1
1 CODE: 4185
CECILIA A. VOHL, CCR #246
2 Peggy Hoogs & Associates
345
Marsh Avenue
3 Reno, Nevada
COURT REPORTER
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11 NEVADA STATE BOARD OF MEDICAL
EXAMINERS
12 QUARTERLY BOARD MEETING
13 TRANSCRIPT OF PROCEEDINGS
14 FRIDAY, SEPTEMBER 10,
2004
15 8:30 A.M. to 2:25 P.M.
16 RENO, NEVADA
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25 REPORTED BY: CECILIA VOHL, NV CCR #246, CA
CCR #5195, RPR, CRR
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 A P P E A R A N C E S
2
3
MEMBERS OF
THE BOARD:
4
STEPHEN K.
MONTOYA, M.D., PRESIDENT
5 JOEL N. LUBRITZ, M.D., VICE
PRESIDENT
6 SOHAIL U. ANJUM, M.D., BOARD
MEMBER
JAVAID ANWAR, M.D., BOARD
MEMBER
7 CHARLES W. HELD, M.D., BOARD
MEMBER
8 DONALD H. BAEPLER, Ph.D., D.Sc.,
SECRETARY-TREASURER,
CHAIRPERSON and
PUBLIC MEMBER
9 JEAN STOESS, PUBLIC
MEMBER
MARLENE J.
KIRCH, PUBLIC MEMBER
10
CHARLOTTE M.
BIBLE, J.D.,
11 CHIEF DEPUTY ATTORNEY
GENERAL
12 STEPHEN D. QUINN, J.D., GENERAL
COUNSEL
13 EDWARD COUSINEAU, J.D., DEPUTY
GENERAL COUNSEL
14 DRENNAN A. CLARK, J.D., SPECIAL
COUNSEL
15 LAURIE MUNSON, EXECUTIVE
SECRETARY
16 LYNNETTE KROTKE, CHIEF OF
LICENSING
17 PRESENT IN LAS VEGAS:
DON HAVINS, M.D., CLARK COUNTY MEDICAL SOCIETY
18 TRENT HIETT, CLARK COUNTY MEDICAL
SOCIETY
19 -oOo-
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24
25
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 RENO, NEVADA, FRIDAY, SEPTEMBER 10,
2004, 8:30 A.M.
2 -oOo-
3
4 PRESIDENT MONTOYA: Call the meeting to order. And
5 some new faces here with us. Make sure everybody knows who
6 everybody is.
7 Hi.
Can you hear me down there in Las Vegas?
8 MR. CLARK: Come in, Las Vegas.
9 PRESIDENT MONTOYA: It's on?
All right. So,
10 Laurie -- where is Laurie?
11 MS. KIRCH: Laurie is working on that.
12 PRESIDENT MONTOYA: We're going to introduce our new
13 members to get ourselves started, and the
staff.
14 First of all, Dr. Held, if you'd
please tell us
15 something about yourself, where you practice,
what kind of guy
16 you are.
17 MR. CLARK: Great guy.
18 DR. HELD: I've been in Gardnerville for two years
19 after 22 years in Reno. I started a pulmonary group here in
20 Reno in 1981 and sort of got tired of the
rat race and decided
21 I was going to go off on my own.
22 I do pulmonary medicine. I do pulmonary medicine,
23 and about 40 percent of what I do is sleep
disorders medicine,
24 as well.
And I sort of travel around. I go
to Yerington,
25 Fallon, and South Lake Tahoe. Something different every day.
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1 PRESIDENT MONTOYA: Any particular interesting facts
2 we'd like to know about you? Former championship skier?
3 DR. HELD: No. I
do ski. I'm a big into helicopter
4 skiing.
Go almost every year off of British Columbia.
5 PRESIDENT MONTOYA: Oh, my God.
6 DR. HELD: Have five kids, plus -- including two
7 relatively young, nine and twelve. And it's an adventure.
8 PRESIDENT MONTOYA: Welcome to the Board, sir.
9 DR. LUBRITZ: He's going to be working for a long
10
time.
11 PRESIDENT MONTOYA: You're going to be working for a
12 while.
13 Ms. Stoess, welcome to the
Board. There's one
14 interesting fact I would like everyone to
know about
15 Ms. Stoess is that she volunteered for the
job, and that lends
16 something in there. I think that takes a lot of guts to do
17 this, especially with the press we've been
getting. Would you
18 please tell us about yourself.
19 MS. STOESS: Well, I wondered why I got the letter
20 from the governor's office that kept saying
thank you for
21 volunteering.
22 I did read about the recent series in the
23 Gazette-Journal. And like most Nevadans, I didn't know
24 anything about the Board. I was surprised to find out that
25 there are public members. So I sent a letter to the governor
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1 offering to serve, should there be a
vacancy. And here I am.
2 I have background in public
policy. I've served on
3 the Washoe County Board of
Commissioners. I was the first
4 Washoe County commissioner woman. And I've been on the
5 Regional Transportation Commission, Airport
Authority, Tahoe
6 Regional Planning Agency, and that kind of
thing.
7 And I guess the most interesting
thing right now for
8 me is I have a book coming out in February
that I co-authored
9 with Geoff Sher in Las Vegas. And if you know Geoff, you'll
10 know that the book is only about one
subject: It's about
11 in-vitro fertilization, and it's about
reproductive
12 techniques.
13 PRESIDENT MONTOYA: Marlene Kirch -- which we know
14 Laurie.
Go ahead. You don't have to go
like new people.
15 MS. KIRCH: I'm one of the public members. I am a
16 trust officer with Wells Fargo Bank, and
I've been on the
17 Board for three years.
18 PRESIDENT MONTOYA: Dr. Anwar?
19 DR. ANWAR: That's it?
20 MS. KIRCH: That's it.
21 DR. ANWAR: I'm Javaid Anwar. I'm a practicing
22 internist.
Very quickly, I practice internal medicine with a
23 group, with Internal Medicine
Associates. There are 20 in our
24 group, and we also have a consulting
operation called Quality
25 Care Consultants, myself and Dr. Kahn. We've been doing that
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1 work for about 15 years, with quality
assurance utilization
2 management, case management, risk
management. And here I am.
3 PRESIDENT MONTOYA: Mr. Quinn, our attorney, please
4 say what your deal is.
5 MR. QUINN: I'm Stephen Quinn, general counsel for
6 the Board.
I've been general counsel for the Board for just
7
about a year. Previous to that, I
was deputy attorney general
8 in handling complex litigation in the
Attorney General's
9 Office for about seven years. Did some insurance defense.
10 Been practicing law for 30 years, mostly in
litigation.
11 Started out as assistant U.S. attorney and
was in private
12 practice for several years.
13 I'm pleased to be here, and I'm
representing the
14 Board here as general counsel.
15 PRESIDENT MONTOYA: Thank you.
I'm Steve Montoya,
16 and I'm the current president of the
Board. This is
17 essentially my first meeting. I'm replacing Dr. Cheryl Hug.
18 I'm a practicing gynecologist both in Las
Vegas and Nevada.
19 Next to me is Ms. Bible.
20 MS. BIBLE: Thank you.
I'm Charlotte Bible. I'm the
21 chief deputy attorney general. I serve as commission counsel
22 to the Board, conflict counsel, and help the
Board whenever
23 they need assistance, in addition to Steve
and Ed.
24 I've been with the Attorney
General's Office for 13
25 years.
I've practiced law for 18 years, and I've been with
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1
the Board for four years.
2 THE COURT: Dr. Lubritz?
3 DR. LUBRITZ: Joe Lubritz from Las Vegas. I'm an
4 ear, nose, and throat physician. I've practiced in Las Vegas
5 for 30 years. I've been with the Board for seven years and
6 just recently elected vice president.
7 MR. COUSINEAU: Good morning.
My name is Ed
8 Cousineau.
I've been with the Board about five months now as
9 deputy general counsel. Precedent to that, I was a deputy
10 attorney general with the Medicaid Fraud
Control Unit in
11 Carson City and licensed for going on eight
years now.
12 PRESIDENT MONTOYA: Dr. Baepler?
13 DR. BAEPLER: Don Baepler.
I just retired July 1
14 from 36 years of service in the University
of Nevada system,
15 mostly at UNLV. Spent the entire 36 years in administration.
16 The most notable achievement as an
administrator was
17 hiring Jerry Tarkanian as basketball
coach. I'm up at 6:00
18 every morning, including Saturdays and
Sundays. I have a
19 beautiful DNA lab and specialize in the
genetic differences
20 between Asian populations and Central and
South America, so
21 I'm finally doing what I was trained to do
45 years ago.
22 PRESIDENT MONTOYA: He's a public member.
23 DR. BAEPLER: Public member, yes.
24 PRESIDENT MONTOYA: Now we come to Dr. Anjum.
25 DR. ANJUM: Sohail Anjum, physician from Las Vegas,
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1 Nevada.
I've been practicing in an office for 26 years. I've
2
been on the Board for three years and happy to be here. Thank
3 you.
4 PRESIDENT MONTOYA: Mr. Clark?
5 MR. CLARK: Tony Clark.
I'm the executive secretary
6 and special counsel to the Board. I've been with the Board a
7 little over a year, about a year and three
months. Prior to
8 that, I spent two and a half years with the
Attorney General's
9 Office as the solicitor general of Nevada,
and prior to that
10 for 14 years, I was the acting general
commander of the Nevada
11 National Guard. And before that, I was in private practice in
12 Reno as a litigation attorney and defense
lawyer for 21 years
13 with Clark, Guild and now Judge David Hagen.
14 PRESIDENT MONTOYA: Thank you.
Over in the corner,
15 we have Mr. Cooper. And would you introduce your staff.
16 MR. COOPER: Good morning.
We've been fortunate
17 enough to add some new investigators. One I introduced in the
18 June IC, and we've got two more on board now
in full training.
19 First is Heather Higgins.
20 Heather, get up and introduce
yourself.
21 MS. HIGGINS: I'm Heather Higgins. I've been with
22 the Board since -- I've been an investigator
since July 1.
23 Previous to that, I was a claims adjuster
with Progressive
24 Insurance.
Went to UC Davis, majored in communications and in
25 Spanish and been in Reno for a little over a
year, and I look
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1 forward to working with all of you.
2 MR. COOPER: Heather brings to us our Spanish
3
capability, which we haven't had before, except for Dr.
4 Montoya, but we couldn't use Dr. Montoya, to
call on him to
5 act as translator if we needed, so this is a
good thing on our
6 part.
7
And secondly, we have Terry Ward.
8 MS. WARD: I, like Heather, have been with the Board
9 since July 1st. I have medical history, law enforcement and
10 juvenile corrections. I got my degree from the University of
11 Phoenix in human resources management.
12 PRESIDENT MONTOYA: Thank you.
Did you introduce
13 everybody?
14 MR. COOPER: Oh, I'm sorry. And this is the lead
15 investigator, Pamela Casteagnola. She's been with us since 15
16 December 2001.
17 PRESIDENT MONTOYA: And Doug is our investigator --
18 he's the chief of Investigations.
19 MR. COOPER: I'm chief of Investigations, correct.
20 And I've been here since July 1st, 2001.
21 PRESIDENT MONTOYA: Okay.
Laurie, you came back.
22 MS. MUNSON: I'm Laurie Munson. I have been with the
23 Board since November. I'm the deputy executive secretary. I
24 hate to admit it, but I'm the information
systems
25 administrator. I'm saying that only because we're having
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1 technical difficulties again.
2 And I'm chief of
Administration. Formerly, I was
3 with the Attorney General's Office for six
and a half years.
4 I worked in the litigation and civil
divisions there. And
5 prior to that, I was in private practice as
a paralegal and
6 legal secretary for about 11 years.
7 PRESIDENT MONTOYA: Anybody who I missed that's
8 behind me who is sitting in this room?
9 Oh, there's Mr. Matheis, Clark
County -- Nevada state
10 medical association.
11 MR. KESSINGER: Steve Kessinger, Respiratory Advisory
12 Committee.
13 PRESIDENT MONTOYA: Thank you.
And we're going to
14 have auditors that are going to be
introduced in just a
15 minute, thank you very much.
16 We'll go ahead and get
started. The approval of the
17 minutes of the emergency telephone conference,
in the open
18 session, we tabled it for the June 4th
meeting.
19 MS. KIRCH: Move for approval.
20 DR. ANWAR: Second.
21 PRESIDENT MONTOYA: Moved and seconded. Any -- all
22 in favor?
23 THE BOARD: Aye.
24 PRESIDENT MONTOYA: All opposed?
25 DR. STOESS: I will abstain since I wasn't here.
PEGGY HOOGS & ASSOCIATES
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1 PRESIDENT MONTOYA: Dr. Stoess will abstain. Chair
2 votes in favor, so it passes.
3 Let's see. Open session.
We took care of that.
4 And now this is an audit by Solari
& Sturmer. With
5 us we have Elisa Lasa and Mary Martini, and
then -- from our
6 staff, who is going to present the audit,
which you should
7 have in front of you. It's the green book.
8 And any questions? Do you have any comments to make
9 about it in our meeting here?
10
We have the audit in front of us.
Does anybody have
11 any comments on it?
12 DR. BAEPLER: I had the opportunity to read the
13 document last evening, and I realize the
rest of you just got
14 it right now, and I got it last evening as
secretary-treasurer
15 so that I could review it.
16 And the audit is a good audit. It has no surprises
17 in it, and it points out that our revenues
are not quite
18 keeping up with expenses, so to speak. We are using up some
19 of our reserves, which was our intent when
we lowered the
20 licensing fee from $600 to $400. And I have to re-examine
21 that for action by the Board in December to
see if we need to
22 increase it.
23 We'll have some various projections
to show you, but
24 it's a good audit, and I feel that our reserves
are adequate
25 for an operation of this size.
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1 And I've turned out to be really
pleased with the
2 audit.
3 PRESIDENT MONTOYA: Any questions for the auditors?
4 The recommendations that they made
to us will be
5 implemented sometime in the next few
months. There is nothing
6 shocking, nothing hard to implement.
7 We're looking forward to working
with them. And
8 thank you very much for your efforts and
wonderful
9 suggestions.
10 MS. LASA: Thank you.
11 MS. MARTINI: Thank you.
12 PRESIDENT MONTOYA: Okay.
Thank you very much. Glad
13 to approve the audit.
14 DR. BAEPLER: So moved.
15 DR. ANJUM: Seconded.
16 PRESIDENT MONTOYA: So moved and seconded the
17 approved audit. Any objections? Any comments?
18 The Board votes in favor. It's passed.
19 The public service announcement --
20 DR. LUBRITZ: One moment.
21 PRESIDENT MONTOYA: We'll go back one moment to
22 the --
23 DR. LUBRITZ: To the minutes. I thought you were
24 talking about the emergency session, but we
had the other
25 minutes.
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1 PRESIDENT MONTOYA: I was including both.
2 DR. LUBRITZ: I'm sorry, can we go back?
3 PRESIDENT MONTOYA: We can go back, if you wish.
4 DR. LUBRITZ: And I made a note that we need to add
5 to the minutes, who's licensed -- who
received licenses on
6 those.
Unless I read it incorrectly, it shows where we all
7 voted -- let me find specifically where that
is, and I think
8 it was pretty much on all of them, unless I
read it wrong. I
9 believe, if we go to the minutes of June 4,
5 -- I'll just
10 turn to the first one, Herschel
Martin-Schwartz. It says --
11 PRESIDENT MONTOYA: Are you looking at the open
12 session or the closed session?
13 DR. LUBRITZ: This is an open -- beg your pardon,
14 closed session. But it doesn't show where we went to open
15 session.
And then we gave him his license, and that's the
16 same for all of these, unless I'm just
missing something.
17 MS. MUNSON: Dr. Lubritz, what's been done in the
18 past, in the closed session, it shows where
you go back to
19 open session, because -- it's not actually
voted on in closed
20 session, so that's why it's not reflected in
the closed
21 session.
So you have to go back to the open session where the
22 Board actually made the motion and voted on
it.
23 DR. BAEPLER: You put all the open session in a
24 separate section, don't you?
25 MS. MUNSON: Correct.
Everything that happens in the
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1 open is in the open minutes; everything that
happens in the
2 closed is solely in the closed minutes,
because the closed
3 minutes are not distributed to the public,
so it remains
4 separate.
5 DR. LUBRITZ: Okay.
So we would have to reference,
6 go from closed and then go find the open
session, and then
7 that's where it passes.
8 PRESIDENT MONTOYA: Do you understand? That's where
9 the votes actually take place.
10 DR. LUBRITZ: Because I looked.
11 PRESIDENT MONTOYA: He didn't get his license. I see
12 it here.
13 MR. CLARK: Dr. Lubritz, if you look at page 13 of
14 32, and it does say "closed
session," but referring to
15 Dr. Herschel Martin-Schwartz, it says,
"Dr. Lubritz moved that
16 the Board approve Dr. Herschel
Martin-Schwartz, M.D.'s
17 application for licensure. Dr. Baepler seconded the motion.
18 It was passed unanimously with the Chair
voting in favor."
19 DR. LUBRITZ: Okay.
So all of this first part is
20 just the closed session. Got it.
Okay. Because I found the
21 same on all these, and now I'm understanding
why, because it
22 was all closed session. Got it.
Thank you.
23 PRESIDENT MONTOYA: All right.
Moving on. We got
24 that cleared up. Let's go to the Nevada Broadcast
25 Association.
Tony, Marlene, and I served on this.
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1 Marlene, do you have anything new
to say?
2 MS. KIRCH: No.
3 PRESIDENT MONTOYA: The biggest part of this is that
4 we're going to get some -- some of it is
going to include some
5 of the members of the current board to let
people know that
6 we're here, we are there to help them, let
the doctors know
7 we're also here to not necessarily work
against them, because
8 we're doctors also, and that's by letting
them also be on this
9 message.
These are really going to be, if I'm correct,
10 filming sometime over this next quarter,
from what I
11 understand.
12 MR. CLARK: Yes, Doctor.
If I might give you an
13 overview.
Your contract was approved by the State Board of
14 Examiners, so we have a one-year contract
with the Nevada
15 Broadcasters Association.
16 I spoke with Nevada Broadcasters
within the last
17 week.
They have asked the three TV stations in Las Vegas for
18 studio time so they can film and do the
television commercials
19 that we're going to do, one of which will
have, hopefully, all
20 of the Las Vegas board members there present
to participate in
21 it, and they should have the new radio ads
on within the next
22 two weeks.
And the television ads should be on before the
23 middle of October.
24 Interestingly enough, I got a
telephone call
25 yesterday from a lady at Lake Tahoe who
identified herself as
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1 the wife of a doctor who saw our television
ad that had the
2 African-American doctor in it, the old
television ad, and she
3 was very incensed about it, said it was a racial
slur and we
4 shouldn't be using that kind of advertising.
5 And I assured her that we were in
the process of
6 upgrading our advertising, and we would be
giving a positive
7 message about the Board and the medical
profession in the
8 State of Nevada, and she was pleased with
that.
9 PRESIDENT MONTOYA: Thank you.
Any questions?
10 One of the recommendations that came
out of the
11 federal audit was that we do something to
get better -- we
12 hire a PR man. This is our attempt to take care of our PR,
13 public relations, effort. And -- one of our attempts. And
14
through the other attempts, Tony getting out to some of the
15 places.
And I'm going to the Clark County meetings and some
16 of the Nevada State Medical meetings to
represent the Board.
17 So we're trying to take care of our public
relations
18 responsibility in that manner.
19 All right. Going on to Item Number 7, "Request for
20 Approval to Practice Outside the University
of the Nevada
21
School of Medicine's Family Practice Residency Program," we've
22 filed this appeal before with other people.
23 Basically, we've let -- in my
experience in the past
24 three years on the Board, we've let people
do it with their
25 insurance approval, and they can only
practice in California
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1 where, after two years, they can get a full
license. They're
2 not eligible to practice and admitted here
in Nevada yet.
3 Most of these people go practice in some of
the ERs or urgent
4 care centers out in nearby California.
5 So with that said, shall we --
6 MR. CLARK: Doctor, we have this doctor and his
7 residency program director scheduled for 10
o'clock to make a
8 personal appearance and request to the
Board.
9 We got a little ahead of ourselves
on this, so if we
10 could put this matter out -- off until they
arrive at 10:00,
11 that would be good.
12 DR. BAEPLER: Could I make one comment here? The
13 moonlighting policy that the Board adopted
was at the request
14 of the medical school, that they did not
want their residents
15 moonlighting. And it reinforced their administrative policy
16 to have the Board simply declare that it was
not possible,
17 under our policy. So we really adopted that as the request of
18 the medical school.
19 Now there seems to be a change in
attitude. Lately,
20 we've been getting these classified
exceptions to the medical
21 school's policy; in effect, moonlighting.
22 I wonder if the medical school ought
to re-examine
23 their policy. I'm sure it's not a great issue to this Board
24 as to whether they moonlight. It's an educational decision.
25 It ought to emanate from the medical school
itself.
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1 PRESIDENT MONTOYA: Let's not mistake that everybody
2 that asks for this privilege has come from
the family practice
3 program in Reno.
4 DR. BAEPLER: There was a psychiatrist one too.
5 PRESIDENT MONTOYA: Yes. I
believe that's based in
6 Reno.
7 DR. BAEPLER: But the point is, it's fundamentally
8 their policy that we reinforce by making it
our policy, but I
9 hate to see a steady stream of people asking
for our agenda
10 time, asking for exceptions to what is
actually an
11 institutional policy. And maybe the school ought to
12 re-examine their policy, and we can
accommodate them.
13
DR. ANJUM: It ought to be a
uniform policy all over,
14 whether it's Reno or Las Vegas.
15 PRESIDENT MONTOYA: So we'll wait until the program
16 secretary, at least, comes here so we could
address some of
17 these concerns to her.
18 DR. BAEPLER: This is really rather recent, but
19 there's a steady progression.
20 DR. ANJUM: We should communicate with the program
21 director or the education program director,
whosoever it is,
22 that -- I think in the last four or five
meetings, I think we
23 have seen people coming for these kinds of
requests to make a
24
special permission for those people, so maybe they should
25 reconsider their rule that after two years
of residency, they
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1 can moonlight. And that should be a uniform policy for all
2 the residents rather than just for
themselves.
3 DR. BAEPLER: The last exception that they asked for,
4 the faculty member representing the student
pointed out what a
5 great educational opportunity it was to
moonlight. If that's
6 the case, then why should they have a policy
against
7
moonlighting?
8 DR. ANJUM: Why don't the other people do that?
9 DR. BAEPLER: Yeah, basically, that's exactly it.
10 PRESIDENT MONTOYA: Okay.
We'll take this up a
11
little bit when Dr. Rand comes in, the program secretary.
12 So I assume since we are ahead of
ourselves at 10:15,
13 we can't do -- discuss the Giarrusso matter
either.
14 MR. QUINN: We may be able to if they're here. I can
15 go see if they're ready.
16 MS. BIBLE: It's actually on the agenda for 10:15.
17 PRESIDENT MONTOYA: So we're going to hang onto that.
18
Move on to 9. We could do
that: "Discussion, Consideration
19 and Approval of Settlement and Written
Settlement Agreement in
20 Nevada State Board of Medical Examiners
versus Richard L.
21 Wagner, M.D."
22 Dr. Baepler brought the
charges. You can present the
23 matter, if you will.
24 We all have remember, Mr. Baepler
read his memorandum
25 of the complaint. All right.
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1 DR. BAEPLER: I believe that the settlement reaches
2 the objectives that the IC committee had in
mind. Without
3 reviewing the details of the case, it --
settlement as I
4 understand it, would be that Dr. Wagner
would reimburse the
5 Board for $1,089, which were the expenses
that we've incurred
6 in carrying the case this far and
investigating it, and that
7 he would accept a disciplinary action of a
public reprimand,
8 which, I think, is what the IC committee had
in mind to begin
9 with.
10 So this seems to me to be a case
where the objectives
11 of the IC committee have been met, and to
settle it saves a
12 great amount of expense that would be involved
with public
13 hearings and that type of thing.
14 My guess is that if you carried it
through to its
15 total conclusion, this is probably the
penalty that the Board
16 would impose anyway.
17 PRESIDENT MONTOYA: Of note, I was on the IC
18 initially when this was submitted. And my biggest heartache
19 about this whole thing was when he altered
the medical records
20
where the patient had one set of medical records that said the
21 complications of the case were listed there,
the doctor -- or
22 the ones in his possession, once our
investigators got a hold
23 of his medical records, had the same
informed consent on it,
24 except the doctor had underlined all medical
complications.
25 DR. BAEPLER: The informed consent form listed a
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 whole series of possible things that could
go wrong, like most
2 informed consent things do. And the one thing that went wrong
3 was underlined and a note added that this
particular item was
4 discussed in detail with the patient, which
was -- leads one
5 to believe that he added this after the
event, but only to his
6 office copy.
The patient's copy, of course, did not have
7 that.
8 And he insists that it happened
while talking to the
9 patient and that the notes simply were not
made, which leads
10 me to believe that I'd like to get his point
spreads on the
11 football games. The man must be clairvoyant. Nonetheless,
12 it's arguable, you see.
13 And I think the disciplinary action
involving
14 recordkeeping, which is a reportable
disciplinary action for
15 the national register, and so on and so
forth, is probably
16 where we'd end up, is my guess.
17 PRESIDENT MONTOYA: Anybody want to go into a closed
18 session?
Everybody satisfied with the results here?
19 DR. LUBRITZ: Just as a -- under the Roman numeral
20 III, "Discussion," the peer review
of whoever that was who
21 said that -- and I agree with what's written
here -- that
22 because a CT is negative --
23 DR. HAVINS: Excuse me, Dr. Lubritz, can you speak
24 into your microphone?
25 DR. LUBRITZ: I can, but it's going to reverberate.
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 PRESIDENT MONTOYA: That's okay.
2 DR. LUBRITZ: What would you like? Shall -- is that
3 better?
Hello?
4 PRESIDENT MONTOYA: Can you hear him now?
5 MR. HAVINS: That's great.
6 DR. LUBRITZ: Under the "unnecessary surgery," I
7 disagree with the peer review. I agree with what was decided,
8 and that is that because a CT scan is
negative, that means
9 that you don't need to do a biopsy. That's just not correct.
10 You go by your clinical impression, one of
which -- or some of
11 which is gained by a CT scan.
12 But if I feel a mass, and I don't
-- and it's not
13 picked up on CT scan, I'm still -- if I feel
it's necessary,
14 I'm going to biopsy that mass. So --
15 DR. BAEPLER: But the CT scan doesn't tell you the
16
cytology that you need to -- you know, the cellular cytology.
17 DR. LUBRITZ: I just wanted to make that -- so if
18 this comes up again, that it's not that the
surgical procedure
19 was wrong, but there were other matters in
the case that
20 necessitated a sanction.
21 DR. BAEPLER: And I would note that the IC committee
22 made that same point.
23 DR. LUBRITZ: Thank you.
24 PRESIDENT MONTOYA: No motion for a closed session?
25 We're still in open session. I'll take a vote if
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1 we -- somebody's pleasure about this?
2 MS. KIRCH: I would move to approve the settlement
3 agreement.
