IN THE CASE OF:
BOARD DATE: 11 October 2011
DOCKET NUMBER: AR20100016564
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:
The applicant defers to counsel.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests:
a. Reconsideration of a previous request to restore the applicants credentials without prejudice.
b. Removal of all adverse actions approved by the Office of The Surgeon General (OTSG) from his Official Military Personnel File (OMPF).
c. removal of all adverse information from the National Practitioner Data Bank (NPDB), Federation of State Licensing Boards, and any other repository to which this information may have been reported.
2. Counsel states:
a. The Army Board for Correction of Military Records (ABCMR) Record of Proceedings did not accurately report the events and did not conduct a meaningful review of the evidence and matters presented in Docket Number AR20080002864.
b. The applicant did not request that those responsible for release of false statements be punished; instead, he requested that those in positions of authority be restricted from further dissemination of the protected information contained in matters involving his investigation.
c. Counsel alleges the following paragraphs in the Consideration of Evidence section of ABCMR Docket Number AR20080002864 are inaccurate and/or incorrect. Only the paragraphs which fall within the purview of the ABCMR will be addressed:
(1) Paragraph 5 The aunt of an adolescent patient allegedly questioned whether the examination was appropriate through formal inquiry with the patient administrative representative. Neither the adolescent patient nor the parents of the patient ever alleged misconduct and these facts were established by the investigating officer (IO).
(2) Paragraph 6 The IO concluded that the applicants actions fell far from his peers in adolescent medicine and that the applicant was the only known provider to have a record of complaints and a previous adverse counseling.
(a) The allegation that the applicant received a previous adverse counseling statement is totally unsubstantiated. The IO unequivocally states he found no evidence of any wrongdoing during his investigation of the case.
(b) The IOs speculative conclusions were not based on his personal investigative findings, but on Lieutenant Colonel (LTC) D_______s unchallenged, unsubstantiated, and untruthful sworn statement.
(c) The IO also recommended the applicants privileges be limited by an adverse privileging action to disallow his examination of boys unless chaperoned.
(3) Paragraph 7 On 18 May 2005, an Ad Hoc Credentials Committee convened at Evans Army Community Hospital (EACH) and decided to place the applicant's privileges in abeyance.
(a) This statement is incorrect. The Credentials Committee recommended a Formal Peer Review to determine whether the Standard of Care (SOC) had been met.
(b) The committee unanimously recommended the reinstatement and the return of privileges to the original state and found that the treatment was not outside of the SOC.
(4) Paragraph 9 On 14 June 2005, the Credentials Committee met to consider the results of the peer review. After a review of the External Peer Review Panel's findings and recommendations, the Credentials Committee also recommended the applicant's privileges be reinstated.
(a) Even though the Credentials Committee recommended the applicants privileges be reinstated, the hospital commander rejected the recommendation and ordered an informal review.
(b) There is no regulatory authority for the course of action used by the hospital commander. Army Regulation 40-68 (Clinical Quality Management) stipulates that in cases where adverse action is contemplated the peer review must be a formal peer review panel and further specifies the minimum number of members (three), with a similar background, grade, and years of experience in the same professional capacity/specialty.
(c) The same regulation also specifies that prior to the commander initiating a hearing not limited to an ad hoc committee will specify the deficiencies substantiated by the peer review process. The hospital commander ignored the regulation and convened an improperly-composed informal peer review to reconsider the findings of the properly constituted formal Peer Review Panel and ultimately denied the applicant due process as dictated by the Army regulation.
(5) Paragraph 10 On 15 June 2005, an Ad Hoc Credentials Committee convened to discuss the validity of the allegations and to make recommendations to the commander regarding the applicant's clinical privileges.
(a) The statement is incorrect. On 27 June 2005, the hospital commander convened an ad hoc Credentialing Committee meeting for a re-vote based on the findings of the extra-regulatory, informal peer review.
(b) The informal peer review was not a legal quorum as required by regulation as it included members who were not qualified under any regulation. This group recommended a permanent restriction on all or a portion of the applicants clinical privileges.
(c) The implication in this instance is that the committee was given a message from the hospital commander to recommend restriction on the applicants clinical privileges.
(6) Paragraph 11 On 8 August 2005, a Credentials Hearing was conducted at the request of the applicant. Upon review of all the evidence and testimony, the Credentials Hearing Committee determined there was insufficient information to determine whether his conduct met the SOC and the committee reconvened in September 2005.
(a) The Hearing Board which convened on 8 August 2005 was composed of a majority of members who were not qualified under any regulation. That particular committee did not have the authority to determine the SOC. That determination is the sole responsibility of the Formal Peer Review Committee, which found the applicant met the SOC.
(b) The hospital commander may choose not to follow the recommendation of the External Formal Peer Review with regard to privileging, but neither he, the Credentials Committee, nor the Hearing Board have the authority to change the findings concerning the SOC. The key points to be made:
(aa) The Hearing Board was convened without regulatory authority due to the fact that there were no deficiencies substantiated by the peer review process.
(bb) The purpose for the hearing board was unclear because without departure from the SOC there was no reason for the board to convene.
(7) Paragraph 12 On 7 September 2005, the Credentials Hearing Committee reconvened and reported: The applicant performed a genital examination on a 12-year old adolescent male for a hernia. The committee also noted that the applicant followed a pattern of doing genital examinations on a majority of adolescent males that included: milking their organ to assess for discharge, measuring the organ length, and measuring the organ circumference. The Committee concluded the applicant's practices of genito-urinary (GU) examinations were not supported by his peers in adolescent medicine.
(a) The allegations made in this paragraph are basically correct. However, the statements must be taken in context:
(b) The option of a chaperone was offered in all cases, and the adolescents declined chaperones in all cases that are relevant to this case.
(c) The gloves issue had been a recurring issue throughout the process and the applicant had never denied statements that he did not use gloves during genital examinations of his adolescent patients.
(d) The instructional video from the Department of Veterans Affairs (VA) provides instructions which detail the procedures for genitalia examinations. The expert in the video does wear gloves and explains why. It is extremely relevant to note that no patient ever alleged unprofessional conduct or methods of practice.
(8) Paragraphs 18 and 19 On 19 September 2006, and subsequent to the applicant's appeal, the Great Plains Regional Medical Command (RMC) Appeals Committee upheld the revocation of the applicant's privileges citing the applicant's practice and methodology as harmful to patients. On 22 June 2007, The Surgeon General (TSG) of the Army conducted a review and concluded that the revocation of the applicant's privileges was proper.
(a) The finding is totally unsubstantiated by any patient complaint, peer-reviewed medical literature, and Formal Peer Review Panel.
(b) All published literature as well as government agencies support the applicants practices.
(9) Paragraph 22 and the following sub-paragraphs refer to OTSG Advisory Opinion comments:
(a) Paragraphs b and d The applicant was accorded all due process rights under these regulations and was represented by counsel. The advisory opinion did not specifically address the numerous assertions of error in the adverse action process, but instead quoted "In our judgment, taken in their totality, these alleged errors, even if they were errors, do not materially affect the overall process.
(aa) The findings are inconsistent and disingenuous, because the purpose of the regulatory guidance is to ensure due process not to afford any regulatory substantive guidance on the SOC. The assertion that the series of events was not in violation of due process assured by the regulation is not credible.
(ab) Reconsideration was directed by the hospital commander and those appointed to reconsider the peer review decision were all in the chain of command or rating chain of the hospital commander. However, there was no effort in the decision to explain how this deviation was in accordance with the applicants due process rights and why this deviation from regulation did not materially affect the outcome.
(c) Paragraph d3 On 18 May 2005, the Credentials Committee reviewed the IO's report and recommended a peer review. In fact, the Credentials Committee recommended a Formal Peer Review.
(d) Paragraph d4 The 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.
(aa) The statement is partially correct, but neglects the key findings of the decision. The External Formal Peer Review assessed the nature of the circumstances surrounding the events in question to determine the validity of allegations, and to make recommendations regarding the applicants privileges.
(ab) The panel unanimously recommended reinstatement and each member stated the applicant was practicing within the SOC based on the literature provided.
(e) Paragraph d5 On 10 June 2005, the Credentials Committee disagreed with the peer review panels recommendations and again voted to restrict the applicant's privileges.
(aa) The statement is incorrect. On 14 June 2005, the Credentials Committee reviewed the results of the External Formal Peer Review and concurred that the SOC was met and voted to recommend reinstatement without restrictions.
(ab) Without regulatory authority, the hospital commander subsequently appointed his own informal peer review, which was conducted by an unqualified subordinate, and required the Credentials Committee to revote.
(ac) Although the committee was lacking the regulatory quorum and qualification, they voted to recommend a greater restriction but not withdrawal of clinical privileges.
(f) Paragraph d6 The applicant requests reconsideration, in part because the poll of active duty adolescent medicine physicians was not presented during the hearing or to the applicant before the hearing. The hospital commander granted reconsideration based on this irregularity and a second hearing was held.
(aa) A board was convened without regulatory authority that eventually resulted in the applicants loss of clinical privileges. In the process a poll was conducted without the applicants knowledge or input.
