Medical Whistleblower Canary Notes Newsletter 1 Due Process January 2006 Vol 1 Issue 1

1. Medical Whistleblower January 2006 Volume 1, Issue 1 Medical Whistleblower’s Canary Notes What is Due Process? Inside this issue: The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. True Due What can I do to Help? 2 Process is the ability to be heard by an impartial tribu- nal unbiased by ex-parte communication as is neces- Legal Aspects of Due 2 sary for fair and impartial justice. Due Process pro- Process vides the accused doctor the opportunity to be heard Denial of Access to 3 in a meaningful manner and with the full facts of the Relevant Information situation considered. Procedural due process violations are by nature “arbitrary and Evidence—Clear & 3 capricious.” Convincing Standard Medical License as a 4 Property and Liberty Interest “Real” Medical Whistleblower Protections ♦ Normal access to courts including trial by jury. ♦ Protection for any lawful disclosure challenging misconduct betraying • Nguyen Court the public trust. finds: ♦ Prompt resolution of the case. • Medical disciplinary procedures are quasi- ♦ Interim relief while the case is pending. criminal in nature. ♦ Protection for those who reasonably believe that wrongdoing has oc- • Due process requires curred. proof by clear and ♦ Reasonable requirements for qualifying for protection. convincing evidence. ♦ Genuine victories that stop retaliation and make the whistleblower • Government-initiated proceedings that “whole.” threaten the individ- ♦ Findings that retaliation is illegal and accountability for those who en- ual’s loss of a medical gage in it. license are ‘a significant deprivation of ♦ Effective resolution of the problem the whistleblower has brought to liberty’ or ‘stigma’. light.

2. Page 2 Medical Whistleblower’s Canary Notes Volume 1, Issue 1 What can I do to help? Recovery from Whistleblower Harassment and Retaliation is all about EMPOWERMENT and taking back what was lost through the harassment experience. Successful Whistleblowers embody the experience and make it their own. They overcome their emotions and work through the experience. They retake con- trol of their life. They make a new start embracing their power and by networking with others. A new brochure by the Medical Whistleblower offers advise to those wishing to support a friend, colleague, family member, or neighbor. Titled “When Advice to someone you know is experiencing Whistleblower Retaliation.” It gives clear advice Whistleblower Supporters : to supporters of the Whistleblower. Obtain this free brochure to provide your support network by emailing MedicalWhistleblower@gmail.com “Create a safe environment in which The Legal Elements of Due Process they can count on you— for simply being there 1) Reasonable notice of the charges against the doctor or medical profes- or even for talking through a moment”. sional 2) Adequate time for the doctor to prepare his defense to the charges doctor 3) The right of the doctor to present evidence in his or her own behalf 4) The right to cross-examine the witnesses and evidence presented by the hospital 5) The right to a decision based upon credible evidence 6) The right to an impartial hearing panel 7) The right to rebut evidence and prepare a defense has been held to in- clude the right to obtain the disclosure of the evidence to be used by the Board prior to the hearing.

3. Medical Whistleblower’s Canary Notes Volume 1, Issue 1 Page 3 Denial of Access to Relevant Information Due to the Statutory Immunity applied to the investigation and decision making procedures of the State Medical Boards there is a lack of due process for any doctor facing an adverse Medical Board decisions and Bad Faith Peer Review. There is a lack of the ability of the accused doctor to know who made allegations against him/ her and the nature of those allegations. Whether due process has been accorded in a particular case is a question of law. Privileges in the law are not favored by the courts because they operate to deny the judge and both sides access to relevant information. There is a fundamental right of the doctor to have access to all the relevant facts presented against him or her. Even Former President Richard Nixon couldn’t prevent disclosure of the facts in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L.Ed.2d 1039 (1974). The Supreme Court was called on to weigh the Presidential privilege against the needs of the judicial process. The Court said: “The very integrity of the judicial system and public confidence in the system depend on full disclosure of Vicarious Trauma all the facts, within the framework of the rules of evidence. To ensure that justice is The retaliation that accompanies whistle blowing activity is often done, it is imperative to the function of courts that compulsory process be available devastating to the family, friends, partners, for the production of evidence needed either by the prosecution or by the defense.” roommates, teachers, neighbors of the victim. Even the social service Clear and Convincing Standard providers—counselors and therapists providing care and responding police The removal or denial of the Doctor’s Right to Practice Medicine and the de- officers can be caught in the effects of the trauma. This trauma that affects those nial of a license to a Doctor or removal of a license requires proof that meets the around the victim. Those who view the victim’s pain “Clear and Convincing Standard.” If the court holds that a medical license is a right and suffering can experience Vicarious Trauma. It often leads to a not a privilege, then in deciding to deny or remove a medical doctor’s license the court lack of social support to enable the Whistleblower to put his/her life back should apply U.S. Supreme Court in Matthews v Eldridge, 42 U.S. 319, 47 l. Ed. 2d 18, 96 together. S. Ct. 893 (1976) and the court must weigh and balance 1) The private interest af- fected 2) The risk of erroneous deprivation of that interest 3) The governmental interest involved.

4. Medical Whistleblower The information contained through the Medical Whistle- blower Canary Notes Newsletter is provided for general information only. The information provided by the Medial Dr. Janet Parker Whistleblower Canary Notes does not constitute legal or P.O.Box C professional advice nor is it conveyed or intended to be con- Lawrence, KS 66044 veyed in the course of any adviser-client discourse, but is Phone: 360-809-3058 intended to be general information with respect to common Fax: None issues. It is not offered as and does not constitute legal or E-mail: MedicalWhistleblower@gmail.com medical advice or opinion. It should not serve as a substitute for advice from an attorney, qualified medical professional, social worker, therapist or counselor familiar with the facts We are on the Web! of your specific situation. We encourage you in due diligence MedicalWhistleblower.googlepages.com to seek additional information and resources before making any decision. We make no warranty, express or implied, concerning the accuracy or reliability of the content of this newsletter due to the constantly changing nature of the legal Supporting the educational needs and the emotional health and medical aspects of these issues . of all Whistleblowers and their supporters and families. Property and Liberty Interests — Nguyen v State Department of Health The standard of proof required by due process in all professional disciplinary proceedings is clear and convincing evidence. Nguyen v. State, Dep’t of Health, 144 Wn.2d 516, 526, 29 P.3d 689 (2001) A doctor’s property and liberty interests in main- taining his or her license are compelling. The function of the standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to “instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adju- dication.” As the Nguyen Court pointed out, “It is important to focus on the nature of the interest at stake in the sense that the more important the interest, the more process is required.” The license of a Doctor is a significant property interest, because it allows an individual to earn a living within a chosen field. Marrero v. Depart- Nguyen Court: ment of Professional Regulation, Bd. of Psychological Examiners, 622 So.2d 1109 (Fla. App. 1 “This court has Dist., 1993), Marler v. Missouri State Bd. of Optometry, 102 F.3d 1453, 1456 (8th Cir. 1996) Doctors complete many years of rigorous education, training, and examination recognized a doctor at enormous expense, and he/she generally expects the practice of medicine to be a has a liberty interest permanent career. The Nguyen court also characterized the doctor’s interest in his in preserving his medical license as a liberty interest: “This court has recognized a doctor has a liberty professional interest in preserving his professional reputation.” The Nguyen court emphasized the reputation.” quasi-criminal nature of medical disciplinary proceedings, in concluding that due process requires proof by clear and convincing evidence. The clear and convincing standard provides the ‘level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual with “a significant deprivation of liberty’ or ‘stigma’. Thus, whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the fact finder turns on both the nature of the private interest threatened and the permanency of the threatened loss.”