4 DR. ANJUM: Seconded.
5 PRESIDENT MONTOYA: So moved and seconded.
6 All in favor?
7 THE BOARD: Aye.
8 PRESIDENT MONTOYA: Any opposed?
9 Chair is in favor. It passes.
10 All right. That was Number 9. Go down to Number 10,
11 Legislative Initiatives, the recommendations
--
12 DR. BAEPLER: Mr. President?
13 PRESIDENT MONTOYA: Yes?
14 DR. BAEPLER: Can I make a comment on this generally?
15 PRESIDENT MONTOYA: Sure.
16 DR. BAEPLER: This represents a large number of
17
changes to be presented to the Legislature. I'm not sure they
18 can be wrapped up into a unanimous bill or
it will require,
19 for example, 15 different bills to introduce
those measures,
20 plus another several to clean up language
that we feel should
21 be cleaned up. And it presents kind of an awkward challenge,
22 first of all, for the president of the Board
or any other
23 board member that might have to represent
the Board at the
24 Legislature.
I can see endless hearings.
25 Recognizing the fact that every
time you open up a
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1 bill, you also have the liability of other
people showing up
2 and introducing amendments of a nature that
you've never even
3 anticipated, and you walk out of there with
something totally
4 surprising to you that you did not
expect. I think the best
5 legislative session is when you introduce no
bills at all.
6 And some of these clearly are not
necessary. I
7 realize why it was put in there. The authority to raise our
8 ceiling on fees to $1,000 -- we're a long
ways from that. We
9 used to have our fees for licensing at $600,
and our reserves
10 were getting too big, so two years ago, we
reduced our
11 biennial fees to $400 to use up some of the
reserves. $400,
12 which is only $200 a year for a medical
license, is not that
13 much.
14 We're going to have to re-analyze
that to see if we
15 should raise it perhaps to 500 or go back to
600. But the
16 legislative cap for us now is, we can go up
to 800. But we're
17
not going to approach 800 this biennium or next, and there
18 doesn't seem to be any reason to ask for a
ceiling raise to a
19 thousand dollars when we're currently at 400
and would expect
20 to go to no more than five or six hundred
dollars in the next
21 biennium, in any event. So why bring up the whole question of
22 fee ceilings at the Legislature when it's
totally meaningless
23 to any action we might take?
24 PRESIDENT MONTOYA: So you would not be in favor of
25 Number 3, then?
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1 DR. BAEPLER: I would not.
There are others that are
2 argumentative and other groups who have
already come up in
3 opposition to it.
4 PRESIDENT MONTOYA: Tell you what, let me take this
5 in order so we don't get scattered.
6 DR. BAEPLER: What I was wondering -- because of the
7 fact that each one of these could take
extensive discussions
8
and these would have to get to the bill-drafter pretty quick,
9 unless you feel we have time to do it, I was
thinking that the
10 executive committee could go through this
and select the ones
11 that we want to go through, any one that you
have input into
12 the executive committee, and having selected
a handful of
13 these, we can get them to the bill-drafter,
present our
14 selections to you at the December meeting
for full approval
15 where you can add any of these that you feel
strongly about,
16 and we'll still have time to get the bills
drafted.
17 PRESIDENT MONTOYA: That would make it even closer to
18 the deadline. What I'd like to do at this point is see if
19 anybody has any hard-and-fast objections to
any of these that
20 maybe the executive committee could massage
between now and
21 December, or change or delete.
22 Is there something in here that
anybody has any
23 objections to? I don't want to be --
24 DR. ANWAR: There may be --
25 PRESIDENT MONTOYA: Dr. Anwar.
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1 DR. ANWAR: There may be matters of discussion in
2 several of these. And just for instance, Number 3, as to why
3 is there a need for drug testing for all
applicants?
4 PRESIDENT MONTOYA: Excellent.
This is coming out.
5 This is what I want. Does anybody have a real hard problem --
6 I'm sorry, I don't mean to ignore you, but
I'm going to take
7 this in order; otherwise, what's going to
happen is we're
8 going to be jumping back and forth. And with that, I'll get
9 right back with you, Dr. Anwar.
10 DR. BAEPLER: Number 1 was due to a legislative
11 change in the last session. We used to always be able to
12 consider felonies not related to the
practice of medicine as
13 grounds for disciplinary action. People that introduced that
14 bill did not intend it to come out the way
it did.
15 PRESIDENT MONTOYA: It was a mistake.
16 DR. BAEPLER: It was a mistake. And I think the
17 Legislature will correct it, but this is the
kind of thing we
18 should introduce to make sure it gets acted
on and we go back
19
to our original thing.
20 PRESIDENT MONTOYA: Is there any problem with that
21 with anybody?
22 THE BOARD: No.
23 PRESIDENT MONTOYA: Number 2, criminal investigations
24 of applicants through FBI.
25 DR. BAEPLER: Could I just comment on that? I'd like
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1 to lump 2 and 3 together.
2 PRESIDENT MONTOYA: I wouldn't.
3 DR. BAEPLER: It's like two of them, but the argument
4 is the same for 3. I checked with Larry Lessly on this, who
5 has had a long institutional memory. Never, never have we
6 admitted a doctor to the State of Nevada,
granted him a
7 license and later regretted it because we
discovered that
8 there was a criminal record. It has never happened.
9 It's demeaning to the profession,
in my opinion, to
10 get prospective doctors fingerprinted. I mean, these people
11
are screened and screened and screened through their whole
12 education process and hospital privileges
and everything like
13 that.
And we have to create an environment that will attract
14 doctors to this state. And why create a climate where -- for
15 a profession like the medical profession, we
ask for a
16 criminal background check?
17 They already have to indicate on
their application
18
form whether there's been any problems of that nature, and
19 they do.
And it's not necessarily a block to licensing. It's
20 often something relatively trivial that
happened in college or
21 something like that.
22 But I just feel that, given the
absence of a single
23 case where we could have precluded some
difficulty from
24 arising had we known about a criminal
record, we've never had
25
that. Why implement it?
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1 PRESIDENT MONTOYA: California currently requests
2 fingerprinting and, I believe, do a criminal
background check
3 also.
4 MS. KIRCH: I thought there were other states that do
5 it, as well.
6 MR. CLARK:
There are 17.
7 MS. KIRCH: And I don't know that it would be that
8 objectionable when I thought our
investigators were in favor
9 of this recommendation since it was in the
Federation report.
10 Is that not correct?
11 MR. COOPER: Well, no, we were never asked what our
12 opinion was, but I don't think that it's
necessary to ask us
13 what our opinion is. But we certainly have no objection to
14 it.
15 MR. CLARK: Just for your information, as well, the
16 Nevada Board of Ophthalmolic (sic) Surgeons
went to the last
17 session of the Legislature and had
legislation to adopt this
18 particular program for FBI fingerprinting
for all osteopaths.
19 PRESIDENT MONTOYA: Osteopathics.
20 MR. CLARK: Osteopathics.
Did I say something else?
21 PRESIDENT MONTOYA: You said "ophthalmolic."
22 MR. CLARK: I'm sorry.
And so they now have it in
23 the statute with respect to the osteopathic
physicians.
24 DR. BAEPLER: This is one that is controversial. I
25 think the anesthesiologists in the state
have already come out
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1 against this. So if you go forward with this, there will be
a
2 debate on it.
3 PRESIDENT MONTOYA: Yes, Dr. Lubritz?
4 DR. LUBRITZ: I feel that it is absolutely demeaning
5 to have every physician who applies in the
State of Nevada
6 have a drug test -- beg your pardon,
criminal background
7 check.
8 I mean, certainly, you don't have
the attorneys do
9 this, the architects, the dentists, the
whatever. And I think
10 that we have gotten to a noble
profession. If there's a few
11 bad eggs out there, we catch them. But I am absolutely
12 opposed to having a criminal background
check through the FBI,
13 or whatever, on all physicians. I don't like it. And I think
14 it's just bad for medicine.
15 PRESIDENT MONTOYA: I feel it's demeaning also.
16 Dr. Anjum, please?
17 DR. ANJUM: I have the same feeling, that I don't
18 think it's necessary at this point. Just because 17 of the
19 states are doing it, that doesn't
necessitate in any way that
20 we should follow that lead, you know. There's 30-something
21 which don't.
Like Don said, we have never regretted in the
22 past that, why we didn't do this?
23 There's a column on the application
record that
24 disclose all those things if it happened to
you, and we have a
25 right to go and investigate that. Is -- I think that is quite
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1 enough at the present time.
2 PRESIDENT MONTOYA: Dr. Held?
3 DR. HELD: I agree completely.
4 PRESIDENT MONTOYA: Which way?
5 DR. HELD: With Dr. Anjum.
6 PRESIDENT MONTOYA: Ms. Stoess?
7 MS. STOESS: I think I'm in favor of it. It sounds
8 reasonable to me, but I hear what the other
members of the
9 Board are saying.
10 PRESIDENT MONTOYA: I understand.
11 Ms. Kirch? I know where you stand, but let me hear
12 it.
13 MS. KIRCH: It probably goes either way. I would
14 just -- if it's moving that way, and I don't
know that it
15 would be that demeaning, but I've been
through that kind of
16 check as a banker, so it's not a big deal.
17 PRESIDENT MONTOYA: Dr. Anwar, please?
18 DR. ANWAR: Thank you.
I appreciate the opportunity.
19
I think that there have been -- there has been paranoia around
20 what has happened in the past, and the
hold-up at the
21 political level, the way things have gone
that way too, and we
22 have come up with things.
23 And one of those things -- Dr.
Baepler shared that
24 and put in a lot of hard work and effort --
was to have
25 special examinations to raise the level of
education of the
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1 entrance level for physicians and see if
that would help
2 decrease the lawsuits.
3 We don't need to come up with all
kinds of good
4 things that we can do with this unless
there's a good reason
5 to do that.
6 Now, if somebody brings to my attention
that here is
7 a problem, and these are some of the
solutions and look at
8 these solutions and see if any of these make
sense, then I'd
9 look at it very seriously. But it seems like, to just pull
10 things out of a hat -- and Number 2 -- since
we are on Number
11 2 right now -- seems to be one of those
things where, let's
12 pull this thing out of a hat.
13 I don't know who came up with this
idea. What is the
14 rationale, what is the background, what sort
of a thought
15 process went into this, and what
considerations were made?
16 Who all opined on this, and what sort of
consensus did we
17 build on that this would be a good thing to
do, because this
18 is a problem that we are investigating. It's sort of pulling
19 things out of a hat, and I think this is
ridiculous and
20 doesn't make any sense.
21 If it was somebody who was going to
be handling money
22 and going to be in a special -- like Marlene
says, that in
23 banking, they have some definite, good
reason for that,
24
because these are people who are going to be handling money.
25 And there are some special positions that do
require
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 background checks and all that, and that's
understandable.
2 But for the whole profession to
submit to this means
3 that it's somehow a sensitive position from
their point of
4 view, does not make any sense to this
member. Thank you.
5 PRESIDENT MONTOYA: On the last one, I think it is
6 kind of demeaning, myself. After going through all the years
7 of education and problems with scrutiny that
I have to go
8 through, recertifying in so many years,
being under the
9 microscope for many things, I think it's an
overkill.
10 I think that 2 and 3 are of the
same ilk. They just
11 seem to try to put another barrier between
us getting doctors
12 into the state, making it more difficult.
13 We already scrutinize doctors hard
in the initial
14 licensure, in requiring the three years and
the other things
15 that we require. I am not in favor of them also.
16 I am willing to put -- okay. Don, I'll group them,
17 but 2 and 3 are up for a vote, if we want
our staff to pursue
18 this as a legislative initiative.
19 DR. BAEPLER: I would move that we do not proceed
20 with Items Number 2 and 3.
21 A BOARD MEMBER: Second.
22 PRESIDENT MONTOYA: All right.
The vote is that we
23 do not pursue 2 and 3 as a legislative
initiative. Been
24 seconded.
25 All in favor?
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33
1 THE BOARD (all but Ms.
Stoess): Aye.
2 PRESIDENT MONTOYA: All opposed?
3 MS. STOESS: Nay.
4 PRESIDENT MONTOYA: Okay.
Thank you. So we will not
5 pursue that.
I realize that's going to give you a problem.
6 I've got an idea that it's something that we
felt
7 some -- kind of strongly about.
8 MR. CLARK: No, these two really came from the
9 Federation's audit, and I'm not hard over on
either of these.
10 I'm hard over on the next one, but I'm not
hard over on 2 and
11 3.
12 DR. ANJUM: Can I ask you something? What transpired
13 at the osteopathic board that they adopted
it?
14 MR. CLARK: I can't answer that.
15 DR. ANJUM: Does anybody have any idea?
16 MR. CLARK: What I think happened, from listening to
17 the discussion that took place at the A meeting
in Seattle a
18 year ago September, was that this was a
developing process in
19 a lot of the states, and the osteopathic
board decided they
20 would try to go forward with it and push it
forward.
21 I don't think they had any
particular problems they
22 were dealing with. They just wanted to get out in front.
23 PRESIDENT MONTOYA: Ms. Bible?
24 MS. BIBLE: I'd just add, I think that it just is --
25 in addition to what Mr. Clark had mentioned,
it's just a tool
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 to verify information on an application that
when a person
2 says they do not have a conviction, if you
get an FBI
3 background report that says otherwise, then
you know that the
4
information is inaccurate. So --
but it is a move, and it can
5 be aimed, certainly. There's been a lot of discussion and
6 there were meetings, so --
7 PRESIDENT MONTOYA: Thank you.
Doug?
8 MR. COOPER: No, sir.
9 PRESIDENT MONTOYA: Okay.
I'm sorry.
10 MS. STOESS: Well, should anything happen in the next
11 two years, we may have reason to revisit this
item before the
12 Legislature.
13 PRESIDENT MONTOYA: Absolutely.
We're a flowing
14 group.
15 Number 4: "Require all licensed" --
"homeopathic
16 medical doctors to be licensed in the state
of Nevada as
17 either an M.D. or a D.O. prior to
licensure..." I don't have
18 any problem with that because there is some
-- there's some
19 problems floating out there that call
themselves H.M.D.s, that
20 they've been educated in various places that
we wouldn't send
21 people to, and I think this probably would
be an important
22 thing.
23 MR. CLARK: The only statutory requirement now for
24 H.M.D.s is that they have been granted an
M.D. or a D.O.
25 license at some time in another state, not
that the license be
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 current, not that it be granted in Nevada.
2 And we have had a series of
situations where we have
3 dual-licensed H.M.D./M.D.s come before the
Board on complaints
4 where they take the defense that "Oh, I
was practicing only in
5 my H.M.D. capacity; I wasn't practicing in
my M.D. capacity."
6 It seems to me that if we're here
to protect the
7 public, that the public is best protected if
these
8 individuals, whether they're D.O.s or M.D.s
are currently
9 licensed in the state by their medical
profession, a D.O. or
10 an M.D., and then can have their H.M.D. on
top of that. That
11 way, we have some control over people who
are practicing --
12 this is a term of art -- "bad
medicine" in this particular
13 case, which was the basis of the complaint,
to take action
14 against them.
15 DR. BAEPLER: But I'm not certain it solves our
16 fundamental problem, because we currently
have people that
17
have both licenses, and they come before the investigative
18 committee for actions that clearly violate
our policies. And
19 the defense is that they were performing
these acts under
20 their H.M.D. license.
21 PRESIDENT MONTOYA: And if they don't have a Nevada
22 license, we can't do anything to them.
23 DR. BAEPLER: That's correct.
24 PRESIDENT MONTOYA: If they have a Nevada license, we
25 can do something.
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1 DR. BAEPLER: And then if we took disciplinary action
2 or made a revocation, they could not
continue to practice just
3 under the H.M.D. license, under this; is
that correct?
4 PRESIDENT MONTOYA: No, because they have to have
5 both.
6 DR. BAEPLER: Okay.
Because right now, it's a
7 dilemma.
8 DR. ANJUM: H.M.D. is a separate entity.
9 PRESIDENT MONTOYA: But attached to his H.M.D., if
10 I'm reading this right, the way it's going
to be proposed, if
11 they're going to be an H.M.D., they've got
to be a current
12 M.D.
13 MR. CLARK: Or D.O.
14 PRESIDENT MONTOYA: Or D.O.
I'm sorry.
15 DR. ANJUM: But there are people who only have
16 H.M.D., have no D.O. or M.D.
17 MR. CLARK: No.
They have to have an M.D. license or
18 a D.O. license granted in some state prior
to becoming an
19 H.M.D. in Nevada, but they don't have to be
a current M.D.
20 licensee or a current D.O. licensee in that
state in which
21
they were originally licensed.
They only had to have had a
22 license at some time in their life.
23 DR. ANJUM: I think there are a lot of people who
24 only have H.M.D. license, and they never
were a D.O. or M.D.,
25 and the Board gives them license.
PEGGY HOOGS & ASSOCIATES (775) 327-4460
37
1 PRESIDENT MONTOYA: We're trying to stop that.
2 DR. ANJUM: They're not getting the H.M.D. board
3 unless they have an M.D. or D.O.
4 PRESIDENT MONTOYA: Right.
They're practicing
5 medicine.
They're affecting the health of the citizens of
6 Nevada, where we're trying to get a hold on
them. Currently,
7 they're using a loophole.
8 DR. BAEPLER: How many are there, roughly?
9 MR. CLARK: Roughly 50 H.M.D.s in the state. And
10 there are at least four that we know of that
are currently
11 licensed as M.D.s. We haven't done any more research than
12
that, but there are currently four.
13 PRESIDENT MONTOYA: We probably have to grandfather
14 in the new ones.
15 MR. CLARK: That would be a start.
16 PRESIDENT MONTOYA: Any problems with that? You were
17 going to say something.
18 MR. QUINN: I was going to add, Dr. Baepler's comment
19 about a dilemma has some merit, but the way
I'm approaching
20
any case that comes up for consideration that involves the
21 conduct of a dual licensee, if that behavior
involved is the
22 practice of medicine, I -- my interpretation
of the statutes
23 is that that individual may be scrutinized
by the standards of
24 care applicable to a physician, regardless
of whether he says
25 he's wearing another hat. That addresses that.
PEGGY HOOGS & ASSOCIATES (775) 327-4460
38
1 Secondly, I have good information
from a reliable
2 source who informed me -- but he desires to
remain
3
confidential -- that the HMO (sic) board -- Dr. Anjum, a
4 requirement for licensure is that you be --
have been licensed
5 somewhere as a D.O. or an M.D.
6 What I'm addressing is information
I received that
7 the HMO (sic) -- H.M.D. board is admitting
applicants whose
8 M.D. or D.O. license has been revoked by
every jurisdiction
9 where they have been licensed, and
regardless of that, they
10
are welcoming those applicants amongst their licensees.
11 PRESIDENT MONTOYA: So --
12 DR. ANJUM: That's what I thought. They have an
13 independent board, and they do let somebody
practice H.M.D.
14 even if they don't have a current or a
revoked license in M.D.
15 or D.O.
16 MR. QUINN: That's apparently a practice that has
17 happened or is ongoing.
18
PRESIDENT MONTOYA: The consensus
is, we'll pursue
19 this.
20 DR. ANJUM: Wouldn't the H.M.D. board have any
21 objection to that?
22 DR. BAEPLER: Oh, they'll object.
23 DR. ANJUM: We'll have to object to that also.
24 PRESIDENT MONTOYA: It's a legislative process.
25 DR. ANJUM: Smaller groups are more feisty.
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1 PRESIDENT MONTOYA: We have another 35 minutes before
2 I have to start the other things, so we're
going to continue
3 on this for a little while longer.
4 I'm on time, right?
5 MR. CLARK: Yes.
6 PRESIDENT MONTOYA: Okay.
So to clarify, Section 36
7 provides that we could issue from the IC
committee warnings
8 concerning non-punitive admonishment
licensees who the IC had
9 reason to believe had violated, is violating
or about to
10 violate any provision of Chapter 630.
11 This is actually something I've
been after since I
12 first started on the Board many years
ago. It has prompted
13 many arguments between myself and the former
legal staff. So
14 you know my stance.
15 Let me hear from the Board.
16 DR. BAEPLER: Well, again, having experienced this
17 for six years in the IC committee, we used
to have -- the IC
18 committee frequently faces a dilemma. There's a complaint
19 against a doctor that is disturbing to us,
but it does not
20 rise to the level of formal disciplinary
action, the type of
21 thing that goes public and goes on the
doctor's record.
22 Yet, we used to just send the
doctor, then, a letter
23 of concern -- it was a private letter, not
public -- where we
24 would point out why we are concerned about
the action that
25 took place but that we are not going to
pursue disciplinary
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 action.
2 This was then ruled to be not
permissible under the
3 statutes; although, that's an arguable
point. Both
4 Dr. Montoya and myself would have preferred
to have kept
5 sending those letters. And if someone wants to take legal
6 action against us, let them do it, but we
stopped them on the
7 advice of an attorney.
8 The statute is now written in such
a way so that in
9 one section of the -- NRS 630 section, it
says that we can
10 essentially, and then in another section, it
says we can't.
11 And we have followed the
conservative path of not
12 doing -- the main question that I think
needs to be clarified,
13 and whether the statute is the place to do
it or not is, if
14 this statute passes the way it is written
here, can it remain
15 a private letter or does it have to be
public? I don't think
16 it's addressed.
17 PRESIDENT MONTOYA: Well, we can direct how we want
18 this to be pursued. We could pursue it as a private letter.
19 DR. BAEPLER: If you put that in the statute, a lot
20 of people will come out and say, now, if
you're going to send
21 us a letter of concern, it should be
public. But that defeats
22 the whole intent of our letter.
23 MR. CLARK: What occurred at the last session of the
24 Legislature was, they adopted the authority
for the Board to
25 send letters of concern.
PEGGY HOOGS & ASSOCIATES (775) 327-4460
41
1 The statute, if you look at it,
literally makes the
2 Board the only entity that can send the
letter, not the IC.
3 And in a number of other statutes in that
Chapter 630 where
4 the IC is authorized to do something, the IC
is directly given
5 that authority.
6
And so what we're trying to do is get the authority
7 for the ICs -- clarify the authority for the
ICs to send
8 letters of concern that are private.
9 And these are not letters of reprimand. There's
10 another statute that says you can't send a
private letter of
11 reprimand.
These are not letters of reprimand.
These are
12 letters to educate our members that they are
being looked at,
13 that the Board had -- that the IC has a
concern about some
14 practice that they are engaging in.
15 I think, to clarify it and give the
ICs clear
16 authority to send those letters, the statute
has to be changed
17 merely to say that the investigative
committees have that
18 authority.
And that's easy to do, and I think that's
19 something that we ought to do.
20 PRESIDENT MONTOYA: I brought up a point earlier with
21 some other people. The president can act in the name of the
22 Board; is that correct?
23 MR. CLARK: Yes.
24 PRESIDENT MONTOYA: So if I sign the letter, it comes
25 from the Board?
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 MR. CLARK:
Yes. The problem is, if this
activity
2 continues on and the Board has issued a
letter of concern,
3 then the Board cannot adjudicate a complaint
against that
4 doctor for that particular practice because
it has already
5 ruled on it.
It has already entered into it.
6 And so that's why we wanted the ICs
to have that
7 authority, so that you still have six other
board members who
8
would be able to vote, should there be a complaint that arises
9 as a result of that kind of practice by that
doctor.
10 DR. BAEPLER: And if you send a letter on behalf of
11 the Board, you might be violating the intent
of the open
12 meeting law, unless you make that public in
the minute record.
13 MS. BIBLE: I can address this because I actually --
14 there was a request for an attorney general
opinion on this
15 issue, which is still unfortunately in the
review stage.
16 But I can tell you that the issue
and the concern is
17 that -- just as Tony Clark mentioned, is
that the statute
18 provides that the Board shall issue that
letter, and in other
19 provisions in the statute, it provides
explicit authority for
20 the IC to do certain things.
21 So there's -- obviously, there is
an intent in the
22 Legislature to just sometimes -- or it could
be read
23 there's -- you know, there's distinct duties
of the IC and
24 duties of the Board.
25 However, there may be a way that
that duty can be
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 delegated and addressed in an AGO that can
get the attorney
2 general's approval on it.
3 But that is the concern, is that,
the way it was
4 written, it could use some clarification to
give the IC the
5 authority and as an investigative tool that
would remain
6 confidential, as opposed to when a matter
becomes a formal
7 complaint; then everything following a
formal complaint is a
8 public document.
9 If it is done by the IC, I think
that whether you
10 want that spelled out, that it remain
confidential, I think as
11 an IC matter, that does not become a formal
complaint; it
12 would be presumed to be a confidential --
13 DR. BAEPLER: You would feel comfortable if it was --
14 spelling it out as being confidential would
be very
15 controversial. You would feel comfortable with us proceeding
16 in a confidential manner the way this is
written?
17 MS. BIBLE: I think that if this is a matter that's
18 determined to continue to be within the
investigative realm of
19 the IC, that -- that would be covered by the
current statutes
20 that say that all investigative files are
confidential until,
21 you know -- and then a formal complaint, and
then any document
22 to be considered by the Board will become
public. So in that
23 respect, I think it would remain a
confidential document.
24 PRESIDENT MONTOYA: So what we're saying is that we
25 approved pursuing this as it's written here,
right?
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1 DR. ANWAR: Just a clarification for my understanding
2 on the language here: It says, "... or is about to violate
3 any provision of Chapter 630 of the
NRS." What does that
4 translate into, "about to
violate"?
5 PRESIDENT MONTOYA: I'll leave that up to the legal
6 team.
7 DR. QUINN: Dr. Anwar is a member of an IC. And as
8 you know, we sometimes discuss cases that
come up that don't
9 arise to the level of actual -- an actual
violation, but we
10 have concerns.
11 In a case where we have a concern,
you might tell the
12 -- but we don't have a violation, that would
be an appropriate
13 situation to consider that the doctor's
conduct, if it were to
14 go -- continue, might actually lead to a
violation, and we
15 would try to prevent that from happening by
issuing such a
16 letter.
17 PRESIDENT MONTOYA: Dr. Lubritz?
18 DR. LUBRITZ: Specifically for our new members, since
19 you have not had the opportunity to serve on
an investigative
20 committee, we -- I'm not speaking for the
Board. I'll speak
21 for myself.
22 If we can get a physician to
correct a problem that
23 we see, then that's our goal. And our goal is to get that
24 physician to practice better medicine so
that the citizens of
25 Nevada won't be injured.
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 We have complaints that come in,
and we have three --
2 we have two investigative committees. Dr. Baepler chairs one,
3 and I chair the other. And we look at the complaints that are
4 sent in.
And those are private matters that do not come to
5 the Board.
They come to the Board when we feel that they have
6 risen to the point where it needs to be
addressed by the
7 Board.
8 So I think that if we are already
protected by saying
9 that the investigative committee can send
letters of concern,
10 I've not done what Dr. Baepler does. He takes a conservative
11 approach with received information from our
counsel that it is
12 approved, so we use that as a tool in order
to correct a
13 problem or perhaps prevent a problem that we
see coming along
14 so that we can get the doctor to practice
better medicine.
