This page is a review of the rebuttal of the arbitrary and discriminatory errors made by the reports supporting denial of my license restoration by the NYS Peer Review Committee and the Committee on the Professions as listed on their public web site (absent the actual transcript). A transcript only exists for the first hearing. They left out the transcript from their web site so that no one could check the facts. The reality is that their reports to Mr. Mills were all lies, deliberate misinterpretations and quoting out of context as well as addict stereotypes that had no relevance to me as an individual or my specific history. It's quite apparent that their reports are highly twisted and distorted versions of what actually went on in those hearings as evidenced by the transcript, available on request. Dispite this they were accepted by the Dept. of Ed. and Mr. Mills and defended by Elliot Spitzer, the then Attorney General of NYS (and now ex-governor of NYS). Following this affidavit are some other thoughts about the atrocious behavior of NYS. Because of this I was denied the requested trial by the reviewing judge. I was denied my day in court. At that point I quit the fight because I couldn't afford the expenses that entailed.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ALBANY
DAN UMANOFF, M.D.,
THE UNIVERSITY OF THE STATE OF NEW YORK
EDUCATION DEPARTMENT and RICHARD P.
MILLS as Commissioner of Education of
the State of New York, AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF NASSAU )
DAN UMANOFF, being duly sworn, deposes and says:
1. I am the petitioner herein and as such, I am fully familiar with the facts and circumstance hereinafter set forth.
2. I submit this affidavit in further support of the instant petition which seeks judicial review of the determination and order issued by respondents on November 4, 1999 which denied my application for restoration of my medical license.
3. The purpose of this affidavit is to attempt to set forth succinctly the basis behind my contentions that the findings of the Peer Review Committee and the findings of the Committee on the Professions were arbitrary, capricious, contrary to the record and as such, an abuse of the discretionary powers granted to them by the Legislature of the State of New York.
4. It is uncontroverted that I suffered a relapse and was actively addicted to opiates while practicing medicine during a three year period from April of 1986 through July of 1989. When confronted by the Health Department in or about July, 1989, I immediately surrendered my medical license, ceased active practice and continued my attempts at getting straight. Throughout this three year period I fought this battle by myself, in secret, as I was extremely afraid of the possible repercussions which would ensue had I admitted to being actively addicted.
5. It took approximately ten months after I surrendered my medical license to find the right treatment and rehabilitation regimen to finally cease using drugs for good. During that time I wrote illegal prescriptions to obtain drugs for my personal use and was arrested for that crime. I entered a guilty plea and was sentenced to five years probation. After my conviction, my license to practice medicine was revoked after a lengthy hearing and subsequent review of the proceedings by the Administrative Review Board. I had been drug free for a period of seven months at the time of the hearing. I successfully completed probation in or about May, 1994, one year earlier than I was sentenced to.
6. Approximately three years after my medical license was revoked, and having continued my sobriety throughout that time, I submitted an application seeking to have my license restored having worked with the Committee on Physician’s Health (CPH) in order to comply with their guidelines, receive their advocacy and ultimately their recommendation that I was fit to return to active practice. After I was assured that I had the advocacy of the CPH, the hearing before the Peer Review Committee was scheduled. The transcript of that proceeding which took place on September 16, 1998 is annexed hereto as Exhibit “1”. At that time I had been free of active addiction for a period of over seven years as evidenced by random urine drug testing which I had faithfully performed since 1991.
7. It is my intention herein to substantiate for the Court how my testimony was distorted and the evidence submitted in support of my rehabilitation and fitness to return to practice was ignored, first by the Peer Review Committee, thereafter by the Committee on the Professions and, finally, by the Education Department of the State of New York who ultimately reviewed the submissions and transcript and issued the order and decision. (Exhibit “C” annexed to the petition).
8. The Report of the Peer Review Committee (Exhibit “A” annexed to the accompanying petition”) sets forth the Committee’s impressions of the hearing on pages 6 and 7 thereof in a section entitled “The Meeting”. Despite the fact that the Committee was charged by the chairperson to “serve in an impartial manner in arriving at an outcome” I believe a great deal of the statements contained in that section (not to mention the recommendations which follow) clearly indicate a decided lack of impartiality and objectivity when compared to the actual statements made by me during questioning at the proceeding. First, a great deal of attention was focused on the fact that I had previously stated that I thought that the penalty of revoking my license in the first place, in my opinion, was an extremely harsh and punitive way for the Health Department to deal with an addicted physician who simply had trouble getting straight. I would have no cause to complain if there had been any patient harm inflicted by me but there never had been (either while actively addicted or straight). I had surrendered my license, had caused no personal harm to anyone but myself in terms of the criminal activity and was clean for seven months at the time of the revocation hearing. I stated time and again that I did not question the Health Department’s right and duty to protect the public. On page 54 of the transcript of the meeting before the Peer Committee I unequivocally stated, “I fully recognize the right of the health department to revoke my license.” Again on page 57 one of the Committee members asked “... can you in any way accept the idea that the Panel, whether you agree with their action or not, was trying to act for the benefit of the general public?” and my answer “Absolutely”.
9. The revocation was all water under the bridge at that time. I still do not fully understand why this point was addressed over and again both at the meeting and again in the report issued by the Peer Committee (pages 6 and 7 of Exhibit “A”). Why would anyone be surprised at my questioning the Health Department’s motives when there were other remedies available to them to ensure public safety? I realize that I broke the law but it seemed as if I were being subjected to double jeopardy after paying the criminal penalty. I am also aware of the fact that the New York State Health Department has imposed those lesser penalties on doctors finding themselves in situations similar to mine. This is a matter of public record, the information easily accessible on their website. Nevertheless, I had no choice but to accept the penalty imposed in my case and for two and a half years thereafter, concentrated on what was most important, ensuring my continued sobriety and getting the rest of my life in order, which I did.
