NC Medical Board Dr. Rashid A. Buttar Transcript - Page 15 of 16
treatments that conventional medicine offers to a patient a treatment that is so effective that there's no reason to go to alternative therapies? I think not.
I think the General Assembly has specifically recognized that alternative medicine ‑- or that integrative medicine and the alternative medicine part of that should be recognized in the state of North Carolina by the North Carolina Medical Board and respected and be judged by the standards of a doctor practicing integrative medicine, not by the standards of an oncologist in these cases.
Thank you very much for your generous attention. You have been just amazing in your attention with all the ‑- all the medical records and the patients and the witnesses. I thank you very much and so does Dr. Buttar. I know your decision will be well considered and I ask, as does Dr. Buttar, that your decision be in favor of him.
We have separate ‑- we have two sets of issues here for the Board to decide. The only difference between our issues and Mr. Jimison's issues are that we ask that you apply a standard of care for a doctor practicing integrative medicine in the standard of care question. The issues are attached to the pre-trial stipulation ‑- pre-hearing stipulation that you all have.
Mr. Jimison's issues, I want to make sure I get this straight, are Exhibit F. Our issues are Exhibit G. They are identical with the exception of the one change in the first issue.
We say the proper question for you to answer is, Did Dr. Buttar depart from or fail to conform with the standards of acceptable and prevailing medical practice for a physician practicing integrative medicine and commit ‑- and commit unprofessional conduct within the meaning of the statute.
We say the answer to that question should be no.
Question 3 is, Did Dr. Buttar provide services to patients in a manner as to exploit the patient within the meaning of 90-14(a)(12).
And none of these patients were exploited. There's no evidence of it. We don't even think that's an issue that should take you very long. You know, they all were fairly informed of their rights, their abilities to pay or not pay. There's no exploitation there and we say that should be answered no.
Thank you.
PRESIDENT RHYNE: Thank you, Ms. Godfrey.
Mr. Jimison, would you like to make a closing statement?
MR. JIMISON: Yes, Madame President. And initially I'd like to hand up what's a Memorandum of Law. Some of the other staff helped to prepare it while I was doing this. And here's a copy to Ms. Godfrey and to the Members of the Board. I'll be referring to it in my closing remarks. And thanks to Mr. Mansfield for helping us on that issue with this.
CLOSING STATEMENT BY MR. JIMISON:
I'd like to start off with a point of agreement with Ms. Godfrey. I do think the Board Members have been amazing in your attention to this, your patience, your endurance. I know these are not easy things to sit through. And I know there's been a lot of back and forth and give and take, and some of it between counsel.
And I'd like to again share in agreement with Ms. Godfrey that ‑- and because you've not mentioned this, I think it was implied, the case is not about the lawyers. It's not about, you know, Ms. Godfrey, it's not about Mr. Knox or myself. It's about the facts and the evidence and the law. That's the only thing that matters here: the facts, the evidence and the law.
Some of it's not disputed in the facts. In fact, the court facts are not disputed at all. There are three patients ‑- there were four patients charged and I think everyone is focusing in on the three cancer patients.
There are three patients who came in to Dr. Buttar's office with late stage metastatic cancer. The cancers are of different types: adrenal, ovarian and cervical. Some had spread to the liver and the lungs, these people were dying and they were going to die.
There was testimony solicited from this Board that no one ‑- I don't think there was any patient that Dr. Buttar refused to treat even though they were at very late stages of their lives.
And the undisputed facts, I think really are shown, if you step aside instead of backwards is that he administered ‑- although they all came with different types of cancers, he administered a single one-size fits all therapy, oxygen therapy from hydrogen peroxide to ozone to hyperbaric chambers, chelation therapy.
And the Board Members solicited information ‑- elicited information from testimony that 100 percent or close to a 100 percent, virtually everyone comes in with some metal toxicity. And the Board pondered whether or not that made sense.
Dr. Peterson testified and I don't think there's any real disagreement there from listening to Ms. Godfrey's arguments, it only sounded as though she conceded that these treatments were not within the standard of care of prevailing and acceptable practice of medicine for the treatment of cancer in North Carolina.
So the argument she made, and she spent most of the time on, was that this had to be judged by a different standard. That's not the law. It's clearly not the law and I will turn to that now.
When Mr. Mansfield did his rebuttal evidence, he showed you two pieces of legislation. The first legislation which was your Exhibit 26 was a proposed bill that essentially would have said that in order for you ‑- and this is 90-14(a)(6) and this is Exhibit 26, page 3. And this was additional language added to 90‑14(a)(6) which is the charge for which Dr. Buttar is facing today.
That in order to find that a doctor departed from acceptable ‑- from standards of acceptable and prevailing medical practice, you had to judge them by the standards of practice in any specialty, including complimentary treatment, shall be defined by specialists in that field.
And then this is actually very important, too. The next sentence: The Board shall not ‑- and you see the underline -- annul, suspend, revoke the license or deny a license to a person, harass, or initiate an investigation solely because that person's practice of a therapy that's experimental, nontraditional or departs from acceptable standards.
That language as was shown on the rebuttal testimony did not make it to the final version of the bill.
The law which has been handed up to and I'll read it from, you know, the big official book is the following: Unprofessional conduct, including, but not limited to, departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice, or the ethics of the medical profession, and I'll skip some of this ‑- well, let me just read it.
Unprofessional conduct includes, but not limited to, departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice, irrespective of whether or not a patient is injured thereby, or the committing of any act contrary to honesty, justice, or good morals, whether the same is committed in the course of the physician's practice or otherwise, and whether committed within or without North Carolina.
