John Payne, D.O.
John Payne, D.O.
October 23, 2007
Testimony for House Appropriations Subcommittee on Regulatory Hearing
John Payne, D.O.
October 23, 2007
The great British philosopher Edmund Burke said, “When bad men combine, the good must associate: else they will fall, one by one, an unpitied sacrifice in a contemptible struggle”.
I hope that when I am finished you will question those cherished beliefs in the unassailable honesty, integrity and equanimity of this board. The only good thing one could facetiously take from such stark revelations is that this medical board could be reduced to a few individual doctors saving much money and consternation since it has for all intents and purposes been functioning by permitting a self righteous cabal of individuals to too frequently decide which doctors in Texas must be punished though they unfortunately have to resort to biased, unfair and dishonorable tactics perverting the professionalism of the process and employing inaccurate facts and testimony commonly delivered by prejudicial reviewers. It appears that more judicious members of the board have not been sullied or shamed by this repetitive injustice and have forgotten the words of Edmund Burke.
My case perfectly reflects the above proposition and further reveals a board that can, at times, be vindictive and target certain physicians. I lost my license based on one malpractice case. At the time the board went after me I had only one case on my record as a result of practicing in Texas for approximately 12 years, a settlement for a spine case. Of course, as any other busy neurosurgeon in the state, I had at any one time a number of cases filed against me many of which would fall by the wayside. The fact that a lawyer in this day and time files a malpractice case against a doctor hardly is indicative of medical malfeasance. I had been chief of neurosurgery at John Peter Smith Hospital, the large community hospital for Tarrant County and a major trauma center. I had been listed in the Ft. Worth magazine as one of the top neurosurgeons in the area, based on polling by area doctors. I was also the first DO to ever do a MD neurosurgery residency and achieve MD board certification.
The board was aware of me for several reasons. I had staunchly supported and testified for a DO neurosurgeon, Roland Chalifoux, at his hearing and had testified before the Sunset committee in which several of us could hear the whispered sentiments and snickers of a couple of board personnel sitting behind us relishing their smugness by saying, that they had me, implying that my days were numbered as Dr. Chalifoux. But the main reason for my apparent notoriety was that I had been involved in two peer review actions in which the board had completely exonerated me. As a result of these two unjustified and anti-competitive peer review actions, I filed lawsuits. One of the lawsuits involved a very powerful and influential group of neurosurgeons known to be friendly with the past president of the board, Dr. Anderson. The board never went after that hospital for failing to submit any reasonable explanation of the complaints justifying their peer review action. That medical center had the audacity to merely send 4 inpatient charts down to Austin. This was a gross violation of due process and the board meekly acquiesced and did not demand the information and facts from that institution that justified their action. One must keep in mind that the prevailing opinion among most doctors throughout the country and many experts is that peer review is in the majority of cases political and economic.
One of the member of this group had at that time 8 major malpractice cases either lost or settled some for large sums of money and involving paralysis and death. This individual had also exhibited a drinking problem leading to at least one DUI involving an accident yet he was sitting on the surgical QA committee. The board remained unperturbed by his record and went blithely after me.
So it should not surprise anyone, when the board got wind of this malpractice case, they wasted no time in initiating an investigation against me. They used the same neurosurgeon to initially review the case as they had used two prior times. Apparently the TMB was unable to find one or two neurosurgeons in the state who did not know me and had not indicated a most malevolent predisposition and previously shown a propensity to make unprofessional, widely incorrect and unwarranted statements about the cases reviewed. I was first confronted by this neurosurgeon when he was the state consultant on my second peer review case. As a result of his remarks unlike the other expert for the first peer review, I had to proceed to an informal meeting. The two doctors cleared me after reading the numerous reports from my experts and one of the physicians apologized to me, Buddy Siebenlist, MD about the quality and character of the state's expert. It was full of inexact facts and littered with such pronouncements as “Dr. John B Payne's behavior is unprofessional and dishonorable and that it already over treated these patients, and is very likely to, in the future, deceive the public. He has in these cases flagrantly over treated these patients”. The second time I went down for an informal hearing was again due to same doctor's rank misrepresentations and referring to my surgical comments as lies. Here again a comprehensive and thoughtful review of my experts and my explanation clarified any questions of poor care on the individual case being examined. The patient shortly after that trip down to Austin dropped her frivolous lawsuit.
Interestingly, the esteemed Dr. Donald Patrick showed up to observe my informal hearing. He voluntarily admitted that he knew the neurosurgeon and stated that he thought his analysis was “over the top” and “excessive”.
Without deference to probity and rectitude, the board eagerly relied on that neurosurgeon to review this malpractice case in question and true to form, his outrageous and inflammatory diatribe resulted in my appearing before another informal hearing. His analysis included such statements as “I believe that Dr. Payne's behavior is unprofessional and dishonorable”, “Dr. Payne has a history of marginal indications for surgery....This represents a complete disregard of the patient's well being. This is another example of his deception of the public and flagrant over treatment of patients.. he will persist in this abominable fashion. I believe that Dr. Payne is a menace to his community”. The civilian panel member, David Baucom, confessed that he had never read such a malicious and spiteful review before.
