Non-Adoption: When the Punishment For No Crime Is Not Severe Enough

Non-Adoption: When the Punishment For No Crime Is Not Severe Enough

Most people will read the negative Press on the Target Physician, Non-Adoption, and will assume he got a fair trial. They will infer he had all the Civil Rights due an American citizen, and was allowed a full defense. After all, that is what the majority believe about the American Judicial system. However, they’d be wrong.

When someone earns an MD License in California, they get double jeopardy, or in the case of the Target Physician, triple jeopardy.

The Decision in the case of the Target Physician was Non-Adopted by the Medical Board of California (MBC). He was found to have committed gross negligence in the care of one patient. “Gross Negligence” – that sounds awful. Did he remove the wrong limb or organ? Did the patient die or become permanently disabled? NO!! She doesn’t like the size and shape of her breasts! After dozens of false accusations and Complaints of killing and maiming patients, that’s it!

The Target Physician has been the target of a disgruntled former patient, the D’Angelo Fellmeth family business (CPIL), and a questionable reporter for CBS/Sacramento. They have worked together to damage him in every way possible. D’Angelo Fellmeth used him to destroy the Physician Diversion Program . The reporter got awards. The former patient, who works for the reporter, lost her lawsuits and Appeals. All she gets is the opportunity to appear on TV with Mrs. Fellmeth and at Medical Board meetings with her lynch mob. Mrs. Julie Fellmeth used the good name and official publications of the University of San Diego to claim the Target Physician, while in the Diversion Program, harmed patients. However, this particular case occurred prior to his entry into Diversion. All of the other solicited false Complaints were investigated and thrown out for no merit.

How does double jeopardy apply here? The undisputed facts are : The Target Physician got two DUIs. Period. For MDs and non-MDs, that means having to deal with criminal Prosecution, defense and legal consequences. His DUI’s did not result in harm to others. He paid the price for his mistakes. This is where the double jeopardy arrives. With two DUI’s , an MD gets in trouble with the Medical Board. The Board has access to this information, and investigates whether there was harm to the public, or if this affected patient care. Defending against an Accusation by the Board is a very expensive, prolonged and painful process. It is also judicially lob-sided. The defenses afforded a criminal defendant are denied to MD’s. For example, the Target Physician was not allowed to bring up 1) the patient continued to see him after her breast surgery to consider additional unrelated procedures, and 2) the fact that the patient was connected to the disgruntled former patient who solicited false complaints. This hurt the Target Physician in two ways. First, these fact do not appear anywhere in the record. Second, by suppressing this information, the opposing Attorney was able to impune the Target Physician’s documentation of satisfaction expressed by the patient with his care.

Now there is triple jeopardy for the Target Physician. D’Angelo Fellmeth and company have made a mockery of Public Interest and Consumer Protection here. They routinely attack all Regulatory Boards, but the Medical Board has been a particularly profitable target for the Fellmeths. Mrs. Fellmeth appears regularly at Board meetings to chastise the Board, while simultaneously seeking lucrative Enforcement Monitor appointments. She is tireless in her efforts to reduce or eliminate the Civil Rights of Doctors. With her media Lobbyist, she plants insightful stories to pressure the Board to seize as many Licenses as possible. Using the old Ralph Nader techniques (Robert Fellmeth was a protégé of Ralph Nader in the 60’s), of creating voluminous, soporific reports combined with “purple prose rhetoric,” they have been effective in creating a false sense of risk and danger. Or as Mrs. Fellmeth likes to put it, “All doctors are dangerous!”

So now, the Target Physician faces triple jeopardy. The Administrative Law Judge (ALJ) gave the Target Physician a one year extension of Probation, a 30 day Suspension and a requirement to take the PACE program at UC San Diego. The PACE Program evaluates the competence of doctors. This Decision, in perspective, is a harsh but not devastating outcome. However, the Board, by it’s positing of Non-Adoption, wants to Revoke the Target Physician’s License to protect itself from further criticism. Often, Non-Adoption is used simply to financially break a doctor and force them to give up the fight. Appeals can cost millions and take years, while the doctor is deprived of their livelihood.

Young MD’s have no idea how a minor misdemeanor or even a family law issue can jeopardize their License. This dark factoid is not mentioned in Medical School. In the case of the Target Physician, the Consumer Protection Movement is severely damaged by such untruthful attacks and dark politics. Taking away the Licenses of decent, capable doctors is in no way in the Public Interest.

Robert Fellmeth – Public Interest Law – NOT! or (Get Real Mr. Fellmeth)

Itzel Berrio
Office of Chief Trial Counsel
180 Howard Street
San Francisco, CA 94105

Re: Response to Comments of the Center for Public Interest Law on Proposed Amendments to the Rules of Procedure Regarding the Alternative Discipline Program on March 17, 2008

Dear Ms. Berrio :

Robert Fellmeth’s critique of the ADP has an all too familiar tone and agenda. He offers up his usual unchallenged attack, full of questionable and soporific detail, combined with an a priori position against the Lawyers Assistance Program (LAP). This bait and switch approach of questioning ADP is merely a platform to attack LAP. This is typical Fellmeth/D’Angelo family business, protected under CPIL’s banner of public interest.

