IN THE CASE OF:
BOARD DATE: 25 September 2008
DOCKET NUMBER: AR20080002864
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests:
a. reinstatement of his clinical privileges to their previous level at Evans Army Community Hospital without prejudice,
b. reestablishment of his Adolescent Clinic at Evans Army Community Hospital with appropriate staffing,
c. restoration of all discretionary specialty bonuses at the maximum level for his specialties,
d. un-titling and/or destruction of all documents pertaining to this investigation conducted by any federal agency,
e. withdrawing all notifications of adverse credentialing actions from the National Practitioner's Database (NPDB) and the Federation of State Licensing Boards,
f. issuing notifications to all agencies and individuals that have been provided any information concerning adverse actions or have been interviewed in the collection of information in this investigation be notified that the patient complaint was reviewed by a qualified panel of experts and determined to be unfounded,
g. take all possible steps to have the Army to assist him in re-establishing his personal reputation as a highly competent healthcare provider both in the medical community and the patient community,
h. return his security clearance to its previous level, and
i. punish those responsible for making false official statements in violation of federal statutes regarding the unauthorized release of Medical Quality Assurance records and information be prevented from further illegal and statutorily punishable release of this protected information.
2. The applicant states that the decision by the Acting Surgeon General to approve the adverse credentialing action, he was forced to retire from active duty on 30 June 2008. In light of the significant damage caused by the unjust revocation of his medical credentials and the resulting requirement to retire, the inaccurate report by the Medical Command (MEDCOM) to the NPDB and others, and the permanent impediment to employment as a physician, he requests the Board to expedite the review of his request prior to his retirement date.
3. The applicant provided a Table of Contents that included his self-authored statement describing a chronological summary, procedural errors, substantive errors in the MEDCOM Report, and substantive errors in the Hearing Board Findings and Recommendations, and Conclusion; Adolescent Citations; Exhibits A through AR; Tabs 1 through 11; and the Hearing Board Proceedings, in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he graduated from the U.S. Military Academy, West Point, New York, with a degree in civil engineering in 1979. He was commissioned as a second lieutenant in the Field Artillery (FA) Corps of the Regular Army on 6 June 1979. He subsequently attended the FA Officer Basic Course, was promoted to first lieutenant and captain, and was honorably discharged, by reason of unqualified resignation, on 14 September 1987.
2. The applicant's records further show that he was appointed as a FA captain in the U.S. Army Reserve (USAR) on 14 September 1987. He subsequently attended Boston University, Boston, Massachusetts, and the University of Missouri, Health Sciences, Columbia, Missouri, and graduated as a medical doctor in Osteopathy in 1992. He entered active duty as a Health Services (HS) officer, in the rank of major on 31 May 1992 and was assigned to William Beaumont Army Medical Center, Fort Bliss, Texas.
3. The applicant's records also show he was re-branched into the Medical Corps (MC) in July 1993, completed his Family Practice Residency at Madigan Army Medical Center, Fort Lewis, Washington, from 1 July 1993 through 30 June 1995, and a Fellowship in Adolescent Medicine, from 1 July 1995 to 30 June 1997, at the Naval Medical Center, San Diego, California. He served in several staff and leadership positions and was promoted to lieutenant colonel on 21 October 1997 and colonel on 21 October 2003.
4. The applicant's awards and decorations include the Meritorious Service Medal (5th Award), the Army Achievement Medal (2nd award), the National Defense Service Medal (3rd Award), the Global war on Terrorism Service Medal, the Army Service Ribbon, the Overseas Service Ribbon (2nd Award), the Ranger Tab, the Expert Marksmanship Qualification Badges with Rifle, Pistol, and Grenade Bars, the Flight Surgeon Badge, the Parachutist Badge, and the Air Assault Badge.
5. On or around 31 March 2005, the family of an adolescent patient who was examined by the applicant felt the examination was questionable and complained to the Commander, Evans Army Community Hospital about the applicant. The family members stated that the examination was too long and too extensive and that no chaperone was present. In summary, the complaint was centered on the fact that the applicant may have inappropriately touched a male adolescent patient and exhibited unprofessional conduct.
6. An investigative officer (IO) was subsequently appointed to investigate the allegations of impropriety towards a minor, a patient, by the applicant. The IO reviewed documents, obtained statements, conducted interviews, requested information, and contacted individuals. He concluded that the applicants actions fell far from his peers in Adolescent Medicine and that the applicant was only known provider to have a record of complain and a previous adverse counseling. He further concluded that the applicant was unable to manage his practice in such a manner as to ensure the comfort and safety of his patients. In such cases where someone cannot manage themselves, it is required that the medical staff limits his privileges so that can be accomplished. The IO recommended the applicants privileges be limited by an adverse privileging action to disallow his examination of boys unless chaperoned. He further recommended the applicants removal from any supervision of medical staff, residents, or other providers since his judgment has been shown to be flawed, by his repeated inappropriate actions, and lack of insight on methods to control them. The IO also concluded that the applicant had the potential to use his seniority and practiced ingratiating personality to influence others to allow him to continue his actions. The IO further recommended the applicants reassignment to a medical center where he could be observed more closely by physicians in his field.
7. On 18 May 2005, an Ad Hoc Credentials Committee convened in the Nursing Conference Room, Evans Army Community Hospital, Fort Carson, Colorado, and decided to place the applicant's privileges in abeyance. As a result, and as required by Army Regulation 40-68, the applicant's clinical privileges were summarily suspended pending a formal per review.
8. On 5 June 2005, and External Peer Review Panel was conducted in accordance with chapter 10 of Army Regulation 40-68 (Clinical Quality Management). The panel reviewed the nature of the circumstances surrounding the events in question regarding the applicant, to determine the validity of the allegations and make recommendations. The panel unanimously recommended reinstatement, the return of privileges to the original state with a recommendation that a chaperone be present when the applicant examines the genitalia of adolescents, age 14 and under, either a legal guardian or a parent.
9. On 14 June 2005, the Credentials Committee met at MEDDAC, Fort Carson, Colorado, to consider the results of the peer review. After a review of the External Peer Review Panel findings and recommendations, the Credentialing Committee also recommended the applicant's privileges be reinstated.
10. On 15 June 2005, an Ad Hoc Credentials Committee meeting convened to discuss the validity of allegations and make recommendations to the commander regarding the applicant's clinical privileges. The Committee members recommended a permanent restriction be placed on all or a portion of the applicant's clinical privileges.
11. On 8 August 2005, a Credentialing Hearing was conducted at the request of the applicant concerning allegations that may adversely affect his clinical privileges. Upon review of all the evidence and testimony, the Credentialing Hearing Committee determined that it did not have sufficient information to determine whether the applicant's conduct met the standards of care. The Committee decided to reconvene at a later date.
12. On 7 September 2005, the Credentialing Hearing Committee reconvened at Evans Army Community Hospital, Fort Carson, Colorado. The applicant and his counsel were present. The Committee reported two findings. First, the applicant performed a genital examination on a 12-year old adolescent male and that the examination was initiated as a hernia. Second, the applicant follows a pattern of doing genital examination on a majority of adolescent males that includes milking their organ to assess for discharge, measuring the organ length, and measuring the organ circumference. These were often done without a chaperone and the applicant admitted to not using gloves. The Committee concluded that the applicant's practice of genito-urinary examinations, were not supported by his peers in adolescent medicine.
13. On 18 November 2005, the Credentialing Committee recommended the applicant's privileges be restricted and the applicant not be allowed to see male patients under the age of 18 for a period of 2 years, unless new information became available.
14. On 14 December 2005, the applicant requested reconsideration of Hearing Board Findings and Recommendations. He detailed procedural errors, membership irregularities, informal peer review actions, the use of hearsay and unlawfully obtained evidence, the failure to disclose evidence, and compromise of the facts finding process. He also detailed substantive errors found in the record that did not support the Credential Committee's Findings and Recommendations.
15. On 4 January 2006, after reviewing the quality assurance investigation, the peer review , the Hearing Committee Findings and Recommendations, the Credentialing Committee proceedings, the available evidence, and the applicant's request for reconsideration, the Commander, Evans Army Community Hospital, Fort Carson, Colorado, revoked the applicant's privileges. The applicant's clinical privileges were revoked for performing excessive genitourinary examinations on male adolescents without chaperons and gloves. The examinations were isolated to male adolescent patients, including patients with chief complaints unrelated to genitourinary. A review of the applicant's last 50 consecutive male patient charts found that 33 underwent genitourinary examinations. The examinations included pulling the organ to obtain a stretch length, measuring circumference, and milking the organ up to the urethral orifice without chaperones or gloves. The basis of this action to revoke his clinical privileges was unprofessional conduct
16. On 20 January 2006, the applicant requested reconsideration of his Adverse P4rivileging Action (the decision to revoke his clinical privileges). He argued that the Commander had no legal authority to change the findings of the formal peer review panel that the standards of care were met, that the voting procedures were not met, and that the Administrative Procedures Act was violated.
17. On 27 January 2006, the Commander reviewed the applicant's request for a second reconsideration and determined that there was no new evidence presented to change his earlier decision to revoke the applicant's privileges.
18. On 19 September 2006, and subsequent to the applicant's appeal, the Great Plains Regional Medical Command Appeals Committee upheld the revocation of the applicant's privileges citing the applicant's practice and methodology as harmful to patients. The Commander, Great Plains Regional Medical Command, subsequently forwarded the action to The Surgeon General on 20 August 2006.
19. On 22 June 2007, The Surgeon general conducted a comprehensive review of the entire record and concluded that the revocation of the applicant's privileges was proper. The applicant was accordingly notified and the case was reported to the National Practitioner Data Bank (NPDB).
20. On 30 June 2008, the applicant retired from the Army. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issue at the time shows he was voluntarily requested retirement and was retired in accordance with paragraph 6-13c(1) of Army Regulation 600-8-24 (Officer Transfer and Discharges).
14. In his self-authored statement, the applicant makes the following arguments:
a. This case was initiated following a complaint filed by a Mrs. B relating to her 13 year old nephew, John. John was examined at the Adolescent Clinic at Evans Army Community Hospital on March 31, 2005. As she was leaving the hospital and discussing the examination with her nephew, a person who overheard the discussion informed her that it was illegal to conduct an examination without a chaperone. That comment apparently generated complaints to the hospital and the Criminal Investigation Command resulting in the ensuing investigation.
b. The IO was directed by the MEDDAC Commander to conduct an investigation. Based on his investigation, the IO determined that:
(1) There was no evidence that [Applicant] received any sexual gratification from the examination.
(2) Sexual misconduct was not a part of the complaint.
(3) That three adolescents, John and two children of COL Ls neighbor (identified during a conversation between COL L and his neighbor)- said that they never felt that [Applicant] acted improperly. The two Jones children were extensively questioned by their parents.
(4) That [Applicant]s procedures, including measurement of the adolescents genitalia were fully documented in his patients records.
(5) That [Applicant]s computer was extensively searched and no evidence of inappropriate material was discovered. It was searched for separate documentation of excessive or inappropriate physical exams and none were discovered.
(6) That [Applicant] used the CHCS II computer medical record to document Taylors patient visit. CHCS II records any changes made to a medical record and inserts record of changes along with date and time stamp. A review of the CHCS II record confirmed that no changes or inserts were made from the time that the record was originally entered.
(7) That [Applicant's] procedure was supported by professional literature on adolescent medicine.
(8) Finally, the IO incorrectly cited and reported as fact, an incomplete report in the training file of [Applicant] that referenced a patient complaint from ten years ago when [Applicant] was in training. This unauthorized disclosure of information from a Medical Quality Assurance (MQA) record is in violation of DOD Directive 6025.13 paragraph 4.2 which states, MQA records and information created by or for the Department of Defense as part of a MQA program are confidential and privileged in accordance with, addressed in detail in paragraph 18 of this document. This inaccurate and incomplete information was apparently provided to the IO by LTC Di who was, at the time, the Consultant to the Surgeon General for Adolescent Medicine. The actual resolution of the formal review of the patient complaint which was provided to IO at the time of his interview with [Applicant], determined that, that the completeness of this health care providers examinations is commendable and in several instances has uncovered subtle diagnoses that may otherwise have gone undetected. (Emphasis added.). Further, the determination of the Admiral in Command of the Naval Medical Center San Diego, Admiral N, determined that the patient complaint was unfounded and completely without merit.
d. The remainder of the IOs report consists of speculation and conjecture unrelated to his findings, addressed more fully in paragraph 19 of this document.
e. The IOs report was forwarded to the hospital Credentials Committee who voted to convene a formal Peer Review Panel to determine if the Standard of Care was met in accordance with AR 40-68. The Function of the Peer Review Panel is to determine whether or not, given an adverse event or malpractice claim, recognized standards of practice were followed or the SOC [Standard of Care] was met by the individual in question. Professional qualifications; adherence to established professional standards for the discipline; the merits of any allegations of substandard skill, abilities, or performance; and recommendations for adverse privileging/practice or administrative action to be taken concerning these complaints are also considered. (Emphasis added)
f. The external Peer Review Panel, the sole entity recognized by AR 40-68, paragraph 6-4, with the regulatory authority to determine the Standard of Care, voted unanimously that [Applicant]s practice was within the Standard of Care on 8 June 2005.
g. The Credentials Committee met on 14 June 2005 and, after considering the recommendation of the Peer Review Panel, voted to reinstate [Applicant]s privileges.
h. The Deputy Commander for Clinical Services, COL J., in private conversation disclosed to [Applicant] that he recommended that the outgoing MEDDAC Commander, COL L, not take final action on the recommendation because he might make the wrong decision.
i. In violation of AR 40-68, paragraph 6-4, which specifies that, A formal peer review is required whenever a SOC [Standard of Care] determination must be made, or when the staff members performance is such that an adverse practice action (for example, limitation of duty or removal from the clinical setting) is considered, the new MEDDAC Commander, COL J. C. ordered an informal peer review of [Applicant]s patient medical records. On 20 June 2005, LTC A. B., an Ear, Nose, and Throat Surgeon, submitted a report of his informal peer review to COL J. J., COL J. C. and COL R. N. , Subject: What I did on my summer vacation.
j. For reasons that are unclear, but apparently unsolicited, and further evidence of his biased interference, on 23 June 2005, LTC Di., sent a letter to the MEDDAC Commander, COL J. C., in which he concludes that [Applicant]s examinations were excessive and at times inappropriate. He also cites the criminal investigation in San Diego, and opines that [Applicant] is a risk to our adolescent patients. His conclusion is inappropriate, and not based on any factual findings. LTC Di. also provided a sworn statement to CID which was subsequently incorporated into these proceedings. In his sworn statement, LTC Di. provides testimony concerning details of events that he did not personally witness. The testimony and statements of multiple, actual witnesses to the events he describes, conclusively disprove LTC Ds representation of the events. In his letter to COL J. C, LTC Di. provides his opinion of the appropriateness of [Applicant]s evaluation and treatment of Adolescent patient. This opinion constitutes a determination of the Standard of Care which is not authorized by regulation:
(1) AR 40-68, paragraph 6-1 specifies, in the context of a possible adverse privileging action, the process takes on a greater degree of formality and involves fact finding, study, and analysis of a single incident that resulted in significant harm to a patient or a series of events involving a professionals performance, conduct, or condition. At no time in the record of these proceedings does the record reflect that LTC Di. was ever given this authority.
(2) Further, LTC Di. did not, examine information obtained from the structured, unbiased/inquiry and other relevant materials, as is required in AR 40-68, paragraph 6-4, and he therefore has no basis to determine if [Applicants] examination and treatment of patients is appropriate.
(3) As is specified in AR 40-68, paragraph 6-4, A formal peer review is required whenever a SOC [Standard of Care] determination must be made, or when a staff members performance is such that an adverse practice action (for example, limitation of duty or removal from the clinical setting) is considered. LTC D. was never a member of the duly constituted, Formal Peer Review Panel.
(4) In AR 40-68 paragraph 10-6 e.(2)(c), the regulation specifies that A peer review panel will be convened to evaluate the available information and to determine if the SOC was met. LTC Di.s unauthorized revision of the SOC was inappropriately introduced to the Credentials Committee and allowed to remain for consideration as an official document in violation of [Applicant]s right to due process as is guaranteed in AR 40-68 paragraphs 6-4a, and 10-6 e.(2)(c).
k. The day after the receipt of Dr. Dis letter, the MEDDAC Commander directed the Credentials Committee to reconsider the evidence and re-vote. An Ad Hoc Credentials Committee, composed of only three personnel recognized by AR 40-68 paragraph 8-5b(2) and (5), to be actual voting members, convened on 27 June 2005, and recommended that [Applicant]s clinical privileges be restricted. The MEDDAC Commander notified [Applicant] of his intention to restrict his clinical privileges and [Applicant] exercised his right to a Hearing Board that convened on 8 August 2005.
l. Following the hearing on 8 August 2005, the Board excused [Applicant] and retired, apparently to deliberate. However, the Board did not deliberate. COL J. the Board Chairman, sent an email to LTC Di. asking him to conduct a poll of professionals involved in adolescent treatment. The results of this poll were then presented to the Hearing Board Committee by COL J. during their subsequent, private deliberations.
(1) [Applicant] was not informed of this poll in violation of AR 40-68 paragraph 10-7b(1) which requires, Prior to the hearing, the provider will have access to all information that will be presented for consideration at the hearing. This requirement is further reinforced by paragraph 10-8b which requires the chairperson of the Hearing Board to provide, all pertinent documents applicable to the case.
(2) Since the poll was conducted after completion of the Hearing Board and [Applicant] did not even know of the polls existence, he did not have the opportunity to, be present, to submit evidence, to question witnesses called, and to call witnesses on his/her behalf. This violates provisions of AR 40-68 paragraph 10-8 b(4).
(3) The poll itself violates AR 40-68, paragraph 6-1 because it is an additional revision to the Standard of Care which may only be determined by a Formal Peer Review Panel. The Formal Peer Review Panel had unanimously determined that [Applicant]s practice, to include his physical examination, indications for examination, and techniques of examination, all within the Standard of Care.
(4) After consideration of the results of the inappropriately conducted poll, The Hearing Board Committee completed their deliberations and voted.
(5) CPT Wa. Fa., the Senior Defense Counsel at Fort Carson and [Applicants] attorney, brought this error and other errors in the proceedings to the MEDDAC Commanders attention by memorandum dated 23 September 2005. That memorandum and the procedural errors cited therein are adopted and incorporated in this request.
m. The remedy to improper polling and illegal revision of the Standard of Care, was to reconvene the board to give [Applicant] an opportunity to present evidence. We submit that the remedy was inadequate. Clearly, the Board members had made a decision after the polling results were provided. At this stage, the board members and the process were heavily tainted by irregular practices: improper use of records that were unlawfully maintained, informal peer review of medical records conducted by an unqualified reviewer, the MEDDAC Commanders order to revote that appeared to direct a different outcome, and the biased survey conducted solely by LTC Di. The Hearing Board was reconvened with two members absent on 21 October 2005. The Hearing Board issued new findings and recommendations by letter dated 21 November 2005. No explanation was provided for the absence of two members of the Hearing Board.
n. AR 40-68 paragraph 10-6f(7)(b) requires that the MEDDAC Commander state his intended course of action concerning any adverse privileging action. In his Memorandum, Subject: Notice of Proposed Adverse Clinical Privileging/Practice Action by the Commander, dated 7 Jul 2005, COL C. stated that it was his intent to restrict [Applicants] privileges. Contrary to the recommendations of the external Peer Review Panel which recommended reinstatement, the Hearing Board, and the Credentials Committee, and the stated intent of this letter of notification, the MEDDAC Commander revoked [Applicants] clinical privileges on 27 January 2006. [Applicants] request for reconsideration was denied by the Acting Surgeon General on 22 June 2007.
o. With no further administrative recourse available to [Applicant], this request with supporting documentation and additional evidence is forwarded to the Army Board for Correction of Military Records for review and corrective action based on the numerous procedural and substantive errors, that have resulted in a grave injustice to [Applicant], his family, his patients, and to his nearly 30 years of selfless service.
p. A review of the foregoing record of proceedings reveals a number of significant procedural and substantive infirmities in the Hearing Boards disposition of the matter involving [Applicant]s credentials. The numerous procedural errors and the irregularities of this investigation absolutely violate [Applicant]s due process rights prescribed by AR 40-68 paragraph 10-6 e.(2)(c). As prescribed throughout AR 40-68, integrity of the process to evaluate the quality of medical service is a priority concern and has been compromised in a number ways by the MEDDAC Commander, Credentials Committee, and the Hearing Board as stated below.
q. In the first procedural error the MEDDAC Commanders did not meet the most basic regulatory requirements necessary to take adverse privileging action; AR 40-68 paragraph 10-7 a. states, When the Commanders proposed action is to deny, suspend, restrict, or revoke the providers privileges, the following requirements apply. (1) The written notice to the provider will specify the deficiencies sustained by the peer review process, the proposed adverse privileging action to be taken by the Commander, and the right of the provider to request and to be present at a formal hearing. (Emphasis added) There were no deficiencies sustained by the formal peer review.
r. AR 40-68 paragraph 6-4 further specifies, A formal peer review is required whenever a Standard of Care determination must be made or when the staff members performance is such that an adverse practice action (for example, limitation of duty or removal from the clinical setting) is considered.
