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Dr. Jones’ Case - Synopsis

Memorandum of Decision

CT Medical Licensing Board Meeting

December 18, 2007

Background:  The Panel assigned to hear Dr. Jones’ case completed their review of the evidence presented over the course of 11days of hearings that had begun on March 28, 2006, and handed down recommendations.  If these recommendations were accepted by the Medical Licensing Board, Dr. Jones would be fined $10,000, and be subjected to having his patient care monitored by a physician for a period of two years.  The process would be put into place within 60 days, with the monitoring physician reporting back to the Medical Board periodically.  The attorneys had the opportunity to submit briefs and to provide oral arguments to the Medical Licensing Board at their monthly meeting.  The Board would then decide whether to affirm the findings of the panel, to dismiss it, or to modify it in some way.  Their findings would be binding on Dr. Jones, unless the ruling was overturned on some level of the appeal process.

------------------------------------------

This hearing was to determine whether the Medical Licensing Board would accept, reject, or modify the panel’s Proposed Memorandum of Decision.  Over 100 people attended the meeting of the Board, to support Dr. Jones.  Those who assembled, many Lyme patients or parents of very ill children, felt the high anxiety and stress of the day, realizing that the Board would be ruling on whether Dr. Jones would be free to practice medicine as he has until this date, using his extraordinary clinical skills to treat the children who come to him.  Those in attendance maintained decorum throughout the day.  Aside from a controlled and dignified moment of spontaneous applause for Attorney Pollack, when he completed his closing arguments in support of Dr. Jones, the room was quiet.

The chairman of the Board, Dennis O’Neill, announced that he recused himself from voting, but would conduct the discussion.  In light of the fact that a discussion leader would have a certain amount of power to control the discussion, one might wonder why someone who recused himself would not also step down when it came to leading the discussion, as well.

An announcement was made that 145 letters had been received by the Board from the public.  They were marked as an exhibit, but for identification only. The chairman announced that each attorney would be allowed 30 minutes for oral arguments, turning down Attorney Pollack’s request for 1 hour.

Attorney Tillis, representing the DPH, stated that, in general, the DPH supported the proposed decision.  However, they recommended three changes. 

  • Tillis asked that the time element be tightened up, forcing the choice of monitoring doctors more quickly, with the first review by the Board to come in 60 days (rather than the choice be made within 60 days.)
  • “A little bit thornier, but not unprecedented,” stated Tillis, DPH requested that the monitor file the report stating that Dr. Jones was “practicing safely and effectively, and in compliance with the standard enunciated in this decision”.

      (Writer’s note:  this would imply that Dr. Jones is currently NOT practicing safely

      and effectively, and would certainly  imply that the hearing process had       established a standard of care!  From what I see, the monitor would be

      required to monitor “standard of care”, not just whether Dr. Jones wrote a

      prescription without first seeing the patient! )  

Attorney Tillis continued to argue that Dr. Jones failed to reconsider his diagnosis when the children’s blood work did not come back positive.  Attorney Tillis argued against what he stated as the respondent’s argument that the Board had no business entering into the question of standard of care.  Tillis reviewed issues presented at the hearing: tick  exposure low where the children lived, the patients didn’t have that the “specific” symptoms of Lyme disease [specific symptoms having been asserted by Dr. Eugene Shapiro in his testimony].  Tillis claimed that the argument was not about Lyme disease but about Dr. Jones’ diagnostic methods, and not about the diagnosis itself.

Tillis further pointed out that one of the physicians on the panel, Dr. Senechal, “in the course of the hearings suggested that the primary diagnosis should have been anxiety”, brought out by family problems.  (Writer’s note:  Is it the role of the panel or Board member to determine diagnosis without having examined the children in question?)

Attorney Tillis included in his oral arguments information that ran contrary to the testimony given at the hearing, indicating that Dr. Jones made a “presumptive diagnosis of Lyme” when the mother called, 4 or 5 months prior to examining the children.  Although Dr. Jones had written a prescription for a single renewal of 5 days of zithromax for a paroxysmal cough diagnosed by a local doctor, he had not diagnosed or treated Lyme until he had examined the children in May.

