Tracy Lystra at her home in Aguanga, Calif. In 2013, Lystra sued her Fallbrook, Calif., OB-GYN, Anthony S. Bianchi, alleging that he had sexually harassed her — which Bianchi denied. Lystra said the lawsuit was settled for $150,000 but that her attorney’s subsequent complaint about the doctor to the Medical Board of California was rejected based on a review of the evidence and “mitigating circumstances.” In the meantime, Bianchi received two probation terms for alleged sexual misconduct with three other women. (Heidi de Marco/California Healthline)
The doctor instructed his patient to stand in front of him. He cupped her crotch and inserted his fingers into her vagina through her clothes, moving his hand repeatedly to her rectal area. Then he squeezed her breasts, according to a formal accusation filed by the Medical Board of California.
The patient, accompanied to the appointment by her 4-year-old granddaughter, asked why that was necessary to diagnose a urinary tract infection, according to the documents. He told her to let him do his job.
In three other cases, the board alleged that the family doctor, Ramon Fakhoury of California’s Inland Empire, touched patients’ genitals for no medical reason. In 2016, the board handed him 35 months of administrative probation, requiring him, among other things, to have a chaperone when treating females.
Fakhoury did not admit to the allegations, according to his attorney, and criminal charges against him were dropped.If he successfully completes probation next year, he’ll be able to practice without restriction.
The Medical Board of California put family physician Ramon Fakhoury on 35 months of probation after several patients alleged he had touched their genitals for no medical reason. Until he completes probation, he must have a chaperone present when treating female patients. He did not admit to the allegations. Previously, he faced felony sexual abuse-related charges, which were dismissed after a jury deadlocked.(Courtesy of the San Bernardino County Sheriff’s Department)
With a mission of patient protection and doctor rehabilitation — not punishment — California’s medical board and those in other states make decisions under laws and norms that can seem discordant in the #MeToo era.
California is often cited as one of the more rigorous states in overseeing doctors. But, according to the medical board, very few sexual misconduct complaints are reported to the board in the first place, historically under 200 a year. Even fewer result in a formal accusation against a doctor. And when discipline is found to be warranted — typically in fewer than 20 cases a year — the board tends toward leniency, sometimes granting a few years of probation even in instances of severe misconduct, according to a California Healthline analysis of medical board records.
More than a third of doctors sanctioned by California’s board in cases that alleged sexual misconduct received probation in the past 10 years — some more than once. The terms of probation often required temporary chaperones, as well as psychotherapy and courses in “professional boundaries” and ethics. (Through probation, the medical board can only place conditions or restrictions on a doctor’s license in civil proceedings; it does not take criminal court actions.)
“They love giving second chances” to physicians, said Marian Hollingsworth of San Diego, a frequent critic of the California medical board. “It makes you wonder where their priorities are. … Their first loyalty is supposed to be patient safety and that doesn’t always happen.”
The recent, shocking reports about years of abuse by USA Gymnastics doctor Larry Nassar and University of Southern California gynecologist George Tyndall — as well as national exposés about physician misconduct by the Atlanta Journal-Constitution and the Associated Press —have only intensified concerns about whether sexual abuse is taken seriously enough in medicine.
Nassar, accused of abuse by scores of girls and women under the guise of medical treatment, is now serving what amounts to a life sentence. Prosecutors are considering criminal charges against Tyndall in more than 50 cases, and the state medical board has suspended his license while seeking revocation. He has denied the allegations.
Larry Nassar sits in court on Feb. 5, in Charlotte, Mich., before being sentenced for three counts of criminal sexual assault. Nassar, accused of abuse by scores of girls and women under the guise of medical treatment, is now serving what amounts to a life sentence. (Scott Olson/Getty Images)
And just last week, 17 women sued Columbia University and its affiliated hospitals, alleging that the facilities engaged in covering up decades of sexual abuse by one of its OB-GYNs.
Research has shown that many doctors who sexually exploit patients, like other perpetrators of abuse, don’t stop with one victim. They “perpetrate such behavior for years before being stopped,” said the authors of one study.
Against this backdrop, California Gov. Jerry Brown in September signed landmark patient protection legislation requiring doctors who are on probation for sexual and other serious misconduct to notify patients of their status and the terms under which they must practice. It will take effect next July. The bill had failed twice before.
“It’s time,” said the bill’s lead author, Sen. Jerry Hill (D-San Mateo). “The #Me Too movement has really made it very clear that there are individuals even in the most respected professions who abuse their authority.”
Even as sexual abuse complaints filed with the medical board rose significantly in the past year to coincide with the rise of #MeToo, board officials say they plan no major changes in how the board dispenses discipline in sexual misconduct cases.
The #MeToo movement “has not changed us,” said the board’s executive director, Kimberly Kirchmeyer. Cracking down on sexual misconduct has always been “one of the board’s top priorities,” she said.
Digging Into The Records
California Healthline examined all 135 cases of alleged sexual abuse investigated by the board that resulted in sanctions from July 2008 through June 2018. (The analysis did not include discipline based on proceedings in other states.)
More than a third of sanctions were for sexual misconduct with more than one victim, and the vast majority of alleged perpetrators were men accused of exploiting women.
Doctors’ licenses were revoked in 39 cases and voluntarily surrendered in 38. Several doctors received public reprimands — a minor sanction.
The largest share of sanctions — 49 cases, or more than a third — were for probation.
According to the board’s disciplinary guidelines, the minimum probation period is seven years for a doctor found to have engaged in sexual misconduct — whether it is a sexual relationship with a patient, sexualized touching during exams or inappropriate sexual conversation.
But those “minimums” were not applied in more than half of the probation cases, according to the California Healthline analysis. The guidelines allow exceptions based on “mitigating circumstances,” the age of cases, the quality of evidence and other factors.
Kirchmeyer noted that the board treats every case as unique and places a high value on a doctor’s remorse and acknowledgment of wrongdoing.
In eight cases, California Healthline found, a doctor sanctioned for sexual misconduct had previously been sanctioned for similar misconduct.
Dr. Patrick Mark Sutton, a Pasadena obstetrician-gynecologist, received probation twice — the first time for four years after investigators alleged sexual misconduct in 2002. In 2011, he was placed on probation again — this time for three years — following allegations that he improperly rubbed a patient’s thigh and engaged in inappropriate sexual conversation.
He denied all sexual misconduct allegations in 2002 and 2011, admitting only to medical record-keeping violations in both cases.
This September, after he had completed mandated ethics and “boundaries” courses, the medical board filed a new accusation against Sutton, saying that he had called a patient “hairy” and asked the patient, who was naked from the waist down under a drape and in stirrups exposing her genitals: “Do you enjoy orgasms? You are a very beautiful woman.” That case is pending.
Sutton’s lawyer, Gary Wittenberg, said in an emailed statement that “the allegations in the pending Accusation are untrue and we will prove that in court.”
In several cases, the board granted probation knowing the doctor had been convicted of misdemeanor criminal charges stemming from sexual abuse investigations.
Fakhoury, the Inland Empire doctor, had faced felony sexual abuse-related charges but was not convicted due to a hung jury, according to San Bernardino County Superior Court records.
His lawyer, Courtney Pilchman, told California Healthline that the criminal charges were dismissed afterward, and that the doctor “did not stipulate” to — or admit to — the medical board accusation.
By contrast, Ohio’s medical board, upon learning of California’s sanction, in 2012 revoked his state license.
The number of disciplinary actions taken over the decade is strikingly small given the size of California’s practicing physician population of more than 100,000. Alleged victims of sexual abuse by physicians are significantly less likely to come forward than sexual abuse victims in general, some research indicates.
However, numbers provided by the medical board suggest that many of the complaints that are filed — whether by victims themselves or other sources — do not result in formal accusations against doctors. From October 2013 through June 2018, 838 complaints were designated by the board as possible sexual misconduct. During that same period, 74 accusations were filed. (Multiple complaints could be filed about one doctor.)
Experts and lawyers familiar with the board offered various explanations: Some complaints may be false. Doctor sexual misconduct can be hard to prove by “clear and convincing evidence,” as required in medical board cases. Accused physicians often hire experienced lawyers who aggressively fight back, leading to delays and deals. Victims may decline to testify or present poorly as witnesses.
