NBME Board Meeting transcript June 4 & 5 2004

1 CODE: 4185

LISA A. YOUNG, CCR #353

2 Peggy Hoogs & Associates

345 Marsh Avenue

3 Reno, Nevada

COURT REPORTER

10 NEVADA STATE BOARD OF MEDICAL EXAMINERS

11 BOARD MEETING

12 TRANSCRIPT OF PROCEEDINGS

13 FRIDAY, JUNE 4, 2004

14 8:30 A.M. - 3:30 P.M.

15 RENO, NEVADA

25 REPORTED BY: LISA A. YOUNG, CCR #353

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 APPEARANCES:

2 MEMBERS OF THE BOARD:

3 CHERYL A. HUG-ENGLISH, M.D., PRESIDENT

JACULINE C. JONES, Ed.D., VICE PRESIDENT

4 DONALD H. BAEPLER, Ph.D., SECRETARY-TREASURER

JOEL N. LUBRITZ, M.D., CHAIRPERSON

5 STEPHEN K. MONTOYA, M.D.

SOHAIL U. ANJUM, M.D.

6 JAVAID ANWAR, M.D.

MARLENE J. KIRCH

7 STEPHEN D. QUINN, J.D., GENERAL COUNSEL

CHAROLOTTE M. BIBLE, CHIEF DEPUTY ATTORNEY GENERAL

DRENNAN A. CLARK, J.D., SPECIAL COUNSEL

9 EDWARD O. COUSINEAU, J.D., DEPUTY GENERAL COUNSEL

LAURIE L. MUNSON, DEPUTY EXECUTIVE SECRETARY

PRESENT IN LAS VEGAS:

11 DON HAVINS, CLARK COUNTY MEDICAL SOCIETY

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 RENO, NEVADA; FRIDAY, JUNE 4, 2004; 8:30 A.M.

2 -o0o-

4 MADAM PRESIDENT: Okay. I'd like to call this

5 meeting of the Nevada State Board of Medical Examiners

6 to order.

7 Welcome to everybody. I think before we get

8 started we do have some introductions of some new staff

9 that I would like Tony to take care of for us.

10 MR. CLARK: Good morning. I'd like to

11 introduce first the newest medical examiner who is

12 assisting Dr. Barnett, Dr. Jerry Calvanese who is on the

13 staff of the Washoe Medical Center in the emergency

14 room.

15 Jerry, would you like to stand up and say a

16 word?

17 DR. CALVANESE: I am now at Northern Nevada,

18 but I was chief of emergency medicine at Triple Army

19 Center. And I was chief of emergency medicine at Washoe

20 for 10 years. And chief of emergency medicine at

21 Northern Nevada for 10 years. So I'm still a working

22 E.R. doc and I'm kind of slowing down a little. This is

23 great because I answered complaints for the last 20

24 years so it kind of falls right into my domain. And

25 it's nice to work for you.

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 MADAM PRESIDENT: We certainly appreciate you

2 taking this on. It's a huge help and a real service to

3 the board so we appreciate it.

4 DR. CALVANESE: Thank you.

5 MR. CLARK: I think most of you have already

6 met but let me introduce him officially, Ed Cousineau,

7 who is deputy general counsel who came to us from the

8 attorney general's office.

9 MR. COUSINEAU: Nice to see you all again.

10 You want me to say any words here? The less a lawyer

11 says, the better.

12 MR. CLARK: I never give a lawyer an

13 opportunity to speak. It's always 75 cents a word.

14 And, Lynnette, if you would like to

15 introduce --

16 MS. KROTKE: Good morning. I would like to

17 introduce Jennifer Ross. She is our newest license

18 specialist. And she is doing a great job. So far she

19 is very excited to be here.

20 MADAM PRESIDENT: Welcome, Jennifer.

21 MR. CLARK: And Doug?

22 MR. COOPER: Thanks for allowing us to

23 increase the staff. We greatly appreciate that. You

24 have allowed us to hire three people. We have hired one

25 immediately, and two will start in July.

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 We hired Angela Hoffman. She has a degree in

2 psychology with an emphasis on criminal justice and

3 comes to us from Cochise County, Arizona where she was a

4 juvenile probation officer.

5 She moved up here because she is getting

6 married in August. And she lives in Carson City. So

7 now we have three people -- four. One guy in Dayton and

8 three in Carson City so we are spreading out.

9 MADAM PRESIDENT: Let's start a car pool here.

10 MR. COOPER: We are very glad to have her.

11 And she is very quick. And I think she is going to be a

12 great asset.

13 MADAM PRESIDENT: Welcome.

14 MR. CLARK: That takes care of it, Madam

15 President.

16 MADAM PRESIDENT: Again, welcome to all our

17 new staff. I think that as we have said on more than

18 one occasion, the workload of this board has increased

19 tremendously and we appreciate all of your efforts.