15 And my thought is that if it's
already in there, I
16 would hate to lose that, and as you get on
investigative
17 committees, you will also feel that that is
an excellent tool
18 to guide a physician into perhaps not making
a mistake that
19 will injure any citizen of Nevada.
20 PRESIDENT MONTOYA: Just to tell you something about
21 the ICs, the ICs are the hardest-working
committees that we
22
have here. The reading that we
have right in front of you is
23 probably about a quarter of what they go
through, and they
24 have to get through this stuff. So the ICs -- they work
25 really hard, and there are really hard
decisions that have to
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1 be made.
Whatever we can do to make the job a little easier
2 and protect the public, it's going to be a
good thing.
3 I have to get a general
consensus. We'll let this go
4 on.
We'll move on to --
5 DR. LUBRITZ:
It's just the opposite. I would
like
6 not to have it clarified.
7 PRESIDENT MONTOYA: You don't want it clarified?
8 DR. LUBRITZ: My thought is, if we have -- if we can
9 read into it now that we are currently not
doing something
10 which is not appropriate as already given to
us by the
11 Legislature, I wouldn't want to go near it.
12 MR. CLARK: The problem I see is that the statute, as
13 it's written, only gives the Board this
authority, so I'm
14 trying to clarify so that the ICs
specifically have the
15 authority.
16 DR. LUBRITZ: Say again.
17 MR. QUINN: Dr. Lubritz, the statute, as written, is
18 interpreted -- may be interpreted to provide
both ways. I
19 would advise, as I've said -- you quoting my
advice that we
20
could go ahead, I don't think that's an unreasonable
21 interpretation.
22 What I would also advise is that we
take this step to
23 clarify it so that we are sure we have that
authority, because
24 we may get an opinion from the attorney
general that says we
25 don't have it, and then we're cut off from
doing -- taking
PEGGY HOOGS & ASSOCIATES (775) 327-4460
47
1 this action.
2 DR. BAEPLER: And our prior legal counsel took the
3 opposite view, that we cannot do it. Now -- so there is some
4
confusion. So I --
5 MR. COUSINEAU: I wanted to clarify maybe for
6 Dr. Lubritz -- he wasn't there -- I think
it's an excellent
7 idea, because it's not going to take either
way. It's only
8 going to basically clarify and ensure that
we do have the
9 ability to properly proceed with the letters
of concern.
10 So, as Ms. Bible indicated, they're
still trying to
11 formulate an opinion, but I don't think we
want to preclude
12 the opportunity of the Legislature
subsequently if the
13 attorney general will come back in a
negative --
14 DR. BAEPLER: If we get a favorable ruling from the
15 attorney general, we can always withdraw
this bill, can't we?
16 PRESIDENT MONTOYA: Yeah, we could.
17 DR. ANJUM: Shouldn't we wait for the reporting from
18 the attorney general first?
19 (People begin speaking at the same
time.)
20 DR. ANJUM: My concern is that the Legislature may
21 not look at our proposal so favorably. They might like to
22 give authority to a board but not to an IC
committee, and we
23 might lose this privilege completely. Right now, we can leave
24 it in the lines and still do something.
25 PRESIDENT MONTOYA: We might have to fight for it, we
PEGGY HOOGS & ASSOCIATES (775) 327-4460
48
1 may not have to fight for it, but I think
this is a good thing
2 in case we don't get a favorable ruling.
3 DR. BAEPLER: Are you currently sending letters,
4 Joel?
5 DR. LUBRITZ: Yes, we are.
I would say there is not
6 a meeting that we have where we don't send
one or two letters
7 of concern.
8 DR. BAEPLER: Oh, I think for me to handle it
9 properly, anyhow you would like to do that.
10 DR. ANJUM: That's why it's a useful tool.
11 DR. LUBRITZ: Yes, that's why I'd like not to lose
12 it.
So if we can interpret it -- I mean, we have three legal
13 minds here.
If we can interpret it --
14 DR. BAEPLER: Four.
15 PRESIDENT MONTOYA: Four.
16 DR. LUBRITZ: -- only one part, it says we have that
17 permission, well, let's go on that part.
18 MR. CLARK: No, no.
The Board has the permission.
19 An IC does not have the permission.
20 DR. LUBRITZ: Well, aren't we the Board?
21 MR. CLARK: No.
22 DR. LUBRITZ: We're not part of the Board?
23 MR. CLARK: You're part of the Board, but you're not
24 the Board itself.
25 DR. ANJUM: The president has to have an open meeting
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 on a public agenda that has to be disclosed,
so we're
2 different.
3 We can send those names to the
Board that we want to
4 send a letter of concern. That may be one way to get around
5 that, and the Board may approve it after
brief discussion, and
6
the Board may even vote on it.
That's a possibility. That
7 may be a way to get around it.
8 PRESIDENT MONTOYA: But we ran into what Drennan was
9 saying.
If that person continues, despite the letter of
10 concern, and actually violates the statute,
the Board will put
11 itself out of the picture. We don't have any voting members
12 that can adjudicate it.
13 DR. ANJUM: Very true.
And again, if the Board takes
14 an action that has to be public --
15 PRESIDENT MONTOYA: I would like to see us have that
16 power.
17 DR. ANJUM: My feeling is, by opening this to the
18 Legislature, we might lose all of it.
19 PRESIDENT MONTOYA: The consensus is that we are
20 going to move forward on this, right?
21 Number 6, Medical Dental Screening
Panel
22 reestablishment.
23 Dr. Anwar?
24 DR. ANWAR: Thank you.
The best function of a
25 medical dental screening panel is that it
can function as a
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 triage body.
And that if there is a probability of
2 malpractice, then most of those can be
settled out of the
3 court anyway.
4 Then if there is a gray area, then
it can be pursued
5 through the court system. If there is no probability of
6 malpractice, then there should be some,
although it can still
7 be taken through the court system. But there should be some
8 incentive.
9 The problem with our last medical
dental screening
10 panel was that, initially, we did have some
disincentive that
11 if the medical dental screening panel is
determined, there is
12 no probability of malpractice. Then they can still take it
13 through the court system. But they have to come up with a
14 small amount of money to be able to go
through the system.
15 And they abolished that in one of
the sessions at the
16 legislative level, and that made the Board
completely
17 irrelevant, because every case was going
through the court
18 system, no matter what the Board
decided. So there was extra
19 step, extra time taken by the screening
panel, as well as
20
money spent through the screening panel, and it wasn't serving
21 that triage function that it was supposed to
have served.
22 So unless this thing is clarified
in the sense that
23 it has some meaningful function, just having
a medical dental
24 screening panel would not serve any
purpose. Thank you.
25 PRESIDENT MONTOYA: There wasn't enough room to print
PEGGY HOOGS & ASSOCIATES (775) 327-4460
51
1 all the proposal and the ideas behind the
reestablishment of
2 the medical dental screening panel.
3 Some of the proposals that came up
was to make the
4 decisions by the medical dental screening
panel available at
5 court or not available, use some of the
decisions in favor or
6 against the doctor or in favor or against
the complainant.
7 As a general -- how do I want to
put it? -- kind of a
8 Gestalt kind of picture, I would like to see
the medical
9 dental screening panel established with some
teeth. I don't
10 know how we can propose it in that fashion.
11 DR. LUBRITZ: I agree.
I think we need to have it
12 back, and I think -- I think just having it
there is a great
13
triage. But if we can get it with
teeth, I'd be happy to get
14 it back anyway, but I would like it with
teeth.
15 DR. ANJUM: I agree.
I think it's a very essential
16 tool in screening and triage in reducing the
malpractice
17 insurance costs, which is tremendous in our
state. And we do
18 increase them because of that.
19 But having it without any purpose
to serve, you know,
20
it's a good, deterring factor if it has some restrictions, you
21 know, like if we had a $5,000 bond that had
to be posted and
22 get a decision against -- I think that would
be helpful.
23 Just having a screening panel would
not serve any
24 purpose, you know. It only delays the cases a year or two,
25 and in the last statistics, when we
abolished it, we studied
PEGGY HOOGS & ASSOCIATES (775) 327-4460
52
1 that, and we found that it was not serving
any purpose.
2 So if you can go back to -- with
some restriction,
3 have some teeth, some power or some effect,
it will be useful;
4 otherwise, I don't know what purpose it
would serve.
5 DR. BAEPLER: Well, the former panel was essentially
6 nonfunctional because they didn't have any
budget. If they
7 were really budgeted with an investigative
staff and an
8 administrative staff, they could move these
faster, but they
9 were mostly volunteer-type stuff.
10 PRESIDENT MONTOYA: It's all volunteer.
11 Dr. Held, you've been considering
this very
12 carefully.
Are you --
13 DR. HELD: I'm strongly in favor of a medical-dental
14 screening panel. And I think I would agree that I'd like it,
15 regardless, but prefer it with teeth.
16 PRESIDENT MONTOYA: With teeth.
17 DR. HELD: With teeth, with something that has some
18 meaning besides just another exercise in
committee work.
19 DR. BAEPLER: Do we have any sense of how the medical
20 community feels?
21 PRESIDENT MONTOYA: Both of them want it back.
22 Ms. Stoess?
23 MS. STOESS: I would agree with Dr. Held's comments.
24 MS. KIRCH: Yes.
25 DR. LUBRITZ: You know, Dr. Baepler just maybe gave
PEGGY HOOGS & ASSOCIATES (775) 327-4460
53
1 some sage advice and didn't even know he was
doing it.
2 We certainly fund other things in
the state for
3 physicians, and we fund diversion. I didn't know that they
4 were not working with the Legislature.
5 And maybe this might be an
excellent consideration
6 for the Board, to help give funding and to
let the Legislature
7 know that we would certainly consider that.
8 PRESIDENT MONTOYA: Absolutely.
Anybody else?
9
DR. BAEPLER: I'm in favor of it
very strongly. Most
10 states have these, and they work very
effectively. They're
11 well-budgeted.
12 PRESIDENT MONTOYA: Would anyone like to see this
13 come up to a vote? Anyone?
Do you feel we should go ahead --
14 all right.
So go ahead. We're pushing for
some teeth in
15 there.
16 MR. CLARK: Okay.
Let me address 7 before you get
17 there.
We are working on the brochure.
It is not ready yet.
18 It is still in draft form. We will bring it to the Board for
19 its attention at the December meeting, so I
don't think we
20
should consider this one now.
21 PRESIDENT MONTOYA: All right.
7 and 8 go together.
22 I'm sorry, it doesn't. "... clearly display in their offices
23 a written notice informing patients of the
right to a copy of
24 their medical records at a reasonable
copying cost, and that
25 regulations allow the Board to discipline a
physician who
PEGGY HOOGS & ASSOCIATES (775) 327-4460
54
1 fails to display such notice or to provide
the copies to the
2 patient."
3 Okay. We're obligated -- there's already legislation
4 there that tells us that we have to inform
patients -- there
5 already is law there that says we have to
give the patients
6 the records that they ask for or if they're
designated.
7 Now, do we want to have a note at
the office put up
8 that says we have to give them their
records?
9 DR. HELD: I'm going to run out of wall space with
10 HIPPA and the all the other stuff, and we
have brochures this
11 and brochures that. I look like a Hallmark card shop.
12 DR. BAEPLER: And remember, we want to keep the
13 number of things down. We don't really get a lot of
14
complaints from people not being able to get their medical
15 records.
Occasionally we do, but it's more often a delay.
16 PRESIDENT MONTOYA: And we go after the doctor when
17 we don't get them.
18 DR. BAEPLER: Yeah.
It seems to me that -- I don't
19 see an urgent need for this.
20 DR. ANWAR: Where does this come from?
21 MS. BIBLE: NRS at 629 provides the requirement to
22 copy medical records.
23 DR. ANWAR: Which is already there.
24 MS. BIBLE: It's already there.
25 DR. ANJUM: Everyone provides them. There's not been
PEGGY HOOGS & ASSOCIATES (775) 327-4460
55
1 any problems except for a very few.
2 PRESIDENT MONTOYA: There's bigger fish to catch.
3 MR. CLARK: We got recommendations from a number of
4 sources, and I don't remember where this one
came from.
5 PRESIDENT MONTOYA: We don't feel it's such a big
6 deal.
7 DR. STOESS: Sounds like overkill.
8 DR. ANJUM: Unless there's a concern about saying
9 what we charge for given copies.
10 DR. BAEPLER:
We don't get complaints about that.
11 PRESIDENT MONTOYA: And public members have nodded in
12 favor of this.
13 Don?
14 DR. BAEPLER: I don't want it.
15 PRESIDENT MONTOYA: Because I think we need to
16 concentrate our efforts.
17 MS. BIBLE: I think you actually already have this as
18 a disciplinary provision for failing to produce
medical
19 records.
I think you actually already have that.
20 PRESIDENT MONTOYA: The next one.
21 DR. ANWAR: I have a comment on this.
22 PRESIDENT MONTOYA: Which one?
23 DR. ANWAR: Next one.
24 PRESIDENT MONTOYA: Let me read it: "Legislation
25 that requires physicians to take CME in pain
management and
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 end-of-life care, including pain
management."
2 Dr. Anwar?
3 DR. ANWAR: Thank you.
Last time, we were asked by
4 the Board that the requirement of the
continuing medical
5 education should be that there be a certain
number of hours
6 spent in their specialty and that we needed
at least a certain
7 number of hours in medical ethics.
8 Where did that requirement come
from? Was that a
9 decision of the board itself, or was that a
legislative --
10 PRESIDENT MONTOYA: Medical ethics thing?
11 DR. ANWAR: Yeah.
12 PRESIDENT MONTOYA: That happened before I even got
13 here.
14 DR. ANWAR: And the number of hours required in their
15 own specialty, was that the Board's decision
--
16 DR. BAEPLER: Excuse me.
The Legislature put in that
17 requirement on ethics.
18 PRESIDENT MONTOYA: The Board didn't ask for it?
19 DR. BAEPLER: No, the Legislature imposed that just
20 like -- as I recall it.
21 MR. QUINN: Pardon me.
I believe that is a board
22 regulation.
23 DR. BAEPLER: We adopted it, but I think it came from
24 the Legislature.
25 MR. QUINN: Okay.
I don't know who insisted -- but
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 it is a regulation, so that had to be
approved by the Board.
2 DR. ANWAR: And my comment is that, is this something
3
that requires legislation, or is this something that the Board
4 can determine on its own with the help of
the people that it
5 has jurisdiction over?
6 PRESIDENT MONTOYA: I think we can do it on our own,
7 ourselves.
8 DR. BAEPLER: Do it by regulation if we want to.
9 PRESIDENT MONTOYA: I don't think this needs
10 legislation, because I don't want legislators
telling me how
11 to practice.
12 MR. CLARK: We received two missives, one from Don
13 Havins, who is a doctor who usually comes to
the meetings in
14 Las Vegas but couldn't make this one, and
from the
15 anesthesiologist group, both of whom said
that they don't want
16 any part of this. They have enough trouble keeping up with
17 medical education that is already required
of them, and they
18 would like not to have additional
requirements placed on them,
19 especially if they don't practice pain
management or
20 end-of-life care.
21 PRESIDENT MONTOYA: Can I communicate with Las Vegas
22 at all?
I can't?
23 Did you hear what we were talking
about, Dr. Havins?
24 DR. HAVINS: Right, I actually just forwarded an
25 e-mail that I received from Max Doubrava to
the Board. And
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 then there was a letter -- I think it's in
your agenda packet
2 -- from the anesthesiologists -- from an
anesthesiology chair
3 from Reno.
4 PRESIDENT MONTOYA: We got the anesthesiology chair
5 missive.
Did Max write as an anesthesiologist or as a lawyer?
6 DR. HAVINS: I don't know.
I just forwarded the
7 e-mail to the Board.
8 PRESIDENT MONTOYA: All right.
9 DR. HAVINS: There's also one from Bob Shreck that I
10 forwarded to the Board.
11 PRESIDENT MONTOYA: What's your opinion?
12 DR. HAVINS: It can be done by regulation if the
13 Board chooses to do so, but my opinion would
be it's
14 unnecessary and imprudent to put this into
statute.
15 PRESIDENT MONTOYA: Mr. Quinn?
16 MR. QUINN: Larry Matheis of the Nevada State Medical
17 Association is present, and he would,
through me, represent
18 his agreement with Don Havins'
last-expressed position.
19 MR. MATHEIS: I'm Larry Matheis of the Medical
20 Association.
Just on this matter of the CMEs, the ethics
21 requirement actually was put on by the Board
as a regulation.
22 It was not -- it was not by the Legislature.
23 The only time the Legislature has
actually
24 specifically mandated the CME was in AB-250
on the
25 bioterrorism issue. And as I'm sure the Board recalls, that's
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 been quite controversial, not about the
subject, but about
2 beginning to delineate in the statute what
the CME position
3 should take.
4 And while the Board can certainly
express that
5 physicians should be up on these issues, if
it's appropriate
6 for their practice, I think the Board has
traditionally taken
7 the position, rather than specifying the CMEs,
to let that be
8 to the individual physicians to
determine. I think that's
9 been a wise policy.
10 PRESIDENT MONTOYA: Okay.
Thank you.
11 Ms. Bible has something to show me.
12 MS. BIBLE: Actually, the CME requirements are set
13 forth in NAC 630.153, and so if you want to
move on to and
14 address it, you could just do it by
regulation and add it to
15 that.
16 PRESIDENT MONTOYA: I'm going to do something really
17 different.
We've been working since 8:30.
It's now five to
18 10:00.
I'm going to declare we're going to take a break until
19
10 o'clock so Dr. Baepler has time to suck down two, and the
20 rest of us can go take care of
business. We're not going to
21 stop this right now. We'll pick it up after the appearances,
22 when it's the regular schedule. We skipped ahead to get to
23 this.
24 (A brief recess was taken at the
hour of 9:55 a.m.)
25 PRESIDENT MONTOYA: We're going to get started. Are
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1 you done setting up? We have other matters to discuss before
2 you, and I don't want him to be interrupted
with things going
3 on.
4 AN UNIDENTIFIED MAN: He will not be. As soon as you
5 begin, I'll cut this off.
6 PRESIDENT MONTOYA: Okay.
We're going to discuss the
7 case of Dr. Rand, who wants to do
moonlighting, and now this
8 is the time and place for him to speak. Is he here?
9 MS. KROTKE: I'll get him.
10 PRESIDENT MONTOYA: Number 7.
He's got a nice letter
11 in here stating his intentions, but
apparently, his program
12 director supports this.
13 Hi, Dr. Rand. I'm Dr. Montoya, president of the
14 Board.
Here you see our counsel and our staff.
Our names are
15 in front of us. You're here to discuss about moonlighting
16 privileges.
17 DR. RAND: Yes, sir.
18 PRESIDENT MONTOYA: Okay.
Could you tell us your
19 intentions.
20 DR. RAND: I would like to do some moonlighting
21 probably about one weekend per month up in
one of the --
22 MS. KIRCH: They can't hear down there.
23 PRESIDENT MONTOYA: Press the button on there.
24 MS. KIRCH: No, he's on.
They're off there now.
25 DR. RAND: Can I be heard better now?
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1 MS. KIRCH: You're fine now.
2 PRESIDENT MONTOYA: Just speak normally. They can't
3 hear you in Las Vegas. Go ahead, Dr. Rand. I'm sorry.
4 DR. RAND: To restart, basically, I would like to do
5 some ER shifts in some of the rural Northern
California
6 emergency rooms.
7 AN UNIDENTIFIED MAN IN L.V.: We can't hear you down
8 here in Las Vegas.
9 PRESIDENT MONTOYA: We know.
10 DR. RAND: This is a little bit of an underserved
11 community, and I'll probably be doing one
shift per month, one
12 weekend shift per month, just applying these
skills that I've
13 learned here in my residency program to,
quote-unquote, the
14 real-world situation. And that's basically my intention.
15 Pretty straightforward.
16 DR. BAEPLER: Do you have your license?
17 DR. RAND: I do, sir.
18 PRESIDENT MONTOYA: One to two weekends?
19 DR. RAND: One to two weekend shifts per month,
20 probably towards one weekend shift per week.
21 PRESIDENT MONTOYA: One Saturday, not Saturday and
22 Sunday?
23 DR. RAND: It's a full-weekend.
24 PRESIDENT MONTOYA: Full weekend shift?
25 DR. RAND: Yeah, that's what they would usually like
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1 us to do.
2 PRESIDENT MONTOYA: What does your department
3 chairman say?
4 DR. RAND: The director of the -- our residency
5 program has given me the green light to go
ahead with this.
6 He's the one in charge. I have discussed it also with the
7 department chairman, who is okay with me
moonlighting.
8 PRESIDENT MONTOYA: Until that program is fixed --
9 thank you for coming, but what kind of
monitoring do you
10 provide for the residents doing
moonlighting?
11 AN UNIDENTIFIED WOMAN: They have to turn in a time
12 sheet and check in with the residency
director and confirm
13 what they are working, and if it interferes
in any way with
14 their required rotation, call schedule and
this type of thing,
15 it's pulled.
16 We have one resident right now, Dr.
Davis, who was
17 approved last session, and we're monitoring
him, and we will
18 be monitoring Dr. Rand in time.
19 PRESIDENT MONTOYA: Where do you plan to practice?
20 DR. RAND: I'm considering staying locally, but I'm
21 also looking at the Northern California
area. I have lived in
22 both areas for a good number of years prior
to medical school,
23 so probably somewhere within a hundred miles
of here. Very
24 well maybe just staying right here in Reno
or at the lake,
25 Lake Tahoe.
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1 PRESIDENT MONTOYA: I don't have any questions.
2 Board, anybody have any questions?
3 DR. BAEPLER: We move that we grant the permission.
4 And as I say, part of the motion, the policy
of the Board that
5 prohibits moonlighting was really at the
request of the
6 medical school, and the medical school now
seems to be
7 shifting its position. And in my opinion, the moonlighting
8 question is more of an institutional dilemma
to solve; that
9 is, the med school.
10 So as part of my motion, I would
like to include that
11 the medical school re-examine their policy
and come back to
12 the Board, please, with a recommendation as
to whether they
13 want to have this policy stay in effect as
it is currently
14 written or when they would like to suggest
changes.
15 But I really feel it's more a responsibility
of the
16 medical school that handles these cases than
it is for the
17 State Board of Medical Examiners. So I would include that
18 request as part of my motion.
19 MS. KIRCH: Second.
20 PRESIDENT MONTOYA: All in favor?
21 THE BOARD: Aye.
22 PRESIDENT MONTOYA: All right.
Chair votes in favor
23 to granting your license to go moonlight,
and I think I'll be
24 hearing from the moonlight director.
25 DR. RAND: I appreciate all your time in seeing me
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1 today, and obviously, of course, I
appreciate the motion you
2 just made.
3 PRESIDENT MONTOYA: Thank you for coming.
4 DR. RAND: Thanks so much, everybody.
5 PRESIDENT MONTOYA: We're still in open session. Is
6 Dr. Giarrusso present?
7 DR. GIARRUSSO: Yes.
8
PRESIDENT MONTOYA: Counsel?
9 MR. SGRO: Yes.
10 PRESIDENT MONTOYA: Your appearance?
11 MR. SGRO: Anthony Sgro.
12 PRESIDENT MONTOYA: Mr. Sgro.
Who are you
13 representing?
14 MR. SGRO: Dr. Giarrusso.
15 PRESIDENT MONTOYA: Now, you can have five minutes to
16 address the Board, and we will stop in five
minutes.
17 MR. SGRO: I was told I had 15 minutes. And
18 according to the agenda, all the other
matters were allocated
19 15 minutes.
I'm just wondering why I only have five.
20 MR. QUINN: That's what the deal was that was made.
21 MR. SGRO: There was a deal made?
22 MR. QUINN: I don't recall assigning 15 minutes.
23 MR. SGRO: Well, I did see "15 minutes," and even
the
24 prior gentleman got 15 minutes.
25 PRESIDENT MONTOYA: You can start now.
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1 DR. ANJUM: Fifteen minutes is generally allocated to
2 the whole agenda item for everybody to
discuss, not just the
3 attorney.
4 PRESIDENT MONTOYA: And then we have time to discuss
5 it and everything else.
6 MR. SGRO: Understood.
May I proceed?
7 PRESIDENT MONTOYA: Please.
8 MR. SGRO: This matter is on, as I understand it, for
9 Dr. Giarrusso relative to a few specific
points, the first one
10 being that a settlement agreement was
entered into, executed,
11 and has been lived by, by Dr. Giarrusso
since May of this
12 year.
13 We're now in September, and from
our perspective, we
14 believe we are now concluding that
settlement agreement. And
15 as a result of the conclusion of that
agreement, the modified
16 license will not be modified any longer, and
she will continue
17 to practice medicine without any
restriction.
18 Secondly, and more importantly,
there's an issue that
19 has developed since the hearing on the
complaint in this
20 matter, and that is this database
information. And as they
21 set this up, I'll get to the database
specifically, but
22 essentially what occurs, as you all know, is
there are a
23 number of Internet web sites that all have
what disciplinary
24 action takes place when a physician is
disciplined. And we
25 have, to this day, been absolutely unable to
correct the web
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1 site information such that any citizen who
goes to the web
2
site would click on to "Dr. Giarrusso" and would find that she
3 was suspended.
4 There's no disposition. And most egregious is the
5 alleged fact that the suspension was the
result of
6 Dr. Giarrusso's ingestion of mind-altering
or mood-altering
7 substances, all of which is absolutely
false.
8 One of the things that -- and I
don't know how much
9 time you all have had to spend on this one
case, but I've
10 prepared this PowerPoint presentation, which
we're getting to
11 now.
12 A complaint was issued in this
case. The complaint
13 alleged three counts. They all dealt with violations of
14 different sections of the administrative
code. They were all
15 predicated on two things: One of the predicates of the
16 complaint and the order that was issued and the
order of
17 summary suspension was that Dr. Giarrusso
was served an order
18 compelling her to drop a random UA sample,
to provide a
19 sample.
20 We have always maintained -- and we
know now because
21 there was a trial in this matter -- under
oath -- everyone
22 testified -- Dr. Giarrusso was never served
with this order.
23 So somebody, best-case scenario, made a
mistake; worst-case
24
scenario, lied and/or fabricated information and gave it to
25 the Board.
Because, as you all know, in the absence of proper
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1 service, you had no ability to exercise your
discretion in
2 favor of summary suspension.
3 So may I stand over here?
4 There was -- one of the things in the
complaint in
5 the order for summary suspension reflected,
"Probable cause
6 exists to believe that Respondent was using
drugs." That is
7 absolutely untrue. Notwithstanding the 100 percent
8 untruthfulness of this statement, this is
what appears on the
9 web site today.
10 "Dr. Giarrusso was served with
the order": Flat-out
11 lie, misstatement, mistake; call it what you
will, this never
12 happened.
13 Brad Thompson issued an
affidavit. I'm going to talk
14 about the affidavit in just a moment. There came a time when
15 Brad Thompson, the former director of the
Foundation,
16 supposedly had a conversation with Dr.
Giarrusso and asked her
17 to give a sample.