The informal hearing was a mockery. The doctor, an elderly family physician and totally unequipped to comprehensively analyze all the facts could only tediously repeat that I should have gotten a second opinion by a neurologist before proceeding with surgery totally failing to mention that a competent neurosurgeon approved it through the worker compensation process. They decided to recommend 4 years of probation and 50% of my cases be reviewed by an outside neurosurgeon yearly. There was no mention of my experts. The civilian member could only reluctantly say that he had to accept the opinion of the state's consultant.
Of course, no reasonable doctor could accept that when the facts clearly indicated that I had not done anything wrong. If I had accepted such a harsh penalty, my practice would have been destroyed. I eventually had an administrative hearing before an administrative judge who suspiciously replaced the original one designated. The state picked their second expert. It was the orthopedic spine doctor who had been the expert for the initial malpractice filing. On a earlier deposition by a Dr. Trey Fulp, who trained at TBI, he under oath stated that this doctor did not like me. The state had out did themselves in obtaining another biased expert. The most shocking thing was that this doctor during the hearing testified that he had accepted nearly $10,000 from the malpractice attorney and written a report without ever looking at the facts of the case. He admitted to violating his code of ethics. This devastating admission never fazed the administrative judge or TSBME. An additional fact that charges had been brought against the neurosurgeon by a member of his Dallas county medical society for making false charges only exalted this individual in the eyes of Dr. Patrick and the board's attorney.
My hearing was foreordained. I, now, know how a black man felt before an all white jury and white judge. Whatever you do or say there is the sickening realization of the horrible inevitability of your predicament. To add insult to injury one of the more vocal members of the board contacted the neurosurgeon in Laredo intimidating him to the point he would not testify for me verifying that I had secured coverage prior to coming down there to cover for him. I had two professors of neurosurgery one chief of the spine section at Stanford stating unequivocally that I did not violate any standards of care. The pathologist hired by the family to do the autopsy stated his fatal stroke and multi system organ failure was not due to my surgery or post-operative care. Though the attorney for the state implied that the nurses may have overdosed the patient something that I had no control over, the judge who agreed with that possibility, unbelievably still ruled that my post operative pain medication regimen was a reason to remove my license and never acknowledged that the amount of medication was significantly reduced during post-operative day number 3 on his distorted findings of fact.
The state was very deceptive and clever in that they never accused me of causing the patient's death but merely reiterated the malpractice complaints which were weak and contrary to the information, clinical history and hospital course. They made an end run and got away with it because this board is not accountable to anyone.
If you sent this case to any neurosurgeon in the country with the accompanying testimony and expert opinions and told them that the license of the operative surgeon was subsequently terminated most would most assuredly be aghast and downright incredulous particularly after analyzing the administrative judge's inaccurate findings of fact. A very relevant and inconceivable fact which seems incongruous knowing the outcome is that those two state experts ultimately did not completely agree with the state's allegations to the extent that the accused physician should have lost his license.
I don't say this as a bitter and broken man who had his license and years of hard work and sacrifice ripped from his being but that administrative judge had to be in the back pocket of the board to support my termination. He manipulated his findings of fact which had multiple errors and conveniently downplayed important aspects of the patient's treatment favorable to me. He never explained why he preferred the state's witnesses over mine unless it was because mine where on video due to a shortage of money. The judge's most egregious transgression to bolster his decision was that he used my malpractice history and peer review cases as contributing factors without ever asking me and my lawyer to explain things to him. That is why he had numerous erroneous and misleading statements about those important subjects on his findings of fact. I truly doubt that the leadership on the board that was so dedicated to terminating my license ever thoroughly studied the judge's findings and the reports by my experts.
You should be concerned and exceedingly worried that a board that would so blatantly and unabashedly abuse its power could be trusted to not show favoritism to other doctors whose records are worrisome and represent a serious risk to the citizens of Texas. I have never accepted the premise that unethical behavior can be easily rationalized and compartmentalized.
1. The experts for the state must not be personally knowledgeable of the accused or have displayed any personal animosity in the past ensuring a fair and professional review. It goes without saying that there should not be any financial competition. Doctors are citizens and should expect fair treatment. Does a jury contain people with a vendetta against the plaintiff?
2. The informal hearing should and must be documented and not allow the board to run roughshod over the doctor with threatening comments and unsubstantiated facts.
3. The informal hearing should have a physician observer who is a specialist in the accused doctor's field to assist the two panel members in dealing with medical areas that they may not have a full expertise or knowledge about.
4. If a board removes a doctor's license they must state the specific reasons and justifications and not that they concur with the administrative judge's findings of fact that could be less than exact and not accurately reflecting the hearing transcripts. This would assist a doctor with his appeal and force the board to not lazily rubber stamp their interpretation of facts, opinions and findings.
5. Members of the board should not be staying beyond their tenure; this is not a sinecure to gain prestige.
6. Members of the board should not during their tenure be doing second opinions for outside agencies or be testifying against other physicians.
I will end with a slight alteration to a quote by Edmund Burke, “Bad laws are the worst sort of tyranny” to “A corrupt insular government committee or board is truly the worst sort of tyranny”.
John Payne, DO