Attorneys Carolyn B. Wescott and Thomas W. Keech of the Attorney General's
Office, representing Dr. S, did not file an answer to the complaint. Instead,
they filed a Motion to Dismiss, arguing that Dr. S. should not be required
to answer since he is absolutely immune from such lawsuits because of his
status as a peer reviewer.
Federal Judge Deborah K. Chasanow granted this motion and dismissed this suit without requiring Dr. S. to answer. The court ruled that peer reviewers have absolute immunity from civil rights lawsuits arising out of their performance of the peer review function. This immunity is based on Supreme Court case law that judges are absolutely immune from civil rights lawsuits when performing their judicial function. This judicial immunity has also been extended to prosecutors, as long as they are performing a prosecutorial function. A prosecutorial function includes making the decision whether or not to prosecute.
Agencies, including state medical boards, enjoy this same immunity when
performing judicial or prosecutorial functions. A previous federal case
held that the Maryland Board was performing a judicial function when disciplining
a physician. Consultants to prosecutors and judicial agencies, such as
detectives, coroners, pathologists and other experts, have been held to
share the immunity of the agency for which they are consulting. Federal
cases in Kansas and Florida have held specifically that medical and dental
consultants to medical and dental boards are protected by absolute immunity.
Judge Chasanow's decision thus appears to be in line with the great weight
of the case law on the subject.
A peer reviewer who has absolute immunity does not have to answer the allegations in court, even where the other party alleges malice, bad faith and reprehensible motives, as long as the allegations have to do with official peer review activities. The purpose of this absolute immunity is to permit peer reviewers to perform their crucial functions without the burden of having to defend their opinions in court, and to assure the public that their judgment will not be skewed by fear that an offended party might retaliate with a lawsuit. The court's decision in Dr. O. v Dr. S. should reinforce the Peer Review Committee in accomplishing its goals.
Senate Bill 495, Health Occupations Boards Sexual Misconduct, requires
the health occupation boards to adopt regulations prohibiting sexual misconduct
and providing discipline of a licensee or certificate holder found guilty
of sexual misconduct.
House Bill 578, Health Care Records and Writings, allows the admissibility of health care provider records and writings in civil actions in District and in some cases Circuit Court, without testimony from the health care provider given certain procedures are met. (This means doctor's records may be used in a court preceding without requiring the doctor's presence in court.)
House Bill 886, Medical Records Definition, alters the definition of a medical record to include a file from another health care provider that relates to the health care of a patient and that identifies the patient. (A record release would require a physician to provide copies of both his/her own records and any others in his/her possession from prior treating physicians.)
Senate Bill 632, Optometrist and Physicians Replacement Contact Lens Prescriptions, requires a person who dispenses contact lenses to dispense contact lenses only upon receipt of a written prescription. The law will authorize the Board of Examiners in Optometry and the BPQA to impose a fine or utilize enforcement proceedings on an optometrist or physician who knowingly dispenses contact lenses without a valid and unexpired replacement contact lens prescription.
Senate Bill 649, Disclosure of Medical Records Health Care Provider's Insurer or Legal Counsel, authorizes a health care provider to disclose a medical record without the authorization of a person in interest to any provider's insurer or legal counsel for the purpose of handling certain actions at law, including a civil or criminal action against the provider or where the provider may be the subject of a claim by the recipient. (This means that if you are being sued, you can share the patient's medical record with your lawyer and malpractice carrier without getting a release from the patient.)
Senate Bill 699 and House Bill 1162, Health Insurance Compensation of Health Care Practitioners Capitated Fees, provides that the carrier will pay the provider, within 45 days after an enrollee or covered person chooses or obtains health care from a health care practitioner, all accrued but unpaid capitated fees attributable to that enrollee or person that the health care practitioner would have received had the enrollee or person chosen the health care practitioner at the beginning of the enrollee's or covered person's contract year.
For a copy of any of this legislation information, contact Marie Savage, BPQA Legislative Liaison, at (410) 764-4782.
