BEFORE THE WEST VIRGINIA BOARD OF OSTEOPATHIC MEDICINE
WEST VIRGINIA BOARD OF)
OSTEOPATHIC MEDICINE,)
)
Complainant,)
)
v.) COMPLAINT NO. 2007-32
) 2010-21
PHILIP FISHER, D.O., ) 2010-36
) VOLUME II
Respondent.)
BEFORE: JANIS REYNOLDS
STATE HEARING EXAMINER
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Transcript of proceedings had and testimony adduced in the above-entitled matter, were held as therein appears at 10:09 a.m. on August 1, 2014, pursuant to the West Virginia Rules of Civil Procedure, at the offices of the West Virginia Board of Osteopathy, 405 Capitol Street, Suite 402, Charleston, West Virginia, pursuant to notice.
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BILLANTI AND ASSOCIATES
CERTIFIED COURT REPORTERS
17 BURNSIDE DRIVE
ELKVIEW, WV 25071
3049657444
1
APPEARANCES
ON BEHALF OF THE COMPLAINANT:
JENNIFER AKERS, ESQUIRE
Assistant Attorney General
State Capitol Complex
Building 1, Room E-26
Charleston, West Virginia 25305
(304) 558-6098
ON BEHALF OF THE RESPONDENT
PHILIP FISHER, D.O.:
DONALD JARRELL, ESQUIRE
218 North Court
Wayne, West Virginia 25570
(304) 272-6391
ALSO PRESENT
DIANA SHEPARD
Executive Director
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INDEX
WITNESS: DIRECT CROSS REDR RECR
FOR THE RESPONDENT:
John Hart 5 90 102 –-
Marc Rosenblatt 108 121 –- –-
COMPLAINANT EXHIBITS: MARKED ADMITTED
No. 8, Toxicology Report for 57 57
Patient No. 5
No. 9, Letter from Marc Rosenblatt 126 127
to the Board of Osteopathy
RESPONDENT EXHIBITS:
No. 1, Hart Curriculum vitae6--
No. 2 Note Dated 1-14-11, Signed 50 --
Melanie
No. 3, Review by Dr. Hart9090
No. 4, Rosenblatt CV.114114
Court Reporter’s Certificate...... 131
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Proceedings -
P R O C E E D I N G S
10:00 A.M.
HEARING EXAMINER REYNOLDS: We’ll be on the record. My name is Janis Reynolds. We are here for day 2 of this hearing.
I will first do a little cleanup in terms of the documents yesterday. We were supposed to get redacted copies so now I believe everybody has in front of them a copy of Complainant’s 3, 5, and 7 as they are redacted. Is that correct, everyone?
MS. AKERS: Yes.
MR. JARRELL: Yes.
EXAMINER REYNOLDS: We don’t need to go around and introduce ourselves again. I think everybody knows each other this time.
MR. JARRELL: I think we’re good.
EXAMINER REYNOLDS: Now I believe the first thing you wanted to do, Mr. Jarrell, was have one of your expert witnesses testify. Is that correct, sir?
MR. JARRELL: Correct.
1
Proceedings -
EXAMINER REYNOLDS: I’ll have the court reporter swear you, sir.
(Witness sworn.)
THEREUPON came,
J O H N H A R T
called as a witness on behalf of the Respondent herein, who, having been first duly sworn according to law, testified as follows:
DIRECT EXAMINATION
BY MR. JARRELL:
QPlease state your name for the record.
AJohn Hart.
EXAMINER REYNOLDS: I’m going to stop you a minute. I will tell the parties that I have read the lower level record of his entire testimony, so that kind of got me caught up with what’s going on. Go ahead. I’m sorry to interrupt you, Mr. Jarrell.
MR. JARRELL: That’s fine.
BY MR. JARRELL:
QWhat’s your address?
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Dr. Hart - Direct (By Mr. Jarrell)
AI live in Portland, Oregon and live in Washington, also. We have a little place there.
(WHEREUPON, the updated CV of
Dr. Hart was marked for purposes
of identification as Respondent's
Exhibit No. 1.
QIn terms of your curriculum vitae, you brought an updated curriculum vitae since the last.