That law ‑- that sentence is the exact same law that the Supreme Court upheld in the George Guess case. And we had an argument yesterday and I know it's been essentially four days crammed into two, but if I can remind the Board Members, the North Carolina Supreme Court said we conclude that the Legislature in enacting 90-14(a)(6) -- the very statute that is the basis of the charges that is before you today, and that was considered in this case -- the Supreme Court said that the Legislature in enacting this law reasonably believed that a general risk of danger to public is inherent in any practices -- and any is italicized and emphasized -- which failed to conform to the standards of acceptable and prevailing medical practice in North Carolina.
We further conclude that the legislative intent was to prohibit any practice departing from acceptable and prevailing medical standards without regard to whether the particular practice itself could be shown to endanger the public. Our conclusion is buttressed by the plain language of the statute which allows the Board to act against any -- and again they emphasize any -- departure from acceptable medical practice irrespective of whether or not a patient is injured thereby.
And by authorizing the Medical Board to prevent or punish any -- and again it's emphasized -- medical practice departing from acceptable and prevailing standards, irrespective of whether a patient is injured thereby, the statute works as a regulation which tends to secure the public generally against the consequences of ignorance and incapacity as well as deception and fraud, even though it may not immediately have that direct fact in that particular case.
That was the law when Dr. Guess's case went to the North Carolina Supreme Court. Dr. Guess was a homeopathic physician who was practicing beyond the standard of care for the patients that he was treating, the Medical Board brought in doctors to say this was not within the standard of practice. He was saying no ‑- none of these doctors are homeopaths, I'm basically the only homeopath doctor in North Carolina, you have to judge me by homeopathic standards.
And the North Carolina Supreme Court specifically rejected that ‑- that interpretation. They specifically rejected that ‑- that law or that proposed meaning of the laws.
And then when the North Carolina General Assembly considered changing the law to include some information about integrative medicine and we had this bill that was proposed which talks about you have to judge them by the standards of practice in any specialty, including complimentary treatment, shall be defined by specialists in that field, the General Assembly specifically rejected that and did not include it in the law.
And also when they added that whether the Board can do certain discipline against certain doctors if they depart, they only left in ‑- they only left in revocation.
So when the law was changed to include the next sentence: The Board shall not revoke the license of or deny a license to a person solely because of that person's practice of a therapy that is experimental, nontraditional or it departs from acceptable ‑- or that departs from acceptable and prevailing medical practices unless by competent evidence the Board can establish that the treatment has a safety risk greater than the prevailing treatment or that the treatment is generally not effective, they ‑- they kept that language in and they pinned it to ‑- they pinned it to only revocation.
And when they actually tried to expand the law to include other acts of discipline, they specifically refused to include other acts of discipline. They pinned it solely to revocation.
So in the event you find that Dr. Buttar departed from acceptable and prevailing medical practices for the treatment of cancer, and I think it's undisputed that he did, then the only time this law comes into effect ‑- the only time that this law becomes relevant is if the Board decides it wants to revoke Dr. Buttar's license.
And if the Board decides it wants to revoke Dr. Buttar's license, then and only then, are you required to make a finding of whether or not the safety risk was greater than the prevailing treatment or that it was generally ineffective.
I would submit that if you get to that point that you can actually make the finding that it was generally ineffective from Dr. Peterson's testimony. The only testimony that actually went by treatment to treatment, procedure by procedure, and asked what was the efficacy, the scientific research based, evidence based efficacies for all these treatments for cancer and his answer for each and every one of them was zero.
And ‑- and all the witnesses -- and not just to put it all on Dr. Peterson -- I think even from the other side that came to ‑- when it came to defending these treatments on the basis of evidence based, scientific research based research regarding clinical trials showing the efficacies of these treatments to a person, even Dr. Buttar's own witnesses said there is none, said there is no ‑- no acceptable and prevailing recognized scientific evidence based research showing the efficacies of these treatments.
And I believe the Board elicited testimony about how this was somewhat putting the cart before the horse, that he's doing these treatments without having any research, having had any scientific basis for doing it. He just thinks it may be good.
So I'd now like to return you to the other section of the statute where in 90-(a), the General Assembly again was asked to ‑- and this is on page 2, if you flip back to page 2 of Exhibit 26.
The General Assembly was asked to consider whether or not medical expert witnesses called by the Board including medical practitioners licensed in the United States must routinely and actively practice in the specialty that is under investigation by the Board.
And then it goes on to talk about each party must make certain disclosures. But the key part of that was the first sentence I read about the medical expert witnesses must routinely and actively practice in the specialty that is under investigation by the Board.
Again, they specifically rejected that language. They specifically rejected that language. And what they ended up with was 90-14(g) where it says: Prior to taking action against any licensee who practices integrative medicine for providing care not in accordance with the standards of practice for the procedures or treatments administered, the Board shall consult with a licensee who practices integrative medicine.
That has been done. There has been no argument from Dr. Buttar that there has been no consultation.
And it's interesting to note the choice of the word consult. It does not say that the integrative medicine practitioner must testify in front of the Board. It does not say that the Medical Board must agree with the consultation. It just simply says that prior to issuing charges that you must consult with an integrative medicine practitioner. And, again, there has not been any argument from the other side, nor could there be, that that has not been done because that has been done.
And if you look at the ‑- you know, 90-(a)(g) they used the word testify. So not only was that language about medical expert witnesses must be of the same specialty, but they talked about testifying. And here not only did they not adopt that language, but when they included some additional language in 90-14(a)(g), they changed it to merely consult, which again has been done.
