical problems). Economic hardships such as the denial of insurance coverage or an adverse action taken by a medical specialty board are not considered unanticipated, unique or undue hardships;
  3. whether the licensee has engaged in special activities which are particularly commendable or so meritorious as to make modification or termination appropriate; and
  4. whether the licensee has fulfilled the requirements of the licensee’s Order in a timely manner and cooperated with the board and board staff during the period of probation or restriction.(xi)

In addition to the factors listed in TMB Rule 187. 43 (d), there are also supplemental arguments that are often presented to the board at the ISC hearing. Historically, the factors most often argued in a successful ISC termination hearing are:

  • It would save the TMB and the state of Texas a great deal of time and resources to terminate to Agreed Board Order early.(xii)
  • The petitioner has already served a majority of the Board Order while under full compliance.(xiii)
  • Petitioner went above-and-beyond by obtaining more CME hours than required by the Board Order.(xiv)
  • Petitioner shows appreciation and respect to the TMB for helping him/her become a better doctor.(xv)
  • Other physicians and health care providers support the termination of the Order.

At the ISC termination hearing for Dr. Doc, this firm presented evidence of the amount of time and resources that the TMB would save by releasing liability. Additionally, evidence was shown of Dr. Doc’s unique circumstances with the insurance company, his voluntary relinquishment of surgical hospital privileges, his disability which prevented him from even being able to perform surgeries, his full compliance the entire time while under the indefinite Agreed Board Order, and the appreciation of the TMB helping him become a better physician. The Board’s attorney presented no evidence.

Even with, the TMB’s Enforcement Director not opposing the termination of the Agreed Board Order for Dr. Doc, but the petition for termination of the Agreed Order was denied. Although no justification was given for the denial of Dr. Doc’s petition, research implies it may have been for two reasons:  First, Dr. Doc had only served one year of an indefinite order.(xvi)   Second, the two member TMB panel may have mistakenly concluded that Dr. Doc might return to surgery, even with his physical disabilities, thus posing a threat to the welfare of the public.  The history of Orders may have also been considered.

This decision is unfair since the TMB panel is not supposed to take past Agreed Board Orders into consideration.  According to TMB Rule 179.7, past complaints are only examined during a new investigation when there is a pattern of practice or behavior.(xvii) Though not the TMB panel’s fault, one could argue it is impossible for the human mind to not let a past Agreed Board Order have some bearing on the current issue set in front of them.

If experienced judges have problems with appearing completely unbiased in a trial, a TMB panel member with no legal training does not have the psyche to examine each physician from an unbiased standpoint. Rationality allows one to assume that past infractions with the TMB have a lingering effect.

If Termination of the Agreed Board Order Is denied     If termination is denied at the ISC termination hearing there are two paths a physician can take to reverse the decision. The first and most often traveled path is to comply with the stated terms of the Agreed Board Order and petition for another ISC termination hearing in another year. The second less traveled path is to file another petition under TMB Rule 187.43 (g), which establishes that a petition may filed more than once a year if the request is valid and meets the requirement of §187.43 (d) (2).(xviii)

A successful petition for termination under TMB Rule 187.43 (d) (2) is very rare. There are no set circumstances as to what qualifies as an “unanticipated, unique, or undue hardship on the licensee.”(xix) Most successful arguments used under this rule relate to inability to pay the Order’s fine in full or public ridicule by the media.(xx) Many times when petitioning for an ISC termination hearing, a modification of the Agreed Board Order is granted, but termination is denied.

In the case of Dr. Doc, this firm is considering to petition for a new ISC termination hearing pursuant to TMB Rule 187.43 (g) by arguing the application of the Americans with Disabilities Act, presenting evidence and argument that Dr. Doc’s physical inability to perform surgeries qualifies as an unanticipated and unique hardship. Additionally, the Agreed Board Order creates an undue hardship on Dr. Doc.

Is the TMBSE being unfair?     As of 2006, research shows that there are 619 physicians under board Order compared to 231 physicians only eight years ago.(xxi) In 2006, one physician’s case out of thirty-five (35) complaints filed resulted in an Agreed Board Order.  This is contrasted to 1999 when only one physician’s case out of 173 complaints filed resulted in an Agreed Board Order.(xxii) Surely the upsurge in disciplinary actions has nothing to do with the number of total complaints which have diminished 30.7% since 1999.

With the board cycling different members every few years, there is no consistent adjudication of physicians. Section 151.003 of the Medical Practice Act states that “the practice of medicine is a privilege and not a natural right of individuals, and as a matter of public policy it is necessary to protect the public interest through enactment of the Medical Practice Act to regulate the granting of that privilege and its subsequent use and control.  The TMB should remain the primary means of licensing, regulating, and disciplining physicians.”  The role of the TMB is to regulate the licensing of doctors as well as discipline of doctors for the protection of the public.

According to §152.002 of the Medical Practice Act, the TMB consists of nineteen (19) members appointed by the governor with the advice and consent of the Senate.  Twelve (12) members must be physicians, and the remaining seven (7) members represent the public.  Appointments to the TMB shall be made without regard to race, color, disability, sex, religion, age of national origin. Is it really protecting the public if physicians who are no longer practicing surgery try to keep their certification to work in a job no one else wants?(xxiii)

Chart_1_2

xxiv

 

Chart_3

xxv

A dilemma arises with the TMB panel having sole discretion in executing an Agreed Board Order, as well as sole discretion in grant or denial of a petition for termination. Though not completely arbitrary and capricious with their decisions, there is no definitive pattern of when and how a petitioner may be granted termination by a TMB panel.(xvi)

In criminal proceedings the burden of proof is on the prosecutors to show beyond a reasonable doubt that the defendant committed the crime. In an informal ISC hearing, the burden of proof is on the petitioning doctor to show beyond what the TMB panel feels is enough substantial evidence. This creates uncertainty in the evidentiary process of petitioning for termination of an Agreed Board Order. A physician can never be fully prepared when going against the TMB.

Conclusion     Successfully arguing for termination of an Agreed Board Order is never a sure bet. The quantity of factual evidence that must be asserted to terminate an Agreed Board Order fluctuates with each individual case before the TMB panel. Therefore, a physician who desires to successfully petition and receive termination of an Agreed Order must be totally and fully prepared with competent and persuasive arguments and evidence to present to the TMB panel. Though not impossible, the TMB’s history shows that the more prepared, humble and persuasive a physician appears, the more likely he will achieve the desired result:  successful termination of the Agreed Order.

