For those reading this with better eyes than I have, you may be able to read the scanned documents below. For the rest I have retyped the contents of Counselor Dunnewold's reply after the enclosure to the letter. *


Dear Mr. Bachman:

I have been asked to respond to your May 21, 2001 letter to Governor Ridge.

First, let me address your complaint against Dr. Barton pertaining to his care of your mother. A physician violates the regulations of the State Board of Medicine, among other ways, by performing a medical act incompetently, or by practicing medicine with reckless indifference to the interests of a patient on a particular occasion, also known as gross negligence, or with negligence on repeated occasions. 49 Pa. Code %16.61(a)(3), (6). In order to make the initial judgement as to whether a physician's conduct in a given case violates those provisions and therefore warrants the filing of professional disciplinary charges, the Commonwealth's prosecuting attorney, who is a layperson rather than a medical professional, requires an expert opinion.

Normally, it is not difficult for the prosecutor to obtain an expert opinion in order to determine whether or not a case is prosecutable. Presently, however, the Department only has a single cardiac expert under contract, and that expert knows and has worked with Dr. Barton for a period of time. For obvious reasons, that expert could be considered to be biased for or against Dr. Barton, and that expert is consequently unable to review the case. That expert did recommend another cardiologist with whom the Department might contract, but that physician declined to enter into such a contract with the Commonwealth. In the intervening period, we have not yet located another cardiac expert to review the file, but we are continuing the search and hope to locate one in the near future.

In your letter, You cite unnamed Pennsylvania law that sets forth an exception to the rule requiring an expert for establishment of the standard of care "where the matter is so simple and the lack of skill or want of care so obvious, as to be within the comprehension of non-professional persons." However, the prosecuting attorney does not believe that a general practitioner will have the expertise to review the file, and indeed, in the past we have had general practitioners indicate that they would not be willing to review a file in which the actions of a specialist are at issue. Furthermore, even opinions as to whether a matter "is so simple and the lack of skill or want of care so obvious, as to be within the comprehension of non-professional persons" may differ, and in any instance of alleged incompetence or negligence, a careful, conscientious, responsible prosecuting attorney needs to have an expert supporting the case before proceeding to the step of filing charges against a licensed professional. For these reasons, insisting on an expert is not an attempt to justify delay. Rather, it is a sound approach to prosecuting a case in which the central issues would be medical judgements; from a legal standpoint, those medical judgments cannot be properly and fairly evaluated by laypeople without the assistance of an expert.

While the question of whether your mother's medical records were altered may be an issue that could be prosecuted without an expert, it would not make sense to sever that issue from the broader allegations of malpractice and negligence and bring a prosecution now based solely on the records charge, perhaps to be followed by a second action later, based on the more serious allegations. However, even regarding this issue, an expert's opinion could be important regarding the nature of the alleged alteration.

To address the second issue you raise in your letter, you are absolutely correct when you state that the obligation of the State Boards of Medicine and Osteopathic Medicine is to protect the public health and safety. The boards and their counsel are well aware of that, as are the attorneys who prosecute cases before the boards on behalf of the Commonwealth. It is the guiding principle under which the Legal Office operates.

A query of our database for the period you mention in your letter, January 28, 1997 through March 24, 1998, indicates that the State Board of Medicine disciplined 189 individuals during that period of time, and the State Board of Osteopathic Medicine disciplined 25 individuals in that period. Of those disciplined by the State Board of Medicine, 57 cases, or about 30%, involved elements of what the Legal Office considers to be the most serious offenses: incompetence, malpractice/negligence, unprofessional conduct and sexual misconduct. For the State Board of Osteopathic Medicine, 6 cases, or about 24%, involved those elements.

Thirty-three of the 57 State Board of Medicine cases were cases in which the practitioner had been disciplined in another state for reasons including incompetence, malpractice/negligence, unprofessional conduct and sexual misconduct, and five of the six Osteo Board cases were of that type. As that indicates, the boards do take many actions based on other state licensing boards' actions, for two simple reasons: first, the practitioner involved has an active license in the Commonwealth and may actually be practicing in Pennsylvania; and second, the practitioner has an active license and may move back to Pennsylvania at any time and begin practicing here. In fact, when the practitioner has been disciplined in another state, this latter scenario is particularly likely. By acting against the licensees based on the states' actions, the Legal Office protects the citizens of Pennsylvania from practitioners whom other states have found to be incompetent, negligent, unprofessional, sexual predators, etc., and also shortens the time in which a prosecution may be completed, because the issues of incompetence, etc., which were litigated in the other state do not have to be relitigated in the Commonwealth.

The other side of the numbers provided above is that of those 57 State Board of Medicine cases, 24 involved issues of incompetence, malpractice/negligence, unprofessional conduct and sexual misconduct committed in the Commonwealth and 24 practitioners were disciplined, in the 14-month period you selected, for such activity. Likewise, the State Board of Osteopathic Medicine disciplined 1 practitioner, in that time period, for the same. Note that the Medical Board has approximately eight times as many licensees as the Osteopathic Medical Board.

Finally, when it comes to prosecuting malpractice and negligence cases, there are a number of additional factors that need to be considered when the Prosecution Division makes the decision as to whether a case can and should be prosecuted or not. For example, the expert who evaluates a case may find no malpractice, negligence or unprofessional conduct, and then the prosecutor cannot proceed in the matter. Or the case may stem from a civil malpractice litigation matter that is so old the Legal Office cannot pursue a disciplinary action against the licensee because of the legal doctrine of latches, which prohibits prosecution of stale claims. Or the case may arise out of a civil malpractice litigation matter in which the parties settled, agreed to a sealed settlement, and cannot testify as witness in the disciplinary matter without jeopardizing their settlement, and so the Commonwealth cannot obtain the necessary witnesses to pursue the matter. Any of these factors destroys any possibility that the Commonwealth may have of successfully prosecuting a complaint revolving around allegations of malpractice and negligence, and therefore, such factors reduce the number of such cases in which the Legal Office files formal charges.

In conclusion, the State Boards of Medicine and Osteopathic Medicine, and the personnel assigned to handle complaints filed against licensees of those boards, take very seriously their responsibility to protect the public health and safety, and they enforce the law within the legal and practical constraints imposed upon them by the judicial and administrative law systems. Generally increasing numbers of disciplinary actions over the past ten years bear that out. See Enclosure 1.

I trust this information adequately addresses your concerns.


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