Some victims, for instance, have psychiatric disorders or believe that they were engaging in a “consensual” relationship, according to medical board documents.
Board staff have worked hard to treat alleged victims sensitively, Kirchmeyer said. Expert reviewers are instructed to read complaints as if the person is telling the truth, she said, and the board plans weeklong training sessions to help investigators work better with alleged victims and prepare them for testifying.
The cases often drag on. It can take years for victims to come forward in the first place — and more time for cases to wind their way through the state’s complex bureaucracy. Evidence can go stale.
“Physicians have to have due process,” Kirchmeyer said. “Anyone can make a complaint about anyone at any time.”
Tracy Lystra at her home in Aguanga, Calif.(Heidi de Marco/California Healthline)
‘Slap In My Face’
Facing what they see as an uphill battle, lawyers from the state Department of Justice, who handle administrative hearings, will sometimes pre-emptively recommend probation — even in serious sexual misconduct accusations — to avoid the possibility a doctor will get no sanction at all from a judge, said Laura Sweet, a former deputy director who retired in 2015.
Sweet, who worked for the medical board for 23 years, said the legal process focuses on the doctors and does not always give sufficient weight to the pain of alleged victims. “You’re sending a message that’s potentially minimizing what the victim endured.”
That’s how Tracy Lystra sees it, too. In 2013, Lystra sued her Fallbrook, Calif., OB-GYN, Anthony S. Bianchi, alleging that he harassed her with comments about her body and how she aroused him, whispering into her ear as she lay on a gurney before surgery that she looked like a “sexy librarian.” She said the case, which also alleged medical negligence, was settled for $150,000 in 2016. Bianchi, who could not be reached for comment, denied the allegations in court documents.
Through her attorney, Lystra filed a complaint to the medical board shortly after settling with Bianchi. This past July, she received a letter from the board saying it would not be able “establish grounds for discipline” against Bianchi in her case, “considering all the evidence and mitigating factors.”
Ultimately, she learned that the board had received complaints from other women.
In 2014, Bianchi had been put on five years’ probation after the board accused him of making inappropriate sexual remarks to two patients, telling one he dreamed of having oral sex with her and couldn’t stop staring at her breasts. After learning of these cases, another woman came forward, alleging Bianchi several years earlier had blocked his office door with a chair, inserted his fingers into her vagina, exposed his penis and asked her for sex.
The board’s penalty was another five years’ probation. But the two probation terms overlap — and Bianchi, who agreed not to contest the allegations as part of the settlements in each case, could go back to work as an OB-GYN without restrictions in 2021. In the meantime, he is not allowed to treat female patients.
Learning that Bianchi received such a light punishment — and that the board would not take action on her own complaint — was crushing, Lystra said, noting that it had been so difficult to get anyone, including her family, to believe her.
“I really wanted him stopped. It was so disappointing when medical board responded the way it did,” Lystra said.“It was a slap in my face.”
Methodology
In its analysis, California Healthline requested every sanction for sexual misconduct issued by the Medical Board of California over the past 10 years, the name of each doctor involved and his or her license number. The board responded with 181 actions against 175 doctors from fiscal year 2008-09, beginning in July, through fiscal year 2017-2018, ending in June. (The records were designated by the board as primarily for sexual misconduct but often included other allegations.)
California Healthline used the board’s document lookup search on its website to review its available public records on each doctor. California Healthline mentioned sanctions outside the 10-year period when records showed the doctors were repeat offenders.
The analysis excluded cases in which the board took action in response to sanctions issued by other states’ medical boards for sexual misconduct outside California.
For each sanction, California Healthline determined the number of alleged victims identified in the board’s accusations, their gender, type of sanction, length and terms of probation, type of alleged sexual misconduct and whether the board took note of any previous or concurrent criminal proceedings.
California Healthline also requested the number of complaints the board received alleging sexual misconduct, and how many formal accusations the board filed each year after the allegations were investigated and merited disciplinary action. The board did not have data for all 10 years, but provided the number of complaints received and the number of accusations filed from October 2013 through the end of the 2017-18 fiscal year.
“Unproven but profitable”. That’s the headline of a recent Journal published by the American Medical Association, exploring the explosive growth of stem cell clinics across the country, including here in San Diego County. The clinics offer questionable “breakthrough” cures for a wide range of health problems.
In May, NBC 7 Investigates first reported on these “surgery-free” fixes that were drawing hundreds of local potential buyers to free seminars. In one seminar, attendees were not told that the costly procedures, sometimes costing up to $6,500 per injection, have not been FDA-approved, nor were they told the procedures do not have scientific support for their claims.
The only proof provided to patients are testimonials from patients who say the products were miracle workers.
Investigating Claims Made By Local Stem Cell Clinic
[See video on website.] NBC 7 Investigates went undercover at a stem cell clinic to see if the clinics are promising legitimate results. NBC 7’s Mari Payton reports. (Published Wednesday, May 23, 2018)
Now, the claims made by these clinics have gotten the attention of the California Medical Board and has led to the creation of a task force to review the clinic’s practices. The task force was formed as a result of an inquiry about the industry from the chairman of the U.S. Senate Health, Education, Labor, and Pensions Committee.
Currently, the only stem cell-based products approved by the Food and Drug Administration (FDA) are for transplant procedures. But these clinics are offering something different. Clinics advertising through Stem Cell Health Centers offer stem cell injections that they say are a “cutting edge treatments” that offer “regenerative cures”.
NBC7 Investigates has found newspaper and broadcast advertisements for free seminars running nearly daily in San Diego, making stem cell health claims without providing specific information about what procedures are performed.
Advertisements for Stem Cell Health Center seminars can be seen in the local newspaper nearly daily.
The ads list hotels hosting these seminars from Oceanside to Chula Vista, all centered around how to “restore your pain-free life”.
NBC 7 Investigates spoke with a registered nurse and a patient advocate who agreed to attend two of these stem cell sales presentation seminars, one in Mission Valley and the other in Rancho Bernardo.
Attendees, working with NBC 7 Investigates, walk into a Mission Valley stem cell seminar on September 25, 2018.
At both locations, Chiropractor Doctor Jared Taylor pitched to the crowd stem cell injections, costing at least $5,000 each, through the Create Wellness clinic in La Jolla. After the seminar, Taylor would not comment on the claims and treatments offered in the seminar. Create Wellness is owned by Acupuncturist Roya Nikzad, who did not return NBC 7 Investigates’ calls for comment.
In May, NBC 7 Investigates found another chiropractor, Michael Van Derschelden, using similar sales tactics at a Carlsbad hotel seminar. Van Derschelden told the audience of mostly senior citizens, some in wheelchairs, that he’s a specialist in regenerative medicine at West 2 North Medical Solutions in San Marcos. After the seminar, Van Derschelden refused to answer questions surrounding the claims he made to seminar attendees.
Promises of Pain Relief
For Actor Ed Hollingsworth, pain relief is top of mind. Hollingsworth has serious back, spine, knee and shoulder injuries, so he agreed to attend a stem cell sales seminar in Mission Valley and relay what was said to NBC7 Investigates.
“I heard a lot of anecdotal things,” Hollingsworth said. “[I] didn’t see a lot of proof. It concerns me the fact that it is so expensive. Like for me, with all the different areas, it would cost me conservatively maybe $30,000 to get all the different [treatments].”
His wife, patient advocate Marian Hollingsworth, said the sales pitch included numerous promises for pain relief.
“They talked about an I.V. infusion [offered] for somebody with cystic fibrosis. And that this woman is [now] off her meds,” she said. “Now this is somebody who was turned down for a lung transplant. So that’s a pretty hefty claim.”
NBC 7 Investigates found orthopedic problems are the primary draw for the clinics but not the only claim of relief promised by the chiropractors in the sales seminars.
The underlying “science” of the claims made in these seminars is that the injections “take advantage of your body’s ability to repair itself naturally,” according to the clinic’s advertisements.
“They didn’t really say what is in it exactly, besides stem cells from birth waste,” Marian said. “And that seemed kind of farfetched.”