Robert Bennett offices in Houston, Texas

(i)22 Tex. Admin. Code §187.16 (2006)
(ii)See Texas State Board of Medical Examiners, Compliance Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/comp.php) (335/99= 3.38)
(iii) See Texas State Board of Medical Examiners, Compliance Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/comp.php) (1-31/44= 29.55%)
(iv)Texas State Board of Medical Examiners, Compliance Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/comp.php)
(v)Texas State Board of Medical Examiners, Medical Board Decisions, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/mbd.php)
(vi)22 Tex. Admin. Code §187.43 (2006)
(vii) Id.
(viii)22 Tex. Admin Code §187.59 (2004)
(ix)22 Tex. Admin. Code §187.43 (a) (2006)
(x)Id.
(xi)22 Tex. Admin. Code §187.43 (d) (2006)
(xii)See physician histories for Williams B. Burrows, D.O. (terminating the Order because it would save the state of Texas money and resources);  Erik T. Shaw, D.O. (terminating the Order because it would save the state of Texas time and resources); William A. Bilsing, M.D. (terminating the Order because it would save the state of Texas time and resources); Luis E. Zepeda, M.D. (terminating the Order because it would save the state of Texas time and resources)
(xiii)See physician histories for Dong S. Kim, M.D. (terminating the Order because physician has served 14 months of the three-year Order); Leo L. Altenberg, M.D. (terminating the Order because physician has served two years and one month of Agreed Order); Randal L. Fielder, M.D. (terminating the Order because physician has served one year and three months of his two-year probation); Stephen Edward Guilliams, M.D. (terminating the Order because physician has served three years and eight months of his five-year probation); Maurice J. Ende, M.D. (terminating the Order because physician has served two years and four months of his three-year probation); William H. McCrae, M.D. (terminating the Order because physician has served 18 months under the order); William C. Brown, M.D. (terminating the Order because physician has served two years and seven months of his ten-year probation.); Erik W. Felton, M.D. (terminating the Order because physician has served over three years of his five-year probation); William J. Dickey, M.D. (terminating the Order because physician has severed in excess of 21 months of his two-year probation); Julio Arauz, M.D. (terminating the Order because physician has served nearly 20 months of the three-year Order); Salvador Baylan, M.D. (terminating the Order because physician  has served four years and four months of five-year Order); Castilla A. Darby, Jr., M.D. (terminating the Order because physician has served seven years under the ten year order).; Jacques A. Roy, M.D. (terminating the Order because physician has served four years and three months of the five-year Order); Stewart R. Keller, D.O. (terminating the Order because physician has served four years of his five-year probation)
(xiv)See physician histories for Tommy E. Swate, M.D. (terminating the Order because physician has routinely exceeded the amount of Continuing Medical Education (CME) required by the Order and has completed numerous overseas mission trips during which time he has functioned in a medical role); Jack M. Thomas, Jr., M.D. (terminating the Order because physician has completed in excess of 150 CME hours);
(xv)See physician histories for Richard G. Buch, M.D. (thanking the Board for allowing him to practice medicine while under the Order); Nandlal Patel, M.D. (providing he is grateful to have received guidance from the Board and the, chart monitor)
(xvi)See physician histories for Francisco I. Pena, M.D. (denied because he was only 2 years into an 8 year Order); Williams B. Burrows, D.O (denied because it was too soon to let his license free and clear); James M. Stanton, M.D. ( denied because too soon to let his license be free and clear); George R. Smith, Jr., M.D. (denied because he was only 3 years into a 5 year order); Randy Ramahi, D.O. (indefinite agreed Order date, one year too soon); Contra physician history for Jairo Rafael Olivares M.D. (finding the Order does not have a termination date. A fair reading of the Order suggests that the Order was to terminate after one year)
(xvii)22 Tex. Admin. Code §179.7 (2003)
(xviii)Id.
(xix)d.
(xx)See physician histories for Nat B. Baumer, M.D. (finding he successfully argued the exception rule because of constant and public ridicule by the media)
(xxi)See Texas State Board of Medical Examiners, Investigation Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/inv.php) (showing there were approximately 17,130 complaints resulting in 99 disciplinary decisions. Contrasted to 2006, there were approximately 11,860 complaints resulting in 335 disciplinary decisions)
(xxii)Id.
(xxiii)See Texas State Board of Medical Examiners, Texas Medical Board Biographies, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/boards/mbbios.php) (showing that the “public” members of the medical board do not necessarily have any medical or legal training)
(xxiv)Texas State Board of Medical Examiners, Compliance Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/comp.php)
(xxv)Texas State Board of Medical Examiners, Investigation Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/inv.php)
(xxvi)See 22 Tex. Admin Code §187.59 (2004)

bennett-bob-houston-schip

The S-Chip Debate & why Doctors Should Support Senator Kay Bailey Hutchinson

The S-Chip Debate & Why Doctors Should Support Senator Kay Bailey Hutchinson

 By Sherri R. Katz and Robert S. Bennett

bennett-bob-houston-schipThe S-CHIP (State Children’s Health Insurance Program) has been on the front burner in the news for months, and now has suffered a presidential veto. Initially, S-CHIP was created in 1997 as a bipartisan effort to provide insurance coverage for children living in families with too much income to qualify for Medicaid by not enough to afford private insurance. An estimated 91% of children who are insured by S-CHIP come from families with incomes below 200% of the federal poverty level, or $41,300 for a family of four in 2007(1). Before the enactment of S-CHIP, only eleven states covered children in families of 185% of the poverty level or higher. By 2006, forty-two (42) states covered children with family incomes of 200% of the poverty level, including seven states in which the cost of living is particularly high, which set income thresholds for S-CHIP eligibility at 300%.(2)

The original bill’s legal mandate expired September 30, 2007. Reauthorization of S-CHIP was attempted, although the most recent bill was vetoed by President Bush on October 3, 2007. That bill was a product of bipartisan negotiations, which included Charles Grassley, R-Iowa and Sen. Orrin Hatch, R-Utah. The original S-CHIP program covered approximately 6.6 million children nationwide.

kay-bob-bennett-houstonIn the most recent bill, strongly supported by our very own Senator Kay Bailey Hutchinson, R-Texas, Congress voted to appropriate $60 billion for S-CHIP over the next five years, which would allow the current regulations to stay in place and permit an additional four (4) million children nationwide to enroll. The appropriation would be funded by higher taxes on tobacco products by increasing the federal excise tax on cigarettes to $1.00 per pact, from the current $0.39 per pack.

Opposing the bill is U.S. Senator John Cornyn, R-Texas. He supports President Bush’s veto of the bill. Senator Charles E. Grassley, R-Iowa, helped write the bill, and has been quoted as saying “This bill is not socialized medicine.”

After vetoing the S-CHIP reauthorization, President Bush released a letter to Congress through the Office of the Press Secretary. In that letter, President Bush states that he is vetoing the bill “because this legislation would move health care in this country in the wrong direction.” President Bush ends his letter by stating “our goal should be to move children who have no health insurance to private coverage, not to move children who already have private health insurance to government coverage(3).”

President Bush and his allies have declined to support the measure, asserting that the reauthorization of S-CHIP at a substantially higher level of spending would “crowd out” private insurance in favor of public coverage and lead down a path to socialized medicine. However, according to America’s Health Insurance Plans, as reported in the New England Journal of Medicine, more than 70% of children whose coverage is through S-CHIP are part of private plans. President Bush’s 2008 budget proposed the addition of only $4.8 billion over the next five years, an amount that would fall well short of the monies needed to maintain the existing S-CHIP caseloads(4).

Given all the media attention on S-CHIP and children’s healthcare, from a health care provider’s perspective, it appears that the overriding question we should be asking is “how bad is children’s healthcare in the United States?”

A recent New England Journal of Medicine article published October 11, 2007(5), says that the state of children’s healthcare in this country is “far from optimal.” This comment comes as a result of conducting a study of medical records from 1,536 children who were randomly selected from twelve (12) metropolitan areas(6). On average, according to the data in the medical records, children in the study received 46.5% of the indicated care(7).

