AAPS News – Nov 1991

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Association
of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

Volume 47, No. 11 November 1991

CIVIL RIGHTS ACT ANNULLED

If a citizen is deprived of his rights by persons who wear
white hoods and burn crosses, the injured party can recover
damages in an action at law.

If a physician is deprived of his rights by a committee of
peers in a state government institution, who wear white coats,
the physician has no recourse to federal court, no matter what
the facts of his case may be, according to a September 26
decision of the Fifth Circuit Court in the case of Caine v. Hardy
(see p. 3).

The Caine case is the most glaring example of the efforts of
the federal judiciary to effectively repeal the Civil Rights Act
of 1871, the “Anti-Ku Klux Klan Act.”

The statute, though enacted because of the Ku Klux Klan, is
expressed in very general terms:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall be
liable to the party injured in an action at law…. (42
U.S.C.S. §1983).

The late Curtis Caine, Jr., MD, suffered the loss of a
property right, his hospital staff privileges at Hinds General
Hospital (a state-owned institution), in a peer review action
that he alleged to be a personal vendetta in retaliation for his
opposition to an exclusive anesthesia contract. As a result, Dr.
Caine also lost his medical license in Mississippi and was denied
licensure in numerous other states, even before the national data
bank was opened. Eventually, he obtained an anesthesia
fellowship that he believed might enable him to regain licensure.
Near the end of what he regarded as a sentence of penal
servitude, he died suddenly of a heart attack.

The actual facts of Dr. Caine’s case have never been
presented in a courtroom. The door of the court was slammed in
his face by Judge Edith H. Jones, a frequently mentioned
candidate for the US Supreme Court.

Judge Jones had to decide whether Dr. Caine’s complaint, on
its face, stated a cause of action under the Civil Rights Act.
Instead, prejudging the facts, she wrote: “To a reasonable
layman, there would be no dilemma: after a patient died while
under the anesthesiologist’s care, suspension pending a hearing
would seem an obvious answer.”

“[Dr. Caine’s] assertion that he was the victim of partisan
decisionmaking is of no moment….The risk of erroneous decision
is … tolerable when compared with the state’s powerful interest
in protecting patient safety.”

These comments do not take into account the medical
situation because Dr. Caine was never permitted to present it.
(The patient was moribund when Dr. Caine first saw him.)
Furthermore, they give “detailed credence to a patient safety
issue which is not raised in the case because the defendants
never raised it and the plaintiff’s pleadings refute it as a
factor,” as the dissenting judges point out. In effect, the
Court “converts the proceeding to a trial on the merits and
without the slightest authority makes its own evaluation of the
case based upon its own creation of evidence that does not exist
in the pleadings.”

Once a public safety issue is raised, the individual who
finds the “tolerable risk” of a misjudgment visited upon him
has no cause of action, in Judge Jones’ opinion, if his risk
arose “only from wanton and intentional violations of control-

ling state regulations.” In other words, if peer reviewers in a
state institution wish to assure their immunity, they seemingly
must do two things: (1) establish bylaws that provide for
flawless due process and (2) violate their own bylaws in a wanton
and intentional fashion.

“Allegations of bias” in decision-making, she declared,
even if they must be assumed to be true, “do not render infirm
otherwise constitutionally adequate procedures.”

Judge Jones also dismissed Dr. Caine’s First Amendment
claims, stating that “the threshold legal question in such cases
is whether [Dr. Caine’s] speech dealt with matters of truly
public concern as opposed to matters of purely personal interest
or intra-office disputes.” Whether or not the awarding of a
monopoly to three anesthesiologists was in the patients’ best
interest was deemed irrelevant because Dr. Caine also had a
personal interest in the decision. The contract would have
excluded him from caring for obstetrical patients at Hinds
General Hospital. Therefore, speaking out on the issue was not
protected free speech. Dr. Hardy and his partners could punish
Dr. Caine by revoking his privileges in a public hospital, even
on the basis of unproved or patently false charges.

Judge Jones’ narrow interpretation of the First Amendment is
radical indeed. If allowed to stand, this precedent could
restrict everyone’s freedom to speak on any issue in which he
allegedly has any personal interest whatsoever.

The implications of the decision are far-reaching and
ominous. According to the dissenters, “this holding constitutes
a license to any public agency to deprive someone of a special
right by stating a ground which would constitute an emergency-
with no proof thereof…This bootstrap device can be used [when] the motives for deprivation were wholly discriminatory.” In
other words, this decision also annuls the Fourteenth Amendment
to the US Constitution.