20 And, people on the board, we certainly welcome you, and

21 I think you will find it quite interesting.

22 So we are glad to have you.

23 Has everyone had a chance to read through the

24 minutes? And, if so, if there is a motion for approval?

25 We actually have three separate minutes from our

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1 March 12th and 13th board meeting. And then we had an

2 emergency telephone conference meeting on March 30th as

3 well as a follow-up emergency conference call on May

4 17th. So are there any additions or changes to the

5 minutes?

6 DR. LUBRITZ: Yes, ma'am.

7 On page -- I don't see a page.

8 DR. BAEPLER: Upper left corner there is page

9 numbers.

10 DR. LUBRITZ: Page seven of 23. And this is

11 on March 12th and 13th of 2004. I was wondering if we

12 might add at the bottom to the last paragraph it says,

13 "Discussion ensued concerning how and which physicians

14 were polled by the Clark County Medical Society in

15 preparation of its physician paper."

16 At this time if the board feels it's

17 appropriate, I would like to specifically put that

18 Dr. Lubritz challenged the names of the physician paper

19 of the Clark County Medical Society and he has discussed

20 the physician paper with many of the previous officers

21 and current members of the board of trustees, and they

22 had not even had an opportunity to read the federation

23 of state medical board's audit, much less have an

24 opinion on it.

25 Therefore, it was an opinion letter of Dr. Don

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 Havins and Dr. Kingsley and not that of the Clark County

2 Medical Society.

3 MADAM PRESIDENT: Joel, I have a little bit of

4 a problem in that I don't think those were actually

5 stated during that conversation.

6 DR. LUBRITZ: It was.

7 MADAM PRESIDENT: I don't know if we can add

8 those specific comments.

9 DR. LUBRITZ: I asked those specific comments

10 of Dr. Havins. And Dr. Havins was not allowed to speak,

11 and Dr. Kingsley spoke for him. And, yes, I did say all

12 of those things.

13 DR. BAEPLER: That was a conversation that

14 lasted approximately five minutes. I remember that

15 discussion.

16 MS. MUNSON: I do have the data base

17 information handwritten -- I shortened them up so I

18 definitely recall it as well.

19 MADAM PRESIDENT: So if that was stated and

20 just not your concern, it just wasn't completed in the

21 minutes?

22 DR. LUBRITZ: That is correct.

23 MADAM PRESIDENT: All right. So we can add

24 that addendum too.

25 DR. ANWAR: Joel, I do remember that

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 conversation pretty clearly. And do we need to just

2 clarify what discussion took place as far as our minutes

3 are concerned? Or do we need to go beyond that as if

4 there were speaking on behalf of the society rather than

5 themselves?

6 MADAM PRESIDENT: One suggestion that I might

7 have if people are uncomfortable with the fact that this

8 is not as complete as the minutes were or a summarative

9 comment of what happened, but if you wanted to amend

10 them based on the transcript of that, we could certainly

11 do that.

12 DR. LUBRITZ: I would have no problem with

13 that at all.

14 DR. BAEPLER: It's certainly --

15 MS. MUNSON: I can get a copy of that and put

16 it in the --

17 DR. BAEPLER: The statement that Dr. Lubritz

18 read certainly captures the essence of it.

19 MADAM PRESIDENT: Is that a motion in the form

20 of an amendment to amend the minutes based on what you

21 said?

22 DR. LUBRITZ: Yes.

23 DR. BAEPLER: Second.

24 MADAM PRESIDENT: So there is a motion and a

25 second to amend the minutes as read by Dr. Lubritz with

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1 respect to the consideration of that physician paper

2 presented by the Clark County Medical Society.

3 Any further discussion on the minutes or that

4 particular motion? We need to do this one first at this

5 point.

6 All in favor of amending the minutes as so

7 stated?

8 THE BOARD: Aye.

9 MADAM PRESIDENT: Opposed?

10 Chair votes in favor of the motion. Motion

11 carries. And those amendments will be included. Is

12 there another thing?

13 DR. LUBRITZ: This is on page nine of 23, one,

14 two, three, fourth, paragraph. Said Dr. Baepler moved

15 to approve recertification by subspecialty boards. And

16 I think it was the subspecialty boards approved by the

17 American Board of Medical Specialties.

18 MADAM PRESIDENT: That's correct.

19 DR. BAEPLER: That is correct.

20 MADAM PRESIDENT: So that is a motion to amend

21 those?

22 DR. LUBRITZ: Yes, ma'am.

23 DR. BAEPLER: Second.

24 MADAM PRESIDENT: Any further discussion on

25 that?