10. I did not even institute a proceeding through the Courts such as this with regard to the revocation of my license. Instead, as I clearly stated at the meeting, in response to a question posed as to why I waited years to ask for restoration:
“What was most critical for me was my recovery and making sure that I was fully confident and fully in recovery when I did ask for restoration. I didn’t want to have to go through this process again. I wasn’t interested in resuming practice at the time of revocation hearing when I was eight months sober. What I felt was that I could have been given whatever, some time to see how I would do. I wasn’t - - I wasn’t even suggesting that I get my license back at that point, but because of the administrative hurdles that are placed in someone’s path after revocation of the license compared to the administrative process being much simpler if your license is not revoked, I was asking for time for them to give me a chance not to have to go through this complete restoration process.” (Exhibit “1”, page line 14, et seq.)
11. I was described by The Peer Review Committee as “arrogant” and lacking “realism”. Additionally, the committee chose to misinterpret my statements regarding the revocation as lack of remorse. Page 8 of their report (Exhibit “A” to the petition in the section headed “Recommendations”) states:
“This committee is not satisfied that applicant is truly remorseful. Asked more than once who had been harmed by his substance abuse he never recognized that his actions had been harmful to the public. Applicant intellectualized everything about his misconduct including the ‘biased’ actions of the Health Department. He was arrogant and demonstrated a lack of realism.”
I had acknowledged more than once that my addiction was harmful to everyone who I had contact with. When questioned on what my concept of remorse was in the area of a recovering addict, I replied:
“... I think remorse is a feeling that I didn’t live up to my expectations, that I let down people and that in doing so, that I hurt people inadvertently by not living up to my potential.” (Exhibit “1”, page 36, line 25 - page 37, line 6)
When asked what I thought constituted “recovery”, I also addressed the issue of harm:
“... the realization that [addiction] has had detrimental effects on my life as well as other people’s lives.” (Exhibit “1”, page 38, lines 12-14.)
12. I also freely admitted that I had sought help for alcohol problems during my early the early part of my career, as I knew they were effecting my work (Exhibit “1”, page 78, lines 2-4). The Peer Review Committee abjectly chose to ignore these admissions and acknowledgments and erroneously determined that I had insufficient feelings of remorse. I freely admitted to my behavior being a potential danger to my patients, despite that fact that I was always extremely careful with regard to patient care even while actively addicted.
13. I testified that I did not believe that doctors should be practicing medicine while actively addicted (Exhibit “1”, page 23, lines 17-22). Additionally, I emphatically stated that the New York State Department of Health was completely justified and obligated in ensuring that actively addicted doctors are prohibited from practicing medicine, myself included, I only disagreed with the form of the punishment imposed upon me. Why not have continued the suspension rather than revocation? Why not encourage the addicted doctor to get straight with the end of suspension the reward? If this is “arrogant” and “intellectualizing” then I guess am guilty, but I sincerely believe that my testimony was twisted by the Peer Review Committee in an arbitrary and capricious manner in an attempt to substantiate their unjustified and baseless conclusion of the “lack of remorse” aspect of their recommendation and to deny my application for restoration.
14. The blatantly judgmental description of arrogance is again, contradicted by many statements made by me on the record. For instance, on page 39 of the transcript, I clearly acknowledged my need and my commitment to following the advice of others regarding my addiction, especially my A.A. sponsor. I followed every advice given to me by the CPH, in spite of the fact that I did not always agree with it, as I knew they were looking out for my best interests. Arrogant people, by definition, do not take the advice of others.
15. The remorse issue was also addressed in my testimony, as I freely admitted that my active addiction was detrimental to other people’s lives as well as my own (see Exhibit “1”, page 38). I acknowledged to the Peer Review Committee that I had hurt the people close to me and also that the incredible remorse that I felt had been fully addressed with my therapist (Exhibit “1”, page 17). Both through therapy and through Alcoholics Anonymous, I was urged to accept (and did accept) the guilt and the bad feelings and thereafter to move on and attempt to make amends to those I hurt. To me, The Peer Review Committee’s apparent insistence that I provide “evidence” of remorse after seven years of sobriety is a “demonstration of a lack of realism” on their part. In addition to my testimony, my documented commitment to continued sobriety and to not repeating the mistakes and misdeeds of the past should demonstrate how sorry I am about my prior actions, “remorse” if you will.
16. The recommendations of the Peer Review Committee continued as follows:
“While applicant’s continuing education is satisfactory he could not tell us what he would do with his license if he was reinstated but seems to want his license restored for the sake of having it restored.”
I testified that I hoped to practice in my local community (Exhibit “1”, page 15, line 2) but had made no firm plans in that I still had burden of having my license restored to overcome before approaching anyone for employment. I also testified that I had been considering internal medicine, emergency room consultations or working in the field of addictions (Exhibit “1”, page 65, lines 5-16). It is uncontroverted that I have kept up with advances in medicine and in the field of nephrology and kept in contact with former colleagues but as my attorney and I both explained to the Committee, it would be somewhat unrealistic to make definitive plans considering the obstacles still before me.
17. It was arbitrary and capricious for the panel to conclude that I wanted my license reinstated merely for the sake of having it. I had been working with CPH for years, cooperated in gathering documents and attending interviews for the Department of Education and spent a great deal of money on legal fees and therapy to be granted a hearing on my application. The supplemental petition (annexed hereto as Exhibit “3”) set forth my desire to return to active practice and once again serve the public as a competent and dedicated doctor utilizing the training and skills I worked so hard for. I reiterated this in my testimony to the committee (Exhibit “1”, page 85). All of these statements were ignored in the Report of the Peer Review Committee.
18. The final reason for denying my request for reinstatement was set forth by the Committee as follows:
“While we admire applicant’s efforts at remaining drug free we see that applicant is presently in a situation without any real pressure where he controls what happens. This would not be the case were he to resume the practice of medicine. Long term sobriety does not automatically equal fitness to practice. For all these reasons we cannot recommend restoration of licensure based on the record herein.”