October 14, 1998 MedChi, Baltimore, MD December 7, 1998 Southern Area (TBA)
October 21, 1998 Mont. Co. Medical Society December 10, 1998 MedChi, Baltimore, MD November 12, 1998 MedChi, Baltimore, MD January 11, 1998 Western Maryland (TBA)
November 16, 1998 Peninsula General Hospital January 14, 1999 MedChi, Baltimore, MD
November 19, 1998 Mont. Co. Medical Society January 20, 1999 Mont. Co. Medical Society
If you would like to attend any of these orientation programs, please
notify BPQA with your first and second program preference. Also include
your name, address, and telephone number where you can be reached during
normal business hours. You will be notified of your registration and receive
directions and a course outline once you have been scheduled by BPQA for
this program. Physicians other than initially licenses physicians attending
this program may earn 3-hours Category I Continuing Medical Education Credits
toward licensure renewal. Fax your information to 410-358-2252
Sponsored by BPQA, Medical and Chirurgical Faculty of Maryland, and Medical Mutual Liability Insurance
Physicians calling can expect to be called back by the on call physician
within 15 minutes. Physicians who respond through the Emergency Medical
Resource Center will be covered by the Good Samaritan law. By alerting
physicians of the hot line resource, the BPQA is demonstrating its strong
support for physicians dealing with difficult problems in pain management.
$50.00 MedChi's Physician Rehabilitation and "Peer Review" Programs
$70.00 Health Care Access and Cost Commission (HCACC)
$24.00 Maryland General Fund of the State
$56.00 State Scholarship Fund
STEVEN SALZBERG, M.D., License# D31222, Specialty:
Psychiatry (Baltimore, MD) Suspension for nine (9) months; terms
and conditions; if reinstated after 9 months, probation for three (3) years
subject to terms and conditions. The Board found that the physician is
guilty of immoral and unprofessional conduct in the practice of psychiatry
and medicine and failed to meet appropriate standards of care because of
boundary crossing with a patient. Effective 4/1/98
RICHARD W BITTRICK, M.D., License# D18656, Specialty:
Family Practice (Lutherville, MD) Suspension for six (6) months
effective May 1, 1998; three (3) months stayed; probation for three (3)
years subject to terms and conditions. The Board found the physician guilty
of unprofessional conduct with a female patient. Effective 4/8/98
MELVIN J. DUCKETT, M.D., License# D32401, Specialty:
General Surgery (Sparks, MD) Reprimand; fine of $10,000. The physician
failed to cooperate with a Board investigation. Effective 4/22/98
PHILLIP WARREN KENNY, III, EMT-P, Certificate#
, Specialty: Emergency Medical Technician Paramedic (Woolford,
MD) Surrender of Certification. The health provider surrendered
his certification because of his inability to work competently due to illness.
KEVIN T. SWEENEY, P.A., Certificate #: C01844,
Specialty: Physician Assistant (Baltimore, MD) Surrender of Certification.
The physician assistant surrendered his certification in lieu of the Board
proceeding with an investigation based on information about the physician's
substance abuse issues resulting in termination of his employment and failure
to report to the Board arrests for DWI, conspiracy to traffic in drugs,
cultivating for sale and possession of drugs. Effective 4/22/98
BRADFORD A. ROSS, M.D., License #D26689, Specialty:
Emergency Medicine Surrender. The physician's inability to work
competently, due to illness, based on substance abuse issues. Effective
ERNEST A. LEIPOLD, MD, License #D06685, Specialty:
Family Practice (Grasonville, MD) Suspension; stayed based on compliance
with conditions including obtaining an Inactive license. Violation of the
Consent Order of August 11, 1992, with regard to self prescribing of drugs
and controlled dangerous substances. Effective 5/6/98
JAMES N. SIMON, D.O., License #H33201, Specialty:
Anesthesiology (Hockessin, DE) Nondisciplinary agreement to take
a course specified by the Board and to notify the Board after the physician
resumes active practice in Maryland. Resolution of an investigation involving
anesthesiology billing issues. Effective 5/6/98
KRISHAN M. MATHUR, M.D., License #D28352, Specialty:
Medical Oncology; Hematology; Internal Medicine (LaPlata, MD) The
physician is required to take a record keeping course and undergo a peer
review. The physician failed to meet standards of care in regard to medical
documentation in his records of four (4) patients. Effective 5/13/98
MICHAEL KALCK, CRT, Certificate #: ,
Specialty: Cardiac Rescue Technician (Baltimore, MD) Reprimand.
