Stealing South Dakota: The South Dakota Board of Medical and Osteopathic Examiners – Part III
There are many persons ready to do what is right because in their hearts they know it is right. But they hesitate, waiting for the other fellow to make the make the first move – and he, in turn, waits for you. ~ Marian Anderson
On May 29th, 2012, Annette Bosworth, M.D. was a well-respected physician with her own practice. She also taught at the University of South Dakota Medical School and served as a Councilor for the South Dakota State Medical Association.
On May , 30th 2012, the following letter appeared in the Argus Leader newspaper:
Is medical board violating rights? By Annette Bosworth, M.D.
Does the Medical Board’s application violate the Americans with Disabilities Act (ADA)?
Medical licensing boards are state governmental agencies charged with granting licenses to physicians to practice in the state. That charge includes finding physicians who threaten the safety of our citizens by their practicing methods. Protecting the health of the public is undoubtedly a compelling state interest.
The United States’ 10th amendment authorizes each state to establish laws and regulations protecting the health and safety and general welfare of its citizens. Our South Dakota Board of Medical and Osteopathic Examiners inquires about the physician’s health (past and present) to determine competence to practice medicine. The board asks healthcare providers to self-disclose the presence of previous mental impairments and substance abuse. The Americans with Disabilities Act (ADA) provides numerous examples of what constitutes a disability, including site and hearing impairments, chronic and contagious disease and cancer and makes it clear that employee discrimination is illegal. Medical conditions that substantially limit one’s ability to walk, talk, see, hear and care for oneself all fall within the definition, as do many forms of mental illness.
In March, the South Dakota Medical Board filed a public reprimand against a young physician within our state because of his previous diagnosis of Multiple Sclerosis. The reprimand came about after the applicant answered these personal questions on his application to the state board. The board’s inquires about illness and addiction do not elicit meaningful knowledge regarding competence and go against the ADA. These questions fail to achieve ostensible goals of protecting the public. Instead of violating the applicant’s privacy with questions that do not satisfy the state’s interest of protecting the public, why not ask questions about their conduct?
This example of a state-written public reprimand for this doctor’s diagnosis of Multiple Sclerosis flaunts a misuse of power by the board. There are many objective requirements for medical licensing such as graduation from an accredited medical school, completion of a certain number of postgraduate years of training and the successful completion of all parts of the National Board of Medical Examiners examinations. This list begins to paint the complex mosaic of the process in place for the checks and balances needed to become a physician. How does the state medical licensing board find the use of their invasive questions valuable enough to invade the privacy of professionals?
The board should be held accountable for privacy invasions and discrimination based on the Americans with Disabilities Acts.
My Voice: Annette Bosworth, M.D. 41, is a physician and associated with the South Dakota Board of Medical and Osteopathic Examiners.
The Board’s President, Robert L. Ferrell, M.D., responded through the Argus Leader on June 12th. He vigorously denied the characterization that Bosworth painted saying the “stipulation” was voluntary. Unfortunately for Dr. Kusmak, the Board action was considered a public reprimand requiring his illness be made public and the criteria for licensing noted:
“The Board and Dr. Kusmak understand and agree if Dr. Kusmak is issued a South Dakota medical license it shall be subject to the following conditions:
- Kusmak and the Board agree that this Stipulation and Agreement is voluntary and not disciplinary. This Stipulation and Agreement does not concern an addictive behavior. Dr. Kusmak wishes to make known that he has been diagnosed with Multiple Sclerosis, a neurological disease.
- Kusmak shall be under the mentoring of a physician approved by the Board who signs an agreement with the Board to mentor Dr. Kusmak in his practice. Dr. Kusmak shall not perform surgery or any other invasive procedures, except as permitted by credentials and privileges granted to him by the Hospital(s) where he is authorized to practice or the clinic(s) With which he is associated.
“Stipulation and Agreement is a public document of the state of South Dakota and the Board, and shall be published on the Board’s website and reported to the national databanks and to any other entity deemed necessary by the Board.”
Dr. Kusmak’s condition was now public and noted in national databases as well.
Bosworth’s letter put her squarely in the crosshairs of a very powerful group, but even Bosworth could not have anticipated what was in store for her. Less than 30 days after the Op-Ed appeared, she found her license in jeopardy. She was charged with “employing an unlicensed physician assistant without an approved supervision agreement to practice.” The PA had been working with Bosworth part-time as well as with another doctor. She was reprimanded in January for being unlicensed. It isn’t clear why her license was not approved by the Board. She was a graduate of the University of South Dakota, had passed her medical boards and the reprimand clearly refers to her as a “physician assistant.”
In June, Bosworth waived her right to a closed door meeting allowing the public a view into the proceedings. The move would work against her. In the months to come, South Dakotans knew little about the background of the tribunal or what got Bosworth there, although the local Argus Leader wrote at the time, “Bosworth was the subject of Wednesday’s hearing after the Argus Leader published an op-ed piece last month in which Bosworth criticized the Board of Medical & Osteopathic Examiners for violating the Americans with Disabilities Act.”