Based on the record, it is fully documented that I have endured stress more severe than any experienced during my practice. I was convicted of a federal crime, had my medical license revoked, endured what amounted to financial duress from my business partners, went through lengthy and emotional divorce litigation, grieved over the death of my father and subjected myself to this restoration process, among other things. I am annexing hereto as Exhibit “4” a report issued in March of 1997 by Penelope Jeacoma, an investigator for the Education Department which clearly documents that my life was far from stress-free during these past years that I have been barred from practicing medicine. Ms. Jeacoma states, on page 3 thereof:
“Phone contact was made with Ann D’Heedene, CSW. She confirmed that she was the therapist for the subject during a period of about 8 months at the end of 1991 and the beginning of 1992 ... She stated that during the 8 months of their therapy, most of their focus was what triggered the subject’s relapse, how he related to his daughter, and how he related to his wife and handled the divorce proceedings. There was a lot of stress during those months, but she felt that the subject dealt with the situation well and remained clean and sober.”
19. It is interesting to note how this report (this aspect of same as well as many others) was totally ignored by both the Peer Review Committee and thereafter, by the Committee on the Professions. Instead, they seized upon correspondence written 7 months prior by a person who never even met or spoke with me. This letter dated September 4, 1996 over the signature of Anne F. Saile, Acting Director of the Office of Professional Medical Conduct, was brought up during the proceedings as purported evidence that they “also have the Department of Health opposing the restoration of the license” (Exhibit “1” at page 92, line 11). This letter (annexed hereto as Exhibit “5”) was written to the Committee on the Professions, New York State Education Department, before certain documents were ever requested of me for inclusion in my file and again, by a person with little or no knowledge of the facts in that she never spoke with me nor to my knowledge, any person who knew me. The letter is erroneous in several respects and completely contradicted by the later (and more objective) report issued in March, 1997 by Penelope Jeacoma.
20. Numerous documents were also submitted by therapists and psychiatrists that I have met with for either treatment or for evaluation at the behest of various agencies, collectively submitted herewith as Exhibit “6” as follows:
a) A detailed psychiatric evaluation report issued by Jeffery A. Selzer, M.D., dated April 27, 1993 which states in its “conclusions”: “There is no evidence of psychiatric illness at this time nor is there evidence of active substance abuse or dependence with the exception of nicotine. To verify this conclusion, I asked Dr. Umanoff to provide me with a supervised urine sample. He did so with no reluctance and urine toxicology for ethanol, amphetamines, barbiturates, benzodiazepines, cannabinoids, cocaine, methadone, opiates, and phencyclidine disclosed no substances.” The report went on to recommend: “I would support Dr. Umanoff in his efforts to regain his medical license.”
b) Report of a telephone conversation between Penelope Jeacoma and my former therapist, Ann D’Heedene, CSW dated December 10, 1996 which attests to my sobriety and ability to handle stressful situations;
c) Two (2) letters dated January 4, 1999 and January 24, 1999, respectively, submitted by Carlotta Lief Schuster, M.D., who conducted psychotherapy on me which indicate her support for my efforts to regain my license and also indicating that she saw no need for further treatment.
21. The recommendation submitted by CPH (annexed hereto as Exhibit “7”) was not addressed. Affidavits submitted by friends, people I have known through A.A., and colleagues were considered by the Panel. These were all part of the record but one member of the committee completely discounted these references by stating, “What strikes me is how much the people you chose as references know about you to have committed these references”(Exhibit “1”, page 32, lines 18-21) . Who would know me better (outside of my family who were not permitted to submit affidavits) than my therapists, neighbors, people I had been seeing at least three times per week at A.A. meetings and doctors whom I met with for four years on a weekly basis during informal roundtable lunch meetings and case discussions which were attended by me to continue my medical proficiency?
22. Without exception, the documented evidence of my physical, emotional and mental fitness to return to practice was either viewed with distortion or completely ignored by the Peer Review Committee.
23. Therefore, the recommendations of the Peer Committee were arbitrary, capricious, contrary to the documented evidence and testimony as such, an abuse of their discretionary powers.
24. I was thereafter advised that the matter would be forwarded to the Education Department of the State of New York Committee on the Professions (COP) for further review and hearing. My attorney and I met with this panel on May 17, 1999. A copy of their report and accompanying recommendations is annexed to the accompanying petition as Exhibit “B”. There is no transcript of this meeting and many of the statements attributed to me in the report are again, imprecise and therefore left open to misunderstanding by any future reviewers of this matter. Statements are quoted out of context, in random order and some are completely misquoted. As an example, on page 4:
“Regarding the report of the Peer Committee, Dr. Umanoff said, ‘I was flabbergasted when I got the report. I’m so sorry for any misinterpretation I might have given to the Peer Panel.’ He said that he only answered questions that were brought up and ‘wouldn’t bring up any of that stuff myself.’ He indicated that his past was behind him and that it had been 10 years since he had been able to talk to someone ‘about this stuff’. Dr. Umanoff said that he was in pain and he picked up drugs. He stated, ‘stuff that hurts you can stimulate your need for drugs.’ He indicated that no person made him use drugs.”
Clearly, this is a mishmosh of statements made in response to different inquiries by the panel. It is an absolute mis-statement that I said that it had been 10 years since I had been able to talk to someone about “this stuff”. I talked to people all the time, my family, my friends, my therapist, supporters from A.A., my lawyer, my doctors, colleagues and my helpers at CPH. I would never have made, and did not make a statement such as that. This is just one example of how the report differs from the reality of the meeting with the Committee on the Professions.
25. What did occur is that I again acknowledged that actively addicted doctors should not be actively practicing medicine (page 2), that I took responsibility for all of my past actions and how they contributed to the loss of family, my license and my medical practice. I explained how I was sometimes met with absolute intolerance from family members, my partners and society both during my relapse and after I had become sober. I also went on to state that this intolerance was understandable as people really had trouble dealing with the sometimes incomprehensible behavior of active addicts. The Panel “chose” to interpret these statements as “anger” and “resentment” despite my protestations and the absolute absence of any angry or resentful behavior on my part at any time throughout the preceding years.