So I will circle back and go back to what I always like to do which is to find realms of agreement. Ms. Godfrey said, and the argument has been made, that you should only judge the case, this present case, on the law that exists on the books now. And the law on the books that exists now is the law that was applied in the Dr. Guess case.
The only change that was made is that in order to revoke Dr. Buttar's license that you have make certain findings, they specifically rejected broadening that to include any other disciplinary action besides revocation and they put ‑- they specifically rejected any requirement that there be an integrative medicine doctor practice ‑- an integrative medicine doctor testify in any of these proceedings.
So the Board's case to me reflects essentially what the General Assembly was trying to say which is that if a medical practitioner ‑- and ‑- and I think this is actually revealing, if you look at 90-14(a)(6), the word integrative medicine does not appear in 90‑14(a)(6). You cannot find the word integrative medicine in 90-14(a)(6).
And what the ‑- the medical ‑- the General Assembly was saying is that any practitioner cannot come into ‑- cannot come to North Carolina, start practicing medicine, start treating a whole ‑- you know, a whole slew of different illness, diseases and not do it in a way that's acceptable and follows prevailing medical standards and then escape any sort of regulation from this Board by attaching a name to it, call it integrative, call it nontraditional, call it experimental.
So long as the practitioner has slapped a name to it, then this Medical Board cannot ‑- cannot regulate it. That would give medical practitioners free reign to do whatever they want without any regulations from this Board.
In essence, it would nullify the need for a medical board at all. Because if you found a doctor departed from acceptable and prevailing standards in the treatment of certain patients for certain conditions, the doctor can then say, whoa, whoa, I'm ‑- you know, I'm this kind of practitioner.
You can't look at me and before you ‑- and if you do look at me, you're going to have to find someone who calls themselves exactly what I call myself and they're going to have to testify that what I'm doing has no effect and ‑- and hurts people. Basically creating an impossible burden for you to take any action against any practitioner so long as he's just attached a label to what he did.
And the North Carolina General Assembly, when it created -- this Board was created ‑- you were created to protect the public health. And if that was the case that anybody could just slap a label on what they're doing, then the public health is endangered and that's what the North Carolina General Assembly was ‑- I mean, the North Carolina Supreme Court was saying in the Guess case.
So that is why the General Assembly rejected those provisions, because it just doesn't make sense. And that is not the law today. I mean, again, I circle back to the agreement I have with Ms. Godfrey, you should judge this on what the law is today.
In other cases, I mean for instance, they say to make ‑- they make an argument that, well, if different doctors of different specialties are doing certain things, then you should only judge them by the doctors ‑- the doctor who is accused of doing it wrong, but I know a doctor who does it like him.
The Medical Board has historically never done that. In the case of Dr. Talley, Dr. Talley was a family practice doctor out of Shelby who was practicing pain medication, chronic pain ‑- chronic pain treatments in using abundant Schedule II narcotics to treat chronic pain and was doing it in a way that was just completely unacceptable.
The Board's expert witness in that case was Dr. Roth. Dr. Roth was a board certified research-based, I believe university-based anesthesiologist. And the reason we had a board certified university-based anesthesiologist review Dr. Talley's work and testify against him is because Dr. Talley was practicing chronic pain medicine.
And if you're going to practice chronic pain medicine, you will be judged by the standards of practicing chronic pain medicine. If you're going to do surgery ‑- if you're a family practice doctor and you're going to operate on a patient, you know, assuming somehow you're able to get privileges in a hospital somewhere or do so in your office, you're going to be judged by the standard of that surgeon.
And to do so, to judge them by some other standard saying you cannot judge this doctor for doing surgery unless you find another specialty in his practice, will endanger the public health. And that's why these interpretations ‑- that's why these proposed laws were specifically and out-of-hand rejected.
And I'd like to expound on this just a little bit more and I know the night ‑- the time of night is getting long, but it goes back to what the meaning of standards are. If standards are relegated to the subjective beliefs of individuals, then they no longer become standards, but that's not to mean that standards are rigid. They are subject to evolution and progress.
Modern medicine makes ‑- progresses all the time and it does so in way that is responsible. It does so through clinical trails, Phase I, Phase II, you know, institutional review boards, university settings. And the reason those protocols and safeguards are there, these standards are there, is because they protect the public.
When medicine has ‑- has strayed from those safeguards, then that is when medicine has been denigrated. And the denigrations of medicine in history are known by single words, Peskidy, Stonybrook. And the reason that we have these standards are because they are there to protect the individual.
And at this point, you know, I'm just trying to pause and say that, you know, it's been, you know, a long day. You know, it's been, you know, many depositions, many hours of preparation and at times, you know, all of this gets funneled through one person and I feel, you know ‑- you know, humbled and awed and scared, frankly, by trying to sum up everything that all the resources of this Medical Board that gets put into these cases, that get investigated in these cases, and it gets funneled through essentially one person and that person is me and, you know, you just don't want to flub it up, so ‑- but ‑- you know, but I'll try not to.
But in this case what you end up finding is that the evidence is overwhelming. The only evidence you have in front of you, and again I go back to judge it by the facts which seem to be undisputed about the patients who came and saw Dr. Buttar and what they got, what therapies they got, the law which I've explained and ‑- and the evidence.