(ab) After the hearing, the ad hoc committee recommended restriction of the applicants medical practices.
(g) Paragraph d7 On 4 January 2006, the hospital commander revoked the applicant's privileges after reviewing the quality assurance investigation, peer review and hearing committee findings and recommendations, the credentials committee minutes, evidence, and requests for reconsideration. On 27 January 2006, the commander reviewed the applicant's request for reconsideration and determined that no new evidence was presented to change the revocation action.
(aa) After the hearing, the applicants privileges were revoked by the hospital commander, who had no factual basis for imposing a sanction greater than that recommended by the External Formal Peer Review or Credentials Committee.
(ab) The two committees, whether properly constituted or not, heard the evidence and did not recommend revocation. By analogy, a court-martial convening authority may reduce a sentence issued by a jury, but has no statutory authority to increase the punishment.
(ac) Specific findings were that the applicants treatment methodology was within the SOC. The findings should be respected; however, the findings of the two unbiased panels were discarded and the hospital commander pushed the issue forward.
(h) Paragraph d8 The Great Plains RMC Appeals Committee reviewed the applicant's appeal and the final decision of the hospital commander to revoke the applicant's clinical privileges. The committee expressed concern that the applicant's practices and methodologies do harm to patients.
(aa) The RMCs adoption of the statement is not supported by the medical literature and is totally devoid of evidence that any patient had been harmed or even complained.
(ab) The applicant was also denied procedural due process in the disclosure requirements mandated by Army Regulation 40-68, chapter 10, paragraph 7b. None of the records used by Dr. B____ in his extra-regulatory, informal review were provided.
(ac) The statements of experts providing opinions reviewed by the Hearing Board were never listed as witnesses as required by regulation, nor were they made available for questioning at the Hearing Board.
(ad) Documents presented to the board by LTC D_____ were given to the applicant one day before the hearing. This withholding of evidence violates the specific terms of the regulation.
(i) Paragraph g The advisory opinion from the OTSG also stated the applicant requested that the ABCMR remove all adverse information from the NPDB and other reporting agencies. "We respectfully note that the ABCMR cannot directly order the removal of information from reporting agencies that are not under the control of the Secretary of the Army.
(aa) While the ABCMR does not have direct authority, it does have the authority to recommend the removal of information which is especially relevant given the fact that the U.S. Army filed the adverse information with the NPDB.
(ab) The ABCMR can recommend that upon reconsideration of the evidence, the adverse information be removed as in the ABCMR decision document, AR1999032414, dated 1 August 2001.
(j) Paragraph h 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.
(aa) The assertion that there was painstaking adherence to procedural requirements is simply inaccurate.
(ab) A review of the record shows there were significant errors with substantially negative impact, and likely unlawful command influence in the outcome of the process.
(ac) Although the commander may not be bound by the recommendations of advisory groups, he is not free to ignore the regulations.
(ad) The hospital commander in this case went to great lengths to effect what appears to be a predetermined result. The Formal Peer Review Panel was properly constituted, external to the hospital, and not subject to the potential influences of the command relationship.
(ae) All subsequent ad hoc credentials committees were composed of members not authorized by regulation to serve or vote in those positions.
(af) Upon the continuation of the Hearing Board, two of the members were not present by design. The regulation requires every member of the Hearing Board to vote. No abstentions are permitted.
(10) Paragraph 24 Army Regulation 40-68 prescribes policies, procedures, and responsibilities for the administration of the Clinical Quality Management Program. Chapter 10 of this regulation describes the management of adverse privileging/practice actions for privileged providers and other professionals. The process has four steps: investigation, professional peer review, hearing, and appeal.
(a) The investigation found no evidence to support any charge of misconduct and that the applicants procedure was supported by professional literature on adolescent medicine.
(b) The professional peer review determined unanimously that the applicants practice was within the SOC.
(c) The only allegation of misconduct was made by LTC D____ , the Consultant to TSG for Adolescent Medicine, who was never present for a single event that he has reported. LTC D_____'s recollection of events he was not witness to are contradicted by every actual eyewitness who provided statements.
(11) Paragraph 25 Action taken on the part of the commander against a providers privileges (professionals scope of practice) may be warranted based on performance suspected or deemed not to be in the best interest of quality patient care. These actions include holding in abeyance, denying, suspending, restricting, reducing, or revoking clinical privileges/practice.
(a) The applicant concedes that the ABCMRs recitation of the regulatory factors for suspending, holding in abeyance or denying clinical privileges on a temporary basis is accurate, but only to the extent that it allows the commander to impose such sanctions on a temporary basis.
(b) Chapter 10, paragraph 7a(1), Army Regulation 40-68 implicitly limits the commanders authority to proceed beyond a temporary action until the deficiencies substantiated by the peer review process have been established.
(c) The applicant does not concede that the requirements of Army Regulation 40-68, chapter 10, paragraph 7a(1) have been met, or that the requirements for reasonable cause delineated in the same paragraph.
d. The applicant worked with LTC D____ for 1 month in 1993. At the time, the applicant was an intern and LTC D_____ was a fellow. The applicant did not report to LTC D____ or even see patients with him. The two doctors had a one-week overlap in Hawaii.
e. The applicant has been denied his profession and livelihood, not by evidence, but by speculation and innuendo.
f. He (counsel) is not unfamiliar with the U.S. Army Medical Command, as he served as the Command Judge Advocate at Fitzsimons Army Hospital. He makes this assertion not to suggest a superiority of knowledge, but to inform the Board that he is not a neophyte in matters pertaining to the applicants case.
3. Counsel provides four binders which contain:
* sworn statements
* an investigative report
* the original 57-page appeal with supporting documents
* the abeyance notification
* suspension of privileges notice
* results and findings from various boards and committees
* various letters of support
* various e-mail transmissions
* the adverse action report to the NPDB
* Alabama Medical Board documents
* various versions/editions of supporting medical literature
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080002864, on 25 September 2008.
2. He initially entered active duty as a Field Artillery Officer on 6 June 1979 and was honorably discharged on 14 September 1987, for appointment as a Reserve Commissioned Officer under Title 10, U.S. Code, Sections 591 and 593. He reentered active duty on 31 May 1992 as a Transitional Intern at William Beaumont Army Medical Center.
3. Two letters, prepared by the Naval Medical Center, San Diego, CA, dated
5 November 1996 and 2 January 1997, respectively, show an internal investigation of the applicant's medical methodologies was performed by the Urology Department. A total of 28 records were reviewed, four of which had photographs. Of the four records that included photographs, it was found that in all instances the photographs were medically appropriate and constituted a comprehensive and well-documented clinic note. It was determined in the
24 records with no photographs that all examinations appeared appropriate and in most instances all of the complete physical examinations were done on patients who were seen for the first time. Overall, there was no evidence that any of the examinations performed by the applicant were inappropriate. In fact, the completeness of the applicants examinations was noted to be commendable and, in several instances, uncovered subtle diagnoses that may have otherwise gone undetected.
4. A second letter from the Naval Medical Center shows a preliminary investigation was conducted on the applicant for allegations of possible professional misconduct based on a patient complaint. An expert medical review was conducted of the applicants medical records and the allegations of professional misconduct were found to be completely without merit. The Naval Criminal Investigative Service (NCIS) investigation was closed as unfounded.
5. A memorandum from the U.S. Medical Department Activity (MEDDAC), Fort Carson, CO, Subject: Abeyance of Clinical Privileges from 4 to 19 April 2005, dated 4 April 2005, shows the applicant's medical privileges were placed in abeyance as a result of an allegation of an inappropriate examination and a practice outside the SOC. The memorandum was signed by Colonel (COL) J____ A. J_____, Chairman of the Credentials Committee.
6. Two DA Forms 2823 (Sworn Statement), given by LTC D______, on 25 April 2005, and Major (MAJ) G_______ on 2 May 2005, respectively, contain the following statements:
a. LTC D_______ states he was recently contacted by the Deputy Commander for Clinical Services (DCCS), at EACH, Fort Carson, CO regarding allegations of inappropriate behavior by the applicant.
b. Apparently, a mother of a patient was concerned that the applicant had performed an inappropriate genital examination on her teenage son. He did this as part of an evaluation for Attention Deficit Disorder (ADD) and the stimulant treatment for the disorder. He told the mother the medication could affect the growth of the genitals and he would need to check them regularly. The mother then asked the pharmacist and other health care professionals if this was one of the side effects, and they stated no, and that the exam was inappropriate. The mother then filed a complaint against the applicant.
c. LTC D_____ then informed the DCCS that he had prior experience with the applicant and of the applicant's examinations of young teenage boys. The applicant had prior criminal investigations and other incidents were reported. He named other military health care professionals, who allegedly had concerns pertaining to the applicants genital examinations. He contends that a U.S. Navy doctor was instructed by the Navy Command not to report anything to the Army on the applicants behavior, because he was transferring to an Army medical center after completion of his training.
d. LTC D______ also provided information pertaining to a previous adolescent patient of the applicant's who was later transferred from his care. He notes the applicant promised to give the boy a free trip to Hawaii to stay with him, if he kept his grades up in school. He also mentions that the applicant allegedly gave the boy his old computer so they could keep in touch when he went to Hawaii. LTC D______ reported this information to a Navy Commander, who in turn reported the information back to the Navy. He was told the information would be reported to NCIS. He later learned the case was dropped because all previous information was destroyed.
e. LTC D_____ also added that it was his understanding that the applicant was involved with the Boy Scouts although he had no sons. He believed that if the applicant was a Boy Scout leader, he was concerned that the applicant may have done physical exams.
f. MAJ G_________ states he met the applicant in July 1998 as a second year resident in Pediatrics. He examined a patient on one occasion with the applicant, but does not remember the particular complaint or reason for the visit. He also does not remember if he had a question regarding the examination that he performed on the patient in the specified area. Prior to the examination, the applicant informed him it was normal for an adolescent male to get aroused when a testicular exam was performed, even by a male provider.
g. MAJ G_____ and the applicant proceeded to enter the exam room together, at which time the applicant performed his own testicular exam on the patient. Shortly after he started the exam, the applicant informed the patient that it was okay that he was getting an erection, which was a normal response. It was MAJ G______'s opinion at the time, that the child was not aroused. It was unclear at the current time to what extent the exam was performed. The childs response was passive and he did not make any comments of inappropriateness.