Because the health care of this country’s children is paramount, and amidst the political battles over ideologies and the S-CHIP program, several groups have come out in support of the bill. In addition, because the House democrats approved a more expansive version of the Senate bill by repealing an impending reduction in Medicare payments to physicians, the American Medical Association (AMA) and the AARP have come out in support of the bill. Other organizations that support the bipartisan S-CHIP expansion include Americans United for Change (AUC), MoveOn.org, Service Employees International Union (which claims over one million hospital workers as members), and the American Cancer Society’s Cancer Action Network. Most doctors would like to see that their patients had the insurance to pay for medical services.

 President Bush vetoed the bipartisan S-CHIP bill on October 3, 2007. Deputy Press secretary Tony Fratto quoted President Bush as saying he is “willing to work with members of both parties from both houses” on the issue. However, it appears that the GOP will have enough votes to sustain the veto of the program on the scheduled Thursday, October 18, 2007 vote. The bill was originally passed 265 to 159 in the House. Supporters of the bill need 290 yes votes to enact the bill over President Bush’s veto, if all 435 House members vote on Thursday.

Democrats and Republican supporters of the bill, including Senator Kay Bailey Hutchison hope to gather enough support to override that presidential veto. House Speaker Nancy Pelosi, D-Calif., has said about the vote to override the veto: “We’ll try very hard to override it. But one thing’s for sure: We won’t rest until those 10 million children have health care.”

Senator Hutchison has said she “of course” will vote to override President Bush’s veto of the children’s insurance program expansion that she has supported. Senator Hutchison was quoted in the Houston Chronicle as saying “I will, of course, vote to override, because I think that from my standpoint, I did the right thing”, adding that the S-CHIP reauthorization included proper limits, protection for Texas’ funding, and a way to reach children who still don’t have healthcare.

Ernest Istook, a former U.S. Congressman from Oklahoma, now a distinguished fellow at the Heritage Foundation, hails President Bush and his allies as heroes, not villains, in the ongoing S-CHIP saga. “They know that bigger SCHIP, like all bigger government, means the next generation will inherit the debt to pay for it.”(8)

But U.S. Senator Edward M. Kennedy, D-Mass., has an entirely different perspective. “This is all a matter of priorities: the cost of Iraq, $333 million a day; the cost of SCHIP, $19 million a day.”

In Texas, even if Congress cannot reach a compromise or if the presidential veto is not overridden, state officials have said that the state is unlikely to face cutbacks in its S-CHIP program. According to a spokeswoman for Texas Health and Human Services Commission, the state has sufficient funding from existing federal grants to continue the program for at least a year.

The struggle over the reauthorization of S-CHIP reflects the recurring national debate of the role that government should play in providing health coverage to all Americans, not just children. According to the New England Journal of Medicine(9), the growth of public healthcare has far outstripped private spending since 1965, because, in the absence of affordable private insurance, the federal government has expanded coverage of populations considered appropriate recipients of public support. This trend will only accelerate with the coming retirement of baby boomers.

But the question still remains: How bad IS children’s healthcare in the United States and what are we going to do about it? Senator Kay Bailey Hutchison and The American Medical Association appear to believe that supporting the reauthorization of S-CHIP is a good place to start. If, as a physician, you support Senator Hutchison’s position for children’s healthcare, please contact Senator John Cornyn at: www.cornyn.senate.gov or 517 Hart Senate Office Building, Washington D.C., 20510; 202-224-2934 and request he support overriding the S-CHIP presidential veto. For additional information about matters of interest to physicians go to www.bennettlawfirm.typepad.com or www.bennettlawfirmmed.com.

 

End Notes

 

1. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

2. Id.

3.President Bush’s Letter to Congress, from The White House, Office of the Press Secretary, for Immediate Release October 3, 2007.

4. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

5. The Quality of Ambulatory Care Delivered to Children in the United States by Rita Mangione-Smith, M.D., M.P.H,; Alison H. DeCristofaro, M.P.H.; Claude M. Setodji, Ph.D.; Joan Keesey, B.A.; David J. Klein, M.S.; John L. Adams, Ph.D.; Mark A. Schuster, M.D., Ph.D.; and Elizabeth A. McGlynn; Volume 357:1515-1523, October 11, 2007.

6. The NEJM study covered all children, even those covered by health insurance and those not eligible for SCHIP.

7. This average is from data indicating children received 67.6% of the indicated care for acute medical problems; data indicating children received 53.4% of the indicated care for chronic medical conditions; and from data indicating children received 40.7% for indicated preventive care.

8. “Left Loves S-CHIP”, by Ernest Istook, Nation Review Online (NRO), October 15, 2007.

9. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

The Poliner Case & Medical Peer Review

The Poliner Case & Medical Peer Review

By Sherri R. Katz & Robert S. Bennett

   Recently, there has been much discussion in the medical community, as well as many articles written in medical newsletters and publications about the Poliner case and medical peer review. This article will attempt to address what the Poliner decision means to a practicing physician in Texas concerning medical peer review.

Background on Poliner case

     In Poliner v. Texas Health Systems, No. 06-11235, 2008 WL 2815533 (5th Cir. July 23, 2008), the Fifth Circuit held that the Presbyterian Hospital of Dallas and three individual physicians for basically immune from money damages based on application of the federal Health Care Quality Improvement Act (HCQIA) immunity.  The Fifth Circuit reversed the $33.5 million damage award to Dr. Poliner, a physician who sued after his privileges were terminated.  The jury had originally awarded $360 million in damages, but this amount was later reduced by the trial court to $33.5 million.

     Dr. Poliner was an interventional cardiologist with a solo practice at the Presbyterian Hospital of Dallas.  While working in Presbyterian’s cardiac catherization lab, Dr. Polilner made a diagnostic error, missing the fact that a patient’s left anterior descending artery (“LAD”) was completely blocked.  The fact that the blocked LAD was apparent on films and should have been caught by Dr. Poliner called his abilities into question, and thus began the peer review process of Dr. Poliner at Presbyterian Hospital of Dallas.  In sum, the Chairman of the Internal Medicine Department asked Dr. Poliner to agree to a temporary restriction (abeyance) of his cath lab privileges pending investigation of the case, and explained that if Dr. Poliner did not assent, all of Dr. Poliner’s privileges would be summarily suspended.  Dr. Poliner accepted the abeyance, which imposed a temporary restriction of his privileges in the cath lab for 14 days.  Dr. Poliner, however, later contended in trial that this agreement was involuntary and amounted to a summary suspension for which he did not receive procedural rights.

      In the abeyance letter restricting his privileges, Dr. Poliner was advised of the patients of concern and he was told that an ad hoc committee of cardiologists were going to be appointed to conduct a review and that he would have an opportunity to respond to any concerns raised.  The ad hoc committee reviewed 44 of Dr. Poliner’s cases and concluded that he gave substandard care in more than half.  On the 13th day of the 14 day restriction, based on the review of the 44 cases, the Internal Medicine Advisory Committee recommended additional reviews and an extension of the restrictions on Dr. Poliner’s privileges.  Altogether, the restrictions on Dr. Poliner’s cath lab privileges were in place for approximately 29 days.

   On the 29th day, the Advisory Committee met and recommended a suspension of Dr. Poliner’s cath lab and echocardiogram privileges.  Dr. Poliner received a hearing concerning the suspension of his privileges five months later.  Several years later, Dr. Poliner sued the chairman of the Internal Medicine Department, Presbyterian Hospital of Dallas, and other doctors who had been involved in the peer review process.  Dr. Poliner claimed damages from the limited restrictions on his privileges, the extension of those restrictions, and the suspension of privileges.

