Bolen promotes two bogus suits for price of one!

[David Brown]

Opinion by Consumer Advocate Tim Bolen
Wednesday, December 8th, 2010
“Yes, this story about the American Association of Physicians and
Surgeons (AAPS) chewing up the Texas Medical Board in a Federal
Appeals Court is already all over the internet. However, not one of
the stories tell you what's going on behind the scenes. And, that's
where the action is.
Fasten your seat belt.”
So, what is the American Association of Physicians and Surgeons?
According to Wikipedia, they are a “politically conservative non-
profit organization”, with about 4,000 members. Wait, why would an
association for medical professionals feel a need to define itself
politically, unless it were engaging in activities beyond medicine?
Wikipedia also reports that the AAPS “opposes mandatory vaccination,
[9] universal health care[10] and government intervention in
healthcare... mandated evidence-based medicine and practice
guidelines...” Oh, and they edit the notorious Journal of American
Physicians and Surgeons, aka. JAPS. Ouch.

“Now, it's very clear that AAPS sued the Texas Medical Board a while
back, in Federal Court, making some very specific allegations - but -
the case didn't attract much attention, because, you know, lawsuits
happen all of the time – right?”
Actually, as a rule, both sides in a court case seem to have a
significant incentive NOT to draw attention to themselves. Too much
publicity is easily interpreted as an undue attempt to influence or
interfere in the proceedings, and can led to penalties or setbacks
even if neither party is directly responsible. A notorious spammer/
troll/ paid hatchetman falsely claiming that donations to a defense
fund will be seized, that the case is already over, and that critical
reporters will be added as defendants definitely sounds like an
example of something that could cause trouble for a plaintiff.

“Wrong. This case was a sleeper. In other words, the strategy, right
from the start was to low-profile it. The fact is this case is a
bombshell, designed to rip the quackbuster conspiracy from its roots,
and spray Roundup on the stump. This case is converging quickly with
the Doctor's Data v Stephen Barrett Federal Court case.
What? The two cases are related?
Ah, yup...”
Might the relationship be that both are trumped-up, unwinnable suits
filed by quacks in doomed attempts to silence their critics?

“Right about now the quackbusters are probably buying Kaopectate by
the case. Certain of them are out clothes-shopping, buying a larger
pant size to cover up the constant wearing of Depends. Here's why...”
Gee, that's odd... Bolen says I'm in the “top lower-level” of a
“skeptics”/”quackbusters” network, and this is the first time I have
even heard of this suit.

“First, read this summary language from the Appeals Court Decision....
the former Board president targeted physicians”
Huh? What else was he going to, hand out tickets for littering?

“The Association of American Physician and Surgeons (`AAPS') sued the
Texas State Board of Medical Examiners (“the Board”) under 42 U.S.C. §
1983 for declaratory and injunctive relief against alleged
constitutional violations including the Board’s use of anonymous
complaints and retaliatory actions against physicians. The district
court dismissed the case based on AAPS’s lack of standing, noting an
absence of `Fifth Circuit authority directly on point for the types of
claims raised in this cause.' Weighing in on this issue, we conclude
that AAPS has standing to bring this suit on behalf of its members.
The judgment is therefore vacated and the case remanded for further
proceedings.”
So, the AAPS is complaining about a medical board taking anonymous
complaints. Therefore, they think people who file complaints should be
identified. And I'm SURE there is NO chance that AAPS members would
use that information for retaliation against the complainants...

"Then, read the case description from the Appeal...
AAPS sued the Board on behalf of its members for what it describes as
pervasive and continuing violations of members’ constitutional rights.
AAPS alleged first that the Board manipulated anonymous complaints.
Illustratively, Kalafut targeted physicians using anonymous complaints
filed by her husband, and anonymous complaints allegedly were filed by
a New York insurance company seeking to avoid paying a physician for
claims.”
So, according to the AAPS, an insurance company does NOT have the
right to complain if it has reason to believe its OWN money is being
misspent. So how is that “politically conservative”?

“Second, AAPS alleged that the Board knew that the former chairman of
its Disciplinary Process Review Committee, Keith Miller, was operating
with a significant conflict of interest, but it took no corrective
action and failed to disclose the conflict to the public or the
physicians subject to discipline. Dr. Miller was allegedly an expert
witness for plaintiffs in up to fifty malpractice cases during his
tenure as chair of the committee and generated business for himself as
an expert by improperly disciplining physicians.”
So, how exactly would someone whose responsibility is to oversee
disciplinary policies decide which physicians get disciplined in the
first place?

“Third, AAPS alleged that the Board arbitrarily rejected a decision in
favor of a doctor by an administrative law judge from the State Office
of Administrative Hearings, and then issued a sanction that damaged
the physician’s reputation. Fourth, AAPS asserted that the Board
violated AAPS members’ privacy by releasing unproven facts and records
concerning disciplinary cases.”
And what standing would a judge in this “State Office of
Administrative hearings” have in a medical board proceedings? For
that matter, what is the Office actually supposed to do? I must say,
after casual examination of the office's site, that I'm stumped.

“Finally, AAPS alleged that the Board has retaliated against
physicians who have complained about the Board by subjecting them to
disciplinary proceedings and derogatory public comments. AAPS alleged
violations of the confrontation clause and the due process, equal
protection, and free speech provisions of the Constitution, and
violation of federal statutory privacy requirements."
So, the AAPS, which openly acknowledges that it represents people
disciplined by the board, says that the people it represents have
complaints about the board. Yeah, and we should DEFINITELY take THEIR
word for it.