26. The Panel reports: “The Committee believes it is not its role to merely accept as valid whatever is presented to it by the petitioner but to weigh and evaluate all of the evidence submitted and to render a determination based upon the entire record.” This is again exactly what failed to happen! They stated “he continues to lay some blame for his addiction on others, including society’s ineffectiveness in dealing with addicts. He harbors obvious resentment and anger for his former partners and wife for their role in his problems” (page 5). I stated over and over to this Committee and (as evidenced by the transcript) to the Peer Review Committee that I had long before come to terms with what had occurred in the past and did not blame anyone but myself for my addiction. The Committee’s unfounded impressions of those unresolved issues are without any basis and actually contrary to the investigator’s report.
27. The fact of the matter is that others did play a role in the complexity of the problems and the pain I experienced during that earlier time when I was relapsing but never did I retaliate, attempt to extract revenge or exhibit any resentful or angry behavior towards them. On the contrary, I have continued to abide by the contracts I entered into both with my former wife and my former partners. There has been no lack of cooperation evidencing residual resentments or anger. These are the facts, and contrary to those facts, the COP stated “he is unable to accept or understand the ostracism resulting from his misconduct”. I have accepted it. I do understand it, but that does not mean that it I have to like it, that it was right, or that it should continue after my obvious rehabilitation. I believe the above quote from the COP is a telling example of the Committees’ belief that addiction justifies and requires societal and personal ostracism. Their justification of ostracism speaks to their clear belief that addiction is a malevolence or an evil rather than a disease, an assessment contrary to the New York State Human Rights Act and the Americans With Disabilities Act. What’s more, it shows an absolute absence of the impartiality and fairness that was supposed to be utilized in making their determinations.
28. The Committees’ further finding to the effect that “... COP notes, and agrees with the observation of the Peer Committee that Dr. Umanoff did not demonstrate any recognition that his actions might have been harmful to the public and the concern that he might not yet be able to function in a stressful situation he might not be able to control” (page 5). Again, based on what? Previously in the same report they noted, “The Committee asked Dr. Umanoff if such drug use would be a problem for a physician practicing medicine. He replied that “there would be a potential for making a bad decision.” The COP contradicted their own findings in their own report.
29. Even before the COP issued its written report, I felt that certain issues addressed at the meeting of May 17, 1999, needed to be clarified by me as I had absolutely felt the unjustified antagonism which met my testimony before them. I submitted a letter within a day or two (annexed hereto as Exhibit “8”) again attempting to show that my documented behavior should be the proof of my rehabilitation, sincerity and absence of destructive tendencies. The Committee purported to have considered this letter in rendering its recommendation but apparently it made no impact upon them.
30. In that letter to the COP (which again, was submitted together with a chapter of a book I had written before the report was issued) I stated the following:
“Please refer to my chapter on the 12 Steps coming from my book. It is clear from reading this chapter how strongly I feel about the importance of taking full responsibility for one’s addiction-associated behavior and decisions, and how important it is to not blame any other person for one’s actions thus ending victimization (step 1 in particular).”
* * *
“I tried to make it as clear as I could that I take full responsibility for my actions and blame no one for my addiction and drug use. My answers were merely to a question concerning contributing factors for my relapse such as loss of business and marriage, which were occurring to me at the time while I was sincerely attempting to comply with my agreement with the Health Department, are acknowledged precipitants of relapse in very early recovery.”
31. These acknowledgments, and more importantly, my continuously cooperative behavior in all areas of my life since my relapse, belie the Committees’ recommendations. Specifically, I believe it is clear that my testimony and the absence of further interpersonal problems in my life contradict the findings of the COP. Their “observations” in support of their recommendations actually ignored the evidence presented and thus, rendered those findings and recommendations arbitrary, capricious and contrary to the record.
32. Both of these reports eventually were forwarded, together with the rest of the record, to the Board of Regents for the final determination of my petition for restoration of my medical license. After meeting with them in September, 1999, my attorney sent a letter to them again, attempting to clarify any misperceptions that may have been made relating to all three meetings (annexed hereto as Exhibit “9”). The documentary evidence was again ignored by the Board and the petition was formally denied by order dated November 4, 1999.
33. It is my understanding that the criteria that are to be followed by these Committees in making their determinations are to weigh the evidence presented and to assess:
a) if the factors that lead to the revocation were likely to reoccur;
b) whether the physician is adequately rehabilitated;
c) that he has sufficiently maintained his medical education so as to be competent to practice; and
d) whether he would present a threat to the public should the license be restored.
I believe that I have amply demonstrated my continued sobriety and rehabilitation. I do not deny that it was not an easy process for me but once I found the right regimen, my recovery has encompassed and positively affected all aspects of my life. I have been a model citizen since my arrest in 1991. I enjoy healthy and close personal relationships with my family and friends. My past record of medical practice is exemplary and I have documented my efforts at continuing medical education and proficiency. Most importantly, I have agreed, without reservation to do whatever it takes; to comply with any monitoring and licensing restrictions that the Health Department would decide to impose, to ensure that public safety is protected should my license be restored.
34. For these reasons, I am baffled as to how my petition could have been denied. The restoration of my medical license should be based upon on my proven commitments to sobriety, excellence in my profession and honesty rather than my personal opinions about the disease of addictions. In consideration of the record herein, I cannot help but feel that this is the case; that my testimony was deliberately misinterpreted and the documents submitted were ignored as a manifestation of abuse of discretion under the guise of protecting the public.
35. I understand that a license to practice medicine is a great privilege that must be earned, first through intensive education and thereafter, by serving the public in a safe, knowledgeable manner. What I do not understand is how much more I can do to prove that I am worthy once again of that privilege. I believe that my sincerity and my honesty have been clearly set forth in the record. I have hidden nothing concerning my addiction, though there were certain past transgressions which could have been hidden. My documented sobriety and willingness to comply with any monitoring restrictions on my practice should be proof of my fitness and commitment to returning to the profession which I previously had the privilege of practicing.