The only evidence you have about the standard of care for the treatment of these cancer patients came from Dr. Peterson. He looked at these therapies and he saw them having no benefit, no benefit whatsoever. He saw these ‑- these therapies and said, this is not cancer therapies. It's just not how you treat cancer. And that's the only evidence on the standard of care, the acceptable and prevailing medical practice in North Carolina. That's the only thing you have in front of you.
Dr. Buttar seems to be making the argument and they kept phrasing the question in front of their witnesses is that, well, is Dr. Buttar performing to the standard of care for an integrative medicine practitioner. Again, not to repeat myself, but that's the incorrect standard. These patients all have metastatic Stage IV advanced cancer. They were all dying and ‑- and Dr. Buttar was treating them for their cancer.
Not a single person from their side, Dr. Buttar included, Dr. Ripoll from Colorado, Dr. Wilson who testified today, and Dr. Biddle who did not even testify today, not a single one testified that Dr. Buttar was within the acceptable and prevailing standard of medical practice for the treatment of late stage cancer patients. Not a single one.
So the only evidence you have of the applicable standard of care, which these people came to Dr. Buttar for, the only evidence you have is from Dr. Peterson and your own expert opinion.
That's the other thing about medical boards, you are doctors. You can apply your own ‑- your own sense of what the acceptable and prevailing standards of medicine are to this case.
But to go back to Dr. Peterson, only Dr. Peterson ‑- not only did he say that the care was not within the standard of care, but he characterized it in very strong terms. And I really don't need to repeat those ‑- those terms here. And why did he use such strong language when ‑- when he ‑- when he opined about this being outside the standard of care?
And the reason is, is because he's a scientist. He is an oncologist. He treats hundreds of patients a year. He sees the highs and lows of this horrible disease. He was on the faculty at UNC. He is board certified in oncology and hematology. He goes to several conferences a year. He subscribes to journals and he reads and he stays current.
And he went through every single one of those therapies and looked at them and said, not a single one was effective.
And every witness on their side, again, testified that not only were these therapies not effective that's proven through clinical trials and research for cancer, but they were also not approved or shown to have any effect for boosting the immune system. And this whole notion of boosting the immune system, there again sort of lies the heart of the issue in 90-14(a)(12).
When the curtain started getting pulled back on what we were seeing with Dr. Buttar, at some point it became, well, I'm not treating cancer any more. I'm just trying to boost the immune system, how the immune system has some effect, and that would drive the cancer away. And ‑- and that was sort of how he was sort of explaining his ‑- his treatments and ‑- and saying that the cancer was only a symptom of an impaired immune system.
And we heard that over the past two days and ‑- and ‑- and what is interesting about it, and I won't go too long on this, is that ‑- let's look at the address ‑- let's look at the facts in the address. Dr. Buttar's clinic holds itself out as specializing in cancer treatment.
He has a seminar that he ‑- that he goes to and he has the brochure which says Integrative Protocols for the Treatment of Cancer. His consent form which he makes a lot to do about talks about, in the consent form, he treats cancer.
When Ms. Garcia was on the stand and she talked about Patient A she wrote in her note, Patient A to ‑- to think about whether she will proceed with the cancer protocol.
And if you go through all the other progress notes, you will see it mentions about the cancer protocol, the cancer protocol. Not the immunology protocol, not the immune system protocol, but the cancer protocol. And this is where we sort of get this ‑- this sort of ‑- this sort of thing about 90-14(a)(12) about providing services in the manner that exploits the patients.
These patients are coming to Dr. Buttar in their darkest hours. They're dying, they're going to die and ‑- and they're ‑- they're signing all kinds of paperwork and they're willing to give over a lot of money, $1,000 a day, you know, several days a week, tens of thousands of dollars, when it's all said and done. They're not doing that because their immune ‑- to get their immune system up. They're doing that because they think he can help them with their cancer.
The patients testified about the fact that he could help them with their cancer. Ms. Garcia's note talks about the cancer protocols. No one is going to give over ten thousand ‑- tens of thousands of dollars on a bet that the immune system is going to be boosted and that their cancer is there and somehow going to go away from that.
He's being ‑- the patients who testified by video, they searched for him on the Internet, they have cancer, they find him. His ‑- like I said, his ‑- his literature that goes out, he specializes in cancer. And there's a ‑- I mean, even though they talk about how educated these patients are and how ‑- and how informed they are, no matter how smart you are, no matter how informed you are, if you're in late stage cancer, there's a power differential.
There's a power differential between a patient and her loved ones or his loved ones, you know, dealing with cancer and then sitting down in front of a doctor with your Medical Board license hanging on the wall and him telling you that he can do something, he can help you with your cancer.
That has a ‑- that has a persuasive influential effect on patients that no matter how informed the patients are, no matter how educated they are, you are just going to put your trust into that.
And in exchange ‑- and in defense of that from your side, what we got essentially were, you know, these therapies are administered in such a way and ‑- and that when ‑- and when these therapies are administered, there's accusations that the ‑- that the Medical Board is ‑- you know, the medical boards are out to do this, the pharmaceutical companies are out to do this, the patients are unhappy about paying their bills and ‑- and there's marital strife and ‑- and that a doctor, Dr. Herman, you know, didn't go see the patient while she was dying.
Who ‑- who can tell Dr. Herman that what she did was wrong? Her ‑- her employee was sitting ‑- who she works with, her mother is dying of cancer, she's going to get therapies that Dr. Herman felt were so outside of the mainstream that she felt motivated to complain to the Medical Board and she's mocked. She's mocked for not visiting her daughter ‑- or her daughter's mother.