18 DR. ANWAR: Question:
Is that Brad Thompson,
19 Dr. Thompson?
20 MR. SGRO: Dr. Thompson, yes. He testified at trial
21 and put into an order that he could not
verify information
22 that Dr. Giarrusso could give -- had given
him relative to a
23
surgery she had.
24 I asked him what you do. "Well, I contacted some
25 secret sources." And essentially what he did was, he, in his
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1 mind, determined that because Dr. Giarrusso
went to work too
2 quickly, that she didn't have enough time to
recover from her
3
surgery; therefore, she didn't have it.
4 I produced the surgical records at
the trial. This,
5 however, appears in an affidavit that he
submitted before you
6 all.
That nonverification is absurd.
7 There was an allegation that the
public was in
8 danger.
Mr. Quinn ably represented this Board at the trial
9 and, at the conclusion of the hearing,
voluntarily dismissed
10 Count III, which was the only allegation
that dealt with drugs
11 or any mind-altering substances. And ironically enough, that
12 was the main thrust of what occurred to Dr.
Giarrusso in this
13 case.
14 There was a reference in the order
for summary
15 suspension, in the order and in the
complaint, about an
16 affidavit that Dr. Thompson completed that
was the predicate
17 or the basis for some of the activity that
took place in this
18 case relative to the issuing of orders.
19 Now, the order comes out the end of
March of 2004.
20 Dr. Thompson testified at the trial that he
did not complete
21 the affidavit that was ostensibly relied
upon to effectuate
22 the suspension until April 20. Obviously, he cannot have an
23 affidavit which the Board relied upon that
he authored if it
24 was not even prepared until three weeks
after the order was
25 issued.
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1 These are the things you were not
told.
2 Documents in the case were
altered. On two separate
3 occasions, there were words transposed and
words added.
4 Unilateral decisions were made in
the Giarrusso case
5 to destroy documents.
6 Now, I understand that the medical
board trial is
7 informal, not all of the rules of evidence
apply, but the
8 testimony from the investigator was that, on
his own volition,
9 Investigator Cooper elected to destroy
things that he deemed
10 -- personally, unilaterally, without the
benefit of counsel --
11 he deemed it to no longer be relevant, so he
destroyed them.
12 There was a conversation Dr.
Giarrusso had with
13 Dr. Montoya.
The history of this is somewhat tortured because
14 there's a long, extended relationship between
Dr. Giarrusso
15 and the Foundation.
16 She came down in April of 2003,
signs a contract in
17 May 11, 2003, enters into a six-month
deal. She's randomly
18 tested in April, she's randomly tested in
December.
19 Starting in January of 2'04, she
starts to make
20 efforts to be "discharged," for
lack of a better term, and
21 seeks the removal of the condition on her
license.
22 She gets frustrated because she has
no success. The
23 Foundation is frustrated because she,
quote-unquote, "slipped
24 through the cracks."
25 There is a culmination of
frustration which reaches
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1 the point where Dr. Giarrusso contacts Dr.
Montoya.
2 Dr. Montoya conference-calls Tony Clark, and
in a three-way
3 telephone call, they agree, if you do one
more urinalysis
4 test, this will be over.
5 Well, the long and short of it is,
the persons in
6 Las Vegas seeking to serve the order -- the
best way to put it
7 is, the left hand did not know what the
right hand was doing.
8 This never occurs.
9 What occurs, in fact, 24 hours
after this
10 conversation, is a suspension.
11 There is an emergency meeting that
you all hold. The
12 statutory basis for the emergency meeting is
not the authority
13 under which you are even allowed to
operate. The statute is
14 incorrectly cited.
15 Counsel for the Board acknowledged
this at the trial
16 and simply offered an apology. Nonetheless, the very
17 authority that authorizes you all to
exercise your judgment
18 and issue a suspension was not present.
19 DR. LUBRITZ: Is there a way to print this out?
20 MR. SGRO: I can provide a printed-out copy. Because
21 of the shortness of time, I did not print
this out, but I will
22 be happy to do so when we're finished, and
before we leave,
23 everyone will have a copy.
24 DR. LUBRITZ: Thank you.
25 MR. SGRO: The Foundation leadership at the time
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1 Dr. Giarrusso went through her program was
comprised
2 100 percent of recovering drug addicts, and
here's why this is
3 relevant:
If you say you have a problem, you are a drug
4 addict; if you say you do not have a
problem, you are in
5 denial.
6 And that sort of thinking is
rampant throughout the
7 Foundation -- or at least, it was at the
time Dr. Giarrusso
8 went through her ordeal.
9 There is no statement that can be
given to the
10 Foundation which cannot somehow be construed
into either an
11 admission or denial of a drug problem. If you drink too much
12
water, the only reason it could be is because you were
13 attempting to adulterate your urine such
that you come up
14 clean.
If you don't drink any water, you're simply trying to
15 mask and concentrate your urine so you don't
come out dirty or
16 you have an excuse.
17 If you are any physician practicing
in the entire
18 state of Nevada, and Carol Bowers would have
come up to you
19 without any rhyme or reason and just said,
"Hey, I need a
20 urine sample immediately," and you say,
"No, I'm busy," "I'm
21 going to surgery," whatever, you are a
drug addict, because
22 that is a red flag.
23 And I asked specifically, without
any basis or
24 foundation whatsoever, "Any refusal is
tantamount to a
25 positive sample?" She says, "Yes." That was the basis under
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 which those persons' mind-set was geared.
2 Now, incredibly, the suspension,
the complaint, and
3 the order are all the result of
misinformation disseminated to
4 this Board.
5 Because of the foundational -- or
evidentiary
6 restrictions that we had to deal with at the
trial, I don't
7 know which person or group of persons caused
the dissemination
8 of false information to this Board which
caused this Board to
9 act in the manner it did.
10 I can tell you, as serious as I'm
standing here, you
11 were told false information. I do not want to believe that a
12 group of physicians, lawyers and
nonphysician/nonlawyers sat
13 in a room and swore out these documents
knowing that they were
14 false.
That essentially is what occurred.
15 At the conclusion of the hearing,
what I have just
16 told you all bore out to be true. As a result of that, we
17 executed a settlement agreement.
18 The agreement was drafted such that
there would be a
19 parting of the ways between Dr. Thompson,
Carol Bowers, and
20 Dr. Giarrusso.
21 Dr. Mansky's arrival did not occur
at the time we
22 originally anticipated it would, so Counsel
for the Board has
23 been contacting my office. And from the time we left the
24 trial to today, Counsel for the Board has,
from time to time,
25 contacted me, allotting Dr. Giarrusso a
reasonable time within
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1 which to provide a urine sample.
2 Every sample, every drug test that
there has been
3 since the inception of Dr. Giarrusso's trial
in the State of
4 Nevada through today, has always been
negative.
5 There has never been a basis for
the suspension. The
6 web site and the negative, derogatory
information that existed
7 when a phony, fabricated complaint was
drafted still exists
8 today.
9 PRESIDENT MONTOYA: We hear you.
You are reiterating
10 several facts.
11 MR. SGRO: You know what, this is not my world,
12 Dr. Montoya.
With all due respect, I have not ever seen
13 anything like this where there has been such
resistance to
14 correct what appears to the common person an
egregious error,
15 and it just boggles my mind that a physician
as credentialed
16 as Dr. Giarrusso -- she comes from Stanford
to Nevada -- has
17 to encounter this, and here I am asking the
Board six months
18 later to correct a mistake that should have
been corrected
19 back in May that never should have occurred
in the first
20 place.
21 PRESIDENT MONTOYA: Dr. Giarrusso, have you anything
22 to say?
23 DR. GIARRUSSO: Actually, I think Mr. Sgro explained
24 the situation really well, more eloquently
than I could.
25 You know, I would like to point out
that throughout
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1 this entire situation, I've made several
attempts to contact
2 the Board.
There, you know, was never an attempt to try and
3
run away from the Board, as Mr. Quinn accused me of, thumbing
4 my nose at the Board.
5 As soon as I realized that the
Foundation had failed
6 and, in my view, was incompetent in doing the
job that you had
7 asked them to do, I contacted Mr.
Clark. That was not very
8 helpful.
I wrote letters to the Medical Board.
I contacted
9 Dr. Montoya, which was helpful. But as you know, things kind
10 of spiraled out of control at that
particular point.
11 I would also like to say that on
the day of my
12 suspension, as those board members that were
here at the time
13 well know, I sent a letter and a negative
urine to the Board.
14 That was before my suspension. That was a clear attempt to
15 work directly with the Board. I stated that clearly in my
16 letter.
17 DR. BAEPLER:
The negative urine was collected by
18 whom?
19 DR. GIARRUSSO: It was by Quest Diagnostic.
20 DR. BAEPLER: It was not the diversion program?
21 DR. GIARRUSSO: It was not the diversion program, no.
22 And throughout my attempts to contact the
Board, I had
23 mentioned several times that I would be
happy to work with the
24 Board in this matter. If they felt that there was something
25 further that I needed to do regarding
monitoring, urine
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 samples, whatever, I was happy to do it.
2 My concern all along -- and I have
clearly expressed
3 this to the Board, since I first contacted
Mr. Clark; I
4 believe it was maybe February, February 2004
-- I was willing
5 to work directly with the Board.
6 The Foundation had clearly
failed. I was
7 uncomfortable with that. I'm not going to name particular
8 names in the Foundation because although
they were willing to
9 drag my name needlessly through the mud, I'm
not going to do
10 that to them. But there are people on that board who I do
not
11 believe to be qualified to be in that
position.
12 PRESIDENT MONTOYA: On the Foundation, not the Board.
13 DR. GIARRUSSO: I'm sorry, on the Foundation, not the
14 Board.
Sorry if I misspoke.
15 PRESIDENT MONTOYA: What do you want at this point of
16 the Board?
17 DR. GIARRUSSO: What would I like?
18 PRESIDENT MONTOYA: Best of all worlds, what would
19 you like?
20 DR. GIARRUSSO: This needs to be taken off the public
21 record, what is documented on the web site.
22 PRESIDENT MONTOYA: Which part off the public record?
23 What do you want specifically eliminated?
24 DR. GIARRUSSO: Everything that's false. Everything
25 that's false needs to be taken off the
public record.
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1 PRESIDENT MONTOYA: I can't go that way. Is there a
2 statement on there, specific -- do you have
it printed out for
3
me so you can say this is what we want removed?
4 DR. GIARRUSSO: I believe we actually do have the
5 actual web site. I also feel that this needs to be expunged
6 from the national practitioner databank,
which it can be,
7 because California did it.
8 PRESIDENT MONTOYA: Which is the priority? Which is
9 the first that you would -- which is the
biggest thing that
10 you want taken care of?
11 DR. GIARRUSSO: I would say the databank, because the
12 databank is the thing that prevents me from
-- if I choose to
13 move out of state, that's the thing that
really prevents me
14 from doing that.
15 PRESIDENT MONTOYA: May we go into closed session?
16 MS. KIRCH: So moved.
17 MS. BIBLE: It's not allowed to go in a closed
18 session.
19 MS. KIRCH: So we can't go into closed?
20 MS. BIBLE: No.
21 PRESIDENT MONTOYA: So we're not closed.
22 DR. GIARRUSSO: I'm comfortable with being open.
23 MR. SGRO: We're comfortable. In fact, in light of
24 everything that's occurred --
25 DR. GIARRUSSO: I have nothing to hide.
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1 DR. BAEPLER: The problem is, we have limited time.
2 I appreciate your presentation, but I know
there's another
3 side to the presentation too. And we're rehashing all of
4 that.
5 PRESIDENT MONTOYA: Well, we have the other side's
6 recommendation, and you're quite clear on
that. We know what
7 the other side said. We know what went on here. I don't get
8 to vote because I was contacted by her.
9 All I can tell you is, at that
time, I was actually
10 ordered not to say anything. But this is a doctor's career
11 here.
Everything was a mess that day.
Everything was a mess.
12 She called me: "What do I do?" That's why I called Tony.
13 That's why I called Cheryl. I didn't act unilaterally.
14 I said, what should we do? We came up with this
15 plan.
We didn't know it, but Doug already had the IC -- the
16 order in his hands from your IC; I didn't
know it, and that
17 sort of thing started going.
18 She thought she had an agreement
with me, and it's
19 very, very confusing. We did hear her misspeak a minute ago.
20 There was the -- basically, she didn't know
the difference
21 between the Foundation and the Board. An order from the
22 Foundation, a demand from the Board, a
demand from her
23 stepmother.
There was a lot of confusion going on at that
24 point.
And at that, I will leave it alone and leave it open
25 to discussion for the Board.
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1 Dr. Lubritz?
2 DR. LUBRITZ: Well, I have some questions. How much
3 time are we going to take?
4 PRESIDENT MONTOYA: I give this another five minutes.
5 DR. LUBRITZ: Because I can't get all the information
6 I need in five minutes. Here is Dr. Giarrusso, who has made
7 some claims through her attorney. If I don't have a chance to
8 ask questions, since I wasn't in on the
meeting -- and there
9 are always two sides, and I'm not saying
that there's -- one
10 is correct or the other one. I just don't have the
11 information.
12 If you want to vote, I won't vote,
because I can't
13 vote on something that I don't have all the
information on. I
14 need to know about the conversation.
15 PRESIDENT MONTOYA: Ask some questions, please.
16 DR. LUBRITZ: It's going to take more than five
17 minutes, I can tell you. It's going to take half the morning.
18 PRESIDENT MONTOYA: Half the morning?
19 DR. BAEPLER: Do we have a new settlement agreement
20 proposed that we can act on?
21 MR. QUINN: Let me address that issue of the
22 settlement agreement. And, Mr. Sgro, you drafted a settlement
23 agreement.
It was proposed and rejected by the Board. And we
24 returned it to you with some revised
language, that we
25 revised, I believe, two words, changed the
words -- on two
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1 occasions, changed the word
"assist" to "cooperate," and on
2 the third occasion, removed the word
"remove" -- deleted the
3 word "remove," referring to the
databank record. Those are
4 the only changes we made.
5 The problem is, no order can be
entered by the Board
6 dismissing this case in furtherance of the
settlement until a
7 settlement agreement is signed. You know, in Nevada law,
8 maybe no settlement exists until it's
signed; although, the
9 settlement has been fully carried out in
this case by all
10 sides, I believe.
11 I don't think -- you don't have a
-- you're not
12 taking the position in any respect that the
Board has
13
advocated or breached any provision of the terms of the
14 settlement, are you?
15 MR. SGRO: I think that the settlement agreement
16 speaks to taking all reasonable and
necessary steps towards
17 putting Dr. Giarrusso at the place she was
before the order of
18 summary suspension was issued. That's in the settlement
19 transcript -- that is in the transcript of
the hearing that we
20 had where you and I agreed to do that.
21 And the gist of that language --
and I don't have it
22 memorized, but the gist of that is
contemplated and is
23 articulated in the settlement agreement.
24 The difficulty we have always had
is that our
25 position has been that prior to that order
of summary
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 suspension, Dr. Giarrusso was never accused,
as it says on
2 this web site, of being -- this is present
tense: "She is
3 under the influence of a mind-altering substance." We all
4 know -- well, the persons involved in the
case all now know
5 that that is absolutely false.
6 MR. QUINN: Okay.
May I bring you back --
7 MR. SGRO: But that is the issue.
8 MR. QUINN: In point of order, sir -- I'm trying to
9 get this focused, and I'm trying to focus,
in the interest of
10 resolving this, whether it be in your -- you
know, as you
11 would like it to have resolved.
12 Part of what I see as necessary to
the resolution is
13 the entry of an order that closes this
formal disciplinary
14 action, at least on the record.
15 Secondly, what's relevant to what
gets published is,
16 what is the reason for that order? The settlement agreement.
17 Those two documents are, in my way
of thinking --
18 although, she's not the person whose
interest I have first to
19 protect -- is that Dr. Giarrusso has an
interest in an order
20 being entered dismissing the disciplinary
action.
21 Secondly, she has an interest in
the settlement
22 agreement, the language that we fabricated
being able to be
23 disseminated.
24 I know you've got other agenda
items, such as
25 expungement of the record, but I would like
to focus on trying
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1 to achieve those two things.
2 MR. SGRO: Let me show you an example --
3 DR. LUBRITZ: If you don't mind, may I?
4 MR. SGRO: Sure.
5 DR. LUBRITZ: You made a statement -- and again, as
6 far as I'm concerned, what you said isn't
true, and that is
7 that we know that there was no mind-altering
substances that
8 Dr. Giarrusso was using.
9 The reason that we don't know that
is, is she didn't
10 give the urine specimen at the time that we
say -- not me, but
11 the Board says was appropriate for her to
give it. She didn't
12 give it to whomever they said would get it.
13 Now, because that is only there for a
certain period
14 of time, if one did take it -- and I'm not
saying
15 Dr. Giarrusso did or did not. What I'm saying is, you can't
16 make the leap of faith that says, because
she is clean now
17 does not mean that she was clean at the time
that they asked
18 for the urine specimen.
19 MR. SGRO: On her own volition --
20 DR. LUBRITZ: Stop.
Wait.
21 MR. SGRO: I thought you were communicating with me,
22 Dr. Lubritz.
23 DR. LUBRITZ: Well, if she wants to answer, she's the
24 one that's licensed, so I would suggest, if
she wants to say
25 something, please let her say something.
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1 DR. GIARRUSSO: It's impossible to comply or refuse,
2 given an unserved order.
3 MR. QUINN: Well, you knew there was --
4 DR. GIARRUSSO: Excuse me, Mr. Quinn, I'm talking to
5
Dr. Lubritz.
6 DR. LUBRITZ: Excuse me.
Am I out of line?
7 MR. QUINN: No, you're not.
8 DR. LUBRITZ: Dr. Giarrusso, you are here trying to
9 get your license. Now, I'm going to tell you that if you
10 continue in that attitude, it's been my
thought here -- and
11 I've been here for seven years -- you're
probably not going to
12 get what you want.
13 If you'll just -- if you'd have
done the thing that
14 was asked of you at the very beginning, you
wouldn't be
15 sitting here, assuming that you were clean,
and I'm not going
16 to assume that I know, because that's what
we have diversion
17 here to help us with.
18 DR. GIARRUSSO: Sir, could you please tell me what
19 your referring to? What are you referring to? What was asked
20
of me that I didn't do?
21 DR. LUBRITZ: The first urine sample.
22 DR. GIARRUSSO: From?
23 DR. LUBRITZ: The first urine sample.
24 MR. SGRO: Which urine sample?
25 MR. QUINN: That one was that ordered by Carol
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1
Bowers.
2 MR. SGRO: She gave -- that was in April of 2001.
3 DR. BAEPLER: No, no, after she entered the diversion
4 program, towards the very end of the
diversion program.
5 MR. SGRO: That would be December of 2003, which she
6 gave.
The issue here --
7 (People begin speaking at the same
time.)
8 MR. SGRO: No, she gave it. What's happening here is
9 we're talking past each other. Because what occurred in the
10 case was between May 11th and November 11th,
which would have
11 ostensibly been the six-month term, no
request was ever made
12
of Dr. Giarrusso to provide a urine sample.
13 DR. BAEPLER: Are you saying you never refused to
14 give a urine sample to Carol Bowers?
15 DR. GIARRUSSO: I never refused Carol Bowers.
16 DR. BAEPLER: Nor anyone else from the Foundation?
17 DR. GIARRUSSO: Are we talking about during the
18 contract during the time that I was actually
required to be
19 with the Foundation? Because that did not happen.
20 DR. LUBRITZ: This requires a yes-or-no answer. Were
21 you ever requested to give a sample that you
did not give
22 either by diversion or the Board, or
whomever, plain and
23 simple, yes, no?
24 DR. GIARRUSSO: Yes. I
was not under any obligation
25 with the Foundation.
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1 DR. LUBRITZ: I didn't ask you if you were under an
2 obligation.
I asked you, did you refuse, yes, no?
3 DR. ANJUM: Who did you refuse to?
4 DR. GIARRUSSO: Brad Thompson.
5 DR. ANJUM: Who does he work for?
6 DR. GIARRUSSO: Because I was uncomfortable with the
7 Foundation.
I'm not sure --
8 DR. ANJUM: Who does Brad Thompson work for?
9 DR. GIARRUSSO: I want to clarify something. I'm not
10 sure where the animosity or the anger that
I'm feeling is
11 coming from because my --
12 DR. ANJUM: It's not anger or animosity.
13 DR. GIARRUSSO: Okay.
14 DR. ANJUM: There's an easier way to resolve the
15 issue, and there's a harder way to do
things. If you want to
16 go and prove that you were never asked and
that was a lie, we
17 can all discuss this matter here or in the
court forever and
18 ever and ever, and nobody would benefit from
it.
19 There's a simple way of saying all
the facts, trying
20 to do the best in the shortest period of
time, with the
21 interest of you in mind.
22 And I would suggest, if you tell
what it is that I --
23 what you did wrong, what can we do to help
the coalition and
24 resolve it and get behind it.
25 DR. GIARRUSSO: Okay.
I think when I started this --
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1 when I started speaking to you, I tried to
explain to you that
2 I had wanted to come and discuss this issue
with the medical
3 board since approximately February of 2004.
4 The Foundation, in my case, has
failed. There are
5 some people on that Foundation that I have
some strong
6 concerns about. Since my case started, I've been approached
7 by multiple doctors in Las Vegas who've had
serious problems
8 with the Foundation. Okay?
9 My concern back in February was
that Brad Thompson
10 wasn't qualified to be in that
position. Okay?
11 I wasn't under a contract. I wasn't under an
12 obligation.
I had done what the Foundation asked me to do. I
13 had heard reports of the Foundation
passively contaminating
14 urine samples. Whether that's true, I don't know.
15 DR. LUBRITZ: May I speak?
16 PRESIDENT MONTOYA: Let me ask her -- you're going
17 off, Dr. Giarrusso. We want to get this very focused. If you
18 can just tell us what happened that day.
19 DR. GIARRUSSO: What day?
20 PRESIDENT MONTOYA: The day you talked to me and the
21 day after.
We know you finished your obligation.
We know
22 that was gone. That's before us. We know you were at a
23 meeting for the diversion. There were other people in the
24 room with you. And all of a sudden, somebody came in the
room
25 and asked you what? Dr. Brad Thompson?
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1 DR. GIARRUSSO: I'm sorry, you're talking about the
2 day that I talked to you, or are you talking
about a different
3 day?
4 PRESIDENT MONTOYA: The day you talked to me.
5 DR. GIARRUSSO: I never saw Brad Thompson that day.
6 I never saw Doug Cooper until four days
later.
7 PRESIDENT MONTOYA: Who asked you to give the urine
8 sample?
9 DR. GIARRUSSO: I spoke with Brad Thompson on the
10 telephone.
I then called you and talked to you.
11 Brad Thompson never said anything
about an order. I,
12 by the way, had no idea what an order
was. And I didn't know,
13 you know, and the lines were very blurred
for me at that
14 point.
15 I called you. We discussed the possibility of one
16 more urine, the possibility of having an
agreement that this
17 would be the end of this situation. Okay?
18 I then got a call from Doug
Cooper. I had no idea
19
who he was. He said that he had a
request for my urine. I
20 asked him to take it to my counsel. It was not Mr. Sgro at
21 that time.
22 DR. HAEBLER: What did you do then?
23 DR. ANJUM: Did you ask him who he was?
24 DR. GIARRUSSO: I assumed he was with the Foundation.
25 That was an assumption I made.
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1 DR. BAEPLER: Why would you say no to somebody in the
2 Foundation?
3 DR. GIARRUSSO: I didn't say no. I never said no.
4 DR. BAEPLER: Why would you direct a member of the
5 Foundation to your attorney when he's only
asking for a urine
6 sample?
7 DR. GIARRUSSO: Because I had a lot of concerns about
8 the Foundation at that time, and I was
concerned about what
9 this was all about. He represented to me that he would bring
10 that to my attorney.
11 He then called me back and told me
he was going to
12 bring it to my house. Okay?
13 DR. BAEPLER: Bring what?
14 DR. GIARRUSSO: Bring the request for the urine to my
15 house, which I now know is the order.
16 DR. BAEPLER: Well, did he?
17 DR. GIARRUSSO: No.
18 DR. BAEPLER: There was a suggestion that you took
19 evasive action to avoid being served.
20 DR. GIARRUSSO: Never took any action. I was home
21 all night.
22 DR. ANJUM: Not only that, but you're admitting
23 clearly that you were served this order many
times. You've
24 just admitted through your PowerPoint
presentation that you
25 were never served, which can be so false,
it's hard to
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 believe.
2 DR. GIARRUSSO: Dr. Anjum, I wasn't served an order.
3 That's the whole thing.
4 DR. ANJUM: You said you saw Doug Cooper.
5 DR. GIARRUSSO: I didn't see Doug Cooper until four
6 days later.
7 DR. ANJUM: Whenever you are asked to give a sample,
8 if you have any questions, all you have to
do is pick up the
9 phone and call the Board.
10 DR. GIARRUSSO: Sir, I couldn't get a hold of the
11 Board.
12 DR. ANJUM: Somebody is here all the time.
13 DR. GIARRUSSO: Dr. Anjum, I was not served with that
14 order.
There is no process of service.
It's required that
15 you have a process of service.
16 MR. QUINN: Tony, I want to address something now.
17 DR. ANJUM: Where does it say it's required?
18 DR. GIARRUSSO: It's in your own statutes, that
19 process service must be done personally.
20 MR. QUINN: That's a misstatement of law.
21 DR. ANJUM: We agree with the organization. Forget
22 what qualifications they have. And they serve a purpose. And
23 like I said before, if you just go by their
-- if you just
24 start reading the fine print in the statute,
the person is
25 going to complicate the matter, and that's
exactly what you
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1 have done.
2 If you go by -- we have a contract
with the
3 Foundation, and -- whatever group it's for,
you know. And we
4 tell them to do a job, and they do the best
they can, and we
5 try to resolve the problem. And that's where the issue came
6 from.
7 PRESIDENT MONTOYA: I have one question. Let me
8 ask -- I'm sorry. The public hasn't gotten a chance to
9 say anything.
10 MS. KIRCH: I'm just saying I'm not in a position to
11 address this issue, and I think we need to
move forward.
12 PRESIDENT MONTOYA: It's service versus nonservice,
13 that kind of thing.
14 MS. KIRCH: There's a lot of things that are involved
15 in this, and I'm not ready to act on this
today.
16 PRESIDENT MONTOYA: The question can be answered by
17 the deputy district attorney.
18 MS. BIBLE: Mr. Quinn or Mr. Sgro, the Board has a
19 stipulation and agreement that was signed by
the parties, and
20 then there's an amended settlement
agreement, which is the
21 settlement agreement that was supposedly to
be approved by the
22 Board today.
23
MR. QUINN: Well, that's the
issue. The amendment --
24 the original settlement agreement I signed,
presented to the
25 Board, the Board rejected. The amendment makes three changes.
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1 The amendment was approved by the
investigative committee.
2 And then if it were signed, agreed to by Mr.
-- by
3 Dr. Giarrusso, then that would have been
presented for
4 approval, but Dr. Giarrusso refused.
