Medical Whistleblower’s Canary Notes

Medical Whistleblower January 2006

The basic elements of procedural due process are notice and an opportunity to be heard at a mean-ingful time and in a meaningful manner. True Due Process is the ability to be heard by an impartial tribu-nal unbiased by ex-parte communication as is neces-sary for fair and impartial justice. Due Process pro-vides the accused doctor the opportunity to be heard in a meaningful manner and with the full facts of the situation considered. Procedural due process violations are by nature “arbitrary and capricious.”

What is Due Process?

What can I do to Help? 2

Legal Aspects of Due Process

2

Denial of Access to Relevant Information

3

Evidence—Clear & Convincing Standard

3

Medical License as a Property and Liberty Interest

4

Inside this issue:

♦ Normal access to courts including trial by jury. ♦ Protection for any lawful disclosure challenging misconduct betraying

the public trust. ♦ Prompt resolution of the case. ♦ Interim relief while the case is pending. ♦ Protection for those who reasonably believe that wrongdoing has oc-

curred. ♦ Reasonable requirements for qualifying for protection. ♦ Genuine victories that stop retaliation and make the whistleblower

“whole.” ♦ Findings that retaliation is illegal and accountability for those who en-

gage in it. ♦ Effective resolution of the problem the whistleblower has brought to

light.

“Real” Medical Whistleblower Protections

Volume 1, Issue 1

• Nguyen Court finds:

• Medical disciplinary procedures are quasi-criminal in nature.

• Due process requires proof by clear and convincing evidence.

• Government-initiated proceedings that threaten the individ-ual’s loss of a medical license are ‘a signifi-cant deprivation of liberty’ or ‘stigma’.

Recovery from Whistleblower Harassment and Retaliation is all about

EMPOWERMENT and taking back what was lost through the harassment experi-

ence. Successful Whistleblowers embody the experience and make it their own.

They overcome their emotions and work through the experience. They retake con-

trol of their life. They make a new start embracing their power and by networking

with others. A new brochure by the Medical Whistleblower offers advise to those

wishing to support a friend, colleague, family member, or neighbor. Titled “When

someone you know is experiencing Whistleblower Retaliation.” It gives clear advice

to supporters of the Whistleblower. Obtain this free brochure to provide your sup-

port network by emailing MedicalWhistleblower@gmail.com

What can I do to help?

Page 2 Medica l Whist leb lower ’s Canary Notes Volume 1, Issue 1

The Legal Elements of Due Process 1) Reasonable notice of the charges against the doctor or medical profes-

sional

2) Adequate time for the doctor to prepare his defense to the charges doctor

3) The right of the doctor to present evidence in his or her own behalf

4) The right to cross-examine the witnesses and evidence presented by the

hospital

5) The right to a decision based upon credible evidence

6) The right to an impartial hearing panel

7) The right to rebut evidence and prepare a defense has been held to in-

clude the right to obtain the disclosure of the evidence to be used by the

Board prior to the hearing.

Advice to Whistleblower

Supporters :

“Create a safe environment in which

they can count on you—for simply being there

or even for talking through a moment”.

Due to the Statutory Immunity applied to the investigation and decision mak-

ing procedures of the State Medical Boards there is a lack of due process for any doc-

tor facing an adverse Medical Board decisions and Bad Faith Peer Review. There is a

lack of the ability of the accused doctor to know who made allegations against him/

her and the nature of those allegations. Whether due process has been accorded in a

particular case is a question of law. Privileges in the law are not favored by the courts

because they operate to deny the judge and both sides access to relevant information.

There is a fundamental right of the doctor to have access to all the relevant facts pre-

sented against him or her. Even Former President Richard Nixon couldn’t prevent

disclosure of the facts in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41

L.Ed.2d 1039 (1974). The Supreme Court was called on to weigh the Presidential

privilege against the needs of the judicial process. The Court said: “The very integrity

of the judicial system and public confidence in the system depend on full disclosure of

all the facts, within the framework of the rules of evidence. To ensure that justice is

done, it is imperative to the function of courts that compulsory process be available

for the production of evidence needed either by the prosecution or by the defense.”