While Marian and Edward attended the seminar in a hotel conference room, NBC 7 Investigates Producers sat in the hotel lobby. The couple texted Producers about the different claims made by Dr. Taylor. Some of the claims made involved “cures” for a range of ailments, including Alzheimer’s and Parkinson’s disease.
“[They] said only one shot was needed, with pain relief in two to four weeks with no downtime,” one text read.
“Stem cell therapy helps with COPD–lung disease,” Marian Hollingsworth texted. “They claim [to have] FDA clearance.”
Outside of the Mission Valley hotel conference room where the seminar was held, Create Wellness Clinic Director Melody Darvish sat and shared information with attendees as they left the presentation. After attendees left, NBC 7 Investigates asked her what the term “FDA clearance” meant but she would not tell us.
“I think you have all the information you need,” Darvish said.
NBC 7 Investigates asked the FDA about the term “FDA clearance” versus “FDA approved”.
Stephanie Caccomo, a spokesperson for the FDA, said the term “FDA Clearance” only applies to medical devices, not treatments. And that the stem cell procedures offered by these clinics are neither approved or cleared.
NBC 7 Investigates also asked Dr. Taylor about the fact that on the day of the Mission Valley stem cell seminar, September 25, his chiropractor license was expired.
Doctor Jared Taylor’s license was expired on September 25, 2018, the day of the Mission Valley stem cell seminar. The license has since been renewed.
Taylor said his license wasn’t suspended and that he had “sent his paperwork through the mail.” According to California’s Department of Consumer Affairs website, Taylor’s license, issued out of Utah, had expired in February after the “licensee failed to pay renewal fees”. NBC 7 Investigates found no previous disciplinary actions are taken on Taylor’s license and since the seminar, his license has been reinstated.
The website for Create Wellness, the La Jolla clinic Taylor works for, states his role is to consult with potential candidates for stem cell therapy and to “utilize functional medicine for customized healthcare.”
Stem Cell Health Centers
NBC 7 Investigates has found a common thread with all of the stem cell seminars and advertisements for these treatments, a group called Stem Cell Health Centers. Stem Cell Health Centers has used similar advertisement campaigns involving chiropractors and acupuncturists in 14 states, including California.
Digital forensic experts confirmed what NBC 7 Investigates found, that Stem Cell Health Centers’ website has done a good job of hiding the creators of its domain. The domain was created in July 2017 with a private registration invoked immediately.
Materials on Stem Cell Health Center’s website link to a 40-year-old Salt Lake City acupuncturist named Regan Archibald.
On the website, an e-book written by Archibald is offered for free and referenced often titled “The Stem Cell Breakthrough”. In the book, he claims Stem Cell Health Centers has seen, “well over 25,000 [stem cell] cases with over a 90% success rate.”
Archibald also states in the book that his own life experiences and injuries led to his discovery that, “stem cell therapy could repair and enhance”.
NBC 7 Investigates contacted Archibald to find out more about Stem Cell Health Centers and he said he has nothing to do with what other clinics are claiming at seminars, including here in San Diego. “This is simply a website where individuals and clinicians can reference many of the studies that I’ve found to be helpful. I’ve been able to learn from Arnold Caplan Ph.D.”
Dr. Arnold Caplan of the Case Western Reserve University and a noted expert in the field of stem cell research told NBC 7 Investigates, “I do not know this guy but am VERY (sic) supportive of your efforts to strip away the unsubstantiated claims made by many online”
When asked about Archibald’s role with Stem Cell Health Centers, the advertising campaign and for proof behind claims made in his book and elsewhere, Archibald stopped responding.
On YouTube, Archibald provides a video tutorial or “how to” for anyone interested in starting a stem cell practice.
Stem Cell Clinics Across the Country
Leigh Turner of the University of Minnesota Center for Bioethics said the rise in stem cell treatment offers here in San Diego can be seen across the country.
“We’re talking about hundreds of these across the United States,” Turner said. “By my count, it’s over a thousand at this point.”
Other experts NBC 7 Investigates spoke with provide similar figures on the number of stem cell clinics.
Turner notes the clinics are expanding rapidly, with different owners and clinic names, all making similar promises. He believes it’s up to both state and federal agencies to investigate this further, but so far they have largely ignored the issue.
“If someone has set up shop in San Diego or San Francisco or somewhere else, that company can market stem cell treatments for years with no evidence behind what they’re doing and no one’s going to come knocking on their door,” Turner said.
But that may be changing, at least here in California. Recently, the California Medical Board announced they are setting up a task force to investigate the claims made by these stem cell clinics, among other things.
Its impetus was a letter from U.S. Senator Lamar Alexander (R-TN) to the Federation of State Medical Boards, in which he voiced concerns that “recent reports indicate some patients have been harmed by unproven or investigational treatments received at stem cell clinics.”
The Federation was asked to create a “best practices” list for state medical boards to review when dealing with these types of clinics. The result is 11 recommendations that range from reviewing a clinic’s marketing materials to physicians being required to support health claims made with documented evidence.
A spokesperson for the California Medical Board said they are now reviewing the Federation’s recommendations but there is no date set for when the task force will get to work.
NBC7 Investigates has learned the California Attorney General and San Diego County District Attorney’s offices have both received information on various stem cell clinics and their practices. Neither office would confirm or deny that any active investigation is taking place.
November 28, 2018 | JW August, Mari Payton, Tom Jones | NBC San Diego
Tammy Smick of Downey, sits in the bedroom of her son, Alex, who died in 2012 from a lethal combination of prescription medications while being treated at an Orange County drug treatment center. (Photo by Nick Agro, Orange County Register/SCNG)
Philip Ganong, his wife and their 34-year-old son built a fast-growing, multimillion-dollar empire on urine.
They collected it from drug addicts at their chain of Southern California sober living homes. They created labs to test it. And they charged insurance companies to analyze it.
But the success story was a scam, according to prosecutors, who have accused the Ganongs of fraud. They say the family used a network of doctors and others to bilk insurers out of as much as $22 million for tests that were unnecessary or never performed.
The Ganongs have pleaded not guilty and are awaiting trial.
But the allegations raised in the Ganong case highlight what a growing number of critics say are chronic shortcomings in the oversight of California’s multi-billion-dollar drug rehabilitation industry.
Among the complaints:
Drug counselors and others can run sober living homes and some types of treatment centers without passing any kind of criminal background check. Even people convicted of drug crimes are allowed, under current state law, to get a license to own and/or operate drug and alcohol rehab centers.
Addicts and families considering rehab have no easy way to check the records of treatment centers, recovery homes or their owners or staff.
The state lags behind others in adopting reforms to crack down on treatment center operators who exploit vulnerable addicts and focus more on profits than on effective care.
California is “the wild, wild west right now,” said Kansas Cafferty, a commissioner with the National Certification Commission for Addiction Professionals.
In a state with about 1,800 licensed recovery centers and an unknown number of unlicensed sober living homes and testing labs, Cafferty is among many who believe California needs to get better at rehab regulation.
“There (are) a lot of places committing crimes that authorities are trying to enforce, but they can’t keep up with it.”
Just following the rules
Marlies Perez, chief of the California Department of Health Care Services’ Substance Use Disorder Compliance Division, which licenses rehab treatment centers, said her agency can only do what the state Legislature allows.
She would not say whether her department needs more authority, or if it is doing a good job protecting consumers.
“We’re not going to quantify our functions,” Perez said. “Our role is to provide oversight. That is, once again, exercise the authority that we have” and work with other regulatory agencies when appropriate.
Carol Sloan, the health department’s spokesperson, said state codes list specific causes for denying a treatment center license. Reasons include prior revocation of a license and failure to comply with fire codes. Other than that, applications from would-be operators and counselors generally aren’t screened by the state.
Drug counselors in California are certified by industry-related agencies to work in recovery programs. And once certified, they’re governed by a code of conduct written by the certifying agency that could make them subject to discipline for such things as sexual misconduct or drug abuse.
But officials and critics say neither the third-party certification organizations, nor the state health services agency, are routinely notified by law enforcement or state officials when treatment center operators or their workers are convicted of crimes or disciplined for license violations.