5 The dilemma that I'd like to
present that I think
6 you're creating -- and I'm not sure on this
-- is, if you
7 don't -- if we don't settle this, that we
don't have a
8 settlement, the result is the Board is going
to adjudicate
9 this.
10 MR. SGRO: Well, I think we do have a settlement, you
11 and I.
12 MR. QUINN: Well, you know what the rules are in
13 Nevada if it's not signed. You and I both signed it, but I
14 don't have authority to sign for the Board.
15 PRESIDENT MONTOYA: It does to us.
16 MS. BIBLE: Right.
Mr. Sgro, as you know, the
17 settlement agreement was admitted on behalf
of the prosecuting
18
entity of the Board, which then has to go before the full
19 board for their approval to accept that
settlement agreement.
20 MR. SGRO: Here's the dilemma I have: You, as a
21 board, have counsel that obviously and
always acts on your
22 behalf.
Mr. Quinn, as counsel for the Board, has represented
23 to the hearing officer and to me, as an
officer of the court,
24 that he had the authority and acted with the
authority to
25 resolve the case. So what he said is in the transcript.
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1 MR. QUINN: No, it isn't, sir.
2 MR. SGRO: Please let me finish, because you asked me
3 a question.
I generate a written document that I send to
4 Mr. Quinn.
He signs it. He sends it back to
me. To me,
5 that's a contract settlement, negotiated
resolution, however
6 you want to call it. Both of our signatures appear on the
7 page.
8 I represent one party on the case;
Steve Quinn
9 represents another party. Why, then, would I ever entertain
10 the notion of executing a different
deal? If you purchase a
11 home for $500,000 and you get another contract
the next day,
12 do you just sign it, or do you live by the
first one?
13 MS. BIBLE: Mr. Sgro, you know how administrative law
14 works.
You understand how the Board is comprised, how there's
15 an investigative committee that brings the
complaint.
16 Mr. Quinn represented the
investigative committee on
17 their behalf, who prosecuted it as a
prosecutor. Then he
18 brings it back to the full board. The full board never
19 authorized that complaint. They are the adjudicators, and you
20 know how they operate, or you should have
understood how they
21 operate.
22 So when he said he was settling it, he was
settling
23 it to make a recommendation to the Board on
behalf of the IC
24 committee.
So when he did that, he did commit to you, yes,
25 this is the agreement I will recommend to
the full board.
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1 But the full board has the
opportunity to either
2 accept it or reject it or even to suggest
additional changes
3 that then -- that's totally up to the
individual parties to
4 accept those amendments by the Board or not.
5 MR. SGRO:
Here's the difficulty --
6 PRESIDENT MONTOYA: I'm going to stop this. Now
7 you're getting into points of law that,
quite frankly, the
8 Board is not interested in, and -- but we
have to abide by it.
9 I'm going to ask the Board here,
are there any
10 motions?
11 DR. ANJUM: Do we have a new stipulation or agreement
12 from their attorney or from her that we can
look into?
13 PRESIDENT MONTOYA: That's the admitted agreement. I
14 want to hear, are there any motions out
there that anybody
15 wants to make?
16 DR. BAEPLER: I don't know quite what's appropriate.
17 MR. CLARK: Mr. President, remember, there are only
18 five voting members of the Board that can
consider this, and
19 IC members can't.
20 DR. BAEPLER: We're not adjudicating it. But the IC
21 committee can certainly --
22 PRESIDENT MONTOYA: It's not been adjudicated.
23 DR. BAEPLER: No, no.
And the -- it depends on what
24
the motion is, as to whether the IC can participate or not.
25 PRESIDENT MONTOYA: Is there any motion?
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1 Dr. Lubritz?
2 DR. LUBRITZ: May I speak with counsel for a moment?
3 PRESIDENT MONTOYA: Okay.
This has gone on for 40
4 minutes.
5 MS. KIRCH: Do we just need to table the matter?
6 PRESIDENT MONTOYA: No.
I'm ahead of schedule so
7 far, so I'm all right.
8 MS. KIRCH: I'm just wondering, do we need to table
9 it if Dr. Giarrusso and her attorney have
brought up some
10 additional information that we may or may
not have?
11 We did not approve the settlement
agreement, and one
12
reason we didn't is, I was one of the ones that did not like
13 the language. There's things we can and cannot do. If you're
14 unwilling to execute the amended settlement
agreement, I think
15 we have a problem.
16 And I'm not willing to act
today. And since we don't
17 have anything before us, because we rejected
the initial
18 settlement agreement, we've presented one to
you that we have
19 drafted, and we would abide by that, I
believe, because that
20 was our recommendation. If you're not willing to do that,
21 then I don't know where we go from here.
22 DR. BAEPLER: Settlements come out of the IC for a
23 recommendation for the Board.
24 MS. KIRCH: The Board made a recommendation that we
25 rejected.
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1 DR. BAEPLER: It may be appropriate to send it back
2 to the IC committee, which I sort of think
of -- to see if we
3
can recommend another settlement agreement to the Board.
4 DR. GIARRUSSO: Ms. Kirch, part of the reason that we
5 weren't willing to accept any amendment is
we felt that the
6 Board hadn't been given the full information
or had been
7 misled, and that was the point of Mr. Sgro's
presentation.
8 DR. BAEPLER: But did the settlement agreement give
9 you anything you wanted, so what difference
does that make?
10 MR. SGRO: Well, because Mr. Quinn removed the word
11 "remove," because this database
issue is a big deal for us.
12 DR. BAEPLER: We cannot remove it from the federal
13 register.
We can assist you in getting it removed.
14 PRESIDENT MONTOYA: Actually, we can.
15 DR. BAEPLER: We can?
16 PRESIDENT MONTOYA: Yes, we can.
17 DR. BAEPLER: By -- well, we have to ask them to do
18 it.
19 PRESIDENT MONTOYA: Yes, we have to ask them to do
20 it.
21 DR. BAEPLER: Okay.
But they have to remove it.
22 PRESIDENT MONTOYA: And they can remove it at our
23 request.
24 I'm tabling this. This will be tabled, and I'm going
25 to be requesting some more information from
the parties. And,
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 sorry, I tried to give you a fair shake in
this whole thing.
2 MR. SGRO: And with all due respect, I don't know if
3 five minutes is a fair shake. My presentation was limited to
4 five minutes.
5 DR. ANJUM: You took longer than that.
6 PRESIDENT MONTOYA: It's your presentation, and
7 instead of resolving the problem, it ended
up that
8 Dr. Giarrusso and you just want to talk.
9 MR. SGRO: No, no, no.
All I want to explain to the
10 Board --
11 (People begin speaking at the same
time.)
12 DR. ANJUM: -- is qualified to do what? We're trying
13 to resolve the problem.
14 MR. SGRO: I never suggested to anyone anyone's
15 qualifications. I'm saying the Board acted on misinformation
16 at the time.
The service was never executed.
Accordingly,
17 the suspension should not have
occurred. Accordingly, the
18 database should be corrected.
19 PRESIDENT MONTOYA: We got those points. Thank you
20 very much.
This is going to be tabled for further discussion
21 at some later date or time or through mail
or through contact
22 of attorneys and the Board and phone
conferences. I'm not
23 sure which.
24 MR. SGRO: How does the Board suggest to proceed,
25 because until approximately two weeks --
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1 PRESIDENT MONTOYA: Right now, this is tabled, and so
2 I'm not going to try to make a decision for
the Board.
3 MR. SGRO: I understand that, but she --
4 MR. COUSINEAU: If you would provide a copy of your
5 PowerPoint presentation.
6 MR. SGRO: I will do that.
7 PRESIDENT MONTOYA: We're going to try to get this
8 out of the way. That's why I gave you so much time at this
9 point.
But I know this is an impediment to things. I can't
10 do it.
We're willing to move and instead of continuing on
11 this banter of legal points, we're stopping
right now.
12
I thank Dr. Giarrusso for coming all the way up here,
13 and Mr. Sgro for taking her point. We're going to be moving
14 on, on the agenda.
15 DR. GIARRUSSO: Thank you.
16 (A discussion was held off the
record.)
17 PRESIDENT MONTOYA: Coming back to Number 10, which
18 we discussed for quite a length of time, how
much time have we
19 allotted for that one?
20 MR. CLARK: Mr. President?
21 PRESIDENT MONTOYA: Yes?
22 MR. CLARK: Would you go on to Number 14,
"Reports,"
23 and allow the Foundation to speak first.
24 PRESIDENT MONTOYA: That's an excellent point.
25 MR. CLARK: Dr. Mansky is here.
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1 PRESIDENT MONTOYA: Can I ask you, please -- if I can
2 ask you, we had a round-robin this morning
where everybody
3 introduced themselves, their grandmothers
and second cousins.
4 So now is your opportunity.
5 DR. MANSKY: Thank you very much. I want to -- I'm
6 Peter Mansky, and this is Roger Belcourt,
who is our
7 president, and Dr. Brad Thompson is on the
-- should be on the
8 video from Las Vegas. So we're glad to be here.
9 I'm sort of reminded of the Tale of
Two Cities: It
10 was the worst of times and the best of
times. I'm not sure
11
what it is, coming on it after -- at this point.
12 I've distributed a report
representing the
13 Foundation.
I started as of August 9th of this year.
14 Dr. Brad Thompson will remain medical director
until I am
15 licensed in Nevada, and then I'll be
director.
16 I'm acting as executive director at
this point.
17 Roger Belcourt is our incoming president,
and Tim Coughlin
18 will be our immediate past president. Dr. Jerry Cade will be
19 our vice president. Arnie Rosencrantz will be our secretary,
20 and Dr. Jerry Jackson will be our treasurer.
21 What I've given is -- one of the
things that
22 attracted me most to the Nevada program was
the strong network
23 of physicians helping physicians. And this is a very strong
24 network, and I've followed this over the
years through
25 national organizations and people who came
from Nevada talking
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 about this.
2 Certainly, when I came here to
interview, I saw this
3 strong network. What I would like to do is be able to serve
4 the program to develop -- to bring some of
the structure that
5
a good director can bring to a program.
6 And so I've given some histories of
physician health
7 programs for you to look at because I think
that's quite
8 valuable, that they started over 30 years
ago, that
9 originally, they were a network of
physicians helping
10 physicians.
11 And then a couple of things have
happened. We've
12 gotten national treatment centers that have
gathered data.
13 We've had -- the Federation of State
Physicians health
14 programs has been developed, which has
developed guidelines,
15 and the state -- the Federation of State
Medical Boards, in
16
1995, I believe it was, had had an ad hoc committee on
17 impaired physicians, which also came up with
some guidelines.
18 So I've watched -- over the 12 or
more years I've
19 been in the field, I've watched the field go
from one of
20 physicians helping physicians to one with
more structure.
21 And the structure of our
functioning I just outlined,
22 and I think one of the most important is our
outreach and
23 education where we can use preventative
measures by our
24 educating medical students and residents and
the community to
25 pick up.
Case identification I think is very important.
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1 We are health-oriented, and I think
one of the things
2 we need to stick to is, there are objective
criteria out for
3 psychiatric illnesses, including substance
abuse disorders,
4 drug addiction, and alcoholism, and I think
that we can use
5 these standards very practically to avoid
some of the problems
6 that have existed.
7 I would like -- for example, one of
the things that
8 I've come across is that the use of a --
conditions for
9 participation, since this is the diversion
program, is really
10 the choice of the individual to divert from
discipline. And
11 if we, rather than contract, call it a
condition for
12 participation, that may be a way to go and
avoid some of the
13 legal problems.
14 Another thing that we can do is
require a mutual help
15 group, and we can just define that as a
mutual help group
16 addressing a map for recovery consisting of
recovering addicts
17 or alcoholics and contributing to or working
on stopping the
18 isolation, which is so much a trigger for
people who are
19 recovering from drugs and alcohol.
20 This, rather than requiring a
12-step group, would --
21 there are groups that provide this in our
12-step, but for the
22 most part, my experience has been that the
physician chooses
23 the 12-step.
Rather than we mandating the 12-step, we mandate
24 a mutual help group.
25 We can provide -- we provide
monitoring. The word --
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1 I've heard the word here, advocacy is not
honored, and --
2 well, and Nevada has a lot of different
meanings, but advocacy
3 for a physician's health program is
supporting our physicians
4 in their recovery and their return to
practice, as well as
5 helping them out with hospitals, employers,
group practices,
6 managed care, the regulatory care, and
reintegrating into the
7 community.
8 And I want to be clear on the
meaning of that. We
9 also support to the community, support to
the Board, which my
10 hope will be, will be on a more organized
level, and we can
11 provide help to hospitals which are now
under the Jayco
12 Regulation Medical Staff Standard 2.6, which
is described
13 here.
14 Our major goals are to -- we need
to eventually
15 increase our funding and our resource
development in the
16 Foundation.
If the Board is in agreement, we need to develop
17 an office with a support staff, and we'd
like to go in that
18 direction, as well as developing a policy
and procedural
19 manual with standards which I think will be
very helpful in
20 dealing with the individual physician,
dealing with the Board,
21 and dealing with the legal community.
22 So I want to thank you for having
us here today and
23 open any questions you might have.
24 PRESIDENT MONTOYA: We thank you for coming. A lot
25 of pieces to pick up when you got here.
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1 DR. MANSKY: A lot of pieces to pick up. When you
2 have a -- for such -- it took a long time to
get across the
3 country, and we started out by developing a
contract which
4 helped with the job description, and we're
going to build on
5 that.
6 I'm glad I'm here now. I must say that Dr. Brad
7 Thompson did an excellent job as intern
director, but as
8 intern director, you can't do what a
full-time director does.
9 PRESIDENT MONTOYA: Dr. Thompson, are you down there
10 in Las Vegas?
11 DR. THOMPSON: Yes, sir.
12 PRESIDENT MONTOYA: I just put on my glasses. Now I
13 can see you.
Thanks for all your work. I'm
sure you heard
14 your name mentioned more than once.
15 DR. THOMPSON: I'm just recovering from the
16 devastating remarks of Dr. Giarrusso, but
seriously, Peter has
17 already shown a great deal of compassion and
attention to
18 details which we really need, and I'm very
delighted to be
19 working with him.
20 PRESIDENT MONTOYA: And the Board wishes to thank you
21 for the time you sweated and put in and the
time you put in
22 all the stuff you did.
23 Any questions for Dr. Mansky?
24 DR. LUBRITZ:
Yes.
25 PRESIDENT MONTOYA: Okay.
Dr. Lubritz has a
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1 question.
2 DR. LUBRITZ: I always have a question. This is not
3 directed at any -- this is a very generic
question, and I'll
4 ask that you give a generic answer.
5 If you ask a physician for a specimen,
if they do not
6 give you a specimen -- this is for our
future knowledge -- is
7 it generally accepted or not accepted that
they are guilty
8 until proven innocent?
9 DR. THOMPSON: With programs across the country, both
10 those that are tightly connected to the
boards and those that
11 are not, the general procedure is that there
is a time of
12 response when asked to give a urine, that if
the physician
13 refuses to give the urine within that time
period, it's
14 considered a positive.
15 Another thing we can do at that
point is request a
16 hair sample, which would be useful at that
point, but hair
17 samples don't cover all the substances that
are covered in the
18 urine with the profiles we use for
physician's health
19 programs.
20 DR. BAEPLER: They don't all come out in the hair?
21 DR. THOMPSON: You know, I'm not sure if alcohol can
22 be detected in the hair. There are a couple of articles about
23 it, and I think with this new substance,
ETG, which is a
24 metabolite of alcohol, we can now pick it up
two or three days
25 after use, and I'm not sure whether that can
be picked up in
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1 the hair because it's in very small
amounts. It's a minor
2 metabolite of alcohol.
3 DR. LUBRITZ: What is the time frame that one has
4 from the ingestion or in any way entering
into the body the
5 substances that we would be looking for as
for mind-altering
6 drugs?
7
DR. THOMPSON: Some -- it
certainly does depend in
8 terms of doing it. Some of the drugs are very -- metabolize
9 very rapidly and some not so rapidly.
10 For example, Benzoylecgonine, which
is a metabolite
11 of cocaine, can be picked up in two or three
days afterwards;
12 whereas, phentonol, it's hard to pick that
up after four to
13 six hours of use.
14 The urine is very useful this way
because the urine
15 does end up concentrating with whatever is
existing in the
16 blood and gives us, actually, a broader
sample than getting
17 blood at any cross-section in time.
18 DR. LUBRITZ: Thank you.
19 DR. THOMPSON: You're very welcome.
20 DR. ANJUM: When you send a person to collect a urine
21 sample from a physician or whosoever, does
he carry the
22 authority from the Board or from your
Foundation? And how
23 does he react when the person says, "I
don't know who you are
24 and I'm not going to give a sample to
you"?
25 DR. THOMPSON: Well, we collect urine in two ways, at
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1 least, has been my experience here. When we interview
2 candidates for license, we collect urines at
that time. And
3 they know all of us through the Board,
through the licensed
4 specialists.
5 When we collect other urines, it's
a participant in
6 our program who has signed an agreement with
our program so
7 that they know who we are, they know who the
person is
8 collecting the urines, and so that they're
aware of this
9 situation.
10 DR. COUGHLIN: The person who does the urine
11 collection for the intervention that was
just described in the
12 previous scenario is usually the member of
-- senior member of
13 an intervention team, and we request that
they provide a
14 specimen.
Usually, based on a lot of evidence that we have
15 going into that intervention, we'll say,
"Would you mind
16
providing a specimen for us?"
Certainly, it is a red flag if
17 someone says, "Absolutely not."
18 DR. ANJUM: Right.
Do you make a phone call, and how
19 do you keep a record of that, if somebody
can say, "No, I
20 never got a call. They never said anything"?
21 DR. COUGHLIN: This is done person-to-person. When
22 we go to interview somebody, we've gotten
information from
23 your
committee or from Licensing, and we go and meet with
24 them, and we request a urine from them,
that's face-to-face,
25 and that's --
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1 DR. ANJUM: But for later-on samples?
2 DR. COUGHLIN: Later-on samples are done under a
3 contract.
4 DR. ANJUM: Like, we had this problem here last time:
5 The person says, "I never got a request
from anybody," or the
6 person who came, "I don't know who this
person was," or that's
7 why I -- he had no authority, or something.
8 DR. COUGHLIN: There's very little ambiguity when
9 somebody is coming to ask you for a urine
sample. You usually
10 don't mistake that for other events
occurring in your life.
11 PRESIDENT MONTOYA: Thank you for a very direct
12 response.
13 DR. THOMPSON: And there are records provided to us
14 by the people who collect and provide the urine
samples.
15 PRESIDENT MONTOYA: We appreciate you coming. I
16 appreciate you coming also. Welcome to Nevada. It's a
17 beautiful day. Go watch the balloons.
18 Do we have the -- is John
Lanzillotta in Las Vegas
19 here?
20 MR. LANZILLOTTA: Yes, I'm present.
21 PRESIDENT MONTOYA: Where?
Oh, there you are in the
22 corner.
You're barely in the picture. Do
you have any
23 report?
24 MR. LANZILLOTTA: The first part of the report has to
25 do with your Item Number 10, the discussion
and approval of
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1 legislative initiatives for 2005. And that would be the
2 section on the Nevada Revised Statutes
pertaining to the
3 pronouncement of death. And that's 440.415.
4 And the last report, Dr. Montoya, I
also wanted -- or
5 gave information concerning adding
"physician assistant" to
6 the Nevada Revised Statute 440.380 for a PA
to sign a death
7 certificate if delegated by the supervising
physician.
8 I sent by e-mail the changes to
440.415, and what
9 that is, is pronouncement of death by
registered nurse. I
10 added "physician assistant" to all
the articles where that
11 would involve the nurse or the physician or
the physician's
12 associate or the medical director, chief
medical officer of
13 the hospital, or where the patient to be
pronounced was.
14 PRESIDENT MONTOYA: Hang on a minute, John. Did we
15 all find what he's talking about? It's Number 14 on our
16 proposals.
Okay. Go ahead.
17 MR. LANZILLOTTA: And what I did, Dr. Montoya, when
18 the -- I requested of the Board to review
and approve in their
19 legislative initiative, I added
"physician assistant."
20 And to take, for example, NRS 415,
"Pronouncement of
21 Death By a Registered Nurse or Physician
Assistant," and I'll
22 go on to Number 1: "A physician who anticipates the death
of
23 a patient because of an illness, infirmity or
disease may
24 authorize a specific registered nurse or the
registered nurses
25 employed by a medical facility ... for
hospice care ..." And
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 what I added: "... or a physician assistant delegated
by the
2 supervising physician."
3
PRESIDENT MONTOYA: John, if I
understand -- I'm
4 sorry.
We're behind. I think we know
what you want. You
5 want us to put that it's okay for physician
assistants, under
6 the supervision of a physician, to declare
death. Do you want
7 us to be the proponents of the proposal to
the Legislature?
8 MR. LANZILLOTTA: Exactly.
9 PRESIDENT MONTOYA: I don't see anybody objecting on
10 this end.
11 MS. KIRCH: I think it's a good thing.
12 PRESIDENT MONTOYA: Okay.
We're going to advocate
13 for that.
You got it.
14 DR. BAEPLER: Clarify whether the --
15 MR. LANZILLOTTA: The next point is 440.380, the
16 signing of the --
17 DR. BAEPLER: On Item 14 there, it says "proposed or
18 supported." There's quite a difference. Are we being asked
19 to propose this or support it if someone
else proposes it? Is
20 it onerous on us to get the bill drafted or
just to support a
21 bill that's going to be drafted?
22 MR. LANZILLOTTA: Actually, to get the bill drafted.
23 DR. BAEPLER: So it would be "proposed," so
strike
24 "supported."
25 MR. LANZILLOTTA: Thanks for clarifying that also.
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1 PRESIDENT MONTOYA: Anything else?
2 MR. LANZILLOTTA: The other item was 440.380, which
3 is the signing of the death certificate, and
again, if a PA is
4 delegated by the supervising physician to be
able to do that.
5 PRESIDENT MONTOYA: I don't think we have any problem
6 with that.
Do we have that in front of us?
We don't have
7 that in front of us, John.
8 MR. LANZILLOTTA: Oh, okay.
It's the Nevada Revised
9 Statute 380, "Medical certificate of
death: Signature;
10 contents."
11 And it would be adding
"physician assistant" to the
12 attending physician, physician associate or
the chief medical
13
officer of the hospital or institution, and again, adding the
14 PA, if it's delegated by their supervising
physician.
15 And again, why we're petitioning
this is just to make
16 it more facilitative in these -- in times
for both the
17 physician -- or the patient's family and the
institutions.
18 PRESIDENT MONTOYA: So if you can declare death, I
19 guess you can sign a statement. I don't think we're going to
20 have a problem here.
21 DR. BAEPLER: But it's in a different section of law,
22 so it requires a different bill.
23 PRESIDENT MONTOYA: Okay.
Different bill. Got it.
24 MR. LANZILLOTTA: Thank you.
25 PRESIDENT MONTOYA: What else, John?
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1 MR. LANZILLOTTA: Just quickly, Nancy Munoz, who is
2 listed in the Reno area, corresponded with
me that she was
3 sending a resignation. She's the third PA advisor to the
4 Board.
And with the Board's permission, Dan Hickey, physician
5 assistant, and I would screen the third
applicant for the
6 board's approval at the next meeting in
December.
7 PRESIDENT MONTOYA: That would be fine by us.
8 MR. LANZILLOTTA: By her resignation, there would be
9 two PA advisors, and we would screen
candidates for the third
10 PA advisor, if that's okay with the Board.
11 PRESIDENT MONTOYA: Probably pick them better than we
12 can.
Why the attrition rate?
13 MR. LANZILLOTTA: Basically, in the Nevada
14 Administrative Code, it basically points out
that the Board
15 would appoint the PA advisor, and that's why
I'm bringing that
16 up.
17 PRESIDENT MONTOYA: Well, we'll do it on your
18 suggestion.
19
MR. LANZILLOTTA: Okay. Very good.
Very good. And
20 that's it.
Thank you very much for your indulgence and
21 patience.
22 PRESIDENT MONTOYA: Do I have respiratory care
23
advisory committee, Steve Kessinger?
24 Sorry, you're sitting right behind
me.
25 MR. KESSINGER: Good morning.
I have five items.
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1 PRESIDENT MONTOYA: This is Steve Kessinger. He's a
2 C.R.T., advisory committee member.
3 MR. KESSINGER: I have five items to report on,
4 mostly for information. The first one is regarding temporary
5 licensing.
6 I spoke to a couple managers in the
rural facilities,
7 Elko and Winnemucca, who were routinely
employing therapists
8 from out of state, not so much as a 12-week
contract, like
9 most registerees do, but for maybe a month
at a time.
10 And they come in. They work for an employee who may
11 be off on FMLA leave or something of that
nature. And the
12 last time this happened, the employee was
from Idaho who came
13 in who tried to work in the state office,
but he couldn't
14 because he had to obtain a license.
15 So they were wondering whether or
not, if a special
16 permit could be had on issuing temporary
licenses to
17 respiratory care practitioners. It's not currently on the
18 list.
You do issue temporary licenses to physicians, and we
19 were wondering if that might be something we
would consider
20 for respiratory care practitioners in the
future.
21 PRESIDENT MONTOYA: We issue local tenants licenses
22 for long periods of time.
23 DR. ANJUM: Head license is the same as a regular
24 license.
25 PRESIDENT MONTOYA: Let's talk to a licensing
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1 specialist.
2 MS. KROTKE:
A temporary or a local tenants license,
3 they're still going through, basically, the
same process. So
4 if you get a temporary on an RT, I'm not
comfortable in
5 letting somebody I know nothing about go and
work in
6 Winnemucca.
I don't think you want to do that to the
7 patients.
8 I don't know how we can make it any
quicker for RTs
9 to get licensed other than, if they have an
inkling that
10 they're coming to the state, they need to
start the process.
11 PRESIDENT MONTOYA: We fought this battle with
12 physicians before, because people want to
come in and work for
13 a month or two and do several operations,
and we've said no
14 several times in the past, so don't feel
picked on.
15 MR. KESSINGER: Oh, not at all. We're still in the
16 process of educating all of our
practitioners over what they
17 should do, which brings up the next issue of
students.
18 We have individuals who are in
extended programs --
19 extended educational programs who, by the
regulations, are
20 supposed to notify the Board when they're in
that program and
21 whether they finish the program.
22 They start a 12-month clock, and at
the end of that
23 12 months, they have an opportunity to sit
for the national
24 board exam, which is now given via the
computer. I believe
25 it's done at the Sylvan Learning Center.
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1 Well, if they pass the examination
at the Sylvan
2 Learning Center, they get a piece of paper
generated that says
3
they passed, but from my understanding, the licensing members
4 can issue that license to the therapists
until they hear from
5 the National Board for Respiratory Care.
6 So if, as a student, they're
practicing in a
7 facility, they pass the test, from the time
that they pass the
8 test to the time that the NBRC reports to
this organization
9 that they have passed, that individual is
practicing without a
10 license if they continue to work in the
facility.
11 And that lag time -- I'm not sure
what that lag time
12 is.
Is it two weeks? Is it three
weeks? Is it a month?
13 Whatever it is, is a long period of time for
someone to go
14 without getting a paycheck.