     The case proceeded to jury trial on the alleged damages incurred from the 29 days of limited restrictions on Dr. Poliner’s privileges.  The jury found the hospital and the three defendant physicians were not entitled to immunity under HCQIA and Texas law, and the jury ultimately awarded Dr. Poliner $366 million in damages for defamation, mental anguish and punitive damages, which the trial court reduced to $33.5 million.  On appeal, the Fifth Circuit reversed the district court, holding that the defendants were immune under HCQIA.

HCQIA At-a-glance

     The Health Care Quality Improvement Act sets forth four requirements to obtain immunity for physicians and institutions participating in a peer review activity, which is called a “professional review action” in the HCQIA.  The HCQIA provides immunity from money damages to participants in the peer review process.  However, for the HCQIA immunity to apply, the peer review action must be taken:

1.  in the reasonable belief that the action is in the furtherance of quality health care;
2.  after a reasonable effort to obtain the facts of the matter;
3.  after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures are enacted as are fair to the physician under the circumstances; and
4.  in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3) above.

HCQIA applied to Dr. Poliner’s Case

     In the Poliner case, the Fifth Circuit made an analysis of each aspect of the Poliner peer review under the four prongs of the HCQIA.  The court did not seem to be persuaded by Dr. Poliner’s arguments that immunity was not warranted because he was not afforded full procedural rights and that the actions were taken because of anti-competitive reasons, not in furtherance of quality of care.

     The Fifth Circuit court ultimately found that the actions by the defendants were taken “in the reasonable belief the action was warranted by the facts known after such reasonable effort to obtain facts.”  The court joined other federal circuit courts in holding that the HCQIA reasonableness requirements are judged by an objective, rather than subjective standard.

Sham Peer Review

     In the opinion of many physicians, the Poliner case is one of the most egregious cases of sham peer review in recent history.   Many doctors hold the opinion that the original peer review process of Dr. Poliner involved the unwarranted summary abeyance  of Dr. Poliner’s privileges, and that Dr. Poliner claimed in his lawsuit that the defendants “improperly and maliciously used the peer review process to summarily suspend his privileges, thereby causing damage to his interventional cardiology practice.”

     Many believe that even though the Fifth Circuit ultimately overturned the jury verdict by granting immunity under the HCQIA, the jury verdict in the Poliner trial exposed and discredited a number of common sham peer review tactics in the trial itself.

Practical Considerations

The Fifth Circuit held that Dr. Poliner failed to rebut the presumption that the peer review action at Presbyterian Hospital complied with the HCQIA, and further held that the evidence “independently established” the actions complied with the statute.  However, the practicing physician in Texas subjected to any type of peer review actions should be educated with the lessons from the Poliner case.  Poliner reaffirms that in conducting what will be reviewed objectively for reasonable peer actions, participants, including the hospital, will continue to be immune from damage awards if sued by a responding physician.  However, HCQIA immunity is not automatic, and requires strict adherence with the terms of the Act.  Any physician facing hospital peer review should be mindful of the position of the courts regarding peer review and immunity, and remember that the HCQIA creates a rebuttable presumption that a peer review action is done for quality of care concerns, in favor of the hospital.

See Editorial:  Sham Peer Review: the Poliner Verdict, by Lawrence R. Huntoon, M.D., Ph.D., Journal of American Physicians and Surgeons, Volume II, Number 2, Summer 2006.

Robert Bennett and Sherri Katz practice law in Houston, Texas

A Friendly Warning to Doctors about the Dangers of Federal Regulation

A Friendly Warning to Doctors about the Dangers of Federal Regulation

Article by Joseph Colvin & Robert Bennett

colvin-bennett-houston-attorney

Joe Colvin

Attorney Robert S. Bennett

Robert “Bob” Bennett

Mixing business and medicine in a world of regulation can be dangerous both to your pocketbook and to your person.  The unique position of medical doctors in today’s society has prompted the federal government to lay down significant and often times confusing laws and regulations. These restrictions on the way medical doctors may practice medicine are often and sometimes exclusively prompted by concerns for Medicare and Medicaid and the possibility of abuse.  In many of these statutes, Congress moved to restrict benign business transactions between doctors for fear that they would veil backroom dealings and under the table kickbacks. Unfortunately, this means that doctors must tread carefully when they decide to enter into any number of mundane business transactions with other doctors and healthcare facilities.

     As an example, imagine a lease agreement between Dr. X who owns a small healthcare facility, and Dr. Y who is looking for office space from which to practice. Dr. X and Dr. Y have known each other for many years and have great mutual respect. They do not practice in the same field of medicine and often refer patients to each other. Dr. Y leaves his medical group and decides to open his own office; because his friend Dr. X owns space suited for a doctor’s office he calls his old friend. Since they know each other they come to a gentleman’s agreement and do not memorialize their agreement in writing. Business goes on as normal and they occasionally refer each other patients.

     Dr. X and Dr. Y have just violated federal law, quite innocently and unknowingly, but a violation nonetheless. They will both be subjected to civil penalties under sections of the Social Security Act (commonly known as the Stark laws) and will be investigated for violations of the Anti-Kickback Statutes if any of their patients have coverage under Medicare or Medicaid.

     How could this be a violation? Well, the Stark laws generally prohibit business transactions between doctors and health providers who also refer patients to one another. These Stark laws have a general rule and a few limited exceptions. This is only the civil side of the law. There is another criminal statute specifically aimed at these transactions as well. While at the end of the day neither Dr. X nor Dr. Y should be criminally liable under the statute, do either of them really want to have to defend this kind of a case? Now, of course, the idea behind these laws was to stop healthcare providers who may be gaming the federal welfare system and disguising their “illegal remunerations,” in the language of the statute, as legitimate business transactions. The trouble being that often the innocent and well meaning doctor can find themselves in an unpleasant position.

     How then can a doctor protect themselves? Well the statute also provides for specific allowed exceptions to the general rule. In our example of a lease for office space, the doctors could have fallen into an exception if they had reduced their agreement to writing, signed it, specified the area to be let, that the lease agreement was for at least a one year period, and if the rent was set in a commercially reasonable manner which did not depend on the volume or value of any referrals. But that is only how Dr. X would protect himself in his particular situation. There is something else Dr. X could have done when Dr. Y approached him about the office space that would have protected him as well. That is, consult with an attorney.

     Before a doctor contemplates any business transaction they should consult with an attorney even if just briefly. First, if there are any potential legal issues they will be able to identify them for you. Second, they will be able to structure your transaction so that, unlike Dr. X, you will not be violating Federal law. Finally, time and money spent with a lawyer before a transaction will translate into time and money saved if you have to deal with this situation after the fact. Speaking with an attorney before hand is like preventative medicine, it may be a bit unpleasant now but it will save you a lot of pain in the future.

Top 10 Worst Prosecutors in the United States — 2008

Top 10 Worst prosecutors in the United States — 2008

 

     The ten worst prosecuting attorneys in the United States for the year 2008 are finally here! After several nominations and recommendations from interested readers around the country, combined with ample amounts of time used to examine each prosecutor, the list has finally been narrowed down to the ten most deserving nominees. This year’s list includes several new nominees along with a few old ones. Added to this list are two prosecutors not quite worthy of the top ten but will be receiving honorable mention.

