Wednesday, January 24, 2007

The Other Shoe Finally Dropped

The North Dakota Supreme Court has finally ruled in favor of that state's medical board and said it had the right to revoke the medical license of Dr. George Hsu because of what it considered inappropriate care.

A quick summary of the case (detailed version here):
An anonymous complaint was made to North Dakota Board of Medical Examiners against Dr. George Hsu. After an investigation they determined that there was poor recordkeeping and that he had a bad attitude when brought before the board. A judge recommended that his practice be monitored. Instead, the medical board revoked his medical license. His patients rallied behind him and with their support, Dr. Hsu appealed. After one year of the appeals process, a district judge ruled that Dr. Hsu's license should be reinstated if he agreed to be monitored. The medical board ignored the ruling and revoked his license again, forcing the judge to order them to reinstate his license. The medical board appealed to the state Supreme Court, arguing that it alone has the right to decide not only what is appropriate care but how to discipline doctors. And the state Supreme Court agreed.

This story brings up a lot of troubling questions for me. Should a doctor lose his license because of bad record-keeping without proof of actual harm? Should a doctor lose his license because of a "bad attitude"? If the answer is yes to both of these, then a whole lot of doctors in this country should be losing their licenses soon.

During the course of the appeal to the state Supreme Court, some startling allegations were made against the process by which Dr. Hsu was prosecuted. The initial investigator in the case may have had a significant conflict of interest in the case. From the appellee brief filed with the North Dakota Supreme Court:
The Board has an obligation to appoint investigators who do not have a conflict with the doctor being investigated. The investigator in this case, Doctor Craig Lambrecht, had a conflict with Doctor Hsu. Doctor Lambrecht's mother was denied a position as an occupational health nurse with the North Dakota National Guard only after Doctor Hsu complained to General Macdonald that Doctor Lambrecht's mother had been sleeping with the command Sergeant Major. In his August 1, 2005 affidavit, General Macdonald confirmed that the accusations were made and that, in his opinion, " was inappropriate for Doctor Craig Lambrecht to investigate Doctor George S. Hsu. (See Appellee's Appendix at pages 22-23). An affidavit from a nurse formerly in the North Dakota National Guard also confirmed that Doctor Hsu made the allegations to General Macdonald and that she informed Rolf Sletten of Doctor Lambrecht's conflict of interest prior to the Board hearings against Doctor Hsu.

Dr. Craig Lambrecht also happened to be the chairman of the North Dakota State Board of Medical Examiners that determined that Dr. Hsu should lose his license. Rolf Sletten is the executive secretary of this same Board.
Besides the clear personal conflict of interest described above, Doctor Lambrecht also had the financial motives as described in Johnson. For instance, Doctor Lambrecht is employed by Medcenter One in Bismarck, North Dakota, an institution that had much to gain if the farmers and ranchers in the Elgin, North Dakota area switched from Doctor Hsu's clinic to Medcenter One's Elgin clinic.

As the trial hearing counsel argued, complaints should arise from the public and not from the Board's investigator, but the Board could not rely on the public's help in this case as Doctor Hsu has never even had a medical malpractice suit brought against him at any time during his career and has, in fact, enjoyed wide community support during the entirety of these proceedings. (August 17-18, 2004 hearing transcript at page 677 and Appellant's Appendix at page 21).

Doctor Lambrecht's conflicts with Doctor Hsu violated Doctor Hsu's right to due process as protected under the United States and North Dakota Constitutions. N.D.C.C. Art. 1, §9. "A license to practice medicine is a property right deserving constitutional protection, including due process."

As I have said before, I don't know Dr. George Hsu. I've never met him, although he did leave a comment to one of my entries about him. But when there is a shortage of good primary care doctors, you don't start taking medical licenses away because of bad recordkeeping. And in the interest of justice, you shouldn't have anyone investigating or judging him who might hold a grudge against him. I haven't heard it brought up, but I have wondered if Dr. Hsu's ethnicity had anything to do with him getting singled out.

Medical boards serve a purpose. But like the Spanish Inquisition, having the combined power of investigator, judge and jury at the same time seems like a little too much power to me. And you know what they say about absolute power.

Does a medical board alone have the power to decide what is appropriate care/conduct and what the sanction should be? If the medical board decides that a sloppy appearance is unprofessional and worthy of license forfeiture, is that their unquestionable right? What if they decide that pregnancy termination or withdrawal of life support is malpractice? Dating a former patient? Cheating on a spouse? Voting Libertarian? Belonging to the Church of the Flying Spaghetti Monster? Where does one draw the line? Is there a line?

The reason why this story concerns me so much is because, as a fellow family physician, "there but for the grace of God, go I." If something like this can happen to him, it could happen to me or any other physician. Nobody is safe.

Best of luck to you, Dr. Hsu.