RE: House Health Committee Hearing

[Guest guest]

The most recent posts on this topic continue to miss the salient point of the HHC Hearing, Due Process (or lack there of) in how the OBCE handles disciplinary issues.

The Board is claiming that when a complaint is received, they notify the doctor and ask for his response to the complaint. They also request the patient’s chart. The Board is asserting that this single written response is the doctor’s opportunity to explain what happened.

That maybe true, but sometimes the doctor responds to the complaint, after which the Board changes the charges against the doctor. When have you (the doctor) been given an opportunity to response to those new charges?

Patients can complain about anything; the Board is obligated to investigate. If the patient claims you were inattentive, the Board would send you a notice and ask you to respond, as well as ask you to send in the patient record. You would probably say that you were attentive to the patient. Your records would show the history and examination, and this would demonstrate your interaction.

However, if the Board looked at your report of the initial visit and found something lacking, would it not be reasonable that they inquire of you why something may have been omitted or overlooked?

Mr. McTeague and Dr. Cote testified that the doctor’s initial response to the complaint is an adequate opportunity to respond; perhaps so, if the eventual allegation is the same as in the complaint. But if the alleged violation is something different, when have you been given due process to this new charge? If there is some misunderstanding or a question of opinion, shouldn’t you be given an opportunity to explain your reasoning?

Dr. Cote said that the Board does not concern itself with issues of differences of opinion, yet with this case the issue was a difference of professional opinions.

Even more disturbing than bypassing an opportunity for an explanation, in this case the Board issued a proposed disciplinary action stating a variety of omissions and rule violations that were not supported by any material they reviewed. The Board claimed portions of examinations were not documented, but these elements were in fact in the reports reviewed. They claimed certain things were not done, but in every case there was evidence that these were appropriately completed and documented.

When challenged by written response to the allegations where these errors were identified, the Board ignored it. They eventually offered to discuss the issues (6 months later), but then ignored requests to explain or justify their allegations.

At the legislative hearing, Mr. McTeague said that the issues could be adjudicated by an Administrative Law Judge. He did not mention that the OBCE is not bound by that decision. The Board can ignore it and issue their own ruling. Should that happen the matter must then be challenged in the Appellate Court, with costs mounting at every step. While this is an unusual occurrence, the Board has done so in the past in a similar case.

Dr. Cote said that his malpractice insurance would cover him, and many policies now offer such coverage; however, there are limits and claims are not always handled smoothly. Besides, insurance is not the answer to everything and an assumption that an insurance policy allows the Board to act inappropriately is misguided and naïve.

Part of the disciplinary process is to correct wrong behavior. This case illustrates that the wrong behavior was not that of the doctor, but in the Board’s handling of this matter. How is incorrect behavior changed when there is no evidence of wrongdoing? If the purpose is to punish, then at least a reasonable explanation of what constituted wrong behavior should be provided. It has never been explained.

This situation happened, in part, because of the pervasive negative attitude within the profession regarding chiropractors who perform Independent Medical Evaluations. Many of the comments that have been made would seem to support the magnitude of the dislike of IMEs. For some it is so ingrained that many cannot see it to separate out fact from emotion. That is why it was necessary to present the issues to those who have authority over the OBCE but are not embedded in the underlying controversy.

This case illustrates flaws in the system that compromise due process and the rights of all chiropractors. What will prevent similar abuses should a concern arise about Gonstead Technique, or some other element of the profession? If we compromise our rights in one case, what is next? This not an airing of dirty laundry about a professional squabble between treating doctors and IMEs, it is about protecting our rights to be treated fairly by our Board should there be a question about how we as individual chiropractors practice.

Tom Freedland, DC

Posted by: " Burke" mjqpdc@... mjqpdc

Mon Mar 5, 2012 3:41 pm (PST) Dr. Schneider,I already responded to the concern about airing dirty laundry in public in an email I posted to this listserv about a week or 10 days ago. Please refer to my previous post. If you would like me to send a copy to you directly, I would be happy to do so. Please let me know.J. Burke, DC, DABCO ________________________________From: Schneider <portlandchiro1gmail>mjqpdc <mjqpdc > Cc: Sent: Monday, March 5, 2012 12:38 PMSubject: Re: IME Testimony during the House Health Committee Hearing.Dear Listmates ,I have something to add to this conversation concerning Dr.Burke's infamous testimony before the state legislature over a week ago concerning the alleged malfeasance of the OBCE. I have listened to the entire testimony and have pondered Dr.Burke's long expose concerning this testimony.I like many docs here in Oregon found plenty to get riled up about in considering this entire episode of chiropractors feuding with each other in a very public venue. I wish to expand on just one thing that really infuriated me about this entire event-and that is the very fact that this inter chiropractic feud ended up being played out before the Oregon State Legislature.Dr. Burke has suggested that he and his colleague had no recourse but to go to the legislature with their concerns regarding the Board. His logic is seemingly sound but what is lacking is a view of the bigger picture of Chiropractic and the well being of Oregon's population. Let me explain. Dr. Saboe and countless other Chiropractors have been working hard for well over a decade to build a solid image of our profession with the Oregon legislature. The fruits of that effort are just now beginning to show up in the form of very promising legislation coming out of the Oregon legislature with reference to our good profession.So why would any doctor who loves this profession risk ruining this image of chiropractic by dragging a inter chiropractic feud before this same legislative body? I have already heard that some legislators have asked a noted DC "Are you guys fighting again". Great -just what we need at this pivotal time in health care change and reform-an image of a profession in disarray and fighting like children amongst themselves.Dr. Burke has stated that only the legislature has authority to regulate the OBCE. This is logically true but I believe Dr. Burke is failing to see the forest for the trees. I cannot believe that doctors with the intelligence, courage , and creativity of doctors Burke and Freedland could not find a way to rectify their concerns with the OBCE by working within the framework of our chiropractic community.I cannot help but think of a powerful quote from the bible relating to settling disputes with our accusers (Mt.5:27-28) "Make friends with your accuser, while you are going with him to court, lest your accuser hand you over to the judge, and the judge to the guard, and you be put in prison.....". I would hope that we can resolve this present dispute and all future similar disputes within our profession without dragging the very public legislature into the picture. If we loose the respect of this legislative body due to our public squabbling it may take years to rebuild our image. And who knows what damage to our profession could occur during that time. Consider what is going on In Florida right now.This in my opinion is the big picture in this matter and I pray that those who love our profession and value the enormous good we can bring to all Oregonians will keep this vision in mind always. Schneider DCPDX