APPLICANT REQUESTS: Correction of his records by vacating and removing the revocation of his clinical privileges as approved by the Surgeon General and by removing all derogatory information/entries indicating his referral for psychiatric evaluation.

APPLICANT STATES : That on reporting for his initial tour of active duty, he was wrongfully required to prematurely apply for full internal medicine privileges. In violation of applicable regulations, he was assigned unsupervised duties as an internist and the command then used that improperly created status as justification for removing his privileges and denying him the right to withdraw the improperly presented application for privileges. He goes on to state, in effect, that he had not actively practiced his specialty in over 10 years and was promised that the Army would provide him the requisite refresher training essential for him to regain his skills as an internist. He also states that he was denied his due process rights to an impartial hearing and did not receive the training he was promised. He continues by stating that the actions by the Army to discredit his credentials has a far reaching effect beyond the Army that will have an everlasting negative affect on his career. Accordingly, his records should be cleared of any negative information that resulted from the Army’s failure to live up to its promises of providing the refresher training he needed to bring him back to standards.

COUNSEL CONTENDS : In effect, that the Department unjustly denied the applicant his due process rights by not providing him the opportunity to review all of the records, documents, and information that was used by Departmental officials in determining that his privileges should be withdrawn so that he could effectively appeal his case. He further contends that had the Department honored its promise to provide the necessary refresher training, the entire incident could have been avoided. In support of the application, he submits an evaluation from an independent physician regarding the applicant’s treatment of the patients whom he was accused of providing substandard treatment.

EVIDENCE OF RECORD : The applicant's military records show:

He was commissioned as a major in the USAR, Medical Corps, on 25 July 1984 at the age of 49. He initially attended drills with a USAR unit in Pennsylvania that provided support to the Veterans hospital where he was employed. He attended his basic course in June 1986 and was assigned to a Troop Program Unit (TPU) in Folsom, Pennsylvania in which he served as the commander of a seven person orthopedic surgical detachment. He was promoted to the rank of lieutenant colonel on 24 July 1986.

He entered active duty on 2 January 1990 (at age 55) and was initially assigned to Germany to perform duties as a staff internist in a general hospital in Nuernberg. He submitted his application for conditional credentialing privileges on 17 January 1990.

On 28 March 1990 he was notified that his clinical privileges were placed in abeyance and that he was assigned to non-clinical duties pending a review by a credentials hearing committee to determine if his privileges should be permanently suspended, restricted, or revoked. He was further informed of his right to be present at the hearing, to present evidence and call witnesses in his own behalf, and to consult and be advised by counsel.

The credentials hearing committee met on 18 April 1990 and after hearing testimony and reviewing all of the evidence presented, unanimously recommended that the applicant’s category III internal medicine privileges be revoked, that an impaired provider evaluation be conducted, and that consideration be given to allowing the applicant to apply for general medical officer privileges, regulations permitting, and provide close monitoring of his practice.

The commander deferred a final decision regarding the applicant’s clinical privileges until a neuropsychological evaluation could be completed. A preliminary report of the psychological testing suggested that the applicant had subtle deficits consistent with mild cerebral deterioration. For that reason, the applicant was referred to Walter Reed Army Medical Center for further evaluation. That evaluation indicated patterns of deficits which were consistent with an organic brain dysfunction, but the diagnosis was inconclusive. A recommendation was made to conduct a reevaluation in 6 months.

After reviewing the credential committee’s recommendations and the reports of neuropsychological evaluations, the commander determined that the applicant’s clinical privileges would be reduced to those deemed appropriate for a general medical officer working under direct supervision and that a copy of the notification of final actions by the credentials hearing committee be placed in the applicant’s practitioner’s credentials file. The applicant appealed the decision to his medical command headquarters. His appeal was denied after being reviewed by an appeals committee. He further appealed the action to the Office of The Surgeon General (OTSG). After a thorough review of the applicant’s case, the OTSG determined that the actions taken in regards to his clinical privileges were proper and denied his appeal.

The applicant’s initial officer evaluation report (OER) on active duty covered the period 2 January 1990 through 11 May 1990. Based on the aforementioned circumstances, comments were made on the OER which caused the OER to be referred to the applicant for comment. The applicant submitted a three page rebuttal to the OER that was made a matter of record.

The applicant was transferred to Fort Eustis, Virginia on 12 May 1990 for duty as a general medical officer. He was granted general medical and emergency room privileges under supervision. On 1 January 1993 he was honorably released from active duty on his scheduled expiration of term of service and transferred back to his USAR unit in Pennsylvania.

The statement submitted by the applicant’s counsel as an independent evaluation of the applicant’s treatment of several patients whom he was accused of providing improper treatment is from a physician at the Medical College of Virginia. The independent physician contends that the criticisms of the applicant’s care of five cases was unjustly harsh and in some cases unfounded. The physician also contends that the applicant was well qualified for his assignment in terms of formal training, but lacked experience. He also opined that the applicant required refresher training and that he had realized as much before he agreed to serve as an internist, believing that he would receive refresher training.

In the processing of this case an advisory opinion was obtained from the OTSG. The OTSG pointed out that the applicant’s case was reviewed at three levels. At all three levels separate clinical evaluations and staff judge advocate reviews for legal sufficiency were performed. The OTSG opined that the core of the issue is whether the applicant was promised refresher training after being accessed to active duty. All parties concerned denied, in writing, that any such promise was made. Furthermore, the OTSG asserts that as a matter of policy, the Army Medical Department (AMEDD) would not agree to bring a fully trained physician to active duty for retraining prior to full assignment. The OTSG went on to state that there was sufficient evidence to show that the applicant’s provision of care was substandard and that he attempted to manage critically ill patients and perform procedures that he was not trained to perform while knowing that his skills and knowledge were not what they should be. Consequently, the OTSG recommended that no change be made to the official records.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2. The applicant’s contention that he was promised refresher training to bring him up to the standards of an internist appears to be without merit. The applicant has failed to show through the evidence submitted with his application or the evidence of record that such was the case. All of the available records indicate that the applicant was accessed as a fully trained internist and that he was immediately assigned to an overseas duty location after being accessed to active duty. The Board also notes that the applicant had experience in the USAR as a medical corps officer and it is reasonable to presume that he would have questioned the issue of refresher training either prior to his being transferred overseas or prior to his submission of his request for clinical privileges.

3. The applicant’s contention that he was denied due process because he did not receive an impartial hearing also appears to be without merit. There is no indication in the available records to show that the applicant did not receive a fair and impartial hearing. In fact, it appears that the commander took the necessary precautions to ensure that the applicant’s rights were protected, and that he was given the benefit of any doubt before approving the findings and recommendations of the credentials committee.

4. The Board notes the independent physician’s assessment of the applicant’s care of five patients to whom he was accused of providing inappropriate treatment. However, the Board is not aware of the scope of this physician’s review or the context in which his assessment was made. Therefore, it would not be appropriate to accept the judgment of this physician over a committee of physicians who were present in the overseas command and who not only had access to the necessary records, but the applicant as well. Therefore, in the absence of evidence to the contrary, it must be presumed that the actions by the credentials committee were appropriate and in accordance with applicable regulations.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE :

GRANT

GRANT FORMAL HEARING

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director