WHEREFORE, it is respectfully requested that the Court grant the relief sought as set forth in the petition submitted herewith and grant such other relief as it may deem just and proper.
Sworn to before me this
___ day of January, 2000.
I was the managing partner of a practice with two other doctors. Upon my suggestion our cases were discussed and reviewed by all of us on a daily basis. Annexed hereto as Exhibit “2” are two letters submitted by respected colleagues attesting to the excellent record of patient care that I strived for and achieved. These letters were annexed to the supplemental petition submitted in or about February, 1998 in support of my application for restoration and subsequently ignored at each “meeting”.
Sarah, I thought I would summarize some more of my objections to the bogus hearings for you, now that you have the actual reports. My transcript of the first hearing is available if you would like to read it; just to compare what the committee said I said to what I really said, as if it matters what I said anyway (my behavior is all that really matters, not my beliefs, opinions, or feelings).
The second part of this piece, part 2., is written by Doug Talbot, a recovering addict doctor who “became” an addictionologist after entering recovery and runs a big rehab in Georgia. What he says in his piece is absolutely correct. However, he doesn’t realize that by merely “talking” to the various licensing administrations rather than publicly confronting them and actively demonstrating against their fascist and discriminatory tactics (the same holds for the CPH’s around the country including the one from NYS) he is actually perpetuating the problem rather than fixing it. See if you can find any anti-discrimination law suits by people like him or even by the National Council on Alcoholism, a group supposedly advocating for alcoholics against these administrations. There are none. These guys, as right as they are, are actually uncle toms because they want to be accepted by the power system and are afraid to do any real and effective anti-discrimination action. These guys have actually, without even being aware of it, joined the other side. If confronted with this fact they would vehemently object to that assertion. That is how unconscious and strong their fear is.
Part 1. Nonsense in the two hearing reports used to deny restoration
Part 2. Regulatory and ethical issues discussed by Gallegos and Talbot
Initial contract with health dept., supposedly broken, but not really: Stipulated that: 1) I never harmed a patient 2) I am not to practice medicine while license is surrendered. I didn’t do either of these. Therefore, I didn’t break the contract. I was convicted for practicing medicine without a license, but that was a set up that I didn’t fight because I didn’t realize it was a set up by the DEA for the use of the health dept. My criminal attorney screwed up by accepting those charges either because he didn’t realize the consequences of doing so in terms of my contract or he was just trying to cooperate naively with the feds. The fact is that I didn’t practice medicine without a license, but actually fraudulently obtained controlled substances. That should have been the charge against me by the feds, not practicing medicine without a license. No one else would have been charged with practicing medicine without a license for doing what I did (writing fraudulent prescriptions). It would have been fraudulently obtaining controlled substances (writing unauthorized prescription). The charge was a set up for the specific use by the health dept. for the purpose of saying I broke the contract with them. fraudulent prescription would not have accomplished that goal. In reality I didn’t break the contract. (see contract)
Did I do anything any other drug addicted doctor didn’t do? No. We all fraudulently obtained controlled substances. It makes no difference that I was caught and prosecuted for it in terms of my addiction or the prognosis for my recovery. So what is justification for my excessive punishment? The fact that I did it longer? Does that make me a worse addict with worse prognosis and enhanced risk of relapse and potential danger to patients? No. No evidence for that anywhere in the addiction literature. Addicted doctors all illegally obtain controlled substances exactly the same. All addicts do that on fact. In recovery, however, they don’t. Why treat them differently for doing the exact same thing?
There is no valid reason.
Let’s get real. Some doctors are going to become addicted.
Any use of the addicting drug by a drug addicted doctor (because most addicted doctors get their drugs via prescriptions), after being confronted by the health dept., otherwise known as a relapse in addiction lingo, and relapses are part of the recovery process, is called a felonious breaking of the contract, by the health dept. Thus, once you sign the contract, a relapse is considered, ipso facto, breaking the contract, even though it doesn’t say that on the contract. The reality is that addicted doctors use drugs illegally, as long as we keep the laws the way they are currently. Only when we decriminalize the use of drugs by addicted doctors and move towards a system of help rather than punish will we begin to deal realistically with this potentially dangerous situation. The fact that the current punitive system, the drug war against doctors, keeps addicted doctors away from help, increases the likelihood that patient damage will occur, the one thing we are trying to avoid. This is the same mistake being made in the drug war against ordinary people and it has the same opposite effect from which we want: less damage to the public. The drug war increases harm to all involved.
Recommendation by the “peer” committee: What objective evidence did they use to give me a negative recommendation. None. There was no objective evidence against me. Of course, I couldn’t prove that I was of no risk in the future (for whatever reason), but who can prove such a thing. No one. Guilty until I can prove myself innocent in the future. A physical impossibility, proof for future actions? All the evidence they cited was merely their opinions. Is that evidence? No. The only real evidence was my 8 years of documented sobriety and my behavior over that time period. No different from any other addicted doctor who likewise cannot predict the future. No evidence against me, and all evidence in my favor. Still turned down. Their opinions about the future had more weight than the reality about the past eight years of sobriety and other behaviors. Their recommendation was based on two things: 1) insufficient remorse. How does one measure that? what validity does that have in predicting future relapse or danger? None. Why use it then? Because they have no other objective way to refuse my re-licensure. 2) lack of a job during this time period. What does that say about me. nothing. Why do they use it against me? don’t know. Totally bogus and irrelevant. What I did do, however, was used against me for some reason. Write a book, ensure good recovery, and keep up with medicine and nephrology. These activities were not acceptable? Why? Because they said so. Not good enough.