The Unnecessary Epidemic

AIDS: The Unnecessary Epidemic by Stanley Monteith, MD,
Covenant House Books, 1991, $14.95

Dr. Monteith has provided a stimulating, revealing, and
personal insight into a side of the AIDS epidemic that has had
little exposure. He is an orthopedic surgeon who sought to apply
the same medical and public health measures to the human
immunodeficiency virus (HIV) that have been applied to other
infectious diseases, but found that higher powers were determined
to “politically protect” HIV carriers and expose large numbers
of Americans to unnecessary risk.

The strength of the book is Dr. Monteith’s personal
encounter with the California Medical Association (CMA) and
politically appointed committees. Time after time, he brought
resolutions before the House of Delegates and various committees,
only to have other resolutions substituted and decisions made
behind closed doors (often in violation of CMA’s own rules).
Sometimes, he was not even allowed to use his delegate’s
microphone!

Dr. Monteith calls us all to action “to change the
political, moral, and spiritual climate of our nation.” I agree
almost entirely with his conservative positions on AIDS and other
issues. I differ with him on the degree of threat that AIDS
constitutes to society in general, its spread among heterosexu-

als, and the extent of HIV testing needed. All in all, however,
I heartily recommend this book for its poignant, first-hand
narrative of medical and political leaders who have failed to
honor their office and limit the spread of this epidemic.

Edward Payne, MD

Medical College of Georgia, Augusta

Volume Performance Standards

Physicians feel pressured to diagnose ailments curable by a
procedure currently falling short of plan fulfillment (rather
than one that has been “overutilized”). The authorities
investigate a hospital if deaths per year exceed the quota.
Terminally ill patients are excluded from hospital care as
doctors compel families to take them home to die. Medical staffs
spend an inordinate amount of time on paperwork. They must
coordinate each procedure and diagnosis with numbers specified in
the plan (Paul Craig Roberts and Karen LaFollette, Meltdown
Inside the Soviet Economy, Cato Institute, 1990).

We have seen the future and how it works….

Letter to the Editor

[This letter was also sent to James Todd, Executive Vice
President of the AMA and to AM News.]

I am writing this open letter concerning the AMA’s attitude
to…the RBRVS….It seems as though the AMA has focused on the
16% cut in the conversion factor as its main challenge….In the
past we were hoodwinked by the bureaucracy into accepting an
Alice-in-Wonderland Medicare system. Now we are to suffer its
offspring, “physician payment reform.” Regulations for
1992…are an abomination…It is time that we stop pussyfooting
with the government. We must become resolute and like Albert
Finney in the movie Network we should state, “We have had enough
and we’re not going to take it anymore!” The AMA should stand
on its own two feet, support its constituents, and proclaim for
all to hear that we denounce the RBRVS…and will be no party to
this madness. I do not believe that our bureaucrats can run
roughshod over a united, organized medical profession.

Ian D. Samson, MD, Lakewood, NJ

Balance Billing Ban Upheld

The US Circuit Court of Appeals for the Third Circuit found
that a Pennsylvania law banning balance billing is not
unconstitutional and is not preempted by federal Medicare
legislation. The Court stated that the regulation of public
health and therefore medical care costs was well within the
state’s police powers.

The Pennsylvania Medical Society argued that the tremendous
size of the Medicare program and the extensiveness of its
regulations, especially regarding fees, “left no room” for
state legislation. The Court noted that Congress knew that at
least four states had, and 18 states were considering,
restrictions on balance billing when it enacted its own rules.
Thus, in remaining silent on the preemption issue Congress
“failed to evince the requisite clear and manifest purpose to
supersede those state laws.”

The medical society’s argument that balance billing bans
would affect access and quality were called “speculative”
(BNA’s Medicare Report 9/6/91).

Will Medicare Cost Curbs Become Universal?

In the past eight years, Congress and the White House have
quietly created a pervasive system of government controls over
the price of medical care. The essential feature is a flat fee
for each service, regardless of the cost to the provider or the
worth to the patient.

A commercial insurer might not have gotten away with such
measurers, “but an 80,000-pound gorilla like the federal
government can.”

Experts say the controls can easily be extended to all
medical care. House Ways and Means Committee Chairman Dan
Rostenkowski (D-IL) has proposed the Medicare system as the basis
for cost controls in his national health insurance proposal
(Spencer Rich, Washington Post 8/20/91).