Stalled in Sacramento
It’s not a new problem, and California legislators have fought about it for years. Still, they’ve made only halting progress in beefing up licensing standards and rehab monitoring. That’s partly because of industry lobbying, and because of fears that tighter rules will raise treatment costs or limit the number of rehab beds just when the nation’s opioid crisis is cranking up demand.
This year, State Sen. Pat Bates, R-Laguna Niguel, introduced a bill to reform the system, but it stalled in committee. Today, she describes the state’s oversight of rehab operators, sober living homes and counselors as “troubling.”
Senator Pat Bates speaks during a drug overdose awareness memorial at Crown Valley Park in Laguna Niguel earlier this year. (Photo by Drew A. Kelley, Contributing Photographer)
“There is significant resistance … to looking at a (rehab operator’s) background,” Bates said. “There’s a culture about giving these people a second chance.”
Still, she insists that background checks and tougher licensing requirements for counselors, employees and rehab operators are vital. “It’s something we need to pursue.”
The Ganongs – who ran sober living homes in Los Angeles, Orange and San Diego counties – could face decades in prison if found guilty of running fraudulent urine-testing operations.
Since they were charged in May, the Ganongs apparently have shut down their recovery homes, according to one of their attorneys. Phone numbers for some of their operations are disconnected.
But there are no state rules that required them to do that. And even if they are convicted and sentenced to prison, the Ganongs still could legally own sober living homes in California. There’s no law preventing it.
At least one family member already has worked in the rehab business with a drug-related criminal record.
Prosecutors say William Ganong served as corporate secretary of the family’s sober living homes and a director of one of the drug testing labs named in the county’s fraud case. In 2006 and 2008, records show, he pleaded guilty to two misdemeanors involving being under the influence of a controlled substance and driving under the influence.
William Ganong (Photo courtesy of OCDA)
This summer, when prosecutors charged William Ganong and his relatives with fraud, he faced a series of new misdemeanor charges filed in 2014 and 2015 for allegedly possessing an opium pipe, driving under the influence, speeding and giving false information to police. William Ganong could not be reached, and his attorney did not respond to interview requests.
A lawyer representing Philip Ganong, the 64-year-old family patriarch, did talk.
In what might be a statement about the general weakness of rehab regulation and oversight, Kate Corrigan indicated a key part of her client’s defense could be to cite the law itself.
“There was great effort to comply on his part,” Corrigan said.
“But it’s not an area that has a good definition of what you can do and what you cannot do.”
Who is the doctor?
Tammy Smick lost her 20-year-old son, Alex, nearly six years ago, after he was admitted to an Orange County treatment program. The coroner’s office concluded he died of acute intoxication from the combined effects of several drugs. State records show the drugs were ordered during Alex Smick’s treatment.
Tim Smick, looks down on a photo of his late son, Alex, during a rally calling on the Medical Board of California to crack down on doctors whose overprescribing of medications has led to death or serious injuries, at the Capitol in Sacramento, Calif., Monday, March 11, 2013. (AP Photo/Rich Pedroncelli)
Alex Smick and his girlfriend, Tarra. (Photo courtesy of Smick family)
Alex Smick shows off a tattoo. It’s a likeness of his grandfather, left, and his grandmother. (File photo BILL ALKOFER, ORANGE COUNTY REGISTER/SCNG)
Tammy Smick of Downey, looks at photos of her son, Alex, who died from a lethal combination of medications while being treated at a Laguna Beach treatment center in 2012. (Photo by Nick Agro, Orange County Register/SCNG)
Dozens signed a poster for Alex Smick during a rally on February 23, 2013. (File photo BILL ALKOFER, ORANGE COUNTY REGISTER/SCNG)
Alex Smick was an avid golfer. (File photo BILL ALKOFER, ORANGE COUNTY REGISTER/SCNG)
Alex Smick and his girlfriend, Tarra. (Photo courtesy of Smick family)
Four years later, following an inquiry, investigators recommended that the state medical board discipline the doctor who ordered the drugs, Daniel Headrick. The formal accusation filed by the state attorney general’s office alleges Headrick engaged in “repeated negligent acts” in connection with the medications he ordered for Alex Smick.
Records also show a nurse was cited and fined $1,000 by a separate state agency because he was late in logging in Smick’s medication records, posting the information a half-hour after he was found dead.
Headrick denies the state’s allegations involving him, said his attorney, Raymond McMahon. The care Headrick provided was proper, McMahon added, and any issues involving Alex Smick’s treatment “relates to nursing care, not physician care.”
State officials declined to comment on the progress of Headrick’s case. Tammy Smick said the attorney general’s office and the Medical Board recently told her they have agreed to settle the case, without providing details. Potential penalties range from suspension or revocation of Headrick’s license to probation or a public reprimand, according to the accusation.
After their son’s death, the Smicks settled a malpractice lawsuit against Headrick, the terms of which weren’t disclosed.
Tammy Smick, center, flanked by her husband, Tim left, and son, Chris, called on the Medical Board of California to crack down on doctors whose overprescribing of medications has led to death or serious injuries during a rally at the Capitol in Sacramento in 2013. (AP Photo/Rich Pedroncelli)
Tammy Smick, a Downey teacher, threw herself into activism after her son’s death, retelling his story and focusing on issues such as overprescription of opioids and California’s cap on medical malpractice payouts, which she argues undercuts doctor accountability.
“Our goal is bringing awareness to medical malpractice (in) the opioid industry and detox centers,” she said.
Since Alex Smick’s death, Headrick has opened a drug treatment center, Tres Vistas Recovery in San Juan Capistrano, where he is listed as owner and medical director.
Addicts or their families considering using that rehab can learn about the state allegations involving Headrick, but only if they know where to look. In October 2016, details of the Headrick case were posted on the Medical Board of California website.
Tammy Smick believes it’s not enough. She says people considering rehab wouldn’t necessarily know to turn to the Medical Board website. She believes there should be an easier, centralized way to get official disciplinary records on rehabs, their operators and key staff.
State health officials say even when a doctor’s license is revoked, he or she can still operate a treatment center and profit from it, though they could not provide medical care to patients.
California lags other states
Smick is not the first to raise the issue of transparency. A state Senate report in 2012 found a host of oversight problems in the recovery industry, including poor monitoring of rehab centers and inadequate information sharing related to treatment center operators.
Other state officials have pointed to financial abuses in the industry that authorities say bleed millions from public and private pockets. Part of the concern is tied to so-called “junkie hunters,” people who recruit addicts from around the country and bring them to rehab centers in California in return for kickbacks.
One area of the rehab industry – sober living homes – has virtually no oversight.
The homes, where addicts often live for a few months after leaving formal rehab, aren’t required to submit any records of their operations. This is true, in part, because operators aren’t claiming to provide medical treatment and the people living in them, recovering addicts, are protected under the Americans with Disabilities Act.
The state’s findings from 2012, and a follow-up report in 2013, have sparked debate about how to regulate the industry. But that debate hasn’t prompted big change, and critics complain that California – which has about 1,800 licensed rehab centers, including more than 1,100 in Southern California – is falling behind other big states in vetting and licensing rehab centers.
“The big issue is, what do the licensure laws look like?” said Michael Cartwright, CEO of American Addiction Centers, one of the nation’s largest for-profit treatment chains. “Are they standard? Do they follow good guidelines other states follow? No, they do not.
“Time and time again, the problems get worse and worse,” Cartwright added. “Progressive states like Massachusetts, Pennsylvania, New Jersey … are making serious progress.”
Some of the biggest changes are taking place in Florida.
Like California, Florida has become a hotbed of out-of-state addict recruitment and scandals related to widespread fraud and dangerous patient care. In June, Gov. Rick Scott signed a package of reforms aimed at cleaning up the industry.
The new regulations call for background screenings for all owners, directors and clinical supervisors of sober homes. They clarify laws to make kickbacks illegal and empower state regulators to make unannounced visits to sober homes. They also allow state prosecutors to use racketeering laws to crack down on patient brokering and fraud networks in the industry.
In addition, licensed treatment centers in Florida have been prohibited from referring addicts to sober living homes that have not met the standards of a voluntary, third-party certification process.
Other states are taking actions as well.
In Pennsylvania, as part of the state’s response to the opioid crisis, lawmakers authorized funding for 45 “Centers for Excellence,” treatment facilities that combine medical, behavioral and job training services for 11,000 addicts. And the governor is pushing for the state to begin regulation of sober living homes.