7. A second memorandum from U.S. MEDDAC, Subject: Notice of Summary Suspension of Clinical Privileges, dated 5 May 2005, shows the applicant was notified on 4 April 2005 that a clinical quality management, quality assurance investigation was being conducted concerning the allegations in question. The investigative report had not been received; therefore, the period of the summary of suspension was determined to be indefinite. The applicant acknowledged receipt on the same day.
8. The investigative report performed by Dr. S___ W. A____, dated
13 May 2005 shows the following:
a. The report of investigation was done to review actions of the applicant who, it was alleged inappropriately touched a male adolescent patient, and allegedly exhibited unprofessional conduct. IO conducted interviews with LTC D_____, the male adolescent patient, the patients guardians, another mother of two adolescent patients of the applicant, a special agent with the Criminal Investigation Division (CID) at Fort Carson, various adolescent medicine physicians located at Brooke Army Medical Center and other retired military adolescent medicine providers.
b. He also contacted the psychiatrist of the adolescent patient and the applicants former training program director; however, these individuals were noted not to have returned his calls or could not be located.
c. The investigation was performed because a patients guardian,
Mrs. B____, was concerned about the extent of the genital examination performed on her nephew, the lack of a chaperone for the exam, and disregard for the concern she expressed to the applicant before the examination about her nephew's expression during the car ride to the hospital about being uncomfortable being examined for a mega colon and hernias.
d. The guardian of the patient expressed she was very impressed with the applicants care and thoroughness, and his establishment of rapport with her and her nephew; however, she made a complaint afterwards because she felt the genital exam was not agreed upon, it seemed extensive and lengthy, and she was surprised that there was no chaperone present.
e. The IOs interview with the applicant and review of the medical records revealed that Mrs. B____s statements concerning the visit were factually correct. The applicant confirmed the statements and gave an explanation for the actions, which became the turning point for the investigation.
(1) The investigation did not reveal that the applicant received any observable gratification from his examinations. This was not part of Mrs. B_____s complaint nor did Mrs. J___ , the mother of two adolescent patients who had been examined by the applicant the preceding year. Mrs. J_____, a neighbor and fellow West Point classmate of Colonel L_____ (the outgoing EACH Commander) discussed the investigation which was taking place at EACH concerning the applicant. Mrs. J____ expressed concern that her sons had been examined by the applicant and she thought they may have been sexually abused. She and her husband questioned their sons extensively and found that neither child felt used or abused and did not feel the applicant behaved inappropriately toward them. She reported she and the boys liked the applicant very much and that she had referred many friends to him after her encounters.
(2) The applicants computer hard drive at EACH was searched and revealed no inappropriate material or separate files on patient care. The search also revealed the applicant had not made any changes to his notes from the time of initial entry. It was observed that the applicant recorded an unusually extensive genital examination, and brief examination of other systems.
(3) The training file records of the applicants fellowship in San Diego revealed the mother of a patient filed a complaint against him in a case where a child was repeatedly examined completely, including extensive genital exams, when the complaint was Attention Hyperactivity Deficit Disorder and Tourette Syndrome. While no overt act occurred, it seemed inappropriate to her that her childs genitalia were repeatedly examined when the complaints were referable to the nervous system.
(4) The applicant defended his position by providing extensive reproductions of a textbook which detailed the importance of extensive genital examinations for adolescent boys. The applicant also noted that during his examinations he had found testicular cancer and other genital health problems in some of his patients. The adolescent medicine physicians at Brooke Army Medical Center opined that the applicants examinations were unusual, more extensive, and were outside the norm. The book referenced by the applicant was dated 1992 and was not considered a guide for current practice.
(5) The IO stated that the specialist interviewed found the text presented to be a great reference by a pioneer in the field, but not current practice. The applicant admitted he did not use chaperones unless requested and he did not wear gloves because he had severe eczema which was worsening from the gloves.
(6) The IO also questioned him as to why a reasonable physician practicing within the SOC, would have two complaints against him about his conduct and overly-extensive genital examinations. Although the complaints were years apart, it was exceedingly unusual for a physician to have two complaints. It gave rise to the concern that the applicant was using his position to achieve sexual gratification.
(7) The IO noted his concern over the difference in the extensiveness of examinations that adolescent boys received in comparison to adolescent girls. Without widening the scope of the investigation, he could not conclude whether the applicant was considered inappropriate by other patients, or whether his examination of girls was similar. After consulting with the special agent from CID, they thought it would be important to widen the scope of the investigation if criminality was suspected and prosecution sought. The IO expressed his concern with COL L____ and was informed to interview Mrs. J____.
(8) The applicant was also questioned on his history of befriending a troubled boy and the suggestion that he gave him a computer so that they could stay in touch. The applicant explained that he had an extra computer which he gave or sold to the boy. The applicant was also questioned about a counseling statement he received from his training program director during his adolescent fellowship. The applicant admitted to being counseled to avoid performing any genital examinations without her expressed permission.
(9) After making extensive assertions about the applicants practices, the IO concluded there was sufficient cause for concern to limit the applicants privileges by an adverse privileging action. He stated the applicants actions fell far from his peers in adolescent medicine and he was the only known provider to have such a record of complaints and adverse counseling. In a case where medical professionals cannot manage themselves, it is required that the medical staff must limit the practitioners' privileges.
(10) The IO recommended that the applicants privileges be limited by an adverse privileging action to disallow his examination of boys unless chaperoned and that he be removed from any supervision of medical staff, residents, or other providers. He stated the applicant had the potential to use his seniority and ingratiating personality to influence others to allow him to continue his actions. Therefore, he should have been reassigned to a Medical Center where he was one of many senior staff, so that he could be observed more closely by physicians in his field.
9. The Minutes of the Ad Hoc Credentials Committee Meeting, dated 18 May 2005 show that the following members were present:
* COL J____ A. J_______, Medical Corps (MC), DCCS, Chairman Credentials Committee
* COL J_____ A. P_______, MC, Chief, Department of Behavioral Health
* COL B____ J. C_____, MC, Chief Department of OB/GYN
* LTC S_____ D. M_______, AN, representing Deputy Chief of Hospital Services
* LTC M_____ A. C______, Medical Service Corps, Deputy Commander for Administration
* LTC A_____ D. B_____, MC, Chief, Department of Surgery
* MAJ P_____ D. B_____, Chief, Department of Preventive Medicine
* Mr. B____ V. N_____, Chief, Department of Medical Management/Compliance
* Ms. J_____ A. B_____, Health Systems Assistant/Credentials/Recorder
10. The reason noted for the credentials meeting was due to a complaint from the family of a patient that the applicant had examined. They felt that the examination was questionable. As a result, the EACH commander spoke to the applicant and the applicant gave what he thought was a reasonable explanation. The EACH commander called the family back and explained the applicants position and about six hours later the family called the Military Police and child protective services. The applicants privileges were placed in abeyance and an outside investigator came in to look at the case. The minutes showed a determination was made to appoint an External Peer Review Panel to evaluate the information and determine if the SOC was met and to give the applicant due process.
11. On 8 June 2005, an e-mail from Dr. I_____ at Tripler Army Medical Center (TAMC), Hawaii, addressed to the applicant shows Dr. I______ received a phone call and an e-mail from Dr. E______, EACH Quality Services Division, concerning the applicant. Dr. I_____ informed the caller he had prior knowledge and work experience with the applicant. His admission of knowing the applicant seemed to pose a problem for the caller. Dr. E_____ allegedly said he would call back; however, he did not call Dr. I______ back. Dr. I______ noted that he thought highly of the applicants practices as a medical professional in adolescent medicine and applauded him for his thoroughness. He also stated that if any negative impact came of the accusations, he would support the applicant.