Attorney Tillis continued to argue that Dr. Jones’ diagnosis was wrong, and that he did not consider other diagnoses, thus failing to do a differential diagnosis, to rule out other conditions.  He called for a “finding of fact to show that [Dr. Jones] did not make a differential diagnosis.  All three of the panel members refused to include that in the findings, Dr. Fuller stating that the lengthy list of testing that Dr. Jones conducted showed that he had, in fact, conducted a differential diagnosis.  The Board upheld the panel’s decision not to include a failure to conduct a differential diagnosis in the findings. This finding by the Board and panel runs counter to many of the points made by Attorney Tillis.

Attorney Pollack proceeded to oral arguments.  He eloquently summarized Dr. Jones’ defense, highlighting the following:

  • A father involved in a custody dispute, resulting from a post-divorce action against him for failure to pay medical bills, attacked the doctor who treated his children.
  • The father had made repeated attempts to gain custody of the children, and when he was unsuccessful, he voluntarily moved hundreds of miles away, severely limiting the contact he was able to have with his children.
  • Dr. Jones is a man of considerable talent and skills, and a long history of treating Lyme disease [over 10,000 patients]. 
  • Dr. Jones had a conversation with a school professional to discuss ideas to avoid having the child expelled, and suggested homebound instruction as an alternative.  Subsequent to homebound instruction, the child returned to school and did very well.
  • Treatment of the children was being monitored by the mother, who was a highly experienced, “remarkably clear-headed” health care professional, and there were no adverse effects.
  • This hearing is about a situation where the patients were not victims – there was nothing wrong in the process of diagnosis or treatment.  The patients, in fact, got well.
  • No member of the hearing panel had any extensive experience diagnosing and treating Lyme disease.  They were “depending on Dr. [Eugene] Shapiro” who has a “really restrictive view of Lyme…”
  • The public health commissioner [the person who ultimately was responsible for making the decision to pursue this case] had publicly stated and confirmed in correspondence that the department’s view was that it was too early to determine a single “best practice” for Lyme disease given the unsettled state of the science.  He had stated at public hearings that the department would not initiate an action against a physician because he was treating chronic Lyme disease. These public statements of health care policy are at odds with the fact that the Commissioner allowed this case to be pursued—an inconsistency which the Commissioner has failed to adequately address.  Dr. Senechal, a member of the hearing panel, had said, early in the proceedings, that this hearing was not to determine the standard of care for Lyme disease, yet subsequent hearings contradicted that statement.  Throughout the hearings, there has been a considerable effort to “mince” words on the part of the both the Commissioner and the panel, presumably to avoid taking the public heat for their actions.  Given that a number of the charges are directly related to Lyme disease diagnosis and a number of the findings are based on these charges, attempts to mischaracterize the nature of the proceedings as the violation of a standard of care for “any” disease are disingenuous at best. 
  • It is “fundamental denial of due process for an agency to say they won’t set a standard, and then do it…In March, 2006, DPH stated that “there isn’t a single standard of care for Lyme disease.  Yet they want Dr. Jones monitored on the basis of this standard of care.”
  • “It is absolutely without foundation for them to find that he did not change his diagnosis after the second blood tests came back…[when it is ] clear that serology is not accurate.”
  • Drs. Fallon, Shea and Jones’ testimonies were “mischaracterized” by the DPH attorney.
  • Extensive literature supports Dr. Jones’ medical practices, where Lyme disease is concerned.

In responding to a question from the Board, regarding the hearing, Attorney Pollack stated “…the proof [of whether the hearing was fair] is that the result is very seriously flawed.”

The extraordinary lack of fairness evident in these proceedings is represented by the remarks of one panel member, when she was asked the crux of the matter by a Board member.  Her response was “The crux of the issue is that the physician prescribed the medication solely on the word of the mother, without seeing the children, and he continued to prescribe medication and treated these children before he had seen them, when, in our opinion, there was no evidence that he had Lyme disease.”  In point of fact, the evidence never suggested that Dr. Jones had prescribed any medication for Lyme disease prior to providing each of the children with a 2 hour examination.  Regarding her stating that, in the panel’s opinion, there was no evidence that the patient had Lyme disease might lead one to believe that the panel was diagnosing this child, in fact, without examining him.