The Respondent was an ALS provider and who violated medical protocols for
a priority 2 patient. Effective 5/27/98
SCOTT PARROTT, EMT, Certificate #: ,
Specialty: Emergency Medical Technician Paramedic (Bel Air, MD) Reprimand.
The Respondent failed to carry out appropriate medical protocols promulgated
by MIEMSS and the Board which are incorporated by regulations governing
EMTP's. Effective 5/27/98
GEORGE H. WATHEN, M.D., License #D20629, Specialty:
Internal Medicine (Waldorf, MD) Reprimand; continued probation for
three (3) years from date of this order; terms and conditions. The Board
found that the physician failed to meet standards of care in his care of
nine (9) patients based on a peer review required by his probation with
the Board. Effective 5/27/98
GARY ZAMERSKI, EMT, Certificate #: ,
Specialty: Emergency Medical Technician Ambulance (Bel Air, MD) Fine
of $1,000. The Respondent rendered care beyond the scope of his MIEMSS
certification as a basic life supporter. Effective 5/27/98
BENJAMIN F. TRUMP, M.D., License #D14726, Specialty:
Anatomic and Clinical Pathology (Baltimore, MD) Surrender of License.
The physician surrendered his license to avoid further investigation and
possible issuance of charges for violation of an agreement with the Board;
and because of the physician's inability to work competently due to illness.
RICHARD W. HOLLAND, M.D., License #D48276, Specialty:
Family Practice (Silver Spring, MD) Reprimand; terms and conditions
to include compliance with Virginia orders of April 8, 1997 and February
5, 1998. The Board took reciprocal action based upon action by the Virginia
Board for misprescribing to a patient without adequate examination and
medical records including the documentation of a false diagnosis in the
patient's medical record. Effective 6/4/98
JOSEPH O. BOGGI, D.O., License #: H36807, Specialty:
Internal Medicine (Silver Spring, MD) Summary Suspension. Present
incompetence to practice medicine. Effective 6/24/98
HUMBERTO V. CERTEZA, M.D., License #: D04364,
Specialty: Family Practice; OB/GYN (Baltimore, MD) Surrender of
license while under charges based on standard of care and competence issues
and based on the physician's plan for retirement. Effective 6/24/98
JOHN L. HEDEMAN, M.D., License #: D05259, Specialty:
Internal Medicine (Annapolis, MD) Surrender. The surrender is in
lieu of further investigation by the Board with respect to compliance with
probationary conditions of the Board order of May 17, 1994, and the physician's
retirement from the practice of medicine. Effective 6/24/98
A far more common scenario than a request for your records from the
MVA is the request from a family member that you, the patient's doctor,
speak to the patient about their driving and encourage them to stop. What
is the doctor's role in this situation and what are the factors which are
most important to assess when dealing with elderly drivers?
The population of the United States is aging. In fact, the most rapidly increasing age group is individuals over the age of 85. Although the proportion of elderly drivers is increasing, overall, older drivers have fewer accidents than young men in their teens and twenties. But when the accident rate is expressed as crash rate to total miles driven per year, drivers over the age of 80 have the highest accident rates of all drivers on the road. Most older drivers voluntarily limit their driving to circumstances which involve less accident risk. For example, they give up driving at night, travel short distances to familiar destinations, avoid rush hour traffic and driving in bad weather, and stay off high speed roads. This voluntary risk reduction tends to counterbalance the elderly drivers' decline in driving skills brought on by reduced visual acuity, prolonged reaction time, and various physical impairments which affect mobility such as reduced cervical spine mobility or foot problems.