     Unfortunately, over the past year not much has changed in the Department of Justice. Even with Alberto Gonzales no longer in the picture as the United States Attorney General, his effect is still there to be seen and felt. It seems as though the worst of his political manipulations and illegal activities are just beginning to unravel. Even after cleaning house in the Justice Department by bringing in new leadership that has expressed their commitment to heal the wounds left behind by some, little has been done to make sure that the Department will get headed in the right direction.

     Prosecutors from around the country with extreme political affiliations connected to their communities, the Justice Department, and perhaps all the way to the White House have damaged the image of justice in America. The dedication of conservative power houses such as George W. Bush, Karl Rove, Monica Goodling, and Alberto Gonzales asserting their will and influence upon the judicial system has become extremely disturbing when taken into consideration the ways in which those tasks have been implemented with the undoing of the Constitution. It is the hope of this firm that justice is done for all Americans who have become victims of the acts committed by these troublesome prosecutors. It is further hoped that President-elect Obama and his new nominated U.S. Attorney General, Eric Holder, will set a new tone at the Department of Justice. So without further adieu, the Ten Worst Prosecutors of 2008 are:

Alberto Gonzales/ Former U.S. Attorney General

     The former Attorney General now refers to himself as a “Disillusioned Republican” because of his testy relationship with George W. Bush, which he would like to distance himself from as much as possible. At the time of our second year, Alberto Gonzales has failed to interest any law firms in hiring him anywhere in the United States. Gonzales has had no full time job since his resignation. This is very abnormal as ex-U.S. Attorney Generals are typically highly sought after. He claims that his current “occupation” is an advisor to homeland security and border issues for a global consulting firm. Speaking engagements at major organizations and Universities is what he currently involves himself in the most. He is receiving as much money doing public speaking as he did when he was Attorney General of the U.S., which totaled around $191,000. He averages $30,000 per visit at Universities when asked to speak on campus, but he certainly earns that with the hecklers and protestors that show up.

     Michael Mukasey, Gonzales’ replacement, is allegedly dedicated to keeping politics out of the Justice Department which is something Gonzales obviously was never able to do. Mukasey has also gone out of his way to help specific departments such as the Civil Rights Department. But Mukasey still lands on the back end of much negative criticism that has carried over from the Gonzales era. We hope that no more damage will be done in the next month.

     Former Justice Department officials working under Alberto Gonzales have been accused of breaking the law by letting the Bush Administration’s politics dictate the hiring of prosecutors, immigration judges, and other career government lawyers. The official in charge of the interviews for hires was Monica Goodling who was Gonzales’ Chief Counselor and White House Liaison. Goodling would question applicants on views about abortion, gay marriage, and convict sentencing. Goodling made habits of avoiding any hire that seemed to lean to the liberal left of the Democratic Party. One man in particular was noted for attending a very Republican school but scored badly on God, gays, guns, and convicts. Screening such as this created massive backlog for immigration courts since so many judgeships were empty from the delayed interview process. One man was even disqualified because of his wife’s politics. None of the accused participants who worked under Gonzales currently work for the Justice Department anymore; therefore they avoid any departmental penalties. Senior Republicans have stated that there is no offense in this case that would warrant criminal charges. There is even some disagreement amongst Democrats as to whether or not a perjury charge would be warranted, though there is a large outcry for those charges coming from progressives. This type of interview screening is banned under the Civil Service Law and the Justice Department’s internal policies. Also, sworn testimonies of the accused have extremely contradicted one another. New Attorney General Michael Mukasey’s response was disgracefully lukewarm to this problem within the Department of Justice. Legislation is currently in the works to make sure that politicizing of the hiring of government officials does not happen again in the future thanks to several Democratic Congressmen. In summary, still bad news for Gonzales and the specter of a Texas Disbarment proceeding is also a possibility. Congratulations to the former A.G. for being a repeat nominee.

Charles Sebesta/ Former Burleson County, Texas DA

     Charles Sebesta stands accused of orchestrating transcript changes during the trial of Thomas Torlincasi whose company donated the logs for the Aggie Bonfire that collapsed in 1998. Apparently, he would sit down with the court reporter after the trials, which happened to be a woman he knew personally, and re-wrote what they thought was relevant from the trial hearings. He also used ample amounts of evidence in the Bonfire case that was never submitted as evidence before trial. However, all of this evidence happened to have tagged and labeled as being submitted into evidence which proves that Sebesta was forging documents for his arguments. Sebesta became known for “doing business” with witnesses and victims that provided testimony in the Bonfire case that gave evidence in favor of Sebesta’s arguments.

     Law enforcement officer testimonies in the case did not match. These officers all personally knew Charles Sebesta. The initial trial was declared a mistrial since certain jurors didn’t show up for court. Sebesta had two particular jurors not show up by having them pretend to be sick.

     Sebesta charged Thomas Torlincasi with criminal negligence even though Torlincasi never committed an act worthy of a charge. Torlincasi had already spent time in jail before Sebesta decided to go after him in the first place. Sebesta allegedly blackmailed Ben Flencher who was testifying in favor of Torlincasi. Sebesta allegedly found out Flencher was having an affair and threatened his reputation and said he would give him up to his wife if he testified against his case. He first made the top ten with his role in the Anthony Graves Case and it now seems he has a track record going.

Charles C. Foti Jr./ Former Attorney General of Louisiana

     Charles Foti finished last in Louisiana’s three-way primary in October 2007 and was replaced by James “Buddy” Caldwell Jr. in Louisiana. Foti now works at the law firm Kahn Gauthier Swick, LLC. He handles KGS’s securities and consumer fraud practice.

     Foti is still the target of much criticism for his part in the prosecutions pursued surrounding Hurricane Katrina. Many families are taking advantage of Foti’s blunders by filing frivolous civil lawsuits against the doctors that Foti had accused during Hurricane Katrina and the doctors are still preparing for all of those civil cases; most of them are costing the doctors ample amounts of money.

     The State of Louisiana has passed two bills in the senate to protect people from lawyers with habits similar to Foti’s which provide immunity from civil liability for in-state doctors and volunteers from out of state practicing in disaster zones. Protection from criminal liability is currently under House debate in Louisiana.

Alice Martin/ U.S. Attorney, Northern District of Alabama

     If former Alabama Governor Don Siegelman had found a way to get out of the grasp of U.S. Attorney Leura Canary, he still didn’t have much of a chance to get away from the other mass of Republicans foaming at the mouth for the opportunity to take over the Alabama State Legislature. Alice Martin, an Alabama prosecutor who has been serving since September 2001, was another conspirator and attacker that aided in the successful attempt to takedown the Governor. Make no mistake; Alice Martin is involved in several scams besides the Siegelman trial as a prosecutor out of Birmingham, Alabama. Two of the most prominent cases involve Alex Latifi, a firm supporter of the ex-governor and active liberal Democrat, and Martin’s despicable prosecution directed at the Axion Corporation.

     Martin’s destruction of Alex Latifi came out of political tensions considering Latifi is an adamant liberal Democrat. Latifi was known for making donations and contributions to the Democratic Party in the state of Alabama which helped keep many of their politicians afloat in a dominant Republican State. In order to take him down, Martin hired a team of political “hack” assistants. The Latifi case was also a prosecution created out of extreme racial tension directed at Latifi since he happened to be an Iranian-American.

     This Alabama prosecutor’s heavy involvement in the Siegelman trial was one to raise eyebrows. Martin was the first person to prosecute Siegelman, which was strategically timed around an election in order to affect politics in Alabama. The first trial judge, without second thoughts or signs of hesitation, threw the case out because of the lack of evidence and the obvious motivation behind the timing of the prosecution.

