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Opinion by Consumer Advocate Tim Bolen
Originally published August 19, 2005
I’m about to tell you about an important legal “case” in California that has far-reaching (national) implications for the regulation of health care, and other, licensed professionals. The case is currently heading for the California Appeals Court – and a letter from YOU to the presiding Judge of the Appeals Court will have a tremendous effect. I’ll explain.
I am not a fan of the Administrative law system that SUPPOSEDLY regulates licensed health professionals. I have found, nationally, that as a unit, the system is brutal, stupid, poorly organized, inefficient, and inhabited by some of the lowest form of humans that could, and would, use their positions of power over licensees, to prey on them for their own perverted delight. Few places, nationwide, is the system held accountable for its actions.
California is one of those.
The situation got so bad in California, that, a few years ago, the California Legislature ordered, and funded, an “Enforcement Monitor” on the California Medical Board Staff. It was absolutely necessary then – and it still is now.
The program is ongoing – for good reason.
A few years ago, in California, I was invited by the California Medical Board members, themselves (not the staff), to attend, as a citizen participant, their “weekend retreat” to analyze their role, and put new policies in place, to control the staff, and their functions. The California Medical Board, itself, was reeling from the constant beating they were taking from two of the State’s biggest newspapers – over the Board NOT prosecuting bad doctors, but instead, prosecuting those that, with limited income, were unable to afford mega-expensive legal representation. The Board members used the “weekend retreat” to get to the bottom of the problem – and re-focus the staff.
One of the things I accomplished at that weekend meeting was to convince the Board Members to STOP the Staff from publishing “Accusations” against MDs in the media. Prior to this the Board staff seemed to take perverted delight in writing up a formal “Accusation” in the most provocative, destructive language possible – and getting it published in the Doctor’s home town newspaper – on the front page – of course destroying him/her in their own community. The Board Staff’s message was simple “It doesn’t matter whether you’re guilty or not. Sign an agreement, give us money, and take your beating, or we’ll ruin you publicly.”
A local attorney, advising his Doctor client, looking at the Board Staff’s “case” against his client might well say “you have absolutely no case against my client. Go ahead and file your Accusation. It is easily defensible.”
So the staff would file their “Accusation” – but the “trick” was NOT give the Doctor or his/her attorney a copy. The Doctor would find about the “Accusation” at 7:30 am on a Sunday morning when his/her mother, the one who worked three jobs to get him/her through Medical School, would call in a hysterical, almost unrecognizable voice, telling him/her to go out on the lawn and get the newspaper and read the FRONT PAGE story comparing him/her to Hitler and Mengele. Needless to say THAT family isn’t going to show up in church that morning – they don’t want to be stoned… In fact, it is probably a good idea to get police protection long enough to get the family to a safe place.
Of course, after the newspaper article, the doctor can forget using that attorney to defend against the bogus charges. Since ALL of his/her patients have disappeared, there’s no money to pay the attorney – and the Staff wins another “case” by default. Then they sell the house, because as part of “the deal” the doctor has to pay the cost of the Staff prosecuting him/her…
See why I would use the term “brutal, stupid, poorly organized, inefficient, and inhabited by some of the lowest form of humans that could, and would, use their positions of power over licensees, to prey on them for their own perverted delight?”
And, it gets worse…
The publicity “trick” was stopped in California. But, that didn’t leave the Staff without perverted tools. They had, and still have, an even more important tool – the cost of defense.
Hiring an attorney to defend against a board action is EXPENSIVE. Most doctors cannot afford a defense – and the medical board Staff knows that – and finds ingenious ways, for those who won’t accept a settlement, to run up the doctor’s legal bill. The doctors are looking at costs somewhere between $50,000 to $350,000 in fees, depending on how long the case goes on – and if they lose, they are expected to pay the Medical Board’s costs also.
The Sinaiko case, in California, ran up legal bills on the defense side, over $500,000. If an irate citizen’s group, the Progress in Medicine Foundation, hadn’t come forward to raise the money, Sinaiko would have lost years ago – but he was able to persist over seven years of Appeals – and was given his license to practice medicine BACK. Think about his business losses over that period….
The Staff that wrongly prosecuted Sinaiko is still working at that office as though nothing happened. They’re sitting there filing their teeth to sink into the next victim’s throat.
