BOARD HAS BEEN UNCOOPERATIVE, UNFAIR, DOCTOR'S ATTORNEY SAYS

Attorney Frank Spring says defending Dr. Joan Lewis' case before the state
Board of Medical Examiners has been a Mad Hatter's tea party in which
nothing is quite what it seems. Spring complains that the Attorney
General's Office, which is prosecuting the case, has withheld information,
refused to define the parameters of the case and unnecessarily run up Lewis
costs to defend herself. Six months after taking the case, he says, "we
don't know who the witnesses are, what the exhibits will be or the rules of
trial.

We're sort of nowhere." Spring, who is experienced in licensing
proceedings, attempted in December to lay the groundwork of his case.
During a meeting, he first asked the board to agree that New Mexico's Pain
Relief Act governed the case. The Attorney General's Office was unaware of
the law, he says. The meeting ended with no pretrial agreement. The
process, Spring explains, typically "requires them to put their cards on
the table so a defense can be mounted.

It's elementary." Unable to gather information he felt he needed, Spring
began submitting briefs. Each one hit the wall. He was unable to pin down a
more precise charge than "injudicious prescribing." Bennett Cohn,
prosecuting the case for the Attorney General's Office, wasn't inclined to
define issues and facts. After Spring asked the hearing officer to take
judicial notice of the Pain Relief Act, Cohn responded that Spring "says
he's got this law. . ." Hearing officer John Romine, a Farmington
orthopedist and board president, denied the request, saying he "cannot
determine what laws and rules apply to this case." In a letter to Spring,
Cohn wrote, "While I would rather abuse you than disabuse you, the best
understanding of this case is self-evident to anyone with a medical degree.

Old Chinese proverb says, 'Those who rely on Pain Relief Act end up with no
license.' Of course, since Dr. Lewis isn't Chinese, the proverb may not
apply to her." The comment raised eyebrows in the legal community. In an
amicus brief filed by patients, doctors and medical ethicists, Robert
Schwartz wrote, "It is inappropriate for an administrative prosecutor to
threaten a respondent with the loss of her license in return for raising a
legitimate statutory defense." Schwartz, a University of New Mexico law
school professor, said even his students were surprised by the
inappropriate tone of the letter. Kathryn Tucker, an attorney for the
Compassion in Dying Federation, says: "It's bizarre and inappropriate for
the prosecuting authority to indicate the law won't be complied with. It
puts the case apart from others." Romine responded to Spring's briefs with
a protective order, which means the board doesn't have to answer.
Information gathering for a licensing action is a little different than a
courtroom trial.

The Uniform Licensing Act provides for depositions and limited requests for
information. It neither allows nor forbids the requests Spring made,
according to Schwartz. It does permit depositions, the most costly form of
information gathering.

The board's primary expert witness, has canceled two depositions, saying he
was unprepared. Concerned about the rising cost of Lewis' defense, Spring
asked to limit expert testimony.

The board declined. "What worries me about the process is that it's so
expensive to respond to a notice of contemplated action," says Schwartz.
"Malpractice insurance doesn't cover this kind of proceeding. There is a
substantial financial incentive to reach a compromise. There's never a hearing.

There's no opportunity to review what's been done. "The board has suggested
it will call a dozen witnesses, which pushes the cost to $100,000.
Physicians aren't poor, but it's hard to take $100,000 out of your wallet
and put it on a lawyer's desk. It's tremendous power in the hands of the
board." In the amicus brief, he wrote: "There is simply no explanation for
the actions of the hearing officer and the administrative prosecutor,
except that both wish to impose such a substantial burden on Dr. Lewis that
she will be financially unable to conduct her defense.

If Dr. Lewis is bullied into accepting some kind of a settlement in which
she admits some wrongdoing in order to maintain her license and her ability
to earn a living, other physicians in the state will be frightened into
avoiding aggressive pain management." Spring says a typical case before
state licensing boards might involve an error in judgment or an allegation.
It's usually resolved with a fine, some community service or continuing
education. "There's not much in the way of safeguards" for professionals,
and the courts give boards wide latitude.

Most of the time, the client becomes stretched thin financially. "You make
the best deal you can and get out," Spring says. "The choice they would
like her to take," says Schwartz, "is to give up her practice and start
again as a junior doctor or never practice again." On March 16, Romine,
Spring and Cohn held a pretrial conference. What followed, according to the
meeting transcript, was nearly two hours of wrangling. Saying he didn't
have to disclose the details of his case, Cohn refused to define facts,
disclose witnesses or even agree that the Pain Relief Act applied to the
case. He agreed grudgingly to specify which charge related to which patient
- -- information the board normally provides to doctors when they're charged.
All Spring had, after three months, was the board's notice of contemplated
action, a four-page document with boiler-plate language listing six unnamed
patients, together with a list of medications and a time frame. Cohn came
up with three names a week later and never did provide the other three
names, Spring says. The two lawyers debated at length whether the Pain
Relief Act applies. Romine observed that it's "obvious to all of us that
the board thought that the practice didn't fall within the (board's)
guidelines." When Spring asked for more time to prepare, Romine accused him
of stalling so his client could keep practicing. "I think I have a right to
prepare my case," Spring said. "I think I have a right to know what the
witnesses arrayed against us will be." "I left thinking there's no way to
have an orderly hearing," Spring says. "I can't ask the other side any
questions." Cohn calls Springs complaints "ludicrous" and "foolishness."
"Most of the documentation comes from Dr. Lewis' own files," he says,
saying Spring "speaks with a forked tongue." "They are free to raise the
Pain Relief Act as a defense," he says. "It's not up to me to raise it. I'm
under no obligation to stipulate to his defense. If they choose to use it,
I can overcome that if I have certain kinds of evidence, which I have."
G.T.S. Khalsa, the board's in-house attorney, isn't prosecuting the case
because of a conflict, but he says that in normal board proceedings
"whatever evidence will be produced at the hearing, they will get. It's
usually patient records and prescriptions, which come from them anyway.

You can't surprise people at hearings, especially if a doctor's license is
on the line. If you do, you can't use it. It's not a game. It's serious
business." Spring has filed the first writ of mandamus of his 20-year
career, asking the state District Court to stay the hearing until the board
names an unbiased and independent hearing officer. "The hearing officer
has, in effect, allowed the administrative prosecutor to do as he pleases,"
the petition says. Says Cohn, "It's a figment of her imagination or her
council's to think the board is prejudiced against her." In the amicus
brief, Schwartz wrote: "The board has erected a series of barriers" to a
fair hearing.

It failed to inform Lewis of the Pain Relief Act notice, required by law.
It refused to provide Dr. Lewis with any specific notice of what she had
done wrong.

In fact, the board has refused ever since to provide the particulars of the
alleged transgressions, and the only hints she has received about what she
will be defending at the hearing have come from the board's denial that the
Pain Relief Act applies and the administrative prosecutor's smirk that the
case is 'self-evident to anyone with a medical degree.'" Schwartz says: "It
will require judicial intervention to get a fair hearing." He also takes
aim at Cohn's "exceptional zeal in pursuing this case" and questions
"whether his real interest is providing the respondent with a fair hearing
or winning at any cost."