12. A memorandum from the U.S. Army MEDDAC, Subject: Recommendations of External Peer Review Panel, dated 9 June 2005, shows that an External Peer Review Panel was conducted in accordance with Army Regulation 40-68, chapter 10. The panel reviewed the nature of the circumstances surrounding the events in question to determine the validity of allegations and make recommendations regarding the applicant's clinical privileges.
13. This memorandum shows that although none of the panel members performed exams the way the applicant performed them each one determined he was practicing within the SOC. The panel unanimously recommended the return of his clinical privileges to the original state with the following recommendations:
a. A chaperone be present when examining genitalia of adolescents age
14 and under;
b. Adolescents age 14 and over could elect to be chaperoned with an option to decline in writing;
c. The applicant would document in his notes whether a chaperone was present or not; and
e. The findings of the exam would be explained to the chaperone at the completion of the exam.
14. A memorandum shows that the Credentials Committee met on 14 June 2005 to consider the results of the peer review conducted and to determine whether the SOC was met by the applicant. The peer review recommended reinstatement of clinical privileges and stated it felt the examinations should be chaperoned, which was already required by hospital policy. After review of the findings of the peer review, the Credentials Committee readdressed the Army Regulation 40-68 investigation and the articles presented by the applicant. The committee voted and recommended reinstatement of his privileges. The memorandum was signed by COL J____, Chairman of Credentials the Committee.
15. A memorandum prepared by the EACH Commander on 24 June 2005 shows that he assumed command of the U.S. Army MEDDAC, Fort Carson on 13 June 2005. He stated prior to that date he had never met the applicant and it was his intent to review all information pertinent to the accusations against the applicant to determine if there was merit in recommending reinstatement, suspension, restriction, reduction, or intent to revoke privileges to practice medicine at EACH.
16. The same memorandum shows that after reviewing the findings and recommendations from the panel and committee, the EACH Commander directed COL J____, Chairman of the Credentials Committee, to identify a provider who could review the last 50 consecutive adolescent male and
25 adolescent female charts to answer some of the concerns he had. Some of the questions are as follows:
a. Why does the applicant not offer the patient or family the opportunity to have a chaperone?
b. Why doesnt the applicant wear gloves during the examination?
c. If the applicant does have eczema, then what is the treatment for his condition?
d. Did the applicant perform as extensive an examination and document the findings for all organ systems?
e. Did he perform a genital exam on all patients both male and female?
f. Was there a previous history of counseling for not providing or having a chaperone in the room?
g. Was there any evidence of inappropriate behavior that would demonstrate a trend towards at-risk behavior?
h. Were photos taken and why?
i. If photos were taken, were they all present in the chart?
17. The EACH Commander also directed COL J_____ to address the questions posed, review all information to include but not limited to that provided, and to re-vote. As a result, an Ad Hoc Credentials Committee was formed to address the EACH Commander's concerns.
18. A memorandum, dated 27 June 2005, from the U.S. Army MEDDAC, Fort Carson, CO, Subject: Minutes of the Ad Hoc Credentials Committee Meeting to Review Recommendations of Ad Hoc Credentials Committee Meeting Presented to Commander on 15 June 2005, shows an Ad Hoc, Credentials Committee met in the EACH Command Sergeant Majors office on 27 June 2005. The focus of discussion was based on questions from the EACH Commander regarding the applicant and to determine the validity of allegations and make recommendations regarding the applicants clinical privileges. The list of attendees is as follows:
* COL J____ A. J_______, Medical Corps (MC), DCCS, Chairman Credentials Committee
* COL J_____ M. M_______, Army Nurse Corps, Deputy Commander for Health Services
* LTC H_____ W. B_______, MC, Chief, Department of Behavioral Health
* LTC A_____ D. B____, MC, Chief, Department of Surgery
* MAJ P_____ D. B_____, (field not specified), Chief, Department of Preventive Medicine
* LTC M_____ A. C______, Medical Service Corps, Deputy Commander for Administration
* Mr. B____ V. N_____, Chief, Department of Medical Management/Compliance
* Ms. J_____ A. B_____, Health Systems Assistant/Credentials/Recorder
* Ms. M_____ K____, Credentials Assistant
19. The Ad Hoc Credentials Committee recommended a permanent limit be placed on all or a portion of the applicants clinical privileges. These limitations included that the applicant may be required to obtain concurrence before providing all or some specified health care procedures with the scope of his license, certification, or registration. The restriction may require some type of supervision.
20. This committee also noted that they did not feel it was in the best interest of the hospital to reinstate the applicants privileges without requiring the presence of a chaperone and concluded the completeness of the exams given by the applicant was not warranted unless there were complaints related to difficulties with development of secondary sex characteristics. The final recommendation was to restrict the applicant from seeing all males under the age of 21 and to ensure he knew he was expected to adhere to the chaperone policy regarding female patients.
21. On 7 July 2005, the EACH commander subsequently approved the Ad Hoc Credentials Committee's recommendations and notified the applicant of his decision. On 12 July 2005, in response to the 7 July 2005 decision, the applicant requested a Formal Hearing Board, in accordance with Army Regulation 40-68. He also requested a copy of all materials pertaining to the action.
22. The applicant provided a sworn affidavit, dated 3 August 2005, given by Petty Officer 1st Class (Retired) R______ W_____, who is also the step-father of the adolescent patient seen in Hawaii by the applicant which stated:
a. He had known the applicant for approximately 12 years and first met him at the Adolescent Clinic in San Diego, CA. During that time, the applicant was a doctor involved in treating his step-son for ADD.
b. His family and the family of the applicant became good friends. The applicant even talked to his step-son about a problem he had with bed wetting. The applicant told the child he would sell him a computer, but agreed to reduce the price based on the number of nights his step-son did not wet the bed.
c. His family gave the applicant a deposit of $200.00 for the computer, but to his knowledge, the check was never cashed. The child used the computer to communicate with his step-father while he was out at sea. He states on one occasion, while on furlough, he was due to dock in Hawaii. His wife paid for a ticket for his step-son to fly to Hawaii to meet him.
d. His step-son and aunt flew to Hawaii and stayed in a hotel for about a week awaiting his arrival from sea. Upon his arrival, he and his step-son went to the applicants house for dinner. While there, his step-son asked the applicant about a medical problem he was having with his testicles. The applicant agreed to take a look and stated that the child had hydrocetes on both sides. He said the child should have his condition checked out when they returned to San Diego.
e. The step-father claims he was present during the entire examination and he did not notice anything unusual, inappropriate, or out-of-the ordinary pertaining to the exam. He contended that the applicant is one of the best people he knows and he is shocked that anyone would bring such allegations against him.
23. He also provided a memorandum for record (MFR), prepared by J_____ C. T_______, M.D., Pediatric Clinic, EACH, dated 5 August 2005, which states, in part, that he had known the applicant since 1997 while a pediatric resident at TAMC, Hawaii. Their relationship was primarily professional although they did attend the same church.
a. Dr. T____ claims to have received a phone call from LTC D_____ roughly around June 2005. LTC D____ stated that he heard from another TAMC resident that Dr. T____ had made a comment about how thorough the applicants genital examinations were. Dr. T_____ told LTC D____ he did not remember making the remark; however, he probably did. He explained to LTC D_____ that although he may have made jokes about the applicant, he did not at that time or now, feel the applicant touched a patient inappropriately. If he felt that way, he would have reported the incident.
b. Dr. T____ also stated that he hoped LTC D______ would not allow personal feelings to get in the way of what should be an unbiased investigation. He also hoped that LTC D______ would include his telephone statement in his report or, if not, how many more physicians had he spoken to who are not willing to convict the applicant. He added that the applicant was not alone in his opinion about the importance of the genital exam. The way the applicant taught him to do the genital exam was practically verbatim by medical textbooks.
24. A memorandum dated 12 July 2005 shows the applicant requested a formal hearing concerning the commander's notice of proposed adverse clinical privileging/practice. As a result of his request, a Credentials Hearing initially convened on 8 August 2005. The transcript for this hearing shows the following:
a. The hearing board was called to make a determination on several questions that the command had:
(1) That the applicant was performing exams that were more in-depth than required;
(2) The exams had not demonstrated clinical indication;
(3) He failed to use gloves for exams; and
(4) The applicant examined an adolescent in his home in Hawaii who was no longer his patient.
b. It was noted that a guardian had become concerned and filed a formal complaint with the hospital commander, CID, Colorado Springs Police and Child Protective Services. The commander, at that time, directed the applicants credentials be placed in abeyance pending the investigation and final findings.
c. After the external peer review and the credentials committee recommended that the applicants credentials be restored, the commander reviewed the entire packet and had some questions that he wanted answered. The board re-met and received some information from LTC D_____ they did not initially have.
d. The applicant stated that he received a copy of the original complaint the day before via email.
e. COL J______ stated that the peer review panel that met on 9 June 2005 was comprised of a senior family physician, a senior adolescent medicine physician, a pediatrician from an Air Force Base and was chaired by a non-voting member, a urologist. The panel unanimously voted to reinstate with the use of a chaperone. They also made a comment in their recommendation that yes, there were charts that document penile length and circumference but none of them were doing this as part of their exams.