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 All in favor?

2 THE BOARD: Aye.

3 MADAM PRESIDENT: Opposed?

4 Chair votes in favor of the motion, and that

5 will be amended as well.

6 MS. KIRCH: I have a question regarding the

7 May 17th meeting. I thought the final action that we

8 took was that we would update our records to reflect the

9 status, but I thought that we were not going to assist

10 her in regaining her recertification.

11 MADAM PRESIDENT: Marlene, help direct me as

12 to where you are reading.

13 MS. KIRCH: It's on 2003 of May 17.

14 MADAM PRESIDENT: Which paragraph?

15 MS. KIRCH: Three. It begins with "Board

16 staff will update the board records to accurately

17 reflect" and ends with "will assist in her" -- I didn't

18 think we had gone to reassist because I don't know that

19 that's our --

20 DR. BAEPLER: I think we discussed that we

21 can't advocate. That we can report our action. That we

22 can't advocate to this, but we are obligated to report

23 our actions concerning a settlement to any party that

24 was interested.

25 MR. QUINN: Board Member Kirch, the word

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1 assist is, in fact, used there and it is not intended to

2 be misunderstood to mean that the board will go out and

3 do something affirmatively on behalf of Dr. Giarrusso

4 but there is an inherent requirement to respond to

5 credentialing entities.

6 And in that it is meant in that respect when

7 credentialing entities look to our licensing or any

8 other facility of the board staff to confirm the status

9 that we will assist in that respect. We will respond in

10 that respect. So that is the language that was actually

11 incorporated in the document.

12 MS. KIRCH: And I never saw the document.

13 That was to be sent to us also before you submitted it.

14 That was one of the things, and I don't believe any of

15 us saw it.

16 MADAM PRESIDENT: I think, actually, it's

17 coming up for discussion in the settlement. We have a

18 copy of it.

19 MS. KIRCH: It looks like it's already been

20 filed. So, I mean --

21 DR. BAEPLER: I think the question would be

22 what you are referring to here is a process that we do

23 in every case for everyone. It's automatic, and it's

24 our obligation to report.

25 MS. KIRCH: I was just concerned with the

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 assist. Because we will -- obviously we are going to

2 report our actions. But as you recall in the file I was

3 very concerned about the assist part because, yes, we

4 have to report our actions. But going above and beyond

5 trying to go to actually help her in some ways we

6 wouldn't help anyone also concerned me. And the word

7 assist in my mind adds something there. So that's my

8 comment, an expression of concern.

9 MR. QUINN: It is not my understanding nor my

10 intention that the obligation of the board with respect

11 to Dr. Giarrusso's re-credentialing is anything above

12 and beyond what we do for any other person as an

13 obligation of the agreement.

14 And that's my understanding of what I believe

15 Dr. Giarrusso's side understood as well that she has to

16 reestablish her credentials. And we just can't -- I

17 think we can't refuse to participate.

18 MS. KIRCH: The other thing is even remove the

19 derogatory information, and we can't do that either. We

20 can update the information, but we can't remove stuff

21 that we have reported.

22 We can provide updates that we have taken

23 different action. So we have assisted here. And to

24 remove, you know -- help her remove this information --

25 we will remove it, and we can't do this.

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 MR. QUINN: No. This removal was -- that

2 removal refers to the national practitioners data bank,

3 and it is removed if possible.

4 And my understanding and I expressed it to

5 them, and they understand it as well, my understanding

6 is we cannot affect a removal from the data bank. But

7 the data bank is out of our control. And they wanted

8 that language in there, and I said if you want -- if you

9 can remove it from the data bank, go ahead and remove it

10 from the data bank. I don't have a problem with that.

11 That's beyond our control.

12 DR. BAEPLER: You are not going to write the

13 data bank and ask that to be removed?

14 MADAM PRESIDENT: This is misleading to

15 suggest that we are going to do that.

16 MS. KIRCH: We went through that at the

17 meeting. Since we can't do that, that was not part of

18 our motion that we could -- we would disclose what

19 action we have taken. But our concern was having any of

20 this language in our minutes and/or in our agreement

21 because we can't do this stuff.

22 And I thought that that's what had transpired.

23 Maybe not. But that was my understanding at the

24 conclusion of the call that that language was not going

25 to be in the motion or in the agreement.

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 MR. QUINN: It's very clear we are not going

2 to change any of our records. And that's very clear.

3 That's understood. As far as the data bank, that's

4 somebody else.

5 MS. KIRCH: I don't think -- That was not

6 part of our motion, and I don't think it should be

7 included in this.