Coming to America
Tonmoy Sharma worked as a psychiatrist in the United Kingdom before losing his license in 2008 for allegedly dishonest and unprofessional conduct in connection with research involving patients.
With a map of ambitious plans for expansion as a backdrop, Tonmoy Sharma, founder and CEO of Sovereign Health, an addiction treatment company, talks about the recent FBI raid earlier this year in San Clemente. (File photo by Mindy Schauer, Orange County Register/SCNG)
He also was accused of employing titles he did not possess – “Ph.D.” and “professor” among them – and “fell significantly short of the standards to be expected of a medical practitioner undertaking medical research on human subjects,” documents from the United Kingdom show.
Sharma said he believed he had obtained proper ethics clearances when he did his research, and that his course of study was equivalent to a Ph.D. so he was justified in using the title. A spokesman said he no longer practices psychiatry.
After moving to Southern California, Sharma built a chain of drug treatment centers, Sovereign Health, with nine centers in California and four other states with 743 beds. He also has centers that treat people for mental illness.
But before starting his businesses in the United States, Sharma’s background wasn’t widely known to California regulators.
His application to run rehab centers sparked no criminal or disciplinary background check. His application to run mental health care facilities did bring scrutiny from the state’s Department of Social Services, which oversees other types of group homes, and he was allowed to operate. There is no indication that the Dept. of Social Services alerted any other state agency about Sharma’s licensing issues and other problems in the United Kingdom.
Today, Sharma and Sovereign Health are under investigation by the FBI.
Tonmoy Sharma, founder and CEO of Sovereign Health, an addiction treatment center, shows reporters photos from the FBI’s recent raid of his company, He feels he is being unfairly targeted by the government. (File photo by Mindy Schauer, Orange County Register/SCNG)
Sharma says he has done nothing wrong. He contends the FBI investigation was sparked by an ongoing legal battle he’s waging with the insurance provider Health Net.In June, federal agents raided his offices and confiscated records and computers. Documents related to the FBI’s search warrant have been sealed, so the focus of the investigation is not public.
The health care giant has accused Sharma’s company of billing fraud worth more than $33 million. Sharma has responded by accusing Health Net of improperly cutting off payments for patient care.
Separately, the Dept. of Social Services is seeking to revoke Sharma’s license to run group homes for the mentally ill over allegations that proper consent was not given to perform genetic and HIV testing on children, among other problems.
But even as he battles law enforcement, the state and at least one major insurer, Sharma is among those who argue that there is “no quality control” in the state’s rehab industry.
“You will find treatment centers in Orange County like Starbucks,” he said.
“Yesterday, a tire shop; today, a treatment center. You don’t require background checks. You don’t require any skill to do this. That’s the problem.”
Business model
Court documents accuse the Ganongs of creating a network of rehab-industry companies that fraudulently exploited the testing of addicts’ urine.
This, according to prosecutors, is how they did it:
In December 2011, Pamela Mae Ganong, now 61, of La Jolla created Ghostline Labs Inc. to submit urine testing claims to insurance carriers. The next month, Ganong hired physician Suzie Schuder to run the lab, which conducted urine tests.
Suzie Schuder was charged with four counts of insurance fraud and conspiracy to commit insurance fraud. Her maximum sentence would be 17 years, eight months. (Booking mug courtesy of OCDA)
In January 2012, Pamela Ganong, Philip Ganong, and their son, William Ganong named themselves officers of the William Mae Corp., which ran sober living homes in Orange County, Bakersfield, Los Angeles and San Diego.Prosecutors allege some of the tests were not covered by the laboratory’s certification or were not necessary, and that Schuder received $21,884 from 2012 to 2013 to run the laboratory and write prescriptions. Schuder has pleaded not guilty to fraud. Her attorney did not respond to requests for comment.
The company advertised on Craigslist and word of mouth among drug users to get clients, according to a court declaration by the District Attorney’s Office.
Yet within a year the company, operating under the name Compass Rose Recovery, mushroomed from 12 employees to nearly 100. That growth sparked interest from insurance giant Anthem Blue Cross, which suspected the company’s sudden success might be a result of something more than smart business, records show.
During this period, the Ganongs also formed Compass Rose Staffing, which referred recovering addicts for temporary jobs with nonprofits. But hundreds of recovering addicts from the Ganongs’ sober living homes also were employed at the Ganongs’ various companies, and prosecutors say those workers were required to take frequent urine tests as a condition of their continued employment.
The staffing company “was just a front to facilitate the collection and testing of urine,” Pamela Angle, an Orange County District Attorney’s Office investigator, wrote in May.
Pamela Ganong and William Ganong also submitted insurance claims worth more than $1 million for testing on their own urine, Angle wrote in a court declaration. The lab charged between $400 and $1,500 for each test.
Records allege that over a three-year period the Ganongs’ urine business billed insurance carriers $22 million and collected $15 million. William and Philip Ganong recruited doctors who treated addiction and allegedly bribed those doctors into writing drug testing prescriptions, according to documents.
Carlos X. Montano, 61, of Newport Beach, was charged with three counts of insurance fraud and conspiracy to commit medical insurance fraud, and his maximum sentence would be 16 years, eight months. (Booking mug courtesy of OCDA)
The Ganongs and other defendants are scheduled to appear in court on Feb. 13.One physician, Carlos X. Montano of Costa Mesa, received a flat fee of $2,000 a month and $150 per prescription, prosecutors allege in court documents. Montano also is charged with fraud. His attorney, John Barnett, declined to comment on the case.
Staff writers Jordan Graham and Teri Sforza contributed to this article.
With the news full of stories about sexual misconduct, it’s worth mentioning the perpetrators who have hidden in plain sight – with the blessing of the Medical Board of California and the Legislature. These are doctors who are allowed to practice even after being found responsible for sexual misbehavior.
The state medical board has disciplined more than 450 doctors in recent years for crossing the line with patients. Surprisingly, board investigators are not required to notify law enforcement of a sexual assault complaint. They can quietly investigate without any warning to the public, and doctors usually stay on the job throughout the investigation, which usually takes about three years.
Some physicians do have their licenses revoked if the accusations are found to be true, but others are discreetly put on probation, ordered to take behavior classes and to have a chaperone in the examination room.
But their patients are never told. They have to look up the doctors’ records themselves.
What is also surprising is that a license revocation is rarely permanent. Doctors can petition for reinstatement within a few years. At least three doctors found responsible for sexual misconduct have had their licenses reinstated, and two of the cases involved underage girls.
In one notable case, Dev Gnanadev, the current board president, sat on the panel that reinstated the license of a physician who had assaulted four women, including a minor. Records show that doctor, Hari Narayana Ma Reddy of Victorville, had also pleaded guilty to misdemeanor battery after being charged with felony sexual battery of the minor.
There was never an inquiry into Gnanadev sitting on the panel by either the state Department of Consumer Affairs, which oversees the medical board. An investigation is not likely now since the new consumer affairs director, Dean Grafilo, used to work for the California Medical Association, the doctors’ lobbying group of which Gnanadev is a former president.
In some cases, the medical board doesn’t bother to follow its own discipline guidelines for sexual misconduct cases, which say that physicians should get a minimum of seven years probation, even when the relationship is consensual. Last year, a physician was given just less than three years on probation for unwanted sexual contact with five female patients.
State legislators have been complicit in the protection of these doctors, due in part to strong-arming by the medical association. In 2016, lawmakers failed to pass Senate Bill 1033, which would have required doctors on probation for egregious cases to notify their patients. Just last summer, an effort to insert a similar requirement failed when legislators watered down the proposal so that only a handful of doctors would be covered.
Will there ever be a bill to protect patients from assault by doctors? Not if the current mindset persists. Until then, patients must look up their doctors on the medical board’s convoluted website before every single appointment. And if there is a problem, patients should go directly to the police.
Marian Hollingsworth, who lives near San Diego, is a volunteer advocate with the Patient Safety Action Committee and Consumers Union. She can be contacted at marian.hollingsworth@yahoo.com.
There are a handful of physicians in California who have been put on probation for serious offenses like drug abuse or sexual misconduct.