f. The applicant stated that he did not see the last comment in the peer review findings. COL J____ explained that the comment was made during a phone call between him and the adolescent medicine physician.
g. Introduced during this hearing were other documents in the form of emails and a memorandum for record that was not available during the peer review. The applicant stated that he received a copy of the documents.
h. LTC D____ was called as a witness telephonically. He stated he was made aware of the previous investigation that had been done on the applicant. He informed Dr. A____, who was the head of Adolescent Medicine, and she then went back to the Navy to look at doing another investigation at that point. He understood that all the evidence from the previous investigation had been destroyed by the Navy. The only evidence available was what Dr. A______ had maintained in her fellowship file.
i. LTC D_____ added, as a side note, he had been contacted by an adolescent staff member in Hawaii about two months prior and she stated she was going through her files and noted a pattern of far more frequent genital exams which had been performed by the applicant than she had been taught to do. He asked her to provide him a statement which he had in an email.
j. The applicant asked LTC D____ about the sworn statement he submitted concerning him and his practice on 25 April 2005 and if he still stood by his statement as true. The applicant asked him when the two of them had initially met and about his personal observations of his practice. He also mentioned LTC D_____'s violation of the orders given by his chain of command on the discussion of the two unfounded investigations which were done during his tour in San Diego.
k. LTC D____ claimed he did not know he was violating anything and thought that if there was an ethical issue concerning a provider, it would not be unlawful for him to disclose it if he had a concern of risk to patients. He was asked how many other people he had shared the information he obtained from Dr. A_____ with. He appeared to be unsure as he recollected back to 1997. LTC D_____ was asked again who, in the last eight years, had he discussed the information with. He named at least five individuals and further stated he called the Society for Adolescent Medicine to get their insight; however, he did not disclose the applicants name to the society.
l. The applicant also stated he had not received all pertinent documents from the Naval Medical Center in San Diego. He also noted the outgoing EACH commanders over-the-fence discussion about his case with a neighbor. At that point the outgoing commander lost his ability to formulate an independent and impartial conclusion based on the facts presented subsequent to the investigation.
m. The applicant notes that the outgoing commander elected to defer the final decision to the incoming commander. There was not a doubt that LTC D___ was consulted by the incoming commander because a memorandum, dated
23 June 2005, was provided to the commander from LTC D_____ concerning the disproved incidents.
25. The Credentials Hearing Committee determined that they did not have sufficient information to determine whether the applicant's conduct met the SOC and decided to reconvene at a later date (7 September 2005).
26. An e-mail, Subject: Physical Exam Issue, (date not known), from COL J______, DCCS, Chairman, Credentials Committee to LTC D_______, dated
1 September 2005, shows COL J______ requested that LTC D______ poll as many military adolescent medicine physicians as he could to find out how many of them performed the following steps during a genital exam;
a. Milking of the penis;
b. Measure penile length; and
c. Measure penile circumference on all initial visits.
27. On 1 September 2005, LTC D_____ forwarded an e-mail addressed to numerous military medical doctors, asking them to answer the above three questions. He also asked them to forward the e-mail to any Air Force or Navy adolescent doctors that they knew.
28. All respondents answered "no" to all three questions. However, the applicant highlighted one response from Dr. W___ which shows that some of the applicant's practices were commonly used in public health on routine examination of high-risk populations for syphilis.
29. On 7 September 2005, the Credentials Hearing Committee reconvened and reported two findings. First, the applicant performed a genital examination on a 12-year old adolescent male as a hernia check prior to osteopathic manipulation. While performing the examination the applicant noted the presence of bilateral hydroceles. The applicant performed hernia checks on male patients prior to the manipulation of the symphysis pubis.
30. The second finding was that the applicant followed a pattern of doing genital examinations on a majority of adolescent males that included milking their organs to assess the discharge, measuring their organ's length, and measuring the organ's circumference. The applicant often performed genitor-urinary (GU) exams on male adolescents complaining of upper respiratory infection, headaches, rash on back and headaches, depression and anxiety, sleeping in class, coughs for 3 weeks, and school physicals. These measures were often taken without a chaperone and the applicant admitted not using gloves unless he had an open fissure on his hands. On occasion he used medical photography to document growth. He also presented numerous chapters from various text books and articles which discussed how to do a complete genital exam, but did not present clinical evidence to support the frequency of his practice.
31. The committee also noted that the applicant performed GU exams on adolescent males to include patients with chief complaints unrelated to GU pathology. The conclusion was that the applicant's practices of GU examinations were not supported by his peers in adolescent medicine; however, the applicant remained convinced that "his exams are indicated in the majority of new patients as a sensitive indicator of growth and development." The committee recommended that his privileges be restricted and that he not be allowed to see male patients under the age of 18.
32. On 8 September 2005, the EACH Commander presented the applicant the findings of the hearing board and granted him 10 days to submit a written statement of corrections, additions, or other matters that he wished to present for the commanders consideration concerning the hearing. The applicant was also advised that if the final decision was to deny his request, in whole or in part, the action would be endorsed to TSG as an appeal. TSG was the final appellate authority for adverse action against his clinical privileges/practice.
33. A memorandum from the U.S. Army Trial Defense Service, dated
23 September 2005, shows the applicant's trial defense counsel submitted a rebuttal to the EACH Commander. This document states, in part, he attended the hearing board and reviewed all of the material presented to the board and that he noticed numerous procedural errors.
34. The applicant's trial defense attorney stated that on 8 August 2005, at the close of the day, he and the applicant were excused while the board was apparently going to deliberate. According to the findings and recommendations submitted by COL J____, the board re-convened to finish deliberation on 7 September 2005. At that particular meeting, evidence in the form of a poll was given to the board members.
a. He stated the poll was conducted and was submitted as evidence, unbeknownst to the applicant and was a blatant violation of due process as the defendant/applicant is entitled to prior notice of all witnesses who would be called to testify.
b. Also, in the EACH Commander's memorandum to the credentials committee, there was no indication as to what options the hearing board members were given. The error presented here was the lack of advice given to the board members. There was also a serious procedural error in the action on the hearing recommendations. All qualified members of the credentials committee who were part of a hearing board must either concur by endorsement or submit separate recommendations. There is no indication that this step occurred.
c. A memorandum dated 18 November 2005, shows the formal hearing the applicant requested met on three separate occasions: 8 August 2005,
7 September 2005, and 21 October 2005. The committee recommended that the applicant's privileges be restricted and that he not be allowed to see male patients under the age of 18 for a period of 2 years, unless new information became available.
35. On 21 November 2005, the EACH Commander notified the applicant of the findings and gave him 10 days to submit a written statement.
36. On 20 January 2006, the applicant requested reconsideration of his adverse privileging action. He argued that the EACH Commander had no legal authority to change the findings of the Formal Peer Review Panel, the SOC was met, the voting procedures were not met, and the Administrative Procedures Act was violated.
37. A letter addressed to the EACH Commander from the applicants spouse, dated 20 January 2006, states, in part, that she had been married to the applicant for nearly 14 years and they have 4 daughters. She asked the EACH Commander to reconsider his decision to revoke her husband's clinical privileges, because LTC D______'s sworn statement was false.
38. She also assured the EACH Commander that if she suspected her husband of any wrongdoing concerning his patients, especially children, she would be the first to address the issue. She stated upon meeting LTC D____ that she did not have a favorable first impression, since he expressed an unsolicited assertion that the COL she worked for was a homosexual. She also remembers her husband's dislike of LTC D_______'s decision to decorate the Christmas tree in the patient waiting area with condoms.
39. She ended her letter by telling the EACH Commander that his decision to revoke her husband's clinical privileges would not result in protecting patients, as none of them had ever been in any danger. His decision would only result in destroying a dedicated and caring physician and would have a long-term, devastating impact on their children.
40. A letter from A______ and T______, P.C., addressed to the EACH Commander, dated 9 January 2006, indicates the applicant hired a private attorney to address his concerns. His attorney pointed out the applicant's family devotion, military background, and dedicated service to his local community. His attorney also reasserted the obvious fact that none of his patients had made a complaint against him. The only findings on the issue in the investigation are that the applicant's motives were not sexually motivated. The case and investigation suggests improper sexual conduct, and if it were simply an issue of improvident medical procedures the case would not have been given the level of attention it has been given.