8 MR. QUINN: Okay.

9 MS. KIRCH: So I don't think the minutes

10 accurately reflect what our conclusion was at the

11 meeting. And maybe someone else can confirm that. But

12 as I recall, we didn't want the assist and we didn't

13 want the remove.

14 DR. BAEPLER: I remember specifically we said

15 you can't assume what happened never happened and that

16 once it's a matter of record, either in our records or

17 on any national data base or whatever, you can't erase

18 it.

19 You know, all we can do is report that there

20 has been a settlement.

21 MADAM PRESIDENT: You know, I have the same

22 concerns in that I think that part of the reason that we

23 sent the language back to be changed on what was read

24 over the phone was that we had concerns over these

25 specific issues being included in that they were

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 misleading to Dr. Giarrusso, sort of leading her to

2 believe that we were the ones going to help get this

3 accomplished. And I think this language still does

4 that, that we are going to assist her in her efforts to

5 even remove, if possible, derogatory information

6 reported to the national practitioners' data base.

7 And I don't think we can do that. I don't

8 think we should do that to try and assist that to be

9 removed.

10 I don't think it's possible anyway, but I do

11 think it sort of leads you down that path to think it is

12 possible.

13 MS. KIRCH: I don't think that is what we

14 approved at the conclusion of that meeting because that

15 was our concern, the assist and removal of information.

16 MADAM PRESIDENT: Perhaps what we can do is

17 since this is going to be discussed further in -- when

18 Steve goes over some of the settlement offers that are

19 here, is we could move for approval of all of the

20 minutes but the May 17th. I think that's the one we are

21 talking about. And then when we have a more detailed

22 discussion of what the actual settlement says, we can go

23 back. Would that meet with everybody's approval?

24 DR. MONTOYA: I have one more problem.

25 MADAM PRESIDENT: Okay.

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 DR. MONTOYA: It's March 30th, page two of

2 three, the fifth paragraph down, starts with the list.

3 Because Dr. Giarrusso contacted me about the

4 investigative committee's order, court observed urine

5 samples. That was not my discussion with her. It was

6 the diversion committee's request. I never discussed an

7 order -- an investigative committee's order.

8 DR. BAEPLER: Which paragraph?

9 DR. MONTOYA: Fifth one down. It starts with

10 my name.

11 I was advising her about the order from the

12 investigative committee and I didn't. I only talked to

13 her about the diversion committee request.

14 MR. QUINN: Okay. And on that assist part,

15 would you feel better if instead of saying assist, would

16 you feel better if it said the board will not --

17 MS. KIRCH: Just take it out.

18 MR. CLARK: Just take that phrase out.

19 DR. BAEPLER: It's strange to have in a

20 settlement agreement a specific point where we agree to

21 do something that we automatically do. We do it for

22 everybody.

23 By including it, by inference, we are

24 suggesting you are going to do more, otherwise, you

25 wouldn't have included it.

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 We automatically, without having it in the

2 settlement, will inform the appropriate entities that

3 the case has been settled. We do that for everyone.

4 MS. KIRCH: And we do that. And so from the

5 word assist on, that whole last part, is the stuff we

6 were concerned about.

7 MR. CLARK: Perhaps you could just strike that

8 whole last phrase.

9 DR. BAEPLER: To include it's recommended

10 would be on our part because we are suggesting something

11 that can't be done.

12 MS. KIRCH: Right. Showing the status is

13 lifted and disciplinary action is dismissed, period.

14 And the rest of that I don't think is what we agreed to.

15 DR. LUBRITZ: If that were deleted, that

16 would --

17 MS. KIRCH: That would.

18 DR. JONES: If it's already been filed --

19 MADAM PRESIDENT: My concern is that. I'm

20 being advised by our attorneys that we really should

21 wait until we review the settlement per se and then the

22 language in that should be consistent in what is

23 reflected in here.

24 DR. ANWAR: Why don't we do that? Why don't

25 we wait?

PEGGY HOOGS & ASSOCIATES (775) 327-4460

1 MADAM PRESIDENT: That will be coming up soon.

2 We can certainly make a motion to approve the rest of

3 the minutes, come back to this one specifically again.

4 Thank you, Marlene, for bringing that to our attention.

5 That's my recollection as well.

6 DR. LUBRITZ: So moved.

7 DR. ANWAR: Second.

8 MADAM PRESIDENT: There is a motion to approve

9 the minutes with the exception of May 17th, the

10 emergency telephone conference.

11 DR. ANWAR: Second.

12 MADAM PRESIDENT: Any further discussion?

13 DR. LUBRITZ: How about the second --

14 MADAM PRESIDENT: Wait. I'm sorry. We didn't

15 vote on that. Can we have a motion to amend that

16 specific --

17 DR. MONTOYA: I would like to make a motion to

18 amend.