The Grey ZoneThe Grey Zone

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I DUNNO, WHADDA YA THINKI DUNNO, WHADDA YA THINKMarc M. Gamerman, D.C.Marc M. Gamerman, D.C.

Dale Atkinson, J.D.Dale Atkinson, J.D.

Kevin B. EarleKevin B. Earle

Continued…

Case #2: The Patient Case #2: The Patient says…says…

Both my husband and I were Both my husband and I were seeing Dr. Helpful for our seeing Dr. Helpful for our chiropractic care, following our chiropractic care, following our auto accident in September.auto accident in September.

My marriage was beginning to My marriage was beginning to fall apart, and Dr. Helpful was fall apart, and Dr. Helpful was SO kind.SO kind.

I really felt like I could talk to I really felt like I could talk to him about my marriage issues. him about my marriage issues. He knew my husband because He knew my husband because he was also treating him. he was also treating him.

He really understood me. He really understood me.

He was very affirming – he told He was very affirming – he told me how beautiful I am and how me how beautiful I am and how nice I look.nice I look.

Of course, I spent a Of course, I spent a lot of time before lot of time before my appointments my appointments working on my working on my appearance to appearance to please him.please him.

My adjustments took on a My adjustments took on a whole new meaning, with more whole new meaning, with more focus on my buttocks and focus on my buttocks and breasts – I know he had often breasts – I know he had often had an erection while he was had an erection while he was adjusting me from behind.adjusting me from behind.

Our encounters became more Our encounters became more romantic, with kissing on the romantic, with kissing on the cheek and lips occuring cheek and lips occuring during our weekly sessions.during our weekly sessions.

We moved my We moved my appointment to 6:30 appointment to 6:30 AM so there wouldn’t AM so there wouldn’t be so many people be so many people around. around.

By May, I knew we were in love By May, I knew we were in love with each other. with each other.

I wanted to do something to I wanted to do something to show him how I felt about our show him how I felt about our relationship.relationship.

So we went into the locked So we went into the locked bathroom in the office, and I bathroom in the office, and I performed oral sex on him.performed oral sex on him.

Afterwards, he told me this Afterwards, he told me this shouldn’t have happened, that shouldn’t have happened, that he was happily married, and I he was happily married, and I shouldn’t return for treatment.shouldn’t return for treatment.

But I knew we could salvage But I knew we could salvage our relationship.our relationship.

So the next day I went back to So the next day I went back to his office early in the morning.his office early in the morning.

I wore a black negligee under I wore a black negligee under my denim covering. I walked my denim covering. I walked up the steps to his loft office, up the steps to his loft office, and removed the covering.and removed the covering.

He rebuked me for coming to He rebuked me for coming to the office and sent me away.the office and sent me away.

That’s when I knew I should file That’s when I knew I should file a complaint with the state a complaint with the state dept. of health. Doctors dept. of health. Doctors shouldn’t be able to do things shouldn’t be able to do things like this to patients.like this to patients.

What would you do?What would you do?

Is this case an emergency? Is this case an emergency? Should an emergency Should an emergency suspension order be initiated suspension order be initiated immediately?immediately?

1.1. YESYES

2.2. NONO

Doctor Helpful says…Doctor Helpful says…

She is very disturbed and She is very disturbed and unstable. unstable.

I didn’t do anything wrong. I didn’t do anything wrong.

None of this happened.None of this happened.

There are no witnesses.There are no witnesses.

The ProcessThe Process State determines case meets State determines case meets

standard for legal sufficiencystandard for legal sufficiency Investigation commencesInvestigation commences Goes to board’s probable cause Goes to board’s probable cause

panelpanel 1 count of sexual misconduct 1 count of sexual misconduct

violation is filed in an violation is filed in an administrative complaintadministrative complaint

Doctor Helpful Doctor Helpful disagreesdisagrees

He takes the case to the He takes the case to the state’s division of state’s division of administrative hearings for a administrative hearings for a formal hearing.formal hearing.

He says there are disputed He says there are disputed issues of material facts.issues of material facts.

Therapist is deposedTherapist is deposed Dr. Helpful’s attorney deposes Dr. Helpful’s attorney deposes

Ms. Patient’s mental health Ms. Patient’s mental health counselor.counselor.

Issues of Ms. Patient’s medical Issues of Ms. Patient’s medical and mental health and drug and mental health and drug history are disclosed.history are disclosed.

The deposition is made part of The deposition is made part of the case record.the case record.

QUIRKSQUIRKSMs. Patient allows her therapist to Ms. Patient allows her therapist to disclose SOME of her mental health disclose SOME of her mental health picture.picture.

She is being treated for an emotional She is being treated for an emotional disorder whereby she has an unusual disorder whereby she has an unusual attachment to men, and often believes attachment to men, and often believes they are in love with her. they are in love with her.

Marriage issues compound the picture.Marriage issues compound the picture.

What would you do?What would you do?

Would you allow the deposition Would you allow the deposition of the mental health care of the mental health care provider to be made part of the provider to be made part of the record provided to the board?record provided to the board?

