The Grey ZoneThe Grey Zoneakaaka

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

The Grey ZoneThe Grey Zone Purpose: Take you out of your Purpose: Take you out of your

comfort zonecomfort zone How to work through gut How to work through gut

busters and retain relationshipsbusters and retain relationships InteractiveInteractive – please share how – please share how

youryour statutes/regulations may statutes/regulations may affect your decisionaffect your decision

The Grey ZoneThe Grey ZoneNo abstaining !!!No abstaining !!!

Our job in regulation:

make grey into black & white

The FactsThe FactsBoard members process Board members process case facts through their case facts through their life experienceslife experiences

FactsFacts

What happens when What happens when cases cases don’tdon’t break down break down into neat little piles of into neat little piles of facts?facts?

Burden of ProofBurden of ProofBeyond a reasonable

doubtvs.

Preponderance of evidence

vs.Clear and convincing

Case #1: The Case #1: The ComplaintComplaint

I came to Dr. Otherguy because I came to Dr. Otherguy because I lost strength in my arm due to I lost strength in my arm due to a neck problem.a neck problem.

He insisted on adjusting my He insisted on adjusting my lower back also – but lower back also – but consistently used too much consistently used too much force.force.

This has caused a hip This has caused a hip impingement that has taken impingement that has taken me 6 months to get accurately me 6 months to get accurately diagnosed and treated.diagnosed and treated.

THEN I went to Dr. Employer THEN I went to Dr. Employer with the injury to my right hip.with the injury to my right hip.

My treatment by Dr. Employer My treatment by Dr. Employer was of the highest caliber.was of the highest caliber.

My primary chiropractic doctor My primary chiropractic doctor was Dr. Employer, who was Dr. Employer, who performed all manipulations performed all manipulations and treatments himself.and treatments himself.

Dr. Associate, under Dr. Dr. Associate, under Dr. Employer’s supervision, helped Employer’s supervision, helped me with my patient history, me with my patient history, diagnostic testing, modalities diagnostic testing, modalities and exercises.and exercises.

Dr. Associate was my initial Dr. Associate was my initial contact in the office but never contact in the office but never treated me.treated me.

I received the highest quality of I received the highest quality of service and professionalism from service and professionalism from the staff of Dr. Employer and Dr. the staff of Dr. Employer and Dr. Associate.Associate.

I would not hesitate to visit them I would not hesitate to visit them again or recommend them to again or recommend them to anyone.anyone.Sincerely, Sincerely, Mr. Concerned PatientMr. Concerned Patient

What would you do?What would you do?1.1. Dismiss Case Dismiss Case

2.2. Investigate Dr. Otherguy Investigate Dr. Otherguy

3.3. Investigate Dr. Employer & Investigate Dr. Employer & Dr. AssociateDr. Associate

What did we find What did we find out?out?

Investigation of Dr. Investigation of Dr. OtherguyOtherguy::Good recordsGood recordsFollowed standard of careFollowed standard of careAppears to be disgruntled Appears to be disgruntled

patient, case dismissedpatient, case dismissed

What did we find out?What did we find out?Investigation of Dr. Employer:Investigation of Dr. Employer:

10 years practice without complaints10 years practice without complaints Teaches seminars throughout Teaches seminars throughout

countrycountry

Investigation of Dr. Associate:Investigation of Dr. Associate: Not licensed in this stateNot licensed in this state But licensed in two other statesBut licensed in two other states

QUIRKQUIRK

Drs. Employer and Associate Drs. Employer and Associate helped Mr. Concerned Patient helped Mr. Concerned Patient write letter against Dr. write letter against Dr. Otherguy.Otherguy.

What would you do?What would you do?1.1. Prosecute Dr. EmployerProsecute Dr. Employer2.2. Prosecute Dr. AssociateProsecute Dr. Associate3.3. Prosecute Dr. Employer AND Prosecute Dr. Employer AND

Dr. AssociateDr. Associate

DiscussionDiscussionDoes your jurisdiction allow you to Does your jurisdiction allow you to prosecute an unlicensed provider?prosecute an unlicensed provider?