     Alice Martin’s history with the law is dotted with numerous accounts of misconduct and political manipulation. Martin once denied being involved in the prosecution of Dickie Scruggs, who was the former Senate GOP leader Trent Lott’s brother-in-law. She has made a habit of coordinating closely with senior GOP figures that are close to current Alabama Republican Governor, Bob Riley, which explains her agenda of prosecuting those of liberal ideologies. Interestingly enough, Martin was appointed by current President George W. Bush and craves an appointment as a Federal Judge in Alabama and is willing do anything to receive that appointment, even if achieving that goal means misusing the law for her own benefit.

     She is also guilty of making false and inflammatory secret submissions to judges throughout the State. An example of disgraceful tactics outside of the courtroom is her waiting to serve subpoenas on law makers on the floor of the legislature that would be carefully timed to make the news. Martin is apparently a prosecutor that is willing to give false testimony in order to employ litigation in her favor. This was clear in her prosecution of The Axion Corporation trial in which she was the main prosecutor. Her main goal in the case was to put the company out of business by ruining their reputation whether or not the CEO’s were even convicted. In the end, Axion was acquitted of violating the Arms Export Control Act which was the most serious prosecutorial charge. The case against Axion was so outrageous that not only did the judge throw it out, but the judge in turn made Martin pay all of the court charges and all charges the defendants had to pay in order to prepare their defense.

     Unfortunately, it has not been easy to criticize Martin for her antics considering she brings charges upon those who do criticize her, most notably, an individual employed at the University of Alabama. Martin is just another example of Republicans trying to take control of the legislature in Alabama, the only branch of the Alabama State Government that the Republicans do not control.

     For prosecutorial actions, Alice Martin is being investigated by several Government organizations on many levels. She is facing multiple ethics investigations by the Office of Professional Responsibility for the cases of Siegelman and The Axion Corporation. She was also investigated by the Department of Justice for charges made against her for perjury. The Justice Department, headed by Alberto Gonzales, somehow conveniently found that she has never committed professional misconduct or poor judgment in office. The stranglehold of corruption in the Justice Department continues to let bad prosecutors like Alice Martin off the hook. If Alberto Gonzales were a straight shooting Attorney General who conducted his office legally and ethically, Alice Martin probably would have been disbarred and perhaps punished severely a very long time ago. Maybe this will change with a change of administration.

Leura Canary/ U.S. Attorney, Middle District of Alabama

     The systematic destruction of Don Siegelman’s Governorship of Alabama is a prime example of corruption in our legal system and the Republican Party’s policy of muscling those in their way out of office, even if illegality is the only means of doing so. A list of big-time Republican lawyers, lead by Leura Canary, with the help of Republican stalwart Karl Rove, are accountable for destroying this politician’s office and together played a huge hand in the despicable sentence handed to the former Governor.

     Democrat Don Siegelman was Alabama’s Governor from 1999-2003. He was the only Governor in Alabama’s history to hold all four major offices which included Governor, Secretary of State, Attorney General, and Lieutenant Governor. Admittedly, Siegelman as Governor, did not have the cleanest slate. In 2006, he was found guilty of corruption, obstruction of justice, bribery, and mail fraud. These charges were a connection between him and Richard M. Scrushy, founder and former CEO of HealthSouth. Details of the charges involved an exchange of $500,000 for a government job that would be given to Scrushy once Siegelman retained his office in 2006. Siegelman was also guilty of exchanging many other government favors for campaign donations.

     Republican prosecutors jumped at the opportunity to wreak havoc upon Siegelman’s office. Canary immediately took action by having the first case against Siegelman dismissed in order to have the trial in front of a judge whom she knew had a personal grudge against Siegelman. During his trial for misconduct, he lost the gubernatorial elections which were taking place at the same time as the trial and would not be able to run against current Republican Governor Bob Riley. Siegelman was sentenced to seven years in prison by the Republican judge for his actions which seemed extremely atypical. This sentence was unusual when you consider previous corruption charges against other politicians which did not result in imprisonment. Siegelman pointed out the case of Republican politician Guy Hunt who was found guilty of pocketing government money in Alabama but was only given probation in comparison. Also, Siegelman was denied the usual forty five days before having to report to serve jail time. This type of mistreatment was harsh, especially for a former Governor. Severe punishments like the one given to Siegelman usually reflect a unanimous jury decision, but not so in Siegelman’s trial. If anything, the sentencing reflected nothing more than a personal attack by a judge with conservative ideologies. Siegelman argues that his unordinary and immediate sentencing along with the implosion of his office was manipulated by Republican “powerhouses.” Defense lawyers representing Siegelman claim that the sentencing was politically motivated and not lawfully made and that this was a systematic, timely attack on the ex-Governor.

     Leura Canary became the main weapon used to attack Siegelman and ultimately became the focus of criticism from Democrats when information relating to her prosecution began to surface. None of the prosecutors involved have yet to responded to a Congressional request for a presentation of documents relating to this case. The Justice Department, still feeling the influence of Alberto Gonzales, was required to produce documents related to the Siegelman investigation. Records produced by Gonzales were not made available until the day of his retirement, which also happened to be the day after the date that the documents could be authorized as evidence for presentation before Congress.

     It is no secret that the Siegelman prosecution, coordinated by Canary, was a five year campaign to ruin the ex-Governor. Canary’s investigation of Siegelman forced the end of a well respected Governor for nothing more than political party dedication. Leura Canary continued to involve herself in the case nationally making a mockery of her recusal after being accused of political corruption by Siegelman’s lawyers. Manipulation to this magnitude is never unnoticed and the investigation Canary lead is completely unjustifiable. This case is a great example of political corruption in the legal system and shows the agenda Republican politicians and lawyers have when given powerful positions. Canary’s willingness to participate in such actions and her political involvement in this case should lead to her disbarment, as well as an investigation of her actions and behavior during the Siegelman trial. This nomination shows that Top Worst Prosecutors has no gender bias.

Mark Burnette/ Former West Virginia Prosecutor

     Prosecutors should never be allowed to use a court case as a springboard for an election. This is especially true when they prosecute an innocent defendant that was wrongfully tried and found guilty. Unfortunately, a woman named Marybeth Davis from West Virginia has fallen victim to the likes of Mark Burnette who uses similar techniques in order to further his career. Marybeth Davis is currently serving life in prison for the murder of her daughter and 18 years in prison for the poisoning of her son thanks to Mark Burnette’s failure to be favored in the courtroom.

     Marybeth was found guilty of giving her daughter, Tegan, an overdose of caffeine in 1982 which lead to her tragic death. She was also found guilty of poisoning her son with insulin. This case wasn’t tried until 1996 because of mismanagement by the original prosecutor and the police officer in charge by the name of Michael Spradlin. Investigators of the case later found that natural causes, not poisoning, lead to each child’s death. Seth happened to have Human Growth Hormone Deficiency and Tegan was a victim of Reye’s syndrome.