Congress Punishes Honesty

Thirty-seven states have found a way to transfer $3 billion
of their Medicaid burden onto the federal government, using
federal taxes paid in other states (such as Iowa) that have not
participated in the scam. The 37 states raised the Medicaid
payment rates, then levied a special tax or “donation” on the
Medicaid providers. These revenues (at least half of which came
from federal taxes) are used to “match” more federal funds. A
HCFA rule prohibiting federal matching payments on taxes linked
to increased Medicaid payments is scheduled to take effect in
January, 1992. (The rule was proposed in February, 1990, but a
Congressional moratorium has delayed implementation.) The rule
is strongly opposed by the National Governors’ Association and
the American Hospital Association (Des Moines Iowa Register
9/30/91 and BNA).


Fifth Circuit Court Ignores Clearly Established Law,
Says State Can Do No Wrong in Hospital Peer Review

On September 26, 1991, twelve judges of the US Court of
Appeals for the Fifth Circuit, sitting en banc, ruled that
officials at a public hospital can ignore procedures set forth in
medical staff bylaws and revoke a physician’s hospital privileges
as a personal vendetta, without running afoul of the Due Process
Clause of the Fourteenth Amendment to the US Constitution. The
decision in Caine v. Hardy overrules volumes of case law
protecting citizens from abuse by government officials. The
majority opinion, authored by Bush appointee Edith H. Jones,
ignores both the pronouncements of the US Supreme Court on due
process and basic concepts under the Federal Rules of Civil
Procedure.

Shortly after Curtis Caine, Jr., MD, an anesthesiologist,
successfully objected to the granting of an exclusive anesthesia
contract by Hinds General Hospital, and lost an election for
chairmanship by one vote, the anesthesiologists who had sought
the contract initiated an investigation into Dr. Caine’s
practice. The result was a summary suspension of Dr. Caine’s
medical staff privileges, which were later revoked by the
Executive Committee, and finally terminated by the hospital’s
Board of Trustees. (For further detail, see AAPS News,
Oct and Nov 1990 and p. 1 of this issue.)

Dr. Caine filed suit against M.D. Hardy, MD, and his
partners, as well as the public hospital itself. Specifically,
he alleged that he was denied his notice and hearing rights under
the hospital’s bylaws and that he was not given access to medical
records that were necessary to his defense against the charges
leveled by Dr. Hardy and his partners. The suit was filed under
the Civil Rights Act of 1871, 42 U.S.C. 1983.

The US District Court dismissed the complaint under Rule
12(b)(6) of the Federal Rules of Civil Procedure, and the US
Court of Appeals affirmed.

Writing for the majority, Circuit Judge Edith Jones held
that Dr. Caine’s 50-page complaint did not state a cause of
action under 42 U.S.C. 1983. Ignoring the well-established
strictures of Rule 12(b)(6) of the Federal Rules of Civil
Procedure, she concluded, without any sworn evidence in the
record, that the public hospital’s and prosecuting physicians’
actions were motivated by patient safety concerns rather than ill
will, and that the hospital was not required to give Dr. Caine
proper notice before terminating his privileges. Moreover, Judge
Jones, again without the benefit of any sworn evidence, assumed
that any speech of Dr. Caine regarding operations of the hospital
was not entitled to First Amendment privileges.

As the dissent in the case correctly points out, these
assumptions on the part of the majority go against the basic
principles of civil procedure. Under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, when a defendant files a motion
to dismiss a complaint, the facts as stated in the complaint must
be taken as true. Dr. Caine explicitly stated in his complaint
that there was no “emergency” justifying his summary
suspension, that he was denied procedural due process both before
and after his suspension, and that the

actions of the defendants violated his right to free speech.
It is apparent that his complaint, if taken as true, stated a
valid claim for the violation of his constitutional rights. The
majority nevertheless believed the hospital’s side of the story,
despite the lack of any evidence (such as affidavits or
depositions) to support that story.

The most shocking aspect of the majority opinion is its
analysis of the procedural due process issue. Dr. Caine alleged
numerous violations of the hospital’s bylaws, which were put in
place in order to comply with due process. The majority reasoned
that the failure of the defendants to follow the bylaws was not a
due process violation because the actions of the defendants (who
were agents of the state) were “random and unauthorized” by the
state: “It cannot be said that the decisionmakers in this case
were `authorized’ either to misuse the regulations or to
discipline Dr. Caine for improper purposes” [i.e. to violate the
law], wrote Judge Jones.

In effect, the majority argued that (1) a state acts only
through its statutes, not through its agents, and (2) if a state
law is violated by agents of the state (say by violating the
hospital bylaws), there is no federal cause of action, as long as
the injured party can file an action in state court. The judges
ignored the question of whether or not the state remedy was
adequate. (A chance to appeal within 30 days to a chancery court
for administrative review only is manifestly inadequate.) They
also ignored the whole procedure of filing pendant state claims,
a standard legal practice in federal cases.

