... is for good men to do nothing.
Retaliation Against Physicians - Robert Sinaiko, M.D.Robert Sinaiko, M.D. v. Medical Board
(Medical Board Opinion Failing to Show Clear and Convincing Evidence)
Issue: This case involves an allergist/immunologist who treated several patients allegedly in an “unorthodox” manner. Despite some support from the medical community that he did not practice below the standard of care, the Medical Board adopted the ALJ’s opinion revoking his license. The written opinion failed to show clear and convincing evidence, completely ignored the testimony of ten of Dr. Sinaiko’s witnesses, and viewed as “highly credible” the testimony of one of the physician’s competitors. There was no documented patient harm, but the ALJ awarded almost $100,000 cost recovery against the physician as “reasonable” without a shred of evidence documented in the opinion to that effect. Following the receipt of CMA’s AC brief before the Medical Board (which did not take a position on the merits of the treatment), the Medical Board reviewed the entire transcript and issued a new decision after reconsideration which placed Dr. Sinaiko on probation for five years with multiple conditions, including nearly $50,000 in cost recovery.
Dr. Sinaiko appealed the final Medical Board decision to the Superior Court where on November 2, 2001, CMA file and AC brief in support of Dr. Sinaiko. CMA explained to the Court that is extremely concerned about the impact of this case upon everyone subject to the jurisdiction of the Medical Board, as the processes that appear to have been used in this case are insufficient to protect against wrongful deprivations of fundamental vested rights—medical licenses. Not only did the Medical Board improperly reject the testimony of Dr. Sinaiko’s experts, and improperly fail to understand that competing schools of medical thought exist in this case, it subjects all its licentiates to an unfair and inappropriate fee recovery statute, Business & Professions Code §125.3. Because of the magnitude of the potential penalty they impose, CMA explained that fee recovery statutes chill the exercise of important constitutional rights as physicians and other professionals cannot afford to exercise their constitutional rights for a hearing when charged with wrongdoing. As a result, they may enter into settlements inappropriately, adversely impacting their ability to pursue their livelihood and serve those with whom they have built long standing relationships so critical to quality of care—their patients. The Superior Court agreed that Dr. Sinaiko’s experts should not have been disqualified. It then proceeded to weigh the evidence itself (a duty reserved for the agency, not the Superior Court) and upheld the Medical Board discipline against him. Dr. Sinaiko appealed.
Outcome: The appellate court reversed the trial court ruling. The court ruled that the wholesale disqualification of a physician’s experts rendered the Medical Board proceedings unfair as a matter of law. The court remanded the case back to the Medical Board to provide petitioner a fair hearing and decide the case on the basis of all of the evidence presented.