More than 110,000 doctors are licensed in California. One California senator says about 600 are on probation, Los Angeles has the most with 164. But one legislator tried to make it a requirement for doctors to tell their patients if they have been in trouble, but that language in a bill up for a vote Friday was removed.
Eric Andrist lost his sister Cali to what he says were medical errors. He says not enough is being done to discipline bad doctors. Andrist testified in front of the State Medical Board which includes several doctors.
The board is in charge of disciplinary action and looking into complaints against physicians.
“We can’t have doctors policing doctors,” Andrist said. “The conflict of interest is just too great.”
Every four years the medical board must have their authority renewed by the legislature. It is an opportunity for lawmakers to evaluate whether the board is doing the job of protecting patients.
California Senator Jerry Hill, D-San Mateo, tried to add language to legislation requiring doctors to tell patients if they are on probation or have been disciplined by the board.
“At the end of the day they’re there for consumer and patient protection,” he said.
He says the California Medical Association, which represents 43,000 doctors across the state, lobbied to have it removed.
“It’s absolutely ludicrous that this provision’s been taken out of the bill,” Andrist said.
The group declined to be interviewed, but has repeatedly argued that forcing doctors to tell their patients about their probation status would unfairly put doctors out of business without giving them due process.
Gov. Jerry Brown has the final say. He has until Oct. 15 to sign the legislation.
To see if your doctor has been disciplined or is on probation, you have to look them up on the Medical Board’s website.
More than 110,000 doctors are licensed in California. One California senator says about 600 are on probation, Los Angeles has the most with 164. Lolita Lopez reports for the NBC4 News on Friday, Sept. 15, 2017.
Patient advocates looking to reform the maligned Medical Board of California were dealt a blow this week as the Legislature passed a bill to renew the watchdog agency for four more years without significant change. The board was created to protect patients from dangerous doctors, but as the NBC Bay Area Investigative Unit reported, patients can wait years for the board to deliver justice.
The medical board is set to expire at the end of the year unless the governor signs a bill to renew the state agency. It’s a process that usually runs smoothly, but this year it’s coming down to the wire for the Legislature to pass a bill renewing the board.
Doctors on Probation
The major issue that essentially put the medical board on life support stems from a contentious battle over disciplinary disclosure requirements. Under current law, doctors do not have to notify their patients when the medical board places their license on probation for offenses including deadly medical errors, drug use, and sexual assault against patients.
Probation info about a doctor’s past is posted on the medical board’s website, but critics say it’s difficult to navigate. State Sen. Jerry Hill of San Mateo authored SB 798, which would have forced doctors on probation to tell their patients directly, however the state Assembly gutted that plan before passing the bill on Wednesday.
“There are some in the Legislature that would rather support and protect doctors than patients,” Hill told NBC Bay Area.
The California Medical Association, which represents 43,000 doctors across the state, posed the main opposition against Hill’s disclosure requirement. The association argued that forcing doctors to tell their patients about their probation status would unfairly put doctors out of business without giving them due process.
The Medical Board and Patient Protections
The Medical Board supports SB 798 and maintains that the bill will allow the board to protect patients, despite the lack of disclosure requirement. A spokesperson for the board told NBC Bay Area that the new law will still allow the agency to investigate complaints and “continue to have the same value it’s always had.”
But some critics argue that without major reform, the state should disband the board completely and start from scratch.
State data provided to the Investigative Unit shows that that the average case takes the medical board 909 days to sanction a doctor. The process allows nearly all of those doctors continue practicing during the investigation.
“We need the medical board, but it’s not working for us, it’s working on the doctors behalf, they’re doing things to keep the doctors in practice,” patient advocate Eric Andrist told NBC Bay Area.
Eric Andrist is an outspoken critic of the medical board, which he says failed to issue any disciplinary action after his sister Cali became the victim of medical errors.
“It’s crucial that doctors tell their patients when they’ve been placed on probation. It’s absolutely ludicrous that this provision has been taken out of the bill,” Andrist said.
California is home to nearly 111,000 practicing doctors. More than 609 are practicing while serving probation. Los Angeles county has the most doctors on probation with 164. In the Bay Area, Alameda tops the list (16), followed by Santa Clara County (14), and Contra Costa County (12).
Gov. Brown has until Oct. 15 to decide whether he will renew the medical board. If signed, SB 798 will also require the board to restructure its process for investigating complaints over the next year, however it is unclear what that restructure will look like.
Patient advocates looking to reform the maligned Medical Board of California were dealt a blow this week as the legislature passed a bill to renew the watchdog agency for four more years without significant change. The board was created to protect patients from dangerous doctors, but as the NBC Bay Area Investigative Unit reported, patients can wait years for the board to deliver justice. Investigative Reporter Bigad Shaban reports in a video that first aired on Sept. 14, 2017. (Published Thursday, Sept. 14, 2017)
September 14, 2017 | Bigad Shaban, Jeremy Carroll, and Kevin Nious | NBC Bay Area
Above: Kevin Antario Brown, a doctor who sexually assaulted eight female patients and an undercover detective while working at three medical facilities in Los Angeles and Glendale, Calif., listens as he is sentenced to 12 years and six months in prison, at the Los Angeles Criminal Justice Center in Los Angeles Friday, Dec. 16, 2011.
She decided to check the records of the doctor who did her colonoscopy.
“And I about fell over, because he was about to start a 30-day suspension and seven years probation for a decades-long history of drug and alcohol abuse,” she said. “But what finally got the attention of the medical board, is that he went after a patient with a hatchet.”
Hollingsworth discovered that the medical board had investigated this doctor before.
“And in the early 2000s he was recommended for the medical board’s diversion program that they had at that time, and he had failed some other diversion programs he had tried voluntarily,” she said. “He had also failed the medical board version, and nothing was ever done.”
Any disciplinary action taken against a physician in California is listed on the medical board’s website.
Not required to tell patients
But the website is not exactly user-friendly.
In fact, someone searching for a doctor’s public records needs to navigate through multiple screens, and be willing to sort through pages upon pages of legal documents, before they can discover exactly why a particular doctor was disciplined.
But even if a doctor is punished for being drunk on the job, they’re not required to tell patients about it.
A bill (SB 798) in the state legislature would have changed that.
It would have required doctors to notify patients in writing if the medical board put them on probation for a serious offense, like sexual misconduct with a patient, or operating under the influence of drugs.
CMA officials did not agree to be interviewed for this story.
In an email, Joanne Adams, CMA’s associate director of communications, said such patient notification “would erode the fundamental right to due process by basing notification on accusations, rather than a finding of fact.”
“Anyone that’s on probation, has either stipulated with the medical board that they did commit the conduct they’re accused of, or that the board could at least prove its case, or at least certain elements of its case,” she said.
Gramme said the CMA is dead wrong on this one.
“I think they’re trying to make it sound like there’s a good reason, but I don’t think they have a good reason,” she said. “They just don’t want to have to tell their patients, because it would harm their business, and it would be embarrassing, and that’s just not a good enough reason.”
A unique perspective
There are an estimated 137,000 licensed physicians in California. Each year on average, the medical board puts 124 doctors on probation.
The failed bill would have applied to a subset of those doctors: some 40 a year.
In other words, the CMA lobbied to kill a measure that would have affected about two-one-hundredths of one percent (.02 percent) of all doctors in the state.
San Diego physician Jeoffry Gordon has a unique perspective on this issue.
He not only spent 35 years in private practice, but he also served on the state’s medical board for eight years back in the 1970s.
Gordon said the board has an obligation to protect patients from bad doctors.
“And to put their names on our website is not adequate,” he said. “I think each physician ought to be responsible for notifying his patients that he’s not been morally responsible.”
Marian Hollingsworth has become a crusader for more public disclosure. The bottom line? She thinks the medical board does not have its priorities straight.
“The investigator in my case actually told me that it’s the medical board’s job to make sure doctors remain in practice for as long as possible,” Hollingsworth recalled. “And I said, ‘Well, I thought it was to protect patients.’ And she goes, ‘Oh, that too.’”
May 14, 2017 | Bigad Shaban, Jeremy Carrol and Kevin Nious | NBC Bay Area
If your doctor was disciplined for harming other patients, would you want to know?
