Board Review
Uncategorized November 2nd. 2010, 1:42pmBoard Review
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Medical board reinstated convicted felons | Thomas Dosumu Johnson
In the past 10 years, the California Medical Board has reinstated the licenses of doctors who were convicted of sexually assaulting patients, defrauding insurance companies of millions and hiring hit men to kill their wives.
Although some doctors spent as much time in prison as they did in medical school, they were most often able to show rehabilitation and given a second chance to treat patients.
"There are some things that people have done, and I don't care how remorseful you are, you shouldn't get your license back," said Julie D'Angelo Fellmeth, a San Diego attorney hired by the state in 2003 to report on the board's enforcement practices.
The Orange County Register examined records of 123 doctors who sought reinstatement in the past decade after they lost their licenses for misconduct or negligence. More than half were able to satisfy a judge and the medical board that they were fit to practice. Among the 66 who were reinstated, 16 got into trouble again.
Among those was Dr. Andrew Rutland, an Anaheim obstetrician/gynecologist who could lose his license for a second time after the death of another patient.
The board has accused Rutland of gross negligence after a patient died last summer following an abortion procedure. The board had first taken Rutland's license in 2002 after the death of a newborn from a botched forceps delivery. In recommending restoration of Rutland's license to the board five years later, a judge wrote, "He continues to empathize with his patient's pain and sorrow over the loss of her child."
Rutland was one of a dozen doctors who were reinstated after losing their licenses for negligent patient care. But the records show that even doctors convicted of felonies and sentenced to prison were able to win reinstatement.
. Beverly Hills psychiatrist Mark Kaplan was arrested in 1993 and charged with bilking the worker's compensation system out of $30 million. Prosecutors said Kaplan hired "cappers" to recruit thousands of laid off workers from unemployment lines. He would then file phony injury claims and bill for medical services that were never provided.
In 1995, Kaplan pleaded no contest to four counts of insurance fraud and conspiracy and surrendered his medical license. He was sent to Folsom State Prison.
After four years in prison, Kaplan's first application for reinstatement was rejected. In 2004, on his second try, he was successful. A judge cited his volunteer work with addicts, religious counseling and references who called him a "changed man." Today Kaplan practices in Los Angeles.
. Carlsbad dermatologist Vincent Nicholas Galluzzi pled guilty in 1997 to hiring an undercover police officer in an unsuccessful attempt to kill his ex-wife. According to board records, Galluzzi paid the cop a deposit of $1,000 and gave him his ex-wife's address and photo. The woman was not harmed, but Galluzzi was convicted and the medical board revoked his license in 1998.
Galluzzi was sent to R.J. Donovan Correctional Facility, state records show. He was released in 2000 and spent three years on parole before reapplying for his license. In making his case, he explained his anger over costly spousal support payments, expressed remorse for his crime and said he didn't realize until after his arrest that he suffered from obsessive-compulsive disorder.
A judge hearing his request wrote, "The kind of aggressive feelings he had toward his ex-wife were never focused on his patients (or anyone else.)" The medical board reinstated his license in 2004. Galluzzi now practices in Modesto.
. El Centro neurologist Thomas Tartaro was accused by the medical board of sexually abusing female patients, often telling them to remove their clothing for an exam and then rubbing his genitals against their buttocks and suggesting sex acts. Prosecutors charged him with eight counts of sexual battery; his probation report said that another eight victims declined to press charges.
"This officer can think of nothing worse that a doctor could do to his patients," a probation officer wrote in a pre-sentencing report.
Tartaro pled no contest in 1994 to one felony charge of sexual battery on a restrained victim, a deal which allowed him to avoid state prison, records show. A judge sent Tartaro to the Imperial County Jail for 90 days instead. His license was revoked in 1995.
When Tartaro sought reinstatement of his license five years later, he said he had been addicted to prescription drugs that he received as samples. He underwent treatment for drug abuse, volunteered by reading to the blind, and testified that he would always feel guilt.
A judge found Tartaro showed "extreme remorse" for his crimes, "exemplary fortitude" in overcoming his addiction, and had maintained his "medical acumen." The board reinstated him in 2002 but barred him from practicing on female patients during his 10 years of probation.
Tartaro's reinstatement outraged one dissenting board member so much that, after he was elected to the state assembly, he authored a law banning felony sex offenders from practicing medicine. Tartaro, however, still has his medical license.