(1). The hospital commissioned an external, Formal Peer Review Panel with members specializing in Adolescent Medicine, Pediatrics, and Family Medicine to determine if [Applicant]s practice was within the Standard of Care. These senior primary care physicians, external to the hospital and outside of the Chain of Command or rating relationship, conducted a thorough review of all of the medical records, Credentials Committee concerns, and various reports submitted by the hospital leadership.
(2) The Formal Peer Review Panel voted unanimously that [Applicants] practice was within the Standard of Care on 8 June 2005. There were no dissenting opinions. Because there were no deficiencies sustained by the formal peer review, there was no basis for a Hearing Board or any adverse privileging action.
s. A second procedural error occurred when incomplete, improperly obtained and maintained documents were manipulated to discredit [Applicant]. The illegally obtained documents accompanied by unfounded and derogatory comments were apparently introduced to COL J. in his initial conversations with LTC Di., prior to the initial Abeyance action, and introduced to the Credentials Committee in its meeting of 17 May 2005, provided to the CID, to COL A. prior to his AR 40-68 investigation, and various other groups and components involved in making decisions, as well as others with no direct or regulatory involvement at all.
(1) While AR 40-68 paragraph 10-8 states the rules of evidence do not apply in an administrative action regarding credentialing, DOD Directive 6025.13 paragraph 4.2 states, MQA records and information created by or for the Department of Defense as part of a MQA program are confidential and privileged in accordance with 10 U.S.C.A. 1102.
(2) LTC Di.s sworn statement references such an MQA investigation of [Applicant] in San Diego, for which Dr. Di. has no primary knowledge. (Hearing Board pp. 25-42) LTC Di. was not in San Diego at the time of either the incident or the investigation. In his sworn statement, LTC Di. states that he was briefed by CDR A.; that he knew that the information was not to be released by order of the Admiral in Command of the Naval Medical Center; and that he knowingly violated this order and proceeded to inappropriately notify a host of [Applicants] superiors, peers, and subordinates. He subsequently provided a copy of improperly maintained, protected documents related to the MQA preliminary investigation into [Applicants] practice to a Ms. F. Ms. F. maintains per her own sworn statement that the copy was provided to her by LTC Di.
(3) Even the mention of the contents of this Medical Quality Assurance Record is a direct violation of DOD Directive 6040.37 and DOD Directive 6025.13 and the person(s) involved in the disclosure of such information are subject to specified penalty.
(4) LTC Dis statement indicates that he knows that all records other than those he maintained were destroyed. For Medical Quality Assurance investigations with a finding of unfounded or unsubstantiated, as was the case in the patient complaint referenced by LTC Di. in his sworn statement, both AR 40-68 paragraph 10-6b(2) and paragraph 10-6f.(3)(c) requires that all documents pertaining to the investigation be destroyed. Therefore, no record of the investigation exists and cannot be produced to indict [Applicant]. 10 U.S.C.A. 1102 provides no exception for illegally maintained records.
(5) The formal finding in the investigation in San Diego was unfounded and completely without merit. DOD Dir 6040.37 paragraph 4.4 states, A person or entity having possession of or access to medical QA records or testimony may not disclose the contents of such record or testimony in any manner or for any purpose, except in accordance with reference (b). Further, DOD Dir 6040.37, states, Any person who willfully discloses a medical QA record, other than as provided in reference (b), knowing that such a record is a medical QA record, shall be subject to adverse personnel action
(Emphasis added) LTC Dis sworn statement indicates that both he and CDR A, and possibly Ms. F. have all knowingly violated this provision of the DoD Directives. Apparently, not one of them has been investigated for this admitted violation.
(6) [Applicant] made two formal requests for the record in the possession of Ms. F. that LTC Di. references in accordance with AR 40-68 paragraph 10-7b.(1) which provides that Prior to the hearing, the provider will have access to all information that will be presented for consideration at the hearing. The record was never provided. Presumably either the record does not exist or Ms. F. is aware that she has improperly maintained the record and does not wish to further incriminate herself.
(7) The rationale behind maintaining or destroying MQA records is to either protect the innocent provider or provide a history of concern for the provider who has been found to be a risk to his patients. Accordingly, in [Applicants] case, the complaint was determined after, expert medical review to be unfounded and completely without merit and therefore the record was ordered destroyed to protect his reputation from false claims.
(8) The use of the investigation from San Diego as part of the current actions was inappropriate. Furthermore, selective use of the investigation (allegations without discussion of the actual findings) was unnecessary aggravation. Using the investigation in that manner suggests a subjective agenda.
(9) The Administrative Procedures Act appears to have been violated in this case.
(a) The existence and maintenance of a document that was the source for many of the allegations in this case, the report from Naval Medical Center San Diego, appears to be in violation of Federal Law. These concerns are a result of LTC Dis testimony and supported by Ms. Fs sworn statement in which she confirms that she received these documents from LTC Di. Since LTC Di was not in San Diego at the time of these allegations; he should, therefore have no knowledge of these allegations unless they were maintained and obtained in a manner contrary to the Federal Law.
(b) Title 5, United States Code, 552(a) establishes specific rules and regulations for the maintenance of individual records in a system of records. Violation of this section may subject the United States or its employees to civil as well as criminal sanctions. Section 552a (g)(1) provides civil remedies when an agency refuses to comply with the provisions of the Act or fails to maintain records in accordance with the Act. Section 552a(i)(1) provides criminal penalties. Specifically, 552a(i)(2) provides (2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor
This investigation has been driven by documents that were maintained in violation of Federal Law and were not disclosed, also in violation of Federal Law.
(10) Since the record of the San Diego investigation is not maintained in a system of records, it is not discoverable, and LTC Dis references to the investigation must be excluded from any evidence presented to the AR 40-68 Investigation conducted by Dr. A, the Hearing Board, Credentials Committee, CID, or the MEDDAC Commander.
t. In the third procedural error, the IO apparently ignored the official documents from Admiral R. A. N., Commander, Naval Medical Center San Diego, and relied on LTC Dis recollection of an events that occurred in San Diego while he was stationed in Hawaii. Dr N provided the official documents to the IO at the time of his investigation, unequivocally documenting that the above complaint was unfounded, and completely without merit. In AR 40-68 paragraph 10-6d(1), the investigator is charged with the responsibility that Every effort be made to ensure a thorough, fair, honest, and unbiased review of the matter(s) under investigation. Even though, and despite his findings that there was no evidence of any illegal or unprofessional behavior, the IO produced a negative report.
(1) The official report of the reviewing physician in San Diego stated, In conclusion I have determined the following: (a) all GU examinations were medically indicated. (b) all of the GU examinations were done as part of a comprehensive workup. (c) in my opinion after reviewing these records I do not think that these examinations were a subterfuge for the sole purpose of performing a GU examination. 6. Further, I find that there is no evidence that these examinations, GU or otherwise were inappropriate and in fact find that the completeness of this health care providers examinations is commendable and in several instances has uncovered subtle diagnoses that may otherwise have gone undetected. (Emphasis added.)
(2) Conclusions and recommendations in an AR 40-68 investigation must be supported by factual findings. Accusations against [Applicant] determined to be unfounded and completely without merit after appropriate review and command approval in San Diego, related to the IO by LTC Di who was actually stationed in Hawaii at the time of both the incident and ensuing investigation, were referenced by the IO in his Report on AR 40-68 Investigation. Contrary to the regulatory guidance in AR 40-68 paragraph 10-6d(1), inclusion of reference to this incident appears to be unfair, dishonest, and biased. As noted above, all documents pertaining to the investigation were ordered destroyed because the Commander, Naval Medical Center San Diego, exercising his regulatory command authority as specified by regulations, determined that the accusations were unfounded and completely without merit. This situation should never have been included in Dr. As report of investigation. [Applicant] provided copies of these documents to the IO for review, in the presence of JAG Counsel, MAJ W. In formulating his conclusions and recommendations the IO did not reference the Commander, Naval Medical Center San Diegos determination final determination in the investigation which completely exonerated [Applicant]. AR 40-68, paragraph 10-6 d(1) specifically requires that Every effort must be made to ensure a thorough, fair, honest, and unbiased review of the matter(s) under investigation. Dr. As inclusion of LTC Dis unsupported accusations, and the omission of evidence totally exonerating [Applicant], gives the appearance of inappropriate bias and subjectivity which does not meet the basic intent of the regulation. Inclusion of information disclosed from improperly maintained documents which have no legal provision for release as referenced in 10 U.S.C.A. 1102 above, contributed immeasurably to the adverse outcome of this credentialing action.
u. The fourth procedural error was in the denial or delay of access to information being considered at the hearing which was repeated on at least four separate occasions during the course of this proceeding. In AR 40-68 10-7 b(1). Prior to the hearing the provider will have access to all information that will be presented for consideration at the hearing. [Applicant] requested copies of all materials pertaining to this action on 12 Jul 2005. The request was acknowledged by COL J.
(1) The first violation of this regulatory requirement occurred when the statements made by LTC Di, Ms. F, MAJ Gr, and the Brexxxx family were not provided to [Applicant] until Sunday, 7 August 2005, the afternoon before the Hearing Board. In AR 40-68 paragraph 10-8b.(1) the Chairperson of the Hearing Board is required to deliver all pertinent documents applicable to the case, and the names of witnesses who will be called to testify at the hearing. The regulation further specifies that the Hearing Board be scheduled to begin within 10 duty days of notification, but no less than 5 duty days (AR 40-68 paragraph 10-8 b.2.), presumably to allow the provider sufficient time to review documents and confer with legal counsel if necessary. Providing critical documents that were produced months earlier, on the Sunday afternoon before the hearing began, effectively denied [Applicant] the benefit of counsel and does not meet the intent of the regulation.
(2) The second violation occurred following the completion of [Applicant]s testimony to the Hearing Board on 8 August 2005. After the board members began their deliberation, they requested a poll be conducted by LTC Di.
1. The provisions of AR 40-68, paragraph 10-7 b.(1), require that, Prior to the hearing, the provider will have access to all information that will be presented for consideration at the hearing. The poll was conducted after the Hearing Board had concluded; the information was not available to [Applicant] prior to the hearing.
2. Considering the poll in private, and outside the Hearing Board, the Hearing Board further violated the due process and regulatory safeguards of AR 40-68 10-8b.(4) which requires that [the provider has a] right to be present, to submit evidence, to question witnesses called, and to call witnesses on his/her behalf. The poll included the testimony of witnesses that [Applicant] could not question.
3. The Hearing Board further used the poll as documented in Notice of Additional Evidence, to improperly revise the Standard of Care determination of the Formal Peer Review Panel, violating AR 40-68 paragraph 6-4 which specifies that only a Formal Peer Review Panel may determine the Standard of Care.
4. In addition to the regulatory violations listed above, the use of the poll results was flawed by ascertainment bias. Only selected responses supporting the apparently preconceived opinion of the documents author were cited in the improper revision of the Standard of Care as reported in the Credentials Hearing, Findings and Recommendation, COL Br. Ne., Dated 8 September 2005. Because the poll was conducted in secret and the results deliberated in private, [Applicant] had no opportunity to examine, refute, or provide expert testimony in his defense before the Hearing Board solidified their internal debate and voted their decision.
(3) The third violation of [Applicant]s right to access to information to be used in the hearing occurred when no copies of the medical records cited in the informal peer review conducted by Dr. Br were ever provided to [Applicant] as is required by AR 40-68.
(4) The fourth violation occurred when testimony or expert opinions from various sources including Dr. Sh Co, COL Rot Ne, CPT Se Gu, and Dr. Fr OC, were obtained and considered by COL Jo and others in reaching conclusions in the course of the AR 40-68 process. These sources were not named as witnesses in any notification documents pertaining to the formal Hearing Board as is required by regulation in AR 40-68 paragraph 10-8 b.(3). Excerpts of their e-mail responses to COL Jo were provided to the Credentials Committee, the Hearing Board, the MEDDAC Commander, and [Applicant] at various times, however the respondents were never presented as witnesses at any of the formal Hearing Board proceedings, and as such, [Applicant] was not afforded an opportunity to ask questions or clarify their response as required by AR 40-68 paragraph 10-8 b.(4). Their expert opinion was simply quoted by the author of the various findings documents. Specifically what these respondents were asked and how the questions were presented was not generally disclosed to [Applicant]. He was compelled to respond to excerpts from e-mail or letters based solely on speculation of what the respondents were asked, without benefit of context.
v. The fifth procedural error is a flawed record of the Credentialing Committees vote on the findings and recommendations. Hearing Board member MAJ Jo Ta was not present at the Hearing Board Continuation on October 21, 2005 as recorded in the findings and recommendations. Also not present at the continuation was LTC Sh Mi. MAJ Je Sc was present at the continuation but not recorded as being present. The absence of members during any stage of the hearing or deliberations is plain error. The unexplained absence of appointed committee members at a hearing date determined by the hospital leadership leaves questions of whether the date was manipulated so that these members were deliberately excluded in order to sway the final outcome of the vote.
(1) AR 40-68 paragraph 10-8 (g) requires that all Hearing Board Members vote and does not permit abstention. The record is therefore unclear whether MAJ Sc, MAJ Ta or LTC Mi participated in the vote and deliberations, as [Applicant] has not received a record of the Hearing Board attendance during subsequent deliberations or vote participation. [Applicant] therefore cannot ascertain whether any Hearing Board members abstained, contrary to the regulation.
(2) In any event, [Applicant] was prejudiced by the absence of MAJ Ta and LTC Mi at the October 21, 2005 continuation hearing. MAJ Ta, a Board Certified Primary Care (Family) Physician, and LTC Mi, an experienced nurse, were not present to hear live testimony and judge demeanor, question [Applicant] or witnesses, or participate in the deliberations. Consequently, [Applicant] did not have the benefit of their participation or insight. MAJ Ta is an actively practicing primary care provider whose current clinical practice and experience presumably gives him additional insight into not only the [Applicant]s clinical practice, but additionally the conditions under which the services are delivered. Only one other member of the Hearing Board (Dr. Te) was a primary care provider in active primary care clinical practice. The hospital leadership had already exceeded the time limit specified in AR 40-68 to reconvene the Hearing Board, and the absence of these two members of the committee remains unexplained. If for some reason they were not immediately available, [Applicant] was not offered the opportunity to accept a reasonable delay in order to allow these two members to be present. By reconvening the Hearing Board with key, experienced members absent, the overwhelming majority of the remaining members, who were either not involved in primary care medicine or in some cases strictly administrative and/or not involved in the delivery of patient care in any manner, could not benefit from the insight of the absent board members questions, [Applicant]s responses to their questions, or the benefit of their discussion during deliberation.
w. In a sixth procedural error, the Credentials Committee, having received a request for additional information from the MEDDAC Commander, instituted an informal peer review outside the parameters of AR 40-68. Rather than the required Formal Peer Review Panel consisting of three or more qualified peers, this informal review was conducted by a single Ears, Nose, and Throat Surgeon, Dr. Al Br, who was apparently given special criteria by the MEDDAC Commander, designed to net a different result from that of the original formal Peer Review Panel. (Hearing Board pp. 50-67) The Formal Peer Review Panel, properly convened under the authority of AR 40-68, was composed of three senior primary care physicians in the specialties of Adolescent Medicine, Family Practice, and Pediatrics, external to the hospital and outside of the Chain of Command or rating relationship. As defined in AR 40-68 paragraph 6-1, Peer review of day-to-day performance, is integral to the PI [Performance Improvement] and competency assessment for all licensed, certified, and/or registered health care personnel both privileged and non-privileged. This routine review typically focuses on medical records contents and direct observation of performance. However, in the context of a possible adverse privileging/practice action, the process takes on a greater degree of formality and involves fact finding, study, and analysis of a single incident that resulted in significant harm to a patient or a series of events involving a professionals performance, conduct, or condition.
in the event that an action against an individuals license (or other authorizing document) may be contemplated, a formal peer review will be conducted. (Emphasis added) A subsequent informal peer review is inappropriate and cant take precedence over the regulatory Formal Peer Review.
x. In a seventh procedural error, Dr. Br, the provider selected by the hospital leadership to conduct an informal peer review of [Applicants] medical records did not meet the regulatory requirements. In AR 40-68, a peer is defined as, one who is from the same discipline and who has essentially equal qualifications (for example, background, grade, and years experience in the professional capacity/specialty) as the individual in question. Dr. Br, an Ear, Nose, and Throat surgeon does not meet the specified, regulatory qualifications of a peer.
y. The eighth procedural error occurred in the apparent participation in Credentials Committee voting by a disqualified participant. AR 40-68 paragraph 10-6 f. (1)(a) To avoid the possibility of bias, those individuals who are involved in the peer review (for SOC determination or evaluation of the providers conduct, condition, or competence) should not participate as voting members for subsequent credentials or RM committee actions involving the named provider. LTC Br apparently participated in the Credentials Committee voting that took place on 27 Jun 05 after performing a peer review. In the Minutes of the Ad Hoc Credentials Committee, Dr. Br is listed as representing the Department of Surgery. At this meeting in which the participating voting membership had been radically changed from the previous Credentials Committee, vote was taken, changing the previous committees recommendation from reinstatement to restrict. This is in violation of AR 40-68 paragraph 10-6 f. (1)(a), because Dr. Br conducted a peer review of [Applicant]s medical charts for the same committee on 20 June 2005.
(1) There is no record of the vote and the minutes do not indicate that Dr. Br either requested to abstain from the vote as is required, or that a requested abstention was approved by the chairperson. In AR 40-68 paragraph 8-5c(5), if an abstention is requested and approved the minutes will reflect by name, the member who has recused himself/herself from the vote.
(2) If Dr. Br did abstain it then appears there were insufficient members present to constitute a quorum established by AR 40-68 paragraph 8-5 b(3) as a majority (51 percent or greater) of the voting membership.
z. The ninth procedural error occurred when the Hearing Board conducted an additional ad hoc peer review of [Applicant] to determine Standard of Care contrary to the AR 40-68 paragraph 10-6 (f) which outlines the intent and requirements of the peer review process, and in violation of AR 40-68 paragraph 6-1, which requires that the Peer Review Panel be formal. The Hearing Boards polling of Army Adolescent Physicians regarding their practice of treating adolescent males constitutes a de facto Peer Review because this information was used to modify the Standard of Care outside the regulations and further destroys the integrity of the process.
(1) AR 40-68 paragraph 6-10f(1)(b), states that the intent of the peer review process is to focus on how the action under review impacts the providers ability to practice clinically, allows the provider to present a written statement, appear before the committee to clarify statements, and be provided notice of the proceeding. None of these steps were accomplished in the Boards poll and therefore tainted the process without reviewing the literature or personally engaging [Applicant] to clarify his practice.
(2) The polling occurred during Hearing Board deliberations and the inquiry sent to Dr. Nes peers by e-mail was limited to one question:
On an initial visit [sic] (without genital complaint or I guess it could be with) for an adolescent male, do you: 1) milk the penis 2) check penile length and 3) check penile circumference.
HERE ARE MY ANSWERS: 1) No 2) No 3) No.
This is a loaded question presented to selected respondents chosen by LTC Di. His capitalized, emphasized personal response, and even the inclusion of his own response to a question being sent to specialists dependent on his recommendation as the Consultant to the Surgeon General for Adolescent Medicine, for future assignment, gives the appearance of undue influence. The question, posed entirely without context does not explore the reasons when or why [Applicants] practice indicates such examinations on an initial visit, or that the examination takes place in the context of a comprehensive examination on a New Patient with the permission of the patient and their parent. The somewhat informal manner in which the question is posed and the pointedly directive manner in which the personal response is provided does not invite discussion or clarification by poll participants. LTC Dis personal response to his own poll states that under no conceivable circumstance would he ever perform any of the three listed examinations regardless of the patient complaint. (Hearing Board Continuation pp. 244-246) Peer reviewed, published literature suggests that all of these procedures are components of the genitourinary examination and are routinely indicated in the physical examination of an Adolescent Male. Moreover, because the poll was conducted after the completion of the Hearing Board, [Applicant] did not have an opportunity to cross-examine responses to the poll as required by regulation in AR 40-68 10-8b(4).
(3) The poll was distributed by e-mail along with COL Jos derogatory request for assistance, I need your help on the issue that wont die. (Hearing Board pp 244-246) While this message may have been appropriate in privileged communication between COL Jo and LTC Di, it was absolutely inappropriate for LTC Di to add it to the message that he sent to selected military adolescent medicine physicians world-wide. Not only does this inclusion reveal to a small practice community the identity of the physician whose practice is being questioned, it also allows them to incorporate any personality conflicts they may have into their response. The poll was accompanied by the consultants personal, emphasized, negative responses, further compromising the validity. Respondents were instructed to reply to all which would discourage any responses that differed from the Consultants response, particularly if the response disagreed with the implied correct response offered by the Consultant; the individual most responsible for their future assignments. Most valid polls provide means for anonymous responses. Most valid polls do not suggest, imply, or dictate the correct response to the person responding to the poll, particularly if the respondents are in any manner subordinate in rank or position to the person conducting the poll. Most valid polls use validated questions. Validation of written polls is a rigorous process that usually requires that proposed questions be submitted in writing to sample respondents with demographics similar to the intended respondents. The sample respondent is then interviewed to ensure that the written question actually provides the specific information requested by the poll taker.
