Arizona Medical Board and court defying US Supreme Court and constitutional law.

Some of you may be familiar with the hard-to-fathom vendetta that the Arizona Medical Board has been waging against me for the past 11 years now, despite the fact that I had not harmed a single patient. After I have spent $400K on legal defense of these matters and on lawsuits against the physicians, officials, and lawyers who totally bypassed the all-important due-process issues that I have gradually learned about in the past three years, the Arizona Medical Board took me to another Administrative Court Hearing, on Monday, April 28, 2008.

The Board compiled 16 patient-cases against me, of which only one consists of the single patient complaint against me to the Arizona Medical Board in the past ten years. Three concern patients whose conventional physicians filed complaints (much to the dismay of the patients whose cases are involved, who greatly appreciated my help) and 12 patient cases resulted from records audits that Arizona Medical Board clinicians conducted randomly (or by their choice) on my patient files in my office. These audits were "authorized" by the Board Orders that resulted from the previous investigations and court hearings that were conducted against me. (Below, you will see why I have put "authorized" in quotation marks).

Of the 16 cases, the first 15, chronologically, were physician-reviewed by NON-peers of mine, a practice that is coming into increasing disrepute and scrutiny by medical societies and associations and human rights advocates in the area of health and its professional providers. Only the last case, in Aug-Oct 2007, was properly peer-reviewed by a true peer of mine, a Board Outside Consultant Physician calling himself "integrative" in his orientation. He signed off on the case, and the Board's chief physician consultant went along with that assessment, and yet the Board is STILL proceeding to a court hearing on this case because of a truly minor disagreement about a thyroid hormone prescription dosage--a matter with which I have had much more experience and undoubtedly better total outcomes than the two reviewers.

What blows the Arizona Medical Board's entire 11-year case against me out of the water is what I have learned in the past three years--especially over the past year--about the legally accepted due-process requirements in physician regulatory cases such as mine:

(1) The US Supreme Court has pronounced several times in the past ten to 15 years on the necessity for all state professional regulatory agencies' investigations and court actions against licensed professionals to be conducted under the legal proof standard of "clear and convincing evidence," rather than that of a mere "preponderance of the evidence," as they have traditionally always conducted these matters. The Court's reasoning is that in court hearings in which the potential penalty is the loss of a professional's license to practice his profession--and therefore the loss of an entire career and income source--the standard of proof must be higher than the standard in civil cases, in which only a finite amount of money is involved. The hearing should therefore be regarded as quasicriminal in nature, not civil, and must require the higher standard of proof.

When the US Supreme Court reaffirmed this precept in its April 2007 ratification of the Washington Supreme Court's now-famous Ongom Decision of December 2006 (concerning a nurse's aide whose license had been removed by a lower court, on a legal standard of a "preponderance of the evidence"), it mandated that the higher standard is required in health-provider regulatory cases, specifically, and not only generally, in all professional cases, as it had previously affirmed in several cases.

US Supreme Court decisions are the law of the entire land, including within every state in the nation. Ten states have already officially adopted the higher standard, some of them even without the US Supreme Court having to tell them to do so. However the Arizona Medical Board is STILL conducting the investigation of my medical practice as a civil action and requiring only a "preponderance of the evidence" as its standard of proof on all points in the cases. You would be shocked at the decisions that can be made on this basis, in which tons of proof could be on the side of the defendant but the Administrative Law Judge can still decide for the plaintiff: the state (medical or other professional) regulatory board. My previous cases and court hearings are specific examples of this phenomenon.

(2) Since state professional/ medical board investigations of medical and other professionals must now be regarded as quasi-criminal and not merely civil proceedings, defendants' 6th Amendment Rights, according to the US Constitution, come into play, including: (a) The right for the court hearing to consist of a jury trial, if the defendant so chooses; and (b) The right of the defendant to require all his accusers to confront him in the court-room if the defendant so chooses. I have not (not yet, anyway) had any response to my formal requests for these rights to be honored by the court.

(3) There is a time-honored tradition that is becoming increasingly accepted in all venuses that physicians who are being reviewed for their work or conduct MUST receive such review from a physician who practices in the exact same specialty or practice area. This is specifically true for civil (privated) malpractice cases in the state of Arizona. Yet,. the Administrative Law Judge in my case has formally responded to my questions about this issue by saying that the civil statute in question does not apply to administrative hearings of Board complaints, even though she and the Board are, erroneously, regarding this hearing as a civil action. The judge has not told me what statutes, laws, rules, and regulations do apply. I have been trying to find out for many years, including from my lawyers, what those statutes, laws, rules, and regulations say! But the judge is obviously implying that, although the US Supreme Court has stated that quasi-criminal matters require a HIGHER standard of proof, she and the Board are proceeding on the basis of a decidedly LOWER standard of peer review! No physician representing any other specialty than Nutritional Medicine in Arizona would be subjected to such sham (fraudulent) peer review. "Nutrition" is one of the scores of specialties specifically allowed by the Arizona Medical Board, but is the only one, or one of only a very few, that is not granted the SAME STANDARD OF PEER REVIEW AS ALL OTHER SPECIALTIES IN ARIZONA. (All the laws, statutes, rules, and regulations regarding proper peer review stem ultimately from the 5th and 14th Amendments to the US Constitution, having to do with the right to the free and unrestricted right to practice one's profession with a minimum of limitations or harassment.)

When all three of the above illegalities are combined in one hearing, as in the hearing(s) that I underwent in 2003, gross violations of justice and fairness occur all the time. Here is just one example: my main expert witness, whom I paid over $4000 to testify for several hours on my behalf (after studying all the patient records in detail), was a professor of nutritional medicine and one of the most renowned nutritional medicine teachers in the US, without any doubt. The judge illegally downgraded his testimony after the Board's lawyer (Foster Robberson, of Lewis & Roca in Phoenix) requested that it be disqualified altogether on the illegal grounds that this physician witness was from out of state (which is not pertinent in the case of a defendant being a specialist). And the Board's two "expert witnesses" were physicians practicing general medicine and endocrinology, respectively, absolute NON-peers of mine who were proud to say that they knew little or nothing about nutritional medicine! Their testimony was fully accepted by Judge Brendan Brian Tulley.

So, even though my expert witness ended up endorsing EVERY SINGLE DISPUTED ACTION THAT I HAD TAKEN, I still lost the case and had to pay for my own "kangaroo execution" by paying the court costs of close to $10,000. I was censured and placed on a five-year probation for a whole series of frequently obtained, widely publicized "convictions" against me, and I was forced to undergo a $ 10K course in physician competence at the University of California, San Diego's PACE Program,. in which I achieved scores of 90% and 92% in nutritional medicine and in my specific practice procedures with patients and professional colleagues. And I am still currently under orders to complete MORE CME in areas that I already either excel led in (in the PACE Program) or in practice areas that I do not now or ever intend to practice!!

Readers who wish to know more about my current situation can go directly to the Office of Administrative Hearings website (http://www.azoah. com) to see details of the April 28, 2008 hearing. Readers may also contact me at the address below.

John Dommisse, MD

Nutritional & Metabolic Medicine

1840 E River Rd, Ste. 210

Tucson, Arizona 85718-5892

Home Phone (5-10 PM daily, MST):

520-577-8675 (NOT unlisted or unpublished)

Office Phone (9 AM--4 PM daily): 520-577-1940

Office Fax (24 hrs): 520-577-1743

(Please confirm receipt at 520-577-1940.)