The question of fairness of the entire proceeding came into play once again when one member of the medical board derided Attorney Pollack, with personal attacks, prior to the Board voting on whether to accept the panel’s recommendations to sanction Dr. Jones.  Responding to Attorney Pollack’s oral arguments, the Board Member stated, “Your argument has more holes than a watering can…Each of the arguments you raise can be trodden upon…This Board is not trying to set a new standard of care for Lyme disease; it is to reapply the standard of care that is there.  It is obvious to me that this standard of care has not been breached once but many times.”  Again, given that the Board had not yet voted, it seemed wholly inappropriate that this Board member would make these remarks, and further state, “We don’t believe Dr. Jones cured anything.”

The Board ultimately approved the Memorandum of opinion, requiring Dr. Jones to choose a pediatrician to serve as monitor within 60 days, to pay a $10,000 fine, and to submit to monitoring for a period of 2 years.  There will be future legal actions taken that could reverse this decision, through an appeals process, but for this lengthy and difficult hearing, many were wondering why a respected physician with a prestigious background would be subjected to legal proceedings that so obvious lacked due process.

Throughout the hearings, Dr. Jones has been represented by the team efforts of Attorneys Elliott Pollack and Lorraine Johnson, who has provided  knowledge of Lyme disease and its attendant legal issues.  [Note:  Attorney Johnson is the co-author with Ray Stricker, MD, of the publication, “Treatment of Lyme Disease – A Medicolegal assessment,” published in the journal Expert Review of Anti-infective Therapy, August, 2004 (p. 533-57), an excellent review of the “two standards of care” issue.] 

Despite the outcome of this day’s events, Dr. Jones and Attorney Pollack feel confident that they will prevail.  There will be opportunities for this ruling to be reversed, and they both appear ready to continue the fight, to protect Dr. Jones’ right to treat efficaciously, and, more importantly, for the right of chronic Lyme patients to be able to choose medical care that effectively treats this devastating disease.

Sandy Berenbaum, LCSW, BCD

Brewster, New York

(845) 259-9838

 

 

 

Background:  The Panel assigned to hear Dr. Jones’ case completed their review of the evidence presented over the course of 11days of hearings that had begun on March 28, 2006, and handed down recommendations.  If these recommendations were accepted by the Medical Licensing Board, Dr. Jones would be fined $10,000, and be subjected to having his patient care monitored by a physician for a period of two years.  The process would be put into place within 60 days, with the monitoring physician reporting back to the Medical Board periodically.  The attorneys had the opportunity to submit briefs and to provide oral arguments to the Medical Licensing Board at their monthly meeting.  The Board would then decide whether to affirm the findings of the panel, to dismiss it, or to modify it in some way.  Their findings would be binding on Dr. Jones, unless the ruling was overturned on some level of the appeal process.

------------------------------------------

This hearing was to determine whether the Medical Licensing Board would accept, reject, or modify the panel’s Proposed Memorandum of Decision.  Over 100 people attended the meeting of the Board, to support Dr. Jones.  Those who assembled, many Lyme patients or parents of very ill children, felt the high anxiety and stress of the day, realizing that the Board would be ruling on whether Dr. Jones would be free to practice medicine as he has until this date, using his extraordinary clinical skills to treat the children who come to him.  Those in attendance maintained decorum throughout the day.  Aside from a controlled and dignified moment of spontaneous applause for Attorney Pollack, when he completed his closing arguments in support of Dr. Jones, the room was quiet.

 

The chairman of the Board, Dennis O’Neill, announced that he recused himself from voting, but would conduct the discussion.  In light of the fact that a discussion leader would have a certain amount of power to control the discussion, one might wonder why someone who recused himself would not also step down when it came to leading the discussion, as well.

 

An announcement was made that 145 letters had been received by the Board from the public.  They were marked as an exhibit, but for identification only. The chairman announced that each attorney would be allowed 30 minutes for oral arguments, turning down Attorney Pollack’s request for 1 hour.

 

Attorney Tillis, representing the DPH, stated that, in general, the DPH supported the proposed decision.  However, they recommended three changes. 