Patients are mocked because, you know, there was marital strife or that they just don't want to pay bills. And when I think about these sort of defenses, these sort of responses, you know, it's reminiscent of, you know, Macbeth's famous soliloquy that Shakespeare wrote that life is just sound and fury and signifies nothing. These defenses, these ‑- these responses is just nothing but sound and fury and it signifies nothing.
What it does signify is that there is ‑- somewhere there is ‑- there is a loved one that's going to Dr. Buttar's office, they're dying, and they would be looking for any glimmer of hope.
And Dr. Buttar is more than willing to give them that glimmer of hope, but it's all false hope and they will be set up to IVs, getting eight hours a day of treatment, five days a week, paying him tens of thousands of dollars, and the whole time there's a North Carolina medical license on his wall.
And if this is allowed to continued, if this is allowed to go on, that is your stamp of approval. His medical license is your stamp of approval. So if this goes on, then anyone can come into North Carolina and take this Dr. Buttar case because it will then become legal precedent and say, I can do whatever I want, follow no standards, so long as I put a label on it there's nothing this Medical Board can do.
That is not the facts, that's the law and that's not the evidence. It is nothing but sound and fury and it's time to stand up to that sound and fury and if you do, there's nothing untoward that will happen. This is the time to stand up for science-based, evidence-based medicine. And if you do so, there will not ‑- nothing ‑- not only will nothing untoward happen to this Board, it will be this Board's finest hour.
I ask you to look at the two issues and Exhibit F which is my issue that says: Did Dr. Buttar depart from or fail to conform to the standards of acceptable and prevailing medical practice.
The evidence, the facts, the law clearly says he does ‑- he did. That has to be answered yes.
As to whether he exploited patients in a manner under 90-14(a)(12), I just remind you of that power differential. These patients were in their darkest hours. So I will respectfully submit that the Board answer the interrogatories yes and that we proceed to Phase II.
Thank you.
PRESIDENT RHYNE: Thank you. The Board will now go into closed session to consider the evidence and then we'll announce the decision.
MR. KNOX: Madame Chairman, I would like to except two things. One is the placing of the ‑- of the Board in the position of saying that you have put your stamp of approval on or take it off, that's all -- that you're supposed to argue to a jury or to you.
And to the extent that he supplemented the record by saying who had reviewed certain data. I would take exception to those two and that's all I have to say.
PRESIDENT RHYNE: Okay. I want to make sure I have a copy of the pre-hearing agreement.
MR. JIMISON: Okay. I'll give you mine, Dr. Rhyne.
MS. GODFREY: I have a copy here if you need it.
PRESIDENT RHYNE: Okay. Let me get you ‑-
MS. GODFREY: I'll get another one.
PRESIDENT RHYNE: I've got so many sheets of paper to go through them ‑-
MS. GODFREY: I understand your problem.
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(WHEREUPON, THE PANEL RECESSED INTO
EXECUTIVE SESSION AT 7:18 P.M.
AND RECONVENED AT 7:58 P.M.
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PRESIDENT RHYNE: Our concern is with questions five and six. Is that a Phase II and do we have to go into Phase II or do we answer those now?
MR. JIMISON: I would recommend going into Phase II.
PRESIDENT RHYNE: Okay.
MS. GODFREY: And what ‑-
DR. McCULLOCH: And we have different questions, yeah.
MS. GODFREY: ‑- what is meant by Phase II? I don't know ‑-
MR. MANSFIELD: Well, that's ‑-
PRESIDENT RHYNE: That was our ‑-
MR. MANSFIELD: The parallel in a civil case would be, this is the negligent ‑- you know, the equivalent of a negligence, but it's not negligence, but it's equivalent of a negligence phase. And they they come back again and answer the questions, did misconduct occur. If the answer is yes, then and only then, it's Phase II which is the appropriate discipline phase.
MS. GODFREY: Well, is there more evidence given?
MR. MANSFIELD: You can ‑- you are permitted to -- and the way we do it is you can present more witnesses, documents, evidence in support of your argument about what you think the discipline ought to be.
MR. KNOX: To the full Board you're talking about?
MR. MANSFIELD: No, to this panel.
MS. GODFREY: This panel. We're still in this ‑-
MR. MANSFIELD: This panel is going to make a recommendation as to the initial questions of misconduct ‑-
PRESIDENT RHYNE: Right.
MR. MANSFIELD: ‑- and the appropriate punishment.
PRESIDENT RHYNE: And the way I understand it and you correct me if I'm wrong, is that we can do that tonight or we can do it another time. And I guess part of my question about that is, do you guys want to do it tonight at this time or if you were going to do that and present more evidence, you have ‑-
MS. GODFREY: Well, I don't think ‑-
PRESIDENT RHYNE: -- more evidence, no more evidence. We have a court reporter we're looking at and we're prepared to stay.
COURT REPORTER: I am here at your pleasure.
MR. JIMISON: I was just going to make an argument about ‑- I just want to make an argument and not present evidence. I'm not going to put a time limit on it, but it was not going to be long.
PRESIDENT RHYNE: Yes, sir. Do you ‑- do you think ‑- could each side do it in ten minutes?
MR. KNOX: No.
MS. GODFREY: No. I mean, understand, Dr. Rhyne, the procedures here are not something that, you know, we deal with every day. And the ‑- you know, if you're saying that we're going to consider more evidence, I mean, we would consider more evidence on the issue of penalty. I don't see how we can possibly be prepared to address that, you know, at this point.