Committee on the professions: 1) quoted statements are not documented by tape recording or transcript and are thus inadmissible. Most if not all were incorrectly quoted and taken out of context anyway, besides being totally misinterpreted and misrepresented in terms of innuendo. 2) Their job, as stated in the report, is to have the applicant supply the burden of proof and the board decides on the preponderance of evidence (page 4, bottom). As far as I can see from the report, the only valid and objective evidence given in the report on anything since my revocation hearing is that I complied with all the requirements of the CPH and had fully documented clean urines for all that time. Everything else they call evidence was merely their opinions about statements I made in the hearing, all (mis)interpretations with which I and any other reasonable person would disagree. They are calling these interpretations evidence! Where in the world are opinions about statements considered evidence? Evidence is always objective and verifiable, never subjective and particularly not interpretations of statements. Particularly when these interpretations suggest I have lack of sobriety and therefore will use drugs in the near future. If that were the case, having these attitudes for the past 8 years would have by now resulted in my using drugs. But they haven’t. Therefore, these interpretations are incorrect, invalid and not evidence at all, but biased attempts to prejudicially predict the future. Are these people psychic too? If not, then their predictions of the future must be based on the last 8 years, not their fantasies of some possible future only they are able to perceive. The future was already incorrectly predicted in 1992 by the revocation hearing and these people are currently wrong for the same reasons. The reason I relapsed in 1989-90, leading to my arrest, was that I was not in recovery. That is clear. Now I am in recovery and not subject to nonrecovery behavior. Clear and preponderant evidence in favor of this interpretation of the past 8 years is that my recovery behavior has been perfect the entire time, not a single lapse in any area, not just about not using drugs. No relapse behavior over the last 8 years anywhere, from my personal life, to probation, to CPH. Not anywhere! No relapse behavior as evidence to support their claims. There is no evidence and the preponderance of evidence is completely in my favor. They are calling evidence, statements I made in the hearing that have no corroboration in my behavior or in fact. That is totally unconscionable and unreasonable, and obviously misinterpretations because they don’t bear out in the reality of the last 8 years. That evidence was presented to both hearings and was ignored. The only “evidence” they deemed relevant was their opinions of and misinterpretations of things I said. Hmmmm. Sounds very biased, prejudiced, and narrow-minded to me.
Besides, two attitude objections about me were: 1) I didn’t acknowledge my possible danger while on drugs. However, they quoted me saying (page 2 next to last paragraph), “he replied that there would be a potential for making a bad decision.” Is that not an acknowledgment? This emphasis on danger, despite the fact that it was stipulated in the initial health dept. contract that my drug addiction never harmed any patient. And, 2) That I blamed people for my using drugs, when they quote me as saying (page 4, second paragraph, “He indicated that no person made him use drugs.” Don’t these quotes contradict two of their pieces of “evidence” they used against me as not being in good recovery? The denial of potential danger of practicing while on drugs and “still blaming others for my addiction?” Besides, I stated countless times that doctors should not practice while addicted to drugs, and that I knew I was an addict since 1968. How could I blame my addiction on people when I already acknowledged my addiction as far back as 1968, and was sober in A.A. since 1978 admitting I was a cross addicted alcoholic at every meeting during those years. All of a sudden I’m going to blame my 1986 addiction on people? That absurd. It just shows how little they know about me and my addiction history. They know nothing about my medical practice history either. In reality, they know very little about me at all in any area of my life. They played the addiction counselor game while being completely ignorant of who I am, what I am, what I know myself to be, and how I’m recovering. How they can make such an important decision about me while knowing practically nothing about me is quite disconcerting to me, and it should be to anyone observing this process. In fact, the person who made the recommendation to the first hearing board never talked to me, saw me, or talked first hand to anyone who knew me. How she could be so confident of my “lack of insight and lack of remorse without even knowing me for 1 second, is very scary. Very scary!
Their fear about doctors using drugs being dangerous. They fucked up severely on this one (see last paragraph for the fuck up).
I’m not on drugs, so why would I be dangerous? Could relapse. Yes, but have agreed to be monitored any way they deemed necessary to ensure public safety. How could I be dangerous then? That I could pick up and use drugs in between urine tests and injure a patient. Why would I do that? because I’m that sneaky. Apparently, they think I’m surreptitiously waiting to get my license back so I can write a prescription for myself, get high, and hurt a patient. I have gone through this restoration process to do that? To get high for 1 week and hurt a patient before they find out I’m stoned? I think that is preposterous and very paranoid and very sick thinking on their part. I could have done that already without a license if that was my real motive.
This entire stupid scenario is predicated on one assumption: that if I relapse under their noses, I immediately will become dangerous to any patient I might see and cause an injury. That’s bizarre for two reasons. 1) I was addicted for three years while seeing thousands of patients and never once injured one of them. why would I injure one so rapidly and so severely in one week’s (at the longest, if I’m getting urines once a week) times as to be a threat to public health and safety so immediately. My danger to patients on relapse is in all reality no different from any other recovering doctor, maybe less, because of my documented track history of not being dangerous even when addicted. I think they have exaggerated their fear way out of realistic proportion.
2) Moreover, and here’s the kicker Mr. Gutman, if they truly believe that doctors on mood altering drugs are automatically dangerous as they say they are, then why do they allow doctors to practice addicted to Methadone, or any other mood altering drug such as Prozac, Librium etc.? This is happening right now, today, under their watch and their agreement and auspices. This is why their intense fear about my danger on relapse is totally bogus. They don’t really believe this about me or anyone else they’re monitoring, they are just using it as the only seemingly reasonable way to keep me from getting my license restored, their true motivation for their actions and conscious misinterpretations. They are already allowing drug addicts and other doctors on mood altering drugs (Prozac is addicting too) to practice while addicted. Methadone, a drug much stronger than hydrocodone and more addicting would seemingly be more dangerous. The fact that they call it “treatment” is irrelevant to what they claim to be the potential danger of practicing medicine on drugs; that opiates might impair decision-making and thinking. They’re already allowing this to happen! There is no way in the world they can justify their statements about my danger (if I relapse) when they are authorizing, themselves, doctors to practice on methadone and Prozac etc. There are no studies to show methadone is any safer that hydrocodone or Prozac, or that hydrocodone is more dangerous than methadone in the practice of medicine. Their supposed fear of addicted doctors being dangerous is a fraud and completely hypocritical.