41. On 27 January 2006, the EACH Commander reviewed the applicant's request for reconsideration of his original decision to revoke his clinical privileges. He based his decision on the following:
a. The applicant performed extensive GU exams isolated to male adolescents. Based on a review of the applicants last 50 consecutive charts, 33 male adolescents underwent GU exams. He noted the applicant performed these exams even when the chief complaint was unrelated to GU pathology.
b. The applicants rationale that he always did complete physical examinations did not extend to adolescent girls seen by him. In viewing the last 25 consecutive charts of females seen by him, only one in 25 female adolescents underwent a GU exam. Five female adolescents had made commentary complaints of GU pathology, but a GU exam was not performed.
c. The applicant described pulling the penis to obtain a stretch length, measure a penile circumference, and milk the penis up to the urethral orifice, all without a chaperone or gloves. His rationale for not wearing gloves due to severe eczema was not appropriate based on comments made by a staff dermatologist at Walter Reed Army Medical Center.
d. Neither the hearing panel nor the applicant could find other adolescent physicians who performed the examinations as described with or without gloves. Even one of his own character witnesses, an adolescent medicine physician, stated he would not perform these types of examinations. A number of the hearing board members raised the concern with the necessity of the data collection. The inference was that the applicant was cataloging patients much like a pedophile would; and
e. The applicants initial contention for performing penile circumference and penile length exams was out of concern for delayed development in children with ADD and using the drug, Ritalin. When the results of the charts reviewed demonstrated that he was performing extensive GU exams on the majority of male adolescents to include those without ADD and not on Ritalin, his reasoning changed from concern about growth to concern about sexually transmitted diseases (STD). If in fact he was concerned about STDs, gloves should have been worn.
42. The EACH Commander restated he was denying the applicants request for reconsideration and his action would automatically be endorsed to TSG of the Army as an appeal and the TSG would be the final appellate authority for denying, suspending, restricting, and reducing or revoking his clinical privileges. The applicant acknowledged receipt of the decision on the same day.
43. A letter from the OTSG, addressed to the applicant, shows that on 22 June 2007, after careful consideration of the entire record, to include matters presented in the applicant's appeal, it was determined that the actions taken regarding his clinical privileges were proper. It was stated that under the provisions of Army Regulation 40-68, that was the final action in the appeals process and the action would be reported to the NPDB, Federation of State Medical Boards, and known states of licensure.
44. An Adverse Action Report, from the NPDB, indicates an initial Title IV Clinical Privileges Action was processed pertaining to the applicant on 9 July 2007. Item c (Information Reported) shows a permanent, Adverse Action Classification Code: Revocation of Clinical Privileges (1610), effective
22 June 2007, was entered into the data base. The description of the act(s) or omission(s) shows the applicants privileges were revoked for performing excessive GU exams on male adolescents without chaperones and gloves. The exams were isolated to male patients and included patients with chief complaints unrelated to GU. A review of the applicants last 50 consecutive male patient charts found that 33 underwent GU exams. The exams included pulling the penis to obtain a stretch length, measuring the circumference and milking the penis up to the urethral orifice without chaperones or gloves. The basis for the action is shown as Unprofessional Conduct (10).
45. A letter from the Alabama State Board of Medical Examiners, addressed to the applicant on 20 December 2007, states the board received investigative information relative to his revocation of hospital privileges at EACH, and the NPDB report. He was further instructed to attend a Credentials Committee of the board on 15 January 2008.
46. A second letter from the Alabama State Board of Medical Examiners, dated 23 January 2008, shows a letter of concern was addressed to the applicant, relative to his failure to have a chaperone present in the exam room while performing sensitive examinations. The board strongly suggested he use a chaperone for all sensitive examinations, especially for all pediatric or adolescent patients.
47. The board also noted that the letter of concern should not be considered a disciplinary action and it was not intended to communicate a finding on the part of the board that he would be charged with or had been found guilty of any wrong doing. The letter was to provide him notice that the board determined the action in question may not have been in accord with generally accepted standards of medical practice and/or may be detrimental to patient care.
48. His DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 June 2008, shows he was honorably retired. Item 14 (Military Education) shows he completed a 104-week Family Medicine Residency Course in 1995 and a 104-week Fellowship in Adolescent Medicine in 1997.
49. In support of his hearing board, Corporal (CPL) F_____ D. M______ (also the step-son of the retired Navy service member) provided a sworn affidavit, dated 23 May 2009. The CPL disputes many of the allegations made by LTC D______. CPL M______ admits going to Hawaii on a Tiger Cruise to meet with his step-father during an upcoming furlough he had from the Navy. He also indicates that the trip was not paid for by the applicant as alleged by LTC D_______.
50. The affidavit also shows that he and his step-father went to the applicant's house for dinner while in Hawaii. His step-father asked the applicant to examine him for a medical problem he was having because they were leaving the next day for the U.S. He states that the applicant did an examination of his genital area in the presence of his step-father and gave him a note to take back to San Diego to his primary care provider, who happened to be LTC D________ at the time.
51. The CPL stated that LTC D______s follow-up care was inadequate and if he had cared for him as well as the applicant and treated both of his hydroceles he would not have been redeployed from Iraq with a hydrocele around his testicle. He has known the applicant for many years and at no time has he ever acted inappropriately towards him. Upon his redeployment back to the states, he contacted the applicant to talk to him about his recovery and to introduce him to his newborn son.
52. A letter of support from a former colleague and a Board Certified Pediatrics Physician at Tripler AMC, Dr. I______ was also provided in support of the applicant's hearing board. It shows, in part, that he and the applicant practiced medicine together at Tripler AMC for approximately 3 years following the applicants completion of fellowship training. He was never informed of any limitations or restrictions on the applicants competence or ethics from any source. At the time he was chief of service and was aware of and reviewed records of virtually all adolescent patients seen.
53. Dr. I_____ stated he has seen many Soldiers come and go since he first entered the Army over 37 years ago; however, the applicant possessed and practiced Army Values more than many Soldiers and many of his colleagues. He offered the EACH Commander his phone number for any further discussion he may want to have.
54. The applicant provided the ABCMR with various excerpts from medical textbooks and clinical studies surrounding the issue of GU examinations on adolescents. A few of these excerpts show, in part:
a. "A pelvic examination need not be performed on all adolescents (females). If an adolescent female has regular periods, is not complaining of significant vaginal discharge, does not have lower abdominal pain, and has never been sexually active, the examination is best done in late adolescence or rarely into adulthood when the patient is well prepared." Andrea: Well Adolescent Care, in McAnarney et al Ed. WB Sanders, 1992, page 202.
b. "Genitalia: Boys always; girls when indicated (e.g. all sexually active girls and those with any symptomatology) should have an external inspection and an internal pelvic examination. Desirably, all adolescent girls should have pelvic examination at some time as a matter of routine." Hofmann, A and Greydanus, DE; Adolescent Medicine, 2nd Edition, 1989.
c. "Hydroceles are usually painless and can shift in size. In most patients, a strong light transilluminates, showing the presence of just fluid
A careful examination of the testicles should be performed." Wan J. Bloom DA; Genitourinary problems in adolescent males. Adolescent Medicine, Volume 14, Number 3, October 2003.
d. "Cervical cancer screening guidelines in the U.S. are issued by three major organizations: U.S. Preventive Services Task Force, the American Cancer Society and the American College of Obstetrics and Gynecology. All three organizations strongly recommend screening for cervical cancer in women who have been sexually active and have a cervix. Each recommends initiating screening at age 21 or 3 years after the onset of sexual activity, whichever comes first." Sirovich BE, Screening for Cervical Cancer, www.UpToDate.com.
55. Army Regulation 40-68, chapter 1 outlines the responsible parties and their inherent responsibilities for the administration of the Army Medical Department (AMEDD) Clinical Quality Management Program. It shows the following levels:
a. TSG, as the senior medical officer in the Department of Army, is responsible for the quality of health care delivered to all categories of beneficiaries and serves as the governing body for health care facilities worldwide. TSG is the sole authority for reporting adverse privileging/practice actions and malpractice claims against providers to State and other regulatory agencies and to the NPDB.
b. Medical Treatment Facility commanders will, in pertinent part, approve the award of medical and dental staff appointments for qualified providers (any discipline), clinical privileges, alterations in privileges, adverse privileging actions, and written notification of same, to all military, civilian, contract, and volunteer health care providers.
56. Chapter 6 of the regulation presents the basic framework for a formal peer review. Additional specifics associated with peer review and adverse privileging/practice actions are contained in chapter 10. Prior to any adverse action related to privileges/scope of practice, peer review is required for individuals who are licensed, certified, and/or registered. Likewise, in the event that an action against an individual's license (other authorizing document) may be contemplated, a formal peer review will be conducted.
57. Paragraph 6-2 covers the function of the peer review. It states that during a peer review, selected health care personnel (that is, peers) evaluate the quality of the patient care rendered by another professional. These selected health care personnel, who are qualified by education and experience, will identify opportunities for clinical performance improvement and, as appropriate, determine whether or not, given an adverse event or malpractice claim, recognized standards of practice were followed or the SOC was met by the individual in question.
58. Paragraph 6-3 states that peer review activities may be accomplished either by an established committee/subcommittee or by an ad hoc peer review panel/committee constituted on an as-needed basis. The formal committee/subcommittee structure may perform the peer review function for all categories of personnel, or for only privileged staff; the ad hoc committee may be responsible for the nonprivileged personnel.
a. A privileged provider is one who can provide specified medical and other beneficiary health care services within defined limits, based on the his/her education, professional license, experience, competence, ability, health, and judgment.
b. The three categories of clinical privileges include:
(1) Regular privileges grant permission to the provider to independently provide medical and other beneficiary health care services as described above for periods not to exceed 24 months.
(2) Temporary privileges are granted in situations when time constraints will not allow full credentials review. Temporary privileges are valid for periods not to exceed 30 days.