The Union of American Physicians and Dentists, several years ago, complained, rightly so, that the California Medical Board Staff was picking their targets for“Accusation,” not on the severity of wrongdoing, but on whether, or not, the doctor had the wherewithal to defend. They pointed out that, although only 55% of licensed MDs in California were “solo” practitioners, 95% of the “Accusations” filed were against those same “solo” practitioners. Why? Because HMOs have high priced law firms STANDING BY to aggressively defend. And, HMOs do that because they know that if one of their doctors gets “disciplined” for alleged wrongdoing, there will be an even more expensive malpractice suit right behind the disciplinary action.
So, the Medical Board Staff picks easier targets. Those that cannot afford a long, expensive, defense.
But, California, like many States, has within its law, the provision that an accused can hire an attorney, represent himself/herself, or use a “lay representative.” Its that “lay representative” status that bothers the Medical Board Staff, for few people know how, or have the skills, to represent themselves.- attorneys are expensive, and that “expense” is used as a tool against the doctor.
The “lay representative” situation comes from an enactment of the California legislature in 1995 – Senate Bill 523.
Quoting attorney Jim Link:
In 1989, the California Law Revision Commission retained Professor Emeritus Michael R. Asimow as the chief consultant to guide the Commission in drafting a legislatively-mandated overhaul of the then-existing 1945 Administrative Procedure Act (APA). As a result of his efforts for the Commission, the treatise, “The Adjudicative Process, (1995) was drafted and published. In that treatise, Professor Asimow wrote: “I believe that the APA should provide that a party can be represented by anyone of his choice, before any agency, whether or not a licensed attorney. The prohibitive cost of legal services, and the very limited availability of legal services for the poor or pro bono representation, means that most parties to administrative proceedings cannot afford lawyers. Indeed, non-lawyer advocates may do a better job than lawyers in specialized tribunals such as tax or welfare cases or in cases raising scientific or technical issues ….”
The Legislature enacted Professor Asimow’s recommendation in SB 523 of 1995 which replaced the old 1945 APA with Government Code §§ 11400, permitting lay representation using the nomenclature “attorney or authorized representative.” Professor Asimow’s recommendation is now firmly implanted in the statutes, regulations, various opinions of Administrative Law Judges, and the case law of courts of record that have examined the issue.”
Lay Representatives handle cases for a fraction of the fees charged by attorneys and, as professor Asimow says: “Indeed, non-lawyer advocates may do a better job than lawyers in specialized tribunals such as tax or welfare cases or in cases raising scientific or technical issues ….” Like Medical Board Cases?
The Staff of the California Medical Board, once again frustrated in their efforts to “win” cases with underhanded techniques, has reacted to subvert the law enacted with SB 523.
And now we get to the meat of this story.
The California Medical Board Staff is corrupt. They are, in my opinion, the LAST people I’d want in place to regulate health care in California – or anywhere. They started out badly, and they promote from within to continue their bad attitude. “Cheating” on prosecutions is something they do without consideration.
Last year one of the better “Lay Representatives, got a hold of a copy the “Initial Report of MBC Enforcement Program Monitor.” Of interest to him was Chapter VIII, the “Expert Reviewer Program” In it he found the rules for “expert witnesses.” And, section six, about “bias,” was quite revealing, for it said…
“In a deliberate effort not to bias expert witnesses, MBC’s Enforcement Operations Manual instructs investigators, MCs, and DAGs to ensure that materials given to expert witnesses at the outset of their review do not contain information that might bias the expert (such as prior disciplinary action or malpractice history of the subject physician) or the opinion of any other physician who has reviewed the case. The manual directs investigators, MCs, and DIDO DAGs to ensure that the reports the CCU reviewer and district office medical consultant do not contain explicit opinions about whether the subject physician’s conduct departed from the standard of care.”
Except, of course, the Staff has NO SUCH POLICY. They do exactly the opposite, and go out of their way to influence the “expert witnesses.” Some of that information the lay representative used, successfully, against the board’s case for one of his clients – and all hell broke loose. The Medical Board Staff went into a screaming, lie-down-on-the-floor-and-kick-the-feet, rage.
Why did the Med Board Staff do that? Because they had lied to the Enforcement Monitor about their ACTUAL policies – and the lay representative caught them at it. Remember that the “Enforcement Monitor” is working for the Legislature to correct Staff problems – so getting caught in the act was not a good thing.