15 PRESIDENT MONTOYA: They continue working as
16 students, right?
17 MR. KESSINGER: No, because they're no longer
18 considered a student. They've passed the national board, so
19 now they're no longer a student, but they
haven't proven to
20 the Board that they've passed until the
National Board for
21 Respiratory Care reports back to them. So there may be two or
22 three or four weeks where they can't work as
a student or as
23 an RCP.
24 PRESIDENT MONTOYA: Sounds like to me when I got my
25 M.D.
It's not much different. Do you
have anything to say?
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1 MS. KROTKE: Okay.
So here's what can be a loophole,
2 if you want to look at it: They are considered an intern
3 until we have notification of the passage of
that test. So
4 why can't they work until --
5 DR. ANJUM: As an intern?
6 MR. KESSINGER: I'm giving you the information that
7 other people have given me, and I agree with
you. If their
8 badge says "Respiratory Care
Intern" and it's prominently
9 displayed as that, then I see no reason why
they shouldn't be
10 able to continue to work.
11 MS. KROTKE: We're not stopping them from working.
12 MR. KESSINGER: That's -- the individuals who have
13 told me about this said that they were
informed by the Board
14 or by a representative of the Board that
they could not
15 practice in that capacity because they were
no longer a
16 student and no longer an RCP.
17 MS. KROTKE: It's the same problem. I don't know
18 even that that student took the test at
Sylvan and got that
19 printout.
That, to me, is not official. So
they are still an
20 intern until I receive the notification from
the NBRC. And so
21 they are able to work.
22 And then we transition them into a
full respiratory
23 license, so they should be able to work.
24 MR. KESSINGER: So, if the manager makes sure that
25 they are -- continue to be supervised during
the interim, that
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1 should be okay?
2 MS. KROTKE: Yes.
3 MR. KESSINGER: Okay.
Thank you.
4 The third point is fees. We first started this
5 program in January of 2001. We started out at a licensing fee
6 of $200 for two years. And of course, all of our people
7 screamed about that. That was way too much money.
8 But somewhere along the line in
discussions with the
9 previous counsel and Larry Lessly, we were
told that the Board
10 would continue to look at that, that after a
couple of cycles
11 of licensing, that they would consider
reducing those fees,
12 based on whether or not any of our
individuals had been
13 investigated, adjudicated, or whatever, with
how much the
14 costs would be. Will there be any discussion?
15 DR. BAEPLER: We'll be meeting in December to analyze
16 this structure by the coming biennium. We can certainly take
17 that into consideration as we make our
models for that.
18 PRESIDENT MONTOYA: We just got a fiscal report this
19 morning.
We're still digesting this. All
of this will be
20 taken up in December.
21 MR. KESSINGER: Great.
Thank you. The next one is
22 blood gas licensing. And I did have the -- is there something
23 on the legislative --
24 PRESIDENT MONTOYA: Yeah, there is. Number 15.
25 MR. KESSINGER: And this is the -- you would support
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1 us, so we would have to -- as a group of
respiratory
2 therapists, we would have to go to the
Legislature, and you
3 would support us?
4 PRESIDENT MONTOYA: Yes.
5 DR. ANWAR: Can we do that right now?
6 PRESIDENT MONTOYA: You have to have a separate
7 ticket.
8 MR. KESSINGER: If an RCP works in a facility where
9 they draw arterial blood gasses and analyze
them, they're
10 required by the State Board of Health a
separate license to do
11 so.
12 PRESIDENT MONTOYA: From the State Board of Health?
13
MR. KESSINGER: Yes. I don't know what the initial
14 fee is.
It's about $50 a year, a minimal amount.
But our
15 current practice act allows us to draw blood
for any type of
16 analysis.
17 And so that -- our belief is that
we're able to do
18 that under our license, but the State Board
of Health has not
19 been very positive in accepting that.
20 The difference -- what the
difference we have now is
21 that if we do this, we'll be allowed to draw
without a lab
22 license, but we wouldn't be able to analyze
it. So in those
23 facilities where respiratory care
practitioners have their own
24 separate blood gas lab, they would still
have to have the
25 license, so this Initiative Number 15 would
solve one half of
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1 our dilemma, and at least, that's better
that not solving it
2 at all.
3 DR. BAEPLER: Are you recommending with this
4
legislation resolving the dilemma of having to amend a statute
5 that pertains to another board?
6 MR. KESSINGER: No, sir, I'm not.
7 DR. BAEPLER: Their requirement to license is not a
8 statutory requirement? Or do you suggest that you have both
9 licenses?
10 MR. KESSINGER: I would suggest that we attempt to
11 allow -- there are facilities in the state where
the
12 respiratory care practitioner only draws the
blood. The lab
13 analyzes it.
And if we can get this through, then at least we
14 eliminate the license on a few of our
practitioners on that
15
requirement.
16 DR. BAEPLER: But you think, if we amended our
17 statute, that you could then proceed without
getting licensed
18 by the other group?
19 MR. KESSINGER: I don't think so.
20 DR. BAEPLER: You'd have to have both?
21 MR. KESSINGER: Yes.
22 PRESIDENT MONTOYA: Dr. Lubritz?
23 DR. LUBRITZ: Would you mind to take just a moment to
24 explain to them what specifically they do
when they give blood
25 gasses?
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1 PRESIDENT MONTOYA: Not at all.
2 DR. LUBRITZ: Very succinctly.
3 MR. KESSINGER: What we do is, on the order of
4 physicians, we draw some -- an arterial
blood sample from one
5 of the arteries in the body and run that
through an analysis
6 to show us what the different types of
gasses in the blood
7 are, the oxygen level, the carbon dioxide
level, the
8 bicarbonate, et cetera, and that tells us
how we can
9 manipulate the patient's oxygen either on a
mechanical
10 ventilator or life support vis-a-vis
equipment, whether we can
11 manipulate it one way or the other to improve
their status.
12 Once we draw the blood, we have to
put it into a
13 relatively large machine that does that,
requires a lot of
14 technical information, requires a lot of
quality control.
15 That is monitored by the Board of
Health. They come in at
16 least every two years and monitor all of our
equipment to make
17 sure that we're doing everything correctly.
18 DR. HELD: You're trained to do that in the state?
19 MR. KESSINGER: Absolutely.
It's part of our --
20 everybody does it.
21 DR. HELD: It's like asking us to get a separate
22 license to draw blood or do EKGs.
23 DR. ANWAR: So we would be allowed to do that and
24 require a separate license for something
that you normally do
25 in your training program. And a lot of things are turned
PEGGY HOOGS & ASSOCIATES (775) 327-4460
118
1 down, like drawing blood in the emergency
room is okay if it's
2 done by the doctor; however, if it's done by
the nurses,
3 looking at the same thing, is it blue or not
blue? -- and our
4 blood too -- because the lab would like to
do it and bill for
5 it separate.
6 PRESIDENT MONTOYA: He's absolutely right. What I'm
7 hearing on the Board, I don't think there
will be any
8 objections to support an agreement proposing
such a --
9 MR. GARCIA: Dr. Montoya, Mike Garcia also on the
10 Respiratory Advisory Committee down here in
Las Vegas. How
11 are you all this morning?
12 PRESIDENT MONTOYA: A little beat-up.
13 MR. GARCIA: Stephen, I suspect so. And I'll try to
14 wrap this up quickly.
15 Steve and I have discussed this as
our third member
16 as well, but we are clearly asking that you
not only support
17 it, but that you propose it in the
Legislature.
18 The respiratory therapists in this
state do not have
19 a vehicle for that. We're asking for your full support, and
20 we want that language changed to reflect
that a respiratory
21 therapist, under your auspices, is licensed
to draw and
22 analyze arterial blood gasses.
23 The State Department of Health
oversees the operating
24 of laboratories. We don't expect that to change any of that.
25 But our practitioners and your licensees are
now -- those are
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1 procedures that are covered under our
existing and lawful
2 scope of practice, and we would look forward
to your full
3 support on this. Thanks.
4 PRESIDENT MONTOYA: I think you've got it.
5 MR. KESSINGER: Thank you.
And the last involves the
6 advisory committee themselves.
7 In one of the previous meetings, I
provided
8 Mr. Lessly with a list of RCPs who might be
replacements for
9 members of the Board, and at that time, we
had discussions as
10 to whether or not we should add additional
members to the
11 Board or to simply do a replacement.
12 When we first entered this, we had
no idea how many
13 therapists would be licensed in the state,
and the last I
14 knew, our numbers were somewhere in the nine
hundreds.
15 MS. KROTKE: Almost to a thousand.
16 MR. KESSINGER: Almost to a thousand. And we only
17 have three board members -- or three
committee members. My
18 request of you today is asking you to
increase that number to
19 five.
20 PRESIDENT MONTOYA: What's the workload?
21 MR. KESSINGER: It's not very much. And I -- but I
22 think it will continue to increase as people
become more and
23 more aware of what their requirements are as
a licensee.
24 And we, from time to time, get
phone calls on a
25 variety of different things. Mike down in the southern state
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1 will attest to that. Our third member isn't present today,
2 and I'm not sure how many he gets, but I'll
get one or two
3 every other week just on simple questions.
4 What's my responsibility here? Can you show me in
5 the regulations where it says this or that,
or if it doesn't?
6 So it's not very high, but I think --
7 PRESIDENT MONTOYA: The bigger committee you get, the
8 harder it is to make a decision.
9 DR. BAEPLER: One is ideal.
10 PRESIDENT MONTOYA: Just a warning.
11 MR. KESSINGER: Oh, I understand.
12 MR. GARCIA: We'd like to have background support,
13 we'd like to have two northern and two
southern, and that
14 allows us -- each of us to be away on
vacation or for whatever
15 reason and not feel like we're dumping on
our brothers on the
16
committee.
17 PRESIDENT MONTOYA: I don't have a problem with the
18 proposal.
19 MR. GARCIA: We have to change the NAC in order for
20 it to occur.
The Nevada Administrative Code states that it
21 will appoint three -- or recommend three to
the governor for
22 appointment.
We would like to change the NAC to reflect that
23 the Board will recommend four.
24 PRESIDENT MONTOYA: Four or five?
25 MR. KESSINGER: I had a discussion with Mr. Clark
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1 prior to this, and I left a message on
Mike's cell phone, but
2 unfortunately, he wasn't able to get it.
3 PRESIDENT MONTOYA: Get your messages, Mike.
4 MR. GARCIA: I leave my cell phone off when I'm in
5 these critical meetings.
6 MR. KESSINGER: I understand.
But his recommendation
7 was five too, that we have an odd number of
people to do that.
8 My recommendation is this: The more --
9 MR. GARCIA: That would be great.
10 MR. KESSINGER: I think that we need fresh faces on
11 committee also. I've been involved in licensing efforts since
12 1985, so I'm somewhat fatigued on that, and
to have some fresh
13 perspective on it from a larger facility
manager, or even a
14 smaller rural facility manager, I think is
very beneficial so
15 that we continue to have a continuing
dialogue on what our
16 needs are.
17 PRESIDENT MONTOYA: Five is good.
I hear five is
18 good.
19 MS. KIRCH: Five is good.
20 PRESIDENT MONTOYA: Everybody agrees five is good.
21 Tell you what, our arm is being twisted by
Mr. Kissinger, and
22 we just can't resist him.
23 MR. KESSINGER: It's "Kessinger."
24 PRESIDENT MONTOYA: "Kessinger." Sorry.
Do you want
25 money too?
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1 MR. KESSINGER: No, I already have a contract.
2 PRESIDENT MONTOYA: Thank you.
It was a very nice
3 presentation.
4 The investigative committees, how
many do we have?
5 DR. BAEPLER: We have three. We have Committee A,
6 Committee B, and then Doug Cooper has a
brief summary that he
7 could give you.
8 PRESIDENT MONTOYA: For Committee A, we'll talk to
9 the chiefs first, and then we'll talk to the
Indians.
10 DR. BAEPLER: All right.
I've circulated a list of
11 the cases that we are recommending for
closure.
12 A summary of our activities for
this quarter is, we
13 considered 82 cases, we filed formal
complaints on 4, we sent
14 5 out for additional peer review, we had 4
-- oh, we have
15 requested the appearance before the
committee at our next
16 meeting the 4 physicians, we need further
follow-up and
17 investigation on an additional 4 cases, and
we are
18 recommending 65 cases for closure.
19 And the list to be closed is
circulating for your --
20 we'll vote on it for approval, but it's
circulating.
21 DR. LUBRITZ: May I ask a question?
22 PRESIDENT MONTOYA: Dr. Lubritz.
23 DR. LUBRITZ: Is there any correlation? Does anyone
24 look to see and compare the cases that are
on committee --
25 Investigative Committees A and B? My question being, I think
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1 I recognize some names that are -- that were
on
2 Investigative A that we may have also seen
on B.
3 DR. BAEPLER: Could be totally different cases.
4 DR. LUBRITZ: Well, that's correct, but my question
5 is, it would be useful for us to know --
6 DR. BAEPLER: They should be lumped. They should be
7 lumped, and we've had several cases where
we've had two or
8 three complaints on the same physician that
lumped --
9 sometimes a single complaint doesn't rise to
the level of
10 anything, but you could have two or three,
and collectively,
11 they do.
So the same committee ought to get the same doctors.
12 PRESIDENT MONTOYA: Dr. Lubritz, may I say, Doug
13 Cooper is going to give us a little
presentation. He gave us
14 one a couple months ago about how he assigns
his cases and
15 what committee and what goes on. And he'll tell you what the
16 logistical problems are that go on with
that.
17 When I heard him last time, he
likes to keep one
18 doctor on one investigative committee, by
and large.
19 MR. COOPER: We try to do that. But sometimes it
20 tilts the balance where we would go to one
IC, you know, that
21 has, off the top of my head, 85 cases, and
the other IC might
22 have only 65 or 60.
23
So I'll look into that problem. I
don't think there
24 would be any kind of conflict among
those. We scrutinize them
25 pretty well.
But I can certainly look into it to make sure
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1 that if a respondent has a couple closed
cases and one in one
2 IC and one in another IC, maybe we can get
them both together
3 in the same IC. But it's more a logistical administrative
4 problem than anything else.
5 DR. LUBRITZ: As long as you give the 85 to
6 Dr. Baepler's committee.
7 PRESIDENT MONTOYA: For the new members, what is most
8 helpful?
You're also given a rap sheet of that doctor in
9 every case.
10 DR. HELD: I was here yesterday, so I know about the
11 investigative committee.
12 PRESIDENT MONTOYA: What goes on, you give it a rap
13 sheet, and so you'll know what that guy has
been investigated
14 for and busted or for however many things.
15 DR. BAEPLER: Or being considered by the other
16 committee.
17 PRESIDENT MONTOYA: Or considered by the committee in
18 open, pending cases.
19 Okay. Dr. Baepler?
20 DR. BAEPLER: No, that's it.
21 PRESIDENT MONTOYA: Dr. Lubritz, chairman of IC B.
22 DR. LUBRITZ: I don't have a report from Doug, so if
23 you'll just do something for a bit, I will
get to it.
24 PRESIDENT MONTOYA: I could do the Nevada State
25 Medical Association liaison report.
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1 MS. KIRCH: Did he have a report -- Doug?
2 PRESIDENT MONTOYA: Did you have a report, Doug?
3 MR. COOPER: Just a snapshot for a couple board
4 meetings to see where they were at.
5 PRESIDENT MONTOYA: Sure.
6 MR. COOPER: Real quickly, where we were -- or where
7 we are at the present time is -- is 662 open
cases as of
8 1 September, which is a high amount. However, it is down a
9 little bit from the last report.
10 The two I see is A and B that met
yesterday, and at
11 the end of August closed 116 cases, so today
we have 542 open
12 cases.
13 In the queue, there are 109
statewide civil court
14 filings for malpractice that we have not yet
opened, but we've
15 identified them; we've pulled them off the
document access
16 program with the courts, and those 109 are
ready to be
17 assigned.
18 Together, that would make 651,
which is also a high
19 number.
But of the 542 that we have open right now, not
20 minding the 109, it's 77 per investigator,
and we met the two
21 investigators this morning. They're in training, but having
22 seven people to do cases now, that's brought
down the caseload
23 to about 77.
24 And if I play with the numbers and
look at what the
25 averages are that we get every month, it
looks like we're
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1 going to stay around 70, which we think is
going to be
2 manageable.
It's a little higher than counterpart states,
3 some with lower population, some with much
larger population.
4 But I think that number is going to be
manageable.
5 As a way of seeing how we've improved things
with the
6 new personnel, last October when I spoke
with the Board, the
7 average caseload per investigator was 129
cases, which is
8 totally unmanageable. And therefore, it resulted in a lot of
9 backlog and a lot of open cases, which the
two IC saw. Some
10 of the cases were a lot older than they
should have been, but
11 there's really nothing we can do about it.
12 And when I spoke to the Board in
March, there were
13 108 per investigator, which was down a
significant amount of
14 21 per, and now we're at 77 now, so we're
looking pretty good.
15 And I think that we should stabilize around
that amount.
16 One way to judge it, and another
large workload for
17 us, is the peer reviews that come out of
medical reviews by
18 our medical reviewers. And also, by order of the
19 investigative committees, we have 108 peer
reviews right now;
20 47 of those are currently at the peer
reviewers in the state,
21 and 61 are in a queue, ready to be sent out.
22 First of all, we have to find the
appropriate
23 reviewer, and we have to package it up,
write letters and send
24 them out.
We've got 61 of those ready to go.
And what that
25 works out to is about one in every six cases
that goes to the
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1 IC -- about one in every six -- ends up
going to a peer
2 review.
3 Before, it was about one in every
25, but there seems
4 to be some merit in the district court
filings being more
5 about true medical problems than mostly
citizen complaints
6 that we got in the past, therefore resulting
in us needing a
7 specialist to look at the case in that
specialty to advise us
8 basically what we need to do medically.
9 DR. BAEPLER: In the court cases, we generally have
10 two peer reviews as part of the evidence, so
one for the doc
11 and one against. So we have all the stuff with two of them,
12 so we have to send it out to one of our own,
and that adds
13 time and expense.
14 MR. COOPER: Yes, it does.
It's a lot of work. And
15 from the total number of cases from October
2003 that we've
16 gone through, to the full process of going
to investigative
17 committee, peer review, the whole thing, our
complaints --
18 current formal complaints are 13. That's with the stipulation
19 agreement pending or going to hearing.
20 And as of the last I see, we have
11 more formal
21 complaints.
That's going to make 24 complaints, which is a
22 relatively high number. It probably equals the number that I
23 witnessed from July 2001 when I came here
until present.
24 So we've equaled what we've done in
the last three
25 years just in the last year on formal cases.
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1 That's an indicator that I think
that also these
2 civil court cases that we're getting are more
about real
3 medical problems than citizen complaints.
4 And then Dr. Montoya asked me to
speak real quickly
5 about the process. Administrative -- I can absolutely look
6 and make sure that we get -- or try to get,
without any
7 barriers, the same doctors on the same IC,
but right now,
8 we're making sure that the doctors' cases --
the cases that
9 come up are not associated with Dr. Anjum's
partners,
10 Dr. Montoya's partners. We have to make sure, number one,
11 that the people on the IC are not associated
with the doctor.
12 Number two, that if it's coming
back to the IC, that
13 it goes to the right IC. And if we've switched members on an
14 IC, we've got to be real careful in making
sure that it
15 doesn't then get seen by someone who's not
supposed to see
16 them, because that person might be needed in
an adjudication
17 scenario later.
18 And then, of course, there's the
multiple doctor --
19 sometimes we can't -- you'll see a name come
up. The reason
20
that didn't have go to the same IC is because there were three
21 doctors named on that, and one of those
doctors can't go to an
22 IC, so the three have to go to another
IC. So you get one on
23 List A and one on List B.
24 And then the only other question I
have -- the only
25 question I have would be, we started billing
in smaller
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1 groups.
I'd like to know if that worked.
2 DR. ANWAR: Better.
3 DR. LUBRITZ: Much better.
4 MR. KESSINGER: That will be the policy from now on,
5 in short blasts instead of a big bomb.
6 PRESIDENT MONTOYA: Thank you very much.
7 Dr. Lubritz has something to say.
8 DR. LUBRITZ: That's unusual. I can give you a
9 report now on IC A and B. We had total cases considered of
10 67; total cases authorized for filing formal
cases was 7;
11 total cases authorized for peer review, 1;
total cases
12 requested for appearance would be 4; total
cases authorized
13 for further follow-up or investigation, 4;
and total cases
14 authorized for cases, 51.
15 If I could add a comment on our peer
reviews -- and
16 this is something that I'm going to ask that
you see if it's
17 appropriate for the Board to consider this,
perhaps, for the
18 investigative committees to do.
19 With the peer reviews, we'll get
some that are
20 outstanding; we'll get some that I know in
our committee are
21 very poor:
No, I don't think it's malpractice, or yes, I
22 think it's malpractice, without a reason as
to why they feel
23 it's malpractice or why it's not. And that's the reason we're
24 sending it out, is because we don't have the
expertise to
25 determine that.
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1 So perhaps we could have a group on
file -- I don't
2 know how you select your peer reviews. But if we could, let's
3 say for Ob-Gyn, for anesthesiology, whatever
the specialty may
4 be, is have three or four appointed from the
north or from
5 south.
We'd probably need more in the north because we have
6 the southern cases reviewed by the northern
physicians, and
7 vice versa, so that there won't be any
fellow who says, "Well,
8 gee, I know this guy, and I can't say
anything."
9 So we could send out a specific
letter to the peer
10 reviewer, and we should be selective in our
peer review that
11 would say, Doctor, if you're going to do a
peer review, here's
12
what we expect: Number one, a
brief statement of the case as
13 you see it, because it may not be the same
as we see it;
14 number two, did it fall blow the standard of
care, yes or no;
15 and number three, is it malpractice, yes or
no; and if it is
16 malpractice, what do you base that on? Because otherwise, we
17 have to then say, okay, well, we're not so
sure about this
18 peer review.
19 PRESIDENT MONTOYA: That's an excellent suggestion.
20 When I think about it, when I used to do the
medical school
21 admissions committee, they sent out a form,
and it gave you a
22 direction to go. I never used the form. But once you read
23 it, you see, oh, that's what they want. It structures it in
24 your mind and you know what you're looking
for. Individuals
25 have different takes on things.
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 But I think that's an excellent
idea, and I think a
2 few of us working with our counsel here, we
can come out with
3 some kind of form that we can tender to the
peer review that's
4 specific to the case and say, this is what
we're looking for.
5 It would be very equitable.
6 MR. KESSINGER: Basically, we do that now. We send
7 them a letter stating specifically what the
allegation is. We
8 send them a sample of how they're supposed
to respond to us
9
and say specifically, for legal reasons, there is malpractice
10 or there isn't malpractice. And it tells them about the CMEs,
11 and it tells them what point in the law
makes them immune from
12 any kind of civil action. So basically, all of that
13 information is in the letter that goes to --
14 PRESIDENT MONTOYA: You may have to tweak it, because
15 what Dr. Lubritz is saying is that it's not
adhered to the --
16 DR. BAEPLER: It's a separate page in the peer review
17 report form.
18 DR. ANWAR: And it doesn't have a basis when they
19 say, I think there is not malpractice. They don't necessarily
20 explain that as to what is their basis for
that.
21 MS. KIRCH: It would be helpful to the rest of our
22 medical folks.
23 PRESIDENT MONTOYA: Okay.
Let's take a look at it
24 and see what we can do to get it fixed
up. All right.
25 Secretary-Treasurer, I think you
did most of your
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1 report.
2 DR. BAEPLER: No, this is a new item, the budget for
3 next year, if you'll recall. That's the only thing that I
4 haven't covered. We've covered the audit. Let's see.
5 MR. GARCIA: Dr. Baepler, we can't hear you down
6 here.
7 DR. BAEPLER: This is the proposed budget for the
8 fiscal year, which began July 1. Just for the newcomers, it's
9 very difficult to show a budget for revenues
and expenditures
10 balance because we are on a biennial
licensing cycle, and we
11
collect money from the licensees every two years.
12 So, one year we're going to have a
lot of revenue and
13 a big surplus at the end of the year. The next year when we
14 just get revenue from new applicants and
that type of thing,
15 we're going to have a large deficit showing,
which is made up
16 by this surplus revenue from the previous
year.
17 In December, we'll present the
biennial budget that
18 shows a pattern of projected revenue for two
years and
19 expenditures for two years, and that's a
much more meaningful
20 document.
But we have, to present, an annual budget, and this
21 reflects the income from a year in which the
doctors are not
22 paying their fees, so it would be a
short-fall.
23 This is a document which is a
guideline only when you
24 adopt it.
It does not commit -- for example, there will be an
25 item in there for X number of dollars for
the diversion
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 program.
Doesn't authorize the expenditure of that many
2 dollars for the diversion program.
3 You might want to, when it comes up
later in the year
4 as a separate item, decide to give nothing
or more or half of
5 this.
But if the staff finds it necessary to make any
6 significant deviations in this spending
pattern, it comes back
7 to you for your approval. This -- there is enough money in
8 the surpluses that were generated in the
last year to cover
9 this deficit and still leave a substantial
balance of about a
10 million and a half dollars of residual
funds, which is a very
11 appropriate level for it to be at.
12 And this follows the exact state
spending pattern
13 that the Board has followed for the last
several years. I
14 recommend its approval.
15 MS. KIRCH: I move for approval.
16 PRESIDENT MONTOYA: Second?
17 DR. HELD: Second.
18 PRESIDENT MONTOYA: The chair votes for it.
19 And, all in favor?
20 THE BOARD: Aye.
21 PRESIDENT MONTOYA: Closed.
So we'll accept your
22 report.
Thank you very much, Dr. Baepler.
23 I'd like to take a break for five
minutes. Is lunch
24 going to be here soon?
25 DR. ANWAR: Dr. Lubritz already had his dessert.
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1 MS. KIRCH: Busted.
2 PRESIDENT MONTOYA: We're going to take a five-minute
3 break.
Don't go far. When I call us back
into session, I
4
want to hear what the pleasure of the Board is.
5 (A brief recess was taken at the
hour of 12:09 p.m.)
6 PRESIDENT MONTOYA: We invited Dr. Giarrusso to come
7 back a little prematurely. I'd like to reconsider what we
8 tabled earlier, because our legal staff on
this side and the
9 State's legal staff on this side went
outside and hammered out
10 a deal while we were still in session.
11 And I think, to be all right with
that and so I don't
12 mess up the deal, so I don't mess up the
wording of it, I'm
13 going to ask Charlotte Bible to say what was
worked out, out
14 there.
And if it sounds reasonable, the ones that can vote on
15 this are the ones that were not on the
designated committee --
16 your investigative committee, Dr. Baepler.
17 DR. BAEPLER: Minus Dr. Held. You're eligible to
18 vote.
19 DR. HELD: I did not participate in the original
20 order.
21 PRESIDENT MONTOYA: So just you two would be eligible
22 to vote.
The rest of the Board can't vote.
23 MS. BIRCH: What about me? This is my first time.
24 This had been an ongoing item. Can I vote?
25 PRESIDENT MONTOYA: Yes.
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1 MS. MUNSON: Yes.