(3) Supervised privileges identify the status of nonlicensed/noncertified providers who may neither be appointed to the medical staff nor practice independently.
59. Paragraph 6-5 provides procedures for conducting the peer review. It states, when a privileged or nonprivileged staff member is removed from all or a portion of his/her patient care duties, the peer review function must be initiated to determine the extent of the problem and to make recommendations for further action on the professional issues in the case.
60. Army Regulation 40-68 also provides instruction and guidance for credentials reviews. Chapter 8 of this regulation outlines the purpose of a credentials committee/function review. It states the credentials committee/function will also consider and recommend to the commander whether providers in a less-than-fully privileged status should be allowed to function under clearly defined supervision, involuntarily separated, or released from active duty or civilian employment. No action recommended by the credentials committee/function is final until it has been reviewed by the executive committee of the medical staff and approved/signed by the commander.
61. Chapter 10 of Army Regulation 40-68 describes the management of adverse privileging/practice actions for privileged providers and other professionals. The process has four main steps: investigation, professional peer review, hearing, and appeal. Within each step are required actions that must take place.
a. Investigation In cases of abeyance or summary suspension of clinical privileges/practice, there will be an immediate and rigorous investigation to collect the relevant facts and information. Every effort must be made to ensure a thorough, fair, honest, and unbiased review of the matter(s) under investigation. The hospital commander will appoint an officer (a disinterested third party), pursuant to the authority of this regulation, to conduct the investigation and to report the results to the credentials committee.
b. The credentials committee will review and carefully consider the investigative officer's report. The report, along with other information collected, is the basis of the peer review that may be warranted and subsequent recommendations to the commander for adverse privileging action against the provider. The credentials committee chairperson may recommend to the commander that:
(1) No further action be taken and the provider's clinical privileges in abeyance be fully reinstated.
(2) The provider's clinical privileges currently held in abeyance be summarily suspended pending a formal peer review.
(3) A peer review panel be convened to evaluate the available information and to determine if the SOC was met. The appropriate authority, according to local policy, will ensure that the provider receives written notification of the forthcoming peer review and is advised of his/her rights to due process.
c. Professional Peer Review - After reviewing the investigation report and/or other pertinent information, the credentials committee chairperson may recommend to the commander that no further action be taken and the provider's clinical privileges in abeyance be fully reinstated; the provider's clinical privileges currently held in abeyance be summarily suspended pending a formal peer review; or a peer review panel be convened to evaluate the available information and to determine if the SOC was met. This function may be conducted under the auspices of the credentials committee or another committee as is customary for the organization and according to local policy.
d. Provider Hearing Rights - If the provider wishes to request a hearing, he/she will have 10 duty days, from date of receipt of the notification of recommended adverse privileging action, to respond in writing to the credentials committee chairperson.
(1) Prior to the hearing, the provider will have access to all information that will be presented for consideration at the hearing.
(2) The provider may voluntarily waive his/her right to a hearing. This decision is final and not subject to appeal.
(3) If the provider waives his/her right to a hearing, recommendations from the credentials committee (and peer review panel if this review was conducted) will be forwarded to the MTF commander for review and decision. A copy of the commander's decision regarding the adverse privileging action and the provider's notice of said action will be filed in the PCF.
(4) Waiver of hearing and appeal rights will result in a report to the NPDB.
(5) Failure on the part of the provider to request a hearing, or failure to appear at the scheduled hearing (absent good cause), constitutes waiver of hearing and appeal rights. At the request of the provider, the commander will determine the existence of good cause.
(6) If the provider is unable to appear in person at the hearing due to unusual or urgent circumstances, alternate means of obtaining his/her personal participation will be offered (for example, written deposition, telephone conference call).
e. The credentials committee/hearing board will be chaired by the DCCS (or other physician designated by the commander). Members of the hearing board shall be individuals who were not involved in the peer review of the provider in question.
(1) The hearing is administrative in nature. Therefore, the rules of evidence prescribed for trials by courts-martial or for proceedings in a court of law are not applicable.
(2) The committee will be fully informed of the facts to allow an intelligent, reasonable, good faith judgment. The committee may question witnesses and examine documents, as necessary, to collect pertinent information.
(3) For procedural guidance on how to conduct the hearing, Army Regulation 15-6 may be consulted, but its provisions are not mandatory.
(4) The chairperson of the hearing board will advise the provider in writing, delivered in person, with provider receipt acknowledged by signed memorandum or by certified return receipt requested mail, of the following:
(a) The adverse privileging action under consideration that is the grounds for the hearing; any specific dates, facts; and all pertinent documents applicable to the case;
(b) The time and location of the hearing; the hearing should convene within 10 duty days (not less than 5 days but not more than 10 days) from the provider's receipt of the hearing notification
(c) The names of the witnesses who will be called to testify at the hearing;
(d) His/her right to be present, to submit evidence, to question witnesses called, and to call witnesses on his/her behalf; and
(e) The right to consult legal counsel.
(5) The hearing board will review all of the material presented, including that submitted by the provider. The chairperson will arrange for the orderly presentation of information and will rule on any objections made by the provider.
(6) The hearing will be documented in summarized minutes that reflect all the salient details of the proceedings. The hearing is considered a quality assurance activity covered by Title 10 U.S. Code 1102 and, as such, no recording devices, other than that used by the designated recorder to prepare the record will be permitted in the hearing room.
(7) Following the presentation of all evidence and relevant information, the provider being examined will be excused, and the hearing board will determine its findings and recommendations. Each of the board's findings must be supported by a preponderance of the evidence and by a greater weight of evidence than supports a contrary conclusion. Recommendations may include, but are not limited to:
(a) Reinstatement of privileges;
(b) Identification of specific provider deficiencies that require improvement and the establishment of requirement;
(c) Suspension, reduction, or restriction of clinical privileges for a specified length of time;
(d) Revocation of clinical privileges; or
(e) To reconvene the hearing, after appropriate notice to the provider, to consider additional relevant evidence.
(8) Decision of the hearing board is by majority vote. The chairperson of the board will vote only in the event of a tie. Members of the hearing board will cast a vote either "yes" or "no." No abstentions are permitted and voting will be by secret ballot.
(9) Selected members of the credentials committee may serve as the hearing board, or the entire credentials committee may perform this function, as determined locally. A privileged provider from the same discipline as the provider in question should be a voting member of the hearing board.
f. The record of the hearing, to include the findings and recommendations will be reviewed by the executive committee of the medical staff (ECMS) prior to being forwarded to the Hospital Commander. The servicing SJA (or Department of the Army (DA) civilian attorney) will review the record, including credentials committee/peer review panel findings and recommendations and any input from the provider in question, for legal sufficiency prior to action by the commander. The 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 provider's privileges. The findings and recommendations contained in the hearing record are advisory only and not binding on the commander.
g. The Appeals Process - When the MTF commander decides to suspend, restrict, reduce, revoke, or deny clinical privileges, the provider will be granted 10 duty days to submit a request for reconsideration to the MTF commander. The MTF commander is granted 14 calendar days to consider the request. If he/she denies the request in whole or in part, the action will automatically be endorsed to TSG as an appeal. TSG is the final appellate authority for denying, suspending, restricting, reducing, or revoking clinical privileges.
h. The appeals process is further defined in paragraph 10-10 and states when the Hospital Commander decides to suspend, restrict, reduce, revoke, or deny clinical privileges, the provider will be granted 10 duty days (extendable in writing by the commander for good cause) to submit a request for reconsideration. If the provider elects to appeal the commander's decision, the provider will submit a formal request for reconsideration that identifies the errors of fact or procedure that form the basis of the request. The burden is on the provider to specify the grounds for reconsideration/appeal.
i. The hospital commander is granted 14 calendar days to consider the request. If he/she denies the request in whole or in part, the action will automatically be endorsed to TSG as an appeal. TSG is the final appellate authority for denying, suspending, restricting, reducing, or revoking clinical privileges.
j. The written appeal and all information pertaining to the case will be submitted through the appropriate RMC. The RMC commander will review the packet to ensure that all necessary information is included prior to forwarding the case to the appropriate staff office that will conduct the appeal. The appeals board will consist of a minimum of three privileged providers, one of whom will serve as the chairperson. It is recommended that at least one member be of the same discipline and specialty as the provider whose appeal is being considered.
k. The findings and recommendations of the board will be endorsed by the RMC commander and all documents considered by the board will be forwarded for review and approval by the appellate authority TSG. The findings and recommendations of the appeals board are advisory in nature and do not bind the appellate authority. TSG is the sole authority responsible for provider notification of the final decision associated with an appeal. To remove any potential conflict, no other parties will have input into the final decision by the appellate authority. There will be no deviation from this regulation in the review process.
l. The appellate authority will notify the provider as soon as possible, following adjournment of the appeals board, of the decision concerning the appeal. The Hospital Commander, as appropriate, will also be notified in writing. The appellate authority will provide clear guidance as to what actions the hospital is expected to take regarding the future utilization of the provider.
m. Only adverse privileging actions may be appealed under these procedures. Denial of a request for privileges for reasons unrelated to the abilities, qualifications, health, or skills of the provider is not considered an adverse privileging action.