The Med Board Staff went after the lay representative by filing complaints with the State Attorney General’s office, and the California State Bar – claiming Benninghoff was “engaging in the unauthorized practice of law.” They went to the State Bar Association Court with their claim, and when that didn’t work, they went to a Superior Court Judge.
The attack on the lay representative at the State Bar Association Court didn’t work, it seems, because experts in the field of Administrative law, including the man who had written the last (1995) revision of the Administrative Act, Professor Michael R. Asimow of the UCLA School of Law, JUMPED in with Amicus (Friend of the Court) Briefs defending Benninghoff’s (or anyone’s) right to practice as a “lay representative” in Administrative proceedings.
Then the California Legislative Counsel wrote an opinion favoring the lay representative. Then an Administrative Law Judge wrote an Amicus Brief favoring Benninghoff. And, more…
And, the war was on… for the California Medical Board Staff, about as competent as goose fuzz, needs every “trick” it can muster.
So, they took the case to a Superior Court Judge, asking for an Emergency hearing, claiming that the “safety of the public was at stake.” They demanded that the lay representative’s practice, and all of his business assets be seized immediately. The judge, even after reading the expert’s opinions, sided with the Medical Board reps, claiming, in one of the STUPIDEST comments I’ve ever heard, of the OFFICIAL Legislative Counsel’s opinion: “SOME YOUNG WOMAN THAT IS A LEGISLATIVE AID TO SOMEBODY WRITES AN OPINION THAT SUGGESTS THAT YOU CAN [UNDERTAKE LAY REPRESENTATION]. I MEAN, YOU KNOW, IT IS JUST A CONFUSING SITUATION. SO, THAT SHOULD BE CLEARED UP.”
Where do we get Judges that can’t recognize an OFFICIAL Legislative Counsel’s opinion, and thinks it’s something written by a legislator’s aide?
This Judge issued an order seizing the lay representative’s property – and before Benninghoff could get back to his office, Medical Board reps were in his office, with their guns, packing up his computers, files, and anything that wasn’t nailed to the floor.
And, here we are. Heading, at the speed of light, towards the California Fourth District Appeals Court. You can read the whole brief by clicking here. First, read the “Introduction to Petition for Extraordinary Writ.” Then, if you want, read the whole thing.
Why your action is important…
This case is about “who can represent entities in Administrative hearings.” It is clear that the staff of the California Medical Board wants “we the people” to have only two choices when it comes to representation in an Administrative hearing (1) A mega-expensive attorney, or (2) run the risk of representing yourself. They, for sure, don’t want anyone to get help from a knowledgeable layman.
The California legislature, in its wisdom in 1995, revised the Administrative procedures Act (APA) to specifically include the language allowing “lay representatives”to not only assist Medical Board victims, but to actually “represent” them in those hearings specifically because “The prohibitive cost of legal services, and the very limited availability of legal services for the poor or pro bono representation, means that most parties to administrative proceedings cannot afford lawyers. Indeed, non-lawyer advocates may do a better job than lawyers in specialized tribunals such as tax or welfare cases or in cases raising scientific or technical issues ….”
The Fourth District Court of Appeals will see this case, because of the “Extraordinary Writ” (fast tracking) of the legal brief, within a few weeks. Time is of the essence, for several reasons. (1) the lay representative’s client records were seized – leaving the clients, not only without any representation, but without any records to work with to get new representation. They are now at the mercy of the corrupt medical board staff – with zero means to defend themselves. (2) The medical board staff has shut down a perfectly legitimate business, and destroyed the lay representative’s income – strictly in revenge for him exposing their lying to the MBC Enforcement monitor about their “expert witness” policies. They did this to cover up a legislative investigation of their own operation and protect their nefarious activities.
What to do…
Simply write a letter to the Presiding Judge, either by email, or FAX, or snail mail. Anything will work – just so you do it now, or very soon. If you click here, you’ll be taken to a page that gives you every tool you need. The page has the letter all laid out for you, with the points you need to make to the Judge about the case, the proper addresses, and the people who will be given a copy. If you email it to the address shown, our team will personally deliver your letter.
On a personal note…
I’ve known the lay representative for years. It was he, when he was still a practicing attorney, that got me involved with the health freedom movement. It was he, up on a mountain pass, seven miles from a trailhead, that talked me into representing my first “cutting-edge practitioner.”
I’m sending my letter tonight…