(4) The response of Dr. Ad who confirmed that he had worked with providers who routinely included penile measurements and urethral stripping in their practice (Hearing Board Continuation p. 246) was never mentioned by COL Jo. It is not addressed in the Credentials Hearing, Findings and Recommendation memorandum dated 8 September 2005, nor is it mentioned in the memorandum dated 18 November 2005. While Dr. Ad was unaware of standardized references for penile circumference, [Applicant] had previously provided the references to the Hearing Board. It is significant to note that Dr. Ad was the only respondent to the poll known to have trained in a civilian Adolescent Medicine Fellowship program, which may account for his expanded awareness of other practices. Documents from [Applicants] Fellowship training, attached to this memorandum, confirm that he was trained to perform these penile measurements, and that the documentation and abbreviations were the same as he currently uses.
(5) Concerning urethral stripping, Dr. Wa Im, who was not included in LTC Dis poll, even though he was LTC Dis immediate predecessor as the Consultant to the Surgeon General for Adolescent Medicine, states during his testimony to the Hearing Board,
the goal of that would be to be able to detect and test urethral discharge. And that can be a useful part of the examination, particularly in certain populations, where you may decide to treat immediately, right away. (p. 270 Hearing Board transcript) (Emphasis added) The findings of the Hearing Board suggest that indications for various screening tests performed, which are documented as proper components of a physical examination in all instructional texts previously referenced, are insufficient. Peer reviewed medical literature recommends that if there is a screening test available that detects the condition, and a cost effective intervention is available to prevent the spread of the disease, then screening is appropriate. For adolescent patients in particular, many sexually transmitted diseases are asymptomatic, but a variety of screening tests are available. The US Department of Health and Human Services goals set forth in Healthy People 2010, lists as one of its specific objectives in adolescents, to reduce Chlamydia trachomatis genital infections. (Presumptive treatment of males for Chlamydia is warranted if a mucopurulent or purulent discharge is noted with urethral stripping.
(6) In Clinical Report: The Prevalence of Asymptomatic Chlamydia trachomatis in Military Dependent Adolescents, conducted by the San Antonio Military Pediatric Center; Brook Army Medical Center/Wilford Hall Air Force Center, published in Military Medicine, July 2002, the researchers found, The overall prevalence rate [of Chlamydia] was 14%, higher than that reported in many high-risk settings, including sexually transmitted disease clinics.
(7) The peer reviews that occurred outside AR 40-68, were in addition to a structured and thorough Formal Peer Review that was previously conducted and resulted in a recommendation to reinstate [Applicant]s privileges. The ad hoc and presumptively subjective and predisposed peer reviews essentially subjected [Applicant] to double jeopardy.
aa. The tenth and most overarching procedural error occurred when the Hearing Board allowed the hearsay evidence submitted by LTC Di to be presented against [Applicant]. In addition to the improper use of documents from a training file that were improperly maintained as discussed in paragraph 18 above, LTC Di apparently conducted a personal investigation outside of the authority of AR 40-68 when he contacted other physicians in a failed attempt to prove his version of events for which he was neither an actual witness in content or context. In formulating their recommendation at the conclusion of deliberations, AR 40-68 paragraph 10-8f Note, instructs and requires that, Each of the boards findings must be supported by a preponderance of the evidence. Each finding must be supported by a greater weight of evidence than supports a contrary conclusion, that is, evidence which, considering all evidence presented, points to a particular conclusion as being more credible and probable than any other conclusion. Multiple documents and testimony of actual witnesses to events conflict with LTC Dis account of events that he did not personally witness. Not one of actual witness to the reported events who testified to the Hearing Board in person or by sworn statement collaborated the accusations in LTC Dis sworn statement. To the further discredit of the hospital leadership, even when incontrovertible evidence from multiple sources was presented to refute LTC Dis sworn statement and expert testimony, not one single portion of LTC Dis testimony was ever excluded from the record.
(1) LTC Di swears in his statement that MAJ Greene, a pediatrics resident at the time, reported to him that [Applicant], in his capacity as clinic proctor, had insisted on repeating a genital examination on a patient that MAJ Green had completed in a routine physical examination in which MAJ Greene had no questions and the patient had no complaints. LTC Di further states that the patient experienced an erection during the examination and that [Applicant] reassured the patient that an erection was not unusual and finished the examination. MAJ Gr, when questioned under oath, could not remember any specifics concerning the name of the patient, the actual age of the patient, or the reason that the patient presented for the appointment. Dr. Gr testifies that the patient did not have an erection. He indicates that the patients response was passive and he didnt make any comments of inappropriateness. (Hearing Board 106-110, 170-172)
(2) MAJ Gr further notes in his sworn statement that this was the only genital exam [Applicant] ever completed in his presence. This being the case, it is obvious that the nature of the examination was instructional, and that some part of Dr. Grs presentation of this particular patient was incomplete or left questions in the mind of [Applicant], who, as the supervising staff physician, was ultimately responsible for the diagnosis and treatment of the patient being evaluated by a resident physician currently in training. Dr. Grs recollection of the events concerning the discussion of the content of the examination, and possible complicating factors concerning this procedure with respect to adolescent males prior to entering the exam room, and the further explanation of the examination to the patient concurrent with the actual performance of the examination, is entirely consistent with [Applicant]s approach to clinical practice, and the training of residents. The factual content of the discussion and treatment of the patient is in strict accordance with Mosbys Guide to Physical Examination [Exhibit J] as well as multiple other adolescent medicine and physical examination references, and clearly demonstrates LTC Dis lack of familiarity with some of the most basic, peer reviewed, published concepts of physical examination as they apply to adolescent patients.
(3) When compared to the testimony of patients and other persons actually present, LTC Di, who was in a different state at the time, separated by the Pacific Ocean, remembers more specific information and details about incidents that he did not personally witness, than the individuals actually involved. Despite the proven inconsistencies of his sworn statements, substantiated by actual witnesses to the events, and the testimony provided at the Hearing Board proceedings, the lack of one single credible piece of evidence, and not one published reference to support his opinion, the hospital leadership continued to seek LTC Dis expert opinion and guidance throughout this investigation, and to make his opinions known to the CID for inclusion into their reports. (Hearing Board pages 25-42)
(4) Unfortunately, LTC Dis bias, perceptions, and statements regarding [Applicant]s practice have been inappropriately admitted as evidence, accepted without apparent scrutiny, and widely distributed in a failed attempt at collaboration, so as to permanently and irrevocably taint and prejudice the processes prescribed under AR 40-68, Chapter 6 and Chapter 10.
ab. The eleventh procedural error occurred when either the Credentials Committee or COL Johnson, again, went outside the constraints of AR 40-68 to gather evidence.
(1) In the Hearing Board recommendation to the MEDDAC Commander, Finding Number 2 states, [Applicant] stressed that the peer review panel found that he met standard of care. In reviewing the panel findings they considered only if there was data on penile length and circumference. They concluded that since the data existed, the practice could not be out of standard of care. They did not discuss the frequency or the indications for the examination.
(2) The deliberations of the formal Peer Review Panel, if there are any, have not been entered into the proceedings of the Hearing Board. The only official record of the Formal Peer Review is the unanimous determination that the Standard of Care was met and that the recommendation of that board was for full reinstatement. Any dissenting opinion is required to have been included in the results of their deliberation. Because the determination was unanimous, there were no dissenting opinions. To [Applicant]s knowledge there is no formal record of those deliberations. If there are transcripts of these deliberations, [Applicant] has not been provided these documents as is required in AR 40-68. It would appear that the above cited finding is based purely on speculation by the author of the document and was used to guide the committee to a desired, pre-determined outcome.
ac. The twelfth procedural error is a result of the improper composition of the Credentials Committee. The authority for the formation and composition of the Credentials Committee in MEDDAC Regulation 15-1 is AR 40-68, paragraph 8-5. In AR 40-68 paragraph 8-5b, The MEDDAC Commander is required to, name the permanent members and a designated alternate for each member of the committee. Designated alternates, (not any available representative) are the only persons permitted to exercise all the duties and responsibilities of the permanent voting member whom they represent. The membership is required to reflect the diversity of privileged providers practicing within the facility, but the majority of the membership must be fully appointed members of the medical/dental staff, as further defined in the Glossary, Section II, AR 40-68. Nurse practitioners and Physician Assistants may serve as voting members, but they may not outnumber the fully appointed members. The only designated, voting, non-privileged member of the Credentials Committee is the senior nurse executive (Chief Nurse/DCN). (AR 40-68 paragraph 8-5b(5))
(1) Numerous representatives for absent voting members were included in the ad-hoc meetings of the Credentials Committee where discussion, deliberation, and voting occurred. No evidence of these personnel being named and appointed as designated alternates of the voting members is presented in the minutes of these meetings. The random replacement of voting members or inclusion of anyone who happens to show up for a meeting does not ensure that the MEDDAC Commander has exercised his/her responsibility and made a conscious decision concerning the qualifications, leadership, and judgment of person simply filling in. The inclusion of these individuals without evidence of formal appointment, and documented appropriate orientation by the chairperson of the committee as required in AR 40-68 paragraph 8-5 b.(1), constitutes clear violation of [Applicant]s right to due process. [Applicant] has been unable to independently verify the existence of any orders naming designated alternates. To inquire at this point would simply permit the creation of back-dated orders to cover the deficiency. [Applicant] was a voting member of the Credentials Committee but to the best of his knowledge, he was never appointed on orders, nor is he aware that a designated alternate was ever appointed by the MEDDAC Commander, or oriented by the DCCS to represent [Applicant] in his absence.
(2) LTC Ch, the Deputy Commander for Administration is not designated as an exception to the allowed voting membership of the Credentials Committee by AR 40-68 paragraph 8-5b.(2) because he is neither a privileged provider, nor the Chief Nurse/DCN. He participated in meetings and presumably cast votes in the Ad-Hoc Credentials Meetings of 18 May 2005, and 27 June 2005. LTC Chs duties as the chief administrator of the hospital include no direct patient evaluation or medical care of any kind. With no known medical training or experience, he would seemingly have no technical basis of understanding with which to recognize and challenge the sensational claims and unsupported assertions made by LTC Di. [Applicant] was prejudiced by his inclusion as a voting member of the Credentials Committee because presumably, LTC Ch would be unable to independently evaluate the technical medical references and evidence presented by [Applicant]. AR 40-68 paragraph 10-8i requires that the Hearing Board be composed of some or all members of the Credentials Committee. Because LTC Ch was not an authorized exception to the regulation regarding membership in the Credentials Committee, he was ineligible to serve on the Hearing Board. [Applicant] was prejudiced by LTC Chs inclusion on the Hearing Board because his lack of medical training would presumably result in an inherent inability to independently evaluate technical medical references and evidence.
(3) LTC Mi, LTC Br, and LTC Brw also participated in the ad hoc meetings of the Credentials Committee where they participated in deliberations and presumably cast votes. There is question as to whether LTC Brw was even a currently privileged Nurse Practitioner in this hospital as required in AR 40-68 paragraph 8-5b.(2), when she represented the Department of Behavioral Health. LTC Mi was not a privileged provider. There is no evidence in the minutes of the meetings that these individuals were duly appointed and appropriately oriented, designated Alternates for a specified voting member as is required by AR 40-68 paragraph 8-5b.(1). If these representatives were not duly appointed by the MEDDAC Commander as is required in AR 40-68 paragraph 8-5b, and appropriately oriented to assume the duties and responsibilities of the committee by the DCCS, no quorum existed at any of the ad hoc meetings of the Credentials Committee. AR 40-68 paragraph 8-5b.(3) requires that No action on a provider will be taken without the presence of a majority (51 percent or greater) of the voting membership. [Applicant] was denied due process by the lack of a quorum at the ad hoc Credentials Committee meetings of, 18 May 2005, and 27 June 2005.
(4) In further question of the MEDDAC Commanders compliance with the regulatory responsibility to establish a quorum for all credentialing actions, AR 40-68 paragraph 8-5c.(6) specifies, Voting by non-permanent members of the [credentials] committee is restricted to actions or privileges for members of their respective discipline. While non-permanent members is not clearly defined, it would appear be an additional preclusion of any non-physician representative of another discipline such as nursing, behavioral health, or administration from participating in a credentialing action against a physician. This regulation could potentially be even more narrowly interpreted in this case to apply to any non-permanent provider in a discipline such as surgery from participating in a credentialing issue concerning a primary care discipline such as Family Medicine, Pediatrics, or Internal Medicine.
(6) The MEDDAC Regulation 15-1 was revised on 1 Nov 2005, [Tab 6] immediately after the Hearing Board concluded, and LTC Ch, who should not have been a voting member of the Credentials Committee per the authorizing regulation, AR 40-68 paragraph 8-5, was deleted from the membership. There is no known waiver or exception from the Surgeon General that would allow his previous participation the Credentials Committee as required in AR 40-68 Proponent and Exception Authority.
ad. The thirteenth procedural error is that there is no evidence that any recommendation by the Credentials Committee to the MEDDAC Commander concerning this adverse credentialing action was ever approved by the Executive Committee of the Medical Staff (ECMS) as is required in MEDDAC Regulation 15-1, and AR 40-68, paragraph 8-5. This bypassed regulatory requirement is an additional safeguard designed to ensure fairness.
ae. In the fourteenth procedural error, the composition of the Hearing Board violated [Applicant]s due process by the inclusion of unqualified members on the committee. The requirements established in AR 40-68 paragraph 10-8 i., state, Selected members of the Credentials Committee may serve as the Hearing Board, or the entire Credentials Committee may perform this function, as determined locally. The locally governing document, MEDDAC Regulation 15-1, Credentials Committee, paragraph 4.d., [Tab 5, Tab 6] lists as a function of the Credentials Committee, To act as the Fair Hearing Board in the event of adverse privileging action being taken regarding any medical staff member. Only three of the nine voting members of the Hearing Board, (Joh, Mod, and Har) were actual members of the Credentials Committee. There is no known approved exception to AR 40-68 Proponent and Exception Authority that would permit LTC Mi to participate as a voting member of the Credentials Committee in addition to the senior nurse executive, COL Mod.
(1) There were six additional members of the Hearing Board who were not authorized members of the Credentials Committee. Two of these additional Hearing Board members, Dr. Ta and LTC Mi were also absent from the continuation hearing.
(2) It would seem the reason these two governing regulations stipulate that the Hearing Board be composed of members of the Credentials Committee is because they are the most qualified credentialed or licensed medical professionals available, and the MEDDAC Commander has formally exercised his judgment concerning their qualifications. They are experienced decision makers and senior leaders of the hospital, accustomed to weighing fairly, the numerous issues related to the delivery of health care. The minutes for only two of the meetings of the Credentials Committee were provided to [Applicant] in the course of this process. Using the criteria set forth in AR 40-68, in the first meeting, there were four actual committee members present, and six representatives. In the subsequent meeting there were three actual committee members present, and two representatives. In both of these meetings LTC Ch participated in the discussion and presumably voted even though according to the referenced AR 40-68, he was not an authorized voting member of the committee. Only two actual committee members (Joh, Ben) were present at both of the ad hoc meetings. No other Credentials Committee meeting minutes were provided to [Applicant] so he is unable to determine how many additional violations of this requirement occurred.
(3) At each of these meetings, decisions were made concerning [Applicant]s professional career, but there was no continuity of designated voting membership. Allowing the free substitution by representatives for the regulatory appointed voting members at the various meetings of the Credentials Committee is fundamentally unfair to [Applicant]. Without the benefit of continuity of attendance by duly appointed and appropriately briefed committee members, all previous primary source information, discussion, and insight is lost. Summaries of previous discussion invariably contain the bias of the presenter or a condensation of details. These influences result in the loss of independent evaluation of facts and autonomous decision making. This clearly represents a violation of due process for [Applicant].
(4) The abrogation of the Command responsibility to exercise judgment in selecting and appointing qualified voting members and designated alternates as required by the governing regulation can be interpreted as a rush to judgment, or worse, possible evidence of intentional manipulation of meeting dates and voting membership by the command group to ensure a particular outcome.
af. In the fifteenth procedural error, the composition of the Credentials Committee again violated [Applicants] due process with the inclusion of Mr. Fis in the final review of the Findings of the Hearing Board required by AR 40-68 paragraph 10-9a(1-2).
(1) Mr. Fis, the Nurse Practitioner Representative, and a voting member of the Credentials Committee, had an outstanding labor grievance against [Applicant] for being denied a promotion when [Applicant] was his senior rater. Mr. Fis participated in the Credentials Committee review and presumably cast a vote.
(2) [Applicant] was therefore denied due process by allowing Mr. Fis to participate in the credentialing review proceedings.
ag. In the sixteenth procedural error, there was no Osteopathic Physician and no Adolescent Medicine Specialist on the Hearing Board. AR 40-68 paragraph 10-8i. states that, A privileged provider from the same discipline as the provider in question should be a voting member of the hearing board. The majority of the proceeding related specifically to Osteopathic Manipulation and Adolescent Medicine. [Applicant] was prejudiced by the absence of a provider from either of these disciplines because negative impressions of practice or procedure related to incompetent review of medical charts could not be immediately resolved without outside consultation. Outside consultation by the Hearing Board during deliberations, and after a negative impression had been registered in the minds of the Board members, presented two significant problems related to due process. First was the denial of [Applicant]s regulatory right to submit evidence, to question witnesses, and to call witnesses on his behalf. (AR 40-68 paragraph 10-8b(4)) Secondly, [Applicant] was denied the insight of questions posed by professionals, similarly trained, and the benefit of their discussion during the hearing as well as afterward, during deliberations.
ah. The report submitted by MEDCOM to the National Practitioners Databank (NPDB) contains multiple substantive errors. The errors are primarily a direct result of the informal peer review conducted outside of the provisions of the regulation, by a surgeon who was not a peer, who was unfamiliar with primary care in general, and adolescent medicine and osteopathic manipulation in particular.
ai. The report states that, a review of [Applicants] last 50 consecutive male charts found that thirty-three (33) underwent genitourinary examinations. Specific inaccuracies in this MEDCOM document include the number of charts reviewed; the report that the charts were the most recent; the report that the charts were consecutive; the exclusion of patient records from the consecutive series containing findings potentially litigious and derogatory to the command; the failure of the command to accurately report that the overwhelming majority of charts in the series (72%) belonged to new patients at their initial appointment with a new provider who was assuming Primary Care Manager responsibilities for those patients, in a newly established Adolescent Medicine specialty clinic; and the allegation that inappropriate examinations were performed at acute appointments for conditions not related to the presenting complaint rather than accurately reporting the effective use of acute visits for the delivery of delinquent preventive health examinations with the permission of the patient and their parent.
aj. The hospital MEDDAC Commander, a cardiac surgeon with presumably little if any current primary care experience, did not agree with the findings, recommendations, and expert opinion of these experienced primary care specialists who were officially appointed members of the duly constituted, regulatory authorized, Formal Peer Review Panel, and subsequently, through the Credentials Committee, appointed Dr. Bru, an Ears, Nose, and Throat Surgeon, to review the selected patient records. The surgeon reviewer failed to familiarize himself with the recommendations of any one of the primary advisory agencies: the American Academy of Pediatrics (AAP), Healthcare Effectiveness Data and Information Set (HEDIS), Bright Futures, or Guideline for Adolescent Preventive Services (GAPS) standards. These agencies recommend the frequency and content of adolescent Preventive Health Examinations (PHE), the elements of an age appropriate physical examination (PE), and the Medical Home concept of Primary Care emphasizing prevention. Based on instructions from the hospital leadership, Dr. Bru created an ad-hoc set of standards which he used to review and formulate an opinion of the contents of the charts chosen for his review. (Hearing Board pp 60-65)
ak. The criteria that Dr. Bru used for determining consistency were subjectively applied and reflect no known published standard. Dr. Bru states in his testimony before the Hearing Board, I know I am not an expert in Adolescent Medicine. (Hearing Board p 50) A peer examiner more familiar with primary care, given the task to evaluate the thoroughness and quality of care rendered, would more likely note that there is consistency in [Applicant]s effort to obtain a complete and comprehensive health assessment for every new patient in accordance with the published guidelines of the three major groups representing Adolescent patients: GAPS, Bright Futures, and the AAP. In accordance with these guidelines, [Applicant] assured that there was consistency between all patients and every finding was completely and appropriately documented in the hospital maintained medical record.
al. The title of the final report of Dr. Bru Chart Review to the Credentials Committee, What I did on my summer vacation, (Hearing Board pp 44-67) leaves question as to whether Dr. Bru understood the serious nature of the review. The guidance and directives he was given appear to have resulted in ascertainment bias. Dr. Bru was exposed to the emotional and opinion filled discussion documented in the minutes of the Credentials Committee of 17 May 2005 including opinions and statements made by LTC Di, which may have resulted in decreased objectivity and prejudiced view of the data.
am. Contrary to the official report to the National Practitioner Database (NPDB), the reviewed charts were non-consecutive and only forty-three (43) selected charts were included in the reviewed series of patient visits spanning a seven month period extending from 20 Aug 2004 to 18 March 2005.