The formal reprimand states:
“The Board hereby reprimands you, Annette M. Bosworth, MD, for unprofessional behavior in that you employed an unlicensed physician assistant without an approved supervision agreement to practice.” ·
According to KELO-TV, “Part of Bosworth’s agreement with the board at that time was to seek treatment for a mental illness in order to continue her practice,” which included “signing of three releases that would give the board of medical examiners the right to information from Bosworth’s sessions with her psychologist, psychiatrist and a physician mentor.”
Many considered the intrusion into her files an overreach, especially given that the reprimand centered on a PA and not patient issues.
Based on the Board’s consistent challenge to her stability, Bosworth’s mental health would come to define her in comment sections of articles written about her and commentary posts by local blogger, Cory Allen Heidelberger. Heidelberger would obtain private patient information and post it on his website the following year. He has yet to be charged under Federal HIPAA Privacy Rules. As of this writing, her private information remains on his site.
Following the June 2012 hearing, Dr. Jean Heisler an instructor at the Sanford School of Medicine told the Argus Leader after the tribunal, “[Dr.] Bosworth should never have been subject to the hearing.
The Board continued their assault on Bosworth. In September, the SDBMOE filed to have Bosworth’s medical license suspended for failing to comply with the June agreement. Specifically, the Board had yet to receive the personal files of Bosworth’s medical appointments. In response, Bosworth’s attorney, Joel Arends, stated that she was not seeing a therapist at the time of the reprimand, arguing that she had yet to find one that she was comfortable with. Especially disconcerting to many was the Board’s demand that Bosworth’s sessions be provided to the members, something most doctors would reject given federal privacy laws associated with patient/doctor privilege.
In a letter submitted by Bosworth’s overseeing physician following the hearing, Richard C. Tally asked, “I heard your staff’s attorney mention many times Dr. Bosworth’s mental illness. Did you, or and medical members of the Board, ask what mental illness he was discussing? Did you see any evidence that Dr. Bosworth has a mental illness? In my conversation with Dr. Bosworth’s psychiatrist he stated Dr. Bosworth has no mental illness and believes he has written to the Board expressing that fact.”
In a November 9th hearing, the finding of facts included testimony of physicians who spoke of Bosworth’s commitment to her patients. In her statement of facts, the examiner noted, “Although the specifics of the testimony from each witness varied, the majority of the testimony centered on Dr. Bosworth’s performance as a physician, including her medical abilities and treatment of patients. The testimony was favorable to Dr. Bosworth, painting a picture of her as an excellent member of the medical profession who cares deeply for her patients.”
She was given 10 days to comply, but the Board made one more attempt to discredit Bosworth. The SDBMOE informed the National Practitioner Data Bank (NPDB) that Dr. Bosworth has or could have harmed patients.
The move prompted her overseeing physician to call out the Board members. In a letter to SDBMOE President, James R. Reynolds, M.D, Robert C. Tally, M.D. wrote, “I have personally been informed three different scenarios by your staff about the “yes” on the National Practitioner Data Bank (NPDB) that Dr. Bosworth has or could have harmed patients. First in September 2012, I was told this was an error which your staff were working to correct, second some weeks later I was told this was a computer “glitch”, and at the hearing of 11/28/2012, we were informed it was legally required. When I am told three different things by the same individual my trust is destroyed. Dr. Bosworth has harmed no patients.”
“By the incorrect report to the NPDB you have unfairly sullied the reputation of Dr. Bosworth, you have caused great hardship to her and her family, you have destroyed her relationship to agencies that need her medical input and caused her undue stress,” continued Tally.
Tally also chastised Reynolds for his allowing the Attorney General’s office to determine the the direction of the meeting and clearly pushing the premise that Bosworth’s mental state was at issue:
“I heard some amazing things at the SDBMOE hearing on 11/28/2012 and I was disappointed the Board did not challenge prejudicial statements or at least request some verification. I heard you staff’s attorney deliver a plea to you to “support your staff” a staff which in my opinion has not served you well. I heard your staff’s attorney discuss how “criminals” persuade family and friends to support them – what criminals was he referring to? Was there anyone in that room who is a convicted criminal? Was there anyone in that room who is facing criminal charges?”
“I heard your staff’s attorney mention many times Dr. Bosworth’s mental illness. Did you, or and medical members of the Board, ask what mental illness he was discussing? Did you see any evidence that Dr. Bosworth has a mental illness? In my conversation with Dr. Bosworth’s psychiatrist he stated Dr. Bosworth has no mental illness and believes he has written to the Board expressing that fact,” he said.
“Further I request you end all actions of the Board and your staff in reference to Dr. Bosworth and end all requirements for mentoring and/or reporting to the Board by Dr. Bosworth. I request the Board immediate declare Dr. Bosworth compliant and in good standing with the Board and let her get on with serving the people of South Dakota as a physician. I request you direct your staff to “get out of Dr. Bosworth’s life” unless there are credible further (after January 2013) reports of Dr. Bosworth harming patients, being incompetent, drug or alcohol addicted, physically abusive to colleagues and/or staff, or convicted of criminal activity,” were the final few paragraphs in Tally’s letter.
On June 5, 2014, the Attorney General filed 14 felony charges against Annette Bosworth, M.D..