A final remark about the health and ed. depts. ensuring recovering opiate addicted physicians not relapsing would be the requirement of those doctors whom they believe are at higher the normal risk of relapse to be placed on Naltrexone, an opiate antagonist that blocks the effect of ingested opiates, as an alternative to lifelong license revocation. This drug blocks opiate receptors and prevents opiates from causing mental status changes in those who are maintained on it. This last resort would ensure safety and allow the recovering physician this option for public safety insurance.
Lastly, see the article #2. (below) about regulatory and ethical considerations. It is clearly stated that there has been no documented risk or damage to patients when recovering doctors are monitored by the appropriate means. Therefore, the argument made by the ed. dept. is bogus in that there fear and concern, although valid, has been ameliorated by appropriate monitoring. The risk, as much as they may fear me, is essentially nil, and their misperceptions of my dangerousness is, realistically speaking, just that, unfounded in reality, misperception that just doesn’t happen in real life. If they are not aware of this reality, they need to be made aware of it so that they can relieve their fears and desist in imposing it on recovering physicians for whatever reason. They impose a fantasized fear on unwary recovering physicians justified by “concern for public safety,” knowing that there is none. This is called lying, and is abusive, cruel, and hypocritical. Is the public aware that the ed. dept. is committing fraud in their name?
There are two telling mistakes the author for the ed. dept. made in this report that gives away the fact that their main interest is not public safety, but rather continued punishment. 1) The sentence (Bottom of page 4) that says, “it is not our role to merely accept as valid whatever is presented to it by the petitioner but to weigh and evaluate all evidence submitted…” They ignored all real objective evidence and only used their misinterpretations. They didn’t investigate or validate a single piece of evidence that I submitted, nor get any reality check by available witnesses, whether or not their evaluations were valid. They used only there own self-consultations, a dangerous and precarious action especially when someone’s entire career is at stake. 2) (On page 5, 2nd paragraph) “He is unable to accept or understand the ostracism resulting from his misconduct.” I can understand it if it in fact coming from a moral willful misbehavior stance, explaining the indefinite punishment I have been subjected to. If public safety is their goal, however, there is no need for ostracism, just a reasonable explanation proving my danger to the public. Why would ostracism be a necessary part of that? Their need to ostracize proves their primary motive is punishment rather than public safety. Why would anyone accept ostracism if the motive is merely public safety and when the rest of the addiction field vilifies ostracism for mere addiction in the absence of damaging interpersonal behavior, which it was stipulated that I did not commit?
This entire process is a word game being played by word game specialists with bias against whomever they choose to have bias. In other words, its a sham. It is a witch hunt. (Of course, one can’t prove bias but we can prevent it from occurring by removing any subjectivity from the system.) My words are twisted hypocritically by their biased analysis of their cryptic meanings to mean whatever they want them to mean using addiction rehab jargon (blaming, denial, not taking responsibility for addiction, etc.) that may relate to helping early rehab patients get into good recovery, but has no bearing whatsoever to their use in prognosis after 8 years sobriety (my case) or having any documented prognostic value in fully recovering people already in good recovery whenever they want them to mean that. This is psychobabble in its worst and most abusive form. My recovery behavior clearly demonstrates these pseudo-issues are not relevant to these proceedings as valid or meaningful prognostications. As long as words are used to judge addicted and recovering doctors, be they from a psychiatrist, lawyer, addictionologist, or a lay person, rather than behavior, there will be unfair and unjust biased decisions. Only when strict and objective, predetermined behavioral criteria are used to judge the recovery of addicted doctors in terms of their ability to rejoin the medical practice will biased abuse and discrimination be removed from the system. Only when addiction among doctors is seen as a non-psychiatric entity and an occupational hazard in physicians and other health professionals, and it is removed from the disciplinary system, will there be any justice in dealing with addicted professionals. Of course, the same holds for all addicts outside the reach of the Health Department. No addict should be dealt with by any disciplinary or criminal justice system unless there is actual interpersonal damaged proved to be caused by the presence of the drug within the person’s nervous system.
As Milton Burglass put it this way in his chapter on forensic psychiatry in Substance Abuse-A Comprehensive Textbook, “Of course, some intoxicant-involved professionals are impaired and in need of treatment until they are able to resume practicing with the skill and safety required in their profession. In recent years, a virtual industry for the diagnosis and treatment of “impaired” professionals has emerged. One can detect therein a disturbing propensity to conceptualize and treat professional “impairment” as if it were itself a distinct disease entity. It is not. The determination of intoxicant-related impairment in professionals is a very complex assessment that requires extensive input from independent, unbiased addiction medicine specialists throughout the process. If injustices are to be avoided, specialists in addiction medicine must be willing to become involved in these unpopular and often unsavory cases. They need to offer expert testimony that (a) obligates the regulators (clinically, ethically, and legally) to recognize and consider all relevant intoxicant-specific distinctions, and (b) requires that they “prove” their case for impairment by specifying and quantifying the alleged deficiencies or disabilities of cognition, emotion, behavior, or professional skill that define the accused as impaired when measured against the standards of performance, skill, care, and safety required for professional practice in that jurisdiction or context.
The effects of intoxicants of different classes have not been differentiated in administrative hearings or other proceedings involving employment eligibility, benefits, restriction, discrimination, supervision, discipline, or termination. In these venues, as in professional regulatory contexts, the prevailing presumption reflects the false and dangerous syllogism that “use equals abuse equals addiction equals impairment.” Moreover, routine screening for intoxicant use in the workplace is technically problematic as well as legally and ethically questionable. Well-established principles of administrative law procedure are often violated, and fundamental legal rights (e.g., due process) often ignored. Despite their being treated like criminal “defendants,” the accused in these proceedings are neither guaranteed adequate legal representation nor provided with the funds and resources (e.g., expert witnesses) necessary to present an adequate defense. Data and conclusions from questionably valid screening protocols and dubious testing methods and procedures often go unchallenged. It is vital that an addiction medicine specialist (preferably one with added qualifications as a Medical Review Officer) (a) reviews all of the technical data, (b) examines the accused to assess the nature and extent of any intoxicant-related problems or disabilities that might be relevant to job performance, and (c) provides testimony to the administrative review body to explain the meaning, significance, and implications of the findings. There is no other way to assure fairness for all parties.