(1) At least four of the patient charts omitted from the consecutive series contain significant, previously undocumented genitourinary findings discovered by [Applicant] at the Preventive Health Exam physical conducted with the permission of the patient and the parent or guardian, usually at the initial visit. Included in these charts and conspicuously omitted in this ad-hoc peer review, were evidence of such serious and continuous institutional and facility patient neglect, that they remain grounds for potential litigious action and damage to the reputation of the hospital and its leadership.
(2) Previously undiagnosed genitor-urinary abnormalities detected at the initial visit PHE in adolescent patients included hypospadius, dermal infection, varicoceles, and hydroceles. The most prominent evidence of neglect was in the case of a 16 year old male with a cryptorchid testicle (which carries as much as a 50 times increased risk for testicular cancer) who had been a patient in the Department of Pediatrics of this hospital for more than five years. He had been evaluated in clinics approximately 25 times and at least two of the appointments were designated as physical exams. The patients mother was not aware of any previous mention or diagnosis of an absent testicle. The professional literature documents similar cases.
an. It seems prudent that a professional tasked with the responsibility for providing peer review and recommendations on such serious matters would take the time to review basic specialty literature and documents particularly, when the medical specialty of the provider being reviewed is so distinctly different from that of the reviewer. The classifications used by Dr. Bru to describe the level of examination of various organ systems, and the documentation of the exam, was arbitrary and defies both reason and logic. (page 61 of Hearing Board transcript) As an example, no lung exam was judged to be thorough by Dr. Bru in his report to the Credentials Committee. If the lungs are auscultated, and the documentation is, Lungs-clear to auscultation bilaterally, what further examination and documentation would be required in order for this documentation to be deemed thorough? The absence of pathology does not indicate a less thorough exam or documentation. The possible addition of no rales, no wheeze, no dullness to percussion, or any other negative finding is redundant. It adds no further information about the patient because the notation by [Applicant] indicates what was examined- both lungs; and the findings- without abnormal sounds. (page 63 of Hearing Board transcript) The examination is not only thorough, but it is also thoroughly documented.
ao. The genital examination rate of males compared to females continues to be misrepresented as a result of Dr. Bru unfamiliarity with current literature. The indications supporting gynecologic and breast exams were submitted in [Applicant]s original testimony on pages 143-145, as well as lines 5-22 on page 21, of the Proceedings of the Hearing Board. Current adolescent medicine literature references submitted confirm that genital and breast exams are not routinely performed on adolescent females in general examinations. The Adolescent Medicine Consultant states on page 21 of his testimony that, On the annual physical exam, we do not do a GU exam on the young girls
(p. 21 Hearing Board transcript)
(1) Many components of physical examinations are age or gender dependent. For example, as part of a routine physical, adults may routinely undergo rectal examinations after a certain age (usually age 40), but an adolescent will not routinely undergo such an exam unless they participate in specified risk behaviors, or have a particular complaint. The sequence of puberty in females is different than in males and occurs on average two years earlier. (42) This further explains some of the variation in the content between male and female for the recommend age appropriate examination and how it should be performed, particularly in whether breast and genital exams are necessary components of a physical exam. The peak growth velocity in girls is an early event in puberty and is virtually complete by the onset of menstruation (corresponding to Tanner IV) which occurs on average in the United States between 12.5-12.8 years of age. At this age, most female patients are still being cared for by a Pediatrician, and consequently are rarely seen in [Applicant]s Adolescent Clinic during their most active phase of growth. Notably, one 12 year old female patient with mental impairment and a history of sexual abuse was referred to [Applicant] by a female pediatrician for gynecology exam and initiation of Depo-Provera because of his expertise in adolescent gynecology.
(2) Medical conditions in a biologically mature female patient who is asymptomatic and menstruating normally cannot be diagnosed by simple inspection of external genitalia in the course of a comprehensive health evaluation. Physiologic growth in a female adolescent is about 95% complete by the onset of menstruation. If the patient is sexually active but asymptomatic, the inspection of external genitals serves no purpose that could not be better achieved by the appropriate scheduling and conduct of a gynecologic exam. In order to perform a thorough gynecologic exam for female patients, Adolescent literature recommends that an hour be dedicated for the initial examination, and thirty minutes for subsequent annual exams. This amount of time is usually not available for the patient or the provider at an initial visit. It is entirely appropriate to schedule sexually active, currently asymptomatic female patients for a routine gynecology appointment in the near future. All female patients with indications for gynecological exams in [Applicants] clinic were either examined, or scheduled appropriately.
(3) The current recommendations of the American Cancer Society and the American College of Obstetricians and Gynecologists for asymptomatic female adolescents is that the first pelvic and Pap examination takes place about three years after initiation of vaginal intercourse, but no later than 21 years of age. In no case was a female patient found to be outside of these guidelines.
(4) A symptomatic patient should be, and is, examined by [Applicant] the same day. Herpes simplex pharyngitis; a recurrence in the throat was documented in one medical record and cited by Dr. Bru in his chart review as a missed indication for a genital exam on a female patient because she had Herpes. As the result of a primary herpes infection, the virus settles in the nerve root related to the site of infection and remains there permanently. Subsequent outbreaks are limited to the surface cells affected by this particular nerve root ganglion, (245) which is in this case, was nowhere in the proximity of this patients genital region. A provider more familiar with primary care would know that a recurrent throat infection on a female patient, currently on birth control pills, who is aware she has pharyngeal herpes, and has had a gyn exam within the last 12 months, is not an indication for a pelvic exam as is implied in the findings letter and quoted by the MEDDAC Commander in his decision to revoke [Applicant]s clinical privileges.
(5) In another case, a patient suspected of having polycystic ovary syndrome (PCOS) was also erroneously identified by Dr. Bru as requiring a gynecology examination but not receiving one. In the past, a gynecology examination on a patient suspected of this condition (PCOS) has been used to palpate the ovaries to see if they are enlarged. Obesity is a common comorbid condition that accompanies this syndrome, making palpation of the ovaries far less diagnostic than ultrasound, and extremely uncomfortable for the patient. This patient was obese and ultrasound was chosen to assist in the confirmation of her suspected diagnosis. A gynecology examination was not necessary for this patient.
ap. There is controversy in the literature concerning breast exams for cancer in female adolescent patients. The incidence of breast cancer approaches 0.1/100,000 in this age group. Physician performed breast exams and Self Breast Exams (SBE) have proven to be ineffective in detecting cancer in women less than 25 years of age. There is no shortage of irony in the insinuation that [Applicant]s performance of physical examinations in male and female patients are somehow inappropriate and conducted without appropriate indication. He is criticized for not performing breast cancer exams in adolescent female patients which has an occurrence rate of less than one in a million and is generally undetectable by palpation, and simultaneously criticized for examining males adolescent patients to detect conditions 100x or more common such as testicular cancer (lifetime risk 1:277 primarily in adolescent/early adult (National Cancer Institute SEER Cancer Statistics Review), lifetime risk of dying from testicular cancer is 1:5000, American Cancer Society), Klinefelter syndrome (1:500), undescended or cryptorchid testicle, (1:25), hypospadius (1:150), varicocele (1:7, but 1: 2 ½ for infertile men), or hydrocele (1:100 after infancy).
aq. The MEDCOM report alleges that inappropriate examinations were performed at acute appointments for conditions not related to the presenting complaint rather than accurately reporting the effective use of acute visits for the delivery of delinquent preventive health examinations with the permission of the patient and their parent or guardian. Adolescent health care visits are usually scheduled for sporadic, symptom related care, particularly in those patients who are not involved in extracurricular sports or programs requiring pre-participation examinations. Because of the infrequency of scheduled PHE for adolescent patients, state and federal guidelines, as well as peer reviewed texts and journals, suggest that acute visits and appointments should be viewed as an opportunity to provide preventive health services. In [Applicants] clinic, all preventive health exams offered in conjunction with acute illness appointments were approved by the patient and parent before being conducted. The use of acute appointments to deliver preventive health services in this population is extensively supported and explicitly recommended by:
(1) U.S. Preventive Services Task Force, Guide to Clinical Preventive Services: Second Edition (1996), page 7, http://www.ncbi.nlm.nih.gov/books/bv.fcgi?rid=hstat3.section.10513
(2) State of Colorado Department of Health Care Policy and Financing, 2005-2006 Adolescent Well Care Focused Study Report, Page 1-4, http://chcpf.state.co.us/HCPF/Quality/05-06%20Adol%20Well%20Care%20Final%20Report.pdf
(3) Noble: Textbook of Primary Care Medicine, 3rd ed., Mosby, p28
ar. Excluded in the MEDCOM report to the NPDB is the critical fact that in this selected series of patient health care visits, 72% of the charts reviewed belonged to New Patients as defined by the Current Procedural Terminology (CPT) manual, and 100% of the patients seen in the Adolescent Clinic were New Patients at their first clinic visit based on the same criteria. All new patients, in this newly established Adolescent Clinic were offered a preventive health physical examination at their first appointment regardless of presenting complaint, if time and resources were available and a current preventive health physical exam was not documented in the medical record. Sexually active females with no gyn complaints and no gyn exam in the last 12 months were offered a follow-up gyn appointment. The American Academy of Pediatrics (AAP), and the Bright Futures program recommend a physical examination for preventive health on all adolescent patients on an annual basis. American Medical Association sponsored, Guideline for Adolescent Preventive Services (GAPS), recommends an annual PHE, and comprehensive physical examinations during each of the phases of adolescence. The Federally mandated Early Periodic Screening, Diagnosis and Testing (EPSDT) program supports the recommendations of these organizations. The annual requirement for an adolescent preventive health examination is also a Healthcare Effectiveness Data and Information Set (HEDIS) benchmark for the assessment of the delivery of quality health care. Many first-time patients to this newly established Adolescent Clinic had not received a preventive health examination of any kind in greater than three years. Some had no evidence of a preventive health examination of any kind on record since their last well baby exam. A review of random adolescent medical charts in the hospital record room revealed that only 17.8% of the patients in this system were in compliance with AAP, HEDIS, or Bright Futures guidelines. Further, 55.4% had no documented PE in greater than three years, with an average of 7.7 years since their last documented preventive health physical exam.
as. The MEDCOM Report alleges that the content of the Genito-urinary examination conducted by [Applicant] is inappropriate. The physical examination completed during the adolescent preventive health visit should be similar to an adult physical examination but with special emphasis on pubertal development and growth. Not only did the external Peer Review Panel find that the examination [Applicant] conducts is within the Standard of Care, the following peer reviewed texts and journal articles, specify that the content of an age dependent, adolescent male genitourinary examination includes: inspection for superficial lesions and signs of infection or infestation; size of penis and testicles; quantity and distribution of pubic hair; examination of the scrotum and testicles for shape, symmetry, presence or absence of masses; epididimus; presence or absence of the spermatic chord; urethral stripping and examination of the meatus for location and discharge; presence or absence of hydrocele, varicocele, and hernia
(1) Mosbys Guide to Physical Examination, 2nd Edition. St. Louis, MO, 1991, pp 524-527.
(2) McAnarney ER, et. al. (eds): Textbook of Adolescent Medicine. Philadelphia, WB Saunders, 1992, pp729-742.
(3) UpToDate, The Pediatric Physical Examination: The Perineum. Website officially sponsored by the US Army Medical Command, http://uptodateonline.com/utd/content/topic.do?topicKey=gen_pedi/2197&selectedTitle=1~2106&source=search_result
as. A review of all of the medical charts cited shows that when a genitourinary exam was conducted by [Applicant] at the Adolescent Clinic in full compliance with the above references, almost one in three (29.7%) adolescent male patients previously documented as having normal exams in this hospital system, were found to have infectious, congenital, or developmental GU abnormalities. This reveals a pattern of negligence within this facility that is consistent with [Applicants] previous experience in this hospital system as a whole, and is more than sufficient justification for his careful adherence to the textbook examination and documentation that he applies to patient care. It is excessive that such a large percentage of patients who have been previously examined by other providers in this hospital system would be found to have so many potentially serious undiagnosed genitourinary conditions. Many of these conditions can result in health, fertility, and psycho-social disruptions if left untreated.
at. Evidence of widespread neglect in this system is not limited to pediatric and adolescent patients. During the same time period subjected to chart review by Dr. Bruns, an active duty Soldier with 16 years service was referred to [Applicant] for evaluation and treatment of hip and back pain. In the course of the evaluation, [Applicant] diagnosed Klinefelter syndrome, a genetic condition in which the testicles do not develop during puberty. They remain about the size of small marbles. In the absence of comparative genital measurements during puberty the condition is often missed if the appearance on visual inspection is normal. It is virtually impossible to miss the condition if a properly conducted genital exam is performed on a post-pubertal male, and particularly the examination specified for ROTC/Enlistment (USMEPCOM 40-1), or in the periodic physical exam required for all military personnel as described in AR 40-501. This previously overlooked diagnosis may be a contributing factor to the hip and back pain suffered by this patient because in patients with Klinefelter syndrome, the undeveloped testes do not produce testosterone, the hormone primarily responsible for muscle strength (among other things) in males. The muscle strength necessary to support rigors of military training, particularly in preparation for deployment may not have been sufficient to adequately assist various ligaments in the stabilization of major joints under extraordinary stress, resulting in chronic joint pain. A review of the patients previous physical examinations performed at Military Treatment Facilities and documented on SF 88 revealed that on five previous examinations he was found to have a normal GU examination. One provider documenting normal commented on testicular atrophy but provided no referral or follow-up. The patient was unaware of the notation. Most concerning, the patient reports of his most recent physical examination conducted at Fort Carson on 13 Sept 2004, During my periodic exam, as I recall, I was not physically checked for anything. I wrote down my known ailments/issues and was only questioned, not physically checked, to ascertain what may have been wrong with me. As to any other checks, it was my understanding that a physical is a top to bottom check of ones body. Im not medically qualified to know if something else is wrong with me other than what I knew was hurting.
au. The MEDCOM Report implies improper treatment of male patients because [Applicant] includes genital measurements in the Preventive Health Examination physical. Multiple peer reviewed references and texts, some of which are cited below, recommend direct male genital measurements for a number of reasons: early identification of genetic conditions such as Klinefelter Syndrome, pubertal growth delay, the effects of certain medications on puberty, and the importance of providing concrete information and promoting healthy dialogue which allows a self conscious teenage male to develop a healthy, realistic body image. Primarily visual-dependent pubertal rating systems such as Tanner and SMR have such a high degree of observer variability that they are of little value for early detection of early and subtle abnormalities, especially in situations where patients are cared for by multiple providers at irregular intervals. The earliest possible detection of pubertal growth abnormality is increasingly relevant, particularly in light our ever-improving ability to intervene and normalize delayed and in many cases even chromosomally deficient development. Identifying and treating a condition as common as Klinefelter Syndrome early in puberty, allows for early physiologic hormone replacement therapy with subsequently more normal physical and emotional development. The following peer reviewed references recommend measurement of male genitals during routine physical evaluations.
(1). US Army Medical Command officially sponsored reference website, UpToDate, http://uptodateonline.com/utd/content/topic.do?topicKey=gen_pedi/2197&selectedTitle=1~2106&source=search_result
(2) Lee, PA and Reiter, EO; Genital Size: A Common Adolescent Male Concern, Adolescent Medicine, Volume 13, Issue 1, February 2002
(3) National Institutes of Health publication, Clinical Methods The History, Physical, and Laboratory Examinations, The Adolescent Patient, Table 223.1, http://www.ncbi.nlm.nih.gov/books/bv.fcgi?rid=cm.chapter.6480
av. The MEDCOM Report states that [Applicant] includes examinations of patients not related to their presenting complaints. In Colorado, [Applicant]s current state of practice, providers conduct routine Early Periodic Screening, Diagnosis and Testing (EPSDT) services during other types of visits 57.3 percent of the time according to the State of Colorado Department of Health Care Policy and Financing, Colorado 2004-2005 Focused Study Evaluation of EPSDT Services. http://www.cde.state.co.us/artemis/HCP1_7/hcp12ep82005.pdf Using the data from Dr. Bru chart survey, thirty-three (33) patients were documented as having complete physical examinations that included a genitor-urinary exam. For nine (9) of these patients, the presenting complaint was either STD check or physical examination. Subtracting these nine patients from the total shows that t [Applicant] delivered preventive services during other types of visits 58.1% of the time. This is less that 1% different from [Applicants] civilian colleagues in his current state of practice. This is important to note because federal institutions follow the host state regulations and practices in the absence of more restrictive federal regulations. As previously noted, only those patients whose parents gave consent, received more comprehensive physical examinations in conjunction with an acute minor illness appointment. The systems needing evaluation in addition to the focused exam for the acute visit were generally minimal in number and did not significantly extend the length of the appointment. The records also show that a number of patients did not elect to accept the offer at the initial visit and they were given the opportunity to reschedule at a time that was more convenient, if they chose to do so. Most parents and patients accepting a more complete preventive health examination in conjunction with an acute visit were appreciative because it prevented them from having to schedule an additional physical exam appointment to satisfy the participation requirements for Dependent Youth Activities and school sponsored athletic programs. All findings for all examinations were documented in the hospital maintained medical record.
aw. The MEDCOM report implies that [Applicant] did not use chaperones appropriately. It is common practice at this hospital and throughout the hospital system not to use chaperones for same gender examinations unless requested by the patient. Many clinics in this hospital have signs posted stating, Chaperone Available Upon Request. In the Adolescent Clinic all patients were offered chaperones for the exam prior to the parent leaving the exam room. No female breast or gyn exams were ever performed without a chaperone. Not one patient interviewed during the investigation was reported to have found their examination inappropriate. Patients no longer even living in the state were contacted by investigators to ensure they also had an opportunity to comment, and still no patient complaints of inappropriate behavior were found, although a number of very positive comments were reported to have been registered. As part of the initial credentialing process, [Applicant] was required to certify that he had reviewed the Medical Staff Bylaws (MEDDAC Regulation 40-9) which prescribe, the purpose, structure, composition, privileges, responsibilities, and rules by which the medical staff members perform professional activities. This document makes no mention of any chaperone policy either in the body of the document or the references.
ax. The MEDCOM Report alleges that [Applicant] did not observe appropriate universal precautions by not wearing gloves during all examinations. The use of gloves was in full compliance with hospital policy. They were not routinely used for external examinations in the absence of signs, symptoms, or concerns of infection. Gloves were always worn for gyn examinations. Hands were immediately sanitized after all examinations, with or without gloves. (MEDDAC Regulation 40-69-1 paragraph 8.c.(5)).
ay. In the formal Requests for Reconsideration of the Findings of the Credentials Committee, and appeals of the MEDDAC Commanders Decisions dated respectively; 23 Sep 2005, 14 Dec 2005, 9 Jan 2006, and 20 Jan 2006, [Applicant] provided numerous documents to correct multiple, repeated, substantive errors. These memoranda and the procedural and substantive errors cited therein are adopted and incorporated in this request. Key points of these memoranda have not been addressed or corrected by the Credentials Committee, Hearing Board, or the MEDDAC Commander prior to taking their respective final actions and are addressed below. The cumulative effect of information taken out of context, the inaccurate or selective reports of fact, and disingenuous interpretations by the Credentials Committee, the Hearing Board, and the MEDDAC Commander underscore the obvious ascertainment bias introduced as a result of the numerous procedural errors.
51. Finding Number 1 of the Hearing Boards recommendation to the MEDDAC Commander acknowledges that hernia checks are appropriate before osteopathic manipulation of the pelvis, but continues to imply wrongdoing by failing to accurately report that in the case of the patient referenced in LTC Dis statement, the patients father was present for the entire exam and treatment and that the father provided a sworn statement confirming that he requested the exam and treatment. He further stated that there were no inappropriate actions by [Applicant]. The findings of the Hearing Board did not attempt to correct the implications in the erroneous record by mentioning that the reason the service requested by the father, and provided at that particular time and location, was because the patient and his father were scheduled to depart for the week-long trip by Navy Ship to San Diego the following morning. LTC Di also swore that [Applicant] paid for the patient to visit him in Hawaii that the patient stayed with him while he was there and that [Applicant] had examined the patient for no reason while he was visiting. Each of these damaging accusations is completely discredited by the father in his sworn statement, (Hearing Board pp. 102-106) and the patient himself, now a Soldier on Active Duty in the Army, who testified in person at the Hearing Board. (Hearing Board pp 91-109)
52. The author of the Hearing Board document also failed to acknowledge that [Applicant] referred this same patient back to his Primary Care Provider in San Diego, who was at the time LTC Di, for follow-up for the incidental finding of bilateral hydroceles as a result of this hernia check. Annual follow-up is recommended if surgical correction is not undertaken at the time of diagnosis. Most surgeons consider communicating hydroceles to be potential hernias and repair them. (83, 207) Ten years after this patient was referred back to LTC Di, who apparently provided inadequate follow-up, the now active Army Soldier was medically evacuated from combat in Iraq. This evacuation was not prompted by the shrapnel wounds in his head for which he was treated in-theater, returned to combat, and subsequently awarded the Purple Heart. Instead, the Soldier had to be evacuated because one of the hydroceles diagnosed many years before by [Applicant], blew up and made his testicle as big as a Gator Aid bottle. As a result of this non-combat related evacuation, the Soldier now suffers severe guilt because a less experienced friend from his squad who replaced him on a specialized weapon system was killed in combat. (Hearing Board page 91-109.) One might reasonably ask why [Applicant] had not discovered the hydroceles when this patient was under his care while in San Diego. The obvious explanation is that [Applicant] did not perform GU exams on the patient at every visit as Dr. Dillon alleges in his sworn statement. Dr. Dillon has never provided a single medical chart to support his sensational claims, and has never been compelled to substantiate a single opinion with evidence from any peer reviewed, published source.