The methods used by CPIL to first demean, then demolish the Medical Board of California (MBC) Physician Diversion Program are now focused on LAP. The first and foremost tool is the repeated Big Lie. Fellmeth states their “audit “ revealed physicians in Diversion “harmed patients”. This is a cornerstone or Pillar of CPIL’s “Judicious Jihad”. After 25+ years of failed attempts to find a single instance of harm to a patient by a physician in Diversion, CPIL made one up. Using a disgruntled former patient whose lawsuits were thrown out of Court numerous times, CPIL established a Target Physician as emblematic of the Program’s failure to protect the public. The former patient combined her efforts with a CBS/Sacramento reporter to create and finance a false Complaint soliciting web site. With the help of CPIL’s media lobbyist, they developed inciteful stories which they gave to lazy, uncritical press organizations, stating a doctor who killed and harmed patients was allowed to continue to practice . These fed articles were then re-cycled by CPIL to create pressure on the MBC to end the Program.

In October of 2008, the Administrative Hearing of the Target Physician (the target physician of the 2004 Report ) ended. Highlights in the Hearing included prosecution witnesses testifying 1)they were pleased with the care and outcome of the Target Physician’s work , 2) they called the Complaint soliciting web site out of curiosity and were contacted by the disgruntled former patient, and 3) the former patient came to their homes, wrote out a false Complaint which she had them sign. The former patient told them to file a Complaint on behalf of those who were harmed, and that there was no risk in filing a false Complaint. At the Hearing, the Deputy Attorney General informed the Administrative Law Judge (ALJ,) that they were aware the Complaints were “contrived”.

So when Fellmeth writes about “abuses that have resulted at the hands of Physician participants in that program” we must look at the actual facts. Neither Robert nor Mrs. Julie d’angelo Fellmeth has EVER produced a single, legitimate victim.

However, CPIL was able to successfully promote and promulgate the notions of “zero tolerance” and “enforceable standards” along with their rigged “audit” in the attack on Diversion. Their “audit” of 2004 was in no way a valid audit. The lucrative appointment of Mrs. Julie Fellmeth as Enforcement Monitor was the result of a shady back door process. Shady and back door, due to the fact that the application process was hidden from more qualified parties until after Mrs. Fellmeth was appointed. An audit, to be valid, uses established benchmarks and the auditor is objective. The 2004 Report met neither of these criteria. A “zero tolerance” approach allowed CPIL to condemn the drug testing component altogether after finding a lone graduate who acknowledged “gaming” it (in fact, he eventually was detected, an appropriate intervention was made, and no patient harm occurred). CPIL’s application of “zero tolerance” could be effectively used to shut down any human endeavor.

CPIL attempted to equate any positive test result with a Relapse and condemn the program for not ejecting participants. As anyone with even the most basic substance abuse education knows, a detected positive isn’t a relapse, but rather a warning sign, which is the basis for an early intervention and relapse prevention. Extensive data from legitimate, long-term studies indicate these doctors are actually much safer than doctors in general. Recovering doctors are exceptionally and uniquely valuable to their patients and community. Senator Mark Ridley Thomas described the ones he met as “stellar individuals”. What a stunning contrast to CPIL’s demonizations and legalistic fictions!

CPIL has used its lobbying (Mrs. Julianne d’angelo Fellmeth is a Registered Lobbyist, and CPIL is the client of two additional lobbying firms) to gain other lucrative Enforcement Monitoring appointments and write Legislation. Currently, CPIL is the recipient of a large California Endowment Grant. Their stated purpose is to bring “diversity” to Regulatory Boards. But CPIL uses common terms to misdirect potential scrutiny. “Diversity” in their case means removing all Licensees from Licensing Boards. Instead, Joe-the-Plumber types, trained by CPIL, would evaluate Complaints and make decisions. CPIL would then have a field day with its overheated and unchallenged Prosecutorial rhetoric and be able to erode and eliminate as many legal protections as possible for Licensees. For example, Mrs. Fellmeth wants all Complaints to be published. That way, by the time the Joe-the- Plumber Board Members hear the Complaints, there would be built in added prejudice for reactionary and unjust decisions. Mrs. Fellmeth was rebuked by Senator Mark Ridley Thomas in the March, 2008 Meeting of the Senate Business and Professions Committee, for her utter disregard for the lives and well-being of physicians.. CPIL has been greatly enriched by attacking Licensing Boards. Around 1997, after a meeting of the MBC Liason Committee in San Diego, Mrs. Julianne Fellmeth remarked to a small group, “when CPIL started, all the good consumer issues were taken, so we decided to attack the Medical Board”. They have further enriched themselves by getting other lucrative Enforcement Monitor appointments, using their so-called “independent monitor” status. For the Fellmeths, the term independent monitor is synonymous with CPIL. They were paid insiders in the 2007 audit of MBC Diversion by the Bureau of State Audits (BSA), using their power to influence the conclusions of the Audit .

CPIL has worked for decades to place itself as the sole voice of public protection with respect to Regulatory Boards. They have made public protection a wedge issue. Either one is for public protection and must never question CPIL, or is against public protection. They have exploited the worst negative stereotypes as opposed to providing actual, relevant information. As such, CPIL has done tremendous damage, reducing the very credibility of Public Interest Law, and putting their affiliate organizations at risk.

The Bar needs to take CPIL’s Comments and rhetoric with a large grain of salt when deciding how to modify the ADP. Further, the value and future of LAP should never be left in the self serving hands of CPIL.

Respectfully Submitted