Can you recommend criminal Can you recommend criminal prosecution?prosecution?

Misdemeanor vs. felonyMisdemeanor vs. felony

QUIRKQUIRK

Dr. Associate claims to have Dr. Associate claims to have made a phone call to the Board of made a phone call to the Board of Examiners and spoke to someone Examiners and spoke to someone with a Southern accent who said with a Southern accent who said that he could work under the that he could work under the supervision of a licensed DC.supervision of a licensed DC.

QUIRKQUIRKAt time of unsubstantiated At time of unsubstantiated phone call there was a phone call there was a turnover of board staff.turnover of board staff.

A temp and executive director A temp and executive director were released.were released.

What would you do?What would you do?1.1. Adopt board policy to give NO Adopt board policy to give NO

advice over the phone, tell callers advice over the phone, tell callers to refer to the statute and contact to refer to the statute and contact their own legal counseltheir own legal counsel

2.2. Appoint 1 representative of the Appoint 1 representative of the board staff to field telephone board staff to field telephone inquiriesinquiries

3.3. Appoint 1 board member to field Appoint 1 board member to field telephone queriestelephone queries

What actually What actually happenedhappened

Board transitioned to new Board transitioned to new Executive Director who Executive Director who handles all telephone queries, handles all telephone queries, contacts board members if contacts board members if unsure of answerunsure of answer

Back to the caseBack to the caseDr. Employer claims to have let Dr. Dr. Employer claims to have let Dr. Associate work for him based on the Associate work for him based on the telephone advice Dr. Associate received telephone advice Dr. Associate received from the board.from the board.

Dr. Employer did not actually follow-up Dr. Employer did not actually follow-up himself. himself.

Dr. Associate is licensed in two other states.Dr. Associate is licensed in two other states.

DiscussionDiscussionDo you trust board staff?Do you trust board staff?

Staff transition issuesStaff transition issues

Define “customer service”Define “customer service”

MORE QUIRKSMORE QUIRKSBoard attendance: Was a Board attendance: Was a quorum present?quorum present?

Past Board of Examiners Past Board of Examiners presidentspresidents served as expert served as expert witnesses for defense and witnesses for defense and prosecutionprosecution

MORE QUIRKSMORE QUIRKSConflict resolution conference Conflict resolution conference steered by defense counselsteered by defense counsel

Dr. Employer paid out Dr. Employer paid out $120,000 in legal fees$120,000 in legal fees

What would you What would you do?do?

Sanction options for Dr. Sanction options for Dr. EmployerEmployer

1.1. Dismiss the caseDismiss the case2.2. Nonpublic order – Letter of Nonpublic order – Letter of

Admonition / EducationAdmonition / Education3.3. License suspension and License suspension and

monetary penaltymonetary penalty

What would you What would you do?do?

Sanction options for Dr. Sanction options for Dr. AssociateAssociate

1.1. Dismiss the case, give Dr. Dismiss the case, give Dr. Associate a licenseAssociate a license

2.2. Refer Dr. Associate for criminal Refer Dr. Associate for criminal prosecution for practicing prosecution for practicing without a licensewithout a license

What actually What actually happened?happened?

$10,000 fine$10,000 fine

Community serviceCommunity service

Provided unlicensed Dr. Provided unlicensed Dr. Associate with a license in this Associate with a license in this jurisdictionjurisdiction

Was this right?Was this right?

What if the attendance at the What if the attendance at the meeting had been different?meeting had been different?

What if the past board presidents What if the past board presidents did not testify – did their did not testify – did their credibility affect the decision?credibility affect the decision?

Was this right?Was this right?

No one was “hurt”No one was “hurt” $120,000 + spent by DC, plus $120,000 + spent by DC, plus

board prosecution expenses – board prosecution expenses – when and where do we spend when and where do we spend our limited resources?our limited resources?