     As the case was brought to the attention of Burnette by Trooper Spradlin, immediate misconduct and mismanagement of the law were seen from Burnette’s office. Burnette originally withheld autopsy slides in the original trial that showed Tegan died of Reye’s syndrome which would have proved Marybeth’s innocence. Burnette to this day denies that the evidence from the slides would have had any effect on the case. If this is so, then why is he so afraid to release them? Burnette is also guilty of having the toxicologist, a woman by the name of Dr. Scharman, lie about the amount of caffeine in Tegan’s blood system. During the trial, Dr. Scharman somehow managed to mix up milligrams and milliliters when reporting information to the jury. Not only is this a large disservice to everyone in the courtroom but also to the country, considering she has recently been given an award for helping protect the nation from biological terrorism. It’s not very comforting to know people defending us from biological attacks don’t know how to tell the difference between these two measurements that are taught to youngsters in middle school. The truth of the matter is that the caffeine amount in Tegan’s system was nowhere near a lethal amount and a majority of it came from the last ditch effort made by ER surgeons to resuscitate Tegan in the emergency room. Interestingly enough, the emergency room and ambulance records remain missing to this day.

     Burnette is also the type of prosecutor who uses unfair tactics in the courtroom to his advantage. For example, when Marybeth admitted to giving Tegan coca-cola syrup to relieve the child of headaches when she originally thought Tegan had the flu, Burnette spent the rest of the case referring to the syrup as “coke” in order to make what Marybeth did seem much worse than it actually was in order to sway the jury in favor of the prosecution. Burnette made another terrible offense in this case by withholding the c-peptide test results which determine where insulin in the body comes from. More specifically, this test would be able to provide information of the possibility of insulin coming from an outside source or if it were just generated from natural causes. Therefore, Marybeth’s defense was entirely unfair since this evidence was not released in considering the accusations brought against her in Seth’s case.

     Mark Burnette has recently admitted that several tests should have been done such as checking for dietary pills that could have been the cause of death which was not ever performed. Burnette, feeling the heat of much criticism, has said that during the upcoming appeal if Marybeth pleas guilty to two counts of poisoning, then the prosecution will tell the judge that she has served her time and should be allowed to go home. Of course, there is no guarantee that the judge will feel the same. Other disturbing factors of this case include the fact that Trooper Spradlin, who received an honorary “Top Trooper” award from Bill Clinton, is best friends with Mark Burnette. He even stood in as Mark’s best man at his wedding. Not only have both men been accused of conspiracy for falsifying information in partnership with one another, but both are guilty of threatening witnesses and issuing threats to sue those who criticize them. Both men appear to only want to advance their careers and Burnette should not be surprised to find himself facing a bar proceeding for withholding evidence and manipulating witnesses’ testimonies which have sent an innocent woman to prison for the rest of her life.

Mary Lacy/ Boulder County, Colorado DA

     The name Mary Lacy falls into the category of one of the worst prosecutors placed in office over the last decade. The Boulder County District Attorney was the lead prosecutor in the JonBenet Ramsey murder case which has been ongoing for the last twelve years. JonBenet was a child beauty pageant contestant who was found murdered in the basement of her parent’s house in Boulder, Colorado during the Christmas holiday in 1996. She was noticed missing when a note was found on the staircase of her house demanding an $118,000 ransom for her release. The amount was the sum of her father’s Christmas bonus of that year.

     Several problems arose instantly from Mary Lacy’s investigation of the murder. Immediate problems included the original crime scene was not properly sealed off due to inexperienced detectives at the murder scene. Lacy’s investigators only determined that the child died – nothing more. JonBenet had a skull fracture and was strangled; however, there was never any evidence uncovered that showed signs of conventional rape. Interestingly enough in 2006, a man by the name of John Mark Karr openly admitted being with JonBenet on the day of her death. During his arrest in Bangkok, Thailand, he openly confessed that he beat JonBenet savagely and then proceeded to rape her. Mary Lacy’s investigators failed to find DNA evidence that placed Karr at the murder scene and Lacy pursued no further prosecution of the man who had pleaded guilty to the killing which has allowed him to live his life normally in Beijing, China. Since then, Lacy has focused solely on pursuing JonBenet’s parents and her brother.

     The two remaining suspects have recently been proven innocent with newly discovered evidence found in early July, 2008. The evidence was found by way of new DNA tests that focus on skin cells left behind from a mere touch which were found on JonBenet’s long underwear. The evidence proves the presence of a third party at the time of the murder, providing proof of innocence to the parents, relieving them of any further turmoil of Lacy’s investigation. Therefore, the killer has yet to be determined since the new DNA tests recently conducted showed a negative match to Karr being the murderer.

     The investigation severely damaged the Ramsey’s reputation. Constant tabloid smearing of the couple and JonBenet’s brother was a common occurrence across the country. T.V. Crime shows based off of the murder were even created to damage the image of the two parents since society was never provided with alternative suspects because of District Attorney Lacy’s despicable investigative tactics. Several defamation lawsuits arose in which the parents had to defend themselves because of their reputation as presented by Lacy.

     Since this new evidence has been released, the only recourse Lacy has offered was a letter of apology to the family, which hardly justifies the suffering she has caused the Ramsey’s over the last several years. Unfortunately, JonBenet’s mother will never be able to receive that apology since she died of cancer in 2006.

     District Attorney Mary Lacy was accused of a cover up due to the poor investigation that was carried out. Lacy, who will be stepping down in January 2009 due to her reaching the maximum term limits served in office, has tried explaining that she had doubts that the Ramsey parents ever took part in the murder. To justify that statement may prove difficult since her investigation clearly showed intent to blame the parents of an entanglement in a murder which was based on very circumstantial evidence and absolutely no real proof of who committed the crime. District Attorney Lacy needs to be investigated for her unwillingness to take time to consider hard evidence before prosecuting suspects and a policy of being quick to lay blame and promote unjust accusations in order to boost self reputation.

Michael McDougal/ Former Montgomery County, Texas DA

     When you’ve held an office for twenty years, political elections and campaigns tend to come and go without too much worry of retaining your office. They do however become more difficult when rights you are entitled to in office are misused and abused. Michael McDougal, the Montgomery County, Texas District Attorney, is very familiar with this type of situation considering he was in the thick of a heated political race for the November elections.

     The long standing District Attorney was in a dead heat with a “new kid on the block” named Brett Ligon. McDougal couldn’t manage to win the Republican primary and therefore has chosen to run as an Independent when he only received 37% of the vote to Ligon’s 44%. The reason for McDougal’s troubles had to do with his involvement in the misappropriation of funds in his department’s office. McDougal managed to use money from the drug forfeiture accounts in his department to purchase alcohol and other miscellaneous items for staff parties. He also provided the funds to employees for bonuses and sent some of the seized money to charitable organizations. McDougal stead fastly disputed these accusations until receipts from the liquor stores he purchased alcohol began to surface. McDougal tried to make the case that he was not aware that those confiscated criminal funds were to be used for police purposes only. Even then, he insists that he can use the government regulated money as he pleases. This is an example of a prosecutor in power with complete disregard of jurisdictional responsibilities and a lack of knowledge of the conduct required by his office.

     Brett Ligon defeated McDougal in the primaries by pointing to other flaws along with the money schemes that the District Attorney committed during his tenure in office. The most common accusation is that he is extremely lax towards DWI cases and that criminal cases aren’t disposed of quickly enough in his department. McDougal has made a habit of taking several months to file charges against criminals that commit a DWI and several other types of criminal acts which has angered law enforcement officials in Montgomery County. McDougal’s handling of DWI offenders has been inexplicable considering he does not seize vehicles of repeat offenders and he also does not require mandatory blood testing of suspected DWI criminals.

