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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 Process is the ability to be heard by an impartial tribunal unbiased by ex-parte communication as is necessary for fair and impartial justice. Due Process provides the accused doctor the opportunity to be heard in a meaningful manner and with the full facts of the situation considered. Procedural due process violations are by nature “arbitrary and capricious.”
Medical Whistleblower Canary Notes Newsletter 1 Due Process January 2006 Vol 1 Issue 1
Volume 1, Issue 1
What is Due Process?
Inside this issue:
The basic elements of procedural due process
are notice and an opportunity to be heard at a mean-
ingful 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-
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.”
Medical License as a 4
Property and Liberty
“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.
♦ 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.
♦ Genuine victories that stop retaliation and make the whistleblower
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 signifi-
cant deprivation of ♦ Effective resolution of the problem the whistleblower has brought to
liberty’ or ‘stigma’. light.
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 experi-
ence. 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
Supporters : to supporters of the Whistleblower. Obtain this free brochure to provide your sup-
port 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”.
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
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.
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 mak-
ing procedures of the State Medical Boards there is a lack of due process for any doc-
tor 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 pre-
sented 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
all the facts, within the framework of the rules of evidence. To ensure that justice is The retaliation that
blowing activity is often
done, it is imperative to the function of courts that compulsory process be available devastating to the family,
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
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 in-
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, be-
cause 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
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 sig-
nificant deprivation of liberty’ or ‘stigma’. Thus, whether the loss threatened by a par-
ticular 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 threat-
ened and the permanency of the threatened loss.”