In California, the state Medical Board is responsible for protecting patients from dangerous doctors. More than 600 physicians and surgeons across the state are currently on probation for a wide-range of violations including sexual assault, insurance fraud, and medical negligence that has resulted in the deaths of patients. Despite the severity of such violations, the Medical Board does not require doctors to notify their patients of their probation status. According to the board, disclosing such details would “harm the patient-doctor relationship.”
The Medical Board has come under fire in recent months for what some are calling a lack of oversight. In February, several patients and their families gathered at the state capital to express their anger and testify before legislators.
“My sister was dead,” said an emotional Eric Andrist. Overcome with pain and anger, Andrist recounted losing his sister, Cally, to what he described as “poor medical care.”
“She, too, was dead from gross medical errors,” he explained to lawmakers.
Is Your Doctor on Probation?
Nearly 110,990 physicians and surgeons currently practice medicine in California. More than 600 of those doctors are on probation, according to the most recent data available from the Medical Board. Their offenses include deadly medical errors, drug use, and criminal convictions. Probation details for those doctors can be found on the Medical Board’s website, but it’s up to patients to find locate the information since doctors are not required to notify them directly of their probation status.
“Those doctors have [historically], a 30 percent recidivism rate,” state Sen. Jerry Hill, D-San Mateo, told NBC Bay Area.
Hill chaired the February hearing that centered on the Medical Board. He is now proposing major reforms to boost patient protections. His legislation includes a proposal to require doctors to directly notify their patients if they are practicing while on probation.
Medical Board President Dev Gnanadev, however, believes forcing all doctors to disclose their probation status would do more harm than good.
“If I go to a doctor … and if the person says to me, ‘Oh by the way, I’m on probation,’ there goes whatever trust I had – completely gone,” Gnanadev said during the hearing.
Medical Board Executive Director Kim Kirchmeyer also testified, explaining why her colleagues on the board worry about the implications of forcing all doctors to disclose their probation status.
“They didn’t want it to interfere with the patient-physician relationship,” Kirchmeyer said. “They were afraid it would have an impact on the time frame that the physician would be able to see the patient … because so many questions would come up at that time.”
Still, Sen. Hill found the board’s argument difficult to accept.
“When a doctor goes on probation, they have to notify the hospital they’re affiliated with, they have to notify their insurance company, but they don’t have to notify the most important part of the health care continuum, which is the patient,” Hill said.
Last week, the Medical Board released a letter, revising the agency’s stance, saying it now supports doctors disclosing their probation status to patients in cases of sexual abuse and criminal convictions. But the board’s proposal would not require some doctors who were disciplined for negligence to notify their patients.
“It’s speaking out of both sides of their mouths, and it really shows how little physicians at the medical board want patients to be informed.”
“The Medical Board continues to fail in its primary mission, which is patient protection,” Consumer Watchdog Executive Director, Carmin Boulder testified during the hearing.
MEDICAL BOARD AND DOCTOR DISCIPLINE
Despite the board’s revised stance on probation, it continues to face criticism over its process for disciplining doctors.
Each year, the board receives more than 8,000 complaints concerning physicians and surgeons, with only a few hundred of those complaints resulting in discipline. But even when investigators determine a doctor acted inappropriately, it takes an average of 909 days from when a complaint is submitted before a physician faces any kind of penalty. State regulations allow nearly all of those doctors to continue to see patients in the meantime.
“The system was set up to fail,” investigator Michelle Veverka testified. Under the current system, Medical Board investigators work in conjunction with the Attorney General’s Office to bring cases against doctors. However, Veverka says that partnership leads to inaction.
“We had to investigate and prosecute these matters being in two separate agencies,” Veverka said. “It has made it very difficult and very cumbersome.”
NBC Bay Area first exposed the communication breakdown between the Medical Board and the Attorney General’s Office last year when it profiled Mario Gusman.
Mario was an avid runner who believes a misdiagnosis by his doctor left him a multiple amputee.
“It’s like they steal your life away from you,” Gusman told NBC Bay Area.
Gusman filed a complaint with the Medical Board who recommended the Attorney General’s office discipline his doctor. However, the Attorney General’s Office decided not to pursue the case, citing “insufficient evidence.”
Hill’s legislation, which includes language to restructure the investigations process and require doctors disclose their probation status, is expected to be the subject of debate during a Senate committee on Monday. A final vote on the bill, however, is likely months away.
“The California Medical Board has really broken down in a number of areas,” Hill said. “In some cases, it could be life or death.”
MRSA colonies on blood agar plate. (R Parulan Jr. / Getty Images)
Over the course of eight months, a lethal bacteria infected 10 already critically ill infants in UC Irvine Medical Center’s neonatal intensive care unit – an outbreak that the public is only finding out about now.
None of the infants have died, hospital officials said.
Yet UCI doctors have not found the source of the infections – which continued even after 220 employees used antiseptic soap and ointment to eliminate bacteria on their skin and in their noses.
Orange County health officials have known about the continuing hospital-acquired infections since the middle of December, when lab tests confirmed that five infants had been infected by the same strain of a superbug.
That month, two more babies were sickened. Another tested positive in late February, and two more in March.
County officials said they did not notify the public about the outbreak because they had no evidence that infants being treated at UCI’s neonatal unit were at higher risk than infants admitted elsewhere.
UCI officials say they did not believe it was necessary to notify families preparing to have labor and deliveries at the hospital of the ongoing outbreak. They said they had isolated the infected patients in one of the hospital’s two intensive care units for infants. New patients are now only accepted into the other unit, they said.
The 10 babies tested positive for methicillin-resistant Staphylococcus aureus, or MRSA. The superbug is especially dangerous for premature infants. One study found that 26% of infants infected with MRSA while in the ICU died.
The last positive test for MRSA in one of the newborns at UCI was on March 26, according to hospital officials. That baby has since tested negative and none of the infants have active infections, the hospital said.
Hospital officials confirmed the outbreak after questions from The Times. The newspaper learned of the outbreak from Marian Hollingsworth, who filed a complaint about it with the state.
Hollingsworth, who sits on a state advisory committee on hospital-acquired infections, said it appeared UCI and government health officials were trying to quietly handle the outbreak internally.
She learned of the outbreak, she said, from a friend who works in the UCI hospital complex.
Hollingsworth said she believes the hospital should have informed pregnant women being admitted to deliver their infants.
“You never know if your baby will end up in the NICU,” Hollingswroth said, using the shorthand term for the neonatal intensive care unit. “I would have wanted to know.”
UCI officials say they have worked aggressively to try to prevent more infections, using measures that “meet or exceed best industry practices.”
“Our rapid response came the minute we saw the strains were the same,” said Susan Huang, UCI’s medical director of epidemiology and infection prevention.
Huang said that since last month, UCI has been disclosing the outbreak in a letter to parents of all infants in intensive care.
Before that time, she said, staff had been instructed to disclose the MRSA infections to parents as their babies were being tested or treated for the infections.
Huang said the hospital has not been testing patients in other areas of the medical center for the MRSA strain.
The UCI case is not an isolated one. For decades, hospitals have struggled to contain lethal pathogens from spreading in the intensive care units treating premature babies.
The fragile patients are especially vulnerable to infections because of their serious conditions, which often require catheters and ventilators to keep them alive. Their immune systems are still developing.
Besides being potentially deadly, the infections can harm the infants’ brain development and growth in early childhood.
The outbreaks are also costly. A 2010 study found that a MRSA infection extended the infant’s hospital stay by 40 days on average at an additional cost of $160,000.
The federal Centers for Disease Control and Prevention does not track the number of outbreaks or deaths from infections in the neonatal units.
Lisa McGiffert, who directs the safe patient project at Consumers Union, said some outbreaks have been uncovered by media reports or when doctors write about them in medical journals. The public does not learn about an untold number of others, she said.
In January, New Jersey health officials confirmed that an outbreak of MRSA had occurred in a neonatal unit of a Camden hospital after a nurse detailed the infections in a lawsuit. The nurse said in her lawsuit that she had been fired for reporting the hospital’s mishandling of the outbreak.
“A lot of these outbreaks disappear,” McGiffert said.