     McDougal’s actions, or lack thereof, have attracted attention across the State of Texas and the nation. He is currently being investigated by the State Senate Criminal Justice Committee led by Chairman Whitmire. He is also facing several ethics complaints by the Texas Bar Association and is under investigation by the Texas Attorney General’s Office for his carelessness.

Bonnie Dumanis/ San Diego, California DA

     Evidently, for certain prosecutors, evidence is not required anymore in order to send people to jail. These particular tactics tend to backfire when that person is innocent. Apparently San Diego District Attorney Bonnie Dumanis did not get the memo. Bonnie Dumanis receives a nomination for one of the ten worst prosecutors in America for her career boosting lawless tactics in California.

     Dumanis’ wrongful prosecution of Cynthia Sommer with the accusation of poisoning her husband with arsenic was a pitiful manipulation of the court system. Recent testing provided samples of new tissue which had no trace of any poison in Mr. Sommer’s body at the time of his death. Unfortunately for Mrs. Sommer, she spent two years in a California State Prison for the crime she was accused of committing by District Attorney Dumanis. A San Diego judge released Sommer immediately after a recent retrial which provided this new evidence proving Sommer’s innocence.

     Government experts provided testimony at the retrial that original evidence used by DA Dumanis to prosecute Sommer was extremely contaminated and should have been thrown out. Bonnie Dumanis’ accusations relied heavily on very circumstantial evidence including Mr. and Mrs. Sommers’ debt as a motive for Mrs. Sommer’s suspected killing of her husband. Sommer was also falsely accused of wanting to kill her husband for the sake of obtaining money for breast implants and also wanting to live a more exciting lifestyle as a motive for the murder.

     Dumanis defends her prosecution with the argument that the prosecution was based on sufficient “available” evidence. Dumanis’ prosecutorial procedures in this case definitely need to be investigated to compensate Mrs. Sommer for two years she spent in prison. Dumanis is likely to be responsible for a punitive damage award received by Sommer. One would also expect several lawsuits to arise out of the current developments of this case.

Chuck Rosenthal/ Former Harris County, Texas DA

     Experienced District Attorneys that don’t play by the rules are unfortunately becoming common. The former Harris County District Attorney Chuck Rosenthal is an example of a prosecutor that fits that description. Therefore, he is nominated for being one of the worst prosecutors in the country for his misconduct in office.

   Rosenthal has been involved with drug abuse problems, sex scandals, and is accused of manipulating the political process. He doesn’t deny that on several occasions, he had abused his pharmaceutical prescriptions which had major effects on his judgment during his tenure in office. The worst accusations came when he was caught using government computers for networking sources of income and promotions for his campaign for reelection in Harris County. Emails containing racist and sexist jokes found on his government computer proved his misconduct in office. Not only should a racist District Attorney be booted from his/her position, but the fact that he resides over the district office that hands out more death penalty sentences a year makes his history of racism a major issue. Numerous adult video clips were also found on his computer along with several letters to his mistress to whom he gave a $10,000 raise.

     Added offenses include him being found in contempt of court by tampering with federal evidence. The evidence included 2,500 emails subpoenaed in which he completely threw out or destroyed. In his contempt of court hearing, he contradicted himself many times and may have committed perjury. Harris County tax payers are paying for his contempt of court charges. His other mistakes include thirty two indictments that have been thrown out because of paperwork entanglement in his office.

   Many prominent Republicans and Democrats have spoken out against Rosenthal for his corruption and have even campaigned against him. After the scandals he was involved in, he was prosecuted on the grounds of official misconduct, incompetency, and intoxication. The GOP local party was fed up and in February 2008, he resigned. Chuck Rosenthal may still face investigations – Harris County Government Chief Ed Emmett has called for an intense examination of his activities.

Honorable Mentions

David Ceballes III/ Otero County, New Mexico DA

     Civilized courts typically will take action against prosecutors who practice intimidation tactics in the court room. By holding prosecutors responsible for such actions, lawyers will usually be disbarred from practicing when found guilty of doing so in America. The 12th District Court of New Mexico and its judges don’t make habits of exercising this preventative method, and Republican David Ceballes III has been allowed to take advantage of the lack of enforcement by using intimidation in the courtroom.

     The judges of the 12th District are under much scrutiny for allowing Ceballes to not only use these measures, but for allowing him to go above and beyond these procedures. This was ever so evident when Ceballes recently threatened the warden of the county jail with conspiracy. Shouldn’t a red flag be raised when a Warden is threatened for wanting to testify in court truthfully? Ceballes made these allegations when the warden was going to testify in favor of an inmate Ceballes was prosecuting. Usually this sort of action would get prosecutors sent to prison in the United States. The case involved an inmate who was in possession of a razor blade that he claimed was used for cutting hair, which Ceballes argued could have been used to cause great harm and should be considered possession of a deadly weapon. All of the officers at the prison where the prisoner was being held, including Warden Jeffers, disagreed with Ceballes. This prosecutor has also been known to botch cases, most notably a rape case in which he was unable to bring to court within the time limits allowed by the State. Ceballes should be investigated for inappropriate strategies used in the courtroom.

Michael Mukasey/ U.S. Attorney General

     Michael Mukasey was brought into the Justice Department to fix all the mishaps of Alberto Gonzales. As far as we at The Bennett Law Firm are concerned, he has done nothing to repair any of the problems he has been faced with. He has yet to place Monica Goodling and others at the forefront of any investigation but instead has down-played the political hiring process in the Department. He has openly spoken out about issues he has been faced with, but has taken no action whatsoever to help the national legal crisis created by Gonzales. If anything, he has defended Gonzales and his aides rather than doing his job of holding those responsible for allowing the Department to become a political hiring office. He has supported claims of executive privilege and immunity in order to counter accusations brought upon the accused, even though the law itself doesn’t support those claims. Just as with Alberto Gonzales, it is already blatantly obvious that Mukasey supports politics over justice.

Updates concerning last year’s winners

Michael Nifong/ North Carolina DA

     The North Carolina State Bar Disciplinary Committee unanimously stripped Nifong of his law license in response to his ethics violations. He was found guilty on 27 of 32 charges, sentenced to one day in jail, and fined $500 for criminal contempt of court during his trial. In January 2008, Nifong filed for bankruptcy in hopes of getting the numerous civil suits filed against him thrown out. The residing bankruptcy judge threw out the bankruptcy claim in May of 2008, allowing the plaintiffs their pursuit of all lawsuits directed at Nifong.

Jeffrey Auerhahn/ Assistant U.S. Attorney

     Jeffrey Auerhahn has not received any discipline for his misconduct in office. The Justice Department, lead by Michael Mukasey, is regularly receiving open criticism from all over the country for not pursuing any form of punishment directed at Auerhahn. Auerhahn is still currently employed at the U.S. Attorneys Office where he is assigned to the Antiterrorism Unit. This is another great example of Republicans protecting members of their party with complete disregard for legal justice.

David McDade/ Douglas County, Georgia DA

     In late 2007, Genarlow Wilson, whose sentence was widely denounced in the State of Georgia after being prosecuted unfairly by McDade, was released from prison when the Georgia Supreme Court found that his sentence was cruel and unusual. The Court found that trying David as an adult was extremely harsh and undeserving. For some reason, McDade has refused to let the prosecution go away. He has continued to harass Wilson even though he has been acquitted of all charges.

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