A federal appeals court on Thursday rejected claims by Dr. Kevin Buckwalter of Henderson that his rights were violated when the State Board of Medical Examiners, without notice and on an emergency basis, suspended his authority to prescribe medication after he was linked to patient overdose deaths.
The state board acted against Buckwalter in November 2008, the U.S. Drug Enforcement Administration blocked his ability to prescribe drugs, he was sued eight times by patients or their families, and a Las Vegas Sun investigation linked his practice to multiple patient deaths involving prescription drug abuse and overdoses.
Attorneys for Buckwalter, who claim that at most he had record-keeping problems, filed suit against the state board in November 2010, claiming Buckwalter’s civil rights were violated and his livelihood destroyed because the board had failed to give him notice of the meeting where it acted against him, failed to promptly detail the allegations against him and didn’t promptly schedule a hearing so he could defend himself.
Buckwalter also complained that board members gave into political pressure and moved against him in response to the hepatitis C crisis that emerged in the Las Vegas area in early 2008.
U.S. District Judge Kent Dawson in Las Vegas threw out Buckwalter’s lawsuit in March 2011, ruling members of the Medical Board have absolute immunity from lawsuits arising from their official duties and that the board has authority to take emergency action to protect the health of residents.
Buckwalter appealed, but the 9th U.S. Circuit Court of Appeals in San Francisco on Thursday upheld Dawson’s ruling.
The appeals court said the board’s “summary suspension power is analogous to a judicial function” and that, like judges, board members must be free to perform their functions without the threat of legal harassment or intimidation.
“Abrogating absolute immunity for summary suspension could make board members hesitant to act quickly and decisively to protect the public,” the court wrote in its ruling.
Both sides in the dispute initially blamed each other for delays in bringing Buckwalter’s case to a formal disciplinary hearing where Buckwalter could try to clear his name, and the appeals court seemed to side with the state on that issue.
“Buckwalter may now regret the months he spent in fruitless settlement negotiations, but it was his choice not to proceed to hearing. The board should not bear the burden of Buckwalter’s litigation decisions,” the court said.
Last September, while the case was on appeal to the 9th Circuit, Buckwalter’s legal team and the state agreed to move forward with a formal hearing on four malpractice complaints against Buckwalter; and the board lifted its 2008 suspension of his ability to prescribe drugs.
State records indicate that hearing has not yet been held, and Buckwalter’s attorney, Jacob Hafter, said it’s now scheduled for July.
“Because of what the Board of Medical Examiners has done in this case, the issue as to whether Dr. Buckwalter was an imminent danger to the people of the state of Nevada is no longer a topic for the hearing. Thus, Dr. Buckwalter can never have a chance to clear his name on that issue,” Hafter said in an email on Thursday.
Hafter said he’s considering asking the 9th Circuit for a rehearing or an appeal to the U.S. Supreme Court. In the meantime, he said, state legislators should pass legislation to “restore the basis due process rights” of physicians and others with professional licenses.
“The 9th Circuit today has destroyed any constitutional due process rights that a physician thought they had in their license. The court condoned the unilateral actions of political appointees, without regard for whether such actions were negligent, reckless or even purposeful,” Hafter said. “The implications of such power in a state whose health care is controlled by two large for-profit health care corporations and a handful of mega-physician practice networks are severe.”
Separately, state records show that in March and April, the board was informed of three settlements of professional liability claims against Buckwalter dating to 2008 totaling $350,000. One involved excessive narcotic prescriptions allegedly resulting in a suicide, another allegedly resulting in a “ruptured bowel and death” and another allegedly resulting in a patient being hospitalized for detoxification and substance abuse treatment.
Hafter said his office wasn’t involved in malpractice lawsuits filed against Buckwalter by patients and their families. But, he said, with just $350,000 in settlements reported to the board, “such settlement amounts are not egregious or significant at all, in context of other cases.”
It's unclear from court records which of the claims against Buckwalter yielded the $350,000 in settlements, which were all reported by the same insurance company.
It's also unclear whether there are additional settlements, potentially involving other insurers, that have not been reported to the State Board of Medical Examiners.
Hafter said he’s still working to have the U.S. Drug Enforcement Administration drop its ban on Buckwalter prescribing prescription drugs.
Buckwalter is now in Africa doing humanitarian work, he said.