53. Finding Number 2 begins with a statement that [Applicant] follows a pattern of doing genital exams on a majority of adolescent males
a. The use of this language clearly indicates the authors attempt to present the demonstrated consistency of [Applicant]s practices as a negative quality rather than one that should be expected of every primary care practitioner. (238, 197, 179, 181,188) [Exhibit K]
b. A comprehensive health assessment is offered to all new patients, male and female. In addition to assessment of past medical history, and a psychosocial inventory, all appropriate organ systems are thoroughly assessed by [Applicant] and documented following the guidelines explained in detail in the Hearing Board transcripts. (181, 182, 180, 179, 187, 1, 2, 3, 4, 9)
1. LTC Di opined this practice as excessive, and the undefined term is used indiscriminately throughout the proceedings. A comprehensive search of the peer reviewed literature does not reveal any published source that supports LTC Dis definition of what is excessive; neither does LTC Di define excessive in any quantifiable terms during his testimony.
2. If excessive relates to the number of systems that [Applicant] examines, then the peer reviewed, published references that [Applicant] uses from the AAP, HEDIS, Bright Futures, GAPS, and various other accepted guidelines, must necessarily be condemned by LTC Di as excessive as well. If the manner in which the examination of the organ systems is conducted is excessive, then the multiple, peer reviewed and published source documents that [Applicant] has provided must be likewise condemned as excessive because [Applicant]s examination procedure is identical to the descriptions in the published references. In condemning all of these peer reviewed documents as excessive however; one is left with only LTC Dis opinion. A detailed search of various medical databases reveals not one single peer reviewed, published document of any kind, authored by LTC Di that addresses the appropriate examination interval or content.
3. In the absence of any known official protocol, and in light of the weight of the supporting medical literature, [Applicant]s use of the medical literature to guide him in his practice of adolescent medicine cannot be considered excessive. When Dr Nelsons examination indications, techniques, and practices were formally reviewed in San Diego ten years ago, it was noted that the completeness of this health care providers examinations is commendable and in several instances has uncovered subtle diagnoses that may otherwise have gone undetected. (Emphasis added.) [Exhibit D] This expert medical review which formally and systematically reviewed and evaluated a series of medical charts, was authorized and conducted by competent medical authority. The findings were approved by the Commanding Admiral, and favorable final disposition was made concerning the patient complaint. [Exhibit C] LTC Di presumes in his statements that he has greater insight into the San Diego events than those duly appointed to review the facts, circumstances, and documents concerning the patient complaint, even though he was in Hawaii throughout the entire process, and did not arrive in San Diego until a year after the original complaint. Without ever conducting a formal review of any of [Applicant]s medical charts, LTC Di has dismissed as excessive, the same indications, techniques, and practices, previously cited as commendable, and which continue to be supported in the current, published, peer reviewed literature. More appropriately, [Applicant]s careful and considered evidence and literature based practice must be deemed within the Standard of Care as was determined by the external, Formal Peer Review Panel.
54. Finding Number 2 then states, [Applicant] presented numerous text chapters and articles that discuss how to do a complete genital exam, but did not present clinical evidence to support the frequency of his practice. (238, 198, 235, 234, 170, 169, 237)
a. [Applicant] presented numerous peer reviewed sources supporting the conduct of the examination, the indications for the examination, evidence of training, and documented benefit to patients. (24, 9, 10, 11, 12, 22, 23, 25, 26, 217, 178) This statement suggests that physicians should not read, reference, or adopt recommended practices from printed sources, including textbooks and peer-reviewed journal articles, without being required to conduct their own independent polls of all of their peers regarding each subject. More realistically, peer reviewed journal articles serve this critical role, particularly for providers who practice in low-density specialties that combine elements of multiple and diverse subspecialties.
b. The term frequency in the context of the Hearing Boards finding is ambiguous. LTC Di asserts that these types of examinations were conducted at every patient visit, but all of the investigators have disproved this claim. (Hearing Board transcript pages 46-46, 117-118.) [Exhibit C, Exhibit D] LTC Di has never conducted a formal, systematic review of [Applicant]s medical charts. His assertion of excessive frequency is unsupported. LTC Di states in his sworn statement that a patient reported to him that [Applicant] examined his genitals at every appointment. This statement is unsupported by fact. The patient himself testified in the Hearing Board that this allegation was not true. (p. 91 of the Hearing Board transcript)
c. If frequency means that [Applicant] performs repeated genital exams without indication, then this statement is clearly false. (172, 3, 192, 238, 10, 12, 154, 197, 193)
d. Dr. Bruns stated in his testimony that he found no instance where a genital exam had been performed on any patient more than once. (pp. 46-47 of the Hearing Board transcript).
e. Additionally, LCDR Cilento made the same observation in his investigation. [Exhibit D] Literature cited and even the opinion of LTC Di in his memorandum to the MEDDAC Commander dated 23 Jun 2005, support re-evaluation at six months as appropriate for patients taking medications with potential to cause pubertal growth delay. (13, 14, 15, 16, 17, 18, 19, 20, 21, 226, 227)
55. Finding Number 2 then states, [Applicant]s rational for doing penile circumferences and penile length exams on patients with ADD were out of concern for potential delayed development. This is partially correct, (184) but selectively does not represent the complete explanation and rationale for measurements provided to the Hearing Board. (Pages 81-90 and 252-254 of the Hearing Board transcript)
a. Professional literature recommends direct genital measurement for adolescent males a number of reasons:
1. Genital size is a common concern for adolescent males. Measurements combined with concrete information, especially during early and middle adolescence when abstract reasoning is not developed can relieve this common anxiety. (64, 65, 66, 67, 68, 69, 70)
2. Tanner staging, is not commonly performed, is inherently inaccurate, and not suitable for intervention if there are questions of pubertal delay. (211, 228, 221, 165, 183, 208)
3. Certain medications such as CNS stimulants and SSRIs have been reported to cause pubertal delay in the peer reviewed professional literature, but no systematic, longitudinal study (163, 164) of sufficient statistical power and appropriate use of control groups have ever been conducted on adolescent patients. (215, 216, 5, 148, 149, 150, 33, 34, 41, 224, 225)
4. Certain genetic conditions such as Klinefelter syndrome can be detected early in puberty through the application of comparative genital measurements allowing for early therapeutic intervention and more normal progression of puberty. (175, 235, 239, 37, 174)
5. Delayed puberty is often the only presenting symptom of certain occult systemic conditions such as Ulcerative Colitis, Crohns disease, thyroid disorders, and multiple others. (133, 218, 35, 36)
6. Self esteem is known to be directly related to pubertal development; early developing boys are more confident and tend to be more successful in all areas while late developing boys tend to suffer from depression and withdrawal from age-related activities. Late development is as often more perception than reality. Concrete information and proof of incremental pubertal development has been shown to be effective intervention. (214, 187, 159, 231, 219)
b. This finding again appears to be ascertainment bias relating to the improper use of expert opinion, and total disregard for current, published, peer-reviewed reviews and research.
c. The expert opinion concerning [Applicant]s Adolescent practice submitted by Dr. Sharon Cooper relies on the clinical practice guideline published by the American Academy of Pediatrics for the diagnosis and treatment of children with ADHD. The source document for the reference that she cites specifically states that it applies only to children between the ages of 6-12 because, there is, as yet, inadequate information about its applicability to individuals younger or older than the age range for this guideline. (Emphasis added) (Clinical Practice Guideline: Diagnosis and Evaluation of the Child with Attention-Deficit/Hyperactivity Disorder, Pediatrics Vol. 105, No 5, May 2000, p1168) Dr. Coopers reference to this document in relation to [Applicant]s patients is clearly inappropriate. This document clearly does not apply to [Applicant]s adolescent patients, and the authors of the document are careful to point out that it cannot and should not be applied to patients outside of the specific spectrum that it addresses.
d. There is clear, documented concern expressed in the medical literature that providers are finding significant growth delay to include height, weight, and/or pubertal development in adolescent patients taking Central Nervous System (CNS) Stimulants. (5, 15, 16, 17, 18, 19, 20, 41, 184, 224) Dr. Rivkees, a published expert and researcher in Pediatric Endocrinology underscores this finding in his attached e-mail where he states that he has personally treated at least 40 patients with CNS related growth delay. [Exhibit Y]
e. [Applicant]s personal experience has demonstrated that pubertal arrest does occur in adolescent males being treated with stimulants. [Applicant] evaluated and treated with assistance and supervision from the staff endocrinologists during fellowship training, two patients who presented with what initially appeared to be simple Constitutional Growth Delay. Copies of these patients records from a case presentation are attached [Exhibit G, Exhibit H]. These records were not presented to the Hearing Board because they were only discovered subsequent to the close of the Hearing Board. During the course of [Applicant]s evaluation and treatment it was discovered that these patients were in fact experiencing a total arrest of pubertal development that began shortly after the diagnosis of ADHD and subsequent treatment for the condition with CNS stimulants. The first patient was nearly 17 years old, almost three years past the outside limit of what is considered normal for initiation or continuation of pubertal maturity. Normal is defined as of two standard deviations outside of the average of 11.5 years. At greater than 14 years of age, the second patient was also past the two standard deviations marker. (229, 42, 166, 13) The first patient had early signs of pubertal development, but there was no documentation in the medical chart that would permit a determination of when this change began. The second patient had no evidence of any pubertal development. Both patients were athletes, and both patients had documented annual sports physicals, completed at military treatment facilities, every year since early elementary school. Every examination including the most recent sports physical recorded GU- nl. These examinations were not normal. (42) Height and weight had continued to decelerate within normal parameters as demonstrated on the growth chart by not crossing two growth chart reference lines. (158) It is clear that the most precise indicator of the global growth delay in these patients was the total arrest of genital development. Once genital development begins it should progress at a much faster rate than height velocity. (48) The adolescent growth spurt in males is a late event, usually occurring at Tanner IV. In the case of these two patients, the height spurt of puberty could begin as late as 16 years old and still be considered normal, (42) but in no case can a failure to begin pubertal development by age 14 be considered normal. In the case of the older patient, if he entered Tanner II at an appropriate age as we suspect, which was prior to initiation of CNS stimulants, and had not progressed to Tanner III within 0.41-2.18 years, then again, the more accurate indicator of the effect of the CNS stimulant was pubertal development. (13, 42)
f. In direct contradiction to the opinions expressed by LTC Di and Dr. Cooper, which were accepted without question by the Hearing Board, Credentials Committee, and MEDDAC Commander, the most recent scientific research sponsored by the National Institute of Mental Health, published in the August 2007, Journal of the American Academy of Child and Adolescent Psychiatry [Exhibit Z] finds:
1. Children with ADHD who had never been treated with medications, were on average, taller and heavier than the average child without ADHD. (Disproves theory that growth delay is syndrome related.)
2. After only three years of consistent treatment with CNS stimulants, children with ADHD were 2.3 cm shorter than the average child without ADHD, and 4.21 cm shorter than non-medicated children diagnosed with ADHD. (Directly ties use of medication to growth retardation, and again does not support syndrome related growth disturbance.)
3. The findings of the ongoing study did not support the hypothesis of growth rebound or catch-up growth if medication was stopped. (Growth delay is permanent- full growth recovery is not regained.)
4. The participants of the study enrolled at ages 7-9 and were between 10-12 at the 36 follow-up. The longitudinal study continues in order to determine the effects of these medications on puberty.
g. More recent clinical research not only disproves the long held consensus opinion that central nervous system (CNS) stimulant medications have little or no effect on growth in children prior to puberty, but state very clearly that there is insufficient data to determine the effect continuous use of these medications will have on physical maturation in the adolescent because it has not yet been studied. (239, 149) [Exhibit Z]
h. These studies, as well as numerous other published, peer-reviewed documents in the professional literature support [Applicant]s concerns and his practice. (5, 15, 17, 18, 19, 20, 21) The Hearing Board and the subject matter experts provided no documentation concerning adolescent patients from any published, peer reviewed source that supports their testimony or contradicts the texts and articles referenced by [Applicant]. While the opinions of subject matter experts are important, their expertise and testimony must be relevant to the patient population for which they are addressing. If these expert opinions are not published in a peer reviewed document similar to the documents provided by [Applicant], the provider who does not personally know these experts will not be able to benefit from their knowledge. Dr Nelson cannot be reasonably expected to have knowledge of the unpublished opinions of these professionals who have been designated by some arbitrary or as of yet undisclosed process as subject matter experts.
i. Recurrent reports in the Adolescent Medicine literature as well as [Applicant]s personal experience show that a certain percentage of adolescents with ADHD experience unexplained pubertal delay. This delay appears to be directly related to the use of CNS stimulants, but because of the lack of research, there is no means to identify which patients will be adversely affected. The most striking recent finding is that the dosage of a CNS stimulant at which therapeutic benefit is optimal for an individual patient coincides with the dose at which somatic growth is affected. (149) Another recent study concerning constitutional delay of growth and maturation shows that in a series of patients with pubertal delay, 25% of the patients had ADHD, compared with the average incidence of ADHD in the general population which is 2-10%. The researchers found that constitutional delay of growth or delayed puberty is associated with a baseline increased metabolism rate in affected individuals. Attention deficit hyperactivity disorder in itself is associated with a generalized increase in metabolism. This baseline condition in ADHD results in greater constitutional delay in growth and metabolism when stimulant medications decrease caloric intake. (150)
j. A detailed consideration of the above patient records demonstrate clearly that earlier intervention could have been provided in every case if similarly detailed evaluations had been conducted by physicians previously responsible for providing an appropriate level of examination and care.
56. Tanner Staging is a subjective, visual based system used for the general description of pubertal change, but it is not sufficiently accurate to justify medical intervention using potent steroids and growth hormones when there is intent to treat. All endocrinologists that [Applicant] trained with use direct genital measurements to both identify pubertal delay and to monitor treatment after the initial work-up is completed. [Exhibit G, Exhibit H, Exhibit I] If the baseline information provided to the specialist by the primary care provider is inadequate, treatment is delayed as much as six months in order to document a true delay from a measured baseline. The framework for Tanner Staging was developed in Germany in the 1930s. It was codified by Tanner and Whitehouse in 1955, based on their application of the previous work to serial photographic images of only Caucasian, British, orphaned and troubled schoolchildren from Post-War England living in the Harpenden Childrens Home. The photographs were taken at three to six month intervals beginning in 1948. (167, 220) In general terms, the notation of the Tanner Stage or the Sexual Maturity Rating (SMR) is considered to be part of the annual preventive health examination, (221) but it is not reliably performed or recorded on patient medical charts. [Exhibit P] There is significant inter-rater and intra-rater disagreement in assessment and it does not adequately adapt to multi-ethnic populations where there is substantial variation in hair growth patterns, and considerable, genetically determined variations, to the normal baseline. (220, 221, 178)
a. When Tanner Staging is assessed, the inter-observer reliability of the ratings is poor. (57, 58, 59, 60, 75, 141, 183, 222). Researchers who routinely perform this examination using strict quality control for studies such as (NHANES III), a nationwide cross sectional attempt to determine average national trends in pubertal timing, disagree on one in four (1/4) patients allowing for a one stage variability between observation results. (210, 165, 228, 250) There is no similar data to compare the reliability of Tanner Staging for the majority of providers who only occasionally actually perform the evaluation. Astonishingly, given the level of confidence in the data expressed by the authors, until recently the only study attempting to directly address the effect of CNS stimulants on growth during puberty was a cross sectional study that relied on questionnaires for self-staging of puberty based solely on the patients own evaluation of facial, pubic and axillary hair. The results when submitted to the rigors of peer review have charitably been described in subsequent literature as lacking precision. (230)
b. There is considerable genetically determined variation of normal. (75, 178, 232, 54) [Exhibit AA] In terms of puberty, 13 year old boys can present as normal anywhere in a range from pre-pubertal, to fully a developed and reproductively capable male. (47, 162, 213) Documenting an actual baseline measurement (35, 36, 37) in the medical record permits an accurate determination of the amount of actual physiologic change at a later time. This quantifiable baseline can substantially decrease delay of diagnosis, treatment, and cost. When abnormalities are detected, the patient can begin treatment immediately. If development is normal, the data can be an enormous relief to an anxious patient and his parents. (64, 67, 68, 69, 66)
c. Visual Tanner Staging is inadequate when there is an intent to treat. (212, 171) [Applicant] was fully credentialed at Evans Army Community Hospital for the Management of complex adolescent problems to include growth and maturation during puberty, gynecological problems, severe behavioral disturbances, and substance abuse. [Exhibit AF] Early detection and treatment of pubertal growth and development disorders requires accuracy and reproducibility. (187, 75, 141, 212, 186) The decision to intervene with exogenous steroids demands accurate data versus impressions, and due consideration of the serious risks and benefits of treatment. (209, 35, 36, 38) For adolescent patients, many of whom receive only the cursory examinations described by LTC Di in his testimony to the Hearing Board, this visual system, inconsistently applied by multiple providers at irregular intervals provides little or no objective data useful for the early detection of abnormalities that an Adolescent Medicine specialist should not miss or overlook.
d. The most important benefit of genital measurements in providing care to the patient is not so much the accurate determination of Tanner stage, but the ability to determine if there is change from the patients own genetically determined baseline. (212, 187, 188, 160) If there is change, does it continue in the proper sequence and within the appropriate time interval? Once puberty begins, the transition between pubertal stages follows established normative timelines. An increase from a previous measurement at six months can demonstrate that puberty has continued to progress. (48, 49, 50, 51, 52, 53, 54, 55, 56)
57. In addition to growth concerns related to CNS and SSRI medications, genital size is a well documented concern among adolescent males in general. (64, 39, 32, 65, 67, 68, 66, 63)
a. Routine measurement is recommended in Adolescent literature as a means to provide concrete reassurance especially during early and middle adolescence when male adolescent patients are most concerned and curious about their developing bodies and readily compare every aspect of this change to their peers, printed images, and the internet. Most of us are unable to appreciate the gradual changes in our own bodies whether it is vision, weight, hair loss, etc. Similarly, impatient adolescents with these common developmental concerns are unable to appreciate growth and development through day-to-day, self-observation. (24, 64, 66, 67, 68, 70, 231, 219) A cursory exam and unsupported comment of normal provides little reassurance to the adolescent who has already made unfavorable observations (61) or has been bullied or teased by his classmates or teammates. (64, 66, 68, 69, 70) Physical examination of a patient and discussion of findings frequently results in spontaneous and open discussion. (62, 197, 231, 196, 193, 195) It often relieves tension, allays fear, and opens the way for the adolescent to ask questions that would otherwise not be verbalized. (231)
b. Concerns over pubertal development contribute to issues of body image and significantly impact self esteem. (214, 71, 77, 74, 216, 76, 78, 79, 72) Body image and the timing of puberty are known to have significant psychological impact on adolescents; how they see themselves in relation to others, and how they feel about their physical appearance. (73) It is not unusual for adolescents who perceive that they are falling behind their friends in physical growth to drop out of activities, especially sports. (80, 81, 82, 84, 85) The researchers cited recommend measurements because the concrete evidence compared to normalized standards is more reassuring to an adolescent than an unsupported comment of normal. (64, 66, 67, 68, 32) [Exhibit R, Exhibit U, Exhibit V]
58. Various hormonal systems affecting puberty influence the growth and development of the penis, testes, and pubertal hair separately. Accurate measurements revealing disconcordant relational development of these organs compared to a previous, accurately determined reference point can be used to identify and medically compensate many conditions early in puberty. Klinefelter Syndrome (estimated 1:500 males) is an example of a condition where the earliest detection and treatment is beneficial. Although a number of stigmata are associated with the syndrome, the only consistent finding on physical examination is failure of the testes to develop at puberty. The scrotum, penis and pubic hair often appear to develop normally without testosterone, under only androgenic influence. (218, 174)
a. The case of the soldier with five previous physical examinations at military treatment facilities to include Evans Army Community Hospital, none of which diagnosed Klinefelter Syndrome, is illustrative of the diagnostic value of genital measurements during the pubertal period. Normal genital maturation occurs in a predictable sequence. For the male, testicular enlargement, Tanner II, is normally the first physical change of puberty followed in Tanner III with further testicular enlargement and penile lengthening. In Tanner IV there is continued testicular enlargement further penile lengthening with discernibly increased circumference. If penis lengthening is detected before testicular enlargement, further investigation is necessary. Due to genetic variations in baseline physical attributes, simple visual inspection is insufficient. A phallus length of 8cm can be normal from before puberty (Tanner I), all the way through the peak height velocity growth period (Tanner IV). [Exhibit AA ] This patient appeared visually to develop normally during puberty because his penis was normal appearing, his scrotum enlarged, and he developed pubic hair. In order to detect and treat his Klinefelter syndrome early in puberty, his provider would have needed to discover penile development before testicular enlargement which could only be demonstrated by serial genital measurements in which the testicular volume remained static while the penis did not. The benefits of early treatment and other medical conditions are well documented in the literature. (175, 233, 174, 173, 236, 219)
b. A lack of treatment often has a needless negative impact on the quality of life for the untreated patient. Identifying and treating a condition as common as Klinefelter Syndrome early in puberty allows for early intervention with physiologic hormone replacement treatment resulting in a more normal physical and emotional development for the patient. In some patients who are diagnosed early, it allows for the harvesting of testicular tissue for cryopreservation before the destruction of the somniferous tubules occurs. Recently, preserved testicular tissue samples from early adolescence have been successfully used to harvest viable sperm for infertility treatment at the appropriate later time. (177)
c. In a separate case at Ft. Hood, a young Soldiers wife divorced him after [Applicant] diagnosed their infertility as being due to his previously undetected Klinefelter Syndrome. [Exhibit AB] Knowledge of this condition before marriage could have allowed the couple the opportunity to discuss and modify expectations concerning biologically related children and family composition. Faced with imminent deployment to combat the diagnosis was too great a strain for the couple.