But, the judgement needed to reduce risk exposure may be lacking in patients with dementia. Drivers with dementia have a 2.5 times greater accident frequency than other elderly drivers. Typically, these drivers have more difficulty negotiating turns at intersections and may fail to yield the right of way. Because of altered judgment and impaired memory and insight, these drivers may not perceive that they are driving poorly and exhibit "optimism bias" in thinking that they are actually driving better than they did when they were younger. Because dementia may be subtle in its early stages, physicians need to specifically screen for memory and judgement impairment and caution patients with deficits that they need to curtail their driving or stop driving altogether. Just as with smoking cessation, a word from the doctor can have powerful impact on subsequent patient behavior.
In addition to screening for dementia there are multiple opportunities
for physicians to positively impact driving safety among seniors. The typical
older driver is a medication-taker. Avoidance of sedating medications,
particularly long acting benzodiazepines, tricyclic antidepressants, and
opiates in the elderly, may reduce accident risk. (Most driving problems
occur in the first weeks of treatment with these medications.) Patients
should be cautioned not to drink alcohol when being treated with psychoactive
drugs. The following practice guidelines developed by the Canadian Medical
Association are taken from the Physicians' Guide to Driver Examination:
Patients suffering a single transient ischemic attack should be advised not to drive for a month. If there are subsequent attacks, the patient should not drive at all. Patients with symptomatic coronary insufficiency on minimal exertion should not drive. Patients with active psychosis should not drive. Recurrent syncope precludes driving until a cause is found and successful treatment is instituted. Patients with narcolepsy or epilepsy should not drive until their condition has been successfully treated for at least three months. Patients with progressive disorders of coordination and muscle control (such as Parkinson's Disease, brain tumors, muscular dystrophy, etc.) should be reevaluated frequently to assess the need for restrictions on driving.
In Maryland, physicians who have questions about drivers' safety should contact the MVA's Medical Advisory Board at 410-787-7957.
There is ongoing research to develop a simple reliable test to assess driving skills short of requiring a road test. One such test is called the "Useful Field of View" developed by Karlene Ball at the University of Birmingham. A computer is used to test the driver's ability to identify a symbol in a specified area of the screen quickly followed by multiple other symbols flashing outside the target area. The test measures the ability to pay attention and eliminate unwanted information and results in a score which reflects the ability to process visual information. As the score on this test falls, the risk of being involved in a driving accident increases. Perhaps this type of screening will be used in Maryland someday. Traffic safety engineers will no doubt be working to reduce ambiguous traffic situations by the increased use of turning lanes, four-way stops, and fewer intersections requiring that drivers yield the right of way. But in the meantime, physicians and family members of elderly drivers will play a key role in deciding who is safe to drive on the roads in Maryland.
This article is for informational
purposes only and does not reflect the position or recommendations of BPQA.
Above mentioned publication available upon request.
* Has permanently lost the use of a leg or an arm.
* Is so severely and permanently disabled as to be unable to move without
a wheelchair, crutches.
* Suffers from lung disease such that his or her forced expiratory volume,
one second, when measured by spirometry, is less than one liter.
* Has a permanent impairment of both eyes so that the central visual
acuity is 20/200 or less in the better eye, with corrective glasses;
* Has a permanent impairment of both eyes so that there is a field defect
in which the peripheral field has contracted to such an extent that the
widest diameter of visual field subtends an angular distance no greater
than 20 degrees in the better eye.
* Has a physical disability, which is permanent, which substantially
impairs the person's mobility, and which is so severe the person would
endure a hardship or be subject to a risk of injury if the privileges accorded
a person for whom a vehicle is specially registered were denied.
The Board of Physician Quality Assurance has held that misrepresentation
of the facts in any document related to the practice of medicine is grounds
for discipline under the Medical Practice Act.
For further information regarding Individuals
with Disability Parking Placards and Plates, call 1-800-950-IMVA (1-800