2 MS. BIBLE: It's really the first time -- they
3 considered a settlement agreement once,
rejected it once, and
4 we'll go over the terms of it with you and
see if you're
5 amenable to --
6 DR. BAEPLER: As a point of clarification, we reached
7 this point once before with their attorney,
but has she agreed
8 to this at this time?
9 MS. BIBLE: They're going to be coming back. Let me
10 just --
11 PRESIDENT MONTOYA: That's what the longer brake was
12 for.
13 DR. ANWAR: Because of the open meeting law, is it
14 okay time-wise to do it at this time?
15 MS. BIBLE: Yes, because it was after the time it was
16 scheduled on the agenda.
17 What I had understood was that
there was a problem
18 with the settlement agreement with the
Board. It had to do
19
with the language of paragraph 3 of the settlement agreement
20 and what the Board would do to help Dr.
Giarrusso in getting
21 recredentialed and notifying the databank.
22 I've talked to Tony Sgro with Steve
Quinn, it's -- to
23 find out exactly what it is that they wanted
for the Board to
24 do.
And this is what I have -- I understand that he wants and
25 will relate to you, is that what they want is
that the --
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1 their web site information --
2 DR. LUBRITZ: Our web site?
3 MS. BIBLE: Your web site has -- a portion of the web
4 site describes the complaint in detail with
all the facts that
5 are alleged in the complaint, all the
counts, and that's what
6 he was trying to show you.
7 DR. ANJUM: Right.
8 MS. BIBLE: What they would like is that to be
9 removed, and what is acceptable is that --
what would be
10
reflected on that screen is that a complaint was filed, and
11 that the subsequent action of the Board
would occur, hopefully
12 today, is that a settlement agreement was
reached, the
13 complaint was dismissed, the suspension was
rescinded and
14 lifted, and --
15 DR. HELD: License reinstated?
16 MS. BIBLE: -- license reinstated.
17 And I believe there was one condition
that she agreed
18 to in this settlement agreement that
actually has been
19 complied with, because she has -- she has
actually acted
20 according to the settlement agreement, so
that's something the
21
Board needs to consider.
22 So that deals with the web site,
and that, to me,
23 does not seem objectionable, because it
still will reflect the
24 complaint was filed, but we're not going to put
all the
25 details of the complaint, alleged facts, in
that.
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1 DR. BAEPLER: We already agreed to that.
2 DR. LUBRITZ: May I ask a question on that point? If
3 we're going to do this for her, and that is,
we're going to
4 put in, the complaint -- or a complaint --
are you just going
5 to put that a complaint was filed, not what
it was? Did we do
6 that for all other physicians?
7 MR. QUINN: You know what I would recommend what we
8 do
is, let's deal with that, and I think that's relevant, and
9 I think we should discuss that because --
but as a secondary
10 item, second after we handle this one
situation.
11 To answer your question, I do not
think -- Cheryl, I
12 do not think that by doing it in this one
case, we are thus
13 required by any mandate to do it in every
case, but I think
14 that's something worth discussing.
15
PRESIDENT MONTOYA: Extenuating
circumstances.
16 MS. BIBLE: Right.
And this is to settle this matter
17 and settle it in all its respects, I
believe.
18 So to do that -- and it's within
our Board's control
19 to do that, and we're not -- you're just
taking that detail.
20 There's still a fact there, and that's that
the complaint was
21 filed.
22 Then there's another web site,
though, that then says
23 "Disciplinary Actions." And there's a second web site of the
24 Board, and in this web site, it doesn't go
into detail about
25 the complaint, but it does set forth that
the complaint was
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 filed, a suspension was issued. Probably should find that
2 out.
And I don't remember what else.
3 She'd like that, actually, her name
be removed from
4 that section of the web site. And I went through that -- all
5 those names to see whether -- in cases where
we have dismissed
6 a complaint, whether that information was on
that screen of
7 the web site. I could find none of the actions that we've
8 taken that are listed on that screen to have
been dismissed
9 complaints.
There's all --
10 DR. BAEPLER: Those are all disciplinary actions
11 taken?
12 MS. BIBLE: Taken, right.
And in this particular
13
case, actions not being taken were entered into the settlement
14 agreement because the complaint is being
dismissed.
15 So from -- my opinion is that that
should not be --
16 that's not objectionable because it doesn't
look like others
17 are on that web site where their complaints
have been
18 dismissed.
19 DR. BAEPLER: On that web site, if we reach a
20 settlement and part of the settlement was a
disciplinary
21 action, then they're on the web site. If there wasn't a
22 disciplinary action, they're not on the web
site.
23 MS. BIBLE: That's what it appears, and so that's
24 another matter for you to consider. They're asking her name
25 be off of that site.
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1 DR. BAEPLER: I think we'd agree to that.
2 MS. BIBLE: And then the other issue dealt with the
3 national databank, which he wanted it
totally removed from the
4
databank. I -- and he has
researched with the databank how
5 that could be totally removed, and that is
for the Board to
6 say that they entered it by mistake.
7 I cannot recommend that, and he --
I told him that.
8 And what we worked out is, what is
acceptable to him, is that
9 we will report to the national databank that
a settlement
10 agreement was entered, the complaint was
dismissed, and it --
11 just the suspension has been lifted, the
license has been
12 reinstated, and whether or not there's
actually been a
13 condition now, and if there's a condition,
what the condition
14 is on her license.
15 And actually -- and then that's the
third issue, is,
16 how do we handle the condition which was to
have random drug
17 tests for a period of 60 to 90 days, no
later than September
18 28th.
And she has apparently submitted to -- Tony?
19 DR. ANJUM: Has he agreed to --
20 DR. HELD: She's already done that.
21 DR. ANJUM: On the third condition.
22 MS. BIBLE: She has apparently submitted to the --
23 it's been at least 60 days.
24 MR. QUINN: It has not been 60 days; 60 days is
25 September 28th.
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1 MR. SGRO: No, that's the 90 days.
2 MR. QUINN: So it has been 60 days. And I can tell
3 you, I think there have been almost weekly
-- there have been
4 a couple of exceptions -- almost weekly on a
random basis, I
5 submit a fax letter and notify Tony Sgro's
office by telephone
6 call, and they respond to me by telling me
that Dr. Giarrusso,
7 within a very reasonable period of time -- I
think, in no
8 case, was it ever more than four hours,
perhaps one where she
9 was in
surgery or something like that. But each
sample has
10 come back negative. They've been fully complied with, to the
11 letter, with that part of the settlement
agreement.
12 PRESIDENT MONTOYA: All right.
Dr. Giarrusso,
13 Mr. Sgro, we call it again in session the
meeting to
14 reconsider the tabled case.
15 And from what I understand, because
our counsel went
16 out with you and hammered -- and Dr.
Giarrusso, I think,
17 hammered out an agreement that all parities
are comfortable
18 with.
19 MR. SGRO: Well, we have had conversations
20 telephonically in principle that we would
like to accomplish.
21 It appears that hasn't been presented. I don't know.
22 PRESIDENT MONTOYA: We're getting to that. We're
23 getting down to basics. You all talked?
24 MR. SGRO: Yes.
25 PRESIDENT MONTOYA: She'll give the actual details
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 now.
2 MR. SGRO: Okay.
3 MS. BIBLE: And what I had -- when -- I was just
4 starting to recount to the Board what we had
agreed, that the
5 settlement would entail revising the language
on the web site
6 regarding deleting the language as to the
allegations of the
7 complaint and only putting that a complaint
was filed, and
8 then the following resolution of that
complaint that we hoped
9 to have happen here, and that would be the
settlement, the
10 rescission of the suspension, the
reinstatement of the
11 license, and possibly the condition of the license,
if that's
12 still at issue.
13 And then the second web page of the
web site dealing
14 with disciplinary action, that was just more
of a summary of
15 what has happened, that we would -- that
would be deleted from
16 that web page.
17 And then dealing with the databank,
the national
18 databank, that we would submit to the
databank that we entered
19 a settlement agreement, the complaint was
dismissed, again the
20 suspension was lifted and license
reinstated, and again, if in
21 fact the Board imposes any further
condition, that condition.
22 MR. SGRO: That's correct.
23 PRESIDENT MONTOYA: Dr. Giarrusso?
24 MR. SGRO: That's the telephone conversation we had.
25 PRESIDENT MONTOYA: That's what you wanted?
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1 MR. SGRO: Pretty much.
2 DR. GIARRUSSO: Yes. I
really appreciate that you
3 considered this again. I appreciate that a lot, that you
4 called us back to deal with this today, and
--
5 MS. BIBLE: Is that what would satisfy you to settle
6 this matter?
7 DR. GIARRUSSO: Can I talk with Mr. Sgro for just a
8 minute, because we had a brief conversation
at the airport, so
9 I didn't know that we were going to --
10 PRESIDENT MONTOYA: You've heard what we have.
11 DR. GIARRUSSO: Can we have maybe just one minute to
12 discuss --
13 PRESIDENT MONTOYA: Yes.
14 DR. GIARRUSSO: Thank you.
15
PRESIDENT MONTOYA: Can I take
care of this while
16 they're discussing it?
17 DR. ANJUM: We have to have a specific wording of the
18 settlement.
19 MS. BIBLE: I will draw up an order based on this.
20 DR. LUBRITZ: Are there any other conditions?
21 MS. KIRCH: I want to know if they're agreeable.
22 MR. QUINN: I want to tell you, this is how I would
23 propose to deal with it to expedite
matters: We have a signed
24 settlement agreement, the one that was
signed, the one that
25 was presented, the one that was
rejected. We could reconsider
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1 that signed agreement and say that the terms
of that signed
2 agreement are interpreted to mean what we
just outlined and
3 nothing further.
4 DR. ANJUM: Three paragraphs.
5 MR. QUINN: And nothing further. And thus, we need
6 to draft no more documents. And the only thing left to be
7 done would be to enter the order.
8 MS. BIBLE: And approval of that.
9 MR. QUINN: So if the Board would approve -- this
10 would be -- you know, mechanically, we're
talking about Item
11 Number 8, and it is the stipulation and
settlement that
12 actually was filed in the disciplinary
action on May 25, 2004,
13 and is fully signed by all the parties --
well, it's signed by
14 Mr. Sgro and by Dr. Giarrusso.
15 And my proposal would be that Dr.
Giarrusso and her
16 attorney, on the record here, acknowledge
and ratify that
17
their understanding that the interpretation of that agreement
18 is as we've just outlined. Do you see how that works?
19 MS. BIBLE: Yes, I still think we can put those terms
20 in this order.
21 MR. QUINN: And then you can draft the order, no
22 trouble.
23 MS. BIBLE: Okay.
24 MR. QUINN: And draft an order that says that they've
25 understood and agreed that that's what it
means.
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1 MS. BIBLE: And I guess --
2 MR. CLARK: You know, I have one hesitation, and the
3 hesitation is if we do that, that agreement
still exists with
4 the language in it to which five voting
members of the Board
5 disagree.
And I can see that somewhere down the line coming
6 up and getting jammed in our ear, unless you
do a new
7 agreement that's got the current --
8 DR. ANJUM: Yes, the previous agreement and get a new
9 agreement and three or four paragraphs.
10 MS. BIBLE: Why don't we handle it in the order that
11 the settlement agreement has been modified
to this
12 understanding that was just laid out, and
that's the agreement
13 of the parties, and it's the order of the
Board that that's
14 what -- how this case is being settled.
15 DR. ANJUM: Rather than put anything from the
16
previous agreement?
17 MR. QUINN: No, and I think that's more than an
18 acceptable agreement.
19 DR. HELD: I would take five minutes to --
20 (People begin speaking at the same
time.)
21 MS. BIBLE: Yeah, we did.
22 MR. SGRO: Everything is fine. I'd like the
23 opportunity to work with Ms. Bible on the
databank issue to
24 iron that out. And then on the option, obviously because
25 of -- we appreciate being called back here
and everyone wants
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1 it resolved, and I would respectfully
suggest we also resolve
2 the issue of the diversion, that we don't
leave here and have
3 to further iron it out in another three weeks. I know the
4 Board doesn't meet until December. We have the audience here
5 today.
6 MS. BIBLE: I would -- what I had suggested to the
7 Board is that we accept the settlement
agreement, that they
8 accept the settlement agreement with
modifications with your
9 approval.
10 As we just discussed, we will draft
up an order for
11 the president's signature, and that one
issue that I think
12 needs to be -- that could be addressed is
the -- where there's
13 the existing condition, since she had
already actually
14 complied -- has complied with this
settlement agreement for 60
15 days and has had negative urine, so whether
that -- we
16 actually just say that that condition has
now been complied
17 with.
18 MR. SGRO: And that's what I would like to do,
19 because the agreement of 60 to 90 days, Mr.
Quinn -- --
20 PRESIDENT MONTOYA: What we want is the settlement
21 worked out here. We can't pass something for the future.
22 What you're saying, if she works these
things out just as you
23 agreed to, right?
24 MR. SGRO: Right.
25 PRESIDENT MONTOYA: If she works this out, and you're
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 comfortable with that, Dr. Giarrusso, and
with Mr. Quinn also,
2 if they work this out and get down just what
you said and just
3 what you agreed to, the Board can vote on
that and say, if
4 this is worked out in the terms that she put
down, we'll vote
5 on it now.
6 MR. SGRO: Okay.
7 PRESIDENT MONTOYA: Are you comfortable with that?
8 DR. GIARRUSSO: I just wanted to clarify that the
9 only -- you know, as I mentioned, part of my
concern is with
10 the national practitioner databanks. I just want to make sure
11 that that particular document is, you know,
as smooth as we
12 can make it.
13 PRESIDENT MONTOYA: She's going to modify it as best
14
she can. And I don't see why we
can't completely remove it if
15 we have it on our books. Hey, I'm on the databank. I've been
16 sued.
Everybody here knows. And, you
know, it happens. And
17 my insurance companies don't deny me.
18 I'd like to move for motion --
19 DR. ANWAR: I have a question. And my concern is
20 that although we all understand that there
is an agreement
21
that has been reached, but unless we specifically look at the
22 language at the agreement modification --
that is not in front
23 of us; it's in our heads. How can we preapprove something
24 that's not there in print?
25 PRESIDENT MONTOYA: If anybody has any real problems
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 with the exact language, I'll bet you this
lady sitting right
2 behind you can give it to us, the exact
language. If it
3 doesn't match, we don't like it, we can
rescind it.
4 DR. LUBRITZ: So, am I to understand that you're
5 going to specifically read right now what it
is that you all
6 have come into agreement with, and then
we're going to vote on
7 that specific language? Is that -- now, let's talk to
8 Dr. Giarrusso's point. Her biggest concern is the databank.
9 So we need to very specifically -- you --
whatever you all
10 have worked out needs to be read into the
record now, and then
11 if they agree with that, then we can vote.
12 But I agree with Dr. Anwar. Without her hearing,
13 Mr. Sgro hearing, them saying yes, I don't
feel comfortable in
14 voting, and I agree with you.
15 PRESIDENT MONTOYA: In that case, we got some writing
16 to do.
You guys, you're going to have to put off your fight,
17 if you would, for a while. We're working on this. All right?
18 MS. BIBLE: Why don't the three of us sit down.
19 We'll write it out. After lunch, we'll bring it out.
20 MR. SGRO: How long do you typically break for lunch?
21 PRESIDENT MONTOYA: About 40 minutes, about long
22 enough to eat. This is a working committee. All right.
23 MR. SGRO: We'll try to get this accomplished over
24 the lunch hour.
25 PRESIDENT MONTOYA: All right.
We'll get this thing
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 done after lunch. And we adjourn for lunch.
2 (A luncheon recess was taken from
the hour of
3 12:30 p.m. to the hour of 1:17 p.m.)
4 -oOo-
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 RENO, NEVADA, FRIDAY, SEPTEMBER 10,
2004 1:16 P.M.
2 -oOo-
3
4 PRESIDENT MONTOYA: Let's go back to order here.
5 We're back in session.
6 I'd like to go back to one of our open
session items.
7 I want to skip the legislative initiative
for just a little
8 bit here.
9 And one thing we came up with
during our -- in the
10 malpractice review committee that consists
of Ms. Stoess and
11 myself -- and we'll get somebody else to
join us as soon as we
12 find out who it is that hasn't been
appointed.
13 I'd like to raise the bar. Right now, we're
14
considering -- right now, we're using $200,000 or less as our
15 upper bar as what -- it was kicked out and
brought to the
16 malpractice review committee.
17 I'd like to at least double that so
we can get some
18 more cases out.
19 DR. BAEPLER: Can you handle the endorsements?
20 PRESIDENT MONTOYA: No.
Nice try.
21 MS. KIRCH: Nice try.
22 DR. ANJUM:
How much work do you already have?
23 PRESIDENT MONTOYA: Not much, but that's why I'm
24 asking for this.
25 DR. ANJUM: That would be appropriate because a
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1 couple cases are here for $450,000. Maybe one lawsuit in 30
2 years of practice. One settlement for four-fifty, and it's
3 split up amongst the hospital and everybody
else.
4 DR. BAEPLER: You have to discriminate how much the
5 doc is responsible for.
6 DR. ANJUM:
Considering, instead of putting a limit
7 on the amount of money, we should try to
rephrase the wording,
8 cases that require a little discussion or
attention. There's
9 one case --
10
MS. KIRCH: That's going to be
difficult.
11 DR. ANJUM: It comes down to, in 20 years, 400,000,
12 $430,000.
13 PRESIDENT MONTOYA: What -- we're trying to find
14 something that was concrete and easy for the
licensing cutoff,
15 for the licensing people to say, okay, this
has got to go,
16 because they've got so much work down there.
17 DR. ANWAR: The licensing people can determine that.
18 They need very clear dialogue.
19 PRESIDENT MONTOYA: At the same time, I don't think
20 the licensing people want it on their head
that, oh, this was
21 easy, we should have given it to the review
committee;
22 instead, they gave it to the full board, or
vice versa. And I
23 don't think you want that on your heads.
24 MS. KROTKE: That's why you're getting the big bucks.
25 MS. KIRCH: Thanks.
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1 MR. CLARK: They determined that the level be
2 $200,000.
So the Board can say now that our experience is
3 such that we think that level should be
raised to $500,000 if
4 there are no more total malpractice judgments
that total that
5 amount, so the licensing people have better
directives, and we
6 take some of the files off the Board's
plate, because we're
7 going to be terribly busy in December.
8 MS. KIRCH: But you always have the option of saying,
9 this needs to go to the Board.
10 PRESIDENT MONTOYA: We see this a lot earlier than
11 you guys do --
12 DR. BAEPLER: Because what we need to do is, because
13 of the size of the settlements these days, I
wouldn't even
14 object if you want to go to $500,000.
15 PRESIDENT MONTOYA: Dr. Anwar?
16 DR. ANWAR: My comment is just that there are so many
17 issues that need more attention, and we have
limited
18 resources.
And so to bog our resources down to areas that are
19 not as important as other areas where that
attention needs to
20 be -- it's taking our resources away.
21 DR. BAEPLER: The committee will give more time to it
22 than the Board has.
23 PRESIDENT MONTOYA: Dr. Lubritz, you would not have
24 any objection to raising the malpractice
review ceiling to
25 500,000?
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1 DR. LUBRITZ: That's correct, Dr. Montoya.
2 PRESIDENT MONTOYA: That's what I thought you said.
3 Could I have a motion?
4 DR. LUBRITZ: So moved.
5 DR. BAEPLER: Second.
6 PRESIDENT MONTOYA: Seconded.
So moved and seconded.
7 And we'll raise the ceiling for the
malpractice review
8 committee to $500,000.
9 All in favor?
10 THE BOARD: Aye.
11 PRESIDENT MONTOYA: All opposed?
12 DR. LUBRITZ: Could I add just a note of explanation
13 for
our new members? That a malpractice
settlement claim for
14 whatever payment doesn't reflect a, quote,
"bad doctor." It's
15 part of the system. And sometimes the insurance companies
16 will settle with or without the doctor's
consent.
17 DR. BAEPLER: Often against his wishes.
18 DR. LUBRITZ: Be that as it may, we look upon
19 malpractice -- we look at the case. And if it seems that
20 there's a problem, then there's a problem.
21 But just because one has a
malpractice -- let's say
22 one for 30,000, one for 50,000, one for a
hundred thousand
23 over a span of years, we don't look at that
and say, that's a
24 bad doctor.
We'll look at it, was it a nuisance case, get rid
25 of it, settle it, or whatever. And you'll see an issue here
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 more that the physician will say the
insurance company decided
2 to settle.
So that just is just a note of explanation.
3 DR. BAEPLER: And there are certain specialties that
4 seem to accumulate these more than other
specialties.
5 PRESIDENT MONTOYA: She's only served on the
6 committee board.
7 (People begin speaking at the same
time.)
8 MS. MUNSON: Four cases, right?
9 PRESIDENT MONTOYA: Yes.
10 DR. BAEPLER: Well, that's four less appearances
11 here.
That helps.
12 PRESIDENT MONTOYA: Amendments to the Administrative
13 Code, Chapter 630 -- Mr. Quinn, I've got to
put that off.
14 MR. COUSINEAU: You know what, I can do it. I would
15 be glad to talk about my --
16 MS. KIRCH: What item?
17 PRESIDENT MONTOYA: 12.
18 MR. COUSINEAU: I'm sorry, Item Number 12. I was
19
just making sure that Dr. Juell, Greg Juell, who is a
20 emergency practitioner here in the Reno
area, had e-mailed me
21 -- again, Dr. Juell, who is a emergency
practitioner in the
22 Reno area here, had e-mailed me back in
mid-June specifically
23 requesting some information as to the
bioterrorism/weapons of
24 mass destruction CME; quite a few questions
have come up that
25 are similar to this.
PEGGY HOOGS & ASSOCIATES
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1 But I included a copy of Dr.
Juell's e-mail in the
2 package.
And again, that's under Tab 12.
And I think the
3 Board members can see specifically his short
request.
4 My response to him was basically to
assist him with
5 the NACs, specifically 630.154, which talks
about the two
6 types of training that meet the requirement,
either military
7 or public -- or officer training, licensed
as a Nevada
8 physician or training that meets the AMA
Category I
9 certification and accreditation upon
completion.
10 He's also aware -- that I explained
to him -- in that
11 there's not a lot of wiggle room pursuant to
the regulation to
12 deviate from that.
13 His response to me was
appreciative, and he also
14 asked that I respectfully request two of the
Board members,
15 that they contemplate the statute and
possibly the expansion
16 of the parameters to meet the CME
requirement.
17 He says, specifically, in one of
his e-mails that his
18 residency programs -- and we should say --
let me just read it
19 for you all:
"Residency programs are adding much to their
20 curricular regarding WMD and
bioterrorism. In emergency
21 medicine, the issue of bioterrorism is at
the forefront of
22 ACEP, the American College of Emergency
Physicians. It is
23
further an examination topic for ABEM, the American Board of
24 Emergency Medicine. It would seem that training in
25 bioterrorism is as much a part of emergency
medicine as
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1 training for the management of chest
pain. Please let me know
2 your thoughts."
3 So again, I indicated to him that I would
bring this
4 up in front of you at a subsequent board
meeting.
5 I also subsequently requested that
he try to be in
6 attendance, if at all possible. Apparently, he indicated he
7 had a conflict in his schedule. If he could make it around
8 the noon hour, he would try. Apparently, he hasn't.
9 So I also asked if he could offer
any more
10 information if he was unable to attend. He indicated that he
11 would point out the American Board of
Emergency Medicine, in
12 its model of clinical practice of emergency
medicine, details
13 of training required of their diplomats.
14 And Section 10.2 deals with
biologic weapons; Section
15 17 deals with toxicology; and there's also
additional training
16 on nuclear and radiation exposure.
17 So ultimately, he wants to know if,
again, a letter
18 that he is able to present to the licensing
specialists from a
19 residency, you know, director stating that
they billed
20 so-and-so hours of this training to be
sufficient to meet the
21 requirements.
22 I'm, again, not very well learned
on what the
23 training would encompass, but I have, again,
had multiple
24 inquiries as to whether any other training
besides the one
25 that's enunciated in the NACs will suffice.
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 So if you all, as a body, today
cannot make a
2 determination, at least maybe you can
contemplate that for
3 future consideration, because I think it's
going to be an
4 ongoing inquiry.
5 PRESIDENT MONTOYA: And NAC has fairly narrow
6 guidelines for bioterrorism. Still have to go get the five
7 hours of CME, despite their ongoing
training.
8 I think we -- this sounds more like
information we
9 all need.
10 MR. CLARK: Well, the statute covers that. And it
11 would have to be in the CME -- or anything
in the CME that
12 supports training for bioterrorism. So we don't have a lot of
13 leeway.
14 MR. COUSINEAU: Again, the Board -- I think NAC
15 630.130 basically takes the position that
the Board can
16 enforce the provisions of this chapter, a
chapter established
17 by regulation standards for licensure under
this chapter.
18 That's broad-based.
19 And then if you go to 630.257, I
believe it is --
20
excuse me -- 253, talks specifically to the CME requirements.
21 The Board may thereafter determine whether
to include in a
22 program of continuing education additional
courses of
23 instruction relating to weapons -- or as
medical consequences
24 from an act of terrorism, et cetera, et
cetera.
25 And I would think that the Board
could, through the
PEGGY HOOGS & ASSOCIATES (775) 327-4460
157
1 proper procedures, modify the
regulations. But if I'm not
2 mistaken, Steve, you might be a little more
conversant in
3
that, and if the Board wants to modify a reg, we don't need a
4 legislative mandate. Isn't there a procedure that's in
5 place --
6 MR. QUINN: Yes.
Administrative Procedures Act:
7
Notification of the regulation, workshops on the regulation,
8 and after a period of time, notification of
the public,
9 opportunity for public input, and then Board
passage.
10 MR. CLARK: The problem is that the Legislature
11 passed SB-250, which specifically set forth
these
12 requirements, and then the Board adopted
those same
13 requirements into the regulation. So we don't have a lot of
14 wiggle room.
15 We can change our regulations, but
we still have to
16 make sure that our regulations comply with
the statutory
17 direction.
So we don't have wiggle room in this particular
18 one.
19 Learned counsel would like to make
a comment,
20 Mr. President, if he can.
21 MR. MATHEIS: Larry Matheis of the Nevada State
22 Medical Association. What I would recommend is that what you
23 have done in your regulation was to allow
for an alternate
24 track that would be deemed to have fulfilled
the requirement.
25 And you've done it already for the
military and for
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 public health officers, because we knew that
they've all gone
2 through that training.
3 And I think what Dr. Juell had
indicated is that
4 board-certified emergency physicians have
also gone through
5 that training. So it would be possible to add in NAC
6 630.154(3)(b) a "(3)," which would
be Nevada's qualification.
7 As long as you would have reviewed
what the college
8 program was and found that that fills this
need, as you did
9 with both the military training and the
public health, I think
10 that would be a good mechanism.
11 There were other specialties we
were trying to
12 identify that -- when you were doing the
regulations, and
13 these are the exceptions that we could find
at that point.
14 PRESIDENT MONTOYA: What can we do to help the
15 situation along?