d. There is an obvious system-wide failure when these Soldiers can pass through MEPS and multiple other periodic physical examinations where the GU exam is a required component of the evaluation, without ever being diagnosed. In AR 40-501, paragraph Table 8-1, item 32, External genitalia, specifies, Describe any abnormalities. Include results of testicular exam on males. [Tab 8] This is one of only two emphasized entries on the entire table. The MEPS regulation concerning service entry physical examination is USMEPCOM Regulation 40-1, paragraph 7-8 j (1) Male Examination. [Tab 7] The testicles, penis, and scrotum will be examined both by visual inspection and palpation for developmental or acquired abnormality, including without limitation, tumor or infection.
e. In addition to the above problems associated with Klinefelter syndrome, there are additional long term health risks to both the patient and the healthcare system that cares for them that require additional screening vigilance. (173, 176, 172) Patients with Klinefelter Syndrome are at increased risk for other serious health concerns that develop over time such as a substantially elevated risk of non-Hodgkin lymphoma, breast cancer, and lung cancer, and a predisposition to develop pulmonary diseases; chronic bronchitis, bronchiectasis, emphysema; germ cell cancers, particularly extragonadal tumors involving the mediastinum; varicose veins leading to leg ulcers, and diabetes. Potentially correctable hormone deficiency related health concerns associated with Klinefelter Syndrome include incomplete pubertal changes, infertility, and decreased energy, muscle mass and bone mineral density. By diagnosing and educating the patient of these possible complications, appropriate risk reduction and preventive measures may be taken. (176, 172) The patient depends on the physician to detect problems early. This patient dependence presents the physician with a moral imperative and professional responsibility to actually and appropriately physically examine their patients.
f. Klinefelter Syndrome illustrates a variety of medical concerns in a single condition, however there are many other occult diagnoses that present as delayed puberty including: hypothalamic or pituitary disease, abnormal genetic composition, organic disease such as hypothyroidism, inflammatory bowel disease (Crohns, Ulcerative colitis, Celiac disease) or renal tubular acidosis. (185, 186) It is important to note that these conditions are often occult- or without obvious symptoms in an adolescent patient. The first indication of these illnesses is delayed puberty. Delay in recognition delays treatment. Delayed treatment can result in increased morbidity.
59. Finding Number 2 then states, [Applicant] challenged the validity of having LTC Bruns do the chart review since he is an otolaryngologist and not a primary care physician. LTC Bruns does have specific training in chart review and is employed as a medical reviewer by an outside agency.
a. It is reasonable to ask if the peer reviewer practices clinic or hospital level primary care medicine on a routine basis, and to ensure that the reviewer understands terminology and current standards for various procedures. According to his testimony, Dr. Bruns most recent primary care experience was two years prior to his review of [Applicant]s charts, while deployed for one month to the Mojave Desert in a field environment at the National Training Center. The level, intensity, and nature of primary health care provided in a tent or from the back of a military vehicle are substantially different in the field environment as compared to the comprehensive standards required in a hospital clinic where the patient receives routine health care from an assigned Primary Care Manager (PCM). [Applicant] knows this to be fact because immediately prior to his assignment to EACH, he was the Command Surgeon for the National Training Center, and the Deputy Commander for Clinical Services for Weed Army Community Hospital. In these positions he was responsible for training, evaluating, and supervising the treatment of Soldiers in the field, and he directed the back-up medical services provided any Soldier evacuated from the field to the hospital.
b. Statements concerning deficiencies noted by a reviewer that are based on his unfamiliarity with terminology or practice guidelines can potentially result in erroneous negative findings. These negative findings, even if eventually corrected, have the potential to leave a lasting negative impression on the proceedings. This is particularly important considering the composition of the Hearing Board. Three members of the Hearing Board were not privileged clinical providers (nurses or hospital administrators), three members were not primary care providers (general surgeon, psychiatrist, obstetrician), and one was a primary care provider who had not participated in active clinical practice for greater than five years.
c. Irrespective of his alleged employment, Dr. Bruns does not meet the qualifications set forth by regulation as a peer. The scope of his civilian employment and the qualifications necessary for that position has not been disclosed in any document that has been made a part of this investigation. The unsubstantiated assertion of the author of the Credentials Committee report does not in any manner demonstrate that Dr. Bruns, a highly specialized ears, nose, and throat surgeon, is competent to conduct a peer review for a primary care provider. The frailties of the chart review certainly do not support these implied qualifications. The author of the document did not provide any proof of qualifications, training, or even a copy of the required command authorization permitting Dr. Bruns to moonlight in a capacity that might demonstrate some additional qualifications. Dr. Bruns, himself admitted during testimony at the Hearing Board, I know I am not an expert in Adolescent Medicine. (Hearing Board p. 50)
d. LTC Bruns noted that although [Applicant] evaluated male patients for possible hernia prior to Osteopathic Manipulation, he did not evaluate female patients for hernia. This implies that [Applicant] neglects to evaluate female patients in the same manner as male patients. Once again unfamiliarity with the procedure causes a perception that male patients are being examined without proper indication. The real difference is based on anatomical differences between males and females. Even though justified and proper, the perception of impropriety compounds other misperceptions caused by speculation and false information.
e. COL Johnson notes in the findings notification letter that the Consultant for Osteopathic Medicine confirms that hernia check on a male patient prior to abdominal manipulation is referred to in the literature. This acknowledgement was not made during the Hearing Board which indicates an additional witness was contacted outside of the regulatory requirements of the Hearing Board violating the provisions of AR 40-68 paragraph 10-8b(4) which require that [Applicant] have the opportunity to question and clarify issues with any witness called. There is no indication that this information was presented or available to the Hearing Board before they voted. It is therefore unknown if the Hearing Board considered this information in their deliberations or if the annotation was simply added to the findings to imply fairness. If this witnesss interpretation of the literature had differed from [Applicant]s, [Applicant] would not have had an opportunity to cross examine or clarify concerns.
f. The erroneous information caused by the incompetent, hurried, and incomplete review of the medical records by Dr. Bruns combined with his flawed interpretation of his observations resulted in additional negative impressions being added to an already unsound process.
g. This situation was compounded by the absence of an Osteopathic Physician on the Hearing Board. AR 40-68 paragraph 10-8i states, A privileged provider from the same discipline as the provider in question should be a voting member of the Hearing Board. The philosophy and practice of manipulation in Osteopathic Medicine differs somewhat from Allopathic Medicine, and the absence of a physician trained in Osteopathic Medicine was prejudicial to [Applicant].
60. During his Hearing Board testimony (pp 22-23, Hearing Board transcript), LTC Di was asked, if given the luxury of time and a new patient, would he do a complete exam on the initial assessment. His response, I would say not necessarily. And the reason why is certainly because its sort of the fluidness [sic] of our clinic; seeing the same provider every time can be quite difficult. He continues by stating, expecting to do a full exam in many cases may not be appropriate because, for most teenagers, what you want them to do is to get comfortable with you as a provider and to trust you.
a. This statement is difficult to reconcile because it appear to be in conflict with itself, and presents a circular argument that ultimately prevents the delivery of the Preventive Health Examination recommended in published, peer reviewed literature to patients who receive sporadic, or episodic care from multiple providers. [Exhibit K, Exhibit L]
1. The patient has to develop a relationship with the provider and trust them in order for the provider to conduct a Preventive Health Examination.
2. Clinic fluidity prevents the patient from seeing the same provider which inhibits a patients ability to establish a comfortable relationship.
3. Inability to see the same provider prevents the establishment of a comfortable patient-provider trusting relationship and therefore the Preventive Health Examination is neglected.
It would seem that the typical Adolescent patient, who normally only presents for acute illnesses or the annual sports physical if they are involved in these activities, (22, 24, 28, 29) is in danger of never being adequately and fully evaluated in a Preventive Health Examination. Every major Adolescent advocacy program recommends this type of evaluation annually. (179, 180, 181, 182) If every provider seeing the patient for acute minor illnesses works on the premise that the patient has to get comfortable with you as a provider and trust you, before the patient can be provided the most basic cornerstone of patient care, the history and physical exam, and that clinic fluidity prevents the patient from seeing the same provider and establishing this level of comfort and trust; in this type of clinical setting, who is ever going to fully examine the patient?
b. Multiple providers looking at only acute symptoms over an extended period of time will likely be unable to connect seemingly isolated problems into a comprehensive diagnosis. In essence each provider sees pieces of the puzzle, but no provider sees the complete picture. This complete picture is necessary for adequate treatment and preventive care. It is the purpose for assigning patients to Primary Care Managers by name, in a Medical Home. [Exhibit AK]
c. In 1999, the Surgeon General, through the TRICARE Management Authority, [Exhibit AJ] directed that not only should all patients be empanelled to a primary care provider who is responsible for their routine care, every effort should be made to ensure and promote continuity. [Applicant]s clinic is designed to meet not only the intent of Surgeon Generals directive, but the goals of most primary care providers. (199, 201, 202, 203, 204, 205) [Exhibit K] Evidently, more than six years after the Surgeon Generals directive, some clinics and practices still do not aspire to meet these standards.
d. Using a model wherein no initial examination is performed, published practice guidelines recommending annual PHE are not followed, no solid physical health baseline or point of reference is established, and patients rarely see the same provider, it is easy to understand why so many adolescent patients have no documented, comprehensive health assessment in their medical chart. It is equally understandable why [Applicant], in conducting an appropriately thorough examination, might uncover the many abnormal physical findings in adolescent patients that should have been discovered in some cases years before by other providers (pp. 120-122 of the Hearing Board transcript). A physician who is responsibly adherent and dedicated to his professional responsibilities must establish a therapeutic alliance, completely evaluate new patients as soon as possible, establish a Medical Home for the patient, and ensure the appropriate follow-up with the same provider. According to published, peer reviewed literature, this type of professional attention to the patient is what actually builds trust in the doctor-patient relationship. (135, 136, 137, 139, 200)
e. Peer reviewed and published documents however, indicate that the primary concern of adolescent patients in seeking health care is not trust. It is the assurance of confidentiality that promotes clinical use by adolescent patients. (137, 194, 201)
f. A complete history and physical examination is the foundation of medicine. Even the most casual observer would note that this is [Applicant]'s goal and consistent practice with every new patient. In some other clinics, fluidity is cited as a barrier to the delivery of healthcare in the form of routine Preventive Health Examinations on new patients. During a review of adolescent patient records in the Evans chart room, the record of a patient previously seen in such an Adolescent Clinic located at Brook Army Medical Center was encountered. Out of the 112 records reviewed, this patient was the only one to have ever previously been evaluated in an established Adolescent Clinic. At least seven separate providers had provided service at nine separate appointments to this patient over the period of about a year, and LTC Di was the consulting staff physician on at least two occasions. [Exhibit AC] One staff clinician noted specifically that the patients mother made a separate appointment and voiced concerns for her sons current lack of pubertal growth and development which, at the age of 15, is well outside the expected normal range. (229) There is no indication in the medical record [Exhibit AC] that this patient was ever examined or evaluated for pubertal delay. This concern was never addressed with the patient by any provider in the BAMC Adolescent Clinic prior to his mother speaking to a staff member, or subsequent to her mentioning her concerns. This should be concerning. The medical record shows that this patient had a surgically repaired testicular abnormality at age 6, was being treated for depression, dropped out of wrestling for foot pain, and had limited interaction with others. Even after dropping out of wrestling, he continued to have low body mass index and very low energy. These symptoms, combined with pubertal delay are commonly found in Klinefelter syndrome. (246, 247, 248)
g. Apparently none of the physicians in the BAMC Adolescent Clinic recognized these numerous acute problems as possibly being related. Each acute problem identified was referred to another specialist for treatment. It is very possible that a 15 year old who is not physically maturing may drop out of competitive sports due to teasing, bullying, and the physical inability to compete due to the lack of testosterone stimulation of muscle. (39, 249) Perhaps these minor injuries provided a convenient excuse to quit gracefully or they may be the result of his reportedly delayed puberty associated with a syndrome such as Klinefelter. With over a year to care for this patient, and nine clinical encounters, excluding the multiple additional appointments with specialists outside of the BAMC Adolescent Clinic, the providers in this clinic apparently did not adequately address this patients needs which raises the question of serious neglect. A complete history and physical examination at the first clinical appointment, by a single primary care manager with attention to pubertal development as recommended in references such as the US Army Medical Command sponsored UpToDate reference web site [Exhibit R] would have helped bring all of these issues together. The BAMC Adolescent Service does not appear to have provided any added value to the medical treatment facility in the care of this patient other than to be what is commonly referred to as a consult-generating mill. Seven different providers in this one clinic treated the patient in one years time, providing him no semblance of continuity of care which is another cornerstone of Primary Care under the concept of a Medical Home, [Exhibit AK] and through the directive of the Surgeon General in TRICAREs Primary Care Manager directive.
h. The various providers in the BAMC Adolescent Clinic failed to address in any manner, at any time, a core issue for adolescent patients; pubertal growth and development. (197, 192, 188, 195, 187, 196, 221) The patient was given medication for the treatment of migraine headaches, even though the symptoms described, frequency of occurrence, and general circumstances suggest strongly that they were actually tension headaches. No work-up to ensure that these headaches were not a harbinger of more serious etiology was ever pursued. There was no mention of a headache diary, a staple in the differentiation of the etiology of persistent headaches. There is no mention or documentation of the basic components of a Neurologic evaluation.
i. Clinic providers generated three consults to other services that should have been well within the scope of practice of an Adolescent Medicine Specialist. At his first encounter the patient was referred to Physical Therapy to address Plantar Fasciitis. In March he was referred to Podiatry for treatment of an ingrown toenail. In May 2004 he was referred to Behavioral Health for depressive symptoms. These health issues, all well within the scope of a practice and training of a competent adolescent medicine physician, were superficially evaluated at best, and consulted out to sub-specialists at a greater cost for treatment to the government, and greater inconvenience to the patient.
1. Plantar Fasciitis is readily diagnosed and treated by General Medical Officers, Physician Assistants, and Nurse Practitioners throughout the Army on a daily basis. An Adolescent Medicine specialist with 5-7 years of training should not need to refer a patient to Physical Therapy to treat this condition.
2. An ingrown toenail is similarly treated by providers with far less training to include medics in some cases, on a daily basis across the Army.
3. Uncomplicated depression and adjustment problems associated with the blending of families through remarriage are common in the military, and in general do not require referral to Child Psychiatry for treatment as was the first intervention in the case of this patient The diagnosis and treatment of depression without complications is part of the core training in Adolescent Medicine. Seven separate providers looked at only the acute complaint of the patient, but they neglected to tie the symptoms together or treat the whole patient.
j. [Applicant] is fully committed to providing comprehensive continuity of care to his patients. He is the only Adolescent Medicine specialist in the Army that accepts referred pregnant adolescents and provides prenatal obstetric care, delivers the babies, provides postnatal care to the mother and the newborn, and ensures that social services are available to support the unique complications of pregnancy and single parenthood in the adolescent patient.
61. Finding Number 2 also states, There is no indication for this comprehensive an exam for routine sports physicals as stated by the fellowship director for Primary Care Sports Medicine.
a. This statement misses the point of a Preventive Health Examination entirely and is further evidence of ascertainment bias based on how the question was posed by COL Johnson to the fellowship director for Primary Care Sports Medicine. A detailed, comprehensive health assessment such as [Applicant] provides, is recommended by all of the various adolescent advocacy groups; GPAS, Bright Futures, and the AAP, at specified intervals, usually annually. (198) A sports physical is only a subset of a complete, general physical exam. Importantly, in must be noted that a properly conducted sports physical does not substitute for a comprehensive Preventive Health Examination, but a properly conducted PHE (190) can easily be used to complete the requirements for the sports physical.
b. The Sports Physical form obtained from the official web site for the largest school district in Colorado Springs, School District 20, was submitted as an exhibit during the Hearing Board when it reconvened. [Exhibit AD] It should be noted that contrary to the opinions expressed in some of the expert opinion during testimony, the school district clearly indicates that Tanner staging is required of their athletes. Tanner staging is useful in helping athletes choose a sport where they are more likely to be successful. Athletes who are small in stature or whose maturational immaturity place them at a disadvantage where size and strength are critical to success can be encouraged to participate in other sports. (191) Presumably this is the reason that schools across the nation request Tanner staging be provided by physicians conducting pre-participation physical examinations of young athletes.
62. Due process is required by AR 40-68 and it is specifically defined in the regulation as, The manner in which proceedings are conducted, according to established rules and procedures, in order to protect the individuals 5th amendment right to notice of a hearing, and 14th amendment right to a fair hearing. The foregoing due process violations and misrepresentations found in the Credential Committees and Hearing Boards actions have irrevocably tainted their ability to render an impartial decision regarding [Applicant]s practice and served to reverse and aggravate the initial findings without proper due process. There is sufficient evidence to question whether this was compounded by Command influence. The MEDDAC Commander is not bound by the recommendations of the Credentials Committee and yet apparently he returned their findings for reconsideration until they presented him with the recommendation that he was looking for.
63. Army regulations afford a Commander substantial authority over subordinates, but the Army also recognizes that personal bias may lead a Commander to treat a subordinate unjustly or make decisions that are unfair or unjustified. For this reason, regulations not only grant authority, but specify the conditions required for the Commander to exercise that authority. A Commander is never granted immunity from any regulation, nor may a Commander change the regulation of a higher Command without formally requesting and being approved an exception. Even in the direst emergency the Commander is ultimately still accountable for any actions taken outside of the regulation, once the emergency has passed. Failure of the Commander to observe the regulation is not simply a technicality. Even minor technicalities can result in major injustice. The many violations of multiple regulatory requirements throughout this investigation have resulted in widespread damage to a physicians excellent reputation and career. The damage must be rectified.
64. The MEDDAC Commander derives his authority to investigate a provider and take appropriate credentialing actions from AR 40-68, which specifies the requirements and conditions necessary to exercise that authority. The MEDDAC Commander did not meet those required conditions. After reviewing all the materials submitted by the command and including the AR 40-68 investigation and its accompanying statements, the external Peer Review panel, the sole entity with the regulatory authority to determine Standard of Care, found [Applicant]s practice, including the initial physical examination and each of its components as he conducts it, as well as his use of gloves, and chaperones, as being within the Standard of Care. The vote and findings were unanimous. In order for the MEDDAC Commander to legitimately exercise the authority to take adverse credentialing action against a provider he is required to specify the deficiencies sustained by the peer review process. There were no deficiencies sustained by the peer review process. Because the MEDDAC Commander did not meet the conditions specified in the regulation, he had no authority to take any adverse action against [Applicant]s credentials.