1.1.YESYES2.2.NONO

The case drags The case drags on…on…

Dr. Helpful’s attorney asks for Dr. Helpful’s attorney asks for continuances so he can attend to continuances so he can attend to personal matters. Because of the personal matters. Because of the board’s limited meeting schedules, board’s limited meeting schedules, this adds this adds 3 months3 months to the process. to the process.

Prosecution argues this forces an Prosecution argues this forces an undue hardship on Ms. Patient, and undue hardship on Ms. Patient, and undermines the public interest. undermines the public interest.

QUIRKQUIRK

Dr. Helpful’s attorney is former Dr. Helpful’s attorney is former counsel and prosecutor for the counsel and prosecutor for the Board of Examiners.Board of Examiners.

What would you do?What would you do?

Would you allow the Would you allow the continuances?continuances?

1.1. YESYES

2.2. NONO

DiscussionDiscussion

How quickly should cases of this How quickly should cases of this nature be resolved?nature be resolved?

Are board members influenced Are board members influenced by the credibility of legal counsel by the credibility of legal counsel or witnesses they know or witnesses they know personally?personally?

QUIRKQUIRK

The prosecuting attorney gets The prosecuting attorney gets very emotionally involved in very emotionally involved in this case due to personal this case due to personal issues in her own life.issues in her own life.

What do you do?What do you do?How do you handle the prosecuting How do you handle the prosecuting attorney?attorney?

1. 1. Talk with her and ask her to cool it or get Talk with her and ask her to cool it or get outout

2. 2. Talk with the AG’s office and have themTalk with the AG’s office and have them handle ithandle it

3. 3. Carry on and realize sometimes these Carry on and realize sometimes these cases are hard on people cases are hard on people

The ALJ rulesThe ALJ rules

The Administrative Law Judge is The Administrative Law Judge is convinced that Dr. Helpful convinced that Dr. Helpful diddid engage in unprofessional conduct engage in unprofessional conduct of a sexual nature with Ms. Patient.of a sexual nature with Ms. Patient.

He orders a He orders a 4 month 4 month suspensionsuspension. The ruling . The ruling now goes to the board for now goes to the board for review and approval.review and approval.

The Board reviews the The Board reviews the casecase

The board reviews The board reviews over 650 pages of over 650 pages of information.information.

Ms. Patient asks to Ms. Patient asks to testify before the testify before the board.board.

What would you do?What would you do?

Would you allow Ms. Patient Would you allow Ms. Patient to testify before the board?to testify before the board?

1.1. YESYES

2.2. NONO

QUIRKQUIRK

After testifying, Ms. Patient After testifying, Ms. Patient remains in the hearing room remains in the hearing room for the rest of the day.for the rest of the day.

Her mannerisms are unusual, Her mannerisms are unusual, and she appears disturbed. and she appears disturbed.

The Board RulesThe Board RulesAfter 6 hours of deliberations, the After 6 hours of deliberations, the board decides to board decides to uphold the 4 month uphold the 4 month suspensionsuspension, but issues a STAY., but issues a STAY.

The board adds monetary fine and The board adds monetary fine and successful completion of NBCE ethics successful completion of NBCE ethics & boundaries exam, also a monitor to & boundaries exam, also a monitor to be present with all patients for 3 be present with all patients for 3 years.years.

What would you do?What would you do?

1.1. Agree with the board’s decision Agree with the board’s decision

2.2. Be tougher on Dr. HelpfulBe tougher on Dr. Helpful

3.3. Be more lenient with Dr. HelpfulBe more lenient with Dr. Helpful

But it’s not over yet…But it’s not over yet…

The board continues to be affected by the The board continues to be affected by the presence and conduct of Ms. Patient.presence and conduct of Ms. Patient.

Was she the perfect Was she the perfect victim for a victim for a perpetrator because perpetrator because of her emotional of her emotional disabilities, disabilities, oror did she did she imagine all this?imagine all this?

Back on the agendaBack on the agenda

Board members are Board members are genuinely disturbed genuinely disturbed about the case.about the case.

The board places the case on The board places the case on the agenda for the next meeting the agenda for the next meeting for possible reconsideration.for possible reconsideration.

What would you do?What would you do?

1.1. It’s OK to revisit a case like thisIt’s OK to revisit a case like this

2.2. Once a decision is made, it’s overOnce a decision is made, it’s over

DiscussionDiscussionShould there be guidelines Should there be guidelines for reconsideration of cases?for reconsideration of cases?

The State’s legal fees are The State’s legal fees are already in excess of already in excess of $40,000, not counting $40,000, not counting staff / board time. Does staff / board time. Does your board have the your board have the authority to recoup some or authority to recoup some or all of your expenses?all of your expenses?

Was this right?Was this right?

Should the board’s limited Should the board’s limited resources affect cases like resources affect cases like this?this?

Did Dr. Helpful really do this?Did Dr. Helpful really do this?

Wanna peel your case next year?