AYes.
QIt’s not my intention to go through all of that, but if you could just hit a few highlights and what the pertinent changes are, please.
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Dr. Hart - Direct (By Mr. Jarrell)
AProbably, looking here myself for changes, a couple things we’ve got is I’m in Portland, Oregon and Vancouver, Washington right next door. In Portland, in that metropolitan area, we’ve got a problem with narcotics and mainly prescription narcotics. So I’m with Peace Health Medical Center which is kind of one of these big chains of hospitals. They go from Alaska down through California. I suppose every part of the country has got their own chain of medical centers.
So I’m the Peace Health representative to this committee. What we’re trying to do is set into place some new guidelines because the old guidelines we used haven’t worked for physicians, to see if we can start reducing what’s going on in our own city. So that’s probably one of the most significant things that’s happened.
QOther than that, your practice is basically the same?
AYes, yes.
QAnd you have, in fact, testified either in the prosecution against the doctor for his license, or you have also testified for Philip as far as in defense of his license; correct?
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Dr. Hart - Direct (By Mr. Jarrell)
AYes. He had a problem with a clinic in town there that finally got closed.
QAnd you have previously been qualified as an expert, and absent any objection, I move him as an expert at this point.
EXAMINER REYNOLDS: Any objection, Ms. Akers?
MS. AKERS: No objection.
EXAMINER REYNOLDS: So qualified.
BY MR. JARRELL:
QAre you receiving any kinds of money for either your transportation down here, or your testimony, or your time in this case?
ANo. The last time I think we all met was by telephone, and I was sitting there at home in front of my computer with a cup of coffee, and I was on a headset and you all were I guess in this room or somewhere like this room.
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Dr. Hart - Direct (By Mr. Jarrell)
I didn’t have all the medical records. I thought I did okay, but then I saw the outcome and that bothered me. I said, “Something I didn’t communicate. Something’s wrong.”
So when Dr. Fisher called me, he told me his situation and he’s out of money. I said I’ll fly out here, close the clinic for two days. I paid my ticket, paid the airplane, paid the motel last night. I’ll do it all.
QAnd why do you feel like it’s worth taking the time out of your schedule with no remuneration?
AI wish I had time to think about that question ahead of time. Tomorrow or tonight I’ll be back on the plane. You all will be doing your things and I’ll be back there. At midnight I’ll be back in Portland. Tomorrow noon I’ll pick up my –- I’ll go over to my grandkids while my daughter is working, so I’ll be baby sitting her five-year-old and eight-year-old tomorrow and their cat Rosie.
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Dr. Hart - Direct (By Mr. Jarrell)
Three years ago, Rosie came dragging up to their door. The cat was scrawny and fleas and looked like a freaking mess. The family kind of got together and we said, “Let’s take Rosie in.” So they bathed her and fed her and everything else, and $250 later for the vet, Rosie now when I go over there, she thinks my right shoulder is her freaking bed.
QLet’s get back onto Philip.
ASo, you know, you do that because it’s the right thing to do. It’s just the thing you’re supposed to do. Not because of money.
QAnd do you think this was the right thing for you to do?
AThis is the right thing. I have to be here today. Now it may not have a different outcome and you all may decide it differently than what I will present you, but I think I have to be here.
QIt’s not my intention to go back through all your testimony in any detail, but I've asked you to kind of put together a summary of the different patients that you’re addressing. Is that correct?
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Dr. Hart - Direct (By Mr. Jarrell)
AThat is correct, you did ask me that, sir.
QI would like to go through these brief summaries to bring everyone on board. Some of it is after review of some records you didn’t have before.
Let me ask you first. All of your opinions that you gave in the previous testimony, were they to a reasonable degree of medical probability within your field?
AYes.
QAnd when I ask you for an opinion as far as today’s testimony, will you do that to a reasonable degree of medical probability within your field?
AAbsolutely, yes.
QWhich patient would you like to start with first? Again we’re –-
AI would say start with No. 1, if you-all don’t mind, however you want to do it.
QThat’s fine.