We ‑- we put on our case with regard to, you know, to the charges, but I mean the issue of penalty is ‑- is something that, you know, we're going to have a chance to submit additional evidence. And ‑- and that may be, you know, in the form of ‑- I know there's disciplinary guidelines that we would need to look at, as you would need to look at and ‑- and maybe even some of the cases we've reported, so.
MR. MANSFIELD: Madame President, I think the Board should be fair. Every time we conduct one of these hearings, the Board should be fair and I would suggest that you use that as your guide to make a decision about this.
On the other hand, I would advocate for pressing ahead and finishing this case for several reasons. And I don't have the pre-hearing stipulation in front of me, but I believe that the penalty issues are in your issues, that's the pre-hearing agreement that we embarked on this hearing with, including the penalty phase issues.
And we have, you know, and what we normally do as ‑- as Madame President knows, is we forge ahead because folks come prepared to try the case and the parallel and in civil court is you come to prepared to try on liability and damages at the same time.
So I certainly ‑- if you think it's unfair to Dr. Buttar because his attorneys are not in a position to go forward, then you should make whatever decision you think is right. On behalf of Marcus and me, I would advocate for going ahead and conducting Phase II, reminding the Board that this ‑- you know, you're a panel making a recommendation.
The final decision in this case is already not going to occur until I would anticipate July and to ‑- to have to come back and do Phase II at another time and further delay the final decision in this case, seems like a poor use of judicial resources of the Board which the hearing time, as you know, is very limited.
MR. KNOX: May I be heard? This whole thing has been sort of like -- okay. If you could listen just a minute. We were told initially we would have a hearing before the Board. We were -- told them there was no way we could get ready ‑- I think we were notified ‑-
MS. GODFREY: You mean, the charges?
MR. KNOX: Yes.
MS. GODFREY: In December.
MR. KNOX: ‑- in December and the hearing was supposed to have been in ‑-
MS. GODFREY: February.
MR. KNOX: ‑- February. And I said, there's no way, I'm in trial in a lot of ‑- in a lot of cases. So then it was set to be heard today. And then we were told we would have a panel and then we were told that it couldn't be continued. Then we were told that it would be continued unless we took off some of our experts. So we talk about fairness and I appreciate what he said, I think he means it. I think in fairness to our client, he ought to have the opportunity ‑- I'm sorry for you to come back, but on the other hand, I have not consulted -- on the issues you've answered and I'm not asking you to tell me, but I think in fairness we ought not to be put in that position, not at this late hour.
MR. MANSFIELD: Well, if I may just address two points specifically that Mr. Knox mentioned. The charges that were issued in this case in December specified that this case would be heard either before a panel or the full Board, so notice was given from the get-go that it could be before a panel.
And unless Mr. Knox or Ms. Godfrey tells me I'm wrong, my belief is that there has been no request for a discussion about a continuance from this setting. I mean, I can perfectly well understand why they didn't try the case in February based on the charges coming out in December. But ‑-
MR. KNOX: Well, I don't think you've been privy to that. We did say to Marcus and Marcus said to me, I don't think there's a chance that the Board is going to put this off. And I said, I don't know how in the world we can get ready and in that short of a period of time and we were told it's going to be tried. And then Marcus said, we will try it if you eliminate some of our experts which we did and I think you wanted me to move expeditious just as Marcus has tried to move expeditiously. But in fairness to our client, it was a big issue, quite obviously. That's all I have to say.
MR. JIMISON: You know, historically we can move straight to Phase II. And Dr. McCulloch and Dr. Rhyne, I think you have more experience than Dr. Walker. You know, historically we've always sort of moved to Phase II. And, again, my ‑- my ‑- my presentation would be mostly just what the discipline should be based on whatever here ‑- what you say the issues were in three and ‑- and that could go very, very briefly.
The other point is that this is just a recommendation and if there's any more argument they want to make, that either a ‑- the decision of the panel or the decision ‑- or the recommended sanction is something that's not warranted, they can do that in front of the full Board.
DR. WALKER: So what you're ‑- excuse me.
PRESIDENT RHYNE: Go right ahead.
DR. WALKER: So what you're saying is that if we render a Phase II decision that that would be the recommendation of the Panel to the full Board and Mr. Knox and Ms. Godfrey will have an opportunity to present to the full Board.
MS. GODFREY: No more evidence.
MR. MANSFIELD: Correct. Let me hasten to clarify that they would not be able to bring witnesses or additional documents at that time. They would need to do that in Phase II before this Panel. They would get to present arguments that the punishment was excessive or that the first decision was wrong to the quorum of the Board.
MR. JIMISON: However, typically the evidence and I will make an objection to this in front of the Board Panel ‑- before the quorum of the Board is that's normally what the Board had done in similar cases in the past. I mean, the Board can always take judicial notice of what they did in similar cases in the past and that's typically the type of evidence the Board would receive.
So, again, I agree with Tom, whatever you, Dr. Rhyne, and the members of the Panel believe is fair. I'm not going to ‑- I don't know if I'm contradicting my boss, but I'm not going to jump up and down about it.
MR. KNOX: Dr. Walker, the only thing I can say, that assumes anything we might say or prepare could be appreciated or changed or modified now and so I do think that in fairness of the doctor, he ought to have a chance to do that. And I was ‑- I thought you made a recommendation to the ‑- to the full Board, but I didn't know you made a recommendation today. I'm sorry, I should have known. I've been down here on several occasions, but they are more casual appearing than the Panel.
PRESIDENT RHYNE: Can we go back into closed session ‑-
MR. MANSFIELD: Sure, no problem.
PRESIDENT RHYNE: ‑- and we'll make a decision and then call you back ‑-
MS. GODFREY: Okay.