  • Tillis asked that the time element be tightened up, forcing the choice of monitoring doctors more quickly, with the first review by the Board to come in 60 days (rather than the choice be made within 60 days.)
  • “A little bit thornier, but not unprecedented,” stated Tillis, DPH requested that the monitor file the report stating that Dr. Jones was “practicing safely and effectively, and in compliance with the standard enunciated in this decision”.

      (Writer’s note:  this would imply that Dr. Jones is currently NOT practicing safely

      and effectively, and would certainly  imply that the hearing process had       established a standard of care!  From what I see, the monitor would be

      required to monitor “standard of care”, not just whether Dr. Jones wrote a

      prescription without first seeing the patient! )

 

Attorney Tillis continued to argue that Dr. Jones failed to reconsider his diagnosis when the children’s blood work did not come back positive.  Attorney Tillis argued against what he stated as the respondent’s argument that the Board had no business entering into the question of standard of care.  Tillis reviewed issues presented at the hearing: tick  exposure low where the children lived, the patients didn’t have that the “specific” symptoms of Lyme disease [specific symptoms having been asserted by Dr. Eugene Shapiro in his testimony].  Tillis claimed that the argument was not about Lyme disease but about Dr. Jones’ diagnostic methods, and not about the diagnosis itself.

 

Tillis further pointed out that one of the physicians on the panel, Dr. Senechal, “in the course of the hearings suggested that the primary diagnosis should have been anxiety”, brought out by family problems.  (Writer’s note:  Is it the role of the panel or Board member to determine diagnosis without having examined the children in question?)

 

Attorney Tillis included in his oral arguments information that ran contrary to the testimony given at the hearing, indicating that Dr. Jones made a “presumptive diagnosis of Lyme” when the mother called, 4 or 5 months prior to examining the children.  Although Dr. Jones  had written a prescription for a single renewal of 5 days of zithromax for a paroxysmal cough diagnosed by a local doctor, he had not diagnosed or treated Lyme until he had examined the children in May.

 

Attorney Tillis continued to argue that Dr. Jones’ diagnosis was wrong, and that he did not consider other diagnoses, thus failing to do a differential diagnosis, to rule out other conditions.  He called for a “finding of fact to show that [Dr. Jones] did not make a differential diagnosis.  All three of the panel members refused to include that in the findings, Dr. Fuller stating that the lengthy list of testing that Dr. Jones conducted showed that he had, in fact, conducted a differential diagnosis.  The Board upheld the panel’s decision not to include a failure to conduct a differential diagnosis in the findings. This finding by the Board and panel runs counter to many of the points made by Attorney Tillis.

 

Attorney Pollack proceeded to oral arguments.  He eloquently summarized Dr. Jones’ defense, highlighting the following:

  • A father involved in a custody dispute, resulting from a post-divorce action against him for failure to pay medical bills, attacked the doctor who treated his children.
  • The father had made repeated attempts to gain custody of the children, and when he was unsuccessful, he voluntarily moved hundreds of miles away, severely limiting the contact he was able to have with his children.
  • Dr. Jones is a man of considerable talent and skills, and a long history of treating Lyme disease [over 10,000 patients]. 
  • Dr. Jones had a conversation with a school professional to discuss ideas to avoid having the child expelled, and suggested homebound instruction as an alternative.  Subsequent to homebound instruction, the child returned to school and did very well.
  • Treatment of the children was being monitored by the mother, who was a highly experienced, “remarkably clear-headed” health care professional, and there were no adverse effects.
  • This hearing is about a situation where the patients were not victims – there was nothing wrong in the process of diagnosis or treatment.  The patients, in fact, got well.
  • No member of the hearing panel had any extensive experience diagnosing and treating Lyme disease.  They were “depending on Dr. [Eugene] Shapiro” who has a “really restrictive view of Lyme…”
  • The public health commissioner [the person who ultimately was responsible for making the decision to pursue this case] had publicly stated and confirmed in correspondence that the department’s view was that it was too early to determine a single “best practice” for Lyme disease given the unsettled state of the science.  He had stated at public hearings that the department would not initiate an action against a physician because he was treating chronic Lyme disease. These public statements of health care policy are at odds with the fact that the Commissioner allowed this case to be pursued—an inconsistency which the Commissioner has failed to adequately address.  Dr. Senechal, a member of the hearing panel, had said, early in the proceedings, that this hearing was not to determine the standard of care for Lyme disease, yet subsequent hearings contradicted that statement.  Throughout the hearings, there has been a considerable effort to “mince” words on the part of the both the Commissioner and the panel, presumably to avoid taking the public heat for their actions.  Given that a number of the charges are directly related to Lyme disease diagnosis and a number of the findings are based on these charges, attempts to mischaracterize the nature of the proceedings as the violation of a standard of care for “any” disease are disingenuous at best. 
  • It is “fundamental denial of due process for an agency to say they won’t set a standard, and then do it…In March, 2006, DPH stated that “there isn’t a single standard of care for Lyme disease.  Yet they want Dr. Jones monitored on the basis of this standard of care.”
  • “It is absolutely without foundation for them to find that he did not change his diagnosis after the second blood tests came back…[when it is ] clear that serology is not accurate.”
  • Drs. Fallon, Shea and Jones’ testimonies were “mischaracterized” by the DPH attorney.
  • Extensive literature supports Dr. Jones’ medical practices, where Lyme disease is concerned.