"So, where were we, and what happens next...
"Andrew Schlafly, the attorney for AAPS had Deposed two key witnesses
related to the lawsuit; Keith Miller MD, mentioned above, and the
doctor husband of the Texas Board President Roberta Kalafut. It wasn't
going well for the Board. Then Andy demanded specific Discovery
information of the Board - and the Board went into orbit, realizing, I
think, that the end was very near. The Board filed a Motion to Dismiss
the case, claiming AAPS had no standing to sue - and the Judge agreed.
The 5th District Appeals Court, as we noticed, Reversed the Judge.
The two Depositions were VERY revealing. Very, very revealing.”
Really? So why isn't Bolen explaining WHAT (he thinks) they revealed?

“So now, probably in mid-January `Discovery' in the case will resume. 
Information will be demanded that the Texas Medical Board has hidden
for a very long time - and they are going to have to turn it over,
like it or not.
And, that's when the fun begins. Why?
Because the Texas Medical Board has relied on the Anonymous Complaint
format to justify spurious attacks on doctors. AAPS will simply demand
two things for sure: (1) copies of every complaint filed against its
members, and (2) copies of every complaint filed against EVERY MD in
the State for the last five years.”
Let's consider the source of this “information”: The same person who,
in the DDI v. Barrett case, has claimed to know (NOT “believe”, but
KNOW) that DDI would take Barrett's defense fund by buying a debt that
wasn't owed by him and wasn't for sale; that DDI would subpoena the
complete mailing list of a publication that was dropped as a defendant
in June; that Barrett lost by default judgment in July, August,
September AND October, and that David Gorski, Liz Ditz, myself and/or
many, many others would be added in the second amended complaint filed
about three months ago. In other words, we have no reason to take
anything he claims to know in legal matters at face value.
But, assuming he's right (hey, ANYTHING can happen ONCE) and this is
the AAPS's objective, what exactly would they DO with these records if
they got them? The Board reports receiving six THOUSAND complaints in
just the LAST year, and its form does not encourage brevity. What are
the chances that AASP and/or their counsel could effectively examine
FIVE years of complaints, in a time frame that would satisfy a court?
Would they even have sufficient facilities to store and conveniently
access all the records? What would stop the Board from handing over
even MORE documents, just to slow analysis down even further? And,
for that matter, just how IMPORTANT is it to identify an anonymous
source? Judging from known examples, such revelations are more likely
to be anticlimactic than insightful. Take Joe Klein, the author of
Primary Colors: While his identity was a secret, speculation- and not
improbably a good deal of the interest in the book- centered on the
possibility that it was by a member of Bill Clinton's staff. When
Klein, a political columnist, was outed instead, interest was modest,
and the movie adaptation followed suit. So why should the identities
of anonymous complainants to a medical board be, as a rule, any more
interesting?

“When this info is provided, I suspect, and the Court will demand it,
several things will happen, one of which will be the convergence of
the two Federal Court cases. 
Why will this converge the two Federal Court cases? Because we already
know, for instance, that Stephen Barrett, himself, filed about five
separate Anonymous Complaints against Jesus Caquias MD, mentioned in
the Doctor's Data v Stephen Barrett Federal Court case, and offered
himself as an expert witness against Caquias. More, bobbie baratz,
Barrett's buddy, and president of the NCAHF, was the ONLY witness
against William Rea MD, the Doctor who had six anonymous complaints
filed against him by a New York insurance company who didn't want to
pay him.”
So, Tim Bolen has finally posted openly his “revelation” that Barrett
complained to the Texas Medical Board, only three months after I
served his “scoop” as an example of his nonsense. Well, I have to
admit this puts a new light on things. Bolen says that AAPS has had
to SUE to TRY to get the identities of anonymous complainants. Well
then, Mr. Bolen, how could it POSSIBLY be true that YOU would know who
filed the complaints against Caquias? If you did have the means to
find out, why isn't AAPS using said means to get what they want
instead of fighting in court. And while you're at it, could you
explain how Barrett could have obtained CONFIDENTIAL records FROM
ANOTHER STATE to present the detailed information presented in the
board's hearings? Then there is this business about “bobbie baratz”
being the “only” witness in William Rea's disciplinary hearing. So,
why do records of Baratz's deposition also mention a Michael Holland,
MD?

“More - when the AAPS gets copies of the complaints filed against
EVERY doctor in Texas all they have to do is send a copy of that
complaint to the Doctor victim with a questionnaire - and the fur is
going to fly - with a major scandal in Texas that's NOT going to
settle down for a very long time.”
Really, Mr. Bolen? If AAPS had to fight to get access to such records
even for themselves, why would they press their luck by giving them to
others? For that matter, how exactly would they handle the
distribution of TENS OF THOUSANDS of complaints? And wouldn't giving
untold thousands of what were supposed to be anonymous complaints to
others who obviously might use them maliciously throw a bad light on
their protests that the board violated “requirements of privacy”?

“If you haven't read the Yahoo story on this, read it now.”
More accurately, the AAPS story. And, having had the less-than-
pleasant experience of reading it, I'm amazed how bad even THEIR OWN
words make it sound.

“And, stay tuned.  There is more coming.”
Only as long as DDI keeps wasting their money on a pointless,
worthless suit, and godaddy.com refuses to punish Mr. Bolen for
violating laws, ethics, good faith and even their own terms of use. I
do NOT believe it will be forever.