PRESIDENT RHYNE: ‑- but thank you.
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(WHEREUPON, THE PANEL RECESSED INTO
EXECUTIVE SESSION AT 8:08 P.M.
AND RECONVENED AT 8:15 P.M.)
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PRESIDENT RHYNE: The Board considered the issues and on the proposed issues:
Number 1. Did Dr. Buttar fail ‑- depart from or fail to conform to the standards of acceptable and prevailing medical practice and, thus, commit unprofessional conduct within the meaning of North Carolina General Statute 90-14(a)(6) in which he treated Patients A through C. We've excluded D.
The answer was yes.
Number 3. Did Dr. Buttar provide services to patients in such a manner as to exploit the patients within the meaning of General Statute ‑- North Carolina General Statute 90-14(a)(12).
The answer was yes.
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PHASE II
PRESIDENT RHYNE: Now, the decision is to go into ‑- go ahead and go into Phase II. And since we found that he ‑- Dr. Buttar committed a violation of the Medical Practice Act, we must proceed to Phase II and determine an appropriate disposition.
MR. KNOX: I assume you would begin with the Medical Board -- I mean, the Board.
PRESIDENT RHYNE: Would you like ‑- do you want to present other witnesses, exhibits or be heard on that?
MR. KNOX: I've indicated ‑-
PRESIDENT RHYNE: Or to question anyone.
MR. KNOX: I'm not prepared to do so, so if you want to go ahead hear what they have to say ‑-
MS. GODFREY: Well ‑-
PRESIDENT RHYNE: Ms. Godfrey, would you like to present any witnesses, exhibits or otherwise be heard on the question of the penalty.
CLOSING STATEMENT BY MS. GODFREY:
Well, I think ‑- I think we would like to be heard. I think that the Board is now in the phase of considering the disciplinary guidelines and I think we ought to at least address that because it's very clear that some of them apply and some of them don't apply.
And so practicing below the minimum standard of care is the one charge.
And I must admit that in the disciplinary guidelines, I don't see any guidelines with respect to the second charge that specifically say with regard to exploitation of patients, so I'm not quite sure how to proceed with that.
But with regard to practicing below the minimum standard of care as published by the Board, the presumptive maximum is revocation of the license, presumptive minimum is stayed suspension of the license.
The aggravating factors that you can consider in deciding which of those or, I assume, any remedy in between are the prior disciplinary actions. There's been none.
Patient harm, none.
Dishonest or selfish motive, I don't think any dishonest or selfish motive was proven. I think all the evidence is that Dr. Buttar was doing what he thought was best for his patients.
Position of false evidence, false statement or other deceptive practices during the disciplinary process, no evidence of that.
Vulnerability of the victim, we would say that these were all competent adults and perfectly capable of making decisions on their own for their own medical treatment.
There's no children involved in these charges. There's no incompetent people involved in these charges. These were all people that were in their right mind. They happen to be suffering from cancer, but they were still all in their right minds and they could do ‑- make decisions on their own.
Refusal to admit wrongful nature of conduct. That's a tough one because as I argued to the Board, Dr. Buttar does not believe that his conduct was wrongful. And if that's held against him, I think that's completely unfair. He has a different perspective of the practice of medicine than you three doctors and the prevailing medical practice, but I do ‑- I think it would be wrong to hold that against him in this case.
Pattern of misconduct, repeated -- (inaudible) -- of the same misconduct. I don't know what you found whether you found it based on one or all three and that's ‑- that's hard for me to say. I would say that if you found in ‑- in less than all three cases, then, you know, you found a pattern. And, again, these are three individual cases that you ought to consider individually.
Patient A is not Patient B is not Patient C. And so whether or not he's found to be violating the standard of care in all three cases or one or whatever should be a factor.
Multiple offenses, again, I don't know how that plays in here when we've got three separate patients. I don't know what the Board decided on.
So I would say there are no aggravating factors.
The mitigating factors, again, sort of counterbalance absence of prior disciplinary record, no direct patient harm, absence of dishonest or selfish motive, full cooperation with the Board. I think that's been obviously displayed. There was no visible disability or inherent rehabilitation, again, I think that's in a different type of case.
Remorse, again, I think it would be wrong to hold his validly and sincerely held beliefs against him.
And remoteness of prior discipline, I'm not sure how that comes into play.
I do think the mitigating factors would outweigh any aggravating factors in this case and we mitigate towards a lessor penalty than revocation.
I'm not going to sit here and suggest to the Board any specific penalty. I think that the Board though would be wrong to give the maximum penalty in this case and I think that the mitigating factors do outweigh the aggravating factors and based on your own published guidelines that ought to be taken well into consideration in setting any discipline that you see ‑- that you give cases.
Do you have anything to add, Mr. Knox?
MR. KNOX: Well, I do not at this time.
PRESIDENT RHYNE: Thank you.
Mr. Jimison, would you like to present any witnesses, exhibits or otherwise be heard on the question of appropriate discipline?
CLOSING STATEMENT BY MR. JIMISON:
I do want to be heard. And you may have a copy of the ‑- of the Medical Practice Act in front of you. Since the Board's Panel has found both issues, one and three, not only are the aggravating and mitigating factors relevant ‑- and I'm sorry I don't have those in front of me.
If I may ask Ms. Godfrey if I can see her printed list.
MS. GODFREY: Only if you use my checks and balances.
MR. JIMISON: Okay.
MS. GODFREY: Do you want to argue the same ones.
MR. JIMISON: Not really so much those.