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Dr. Hart - Direct (By Mr. Jarrell)
MS. AKERS: Is the summary going to be part of the record or –-
MR. JARRELL: There is a chart review that I have in writing. I just want to use it as a basis for him to explain his overviews. I’m not asking to introduce it.
MS. AKERS: Okay.
MR. JARRELL: However, if you would like to have a copy as we go through it, I have no objection to that either.
MS. AKERS: I would appreciate that.
EXAMINER REYNOLDS: If you don’t mind, that will be wonderful for her. I have a question. Are you introducing any new medical records that weren’t introduced below or these are just ones that are already in?
MR. JARRELL: There’s not going to be any additional medical records or other records, I don’t believe, that will be introduced.
THE WITNESS: Is that the sheet that I did last night? You might want to make a copy for the judge, also.
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Dr. Hart - Direct (By Mr. Jarrell)
MS. SHEPARD: Yes, I’ll make one.
THE WITNESS: I don’t know how you all do that.
MR. JARRELL: And if you would like, we can make it as part of the record.
EXAMINER REYNOLDS: Ms. Akers has no problem with that.
MR. JARRELL: Whatever she wants to do with it. Because there are so many different people and there’s been some time here, and some of them he’s had a chance to review additional records on to supplement his earlier testimony, it seemed to be the simplest way to get that in.
EXAMINER REYNOLDS: And that is what my question was. Let’s make sure that as you go along that Ms. Akers has those additional records. You probably do. They may just not have been admitted before.
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Dr. Hart - Direct (By Mr. Jarrell)
MR. JARRELL: Well, they were records that were admitted and they were records everyone had, except for a gentleman having coffee in Oregon.
EXAMINER REYNOLDS: Well then we’re fine and my question is answered. Thank you. Go ahead. I’m sorry to interrupt.
THE WITNESS: Even to make it more exciting, folks, he sent me a box of records which got returned at the post office. And so I’m getting ready to get on a plane yesterday. I got the mail and there’s another one. They sent them back again to him, so you’re going to get them back again. Fortunately last night I got to see some of the records that I had never seen before.
MR. JARRELL: For two weeks we’ve been trying to overnight records there.
EXAMINER REYNOLDS: And these have the patient names on them, so certainly we’re not going to admit this. But everybody needs to turn this back in to Mr. Jarrell when they’re through and he can take care of making sure this is confidential and safe.
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Dr. Hart - Direct (By Mr. Jarrell)
MR. JARRELL: And there’s no members of the public in here right now.
EXAMINER REYNOLDS: Right. I’m not worried now. It’s just papers tend to float.
MR. JARRELL: Let’s just wait a couple minutes till she gets back.
EXAMINER REYNOLDS: We’ll be off the record.
(WHEREUPON, a brief pause was had.)
EXAMINER REYNOLDS: Go ahead, Mr. Jarrell. And we’re going to do patient No. 1, you said.
THE WITNESS: Before discussing it, in my last time I was on the telephone, you noticed I work for Standard Insurance a day a week, and that’s where I look at and review medical charts. I have to figure out in those charts really what’s going on. You’ve got to look at them in detail. You’ve got to give it a lot of thought. So generally what we look at is I look at ways of doing it.
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Dr. Hart - Direct (By Mr. Jarrell)
So in this case, what I do, how I do this is I’ll take -- I’ll just draw it. I’ll take each -- some visits from the doctor, and I look at those visits individually and I say does that visit meet the standard of care at that time.
BY MR. JARRELL:
QLet me interrupt you briefly, Doctor. The standard of care, especially in pain management has changed dramatically over the years. Is that not correct?
AAbsolutely, yes.
QI mean you were around whenever Perdue Pharma was first promoting this and the doctors were going on high about it up to the point where there was some question on what –
AI happened to have had the unfortunate history of speaking for Perdue Pharma to sell Oxycontin in the early years. So I was one of the persons who helped promote the disaster that we have today.
QAnd it’s also true that in your practice today you’re trying to limit if not completely avoid opiate use?
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Dr. Hart - Direct (By Mr. Jarrell)
AI’m the radical opposite. I must be like someone who went to AA or something.