Tartaro and Galluzzi did not respond to requests for an interview. Kaplan also declined an interview, but told a reporter: "I do not see how the public at large could benefit from this (story)."
Linda Whitney, executive director of the medical board, said in a written statement that its reinstatement process provides the "most objective and independent method" of determining which doctors are rehabilitated.
"On balance and in the fullness of hindsight, I believe our board has lived up to its public protection mandate in this process far more than not," Whitney said.
Rudy Bermudez, the former medical board member who wrote the sex offender law, put it differently.
"I think some of it goes to the doctor-God syndrome," Bermudez said. "The board means well but hasn't always done well."
STANDARDS FOR REINSTATEMENT
When disciplining doctors, state law emphasizes a goal of rehabilitation, but says "protection of the public shall be the highest priority." When those two are "inconsistent," the law says "protection shall be paramount."
"Why should we throw out all that society has invested into a doctor without giving a doctor a second chance?" said Peter Osinoff, a prominent Los Angeles attorney who specializes in representing doctors before the board. "If 99 percent of them can benefit society, it's very worthwhile to reinstate these physicians."
Doctors must wait three years after losing their licenses to reapply again, although sometimes settlement agreements allow them to seek reinstatement after two. In contrast, California attorneys who are disbarred must wait five years to reapply.
State law allows either a panel of the board or an administrative law judge to consider the request. The board has opted to have all cases go before a judge, who issues a proposed decision that must be approved by the board. Doctors have the right to appeal.
The law instructs judges to consider the original offense, the doctor's actions since the discipline, rehabilitative efforts, reputation for truthfulness and professional ability. A doctor may not apply while incarcerated or on probation.
Other large states have similar criteria, although Texas allows doctors to reapply after only one year. In New York, decisions are made based on "remorse, re-education and rehabilitation," said Seth Rockmuller, an attorney for the state.
During the hearing, the doctors seeking reinstatement testify. They face cross examination by attorneys for the medical board. The doctors have the burden of proof to show they have been rehabilitated and are fit to practice medicine.
Many judges' refusals to reinstate cite a doctor's denial about past events and failure to accept responsibility.
For instance, Olufemi Ogunmola of Rancho Palos Verdes had his license revoked in 1986 after he was convicted of two counts of rape. Board documents say Ogunmola raped the women during their pelvic exams. Despite now "living an extraordinary life" he was turned down for reinstatement four times because he was in denial that he'd committed a horrible crime, the judge concluded.
Only a handful of doctors committed crimes so troubling that the board felt they outweighed rehabilitation, the records show.
Ronald M. Howard, who was convicted in 1992 of sexually abusing a 15-year-old patient in San Bernardino County, had admitted to sexually abusing about 75 patients -- male and female -- dating back to medical school, according to board records.
In 2002 a judge refused to reinstate him, citing a psychologist who said his sexual deviancy for 34 years had become deeply ingrained in the fabric of his personality. "It is difficult to conceive of a riskier environment for petitioner than the practice of medicine," the judge wrote. "There is simply no practical method for ensuring requisite protection of the public if petitioner's certificate were restored."
Felicia Cohn, a medical ethicist at UC Irvine, said while some doctors' misconduct may be shocking, the board's case-by-case review and follow-up monitoring seems reasonable.
"I want to believe that rehabilitation is possible and a valid goal," she said. "If these physicians can demonstrate that they truly are rehabilitated and we can trust them with our health and our lives again, they should have that second chance."
SEVEREST PUNISHMENT
In the last 10 years, the medical board has taken the licenses of 1,017 doctors, according to state records.
The most common reason was negligence, with 282 cases, followed by drug or alcohol abuse (163) and mental illness (133). Sexual misconduct accounted for 113 cases and 68 doctors lost their licenses for conviction of a crime.
Among those who were reinstated, 25 had lost their licenses after they were convicted of a crime, including six for selling drugs or illegally prescribing them, nine for insurance fraud, and three for sexual abuse of patients. In addition to Galluzzi, the dermatologist, another doctor served 20 years in prison for seeking to have his wife killed.
Many of the crimes were fueled by drug or alcohol abuse, including an Apple Valley doctor who was convicted of vehicular manslaughter after he drove the wrong way on the freeway while under the influence of drugs. State law requires doctors to report to the board any felony charges as well as misdemeanor and felony convictions.