But what I really want to draw your attention to in 90-14(a)(12) because you answered that question yes, is that upon the finding of exploitation the Board can order restitution to the individuals. And that's really going to be the ‑- you know, the bulk of my comments.
I believe that the Board should order restitution to the three patients, A, B and C or their estates, in the amount that Dr. Buttar charged them. And that his license should be indefinitely suspended until such time that he reapply and that he not be ‑- that his application not be processed until such time as he has paid restitution to those three patients.
If you indefinitely suspend his license with the restitution, then you don't have to make the finding regarding did his care carry a greater safety risk or was generally ineffective because you're not revoking him.
But if you do decide to revoke him, you can do one of two things. If you ‑- if you ‑- if you determine that revocation is in order, then I suggest you do one of the following two things.
One, you designate it for which charge.
If you revoke them for (a)(6), then you must make one of the two findings about whether or not it was a greater safety risk or was generally ineffective.
If you revoke them for (a)(12), then you don't have to make those findings. So I would ‑- I would ask you to ‑- to, you know, give a sanction for each charge.
And, again, just to clarify because, you know, this is not something we do every day, so I'm sorry to repeat myself. So if you revoke him for (a)(6), you must make the findings. If you do anything less than revocation (a)(6), you do not have to make the findings.
If you ‑- and also I suggest that you make a separate discipline for (a)(12) and that you order restitution to the victims.
I do believe with Ms. Godfrey's, you know, aggravated ‑- recitation of the aggravating and mitigating factors.
One that I think we could absolutely agree on is there are no ‑- there are no prior disciplinary actions by Dr. Buttar.
Patient harm, I would submit to that the financial loss is the loss away from their ‑- from their family to arrange their affairs was a harm that should be considered.
Dishonest or selfish motive, clearly I think Dr. Buttar had a money interest in this case just from the evidence that was presented that, you know, patients were given an arbitrary protocol, one-size fits all, everybody seemed to be paying close to almost $1,000 a day. I think you can reasonably infer from ‑- from that evidence that that ‑- there was a dishonest and selfish motive.
I will say this ‑- about this and it's not like I'm trying to incur your favor with, you know, decide, but I'm not Dr. Buttar, no one here is Dr. Buttar. We don't know. Motive and intent is one of the hardest things to prove in any litigation.
However, you can draw reasonable inferences from the conduct. And I think it is a reasonable inference to draw from that conduct that there may have been selfish or ‑- or a selfish motive.
Vulnerability to victim, I think clearly they were vulnerable. They were desperate people ‑- you know, they were dealing with ‑- with a terminal prognosis and ‑- and one day we probably all will be in that situation. And, you know, and I can't imagine what it must feel like to be in that situation. You all see that in your practices. You all know better than me. So clearly you have much more experience than probably anyone in this room about whether there was vulnerability of the victim.
Refusal to admit wrongful nature of the conduct, clearly that's ‑- that's here.
Willful or reckless misconduct, again, intent is one of the hardest things to prove, but I think there's reasonable inferences to be drawn.
There isn't really a pattern of misconduct. I think patter of misconduct probably ‑- well, I'm sorry, I have that wrong.
I think there is a pattern of misconduct in the sense that there's multiple patients, he did this over a course of years.
Multiple offenses, I see as a prior disciplinary action. Multiple offenses is that he's been in front of the Board many times in a public setting. I don't think that's established even though there are three patients, I kind of put that more on number 8 and number 9.
There are mitigating factors. I agree with Ms. Godfrey about the absence of a prior disciplinary record.
No direct patient harm, again, I think financial loss is a harm and time away from the family.
Absence of a dishonest or selfish motive, we talked about that.
Full cooperation with the Board, I will admit that, you know, this has been a case that has been prepared in ‑- between essentially December and now and it has been difficult at times, but I will not say there has been ‑- there has been non-cooperation -- I cannot say there's been no cooperation. I would agree to that mitigating factor exists.
Physical or mental disability or impairment, I don't think Dr. Buttar has a physical or mental disability.
Rehabilitation or remedial measures, I wish there was comments on that. I really hope that would it would be remedial or rehabilitation.
Remorse, I ‑- you know, that only can be established by Dr. Buttar.
So when you take all that into account, whether or not the aggravating factors outweigh the mitigating factors, I don't know.
But what I do know is that the law allows restitution, you found that. And I think in order for there to be clear restitution, there should be an indefinite suspension of his license, that he not be able to reapply until restitution is made to the victims.
I don't have that number in front of me. We can ‑- we can ‑- that can just, you know, tailored to ‑- to the amounts that the Patients A, B and C paid Dr. Buttar's office for their treatments. And that that be conditioned upon his ability to reapply for his license.
MR. KNOX: Can I just add a couple of things.
PRESIDENT RHYNE: Yes, sir.
CLOSING STATEMENT BY MR. KNOX:
Number one, the restitution, there's not much evidence that anybody was ever sued or anybody collected from
Dr. Buttar Truth Quotes
“Whoever undertakes to set himself up as a judge of Truth and Knowledge is shipwrecked by the laughter of the gods.”
—- Albert Einstein
“Truth is generally the best vindication against slander.”
—- Abraham Lincoln
"All truth passes through 3 phases: First, it is ridiculed. Second, it is violently opposed, and Third, it is accepted as self-evident."
—- Arthur Schopenhauer
"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success than to take the lead in the introduction of a new order of things because the innovator has for enemies all those who have done well under the old conditions and lukewarm defenders in those who may do well under the new."
—- Machiavelli, The Prince