n. Administrative action to separate the provider as a result of an adverse privileging action under paragraph 10-12 will be deferred pending appeal resolution. Providers who voluntarily separate prior to resolution of their appeal will be informed in writing that the process will be completed as though they were still on active duty or employed in a civilian capacity. Special considerations, such as extensions of time for appeal, will not be granted.
o. Paragraph 10-12 provides for the separation from Federal service of a medical provider who has loss his license or clinical privileges. When the clinical privileges of a military or civilian provider are denied, suspended, restricted, reduced, or revoked, a local command administrative review will be held to determine whether personnel action to separate the provider from Federal service should be initiated. The provider will be informed of the consequences of leaving Federal service in a less-than-fully-privileged status/full scope of practice (that is, that a report will be filed with the NPDB, the Federation of State Medical Boards, State licensing board, and other regulatory agencies).
p. Paragraph 10-15 specifies that a healthcare provider who is involved in any of unprofessional acts/activities, or similarly unprofessional actions, will be evaluated by the credentials committee and appropriate adverse privileging or practice recommendations will be made to the commander. Although the credentials committee is not a criminal investigative body, it can and will consider all evidence from such investigations in its deliberations. An unprofessional act is deemed to have "occurred" when the individual is indicted or titled for an offense or after completion of applicable investigative proceedings and command action.
62. Chapter 14 (Reporting and Releasing Adverse Privileging/Practice or Malpractice Information) of Army Regulation 40-68 provides mandatory requirements on the reporting of adverse clinical privileging actions. It states, in pertinent part, TSG is the sole reporting authority to the NPDB, State regulatory authorities, the Federation of State Medical Boards, and/or other appropriate central clearinghouses. TSG is responsible for reporting malpractice history information and adverse privileging actions, unprofessional conduct or behavior, and any legal charges for which the provider/professional is found guilty, pleads guilty, pleads nolo contendere (which is a Latin term for "I do not wish to contend." It is also referred to as a plea of no contest), or requests discharge from the military in lieu of court-martial.
63. Army Regulation 15-185 (ABCMR) states the ABCMR operates pursuant to law (10 USC 1552) within the Office of the Secretary of the Army. The ABCMR consists of civilians regularly employed in the executive part of Headquarters, Department of the Army (HQDA) who are appointed by the Secretary of the Army and serve on the ABCMR as an additional duty. Three members constitute a quorum. The ABCMR's jurisdiction under 10 USC 1552 extends to any military record of the DA. It is the nature of the record and the status of the applicant that define the ABCMR's jurisdiction.
64. Title IV of Public Law 99-660 led to the establishment of the NPDB, an information clearinghouse, to collect and release certain information related to the professional competence and conduct of physicians, dentists, and, in some cases, other health care practitioners. The establishment of the NPDB represents an important step by the U.S. Government to enhance professional review efforts by making certain information concerning medical malpractice payments and adverse actions available to eligible entities and individuals.
65. The NPDB Guidebook is meant to serve as a resource for the users of the NPDB. It is one of a number of efforts to inform the United States health care community about the NPDB and what is required to comply with the requirements established by Title IV of Public Law 99-660 (Health Care Quality Improvement Act of 1986), as amended. The Guidebook contains information that authorized users need to interact with the NPDB.
66. The first record of an adverse action submitted to and processed by the NPDB is considered the initial report. An initial report is the current version of the report until a Correction, Void, or Revision to Action is submitted. A void is the retraction of a report in its entirety. The report is removed from the subjects disclosable record. A void may be submitted by the reporting entity at any time.
67. When the NPDB receives a report, the information is processed exactly as it is submitted by the reporting entity. Reporting entities are responsible for the accuracy of the information they report. If any information in a report is inaccurate, the subject must request that the reporting entity file a correction to the report. If the reporting entity declines to change the report, the subject may initiate a dispute of the report through the dispute process; add a statement to the report, or both. If a subject believes that information in a report is factually inaccurate or should not have been reported, the subject must attempt to resolve the disagreement directly with the reporting entity. Changes to a report may be submitted only by the reporting entity.
68. If the reporting entity declines to change the disputed Adverse Action Report or takes no action, the subject may request that the Secretary of Health and Human Services review the disputed report. The Secretary reviews disputed reports only for accuracy of factual information and to ensure that the information was required to be reported.
DISCUSSION AND CONCLUSIONS:
1. Counsel's contentions and the applicant's request were carefully considered.
2. Counsel argued that during the initial investigation the IO unequivocally stated he found no evidence of any wrongdoing during his investigation.
3. The evidence of record shows that the IO concluded there was sufficient cause for concern to limit the applicants privileges by an adverse privileging action. He stated the applicants actions fell far from his peers in Adolescent Medicine and he was the only known provider to have such a record of complaints and adverse counseling. He also recommended that the applicant be removed from any supervision of medical staff, residents, or other providers since his judgment had been shown to be flawed, by his repeated inappropriate actions and lack of insight on methods to control them.
4. Counsel also argued that even though the Credentials Committee recommended the applicants privileges be reinstated, the hospital commander rejected the recommendation and ordered an informal review. He also argued Army Regulation 40-68 stipulates that in cases where adverse action is contemplated, the peer review must be an External Peer Review Panel and further specifies the minimum number of members (three), with similar backgrounds, grade, and years of experience in the same professional capacity/specialty.
5. Paragraph 10-6f(1) of Army Regulation 40-68 specifically states that when a provider's privileges have been summarily suspended (or otherwise adversely affected), a peer review panel (internal or external) will be conducted to evaluate the provider's performance, conduct, or condition to determine the extent of the problem(s) and to make recommendations through the credentials committee to the commander. To avoid the possibility of bias, those individuals who are involved in the peer review should not participate as voting members for subsequent credentials or RMC committee actions involving the named provider.
6. Counsel stated the Hearing Board which convened on 8 August 2005 was composed of a majority of members who were not qualified under any regulation and did not have the authority to determine the SOC. The purpose for the board was unclear and the board convened although there were no deficiencies substantiated by the peer review process.
7. The evidence of record shows that at the request of the applicant, a Credentials Hearing Board was conducted concerning allegations that may have adversely affected his clinical privileges. Upon review of all the evidence and testimony, the Credentials Hearing Committee determined that they did not have sufficient information to determine whether the applicant's conduct met the SOC and decided to reconvene at a later date.
8. Counsel also contended that after the hearing board, the EACH Commander revoked the applicant's privileges even though he had no factual basis for imposing a sanction greater than recommended by the formal peer review or credentials committee.
9. Paragraph 10-9c of Army Regulation 40-68 states that after the hearing, the 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 provider's privileges. The findings and recommendations contained in the hearing record are advisory only and not binding on the commander.
10. Counsel also argued that the two committees, whether properly constituted or not, heard the evidence and did not recommend revocation. By analogy, a court-martial convening authority may reduce a sentence issued by a jury, but has no statutory authority to increase the punishment.
11. Paragraph 10-8a(1) states the hearing is administrative in nature. Therefore, the rules of evidence and procedure prescribed for trials by court-martial or for proceedings in a court of law are not applicable.
12. Counsel contends the applicant was also denied procedural due process in the disclosure requirements mandated by Army Regulation 40-68, chapter 10, paragraph 7b for the following reasons:
* None of the records used by the EACH Commander during the informal review were provided to the applicant until one day prior
* The statements of "experts" providing opinions of the proper way to conduct a GU on adolescent males were only made available for questioning at the hearing board
* Documents presented to the hearing board by LTC D______ were not provided to the applicant in a timely manner
13. Paragraph 10-7b(1) states that prior to the hearing, the provider will have access to all information that will be presented for consideration at the hearing. The evidence as reviewed in the 8 August 2005 hearing board minutes, confirm that the applicant was provided the patient complaint, records used during the formal review and the statements made by experts the afternoon preceding the hearing.
14. Counsel contends that the additional committees, polls, and investigations which took place after two qualified forums found the applicant to be operating within the SOC and recommended reinstatement of his privileges, gave the appearance the investigation was based on statements provided by LTC D_____ rather than the decisions made by qualified medical professionals.
15. The applicant appealed his case at each level in accordance with Army Regulation 40-68. TSG, operating on the findings of the appeal board advisors, made a final determination to deny the applicants reinstatement and directed an entry be made in the NPDB concerning the unprofessional conduct of the applicant.
16. The Surgeon General is the senior medical officer in HQDA, and his office serves as the governing body for health care facilities worldwide. The ABCMR could order removal of the adverse privileging action from the applicants credential privilege files, or inform the data bank that the original notification was in error. However, the Board respects the authority given to TSG, the senior medical authority in the Army. In the absence of compelling evidence that a gross miscarriage of justice occurred, there is a reluctance to overturn the judgment of that authority.
17. The applicant has failed to provide the compelling evidence that would warrant the relief requested.
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 to amend the decision of the ABCMR set forth in Docket Number AR20080002864, dated 25 September 2008.
____________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) AR20100016564
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ABCMR Record of Proceedings (cont) AR20100016564
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