Experts say the outbreaks can be prevented by proper infection control procedures, including some that can be costly to the hospital’s bottom line. For example, studies have found that infection rates decrease when more nurses are available to care for the infants or when the unit is moved to a larger space.
In 2013, the CDC said it had written guidelines for hospitals in preventing outbreaks in the neonatal units. The agency said then it was preparing to publish the proposed guidelines in the Federal Register. But that did not happen.
The agency restarted the project last year and is now working on a new proposed guideline.
Martha Sharan, a CDC spokeswoman, said Thursday the proposed guidelines were not published in 2013 so that the agency could “carefully evaluate new and relevant scientific articles” on the subject.
In California, state officials who license hospitals are expected to quickly respond to complaints when patients may be in danger.
A state inspector did not visit the UCI Medical Center to investigate the outbreak until March 20, after Hollingsworth’s complaint.
UCI said it had sent a letter to the state describing the infants’ infections in early January.
By then, seven of the 10 infants had been sickened.
In a letter to Hollingsworth, state officials said that their investigation completed on April 3 found that the hospital had not broken any federal or state laws.
Hollingsworth questioned that finding. “If UCI had done everything correctly,” she said, “there would not have been so many babies infected.”
State officials said Thursday that they never received UCI’s letter and that the hospital did not call to follow up.
John Murray, a UCI spokesman, said four employees also tested positive for being colonized with the same strain of MRSA in January. After the use of the antiseptic soap, those employees have now tested negative, he said.
The hospital is continuing to clean all equipment and surfaces throughout the unit, he said. Staff and family members must also wear gowns and gloves while visiting the babies and take other precautions such as placing cellphones in plastic bags.
“Our goal is to ensure the safety of our patients and eradicate the presence of any drug-resistant bacteria in our neonatal intensive care unit,” Murray said.
McGiffert at Consumers Union said the group believes that all outbreaks should be made public so patients can take precautions. The public disclosure would also cause hospitals to work harder to prevent infections, she said.
Melody Petersen covers biotechnology for the Los Angeles Times. Previously, she wrote about the pharmaceutical industry for the New York Times. She won a Loeb award for reporting about a power company at the San Jose Mercury News. She has also written for the Orange County Register and the Philadelphia Inquirer. She’s the author of Our Daily Meds, a book about the drug industry. She’s a former certified public accountant and grew up on an Iowa farm.
State Sen. Jerry Hill, D-San Mateo (right), shown last year with then-state Sen. Mark Leno, wants patients to know when their doctors are on probation. Photo: Paul Chinn, The Chronicle
SACRAMENTO — Dr. Wanda Heffernon, a former UCSF anesthesiologist, made headlines in 2001 when she pleaded guilty to stealing credit cards from her fellow physicians and forging prescriptions to feed her drug addiction.
While facing those charges, she worked as a physical therapist at a nursing home in San Mateo County, where she was accused — and later convicted — of elder abuse after prying a diamond wedding ring off a 94-year-old patient, bruising the woman’s finger in the process. The judge who sentenced Heffernon to two years in prison noted the extreme vulnerability of the victim and remarked that there was “a dark side to Ms. Heffernon that is difficult to fathom.”
Now, many years later, Heffernon is licensed to practice medicine in California.
After surrendering her license in 2001, Heffernon successfully petitioned the Medical Board of California in 2014 to get it back on the condition she remain on probationfor five years. It’s unclear whether Heffernon, who lives in Oakland, is currently practicing medicine. She hastily declined to comment when reached by phone
Heffernon is one of 500 doctors in the state — including 85 in the Bay Area — on probation by the state medical board. But they’re not required by law to disclose their probationary status to their patients, and consumer advocates say they should be.
“Doctors should have to tell you they are on probation before they treat you,” said Eric Andrist, who supports patient notification laws and is a vocal critic of the medical board. “The probation itself is ridiculous. When you look at many of these cases, the licenses should be revoked, not suspended.”
The state Medical Board licenses physicians and surgeons and has the authority to investigate complaints and issue sanctions when necessary. Penalties can range from a public reprimand, probation or revoking a license.
Doctors can continue to see patients while on probation, although they may face additional requirements like psychiatric counseling and drug and alcohol testing. In the case of sexual misconduct, doctors may be required to have a third-party chaperone in the room when treating patients.
While few doctors are on probation — less than 1 percent — the reasons for being placed on the list can range from sexual misconduct to gross negligence to overprescribing opioids that led to multiple patients dying. How patients find out whether their doctor is on probation is a contentious fight in the state Capitol.
California physicians are required to disclose their probation to hospitals and their malpractice insurers, but it’s up to the patient to look up their doctor on the Medical Board of California’s website. Critics say that isn’t enough and that such requirements ignore the growing aging population that may not know how to search for such information.
Consumer advocates have pushed lawmakers and the medical board for years to require doctors to notify patients if they are placed on probation. State Sen. Jerry Hill, D-San Mateo, wrote a bill last year that would have required doctors to inform their patients if the medical board places them on probation. The bill died on the Senate floor when many lawmakers abstained.
This year, the law that gives the state medical board the authority to oversee doctors is up for renewal in the state Legislature. The patient notification requirement could be included in that legislation. Hill is the chair of the Senate committee overseeing the medical board’s renewal.
The medical board’s executive director, Kimberly Kirchmeyer, said requiring a doctor to tell a patient about probation would cause mistrust and that patients are sufficiently informed by having the information available online.
“If I go to a primary care doctor and the person says to me, ‘By the way, I’m on probation,’ there goes whatever trust I have,” added board President Dr. Dev GnanaDev. “It’s gone.”
Hill disagrees. He said the doctor-patient relationship is eroded when doctors hide the fact that they are on probation. At a hearing last month in Sacramento on the medical board’s renewal, Hill pointed to examples of male doctors in his own San Mateo County who are required as part of their probation to have a third party in the room when seeing female patients.
“If my wife or my daughter were to go to that physician, how would they know what the terms and conditions are and whether they are being followed?” Hill asked.
The California Medical Association, an influential industry group that represents doctors, is supporting a bill that would bar the medical board from placing a doctor on probation for serious crimes such as felony convictions related to the care of a patient or sex abuse. AB505 by Assemblywoman Anna Caballero, D-Salinas, is awaiting its first committee hearing.
But the California Medical Association opposes patient notification requirements, saying they undermine due process protections by requiring doctors who have not admitted to guilt or settled a case to disclose their probation status to patients. That’s essentially a de facto suspension, the group argues.
“In addition to due process concerns, we disagree with the underlying premise that the state Medical Board is not doing its job to determine whether or not a physician is safe to practice,” said Joanne Adams, spokeswoman for the California Medical Association.
Critics say the medical board is too focused on protecting doctors, despite a stated mission of being a consumer protection agency. Those critics point to the numerous complaints to the board that appear to go nowhere.
The medical board receives an average of 8,000 complaints a year, an increase over the past four years.
In the past three years, the medical board investigated and closed 23,000 complaints and referred 1,400 cases to the state attorney general. Almost 400 doctors lost their licenses or voluntarily surrendered them in the past three years, according to statistics the medical board provided the state Legislature.
But, like Heffernon, doctors whose licenses are surrendered or revoked can still apply to be reinstated. In 2015, the medical board reinstated Bakersfield Dr. Esmail Nadjmabadi, who pleaded no contest in an administrative hearing six years earlier to sexual exploitation by a physician. In San Bernardino County, Dr. Hari Reddy’s license was reinstated in 2015 despite his conviction in criminal court of sexual battery against a patient and an administrative law judge finding he engaged in sexual misconduct with five other patients ranging in age from 15 to 38 years old.
Both Nadjmabadi and Reddy are on probation with the state medical board and continue to see patients.
“This is really a big deal,” said Carmen Balber, the executive director of Consumer Watchdog, which advocates for patient notification laws. “We require restaurants to post their grades from the public health department on their window. It’s that transparency we think is necessary when it comes to our food, but somehow we don’t have that for our doctors.”
Senator Pat Bates speaks during a drug overdose awareness memorial at Crown Valley Park in Laguna Niguel earlier this year. (Photo by Drew A. Kelley, Contributing Photographer)
William Ganong (Photo courtesy of OCDA)