65. By permitting the unsubstantiated testimony of LTC Di, composed of unsupported sworn statements, hearsay reports of conversations uncollaborated by witnesses actually present, and compounded by the use of incomplete, improperly obtained and maintained documents, any semblance of due process or objectivity was destroyed in the very beginning and perpetuated throughout the process. No effort was ever made to formally correct this situation even when it was raised during the Hearing Board, or in subsequent requests for reconsideration. Sworn statements from persons named or referred to by LTC Di (MAJ Greene, SPC Mizell, and Mr. Robert Wolfe) specifically contradict his sworn statement. This is particularly relevant because, unlike LTC Di, each of them was physically present when the events LTC Di misrepresents actually occurred. From the initial investigation conducted by COL Atkinson, whose objectivity was clearly affected by his conversations with LTC Di, to the actions of the Hearing Board, the Credentials Committee, and the MEDDAC Commander, the safeguards of the regulation, and the integrity of the process have been so irreversibly tainted that one can scarcely believe that the members of the Hearing Board, the Credentials Committee, or the MEDDAC Commander actually heard or later reviewed the verbatim testimony and multiple supporting documents. Per AR 40-68 paragraph 10-9 a (1-2), five members of the Credentials Committee who were not members of the Hearing Board were given the responsibility to review the record of the hearing and submit endorsements to the MEDDAC Commander. This was accomplished by circulating a single file among these individuals in the space of one week; the week prior to the hospitals JCAHO inspection. A reasonable person must ask if it is possible for even one person to carefully review and consider hundreds of pages of testimony and supporting documentation in only one week. Incredibly, all five reviewers shared the same packet, reviewed it, and made recommendations to the MEDDAC Commander, while in the midst of final preparations for arguably the single most important inspection that a hospital and its leadership can undergo. This could only be possible if the circulated packet did not contain all of the required attachments or supporting documents which weighed approximately 23 pounds and filled a standard sized book carton. These attachments and supporting documents prove conclusively that [Applicant]s medical practice is within the Standard of Care as was unanimously determined by the external, Formal Peer Review. They also clearly show that he has a far reaching understanding of the not only the original literature, but also the most current, peer reviewed, published research in the field of Adolescent Medicine.
66. Dr. Bruns does not meet the regulatory requirements of a peer by specialty, training, current practice or any known certification. It would appear that only by directing a person with no qualifications in the field of Adolescent medicine or even primary care to review [Applicant]s medical charts could such an incompetent review and subsequent report, punctuated with blatantly obvious ascertainment bias, be produced in order for the MEDDAC Commander to justify his apparently predetermined course of action.
67. The multiple procedural errors together with significant substantive errors and ascertainment bias resulted in the MEDDAC Commanders adverse credentialing action. This report was forwarded to the Surgeon General and is the basis for revocation of [Applicant]s clinical privileges, and adverse reports to the National Practitioner Database and state licensing boards among others, and ultimate deprivation of his ability to earn a living and provide for his family.
68. While there has been considerable investigation and thought given to [Applicant]s practice of Adolescent Medicine nowhere does the record clearly articulate an offense against a patient, misconduct, or breach of the quality of service he provides.
69. The only basis for the determination of Standard of Care which is the starting point for any subsequent actions, recognized and supported by AR 40-68, is the formal Peer Review Panel. A duly appointed panel of experts, senior physicians from outside the hospital and the rating chain, specializing in Adolescent Medicine, Pediatrics, and Family Medicine, reviewed charts and materials submitted by the hospital and voted unanimously that [Applicant]s practice was within the Standard of Care.
70. All allegations against [Applicant] are that he is somehow receiving improper personal gratification from his practice due to the fact that he is more thorough than the small sample of physicians consulted in a poll. [Applicant]s examinations are thorough and complete because he clearly does not want to be a provider who neglects a patient who is depending on his expertise. He has friends, West Point classmates, relatives, and patients who have suffered unnecessarily because of the neglect of other providers who were reluctant to examine them properly. There is strong evidence that early diagnosis and intervention in medical conditions reduces future complications. Paraphrasing the Soldier mentioned earlier in this document, patients depend on the physician to detect problems at the earliest possible point in order to provide the most effective treatment or care. Every aspect of [Applicant]s physical examination, male or female is thorough and accurately documented. He provided examples of multiple patients of various age groups whose previous examinations by other providers in the military system have been neglectful, in some cases missing potentially life-threatening and potentially litigious conditions. It is this system-wide neglect that prompts his vigilance.
71. [Applicant] is an Adolescent Medicine specialist. By definition his medical practice is specifically oriented toward the life changing events related to the physical, cognitive, and psycho-social maturity of adolescent patients. He has a professional obligation to identify pubertal and developmental problems as early as possible, and to anticipate problems that patients may be reluctant to bring to his attention due to shame, embarrassment, or ignorance. This obligation requires him to be attentive to the problems of this specific age group that other providers in other specialties may not be familiar with. Throughout medical literature, the physical examination of new patients early in the therapeutic relationship is recognized as the best means of developing confidence and trust in the provider. Discussion of findings during the conduct of the examination often promotes frank and open discussion of the patients concerns, and gives them the spontaneous opportunity to ask personal questions about development.
72. It cannot legitimately be considered excessive that a provider offers and provides the standard age appropriate physical examination to new patients, given parental and patient permission, particularly in light of the level of neglect demonstrated throughout the system. It is inexcusable that nearly 1:3 adolescent males examined by [Applicant] in the Adolescent Clinic would be found to have a previously undiagnosed genital infections, genetic disorders, or developmental disorders. Concealing this level of negligence in the hospital system and silencing the source of its revelation using the biased interpretation of an inaccurate and incompetent chart review to justify this credentialing action can serve no purpose other than to protect the personal reputation of the MEDDAC Commander and the hospital leadership at the expense of patient care.
73. AR 60-48 requires that the Hearing Board establish by a preponderance of the evidence, cause to restrict [Applicant]s practice. Based on the foregoing procedural and substantive errors, the Hearing Board, Credentialing Committee, and the MEDDAC Commander have not met their burden of establishing that [Applicant]s practice does not meet the Standard of Care. The evidence provided by the Board does not outweigh the overwhelming evidence presented by [Applicant] in support of his practice. The Credentialing Committee and the MEDDAC Commander have provided no credible rational for revoking his credentials, damaging his personal reputation within the local community and the medical community at large, depriving him of discretionary pay, denying him funding, time, and the opportunity to attend educational conferences, preventing him from serving the nation in a manner befitting his level of training and experience, or justification for the enormous emotional and physical strain on him and his family.
74. The decision to revoke [Applicant]s clinical privileges will have a permanent impact on [Applicant]s professional career. He is now required to retire from the Army prematurely. He is required to report all adverse privileging actions to his licensing authority, all future potential employers, malpractice insurers, insurance payees, and patients who inquire. These significant consequences are not based on any substantiated misconduct. The investigation in this case was obviously the direct result of intervention by LTC Di who volunteered information that was statutorily protected by provisions of DoD Directive paragraph 4.2, (Tab 2) in accordance with 10 U.S.C.A. 1102 [Tab 3], and improperly maintained information in violation of AR 40-68 paragraph 10-6b(2) and AR 40-68 paragraph 10-6 f(3)(c), that was not complete and not accurate. This inaccurate information was officially presented to COL Atkinson, the CID, the hospital MEDDAC Commander, the Credentials Committee, the Hearing Board, and various other named or even unidentified individuals who have been solicited by the DCCS for input concerning this case. The incomplete and incorrect information in conjunction with their reliance on LTC Dillions false official statements and unsupported expert opinion presumably forms the basis of any negative conclusions that any of these entities may have reached in the course of their investigations.
75. The failure of the MEDDAC Commander, the Credentials Committee, and the Hearing Board to follow the basic requirements set forth in AR 40-68 is a violation of due process. The resulting ascertainment bias is so severe that [Applicant]s well documented and thought out application of current guidelines for adolescent healthcare, based on the verified and solid research, conducted by published experts in peer reviewed journals and textbooks, were not duly considered. The detailed references to these published documents was countered with selected comments solicited by the command group from hand selected experts who have no retrievable, peer reviewed, published (scholarly) references, in which their views on these particular practices can be evaluated by others for possible incorporation or adoption into practice. There are however, published experts in the field who have made their opinions and research available. [Applicant] cannot reasonably be expected to practice medicine based on the secret opinions of experts who have never formally submitted their opinions for the review and evaluation of their peers. Legitimate, peer reviewed, published medical literature from multiple sources has been presented in support of every single practice parameter questioned by the Hearing Board, Credentials Committee, and the MEDDAC Commander. Not one patient contacted and interviewed ever alleged that [Applicant] has acted in an inappropriate manner. [Applicant] provided documentation of multiple patient encounters demonstrating conclusively that there is a real, measurable, system-wide failure to appropriately examine patients and that his consistent, systematic approach to examination and documentation resulted in undeniable benefit to his patients. There is absolutely no legitimate basis for the adverse actions taken against him.
76. [Applicant] should not be punished for following the medical literature in his practice when no official protocol existed. [Applicant] reaffirms his commitment to abiding by any appropriate protocol established for Adolescent Medicine.
77. COL (Dr.) Nelson respectfully requests that this Board direct the reinstatement of his clinical privileges to their previous level at Evans Army Community Hospital without prejudice, direct the re-establishment of his Adolescent Clinic at Evans Army Community Hospital with appropriate staffing, restore all discretionary specialty bonuses at the maximum level for his specialties, direct that all documents pertaining to this investigation conducted by any federal agency be un-titled and/or destroyed. He requests that all notifications of adverse credentialing actions be withdrawn from the NPDB and the Federation of State Licensing Boards. He asks that all agencies and individuals that have been provided any information concerning adverse actions or have been interviewed in the collection of information in this investigation be notified that the patient complaint was reviewed by a qualified panel of experts and determined to be unfounded, and that extensive review of current medical literature and his medical practice demonstrates that he conducts his practice in a manner that was found to be within the highest standard of care. [Applicant] requests that the Army take all possible steps to assist him in re-establishing his personal reputation as a highly competent healthcare provider both in the medical community and the patient community. His unencumbered security clearance should be returned at its previous highest level, and those responsible for making false official statements or in violation of federal statutes regarding the unauthorized release of Medical Quality Assurance records and information, be prevented from further illegal and statutorily punishable release of this protected information.
78. In light of the significant damage caused by the revocation of his medical credentials, and the resulting requirement to retire, the inaccurate report by MEDCOM to the National Practitioners Databank and others, and the permanent impediment to employment as a Physician, [Applicant] respectfully requests that this Board expedite the review of this request and finalize action prior to his retirement date of 30 June 2008.
16. An advisory opinion was obtained in the processing of this case on 26 June 2008. The Attorney Advisor, Office of the Staff Judge Advocate, U.S. Army Medical Command, Fort Sam Houston, Texas, started:
a. the applicant provided a 57-page application, with attachments, asserting numerous errors that he believes warrant the ABCMR to grant him the relief requested in paragraph 77. He requests the ABCMR to direct the reinstatement of his clinical privileges to their previous level at Evans Army Community Hospital (EACH) without prejudice, direct withdrawal of all notifications of adverse credentialing actions from the National Practitioner Data Bank (NPDB) and the Federation of State Medical Boards, and to restore him to his previous status in all matters as if the adverse privileging action had never happened, but especially with regard to pay, bonuses, and his security clearance;
b. after a thorough review of the proceedings, taking into account the applicant's comments, we are of the opinion that the record complies with DoD 6025.13-R, (Military Health System (MHS) Clinical Quality Assurance (CQA) Program Regulation, June 11, 2004) and AR 40-68. The applicant was accorded all due process rights under these regulations and was represented by counsel. In our view, the decisions of the EACH Commander to revoke the applicant's privileges and of The Surgeon General of the Army to uphold the revocation and report his conduct to the NPDB are supported by the facts and fully warranted considering the totality of the circumstances. We recommend denial of all relief requested;
c. this advisory will not specifically address the numerous assertions of error in the adverse action process alleged by the applicant. In our judgment, taken in their totality, these alleged errors, even if they were errors, do not materially affect the overall process. In our view the health care providers applied the adverse action procedures in good faith and in substantial compliance with directives to provide the EACH Commander and The Surgeon General with facts and recommendations to protect quality patient care while at the same time providing the applicant with a just, evenhanded process;
d. the following were the actions taken in this case.
(1) Abeyance: The applicant's clinical privileges were placed in abeyance on 4 April 2005 by the EACH Commander based upon evidence that he performed an inappropriate examination and practiced outside the standard of care. On 5 May 2005, the applicant's privileges were placed in summary suspension;
(2) Quality Management Investigation: On 7 April 2005, an Investigating Officer (IO) was appointed to investigate the allegations of inappropriate touching of a male adolescent patient and unprofessional conduct. The IO concluded sufficient cause existed, recommending the Commander require a chaperone for all of the applicant's minor male patients, remove his supervisory responsibility, and reassign him to a medical center;
(3) Credentials Committee: On 18 May 2005, the Credentials Committee reviewed the IO's report and recommended a peer review;
(4) Peer Review: On 9 June 2005, an external Peer Review Panel reviewed the record and the applicant's written statement. The Panel recommended reinstatement of the applicant's privileges with a further recommendation that all his examinations of adolescents age 14 or under have a legal guardian or parent chaperone present; adolescent patients age 14 and over could request a chaperone, with an option to decline in writing, and the findings of the examination would be explained to the chaperone;
(5) Credentials Committee Review/Action by Commander: On 10 June 2005, the Credentials Committee disagreed with the Peer Review recommendations and again voted to restrict the applicant's privileges. The restriction required him to "discuss the indications for a comprehensive genital exam and explain how he conducts a genital exam with parents or a guardian of adolescents up to the age of 18, and obtain informed consent prior to a genital exam. The parent or guardian will chaperone." On 27 June 2005, the Credentials Committee met again to review the applicant's response and recommended restricting him from seeing males under the age of 21 and adherence to the chaperone policy regarding females. The Commander approved the restriction and notified the applicant of his decision on 7 July 2005;
(6) Hearing: On 12 July 2005, the applicant requested a formal hearing. On 8 August 2005, a hearing was held to provide the applicant his due process rights and to determine whether his practices were outside the standard of care due to the following: that he performed examinations which were more in-depth than required, that the exams were not clinically indicated, that the examinations were performed without gloves and chaperones, and that he examined an adolescent in his home in Hawaii who was no longer his patient. The applicant, with assistance from counsel, presented evidence and questioned witnesses. On 8 September 2005, the Committee concluded that: the applicant initiated a hernia check prior to osteopathic manipulation in Hawaii in the presence of the patient's father, which was discussed with The Surgeon General's Osteopathic Consultant and found to be within the standard of care; he followed a pattern of doing genital exams on a majority of adolescent males that included milking the penis to assess for discharge, measuring penile length, and measuring penile circumference, often done without a chaperone and without gloves. Further, he performed genitourinary exams on male adolescents whose chief complaints were unrelated to genitourinary pathology and a review of his charts demonstrated the genital exams were limited to male adolescents only. During the Committee's deliberations, the members also relied on a poll of active duty adolescent medicine physicians that asked whether they 1) milked the penis during a genital exam, 2) measured the penile length, and 3) measured penile circumference. All 10 physicians that responded to the poll answered in the negative. The Committee recommended that the Commander restrict the applicant's privileges to prevent him from seeing male patients under the age of 18. The applicant requested reconsideration, in part because the poll of active duty adolescent medicine physicians was not presented during the hearing or to [Applicant] before the hearing. The EACH Commander granted the reconsideration based on this irregularity and a second hearing was held to review and discuss the additional evidence. On 18 November 2005, the Committee recommended restriction of privileges preventing the applicant from seeing male patients under the age of 18 for a period of two years, unless new information became available allowing for reconsideration;
(7) Commanders Action on Hearing Recommendation: On 4 January 2006, the EACH Commander revoked the applicant's privileges after reviewing the quality assurance investigation, peer review, Hearing Committee findings and recommendations, the Credentials Committee minutes, evidence, and requests for reconsideration. On 27 January 2006, the EACH Commander reviewed the applicant's request for reconsideration and determined that no new evidence was presented to change the revocation action;
(8) Appeal to Regional Medical Command (RMC): The Great Plains RMC Appeals Committee reviewed the applicant's appeal and the decision of the EACH Commander to revoke the applicant's clinical privileges. On 19 September 2006, the Appeals Committee recommended upholding the revocation of the applicant's privileges stating, "The committee expressed concern that the applicant's practice and methodologies do harm to patients." It concluded, The committees concern for the patients that may be harmed is too great to consider any other decision other than to uphold the EACH Commander's decision to revoke his privileges." The Commander, Great Plains RMC, reviewed the committees action and concurred, forwarding the action to The Surgeon General on 20 October 2006; and
(9) Decision by The Surgeon General: On 22 June 2007, The Surgeon General after a comprehensive review of the entire record, to include matters presented in the applicant's appeal, concluded that the revocation of his clinical privileges was proper. The applicant was informed of this decision by memorandum the same date. He was reported to the NPDB on 20 July 2007.
(e) The National Practitioner Data Bank (NPDB) was established by the Health Care Quality Improvement Act of 1986, Pub. L. No. 99-660, 100 Stat. 3784 (codified as amended at 42 U.S.C. §§ 11101-11152 (2007)). The NPDB functions as a repository for information relating to the professional competence and conduct of physicians, dentists and other health care practitioners. 45 C.F.R. § 60.1 (2007). This statute is implemented within the Department of Defense (DoD) by DoD 6025.13-R and within the Army by AR 40-68. The Surgeon General is required to report adverse privileging actions against a provider to the NPDB and the Federation of State Medical Boards and/or other appropriate authorities. (See DoD 6025.13R, C4.2.4.2.1 and C10.6.5; AR 40-68, paragraph 14-3);
(1) A Military Treatment Facility (MTF) commander takes action against a providers privileges based on performance suspected or deemed not to be in the best interest of quality patient care. (AR 40-68, paragraph 10-2) The commander decides what privileging action to take based on the facts provided. The commander is not bound by the recommendations of the credentials committee or the peer review panel. If the proposed action is to deny, suspend, restrict, reduce, or revoke the providers privileges, the commander must advise the provider in writing of his/her hearing and appeal rights. The commander must address in the notice to the provider the specific allegations that constitute grounds for the hearing and will include relevant dates and copies of patient records that are pertinent to the hearing. (AR 40-68, paragraph 10-6f(7)(a)) All these requirements were followed in the applicant's case;
(2). An MTF commander will review the hearing record (including credentials committee/peer review panel findings and recommendations and any input from the provider in question) and make a decision regarding the providers privileges. Once again, the findings and recommendations contained in the hearing record are advisory only and not binding on the commander. If he/she denies the request for reconsideration in whole or in part, the action will automatically be endorsed to The Surgeon General through the RMC Commander as an appeal. (AR 40-68, paragraph 10-9c(1)) All these requirements were followed in the applicants case; and
(3) The Surgeon General is the final appellate authority for denying, suspending, restricting, reducing, or revoking clinical privileges. (AR 40-68, paragraph 10-8b).
(f) the applicant has requested the revocation of his clinical privileges by the EACH Commander be restored by the BCMR; however, based on our review, we do not see evidence of error or injustice that would warrant such an action. Nor do we conclude that the EACH Commander abused his discretion.
g. the applicant has requested the ABCMR remove the adverse action report from the NPDB and other reporting agencies. We respectfully note that the ABCMR cannot directly order the removal of information from the data bank or other reporting agencies since these are not records under the control of the Secretary of the Army. The ABCMR could inform the data bank or other reporting agencies that the original notification was in error; but based on our review of the facts in this case the report approved by The Surgeon General was an accurate statement. We strongly believe that no error or injustice occurred in the adverse action process and no correction is warranted.
h. the applicant was afforded all regulatory due process during this action and was represented by counsel. The process was marked by fairness throughout and he was provided several reconsiderations and an appeal to The Surgeon General of the Army. He case was reviewed by his peers at both the Military Treatment Facility and the Regional Medical Command. It was reviewed for substantive and procedural compliance at HQ U.S. Army Medical Command prior to final action being taken by The Surgeon General. The entire process took over 28 months to complete and was accomplished with a painstaking adherence to procedural requirements befitting the serious consequences of the action. Legal reviews were accomplished at all levels and the procedure was found to be legally sufficient during each phase. In our opinion, the revocation of [Applicant]s clinical privileges was justified and appropriately reported to the NPDB after following all applicable due process and appeal procedures. We recommend denial of [Applicant]s request to reinstate his clinical privileges and to remove the adverse action report from the NPDB and other reporting agencies. Correspondingly, we recommend denial of all other relief requested by [Applicant] since it is based on the foundation that the adverse privileging action was flawed;
i. the information contained in this advisory was complied from quality assurance documents prepared under the protection of 10 U.S.C. 1102 and is not to be disclosed to the public. Quality assurance information is authorized for release to the ABCMR for its use and consideration pursuant to AR 40-68, Appendix B, paragraphs B-6(b) and (e). However, the records of the quality assurance activity or process remain confidential and further disclosure may be made only as specifically provided by law. This extends to any person or entity having possession of or access to quality assurance records or testimony. AR 40-68, Appendix B, paragraph B-9 requires the following disclosure statement to be included prior to release:
Quality Assurance Document under 10 USC 1102. Copies of this document, enclosures thereto, and information there from will not be further released under penalty of the law. Unauthorized disclosure carries a statutory penalty of not more than $3,000 in the case of a first offense and not more than $20,000 in the case of a subsequent offense. In addition to these statutory penalties, unauthorized disclosure may lead to unfavorable actions under the UCMJ and/or adverse administrative action, including separation from military or civilian service.