16 MR. CLARK: Well, if the Board would direct staff to
17 amend the regulation as Larry suggests, and
then we have to go
18 out for public hearings, and then physicians
in the public
19 sector can come in and tell us what other
training that they
20 have had that may fit the requirement, then
we can then amend
21 our regulation accordingly.
22 PRESIDENT MONTOYA: Sounds like -- how does the Board
23 feel?
24 MS. KIRCH: That would be a reasonable solution.
25 MR. COUSINEAU: Forgive me, sir, though. I'm
PEGGY HOOGS & ASSOCIATES (775) 327-4460
159
1 unclear.
I guess that was what I was kind of proposing
2 initially, but the way you explained the
statute is pretty
3 narrow and -- you know, in allowance. What is -- what do you
4 feel the statute does, this SB-250 that you
referenced, that
5 would allow us to expand as you explained?
6 MR. CLARK: I'm not sure.
I think so.
7 MR. COUSINEAU: If that's going to be problematic, we
8 might want to wait until we get in front of
the Legislature.
9 MR. CLARK: Let's get the Board's approval, and then
10 we'll check 250 to see if we can make those
kinds of
11 amendments.
12 PRESIDENT MONTOYA: Dr. Held, you're reading really
13 hard.
Do you have something to say about this?
14 DR. HELD: No. I
think it should be added,
15 definitely.
I'm reading really hard, trying to figure out if
16 my time in the military counts.
17 MR. CLARK: Doctor, it's after 1940.
18 DR. ANWAR: Is that something that's needed for all
19 the doctors?
20 PRESIDENT MONTOYA: Not for all the doctors. We're
21 trying to take care of the exceptions to the
rule. We're
22 trying to take care of the ER doctors that
have been through
23 their stuff and the military doctors and
some of the others
24 that haven't had specifically the four hours
bioterrorism CME,
25 so we're trying to find a way to except them
out.
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1 DR. LUBRITZ: Is it pretty easy to find out from the
2
Board of Emergency Medicine when they started instituting
3 that, because when someone passes their
boards let's say 15
4 years ago and they only enacted this ten
years ago, and they
5 may not have received that training. Pretty easy to do that?
6 MR. COUSINEAU: We may want to include some kind of
7 language that indicates that if they receive
this training
8 after so-and-so date.
9
MS. KIRCH: Well, it's already in
there. After
10 January 1st, 2002, right?
11 DR. LUBRITZ: Let's say they pass it in the past five
12 years or ten years, prior to that time, they
may not have had
13 bioterrorism and weapons of mass
destruction, or whatever, but
14 let's say since 1997, the Board of Emergency
Medicine said all
15 of our candidates have had this much
training or should have
16 had that much training, then we can
eliminate that.
17 DR. HELD: I think I agree that that's already
18 occurred for the holder of a license that
was initially
19 licensed on or before October 1st of 2003,
within two years of
20 licensure, if the holder of a license
practiced before October
21 1st, meaning on or before September 30th.
22 So it only applied to people that
finished their ER
23 residencies within two years and were
licensed after October
24 1st, 2003.
25 MS. KIRCH: But if you put it into the other thing,
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1 it's after January 1st, 2002, and as part of
the training
2 received while serving in the military,
public health officer
3
or emergencies, they would have to do that after January 1st,
4 2002, if we add it there, I would think.
5 PRESIDENT MONTOYA: Well, you heard our concerns. So
6 I'll leave the language, because it has to
be approved.
7 MR. COUSINEAU: As the gentleman indicated, if it's
8 going to be "(3)," then I guess it
would meet the date of
9 commission.
10 PRESIDENT MONTOYA: Right.
There's a couple other
11 considerations you all have. Anything else?
12 MR. COUSINEAU: No, sir.
13 PRESIDENT MONTOYA: Mr. Quinn?
14 MR. QUINN: No, I don't have anything else.
15 MR. COUSINEAU: Steve, you're not going to put that
16 other one in?
17 PRESIDENT MONTOYA: So that's the amendment to the
18 Nevada Administrative Code. I was going to take on the other
19 thing we were discussing.
20 Yes?
21 MR. CLARK: There is one more, and that is
22 NAC 630.080, the number of times an
applicant can sit for and
23 the amount of time it can take him or her to
pass the USMLE.
24 You may recall that at the last
meeting, we had a
25 number of applicants for licensure for
resident licenses to go
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1 into the University of Nevada residency
programs, some of whom
2 took the USMLE 19 times in order to get past
the three steps.
3 And -- over a period of 15 years.
4 And I remember Dr. Hug-English
suggesting that we
5 revisit our change to the administrative
code to look at
6 providing that applicants -- previously, we
had a rule that
7 applicants had to pass within five tries
over seven years, and
8 a lot have done that.
9 And I sent out to each of you,
except for
10 Mrs. Stoess, who was not on the Board at the
time, a
11 memorandum about this, and it showed what
other states are
12 doing, state by state. And most of them indicate that they
13 want the three steps passed within seven
years, and most of
14 whom took five attempts to pass the three
steps.
15 And so I just decided I would ask
the Board if the
16 Board wanted to revisit that regulation and
re-impose some
17 time limits and the number of times that an
applicant can sit
18 for that examination rather than having
people who come in and
19 taking it 19 times and finally pass three.
20 PRESIDENT MONTOYA: Like that one gentleman who came
21 in; he used the test, itself, as a review.
22 MR. CLARK: For his test?
23 PRESIDENT MONTOYA: Yeah, on the next day. He did
24 this until he finally got a final score.
25 The most common number I saw there
was seven, a total
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1 of seven tries, was the most common number I
saw.
2 DR. BAEPLER: Seven years?
3 PRESIDENT MONTOYA: Seven tries.
4 MS. KIRCH: I think seven years.
5 PRESIDENT MONTOYA: Right.
Unless you're a Ph.D.
6 candidate; then you have ten years.
7 MR. CLARK: Yes, ten years.
8 DR. LUBRITZ: Well, how many tries can you have
9 within that time, because I think you can
sit for it over and
10 over and over.
11 MS. KIRCH: What did we have before?
12 MR. CLARK: Five times in seven years.
13 MS. KIRCH: Okay.
14 MR. CLARK: Strike that -- yes. Excuse me.
15 DR. BAEPLER: Is that five times for each step?
16 MR. CLARK: No, five times total to pass the three
17 steps.
18 DR. ANWAR: Seven years maximum.
19 PRESIDENT MONTOYA: And that flat part got us in
20 trouble before, because some of these M.D.,
Ph.D.'s -- and as
21 a matter of fact, we were (inaudible) --
22 MR. QUINN: Yes, I handled the case.
23 DR. LUBRITZ: Is that reasonable, five tries in seven
24 years?
25 PRESIDENT MONTOYA: Seems to be reasonable, except if
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1
you're going up for a Ph.D. and it takes you ten years.
2 DR. LUBRITZ: I'd like to have a limit. I just don't
3 know what the right limit is.
4 PRESIDENT MONTOYA: There was some discussion back in
5 Washington, D.C. also, and --
6 DR. ANJUM: What if there are special circumstances
7 that we're going to end up discussing like
we did last time,
8 like with the candidate at the last meeting,
15 attempts in
9 over 13 or 11 years, or whatever it was, and
there are special
10 circumstances, and some of the reasons are
understandable, and
11 most members of the Board, after their
explanation, voted in
12 favor.
13 So, making hard-and-fast rules, I
don't know what is
14 the purpose of that when we have already
shown our practice of
15 considering those situations and
circumstances in allowing
16 them to go for the license.
17 DR. BAEPLER: We really haven't had much of a problem
18 with this until the last meeting when
suddenly two of them
19 popped up, one 15 times, one 19 times.
20 DR. ANJUM: But one of them we approved because the
21 circumstances that he or she explained made
some sense. So
22 this is almost a screening thing, not a
hard-and-fast rule.
23 That's what I'm trying to say.
24 If you're going to end up doing
that eventually, then
25 you should make a hard-and-fast rule that
this is it, final.
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1 Don't come to me if you don't have more than
seven attempts
2 in --
3 PRESIDENT MONTOYA: Well, why haven't the testers had
4 anything to say about this?
5 MS. KROTKE: I think that we, as a group, generally
6 feel that people that are attempting these
tests over and over
7 are coming out of not-so-great medical
schools. The students
8 that are coming from American or Canadian
schools generally
9 pass it the first or second time. It's these offshore,
10 foreign schools that -- they go hand in
hand.
11 So if you limit or knock the years
off, or whatever
12 you're going to do, it's going to reduce the
boards; you're
13 going to have a reduction on possible
investigations that come
14 later because they are struggling. There is something going
15 on there.
That's how we feel.
16 DR. ANJUM: That's if you relate the number of
17 attempts to being a bad physician, unless
you make for a
18 special occasion, like we had with the last
lady. She has
19 attempted 15 times for her residency
license, you know. And
20 what kind of physician she is going to come
out to be is
21 totally different to how many attempts she
has --
22 DR. BAEPLER: Does she have a language problem too?
23 DR. ANJUM: She had a problem with her family who was
24 not supportive. She used to sign up for the exam, thinking
25 that maybe -- she would always study a
little bit; otherwise,
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1 she would not study at all. And all that seems to make sense,
2 you know.
And we okayed her to go for her license, and she
3 may be a good physician, and if not, we have
means to control
4 on that regularly in the future also.
5 DR. ANWAR: The bottom line, the way I see it is, we
6 want to make sure that our minimal standard
is met or practice
7 of medicine in the State of Nevada take care
of people of the
8 State of Nevada, and if that minimum
standard is going to be
9 affected by the number of attempts that
somebody makes, then
10 we should consider that very seriously.
11 However, if it's just an arbitrary
thing -- and the
12 point that has been made is valid, that
generally, the level
13 of candidates that we receive from Canada
and the local levels
14 would be at a different level than some of
the foreign medical
15 graduates that we receive from offshore or
other places.
16 But the reason why parity was
determined by law that
17 everybody -- because there used to be a
problem of the
18 perception that maybe the foreign medical
graduates are not as
19 competent as, say, American graduates
are. And for that, the
20 foreign medical graduates worked for a
change of law, and --
21 instead of having a separate or different
examination, so they
22 be -- they be provided the same examination,
so that once they
23 come through it, they are considered at par
with the American
24 medical graduates. And they did that through the court
25 system.
And that's how this program -- the three-step program
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1 came through.
2 If, however, we feel that having
multiple attempts or
3 a certain of number of attempts to pass that
examination at
4 M.D. levels and coming into our training
program is not up to
5 snuff with the minimum level that we provide
for entry level,
6 then we should seriously consider that, but
just because
7 somebody makes multiple attempts, does that
tell us that they
8 are inferior doctors at that level? That's the question you
9 need to answer.
10 DR. ANJUM: That particular candidate who has 16, 17
11 attempts was accepted into the residency
program already, so
12 they had screened her and found her suitable
for the
13 residency, and then she applied for the
license.
14 PRESIDENT MONTOYA: At the same time, there is some
15 talk that we're going to have to talk to the
residency
16 directors, that the Board is getting tired
of admitting
17 doctors who are very equivocal.
18 DR. BAEPLER: And we got more this time.
19 PRESIDENT MONTOYA: And we've got more this time.
20 There's been -- at the Federation level,
when we were there,
21
they were considering competencies.
One of the competencies
22 they considered as flags that you can look
at to see if a
23 doctor is going to be a problem or not is
his school record.
24 Doctors with poor school records or
poor levels of
25 passing these exams are going to be
disciplined more often,
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1 and they just get in trouble more
often. I don't think it is
2 being capricious or arbitrary that we're
proposing these kinds
3 of standards.
4 DR. ANJUM: I think --
5 DR. ANWAR: There are certain boards, too, that --
6 there's some boards that say that if you
don't pass the board
7 examination within so many attempts, then
you have to go back
8
and get a year's training, or something like that. So there
9 is a recourse for that, so they have -- they
have a built-in
10 mechanism to solve that problem, whether
they're competent or
11 not.
12 So if you have taken so-many
attempts, and you can
13 make it, you can go back and have a year's
training and then
14 come back.
15 This year, we are talking about
people who are
16 entering into a residency program or
training program, and
17 they'll be in a supervised environment, and
there's no reason
18 for them to come out of the first year into
the second year
19 unless
their program director concludes that the person or the
20 doctor is eligible to go to the second
level.
21 PRESIDENT MONTOYA: I can see your argument for a
22 limited license as for a resident; however,
do we want to give
23 an unrestricted license to somebody who is
not going to be
24 supervised, necessarily? I'm uncomfortable with that.
25 DR. ANJUM: We don't have that situation so far come
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1 up.
2 DR. LUBRITZ: We may have it coming up now.
3 DR. ANJUM: That's possible.
4 AN UNIDENTIFIED WOMAN: And they're still allowed to
5 apply.
And if you set a limit, they can apply by endorsement.
6 It would be the same. They come before the Board for
7 decision.
8 DR. ANJUM: That's true.
I think we should discuss
9 the case and not straight-forward deny a
license based on
10 multiple attempts.
11 DR. HELD: I agree with Dr. Montoya. I think we
12 should have a hard-and-fast rule. If somebody wants to go for
13 an exception and apply for an exception,
then I'm --
14 DR. ANJUM: That's what it says.
15 DR. HELD: It would make sense. One of the other
16 problems --
17 DR. ANJUM: Well, that's what we do now.
18 DR. HELD: As a spin-off, you say a restricted
19 license, we just started talking about
letting -- residents
20 are doing unsupervised moonlighting work
around, so --
21 PRESIDENT MONTOYA: Fortunately, that's in another
22
state.
23 DR. BAEPLER: Where they hold the license.
24 PRESIDENT MONTOYA: I'll wait for Dr. Lubritz to --
25 DR. LUBRITZ: I just need a number. What's a fair
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1 number?
I will make a motion that --
2 DR. ANJUM: Is that number going to be absolutely for
3 denial, or is there still going to be some
room to discuss
4 special circumstances?
5 DR. BAEPLER: I think there's always room to discuss
6 special circumstances.
7 DR. ANJUM: Then certain parameters.
8 PRESIDENT MONTOYA: Let's say five in seven, unless
9 they're going for the Ph.D.
10 MR. CLARK: Ten years for Ph.D.
11 DR. LUBRITZ: So moved.
12 MS. KIRCH: Seconded.
13 DR. ANWAR: What did you move?
14 DR. LUBRITZ: What he said.
15 MR. CLARK: Five times on the exam within seven
16 years, unless you're vying for Ph.D., as
well, and then you
17 have ten years within which to pass.
18 DR. LUBRITZ: And five attempts?
19 MR. CLARK:
Five attempts.
20 PRESIDENT MONTOYA: All right.
That takes care of
21 another item.
22 DR. LUBRITZ: Aren't you going to vote on it?
23 PRESIDENT MONTOYA: All in favor?
24 THE BOARD: Aye.
25 PRESIDENT MONTOYA: Opposed?
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1 Chair is in favor. It goes.
I counted.
2 MR. CLARK: We have one more thing on the NACs,
3 Mr. President.
4 DR. BAEPLER: I would move that we approve the
5 updates that have been put into the model
guidelines for
6 sensory pain management since we adopted the
original version.
7 It needs minor tweaking, as far as I can
tell.
8 PRESIDENT MONTOYA: Absolutely.
9 DR. ANWAR: I have a comment, if I may,
10 Mr. President.
11 PRESIDENT MONTOYA: Dr. Anwar, go ahead.
12 DR. ANWAR: My comment is that I have a pretty good
13 sense that probably more than 95 percent of
physicians
14 practicing in Southern Nevada, at least -- I
don't know about
15 Northern Nevada -- are not aware of these
guidelines that we
16 have adopted. And I think we should do something to bring
it
17 to their attention. If we pass something as informed as this
18 is and we are going to hold somebody to
comply to those
19 guidelines, we should make sure that they have
a copy of that.
20 DR. BAEPLER: Did we mail those out?
21 MS. KROTKE: We mailed those out.
22 DR. ANWAR: I haven't received it yet, but maybe it's
23 in the newsletter.
24 PRESIDENT MONTOYA: It was sent out the first year I
25 was on the Board.
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1 DR. BAEPLER: In the booklet.
2 DR. ANWAR: I don't remember seeing it.
3 DR. BAEPLER: I thought we had sent a booklet to
4 everyone.
I might be wrong.
5 DR. LUBRITZ: Why can't we -- within the mailings
6 that we make, why don't we include the
guidelines and make it
7 a rule that every new licensee, in his
packet, gets those
8 guidelines.
9 DR. BAEPLER: It's a very good set of guidelines that
10 most states have adopted. And they really tweaked the wording
11 a little bit in this update.
12 MR. CLARK: There is a new booklet that we will be
13 receiving for the Federation that has the
guidelines in it.
14 We will order enough from the Federation so
that we can send
15 the set of guidelines to every licensed
physician in the
16 state.
17 DR. LUBRITZ: As well as giving it to every new
18 licensee who receives --
19 MR. CLARK: Yes.
20 DR. BAEPLER: We need their feedback.
21 PRESIDENT MONTOYA: So that doesn't require a vote.
22 DR. BAEPLER: I move that we approve the
23 recommendation here to adopt the updated
model guidelines.
24 MS. KIRCH: Second.
25 PRESIDENT MONTOYA: Seconded.
All in favor?
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1 THE BOARD: Aye.
2 PRESIDENT MONTOYA: Opposed?
3 The chair is in favor, so we go
with that.
4 Now, I keep looking up to see if they're
coming in.
5 Are they ready?
6 MS. KROTKE: They're still out there.
7 PRESIDENT MONTOYA: They're still working on it? I'm
8 talking about Ms. Quinn, Ms. Bible, Ms.
Giarrusso.
9 If we could go ahead and get our
first transcript
10 document.
Dr. Lubritz and I took the liberty of giving myself
11 the other two cases that Dr. Hug had.
12 DR. LUBRITZ: I had one.
13 PRESIDENT MONTOYA: Okay.
14 DR. LUBRITZ: Johnson.
15 PRESIDENT MONTOYA: I'm prepared to vote. First one
16 we're looking for is Jacob Manjooran.
17 DR. BAEPLER: Manjooran.
I would move for a closed
18 session.
19 PRESIDENT MONTOYA: Closed session.
20 (Closed session, not reported.)
21 MS. BIBLE: I'd like to move for the Board's approval
22 on this language to be contained in a
subsequent order that
23 has the caption and the -- it's more formal,
but this would be
24
the language that's incorporated in the order for this Board
25 to approve and to issue, and that would be
that the settlement
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1 agreement executed by the parties on May --
I'm sorry, May
2 21st, 2004 -- it's in your packet -- is
hereby approved and
3 accepted by the Board with the following
modifications and
4 clarifications: One, the web site of the Board -- there's two
5 web pages.
The first web page located under "License
6 Verification" -- and I have found out
that particular
7 address -- currently describes the complaint
filed against
8 Dr. Giarrusso and the allegations set forth
in the complaint.
9 Said descriptive language currently
reflected on the web page
10 shall be removed from the web site and shall
be replaced with
11 all new language: "A complaint was filed on March 30,
2004,
12 pursuant to a settlement; the complaint was
dismissed."
13 The second web page located on the
web -- Board's web
14 site is located under "Disciplinary
Actions" and sets out,
15 again, the address for that subsite, lists
the name of Karen
16 Giarrusso, M.D., and describes the emergency
hearing held by
17 the Board to suspend Dr. Giarrusso's
license. The reference
18 to Dr. Giarrusso and any action against her
shall be deleted
19 from this web page.
20 Number three: With regard to the notifying of the
21 national practitioners databank, the Board
shall use every
22 effort -- reasonable effort to seek -- to
advise the databank
23 that there's no longer any reportable disciplinary
action
24 because the action has been lifted,
rescinded -- that being
25 the emergency suspension -- and that the
databank should no
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 longer contain a report of disciplinary
action against
2 Dr. Giarrusso. If it is not possible to obtain a removal of
3 the databank report of the disciplinary
action against
4 Dr. Giarrusso, the Board shall request the
databank to reflect
5 that the action initiated was resolved by a
settlement
6 agreement that dismissed the complaint,
lifted -- rescinded
7 the suspension, and reinstated Dr.
Giarrusso's license without
8 conditions.
9 And finally, I would ask that the
Board make a
10 finding that the previous conditions imposed
on
11 Dr. Giarrusso's license to participate in a
diversion program
12 have been complied with, and as a result of
said compliance,
13 the conditions are hereby removed from the
license.
14
PRESIDENT MONTOYA: We've
discussed this quite a bit
15 before.
Hopefully, there won't be much discussion now. But
16 Dr. Lubritz -- oh, wait. The other side. Dr. Anwar?
17 DR. ANWAR: I just have to ask a question. Is this,
18 what has been read out, acceptable to Dr.
Giarrusso?
19 DR. GIARRUSSO: Yes.
20 DR. LUBRITZ: I have one problem. Because I'd like
21 not to see this in front of the Board again,
and if we leave
22 this in, they're liable to be here
again: It says, "With
23 regard to notifying the" -- this is
Number 3 -- "notifying of
24 the national practitioner databank, the
Board shall use every
25 reasonable effort ..." That's going to bring us back here
PEGGY HOOGS & ASSOCIATES (775) 327-4460
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1 over and over and over again, and I can see
it.
2 What I would like to see is that
"the Board shall
3 notify or advise" of that, because
"every reasonable effort"
4
is an open ticket to come back here, and I don't want to have
5 this in front of us again.
6 MR. SGRO: I will tell you that Mr. Quinn and I have
7 worked out a number of issues using this language
that has not
8 been back before you, but we have no problem
with the word
9 "notify."
10 DR. LUBRITZ: I would like to make that as a
11 modification.
12 MR. SGRO:
We don't have any problem with that.
Is
13 that acceptable to the Board?
14 PRESIDENT MONTOYA: Is that acceptable?
15 DR. ANWAR: Yes.
16 DR. BAEPLER: It's simpler.
17 PRESIDENT MONTOYA: All right.
I'll entertain a
18 motion.
19 DR. LUBRITZ: I'll make a motion.
20 MS. BIBLE: Go ahead.
21 DR. LUBRITZ: That's all I have, because I'd like to
22 make the motion previously described by
Charlotte Bible be
23 incorporated as a motion to the Board.
24 PRESIDENT MONTOYA: So moved.
25 MS. MUNSON: Second.
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1 PRESIDENT MONTOYA: All those in favor?
2 THE BOARD: Aye.
3 PRESIDENT MONTOYA: Opposed?
4 The chair can't vote on this.
5 It passes. Congratulations. You got your license.
6 DR. GIARRUSSO: Thank you very much.
7 PRESIDENT MONTOYA: You're dismissed.
8 MR. SGRO: Thank you for the time and calling us
9 back.
10 PRESIDENT MONTOYA: Now you have to find an airplane.
11 MR. SGRO: One problem at a time.
12 PRESIDENT MONTOYA: Okay.
That problem is gone. On
13 to the next problem.
14 DR. ANWAR: Are we open or closed?
15 PRESIDENT MONTOYA: We're open.
16 DR. ANWAR: My question:
Did your motion take care
17 of the change that you recommended?
18 MS. KIRCH: Yeah.
19 PRESIDENT MONTOYA: Yes.
We did the amendment, and
20 then we passed it.
21 DR. ANWAR: All right.
22 PRESIDENT MONTOYA: Okay.
Next is Michael Thomas.
23
DR. LUBRITZ: Can we move that
we're going to close?
24 MS. KIRCH: Second.
25 (Closed session, not reported.)
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1 PRESIDENT MONTOYA: Go ahead.
2 DR. ANWAR: Thank you, Mr. President. I'd like to
3 make a motion that we grant a license to
Michael Thomas for
4 the practice of medicine pending favorable
approval of the
5 peer review.
6 DR. LUBRITZ: Second.
7 PRESIDENT MONTOYA: Second and moved. We grant
8 Dr. Thomas's license pending passage of peer
review.
9 All in favor?
10 THE BOARD: Aye.
11 PRESIDENT MONTOYA: The chair is in favor.
12 So, Dr. Thomas, you can pass peer
review and onward
13 and upwards.
You'll go back to Las Vegas.
You'll be the
14 third pediatric surgeon.
15 DR. THOMAS: There are two, Dr. Berry and Dr. Camp
16 are in Las Vegas, and that'll make it three.
17 DR. BAEPLER: Great.
Do we make arrangements --
18 MR. CLARK: We'll make arrangements for peer reviews
19 for you.
20 DR. THOMAS: Thank you very much.
21 DR. BAEPLER: Get clarification. We go into closed
22 session to discuss the case. When we bring the doctor in to
23 question him --
24
PRESIDENT MONTOYA: That's open.
25 DR. BAEPLER: Is it going to be open or closed?
PEGGY HOOGS & ASSOCIATES (775) 327-4460
179
1 MS. BIBLE: It's traditionally closed, because you're
2 talking about his character, and then we
open up to do the
3 vote.
4 DR. BAEPLER: That's when you look at the minutes of
5 the last meeting, you'll see the open
meeting is just a series
6 of motions, no discussion.
7 DR. LUBRITZ: But we generally ask them to excuse
8 themselves.
9 MS. KIRCH: We haven't had to.
10 DR. ANJUM: If we talk bad about them --
11 PRESIDENT MONTOYA: Call Dr. Justis in.
12 (Closed session, not reported.)
13 (Whereupon, the reporter was
assured by
14 President Montoya that the rest of the day's
proceedings
15 before the Board were exclusively
Considerations of Acceptance
16 of Applications for Licensure and no other
agenda items would
17 be heard.
Consequently, the record was closed for the day at
18 the hour of 2:25 p.m.)
19 -oOo-
20
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PEGGY HOOGS & ASSOCIATES (775) 327-4460
180
1
STATE OF NEVADA )
) ss.
2 WASHOE COUNTY )
3
4 I, CECILIA VOHL, a notary public
in and for Washoe County, State of
5
Nevada, do hereby certify:
6 That on Friday, the 10th day of
September, 2004, at the hour of
7 8:30 a.m. of said day, at the Nevada State
Board of Medical Examiners, 1105
8 Terminal Way, Suite 301, Reno, Nevada, said
proceedings were taken in verbatim
9 stenotype notes by me, a Certified Shorthand
Reporter, and thereafter transcribed
10 to the best of my knowledge, skill and
ability, as herein appears;
11 That due to events and
circumstances occurring during the course of
12 this hearing that were beyond the control of
the court reporter, such as the
13 failure of certain participants in the
hearing to fully cooperate with ordinary
14 and appropriate requests made by the court
reporter relating to the clarity of
15 the record, the accuracy of this transcript
cannot be guaranteed;
16 That the foregoing transcript,
consisting of pages 1 through 179, is
17 a full, true and correct transcription of my
stenotype notes of said proceedings;
18 I further certify that I am not
a relative nor an employee of any
19 attorney or any of the parties, nor am I
financially or otherwise interested in
20 this action.
21 DATED: At Washoe County, Nevada, this day of September, 2004.
22
23
24 CECILIA
VOHL, NV CCR #246,
CA CSR #5195, RPR, CRR
25
PEGGY HOOGS & ASSOCIATES (775) 327-4460