The removal or denial of the Doctor’s Right to Practice Medicine and the de-

nial of a license to a Doctor or removal of a license requires proof that meets the

“Clear and Convincing Standard.” If the court holds that a medical license is a right

not a privilege, then in deciding to deny or remove a medical doctor’s license the court

should apply U.S. Supreme Court in Matthews v Eldridge, 42 U.S. 319, 47 l. Ed. 2d 18, 96

S. Ct. 893 (1976) and the court must weigh and balance 1) The private interest af-

fected 2) The risk of erroneous deprivation of that interest 3) The governmental in-

terest involved.

Denial of Access to Relevant Information

Clear and Convincing Standard

Page 3 Medica l Whist leb lower ’s Canary Notes Volume 1, Issue 1

Vicarious Trauma

The retaliation that accompanies whistle blowing activity is often devastating to the family, friends, partners, roommates, teachers, neighbors of the victim. Even the social service providers—counselors and therapists providing care and responding police officers can be caught in the effects of the trauma. This trauma that affects those around the victim. Those who view the victim’s pain and suffering can experience Vicarious Trauma. It often leads to a lack of social support to enable the Whistleblower to put his/her life back together.

Dr. Janet Parker P.O.Box C Lawrence, KS 66044

We are on the Web!

MedicalWhistleblower.googlepages.com

The standard of proof required by due process in all professional disciplinary proceedings is clear and convincing evidence. Nguyen v. State, Dep’t of Health, 144 Wn.2d 516, 526, 29 P.3d 689 (2001) A doctor’s property and liberty interests in main-taining his or her license are compelling. The function of the standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to “instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adju-dication.” As the Nguyen Court pointed out, “It is important to focus on the nature of the interest at stake in the sense that the more important the interest, the more process is required.” The license of a Doctor is a significant property interest, be-cause it allows an individual to earn a living within a chosen field. Marrero v. Depart-ment of Professional Regulation, Bd. of Psychological Examiners, 622 So.2d 1109 (Fla. App. 1 Dist., 1993), Marler v. Missouri State Bd. of Optometry, 102 F.3d 1453, 1456 (8th Cir. 1996) Doctors complete many years of rigorous education, training, and examination at enormous expense, and he/she generally expects the practice of medicine to be a permanent career. The Nguyen court also characterized the doctor’s interest in his medical license as a liberty interest: “This court has recognized a doctor has a liberty interest in preserving his professional reputation.” The Nguyen court emphasized the quasi-criminal nature of medical disciplinary proceedings, in concluding that due process requires proof by clear and convincing evidence. The clear and convincing standard provides the ‘level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual with “a sig-nificant deprivation of liberty’ or ‘stigma’. Thus, whether the loss threatened by a par-ticular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the fact finder turns on both the nature of the private interest threat-ened and the permanency of the threatened loss.”

Property and Liberty Interests — Nguyen v State Department of Health

Phone: 360-809-3058 Fax: None E-mail: MedicalWhistleblower@gmail.com

Supporting the educational needs and the emotional health of all Whistleblowers and their supporters and families.

Medical Whistleblower

Nguyen Court:

“This court has

recognized a doctor has a liberty interest in preserving his professional

reputation.”

The information contained through the Medical Whistle-blower Canary Notes Newsletter is provided for general information only. The information provided by the Medial Whistleblower Canary Notes does not constitute legal or professional advice nor is it conveyed or intended to be con-veyed in the course of any adviser-client discourse, but is intended to be general information with respect to common issues. It is not offered as and does not constitute legal or medical advice or opinion. It should not serve as a substitute for advice from an attorney, qualified medical professional, social worker, therapist or counselor familiar with the facts of your specific situation. We encourage you in due diligence to seek additional information and resources before making any decision. We make no warranty, express or implied, concerning the accuracy or reliability of the content of this newsletter due to the constantly changing nature of the legal and medical aspects of these issues .