QIt’s important when you review these records that you review them in conjunction with the standard of care at the time.
AYes. You know, I hadn’t thought about that when we were here last time, but that’s exactly what has to be done. So I have to look at these visits and ask -- without knowing the patient lives or dies, I don’t know this yet. I look at the visits. I say, does this visit meet the standard of care that was present at that time.
You can kind of even take my own CV here and just flip the pages and say, well, what was Hart doing in that period of time. You can see in 2008 I gave a couple lectures for Kadian, they make morphine, long-acting morphine, amongst the other lectures. So I
1
Dr. Hart - Direct (By Mr. Jarrell)
was –- when you give those lectures, you have to keep within the standard of care because otherwise the DEA is down the pharmaceutical company’s neck.
But anyway, you’ve got to look
at –-
QAnd you’re talking about just generically for all the records you reviewed?
AThat’s right, this is a generic thing. So I look at each set of office visits for each person. I went through them last night looking at each person individually. I said I want to go through each of the records, kind of see what was taking place, what were the medications.
What I’m looking for, and this is important, one, did he meet the standards of care that were in place at that time. God knows not today’s and the last couple years. Nowadays it’s a whole different world.
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Dr. Hart - Direct (By Mr. Jarrell)
The second thing I look at, did he do a prescribing mistake or a careless thing, and we occasionally see this. A doctor will come along and the patient, I’m just going to make an example, 100 milligrams of something. And the next visit the doctor says, “You know, Joe, you’ve got a lot of pain. We’re going to raise you to 2- or 300 milligrams,” and the fellow dies. The doctor wrote the thing, it was wrong and the guy dies. We’ve got to look for that in every case.
QAnd what you’re talking about now is if you have an impact of medicine, either a death or some other impact, you look as to whether it was something that the doctor did was the actual causation of that injury. Is that correct?
AAbsolutely. You have to look for that. And then in these cases, the ones that I was presented with from you-all, we had autopsy reports. So being the curious person I am, I always like to go –- I wanted to go further. You couldn’t just stop with this. You’ve got to go out there and look. You’ve had a death out here. That death is important. That’s a human being.
1
Dr. Hart - Direct (By Mr. Jarrell)
You’ve got to look at that autopsy report and look at it and say what occurred. Was he hit by a truck. Was it a suicide decision on that person’s behavior. Or was it what’s, and I hate to use this term, an accidental overdose. There’s a reason I hate to use that term. I don’t think there’s any accidental overdoses. This is just me. I’m getting on my thing here.
If I’m carrying my Oxycontin in my hand and I fall down and my Oxycontin goes in my mouth, and then when I’m trying to stand up again and I swallow it by accident, that’s an accident. What happens is the death is an accident. Before, when they took those pills, that wasn’t an accident. That was –-
QThat was an intentional act?
AThat was an intentional thing to feel a certain way that actually has a lot to do with the dopamine system, and I want to achieve that feeling. Unfortunately that feeling kills.
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Dr. Hart - Direct (By Mr. Jarrell)
QSo basically in terms of death of a patient, it can be either unrelated to anything to do with the medicine, somewhat unintended death due to overdose, or a suicide, and that’s true in the cases you’ve reviewed here.
AI have to look at each case individually. So the two things I look at, one, what were the office visits like, what did this physician do, what was he doing and what year was it. Second, I have to look out there and say, let’s look at the autopsy. Let’s see what happened.
QAnd is there also a nexus between what the physician’s actions are, and the foreseeability for the death, and having any control over the death? Is that an important factor?
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Dr. Hart - Direct (By Mr. Jarrell)
AForeseeability would indicate that on this last visit or anywhere in any of those visits he could foresee this was going to happen in the future. If that happens in psychiatry where we have the highest death rate amongst patient loads, we would be in real trouble.
In my practice, I practice –- my world consists of pain, my world was pain. Then I moved into pain and addiction. Then about three years ago I started doing research. You’ve got three people that never talk to each other. Pain doctors don’t talk to addiction doctors. None of these two doctors talk to the researchers doing the research in the basement with the rats and the mice. They don’t talk. So my job nowadays is, my mission, is to bring those three together.