The ABCMR is advised that this office had earlier reviewed the applicants adverse privileging action prior to The Surgeon Generals final decision. That review was prepared by a different attorney. I prepared this advisory for the ABCMR without having any previous knowledge of this case. However, the ABCMR may properly ask for an additional review from the Office of the Judge Advocate General if it so desires.
On 31 July 2008, the applicant submitted his rebuttal to the advisory opinion through his counsel. In this rebuttal he argues the following issues:
The Advisory Opinion submitted by the U.S. Army Medical Command was not
responsive to the ABCMRs request and it only reiterates the procedural history of the case in a very general way.
The applicant provided over 250 citations from published, peer reviewed, professional medical journals and textbooks that support his medical practice. The hospital and MEDCOM have not provided one single published, peer reviewed journal or medical textbook article or citation to support their opinions.
Not one patient surveyed alleged any improper actions on the part of the applicant. The patient and parent testimony at the Hearing Board fully discredited LTC Dis sworn statement to the contrary. Nevertheless, the Hospital and MEDCOM continued to solicit his opinion and recommendations throughout the process.
The Advisory Opinion states that, the health care providers applied the adverse action
procedures in good faith. The irony in this assertion is that a substantial number of the health care providers who participated in the Credentials Committee meetings and on the Hearing Board was not health care providers at all as defined by regulation.
The Advisory Opinion essentially admits that there were errors in the procedure. In paragraph 3, the Opinion states In our judgment, taken in their totality, these alleged errors, even if they were errors, do not materially affect the overall process. Later in the Opinion, in paragraph 8, the Opinion states, The entire process . . . was accomplished with a painstaking adherence to procedural requirements befitting the serious consequences of the action. The assertion in the Opinion that there was painstaking adherence to procedural requirements is simply inaccurate. Attention is invited to the undisputed procedural errors contained in the applicants Chronological Summary. For example, AR 40-68, (10-6 e (2) (c) provides that the Formal Peer Review Panel is responsible for determining whether a physician failed to adhere to professional standards of practice. Neither the Credentials Committee nor the Commander has the authority to make or change this determination. Notwithstanding the Panels finding and the Credentials Committee recommendation for reinstatement, the Evans Army Hospital Commander sent the case back to the hospital Credentials Committee. An informal peer review was ordered whereas AR 40-68, 6-4 requires a formal peer review if there is to be a review. An ad hoc credentials committee was improperly convened was directed to consider the informal peer review panels finding and recommended suspension of the applicants privileges. Then, the Board Chairman asked one LTC Di, a physician who had a history of conflict with the applicant, to conduct a poll concerning the applicants practices. This poll was not sanctioned by the regulation and was subject to manipulation without any input from the subject of the poll. The aforementioned examples only scratch the surface of the numerous and outrageous violations of procedure and protocol. The Advisory Opinion states that the errors, even if there were errors, do not materially affect the overall process. Why, one may ask, are procedural safeguards put into place if not for the purpose of protecting against unfair and erroneous outcomes?
The Advisory Opinion summary case is inaccurate in addition to being nonresponsive. It appears that the review was either not thorough or that the reviewer did not understand the process. The process requires the convening of a Formal Peer Review Panel followed by review of the Credentials Committee. The Formal Peer Review Panel unanimously recommended full reinstatement. The Credentials Committee met on 14 June 2005 and voted to recommend reinstatement of the applicants privileges. On 24 June 2005, the Commander rejected the Formal Peer Committee finding that the Standard of Care was met, and directed an informal peer review which was conducted with apparent disregard of the regulation by an unqualified reviewer. The Commander then ordered the Credentials Committee, all of whom were in his Chain of Command or rating relationship, to re-vote.
The Advisory Opinion, to the extent that it finds there were no procedural errors or at
Least none that affected the outcome is simply disingenuous.
As stated earlier, the Advisory Opinion does not address the merits of the applicants claims. As a result of the report to the NPDB, this case was reviewed in its entirety by the Alabama State Board of Medical Examiners, the State in which the applicant is licensed. The applicant was required to appear in person before the Credentials Committee of the Alabama State Medical Board where he testified and responded to questions of investigators, panel members and physician examiners. There was no finding that the applicant failed to meet the Standard of Care or was guilty of any wrong doing. The board strongly suggested that the applicant uses a chaperone in the future, not only for the patients protection, but for his own protection. No adverse actions, stipulations, suspensions or restrictions were placed on the applicant or his license.
Concerning the chaperone issue, please also note that there are numerous signs at Evans Army Hospital advising patients that they have the option of having a chaperone. These or similar signs were prominently displayed during the time frame in question.
The use of a chaperone, primarily for self protection, is not required and may result in the adolescences reluctance to ask the questions on his/her mind and to be candid concerning issues affecting him/her. In the specific case of the examination that resulted in this inquiry, the adolescent specifically did not want his aunt present for the examination and did not want a chaperone. The patient had no complaints concerning this examination.
It makes perfectly good sense for a physician to conduct an examination and interview privately for the benefit of the adolescent and self protection of the physician should not be the primary consideration. Other practitioners agree.
Apart from the issue of chaperones, which is the only issue raised by the Alabama
State Board of Medical Examiners, the Surgeon Generals report suggests there are the issues of the propriety of measuring adolescent male penises. In recognition of the volume of documents submitted in this case, below are representative samples from the literature that establish (1) the fact that penis size and maturation issues are extremely important to adolescent males (2) that their primary care provider is a source in which adolescents can confide and receive information in confidence (3) that adolescent care providers should conduct preventive physical examinations at any medical contact or appointment when the adolescent presents for care in order to detect physical conditions requiring treatment (4) that penile measurement is, at the very minimum, appropriate.
The Adolescent Patient, by H. Verdain Barnes. In the authors view, the patient should be seen alone for the history and the non-genital parts of the physical examination unless the patient prefers to have someone else in attendance. For the genital portion of the examinations, it is appropriate to allow the patient to decide whether he or she wishes a parent, friend or chaperone to be present or to have total privacy.
Textbook of Primary care Medicine, 3rd edition. Young men, in particular are unlikely to see physicians expect for sporadic, symptom-related care, while young women may be seen more frequently for routine gynecologic and family planning visits. These occasions should be viewed an opportunity to ask about concerns, to screen for possible problems, and to provide appropriate anticipatory guidance and referral as necessary. The primary care physician should be familiar with and comfortable about these issues. Unfortunately teens are unlikely to initiate a discussion about sexual concerns, leaving it up to the physician to inquire in a neutral, non-threatening fashion at unrelated visits (e.g. a routine gynecological appointment). Phrasing questions such as Many women (or men) your age have questions about sex and avoiding pregnancy. I would be happy to answer any questions you have today or in the future if you would like creates and atmosphere in which teenager can feel that the subject of sexuality is fair territory for discussion and that their provider is an ally.
Adolescent Endocrinology; Genital size. A common adolescent male concern; Peter A. Lee M.D.. PH.D.; Edward O. Reiter M.D. From the Department of Pediatrics, Pennsylvania State University College of Medicine. The Milton S. Hershey Medical Center, Hershey Pennsylvania and Department of Pediatrics, Baystate Medical Center Childrens Hospital, Tufts University School of Medicine, Springfield, Massachusetts.
Long before adolescence, males hear insinuations about adequacy of penis size. This concern may heighten during teen years and persist to varying degrees into adulthood. Men tend to underestimate their own penis size. This chapter provides objective information about anatomy and growth of the penis, including data about normal sizes.
Although penis size historically has been a common concern among males, the candid, open nature of references to sexuality and, in particular, to genital anatomy in current society causes concern in every adolescent male about the normalcy and adequacy of genital development.
Teenage males should have some basic knowledge of the penis and penile growth throughout childhood and puberty. Data used as reference for medical purposes involve stretched penis length. Such measurements are an acceptable part of physical examination and provide useful information not only about extent of pubertal development but also for comparison with the normal range. However this method requires that the penis be stretched taut and measured along the dorsal surface. (Emphasis added). Some teenaged males may have an unfounded perception of comparative penis size. A reassuring discussion of this topic should be considered part of routine health-care education. For most males, such discussion promotes an overall health perspective, in a few, it may preclude an unhealthy preoccupation as well as psychological or even physical damage. A health-care provider offering concrete information and healthy dialogue about penile size can allow an otherwise self-conscious teenaged male the chance to develop a healthy realistic body image. (Emphasis added)
Mosbys Guide to PHYSICAL EXAMINATION: To the Stages described by Tanner (Chapter 3, Growth and Measurement). The adolescent male needs to be reassured that his genital development is proceeding as expected. If he has an erection during the examination, explain that this is a common response to touch and that are you are not concerned by it. Palpate the penis, noting the following (p. 518) Tenderness Induration;
Strip the urethra for discharge.
Guide to Clinical Preventive Services: Second Edition (1996). Report of the U.S. Preventive Service Task Force, 2nd Edition (1996). Although clinical reasons exist for emphasizing prevention in medicine, studies have shown that clinicians often fail to provide recommended clinical preventive services. This is due to a variety of factors including inadequate reimbursement for preventive services, fragmentations of health care delivery, and insufficient time with patients to deliver the range of preventive services that are recommended. Even when these barriers to implementation are account for, however, clinicians fail to perform preventive services as recommended, 28 suggesting that uncertainty among clinicians as to which services should be offered is a factor as well.
Clinicians must take every opportunity to deliver preventive services especially to persons with limited access to care. One important solution is to deliver preventive services at every visit, rather than exclusively during visits devoted entirely to prevention. While preventive checkups often provide more time for counseling and other preventive services and although healthy individuals might be more receptive to such interventions then those who are sick, any visit provides an opportunity to practice prevention. In fact, some individuals may see clinicians only when they are ill or injured. The illness visit provides the only opportunity to reach individuals who, due to limited access to care, would be otherwise unlikely to receive preventive services.
Department of Health Care Policy and Financing 2005-2006; Adolescent Well-Care Focused Study Report June 2006. The MCOs should emphasize to providers that well-child examinations should be conducted when patients present themselves at a providers office for illness or events, such as sports physicals, accidental injuries, and colds.
Chart Review Summary. This chart review was conducted by Dr. Nelson in 2005
112 Randomly selected Adolescent-aged patients assigned to EACH for Primary Care
Most physical examinations provided little or no content, pertinent positive or negative findings, medical history, or normal variants. Attached are spreadsheets with comments and 11 examples of physical examinations that in most cases reflect the most recent examination in the patient record. In this survey, one medical chart in particular underscores the lack of a compliance with any discernable practice standard, or recommended evaluations content or evaluation interval, within the military adolescent provider community.
This patient was the only one in the group of the medical charts reviewed that had received any documented health care in an established Adolescent Clinic. The patient presented to the Adolescent Medicine Fellowship Training Program at BAMC in October of 2003, for the first time at age 14, with a complaint of bilateral foot pain. He completed a standard HEADSS interview, and provided past medical history that included a report of testicular torsion at age 5. Because this was his initial appointment, in addition to addressing the patients foot condition, the provider also conducted a cursory, initial physical exam including evaluation of some portion of most major organ system, but specifically excluding the genitourinary system. No Tanner Staging assessment was performed. The resident staffed the appointment with LTC Dillon who made no comment on the content or thoroughness of the encounter or its documentation. Over the course of the following year, the patient was seen at least 8 more times in the Adolescent Clinic and Adolescent Medicine Fellowship Training Program at BAMC. In September of 2004, the patients mother met with Dr. Stafford. Dr. Stafford notes that the mother discussed her sons response to SSRI medication for depression (which have been cited for causing growth delay in some patients) and his delay in pubertal maturation. Dr. Stafford suggested scheduling a general health maintenance exam and facilitated the scheduling of an appointment. The patient presented for the appointment within two weeks, but the concerns for pubertal maturation and general health maintenance were never addressed.
This patients care has been neglected across the board, and the Adolescent Service has provided no added value to the medical treatment facility in the care of this patient other than to be a consult-generating mill.
. . . .
These health issues, all well within the scope of a practice and training of a competent adolescent medicine physician, were superficially evaluated at best and consulted out to the sub-specialists at greater cost for treatment to the government and greater inconvenience to the patient.
. . . .
Testicular torsion as reported by the patient is extremely uncommon prior to adolescence. While it is possible, the peak incidence periods are: at less than one year of age, and during middle adolescence, with the average presentation at just over 16 years of age. The fact that this patent reported a testicular abnormality of any sort should have been cause for examination and further investigation and clarification in the adolescent period. If the patient truly experience torsion at age 5, was the testicle viable? . . . Has this patient been taught Self Testicular Examination? Was a contralateral orchiopexy performed at the time of the torsion or was it deferred for some reason? Did anyone follow- up?
d. If this case is illustrative of the practice standard for Adolescent Medicine in the military setting, which should never be confused with the Standard of Care, there is little to justify the time and expense involved in training specialist in the field because they have provided no discernable specialized service.
Jan E. Drutz, MD. Up to date performs a continuous review of over 3550 journals and other resources. Updates are added as important new information is published.
Preadolescent and adolescent males. Accurate adolescent Tanner staging is determined by assessing penile and testicular size and the extent of pubic hair development (show table 1). As the male approaches adolescence, at an average age of 11 to 12 years, the first sign of pubertal onset is testicular enlargement (Tanner stage 2) (show figure 2). In addition to testicular growth at this stage, pubic hair becomes evident, at first long and straight and later curling (show figure 3). Testicular length before puberty is normally 1.5 to 2 cm. Testicular length can be determined using a measuring tape or calipers; alternatively, testicular size and volume can be determined by the use of orchidometer beads. When testicular growth is questionable, ultrasound measurements should be obtained.[4]. Although, somewhat smaller than the right testicle, the left testicle tends to be positioned lower in the scrotum. Penile enlargement begins in stage 2 and continues through stage 5. Accurate measure of the penile length is best achieved by using a ruler, retracting the pubic fat away from the proximal shaft, stretching the penis to its full length.
223.2 An appreciation of these normal variations is crucial to appropriate and cost-effective evaluation and counseling of adolescents, particularly those who present with overt or convert concerns about their secondary sexual development.
Size of Testes Phallus (length)
Typically the adolescents behavior is egocentric (selfish) and body focused. His or her quest for personal identity usually begins by questioning Am I normal?. This in part is the basis for the increasing concern about his or her changing body (i.e. secondary sexual development, acne, blemishes, etc.)
An obvious corollary to confidentiality is that the patient must be seen alone during all or part of the history and physical examination. In the authors view, the patient should be seen alone for the history and the non-genital parts of the physical examination unless the patient prefers to have someone else in attendance. For the genital portion of the examinations, it is appropriate to allow the patient to decide weather he or she wishes a parent, friend or chaperone to be present or to have total privacy (Emphasis added)..
Next I (use the first person, not the third since the adolescent may be confused and apprehensive about what we means) will need to do a physical examination. I am going to examine the area that has been a problem for you as well as your eyes, ears, nose, throat, neck, chest, breasts, stomach, arms, legs, penis and testicles.
Since the adolescent is concerned about body growth, development and normality it is important to identify acne, blemishes, or deformities and inquire as to the adolescents concern about them. If an area appears to be normal and secondary sexual development appropriate for age, it is important to so inform the adolescent since he or she may not ask de novo. This simple process often relieves tension, allays fear, and opens the way for the adolescent to ask questions that would otherwise not be verbalized.
The adolescent stage of secondary sexual development should also be carefully recorded for testes or breasts, and for pubic hair. A distinctly early or delayed onset and/or rapid or slow progression may be result of hypothalamic, pituitary or gonad disease, abnormal genetic composition (Turner or Kleinfelter syndrome, etc.), or and underlying, often occult, organic disease such as hypothyroidism, inflammatory bowel disease (primarily Crohns), renal tubular acidosis, etc.
In summary, puberty is a complex dynamic process about which the physician must have a general working knowledge if optimum comprehensive care is to be provided. As a patient, the adolescent can be frustrating, maddening, unpredictable, time-consuming, and frightening. More important, and more often, caring for him or her is challenging and rewarding.
A. Screening through Comprehensive Well-child Exams. Schedules for periodic screening (knows as periodicity schedules) of medical (including physical and mental health), dental, vision, and hearing services must be provided at intervals that meet reasonable standards of medical practice. For your children, this means more frequent screening visits (for example, five exams in the first year of life). States are required to consult with recognized medical and dental professional organizations involved in child health care in developing periodicity schedules and visit protocols.
CMS rules inform state Medicaid agencies that EPSDT screening must include all of the following: Comprehensive unclothed physical exam.
Report on AR 40-68 Investigation performed by Sid W. Atkinson MD at Evans Army Community Hospital. The computer hard drive of Dr. Nelsons computer at Evans was searched at my request. No inappropriate material was discovered. It was also search for separate files on patient care to look for separate documentation of excessive or inappropriate physical exams.
In conclusion, the Advisory Opinion did not respond to the merits that are presented in Applicants Chronology. The professional literature supports the treatment philosophy and techniques employed by the applicant. Nevertheless, the applicant and his family have suffered embarrassment, professional humiliation, and the gut wrenching agony over the future for the last three years. Granting the relief requested by the applicant is not only the appropriate action based on the evidence, it is the right thing to do.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant's clinical privileges were revoked due to his unprofessional conduct. An IO was appointed and determined that the applicant's misconduct was unprofessional. An External Peer Review was also conducted to determine the validity of the allegations. The panel unanimously recommended reinstatement, the return of privileges to the original state with a recommendation that a chaperone be present when the applicant examines the genitalia of adolescents, age 14 and under, either a legal guardian or a parent.
2. A Credentialing Hearing Committee also convened and reviewed the available evidence together with the Peer Review Panel's recommendation. After this review, the Committee concluded that the applicant's practices were not supported by his peers in adolescent medicine and recommended a permanent restriction be placed on all or a portion of the applicant's clinical privileges.
3. The applicant's case was further considered by the Regional Medical Command Appeals Committee which upheld the revocation of the applicant's privileges citing the applicant's practice and methodology as harmful to patients. The Surgeon General also conducted a comprehensive review of the entire record and concluded that the revocation of the applicant's privileges was proper. The applicant was accordingly notified and the case was reported to the NPDB.
4. With respect to the applicant's arguments:
a. the Surgeon General is required to report adverse privileging actions against a provider to the NPDB and the Federation of State Medical Boards and/or other appropriate authorities. The Surgeon General, after conducting a comprehensive review of the reviewing the entire record, concluded that the revocation of the applicant's privileges was proper and the applicant was accordingly notified and the case was reported to the NPDB;
b. the applicant's request to withdraw all notifications of adverse credentialing actions from the NPDB and the Federation of State Licensing Boards, and the issue of notifications to all agencies and individuals that have been provided any information concerning adverse actions or have been interviewed in the collection of information in this investigation be notified that the patient complaint was reviewed by a qualified panel of experts and determined to be unfounded, is not within the purview of this Board. The applicant is advised to utilize the appeal process to each agency;
c. the applicant's request to punish those responsible for making false official statements in violation of federal statutes regarding the unauthorized release of Medical Quality Assurance records and information be prevented from further illegal and statutorily punishable release of this protected information is not within the purview of this Board. The ABCMR corrects records, it does not investigate or direct punishments against individuals or entities;
d. the applicant's request to return his security clearance to its previous level cannot be supported as the ABCMR does not correct records for the solely for the purpose of establishing eligibility for other programs or benefits. The applicant is advised that if he wishes to apply for a security clearance, he should contact his employer or sponsoring agency who can best advise him on the requirements and eligibility for a security clearance;
e. the applicant's request for the reestablishment of his Adolescent Clinic at Evans Army Community Hospital with appropriate staffing is governed by the Evans Army Community Hospital Commander's needs and resources. The Board;
f. the applicant is no longer in the Regular Army. He retired on 30 June 2008. While he is entitled to retired pay as governed by applicable regulation, he is no longer entitled to any specialty pay or bonus. Therefore, his request for restoration of all discretionary specialty bonuses at the maximum level for his specialties cannot be supported;
g. the applicant's request for the un-titling and/or destruction of all documents pertaining to this investigation conducted by any federal agency is not within the purview of this Board; and
h. the applicant request to take all possible steps to have the Army to assist him in re-establishing his personal reputation as a highly competent healthcare provider both in the medical community and the patient community, does not fall within this Board's purview. Again, the ABCMR does not correct records solely for the purpose of establishing entitlements to other programs or benefits.
4. The applicant was afforded a fair and regulatory due process during this action and was represented by counsel. He was given the opportunity to appeal and request reconsideration on multiple occasions. His case was reviewed by his peers at both the Military Treatment Facility and the Regional Medical Command. It was reviewed for substantive and procedural compliance at MEDCOM prior to final action being taken by The Surgeon General. Legal reviews were accomplished at all levels and the procedure was found to be legally sufficient during each phase.
5. The revocation of the applicants clinical privileges was justified and appropriately reported to the NPDB after following all applicable due process and appeal procedures. In view of the foregoing evidence and since the applicant's argument is based on the foundation that the adverse privileging action was flawed in view, the applicant is not entitled to any of the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X_____ ___X____ ___X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ X _______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080002864
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