 

In responding to a question from the Board, regarding the hearing, Attorney Pollack stated “…the proof [of whether the hearing was fair] is that the result is very seriously flawed.”

 

The extraordinary lack of fairness evident in these proceedings is represented by the remarks of one panel member, when she was asked the crux of the matter by a Board member.  Her response was “The crux of the issue is that the physician prescribed the medication solely on the word of the mother, without seeing the children, and he continued to prescribe medication and treated these children before he had seen them, when, in our opinion, there was no evidence that he had Lyme disease.”  In point of fact, the evidence never suggested that Dr. Jones had prescribed any medication for Lyme disease prior to providing each of the children with a 2 hour examination.  Regarding her stating that, in the panel’s opinion, there was no evidence that the patient had Lyme disease might lead one to believe that the panel was diagnosing this child, in fact, without examining him.

 

The question of fairness of the entire proceeding came into play once again when one member of the medical board derided Attorney Pollack, with personal attacks, prior to the Board voting on whether to accept the panel’s recommendations to sanction Dr. Jones.  Responding to Attorney Pollack’s oral arguments, the Board Member stated, “Your argument has more holes than a watering can…Each of the arguments you raise can be trodden upon…This Board is not trying to set a new standard of care for Lyme disease; it is to reapply the standard of care that is there.  It is obvious to me that this standard of care has not been breached once but many times.”  Again, given that the Board had not yet voted, it seemed wholly inappropriate that this Board member would make these remarks, and further state, “We don’t believe Dr. Jones cured anything.”

 

The Board ultimately approved the Memorandum of opinion, requiring Dr. Jones to choose a pediatrician to serve as monitor within 60 days, to pay a $10,000 fine, and to submit to monitoring for a period of 2 years.  There will be future legal actions taken that could reverse this decision, through an appeals process, but for this lengthy and difficult hearing, many were wondering why a respected physician with a prestigious background would be subjected to legal proceedings that so obvious lacked due process.

 

Throughout the hearings, Dr. Jones has been represented by the team efforts of Attorneys Elliott Pollack and Lorraine Johnson, who has provided  knowledge of Lyme disease and its attendant legal issues.  [Note:  Attorney Johnson is the co-author with Ray Stricker, MD, of the publication, “Treatment of Lyme Disease – A Medicolegal assessment,” published in the journal Expert Review of Anti-infective Therapy, August, 2004 (p. 533-57), an excellent review of the “two standards of care” issue.] 

 

Despite the outcome of this day’s events, Dr. Jones and Attorney Pollack feel confident that they will prevail.  There will be opportunities for this ruling to be reversed, and they both appear ready to continue the fight, to protect Dr. Jones’ right to treat efficaciously, and, more importantly, for the right of chronic Lyme patients to be able to choose medical care that effectively treats this devastating disease.

 

Sandy Berenbaum, LCSW, BCD

Brewster, New York

(845) 259-9838