Given the cultural prejudices about intoxicant use and the pressures on employers to maintain a “drug-free workplace,” an employee who is accused of intoxicant use cannot safely assume that he or she will get a fair hearing or receive an equitable disposition.”
The absence of the above involvement by unbiased addictionologists is what I have always meant when I have condemned the society for allowing these biased practices to occur to addicted doctors. This is not antisocial, but realistic and constructive when viewed in the light of Burglass’ statements.
Thus, according to him, impairment is based on objective behavioral criteria related to actual patient care, not based on the implicit assumption that use=abuse=impairment=danger.
No one is saying doctors should be allowed to practice on drugs, and that even includes Methadone, but the handling of addiction should be separated from proven harm to patients, not just the blanket assumption of potential harm. And even when there is proven harm, if it is related causally to the patient injury, then objective recovery allows the doctor to resume practice under specific and reasonable monitoring managed by an approved monitoring system.
Only in this manner will the rights and needs of both the public and the doctor be fairly managed. Both these rights are valid, important, and possible to obtain. There is no need to sacrifice the doctors’ needs and rights for any patient safety reasons.
The fact is that they gave absolutely no credence to any evidence in my favor whatsoever in the entire process even though all the objective evidence is in my favor! The reality is that they don’t want me ever to practice medicine again in NYS, and they use their subjective system and claims of fear for the public safety to make sure that happens.
REGULATORY ISSUES AND ETHICAL CONSIDERATIONS- from chapter 74 Substance Abuse - A Comprehensive Textbook, Karl Gallegos and Doug Talbott, M.D.
The Federation of State Medical Boards (FSMB) has proposed guidelines to promote uniformity in rules and regulations regarding impaired physicians. The goal of the Federation is to protect the public. Efforts to educate citizens and the dissemination of information to the public about physician impairment have been initiated. The Federation also communicates with the AMA, state medical boards, state medical societies, and administrators in medicine. When appropriate, the Federation pursues federal and state legislative initiatives to provide improved powers to state medical boards for the supervision of impaired physicians (97).
Monitoring of recovering physicians by PHPs provides a sensitive and specific mechanism for detecting relapsed chemically dependent physicians. There is concern that informed consent disclosure will compromise the privacy and employment rights of physicians and that rigorous monitoring should protect the welfare of patients (98). Others contend that when physicians who seek help are automatically sanctioned by regulatory agencies, there will be fewer referrals of chemically dependent physicians to PHPS. State medical societies and state medical boards often become distrustful of each other (99) and may work at cross purposes.
Talbot (100) expressed concern about the discrimination against recovering physicians by (a) licensing agencies, (b) managed care organizations, and (c ) clinics, hospitals, or partnerships. Because of anecdotal reports made by physicians who have gone through treatment for chemical dependence and lack of documented information, careful consideration of each report and its relationship to the Americans with Disabilities Act (ADA) (100) and an “action response” were proposed.
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement of employees, or discharge of employees, employee compensations, job training, and other terms, conditions and privileges of employment. (101)
The spirit of the ADA is a “case-by-case” assessment of risk and the evaluation of risk “must be based on the behavior of the particular disabled person, not merely on generalizations about the disability” (102). When recovering physicians are carefully and closely monitored by the appropriate means, there has so far been no documented risk or harm to a patient.
Recently, an organization of full and part-time medical directors of PHPs has gathered to form the Federation of State Physician Health Programs (FSPHP). “The Federation provides a forum for the exchange of information between State Physician Health Programs (PHPs) and promotes the safety and well-being of the public and the State Medical Associations PHPs. The final goal of the Federation is to promote early identification prior to the illness impacting upon the care of patients” (97). The FSPHP is developing a closer relationship with the AMA and FSMB. Encouragement has attended the formation of the FSPHP. A common ground can be established that links organized concern for sick doctors to social, legal, and political pressures of professional accountability. The medical profession has recognized alcoholism and drug addiction as a disease. The medical control of impaired physicians in terms of its compatibilities with professional values and interests has demonstrated that when conflicting, but overriding considerations are put into action, a partnership can form. This partnership is capable of meeting the demands of disparate forces ultimately resulting in improved safety to the public while maximizing the personal rights of recovering physicians.
Wright has stated that “Impaired physicians are to the rest of the profession as the canary was to the coal miners of another generation. Until we can determine the risk of addiction to drugs for a specific individual before the individual is exposed to them, we must rely on the experience of the most vulnerable individuals in our occupational cohort to learn how to protect ourselves from the chemical tools of our trade” (6)
In recent years, many stakeholders who guard public safety and the practice of medicine (the AMA, FSMBE, medical and specialty societies, ASAM, regulatory agencies, FSPHP and others) have joined forces to find solutions to the “challenging” issues of physician substance abuse. Changes in the landscape of health care delivery have diverted the attention of many practitioners away from the compassionate concern for colleagues who have become impaired by chemical dependence. In spite of significant improvements in identification, intervention, assessment, treatment, and aftercare and monitoring, much is still unknown about the nature of chemical dependence.
102. House of Representatives Rep. No 485, 101st Congress, 2nd Sec (part 2) 56, (part 3) 46 (1990); Reprinted in US Code Cong Admin News, 1990; 4:338-469.
Substance Abuse, A Comprehensive Textbook, Third Edition, 1997, Edited by Joyce H. Lowinson, MD, Pedro Ruiz, MD, Robert B. Millman, MD and John G. Langrod, Ph.D., ACSW (Section IX/Special Populations, p. 752; 754)