The cutting and vigorous dissent of Judge Jerre S. Williams
castigates the majority for its reasoning. Judge Williams
observed:

Dr. Caine’s representatives should be granted the
chance to develop their claim that the defendants
violated Dr. Caine’s constitutional procedural rights
under Zinermon and the critical free speech right of
advocacy as to a matter of obvious public concern
[quality of patient care in a public hospital]. Yet
these critical assertions of constitutional default are
treated as trivia by the en banc court, so much so that
no denial or explanation or even answer is permitted.
In what appears to be an overwhelming desire in the
Court to hold against Dr. Caine, even before the facts
are developed, the Court simply ignores the firmly
established law which governs this case. There is no
doubt about the controlling law of Federal Rules of
Civil Procedure 12(b)(6) and 15(a). So the Court in
its wholly inappropriate ad hoc drive to deny whatever
rights Dr. Caine claimed and might establish simply
ignores the law and the procedural posture of the case.
“Such result-oriented decision making can only erode
respect for the federal judiciary.” (Citation
omitted.)

Undoubtedly, if allowed to stand, the Caine decision will
erode the fundamental rights of all citizens who are subjected to
harassment and abuse at the hands of government officials.

Shall this precedent be allowed to stand, unchallenged?

The American Health Legal Foundation intends to support a
petition for writ of certiorari in the US Supreme Court.

Contributions to the Foundation, 1601 N. Tucson Blvd. Suite
9, Tucson, AZ 85716, are tax deductible.


New Members

AAPS welcomes Drs. Jerome C. Arnett, Jr. of Elkins, WV;
William Bilnoski of Auburn, WA; Edwin Charnock of DeSoto, TX;
Alfredo N. Lopez Del Castillo of Staten Island, NY; Waldo E.
Floyd, III of Macon, GA; Jorge H. Galindo of Renton, WA; David
Hudson of Murfreesboro, TN; Richard Lande of Houston, TX; Richard
W. Lomas of Renton, WA; Melvin Morse of Renton, WA; Randall
Pearson of Oak Ridge, TN; Fred Reebs of Renton, WA; Stanley P.
Rogers of Margate, NJ; Ian D. Samson of Lakewood, NJ; Harold
Schultz of Norwalk, OH, and Karl L. Singer of Auburn, WA.

The Fairfield County (Ohio) Medical Society is cordially
welcomed as a corporate member.

New medical student members are: Mayra I. Alfonso of Ponce,
PR; James S. Doll of Beavercreek, OH; Daniel Elshoff of Fairborn,
OH; Scott Hubbard of Dayton, OH; Jeffrey Kleinman of Dayton, OH;
Scott Logan of Dayton, OH; George Miller of Dayton, OH; Robyn L.
O’Brien of Cincinnati, OH; Michael J. Page of Fairborn, OH; Laura
Praeger of Kettering, OH; Eric Simmons of Kettering, OH; Linda D.
Winston of Trotwood, OH. Welcome!

In Memoriam: Lewis Urling, MD

Lewis Urling, MD, a life member of AAPS and former director,
died suddenly on September 14.

Dr. Urling practiced obstetrics and gynecology, delivering
more than 3,000 babies in the course of his career. He was also
very active in local government, serving as President of the City
Council of Lancaster, OH. Many local physicians and lawyers
attended his course on the US Constitution.

Dr. Urling is survived by his wife Patricia.

On Euthanasia

The Final Exit by Derek Humphrey, executive director of the
Hemlock Society is #1 on the best-seller list.

In the Netherlands, where an activist judiciary has rendered
a statute against euthanasia meaningless, perhaps 10,000 to
12,000 persons per year are put to death by their physicians,
some without their consent. Up to 81% of Dutch family physicians
have engaged in euthanasia.

Margaret Mead said of the significance of the Hippocratic
Oath: “For the first time in our tradition there was a complete
separation between killing and curing….The followers of
Ascelpius were…dedicated completely to life under all cir-

cumstances, regardless of rank, age, or intellect.”

She felt that this was a “priceless possession which we
cannot afford to tarnish, but society always is attempting to
make the physician into a killer” (Michael Fumento, “The Dying
Dutchman: Coming Soon to a Nursing Home Near You,” The American
Spectator, Oct 1991).

AAPS Calendar

Oct. 16, 1991. Lexington, KY.

Board of Directors Meeting, 8:30 a.m. to 5 p.m.

President’s Reception, 7 p.m. to 9 p.m.

Oct. 17-19, 1991. Annual Meeting, Lexington, KY, Griffin Gate
Marriott. Call 1-800-635-1196 to register now.

Oct. 15-17, 1992. Annual Meeting, Seattle, WA.


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