The doctors can hit rock-bottom after loss of a license, both emotionally and financially, Osinoff said.
Dr. Nagesh Shetty, a Huntington Beach internist who had his license revoked in 2000 after he was convicted of three counts of tax fraud, worked bagging groceries for $7.40 an hour before his reinstatement in 2005, board documents show. Other doctors who were eventually allowed to practice again worked at a hamburger stand, in a slaughter house and answering phones at a medical office.
"What's taken away from them is their identity," Osinoff said. "It's more than a license to practice. It's who they are. It is absolute devastation."
Dr. Thomas Dosumu-Johnson of Los Alamitos had his license revoked in 1990 after he was caught in a drug sting. According to a temporary restraining order obtained by the board that year, the doctor had repeatedly prescribed large amounts of narcotic drugs and stimulants to undercover agents who told him they planned to re-sell them on the black market.
He sought treatment for drug and alcohol addiction. His charges were reduced to misdemeanors and his conviction was later expunged. He regained his license in 2001 and has been "open with others about his mistakes, and, in so doing has enabled this tragedy to serve as a unique learning experience," a judge wrote.
Dosumu-Johnson said he's retiring from medicine to pursue Christian ministry, but is glad he had the opportunity to complete his medical career.
"It's been a good ride and it's time to say goodbye," he said. "It's been useful. I'm very, very grateful and the medical board has been fair."
While Dosumu-Johnson appears to demonstrate the law's goal of rehabilitation, the reinstatement of Tartaro, the doctor accused of sexually abusing multiple patients, raised questions about protection of the public.
Fellmeth, the attorney who audited the medical board's disciplinary practices, also works at the University of San Diego's Center for Public Interest Law. The center took the unusual step of filing a brief imploring the board not to allow Tartaro to treat patients again after he got out of jail.
"He's got a white coat on," she said. "They trusted him. Many of them testified when he was being sentenced that they'll never trust a doctor again."
Fellmeth said doctors typically have the money to hire top attorneys who can immediately steer them toward rehabilitative efforts that are persuasive to judges and board members.
After his election to the state Assembly a year after Tartaro's reinstatement, former medical board member Bermudez wrote legislation with him in mind.
The 2005 law permanently revokes the license of doctors for as long as they remain registered felony sex offenders. Those convicted before 2005 can be reinstated after five years if a Superior Court judge finds they pose no safety threat to patients, the law says.
"No one is owed a medical license," Bermudez said. "You earn it. It's a privilege to be a physician in California."
After the new law took effect, the board moved to revoke Tartaro's license again, arguing that he is still required to register as a sex offender.
Tartaro had petitioned the criminal court and had his conviction expunged. The petition to revoke his license remains pending while the board reviews lawsuits challenging the constitutionality of the law, said board spokeswoman Candis Cohen.
IN TROUBLE AGAIN
After doctors are reinstated, they are put on probation and may be required to have another doctor monitor their practice, undergo clinical training or be barred from prescribing controlled substances.
Most of the 16 doctors who have faced discipline again after reinstatement were accused of failing to comply with terms of their probation, including failing to pass required exams or failing to have a chaperone when examining female patients. One doctor was caught lying on reports to the board. Another surrendered his license when he relapsed back to cocaine use. Another received a public reprimand, the most minor form of discipline, for misdiagnosing a patient's appendicitis.
Rutland is the only reinstated doctor in the last 10 years to face board discipline again for accusations of gross negligence stemming from the death of a patient.
Ying Chen, 30, suffered a toxic reaction to local anesthesia on his operating table at an abortion clinic in San Gabriel last July. Following her death, the board accused Rutland of not knowing the appropriate dose of anesthesia and failing to properly resuscitate her. In January a judge barred Rutland from performing surgery, pending a hearing this summer where the board will seek revocation of his license.
Rutland has denied in legal documents that he was negligent. His attorney did not respond to a request for comment.
Both Osinoff, the attorney who represents the revoked doctors, and Fellmeth agree that the small number of subsequent discipline cases indicates good decisions by the board.
"It seems like they're making the right calls in most cases," Fellmeth said. "That's kind of comforting."
Said Osinoff, "Most of the time, there's not a recurrence of the conduct that led to the revocation. The reason for that is they've been so hammered by this process that they never want to go through this again."
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Medical board reinstated convicted felons
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